The World in U.S. Courts: Spring 2017 - Personal Jurisdiction/Forum Non Conveniens
March.24.2017
Victims of a machine-gun attack on the West Bank sued the Palestinian Authority, claiming that its personnel carried out the attack. The Palestinian Authority argued that personal jurisdiction could not be asserted over it consistent with the Due Process Clause of the US Constitution. The Court of Appeals in Washington, D.C. agreed.
As a preliminary matter, the Court of Appeals addressed case law under which a “foreign sovereign” has been found not to enjoy any due process rights in US litigation. It construed these cases narrowly to apply only to entirely “sovereign” entities, a description it found did not include the Palestinian Authority because of the limitations imposed at the time the authority was created by the Oslo Accords. The Court of Appeals noted but had no reason to consider the rule of the Court of Appeals in New York which exempted sovereigns from due process protection only where that status had been recognized by the US Government.
The Court of Appeals next considered whether personal jurisdiction could be based on Federal Rule of Civil Procedure 4(k)(2), which operates where a federal claim has been brought against a non-US defendant whose contacts with the US as a whole, but not with any one State, satisfy the “minimum contacts” test of the Due Process Clause. Constitutional protections in Rule 4(k)(2) cases rely on the Due Process Clause of the Fifth Amendment, which is applicable to actions by the federal government, rather than of the Fourteenth Amendment, which limits the powers of the US States, and the plaintiffs argued that Fifth Amendment Due Process is less strict—and generous enough to be satisfied by the contacts of the Palestinian Authority. The Court of Appeals rejected this argument, finding that the US Supreme Court as well as other federal courts had universally applied the same “minimum contacts” standard no matter which Due Process Clause was at issue, and that several courts of appeals had expressly concluded that the standards are the same. The one difference is that Fifth Amendment Due Process considers a defendant’s conduct with the US as a whole, whereas Due Process protection under the Fourteenth Amendment looks only to a defendant’s contacts with the forum State.
Even under the broader Fifth Amendment inquiry, however, the Court of Appeals found inadequate contacts between the Palestinian Authority and the US. General personal jurisdiction cannot be exercised because the Palestinian Authority is not “at home” in the US. Specific personal jurisdiction, by contrast, requires minimum contacts and that the plaintiffs’ claim arise out of those contacts. The Court of Appeals found neither requirement satisfied. The plaintiffs’ claim that terrorist activity outside the US was intended to influence US policies and public opinion was largely based on conclusory assertions, not alleged facts. And the Court of Appeals noted that an academic’s declaration supporting the theory failed to link the attack that was the subject of the suit with the any potential effect in the US. The case thus was dismissed, with the Court of Appeals rejecting a request for jurisdictional discovery on grounds that the discovery sought could not cure the jurisdictional defects.