                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

REUVEN GILMORE, et al.

               Plaintiffs,
                                                            Civil Action No. 1-853 (GK)
        v.

PALESTINIAN INTERIM SELF-
GOVERNMENT AUTHORITY, et al . ,

               Defendants.


                                      MEMORANDUM OPINION

        Plaintiffs are family members and the estate of Esh Kodesh

Gilmore,       a     United         States     national        killed      in    a      shooting    on

October      30,      2000,     in     East     Jerusalem.            They      bring     this    case

against        Defendants,           the      Palestinian         Interim        Self-Government

Authority           ( "PA")    and     the      Palestine        Liberation             Organization

( "PLO")       (collectively,              "Defendants")         pursuant          to    the     Anti-

Terrorism Act of 1991                  ("ATA"),       18     U.S.C.    §   2331,     et seq.,      and

related common law theories.

        This matter is before the Court on Defendants'                                   Motion for

Judgment       on     the     Pleadings        for     Lack     of     Personal         Jurisdiction

[Dkt.    No.       359].       Upon    consideration of               the Motion,        Opposition

[Dkt No.       371],       and Reply         [Dkt.    No.    374],    and the entire record

herein,      and      for     the    reasons         stated below,         Def-endants'        Motion

shall be denied.
I.      BACKGROUND

        Esh Kodesh Gilmore was shot and killed on October 30, 2000,

at a    branch office of the                      Israeli National                   Insurance Institute

in    East   Jerusalem.              On April            18,     2001,         Plaintiffs          filed      this

action against         Defendants,                as    well       as    eleven           of    their    current

and     former      employees              (the     "Individual                Defendants"),             seeking

compensation         for    Gilmore's              death         under         the        ATA    and     related

theories.

        Defendants        and    the        Individual           Defendants               initially       failed

to    file   a     responsive          pleading,             leading       the         Court      to    enter    a

default      on    December          20,     2001        [Dkt.      No.        18] .        On   January       29,

2002,    Defendants and the Individual Defendants appeared through

counsel      and    moved       to     vacate          the     entry       of        default,         which    the

Court    granted      on April             17,     2002        [Dkt.      No.        37].        At     the   same

time,    Defendants moved to dismiss the case for failure to state

a    claim    and     lack       of        subject           matter        jurisdiction,                and   the

Individual         Defendants         moved         to       dismiss           for     lack      of     personal

jurisdiction [Dkt.           No.       20].        On March 7,             2006,          the Court denied

Defendants'         Motion       to        Dismiss           for        lack         of     subject       matter

jurisdiction        and     failure           to       state       a     claim,           but    granted      the

Individual        Defendants'          Motion          to      Dismiss         for        lack of       personal

jurisdiction.             See    generally               Gilmore          v.      Palestinian            Interim


                                                       -2-
Self-Government             Auth.,             422    F.      Supp.     2d     96     (D. D.C.    2006)

 ("Gilmore I").

          After the Court denied their Motion to Dismiss,                                    remaining

Defendants PA and PLO failed to file an Answer to the Complaint,

prompting the             Court to enter a                  second default.            See Order of

Jan.       29,     2007     [Dkt.        No.     92].         Defendants       then     retained     new

counsel and on November 15,                          2007,    moved to vacate their second

default          ("Second Mot.           to Vacate")          [Dkt.    No.    107].      On December

28,       2009,     after     lengthy           briefing       on     that     Motion,      the   Court

vacated Defendants'                second default, concluding that there was "a

strong       public       interest"            in    resolving        the    parties'       claims   and

defenses on their merits.                           Gilmore v.      Palestinian Interim Self-

Gov't Auth.,          675     F.    Supp.           2d 104,    113     (D. D.C.     2009)     ("Gilmore

I.!") .

          The case then entered a two-and-half year discovery phase,

which concluded for all practical purposes in 2012, although the

parties           continued         to         litigate       various         discovery       disputes

throughout 2013.              On August 9,                 2012,    Defendants filed a Motion

for Summary Judgment.                     See generally Defs.'                 Mot.    for Summ.      J.

[Dkt.      No.     285].       On    February 10,              2014,        after   the Motion       for

Summary Judgment had been fully brief.ed but before it had been

decided,         Defendants filed the instant Motion for Judgment on the


                                                      -3-
Pleadings for Lack of Personal Jurisdiction                            [Dkt. No.              359].       On

April 2,      2014,    Plaintiffs filed their Opposition [Dkt. No.                                  371].

On April 14, 2014, Defendants filed their Reply [Dkt. No. 374].

II.    Defendants   Have             Waived            their      Defense          of          Personal
       Jurisdiction

       Defendants       rely on      Daimler AG v.               Bauman,         134     S.       Ct.    746

(2014),    in which the Supreme Court held that                        ~a    court may assert

[general]      jurisdiction         over    a     foreign       corporation                             only

when    the    corporation's         affiliations              with   the        [forum]          are     so

constant and pervasive 'as to render [it] essentially at home in

the    forum    State.'"         Daimler,         134    S.     Ct.    at    751         (citing         and

relying    upon       Goodyear    Dunlop         Tires       Operations,         S .A.       v.    Brown,

131 S. Ct. 2846, 2851            (2011)).         Defendants contend that they are

not subject to general jurisdiction under the                              ~at    home" standard

discussed      in     Daimler     and      also        are     not    subject          to      specific

jurisdiction.         Mot. at 1.

       Plaintiffs        argue       that         Defendants          have        waived            their

jurj,.sdictional defense by litigating this case on· its merits for

more   than     a   decade.         They    further          contend    that           the     standard

discussed in Daimler does not apply to Defendants because they

are    governmental       entities         and    that,        even   if     the       Court        lacks

general        jurisdiction          over         Defendants,          it         has          specific

jurisdiction.           As    set     forth        below,       the    Court           agrees           that
                                                 -4-
Defendants            have         waived        their           jurisdictional                  defense         and

therefore need not reach the parties' other arguments.

         A.      Personal Jurisdiction Is a Waivable Defense

         "Because            the      requirement                  of      personal               jurisdiction

represents first of all an individual right,                                       it can,            like other

such      rights,        be        waived."             Insurance              Corp.        of        Ireland     v.

Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 (1982).

         Rule 12(g)          and    (h)    of the Federal Rules of Civil Procedure

describe two nonexhaustive ways in which the defense is waived.

As     relevant        here,       Rule     12(g) (2)            provides        that        "a       party     that

makes     a     motion       under        this    rule        must        not    make       another          motion

under         this     rule        raising        a     defense           or     objection             that      was

available        to    the     party but              omitted        from       its    earlier motion."

Fed.     R.    Civ.     P.    12(g)(2).               Rule       12 (h)    states       that          "[a]    party

waives any defense listed in Rule 12(b) (2)-(5) by .                                                     omitting

it     from      a     motion        in     the        circumstances               described            in      Rule

12(g) (2) [.]"           Fed.       R.     Civ.        P.     12 (h) (1) (A).               The       collective

import        of these two provisions                       is    that      "[i] f     a     party files           a

Rule 12(b) motion to dismiss,                          it may not subsequently assert any

Rule     12(b)        defenses       that        were       available           when        the       first     Rule

12 (b)    motion       was     filed."            Candido           v.     Dist.       of    Columbia,          242

F.R.D.         151,     161        (D. D.C.           2007)        (citing         Fed.          R.     Civ.      P.


                                                       -5-
12 (g), (h) (1); Chatman-Bey v. Thornburgh,                                        864 F.2d 804,             813     (D.C.

Cir. 1988)).

        A defense is unavailable for purposes of Rule 12(g) (2)                                                       "if

its legal basis did not exist at the time of the answer or pre-

answer           motion,"               so    that     it       was        "for    all   practical            purposes

impossible               for           the      defendants             to     interpose              their

defense [.]"                  Chatman-Bey,                864    F.2d        at    813   n.9.           Although        an

unavailable defense is not,                               under Rule 12(h), waived by omission

from an earlier Rule 12 motion,                                       the defense must be raised "as

soon    as            [its]        cognizability            is        made    apparent."               Holzsager        v.

Valley Hosp.,                 646 F.2d 792,                796    (2d Cir.         1981).            Otherwise,       the

newly        available                 defense       is     subject          to    waiver        "by        failure     to

assert           it    seasonably,              by     formal         submission         in      a    cause,       or by

submission               [to           the     court's           jurisdiction]             through           conduct."

Neirbo           Co.    v.     Bethlehem Shipbuilding Corp.,                               308       U.S.     165,    168

(1939).

        B.            The Defense of Personal Jurisdiction Was Available to
                      Defendants

        More           than        a    decade       ago,       Defendants          moved        to     dismiss       the

case    for            lack        of        subject      matter           jurisdiction          and     failure       to

state        a     claim           under        Rule      12 (b) (1)         and    {6).             They    did     not,

however,          raise their personal jurisdiction defense at that time.

See     Gilmore               I,        422     F.     Supp.          2d     at    102     n.4        (noting        that

                                                                -6-
"Defendants             [PA and      PLO]        did not move       to dismiss                     this

action for lack of personal jurisdiction.").                                As a consequence,

the jurisdictional defense has been waived if either:                                      ( 1) it was

"available" in 2002 when the Motion to Dismiss was                                      filed,      see

Rule     12 (h) (1) (A),            or    ( 2)     it     later    became       "available"         but

Defendants failed to promptly assert it.                               Holzsager, 646 F.2d at

796.

               1.        The Defense Was "Available" in 2002 and Therefore
                         Waived Under Rule 12{h) {1) {A)

       Defendants contend that their personal jurisdiction defense

was not available in 2002 because the Supreme Court had not then

held    that        a    foreign         defendant         is     only   subject       to    general

jurisdiction             if    its       affiliations           with     the     forum       are     so

continuous and systematic as to render it "essentially at home"

in the     forum State.                  Defendants claim that              until      the    Supreme

Court announced the "at home" rule, their jurisdictional defense

was simply not "available."                         As discussed below,            this argument

is belied by Defendants' own litigation history in this case.

       Between          2002       and   2011,      Defendants         contested      the     Court's

personal     jurisdiction                on   multiple       occasions      despite         the    fact

that they never moved for dismissal on that basis.                                    For example,

on   February 15,             2002,      less      than one month         after       filing      their

original    Motion            to    Dismiss,        Defendants         argued    in    a     separate
                                                    -7-
filing    that    "Personal          Jurisdiction         is     Lacking       Over                the

Palestinian Authority" because "[t] he                          PA is not present in the

U.S."      Defs.'     Opp' n to Pls.'            Mot.     for    Default J.       at       6-7   [Dkt.

No. 23].     On November 15, 2007,                 in a proposed Answer attached as

an    exhibit    to    their    Second Motion             to Vacate,           Defendants        again

asserted     that      the     Court       lacked        personal       jurisdiction.              See

Second Mot.      to Vacate,          Ex.    G at 2       [Dkt.    No.   107-7]        ("This Court

lacks personal jurisdiction over the Defendants with respect to

this action.").          On April 25,            2011,    Defendants formally re-filed

their    Answer       [Dkt.    No.    218],       raising        the    defense       of    personal

jurisdiction for a third time.

        Furthermore,      on    May        31,   2011,     after        Plaintiffs         moved    to

strike    Defendants'         jurisdictional             defense,       Defendants         filed    an

Opposition brief arguing that:

       Defendants   have   raised   the   issues    of   personal
       jurisdiction and venue in every other case i.n which
       undersigned   counsel   have   appeared   on    behalf  of
       Defendants,  as had predecessor counsel.        Defendants
       believe that the courts of the United States do not
       have personal jurisdiction over them and that venue is
       also therefore improper, and Defendants do not intend
       to waive these defenses in the United States.

Defs.'    Opp'n to Pls.' Mot.               to Strike Affirmative Defenses at 10

[Dkt. No. 233].

       During    the    same     time       period,       Defendants       -    represented by

the   same   counsel            also       challenged           personal       jurisdiction         in

                                                 -8-
several related cases.                   See,      e.g.,    Knox v.        Palestine Liberation

Org.,     229     F.R.D.     65,       68    (S.D.N.Y.           2005)     ("defendants

oppose the assertion of personal jurisdiction over them"); Biton

v.    Palestinian        Interim Self-Gov 1 t              Auth.,        310   F.   Supp.      2d   172,

175     (D.D.C.     2004)        ("The      defendants        assert       a   lack     of    personal

jurisdiction        over                     the    PA");        Estates       of   Ungar     ex    rel.

Strachman v.        Palestinian Auth.,                 153 F.         Supp.    2d 76,    82     (D.R. I.

2001)     ("This matter is before                    the Court on the               PA defendants 1

motion     to     dismiss        the    complaint          for                 lack     of    personal

jurisdiction[.]").

        Defendants'         argument            that       their       personal         jurisdiction

defense      was      "unavailable"                prior         to      the    Supreme        Court's

announcement        of     the    "at       home"      rule      therefore      rings        hollow     in

light of the        fact     that they have been arguing since 2002                                 -   in

this case and others -                 that such a defense is both "available"

and meritorious.            Under Rule 12(h) (1) (A),                    Defendants thus waived

the defense by failing to include it in their original Motion to

Dismiss. 1


1
  Defendants did not, as they argue, preserve the defense by
raising it in their Answer more than five years after they filed
their Motion to Dismiss.  As the text of Rule 12(h) makes .clear,
"defendants wishing to raise [a defense of lack of personal
jurisdiction] must do so in their first defensive move, be it a
Rule   12  motion or a responsive pleading."  Mitrano v. Jerry 1 s
Ford Sales,   Inc.,  82 F.3d 403,   1  (1st Cir.   1996)  (second
                               -9-
               2.     Defendants Failed to Promptly Assert the Defense
                      After the Supreme Court Announced the "at Home"
                      Rule

        As already noted, Defendants base most of their argument on

their allegation that "[u] ntil              Daimler was decided in January

2014,"    the       specific   argument    asserted   in     their      Motion,       i.e.,

that their contacts with the District of Columbia do not render

them "at home" in this forum, was "simply not available."                             Reply

at 8.     They characterize Daimler as a "game-changing decision,"

which was so "widely viewed as changing the legal landscape for

personal       jurisdiction"     that     they   could not       have    raised       their

defense until after it was decided.               Reply at 1, 8.

        Even    if    Defendants    were    correct   that       a    legal    basis     to

challenge       the    Court's     jurisdiction    did     not       exist    until     the

announcement of the "at home" rule                (which,    as discussed above,

is entirely inconsistent with their behavior in this and other

cases), they are flat-out wrong that Daimler was the genesis of



emphasis added) ( citation omitted) ; Lawton v. Peroulis,  No. 6
Civ. 1125-REBMEH, 2007 WL 1879973 (D. Colo. June 27, 2007) ("By
the time Defendant               asserted the defenses
in the Answer             he had already waived [them] by not
including them in [his prior Rule 12 motion]").      Nor is this
conclusion altered by the Court's July 14, 2011, summary Order
denying Plaintiffs' Motion to Strike all fourteen of Defendants'
affirmative defenses.     That Order was composed of a single
sentence and made no       findings   whatsoever as  to whether
Defendants had or had not    waived any defense.. See Order of
July 14, 2011 [Dkt. No. 251].
                               -10-
that rule.          The "at home" standard was unmistakably announced in

Goodyear Dunlop Tires Operations, S.A. v. Brown,                                       131 S. Ct. 2846

(2011),      more than two and a                   half years before Defendants filed

the    instant          Motion.        Therefore,          as    discussed             below,      even      if

Defendants         had    not     waived       the    defense         under       Rule       12 (h) ( 1) (A) ,

they     have      waived       it    by    failing        to    promptly          assert        it     after

Goodyear.

                         a.      The "at Home" Rule Was Announced in
                                 Goodyear, not Daimler

       In    Goodyear,           which      was      decided       on       June       27,      2011,       the

Supreme      Court        made       crystal       clear     that       a   foreign           defendant's

"'continuous activity of some sorts within a state,                                               . is not

enough to support" general jurisdiction ~nless that activity is

"so 'continuous and systematic' as to render                                  [it]      essentially at

home in the forum State."                      131 S.        Ct.      at 2851,         2856      (emphasis

added).           The    Court       explained        that      " [ f] or    an      individual,            the·

paradigm forum for the exercise of general                                   jurisdiction is the

individual's            domicile;      for     a   corporation,             it    is     an    equivalent

place,      one    in     which      the    corporation          is     fairly         regarded       as     at

home."       Id.    at     2853-54         (emphasis       added).          The Court            concluded

that general            jurisdiction was             lacking in that case because the

petitioners were "in no sense at home in                                [the forum] . "               Id.    at

2857   (emphasis added) .
                                                   -11-
        In Daimler,        the Supreme Court emphasized repeatedly that it

was     applying     a    rule      it    had    previously        announced        in   Goodyear.

For example, in its opening paragraphs, the Court stated:

        In Goodyear          we held that a court may assert
        [general] jurisdiction over a foreign corporation .
           only when the corporation's affiliations with the
        [forum] are so constant and pervasive 'as to render
        [it] essentially at home in the forum State.'

        Daimler,     134 S.      Ct.      at 751       (citing Goodyear,        131 S.     Ct.    at

2851)     (emphasis added).               In later portions of its opinion,                      the

Court     again    discussed         Goodyear,          observing       that   "Goodyear made

clear that only a limited set of affiliations with a forum will

render     a    defendant        amenable . to         all-purpose       jurisdiction,"          and

that     "the     inquiry        under         Goodyear       is               whether       th[e]

[defendant's]        'affiliations              with    the    State    are    so    'continuous

and     systematic'       as   to    render          [it]   essentially at          home   in    the

forum State."            Id.   at 760,         761     (citing Goodyear,       131 S.      Ct.    at

2851,     2853-54.         Thus,         the    Daimler       opinion    relied      heavily      on

Goodyear and in no way suggested that the "at home" standard was

a new rule. 2


2
   To support their contention that Daimler announced a "new
rule," Reply at    1,  Defendants cite a     portion of Justice
Sotomayor's concurrence in which she expressed concern that the
Court had adopted "a new rule of constitutional law that is
unmoored from decades of precedent" and that "no court ha[d]
considered in the history of this case." Daimler, 134 S. Ct. at
773 (Sotomayor, J., concurring).   However, Justice Sotomayor was
                              -12-
        Nor did the lower courts fail                        to appreciate the import of

Goodyear        until      Daimler was       decided,             as    Defendants       suggest.          A

Westlaw search indicates that,                  from June 27,                  2011, when Goodyear

was decided,           until January 13,           2014,          the day before Daimler was

decided,       more than 250 federal court cases discussed Goodyear's

"at home"           standard,     including eighteen circuit court cases and

three cases in this District.                      See,       e.g.,       United States ex rel

Barko     v.        Halliburton     Co.,     952       F.     Supp.       2d    108,     116       (D.D.C.

2013); Khatib v. Alliance Bankshares Corp.,                                   846 F.    Supp.      2d 18,

26   (D. D.C.        2012);   Mazza v.      Verizon Washington DC,                      Inc.,      852    F.

Supp. 2d 28, 42 n.13              (D.D.C. 2012).

        In     fact,      Defendants       themselves,             represented          by     the    same

counsel        as    in    this   case,     twice       invoked           Goodyear's         "at     home"

standard before             Daimler was      decided.                  See Brief for         PA at       19,

Livnat v.           Palestinian Auth.,        Civ.          No.    13-498       (E.D.    Va.    June 5,

2013)    ("In Goodyear,           the      [Supreme]         Court                    explained that

general        jurisdiction         permits        a        court        to     [exercise       general

jurisdiction]             'when   their     affiliations                with    the     State      are    so



not referring to the "at home" standard but to the majority's
conclusion about how to interpret that standard - namely that a
foreign defendant's contacts with the forum must be "viewed in
comparison   to   the   company's   nationwide   and   worldwide
activities."   Id. at 770 (emphasis added).    Justice Sotomayor
did not suggest in any way that the "at home" standard was
itself new.
                              -13-
continuous and systematic as to render them essentially at home

in the forum state.'") ;         Brief for PA and PLO in Opp' n to Pet.

for Writ of Certiorari,          Mohamad v.          Rajoub,    2011 WL 3664462,        at

*17    (Aug.    19, 2011)    ("For an individual, the paradigm forum for

the    exercise      of     general     jurisdiction           is   the   individual's

domicile;       for a corporation,       it is an equivalent place,                one in

which the       corporation is        fairly regarded as            at home."      (citing

Goodyear, 131 S. Ct. at 2853-54)).

       In sum, even if Defendants'              jurisdictional defense was not

"available" in 2002 when Defendants filed their original Motion

to    Dismiss,    it became available           no    later than      June   27,    2011,

when Goodyear announced the "at home" standard.                           They did not

file the present Motion until February 10, 2014 - two and a half

years after Goodyear.

                    b.      Defendants Failed to Promptly Assert their
                            Defense After Goodyear

       As discussed,        unavailable defenses must be raised "as soon

as their cognizability is made apparent."                       Holzsager,      646 F.2d

at 796.        Defendants did not invoke the "at home" rule as soon as

Goodyear made that argument cognizable.                   Instead, they litigated

this case on its merits for more than two and a half years and

asked the Court to grant summary judgment in their favor before

ever seeking dismissal on jurisdictional grounds.
                                         -14-
         "When a defendant participates in the litigation, delays in

making an objection to personal jurisdiction,                                   and then makes an

objection that could have been easily                               [addressed]                    in the

first place,          the defendant has waived the personal jurisdiction

objection."            United          States       v.    Brow,     No.     01-CV-4797,        2011       WL

7562706,        at    *5    (E.D.N.Y.           Dec.      28,     2011)      (citing        Datskow       v.

Teledyne,        Inc.,     Continental Prods.                  Di v.,    8 99 F. 2d 12 98,         1302-03

    (2d Cir.    1990));       see       also       Democratic       Republic         of   Congo     v.    FG

Hemisphere          Assoc.,        LLC,      508    F.3d       1062,     1064    (D.C.      Cir.     2007)

    (finding    waiver     where         a   defendant          "engaged     in extensive           post-

default        litigation"             and   failed       to    seek      dismissal       "before        the

court 1 s      and parties         1
                                        time    [was]      consumed in          struggle      over       the

substance of the suit").

        In     sum,    Defendants            forfeited         their     jurisdictional           defense

both by omitting              it       from their         2002     Motion       to   Dismiss       and by

failing        to     promptly          assert       it    aft.er       Goodyear      was     decided. 3

Consequently, the Court shall exercise jurisdiction over them.




3
   Having so concluded, the Court need not reach whether the
standard in Goodyear applies to Defendants or whether Plaintiffs
have satisfied that standard.
                              -15-
III. CONCLUSION

     For the foregoing reasons,     Defendants'   Motion for Judgment

on the Pleadings shall be denied.     An Order shall accompany this

Memorandum Opinion.




June 23, 2014




Copies to: attorneys on record via ECF




                              -16-
