I’m keeping my eyes on an interesting new case filed in New York: Mohamad v. Rajoub. It raises lots of key Letters Blogatory issues. Here is the case according to the allegations of the complaint:
Asid Mohamad is the representative of the estate of Azzam Rahim. Rahim was a US citizen of Palestinian descent. He claims that in 1995, he was arrested in the West Bank by members of the Palestinian Preventive Security Force, taken to a prison in Jericho, tortured, and killed. The defendant is Jibril Rajoub, then the head of the PPSF in the West Bank and a high-ranking official in the Palestinian Authority, and today the head of the Palestinian Authority’s Olympic Committee. The plaintiffs allege that Rajoub, “as head of the PPSF … with official or apparent authority carried out or caused to be carried out acts of torture and extra-judicial killing pursuant to the general policy of the Palestinian Authority leadership.” The claims are for violation of the Torture Victim Protection Act, violations of customary international law, and torts including assault, battery, and false imprisonment, either under the law of New York or the law of the West Bank. According to news reports, Rahim was served with process as he stepped off a plane at JFK airport in New York last week.
So many good issues!
First, one of my favorites, tag service, i.e., service of process on a person physically present within the jurisdiction, without regard to whether the person served or the case itself has any connection with the jurisdiction. We can look at this through three lenses: the rules of procedure, the Due Process Clause, and international law (I’ll only deal with the first two here). Under FRCP 4(k)(1)(A), service of the summons is effective to establish personal jurisdiction if the defendant is subject to the jurisdiction of a court of general jurisdiction where the district court is located. So the first question is whether New York’s courts would exercise jurisdiction. But because at least some of the claims are governed by federal law, there is also FRCP 4(k)(2) to consider. That rule provides that in a federal question case, if the defendant would not be subject to the jurisdiction of any state court but the exercise of jurisdiction is constitutional, then the federal court can exercise jurisdiction. So in a sense the FRCP 4(k) inquiry collapses into the general constitutional question about tag service.
The constitutional issue still seems pretty clear. In Burnham v. Superior Court, 495 U.S. 604 (1990), the Court held that service of a defendant in the court’s territorial jurisdiction comports with the test for due process set out in International Shoe. There can hardly be any doubt on that score, I think, though I suppose that someone could try to take the holding of Daimler v. Bauman, the case cutting back on general jurisdiction with respect to corporations, and argue that the rules for natural persons are in flux too.
Second, the choice of law issues on the common law claims. I am especially attuned to this issue now because I have a pending motion for summary judgment that raises it. My view is this: the case is basically a personal injury case. So the default rule, reflected in § 146 of the the Restatement (Second) of Conflict of Laws, has to be that the law of the West Bank governs. It’s hard to conceive that any other place has a relationship to the parties and the occurrence that is more significant than the relationship of the West Bank to the parties and the occurrence. In some cases it could be that it would be very difficult to figure out what the law of the foreign jurisdiction is, and that would weigh against application of the foreign law. But in 2017 that point, which comes into the analysis under § 6 of the Restatement (Second), probably has less force than it used to, given the greater availability of information about foreign legal systems today.
Last—and this is just speculative: I don’t know enough about Rajoub to know whether he has a claim of immunity from process. In particular, I don’t know enough about how the International Olympic Committee and the national Olympic Committees are organized to know whether Rajoub might be able to claim he’s entitled to the immunity from process under 22 U.S.C. § 288d(b). But even if he is entitled, the immunity extends only to process “relating to acts performed by them in their official capacity and falling within their functions.” I don’t see that Rajoub could meet that test here.