Too Far from Home: Why Daimlers at Home Standard Does Not Apply to Personal Jurisdiction Challenges in Anti-terrorism Act Cases
| Publication year | 2016 |
Too Far from Home: Why Daimlers At Home Standard Does Not Apply to Personal Jurisdiction Challenges in Anti-Terrorism Act Cases
Ariel Winawer
The Anti-Terrorism Act is a federal statute enacted to help grant recourse to United States plaintiffs who have lost family members in international acts of terrorism. Under the statute, plaintiffs may file civil claims against organizations that directly engage in, or aid and abet, terrorism. A recent handful of Anti-Terrorism Act cases have been brought in federal district court against the Palestinian Liberation Organization and the Palestinian Authority by plaintiffs whose family members were killed in terrorist attacks that occurred in Israel. A split between two federal district courts exists regarding whether personal jurisdiction over both the Palestinian Liberation Organization and the Palestinian Authority is constitutional in light of the Supreme Court's 2014 decision in Daimler AG v. Bauman.
This Comment explores the application of personal jurisdiction under the Fifth and Fourteenth Amendments and argues that Daimler should not be applied to cases brought under the Anti-Terrorism Act. This Comment advocates for a simple solution to the lower courts' split whereby personal jurisdiction over the Palestinian Liberation Organization and the Palestinian Authority is assessed under the federal due process standards of the Fifth Amendment, rather than under those of the Fourteenth Amendment. A more traditional assessment under Fifth Amendment standards would quash concerns about the constitutionality of personal jurisdiction over these two entities and help preserve federal policy behind the Anti-Terrorism Act's enactment.
Congress enacted the Anti-Terrorism Act (ATA)1 to provide a civil cause of action for the families of United states citizens injured or killed in acts of international terrorism.2
The legislative history of the ATA reveals that Congress intended to hold terrorists accountable where it hurts them most: their funds.3 The ATA was meant to deter terrorists, and those who aid and abet terrorism, from carrying out attacks on Americans by chipping away at terrorism's financial support in the United States.4
Recently, a number of plaintiffs whose family members were killed in terrorist attacks abroad filed suit under the ATA against the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA).5 In these cases, the PLO and the PA moved to dismiss plaintiffs' complaints on the grounds that federal courts now lack general jurisdiction over them in light of Daimler AG v. Bauman.6 Two federal district courts are split on the issue of whether courts now lack personal jurisdiction over the PLO and the PA in light of Daimler.7 Except in one case, the United States District Court for the District of Columbia has granted the PLO and the PA's motions for dismissal for lack of jurisdiction after
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Daimler.8 The United States District Court for the Southern District of New York, however, has denied such motions for dismissal for lack of personal jurisdiction.9 This Comment argues that Daimler does not control cases brought under the ATA for two primary reasons.10 First, the majority in Daimler only provided two examples of where a defendant may be subject to general jurisdiction: if the defendant is (1) an individual or (2) a corporation.11 Daimler makes no mention of where a non-sovereign government entity may be subject to general jurisdiction.12 Secondly, and perhaps more convincingly, the test Daimler articulates for assessing general jurisdiction should not apply to cases in which the plaintiff's claims are not state-specific.13 Even though Daimler was a federal question case brought in federal court, the Supreme Court assessed whether due process was constitutional under the Fourteenth Amendment.14 Daimler was predicated on a state-specific claim, namely, whether a defendant had such "continuous and systematic" affiliations with the state of California so as to render it essentially "at home" in California.15 In other words, Daimler served to answer the question of whether a state could exercise general jurisdiction based on a nonresident's contacts with the state.16 That is not the relevant inquiry facing the federal courts in recent cases against the PLO and the PA.17
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This Comment proceeds in four Parts. Part I discusses the personal jurisdiction standard under the Fourteenth Amendment and two Supreme Court cases that limited the general jurisdiction standard: Goodyear Dunlop Tires Operations, S.A. v. Brown and Daimler. Part I also analyzes how courts assess due process under the Fifth Amendment and argues the assessment should differ from that of the Fourteenth Amendment. Part II discusses both the statutory and constitutional bases for asserting personal jurisdiction over foreign defendants under the ATA. Part II also details how several ATA cases with jurisdictional questions were decided pre-Daimler. Part III introduces several recent cases brought in federal court under the ATA. The defendants in these cases, the PLO and the PA, moved to dismiss for lack of personal jurisdiction pursuant to Daimler. The federal district courts are split on the issue of whether to grant these motions. Part IV argues these motions should be denied for four reasons. First, Daimler does not apply to these cases because it does not define how personal jurisdiction is assessed for non-sovereign government entities. Second, Daimler considers personal jurisdiction under the Fourteenth Amendment on a state-specific claim while the cases brought under the ATA are not based on state-specific claims.18 Third, a due process analysis under Daimler conflates the Fourteenth Amendment Due Process Clause with the Fifth Amendment Due Process Clause. Finally, applying a due process analysis under Daimler to cases brought under the ATA will neither honor nor uphold the federal policy that was instrumental in the ATA's enactment.
This Part explores how the Supreme Court has most recently assessed personal jurisdiction under both the Fourteenth and Fifth Amendments. Section A describes the Fourteenth Amendment analysis and the limiting effects two recent cases had on general jurisdiction. Section B analyzes how personal jurisdiction is commonly assessed under the Fifth Amendment, despite a dearth of existing case law.19 Section B also argues for a broader interpretation of personal jurisdiction under the Fifth Amendment with fewer restrictions than
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those felt by the states under the Fourteenth Amendment.20 Specifically, it asserts the idea that personal jurisdiction over a defendant under the Fifth Amendment should be constitutional on the basis of a defendant's aggregate contacts with the United States.21
Personal jurisdiction refers to a court's authority to adjudicate a claim against a person.22 There are two commonly referred to types of personal jurisdiction, specific jurisdiction and general jurisdiction.23 Specific jurisdiction refers to cases in which there is a connection between a cause of action in a particular state and a defendant's contacts or activities within that state.24 For example, if a Nevada corn supplier breached an agreement to deliver corn to a buyer in Colorado, such breach would give Colorado courts specific jurisdiction over that Nevada corn supplier. On the other hand, general jurisdiction refers to situations in which there is not a connection between a cause of action in a particular state and a defendant's contacts or activities within that state.25 For example, say a non-resident of Nevada sues a foreign corporation in Nevada for securities fraud. Although that foreign corporation conducts business in Nevada, the cause of action did not arise in Nevada, nor does it relate to the corporation's activities there.26 In this circumstance, a court may find general jurisdiction over that foreign corporation proper in Nevada.
To assert personal jurisdiction over a defendant, whether specific or general, a plaintiff must satisfy both a statutory and a constitutional requirement.27 The statutory requirement is usually satisfied by a state's long-arm statute or a federal
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long-arm statute.28 Long-arm statutes are created by the legislature and give courts power to assert jurisdiction over a defendant.29 In cases where defendants violate federal law and do not consent to the jurisdiction of any state but have sufficient contacts with the United States for federal courts to apply federal law, Federal Rule of Civil Procedure 4(k)(2) may be used as the statutory basis for asserting jurisdiction over defendants.30
The constitutional requirement for satisfying personal jurisdiction derives from the Due Process Clause and is the subject of vast case law.31 The Due Process Clause "protects an individual's right to be deprived of life, liberty, or property only by the exercise of lawful power."32 The Supreme Court has spoken about Fourteenth Amendment Due Process limitations on personal jurisdiction, but has provided less guidance with respect to those of the Fifth Amendment.33 Although the pertinent language of the two amendments is nearly identical,34 commentators have mixed opinions about whether the limits imposed on the people by the Fifth Amendment are analogous to those imposed on the states by the Fourteenth Amendment.35 This Comment argues that the limits imposed under each are, in fact, different.36
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A. Personal Jurisdiction Under the Fourteenth Amendment
Due process under the Fourteenth Amendment acts to ensure a defendant is not subject to suit in a state in which he does not have sufficient minimum contacts or has not conducted substantial activity.37 At its core, the Fourteenth...
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