                              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 attack in

East    Jerusalem        on     October       30,    2000.       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    ~'         and

related common law theories.

       This matter is before the Court on Defendants' Motion for

Summary     Judgment          [Dkt.    No.    285].       Upon    consideration            of   the

Motion,     Opposition         [Dkt No.        336-1],    and Reply       [Dkt.      No.    341],

the    entire   record         herein,       and    for   the    reasons      stated       below,

Defendants' Motion for Summary Judgment shall be granted.
                    1
I .   BACKGROUND

      A.     Factual Background

      Plaintiffs'        family   member   Esh   Kodesh    Gilmore    ("Gilmore")

was a United States national who made his home in Mevo Modi'im,

an Israeli neighborhood near the West Bank.                See SOMF at 1    ~~    1-

2.    He was killed on October 30, 2000, in a shooting attack at a

branch     office   of    the   National   Insurance      Institute    ("NII")    in

East Jerusalem, where he worked as a security guard.                   Id. at 2    ~


3.

      The    attack      occurred    at    the   beginning     of     the   Second

Intifada,    a period of sustained violence and unrest in Israel

and Palestine. 2        According to an informational release issued by


1
  The facts are drawn from the Plaintiffs' Counter-Statement of
Material Facts to Which There Are Genuine Issues ("SOMF") [Dkt.
No. 335-4] and accompanying exhibits.   Resolution of this Motion
turns entirely on whether certain items of evidence are
admissible under the Federal Rules of Evidence, which is a
matter to be determined solely by the Court and does not present
any questions that would otherwise be submitted to a jury.    See
Fed. R. Evid. 104.   Consequently, the Court includes facts that
provide the basis for its evidentiary rulings, even if disputed.
Other than the date, location, and fact of Gilmore's death, the
facts are disputed unless otherwise stated.
2
    According to a Report issued by the United States State
Department,   the   "sustained violence   between  Israelis  and
Palestinians .    . broke out" on September 28, 2000, and by the
end of July, 2001, more than 6,000 serious incidents of violence
in the West. Bank, Gaza, and Israel had been reported.       See
Second Corrected Declaration of Robert J. Tolchin ("Tolchin
Decl. "), Ex. 64 (United States State Department Report on the
                              .-2-
the     Israel      Ministry               of   Foreign Affairs              ( "IMFA 11 ) ,     the    shooting

was     perpetrated by                 a     sole   gunman        who      entered        the    NII     shortly

after noon,             fired a            number of shots at close range at the two

security          guards      in        the      waiting        room,    and      fled     on    foot.         See
                                                                                                               11
Second Corrected Decl.                          of Robert        J.    Tolchin         ( "Tolchin Decl.             )   ,




Ex.     62    (IMFA webpage dated Sept.                          23,     2013)      [Dkt.       No.    333-21].

Gilmore died upon arrival at the hospital.                                       Id.

        Although         it   is           undisputed       that       the     State      of    Israel       neve.r

prosecuted or             convicted              anyone     in        connection         with    the     attack,

SOMF    ~    4,    Plaintiffs believe the attack was planned and carried

out by a terrorist cell consisting of officers in a PA security
                                                                                                                        11
unit known as the Presidential Security Services,                                             or "Force 17,
                                                                                                        11
and     members         of    an        armed       PLO     faction          called       "Tanzim.             See

Complaint         ("Compl.    11
                                   )    ~~      17-30   [Dkt. No.          1].         Specifically,          they

allege that the gunman who shot Gilmore was a                                            Force 17 officer

named Muhanad Abu Halawa.                           Id.    ~~ 26,        27,     28. 3     Abu Halawa was

killed       by     Israeli            Defense      Forces        ( IDF)     on    or     about        March        5,

2002.        SOMF   ~    6.



Status of the PLO Commitments Compliance Act ("PLOCCA 11 ) ,                                                 dated
Dec. 15, 2000 - June 15, 2001) at 2 [Dkt. No. 334-1 at 3].
3
   Due to the transliteration of his name from Arabic to English,
the name Abu Halawa is sometimes written as "Muhannad Abu
Halaweh 11 and "Muhand Abu Haliwa. 11    He was also known as
"Muhannad Sa'eed Munib Deireia. 11
                                                          -3-
          Plaintiffs      claim        that      "[b) etween       September            2000       and     his

death in March 2002, a time period during which he was employed

full-time        in    Presidential           Security /Force               17,   Abu    Halawa          spent

much       if    not     most     of     his       time        executing          terrorist            attacks

together with a mix of other PA and Fatah officers,                                            leaders and

operatives                      all    of   whom were            convicted of            carrying out

numerous violent terrorist attacks [.]"                              SOMF at 8           <JI    16 .      They

further allege that,              in carrying out the attack at the NII, Abu

Halawa acted under a direct order of Force 17 regional commander

Mahmoud         Damara    and     pursuant          to     a    broad        directive          issued      by

former Palestinian leader Yasser Arafat "to organize,                                            plan and

execute         widespread        acts        of       terrorism        against         civilians           in

Israel, Gaza and the West Bank."                          Compl.   <JI<JI   23, 25, 28, 29.

          Plaintiffs'      theory that Abu Halawa perpetrated the attack

is    based      in    large     part       on     two    sets     of        custodial          statements

allegedly given to Israeli police by his associates. 4                                          The first

is    a    January       18,     2001,      written            statement          of    Tanzim         member
                                                   5
Mustafa Maslamani ("Maslamani")                         describing a conversation he had


4
    Plaintiffs also rely on a passage from the book The Seventh
War, How We Won and Why We Lost the War with the Palestinians
(2004) ("The Seventh War") by Avi Issacharoff and Amos Harel and
reports issued by the Israeli government, which are discussed in
more detail infra.
5
    Maslamani is sometimes referred to as "Misalmani."
                                  -4-
with     Abu    Halawa     in        a   cafe    in        Ramallah    on     December     30,    2000.

According        to     this    statement,            Abu     Halawa        told    Maslamani     "that

there were organizations that said that they had carried out

      attacks at        [the]    French Hill               [area of Jerusalem]            and at the

National Insurance Institute and that                               [it]    is not true,       because

the one who did it was he himself,                             Muhannad Abu Halawa."                  See

Tolchin        Decl.,    Ex.     8       (custodial         statement        of Maslamani,        dated

Jan. 18, 2001) at 1 [Dkt. No. 331-8].

        At     his    deposition           in    December           2001,     however,     Maslamani

repudiated this statement, and testified repeatedly that he knew

"nothing" about the NII attack and that Abu Halawa "never told

me about that subject."                        See Tolchin Decl.,             Ex.    30   (deposition

tr.    of Maslamani,           dated Dec.            30,    2001)    ("Maslamani Tr.")           at 19,

20,     22,     27     [Dkt.     No.       342-1].            He     further        testified     that,

although his name was on the                          January 2001 custodial statement,

he    hadn't     signed        it,       id.    at    11;     what    was     written     in     it   was

incorrect,       id.     at 22;          and that he "didn't say anything to the

police about" the NII attack.                         Id. at 23.

        Maslamani was           prosecuted for               and convicted of             involvement

in other attacks against Israelis but was never prosecuted for

or convicted of any involvement in the NII attack.                                        See SOMF      c:II


18-19.


                                                     -5-
        The second set of custodial statements on which Plaintiffs

rely consists of four separate written statements made by Force

17 officer Bashar Al Khatib                     ("Al Khatib")       to Israeli police in

April        2002.     Each of         these    statements     is    different.          In       the

first        statement,        given    April     11,    2002,      Al    Khatib     confessed

involvement in the previously mentioned French Hill shooting and

three        other     shooting         incidents       but    did        not   menti6n           any

participation          in     the    NII     attack.     See     Tolchin        Decl.,      Ex.     9

(custodial statement of Al Khatib,                      dated April 11,             2002)     [Dkt

No. 331-9].

        In the        second statement,           given a     day later on April                  12,

2002, Al Khatib stated that he was "prepared to tell you what I

did not say yesterday," and went on to say that,                                 on a direct

order    from        Damara,    he     had     accompanied Abu       Halawa        and   another

individual named Omar Karan to East Jerusalem where the NII was

located and served as a lookout while Abu Halawa carried out the

attack on the NII.                  Tolchin Decl.,      Ex.    10    (custodial statement

of Al Khatib, dated April 12, 2002) at 1-3 [Dkt. No. 331-10].

        In    his    third statement,            given April        23,    2002,    Al   Khatib

recanted the April 12 statement in its entirety as it related to

the NII shooting and denied any connection to that attack.                                        See

Tolchin Decl.,          Ex.    11     (custodial statement of Al Khatib,                    dated


                                                -6-
April     23,    2002)      [Dkt.          No.    331-11]        at    4    ("In    my    previous

statement       to   the    police          I    said    that     I    participated        in        the

shooting        attack     at        the     national       insurance         office      in     East

Jerusalem,       but this        is not          correct,    I    did not participate                 in

this attack and I           just stated this and I have no connection to

this attack.").

        Finally,     in his          fourth      statement,       on April         24,   2002,       Al

Khatib again disclaimed all prior statements regarding the NII

attack and gave            yet another version of his                       connection to the

attack.     In this version, he wrote that Abu Halawa phoned him on

October 30,        2000,    to ask for assistance transporting a vehicle

through an Israeli checkpoint.                       He stated further that when he

met with Abu Halawa later that day, Abu Halawa told him that he

(Abu Halawa),        had carried out                an   attack at          the    NII   with        two

other     individuals           at     the       direction        of       regional      Force        17

commander Mahmoud Damara                   ("Damara").       See Tolchin Decl.,                Ex.    12

(custodial statement of Al Khatib, dated April 24, 2002)                                    at 1-2

[Dkt. No. 331-12].

        Like Maslamani, Al Khatib subsequently denied the truth of

his custodial statements as they related to the NII attack.                                           He

testified at his deposition in this case that he provided the

statements to Israeli police because "I was under torture, and I


                                                  -7-
was threatened regarding my wife and kids.                                            So that was

the only way out for me is to write this[.]"                                Tolchin Decl., Ex.

E (deposition tr. of Al Khatib,                        dated Dec. 5, 2011)             ("Al Khatib

Tr.")    at 25:21-25            [Dkt.    No.    330-5].        When asked whether he had

had     "any    communication              with        Abu     Halawa       about       [the      NII]

operation,"      he       responded,           "No.     Not         not    once, "    and   further

stated that "the entire National Insurance case, we have nothing

to do with it."            Id. at 24:4-6, 28:11-13.

        Like Maslamani, Al Khatib was prosecuted and convicted for

his     involvement        in    another        attack        involving      Israelis       but    was

never prosecuted for or convicted of any involvement in the NII

attack.      SOMF    ~   13.

        B.     Procedural Background

        On   April       18,    2001,     Plaintiffs          filed       this   action     against

Defendants PA and PLO,                  as well as eleven of their current and

former       employees            (the         "Individual          Defendants"),           seeking

compensation         for       Gilmore's        death       under     the    ATA      and   various

common law theories.               See generally Compl.

        Defendants         PA     and     PLO         and     the    Individual         Defendants

initially failed to answer the Complaint, prompting the Court to

enter a default.                On January 29,              2002,    however,        they appeared

through counsel and moved to vacate their default and to dismiss


                                                  -8-
the Complaint pursuant to Fed. R. Civ. P. 12(b).                                    After granting

the Motion to Vacate,                 the Court denied Defendants PA and PLO' s

Motion to Dismiss but granted the Individual Defendants'                                        Motion

to   Dismiss       for      lack of personal              jurisdiction.           See Gilmore v.

Palestinian Auth., 422 F. Supp. 2d 96 (D.D.C. 2006).

        Defendants PA and PLO then fired their attorneys and failed

to file an Answer to the Complaint, prompting the Court to enter

a second default against them on January 29, 2007                                   [Dkt. No.     92].

They     subsequently          retained           new    counsel       and,    on     November       15,

2007,      filed      a    Motion     to    Vacate· the         second        entry    of    default,

which the Court granted on December 28,                                2009.      See Gilmore v.

Palestinian Auth.,              675    F.        Supp.    2d    104,    111-13        (D.D.C.    2009)

("Gilmore I").

        The     parties      then entered a              two    and-a-half        year period of

discovery,        during which Plaintiffs took nine depositions,                                eight

of which were             non-party witness              depositions          conducted pursuant

to   the      Hague       Convention        on    the     Taking       of   Evidence        Abroad    in

Civil      or     Commercial          Matters            ("Hague       Convention") .           These

included        the       December    2001        depositions          of   Maslamani,        Mahmoud

Mater,     and     Ziad      Wahadan;       the     December        2011      depositions       of   Al

Khatib,         Damara,      Abdel         Karim        Aweis      ("Awe is") ,       and    National

Insurance        Institute designee Ya' akov Aravot;                          and the       June 2012


                                                   -9-
deposition             of         Israeli         journalist            Avi          Issacharoff

("Issacharoff"),            co-author of the book The Seventh War,                          How We

Won and Why We Lost the War with the Palestinians                               ("The Seventh

War"), which, as discussed infra, contains a passage implicating

Abu Halawa as the gunman in the NII attack.

        On August 9,          2012,     Defendants filed the instant Motion for

Summary Judgment,            arguing,      inter alia,           that after more than two

years    of     fact     discovery,        Plaintiffs'       only evidence           to     support

their core theory that Abu Halawa killed Gilmore is inadmissible

hearsay.        See generally Defs.' Mot.                 [Dkt. No. 285].

        Plaintiffs          did   not     immediately       oppose      Defendants'         Motion

but instead,        on September 6,            2012, moved under Fed.                R. Civ.      P.

56(d)    for additional time to complete discovery.                            See generally

Pls.'    Mot.      for    Relief       Pursuant      to   Rule     56 (d)   [ Dkt.    No.     2 90] .

They     explained        that     they    were      in    the    process     of     moving,      in

Israeli court, to compel Issacharoff to disclose the identity of

sources who allegedly told him that Abu Halawa was the gunman in

the NII attack.             Id. at 1-2, 4, 6, 7-8, 10-11.                   They also argued

that     an     extension         of    time      was      necessary        "because        expert

discovery has not started yet                              and plaintiffs will oppose

defendants'        claim that the existing statements identifying Abu

Halawa        as    the       murderer         are        inadmissible,        with         expert


                                               -10-
foundational testimony showing that they are admissible."                                                Id.

at   2,     10-11.             On     September          19,      2012,       the     Court       granted

Plaintiffs'         Motion           for       Relief       Pursuant         to     Rule    56(d)        and

extended their            time       to     oppose       Defendants'          Motion       for    Summary

Judgment         until    after        the      completion         of     expert      discovery          and

Issacharoff's deposition [Dkt. No. 297].

         Six months       later,           on March 19,           2013,      Defendants moved to

resume     briefing        on       their Motion            for    Summary         Judgment,       noting

that Plaintiffs had withdrawn their motion in the Israeli court

to   compel       Issacharoff             to    reveal      his    sources          and    that    expert

discovery         was     at     a     standstill           because          Plaintiffs          had     not

provided any expert disclosures [Dkt. No. 298].

         While     that        motion          was      pending,        on        April     19'        2013,

Plaintiffs filed a Motion to Compel Production of Late-Disclosed

Documents        [Dkt.    No.       303].       On June 6,         2013,      after reviewing in

camera     the     documents           Plaintiffs           sought      to    compel,       the        Court

denied the Motion to Compel and set dates for the completion of

summary      judgment          briefing          [Dkt.      No.    314] . 6          Thereafter,          on


6
     Plaintiffs also                 filed a "Renewed Motion to Compel" GIS
documents on December                 23, 2013 [Dkt. No. 352], which the Court
treated as a motion                  for reconsideration and denied [Dkt. No.
365].  See Gilmore v.                 Palestinian Interim Self-Government Auth.,
No. 01-853, 2014 WL                  1193728 (D.D.C. Mar. 24, 2014) ("Gilmore
.D_").

                                                     -11-
October       1,        2013,      Plaintiffs            filed    their      Opposition       to

Defendants'         Motion      for    Summary      Judgment       [ Dkt.    No.   32 9] .    On

October 25, 2013, Defendants filed their Reply [Dkt. No. 341].

II.    LEGAL STANDARDS

       A.     The ATA

       The civil         liability provision of the ATA states that                          any

United States national who is injured "by reason of an act of

international            terrorism,"          or         that    individual's          "estate,

survivors,         or    heirs,"      may    sue    in    any    "district     court    of   the

United States and shall recover threefold the damages he or she

sustains."          18    U.S.C.       §    2333(a).        An    act   of    "international

terrorism" is defined to include activities that:

       (A) involve violent acts                    or acts dangerous to human
       life that are a violation                   of the criminal laws of the
       United States or of any                     State, or that would be a
       criminal    violation   if                     committed   within   the
       jurisdiction of the United                  States or of any Statej

       (B) appear to be intended        (i) to intimidate or
       coerce a civilian population; ( ii) to influence the
       policy of a government by intimidation or coercion; or
       (iii) to affect the conduct of a government by mass
       destruction, assassination, or kidnapping; and

        (C)   occur    primarily   outside    the    territorial
       jurisdiction    of  the   United  States   or   transcend
       national boundaries in terms of the means by which
       they   are   accomplished,   the  persons   they   appear
       intended to intimidate or coerce[.]

18   u.s.c.   §    2331(1).


                                               -12-
        "In       other     words,      to    prevail         [on    a    civil       ATA     claim],      a

plaintiff must prove that the defendant would have violated any

one     of    a    series      of   predicate        criminal        laws     had      the    defendant

acted within the jurisdiction of the United States."                                          Estate of

Parsons v.         Palestinian Auth.,             651 F.3d 118, 122               (D.C. Cir. 2011)

("Estate of Parsons II") .                    In addition,           the plaintiff must meet

the    territorial          requirements          set     forth      in     Section         2331 ( ( 1) (C)

and prove that            the conduct constituting the predicate criminal

offense       satisfies         one    of    three      intent       requirements            in    Section

2331 (1) (B).        18 U.S.C. § 2331 (1).

        B.        Standard on Summary Judgm.en t

        Summary       judgment         should      be     granted          only       if    the     movant

establishes         that       there   is no genuine dispute                     as    to a       material

fact and that the case may be resolved as a matter of law.                                            Fed.

R.    Ci v.   P.    56 (a) .        A fact    is "material"               if a    dispute over it

might     affect      the      outcome       of   the     suit       under       governing         law;    a

dispute is "genuine" if the evidence is such that "'a reasonable

jury could return a verdict for the nonmoving party.'"                                             Holcomb

v.    Powell,      433 F.3d 889,            895   (D.C.       Cir.   2006)       (quoting Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248                                (1986)).

       A summary judgment movant may carry its                                initial burden by

"pointing out                         that    there      is    an    absence          of   evidence       to


                                                  -13-
support the nonmoving party's case."                                   Celotex Corp.                 v.     Catrett,

477    u.s.     317,    325       (1986).           The nonmoving party must then come

forward with "evidence showing that there is a triable issue as

to     [each]    element essential to that party's                                   claim."               Arrington

v.     United States,             473    F.3d        329,       335        (D.C.    Cir.        2006)        (citing

Celotex Corp.,          477 U.S. at 322).                    "A party asserting that a fact

cannot be        or    is     genuinely disputed must                         support           the        assertion

by[]    citing to particular parts of materials in the record" or

by     "showing        that       the    materials              cited        do      not        establish           the

absence       or presence          of     a    genuine          dispute [.]"               Fed R.           Ci v.    P.

56 (c) (1).

        The     court must         view any admissible evidence                                  in the           light

most     favorable          to     the     nonmoving             party,            draw        all     reasonable

inferences        in    its       favor,       and        abstain          from      making           credibility

determinations          or       weighing           the   evidence.                Reeves        v.       Sanderson

Plumbing        Prods.,          Inc.,        530     U.S.       133,        150      (2000).                If     the

nonmovant has presented competent evidence on which a reasonable

juror    could        rule    in     its       favor       on    each        element           of     its     claim,

summary       judgment        must       be     denied.               On     the     other           hand,     "[i]f

evidence is merely colorable, or is not significantly probative,

summary judgment may be                    granted."              Liberty Lobby,                     477    U.S.     at

249-50     (citations            omitted);          see     also Athridge                 v.    Aetna Cas.            &



                                                     -14-
Sur.     Co.,         604     F. 3d     625,       631     (D.C.     Cir.      2010)        (a     mere

"possibility           that       a   jury     might      speculate     in     the     plaintiff's

favor" is not sufficient to defeat summary judgment).

        As     the    Supreme Court            stated in Celotex Corp.,                "the plain

language of Rule 56(c)                  mandates the entry of summary judgment,

after        adequate       time      for   discovery       and    upon motion,         against       a

party who fails              to make a           showing sufficient to establish the

existence of an element essential to that party's case,                                          and on

which that party will bear the burden of proof at trial."                                           477

U.S. at 322.

        C.      Evidentiary Principles

       As     our     Court       of Appeals        has    observed,        "[v] erdicts         cannot

rest    on     inadmissible            evidence."          Gleklen     v.     Democratic          Cong.

Campaign        Comm.,         199       F. 3d     1365,     1369      (D.C.         Cir.        2000).

Therefore,           while    a       party      opposing    summary        judgment        "is     not

required to produce evidence in a form that would be admissible

at trial,       the evidence still must be capable of being converted

into admissible evidence."                       Id.     (emphasis in original) .                 If it

were otherwise,             "the objective of summary judgment -                       to prevent

unnecessary          trials            would      be     undermined."           Id.     (citations

omitted).




                                                  -15-
        In ruling on summary judgment motions,                              the       court decides

questions of evidentiary admissibility,                             and in so deciding,                  is

not bound by the Rules of Evidence,                           except those of privilege.

See     Fed.    R.        Evid.        104 (a).          Matters         pertaining            to       the

admissibility of evidence must be established by a preponderance

of evidence.          Daubert v.          Merrell Dow Pharmas.,                   Inc.,        509 U.S.

579, 592 n.10 (1993).

        Under   the       Federal        Rules      of    Evidence,         "hearsay"           is     not

admissible      unless       an    exception          applies.           Fed.     R.        Evid.     802.

Hearsay is an out-of-court statement offered to· prove the truth

of     the   matter       asserted,        unless        it    is    a    prior            inconsistent

statement       of    a     witness,          a    party      admission,              or     deposition

testimony offered under the circumstances set forth in Fed.                                              R.

Evid.    32.     See Fed.         R.    Evid.       801 (c)- (d);        Fed.    R .. Civ.       P.     32.

Our     Court   of    Appeals           has       held   that,       absent           an     applicable

exception,      hearsay       is        not       capable      of    being        converted           into

admissible      evidence          and     therefore           "'counts          for        nothing'      on

summary judgment."            Greer v.            Paulson, 505 F.3d 1306, 1315                        (D.C.

Cir.    2007)   (citation omitted).                  Consequently,              it is proper for

the Court to rule on the admissibility of hearsay evidence in

the context of a motion for summary judgment and to grant the




                                                  -16-
motion if it finds that Plaintiffs' proffered evidence consists

only of inadmissible hearsay.

      As    to   expert        testimony,           as   the    Supreme       Court         held     in

Daubert    v.    Merrell       Dow    Pharmaceuticals,               the   trial      judge        also

performs a "gatekeeping" function to ensure that such testimony

"both rests on a reliable foundation and is relevant to the task

at hand."        509     u.s. 579, 597 (1993).                  Thus,      it is also proper

for the trial judge "to screen out inadmissible expert testimony

on summary judgment."                Strauss v. Credit Lyonnais, S.A.,                       925 F.

Supp. 2d 414,          437    (E.D.N.Y.     2013)        (citing Raskin v. Wyatt Co.,

125 F.3d 55,        66       (2d Cir.     1997)).         "This       is true even if the

exclusion of expert testimony would be outcome determinative."

Id.   (citing     Gen.       Elec.    Co.      v.     Joiner,     522      U.S.      136,    142-43

(1997)).

III. DISCUSSION

      Defendants         advance      two   sets         of    arguments      in      support        of

summary    judgment:         first,     that        Plaintiffs       lack any admissible,

nonhearsay evidence to               support their             lynchpin theory that Abu

Halawa     killed      Gilmore;       and   second,           that     even     if    Plaintiffs

possessed admissible proof that Abu Halawa killed Gilmore, there

is no basis under the ATA on which to hold Defendants liable for

his conduct -       vicariously or otherwise.                        Because,      as discussed

                                            -17-
below,       Plaintiffs           fail    to    identify      any        admissible       evidence

supporting their core theory that Abu Halawa killed Gilmore, and

therefore cannot prevail on their claim, the Court need not and

shall not reach Defendants' second set of arguments.

        A.      Plaintiffs Fail to Identify Admissible Evidence
                to Support their Theory that Abu Halawa Killed GiLmore

        Plaintiffs           do   not     disagree     that,        in    order     to     survive

summary judgment, they must produce admissible evidence that Abu

Halawa       killed Gilmore.             See Pls.'       Opp' n at 2.          They claim to

possess        four     types      of    such    evidence:     (1)        Israeli     government

reports;        ( 2)     a    passage      in    the   book    The        Seventh        War;   ( 3)

testimony given by Al Khatib at the military trial of Damara in

2009;    and     (4)    Maslamani's 2001 custodial statement.                         Plaintiffs

also rely on the opinion of their expert,                           former IDF department

head     and    Lieutenant          Colonel,      Alon     Eviatar,         which     Defendants

argue is inadmissible under Federal Rule of Evidence 702.

        At   the       outset,     the   Court    notes    that,         although     Plaintiffs

sought and received more· than a year-long extension of time to

file their Opposition to the instant Motion, their Memorandum of

Law contains only nine pages,                    is almost entirely devoid of any

citations to their Statement of Undisputed Material Facts or the

record,      consists largely of conclusory assertions,                           and,    in many



                                                -18-
places,     lacks     any    explanation       whatsoever.       As     our    Court     of

Appeals recently observed:

        In this circuit, it is not enough merely to mention a
        possible argument in the most skeletal way, leaving
        the court to do counsel's work, create the ossature
        for the argument, and put flesh on its bones. Two
        sentences of argument, a threadbare conclusion, and a
        handful of marginally relevant       citations do not
        provide us with enough to adequately assess the
        strength of their legal conclusions.

        Allaithi v.      Rumsfeld,    No.    13-5096,    2014 WL 2575417,            at *6

    (D.C. Cir. June 10, 2014)        (citing Davis v. Pension Benefit Guar.

Corp.,     734    F.3d      1161,    1166-67    (D.C.     Cir.        2013)    (internal

quotation marks omitted) .            Plaintiffs'       failure to properly cite

or even to quote the documentary sources on which they rely in

their Memorandum of           Law    is    compounded by     the       fact   that     they

filed an overwhelming 2500-plus pages                   of documents          annexed as

exhibits to their Opposition brief.                 See Bombard v.            Fort Wayne

Newspapers,      92   F.3d 560,      562    (7th Cir.    1996)        ("It is not our

function to scour the record in search of evidence to defeat a

motion for summary judgment; we rely on the nonmoving party to

identify with reasonable particularity the evidence upon which

he relies."). 7


7
    Defendants argue that approximately nineteen of Plaintiffs'
ninety-six exhibits are inadmissible under Fed. R. Civ. P.
37(c) (1) because they were produced to Defendants for the first
time in opposition to this Motion.    See Defs.' Reply at 3 ~ 3.
                               -19-
     With        these    observations                in   mind,     the       Court    considers

whether    Plaintiffs          have    identified any admissible                      evidence   to

support their theory that Abu Halawa killed Gilmore.

             1.      Israeli Government Reports

     Plaintiffs first rely on two Israeli government "reports,"

which they claim "identify []                   Force 17 and Abu Halawa as having

executed the murder."                 Pls.'      Opp'n at 2.             These "reports" are

actually     press       releases       appearing          on      the   IMFA     webpage    that

purport     to     transmit       information              from     an     unidentified      "IDF

Spokesman."       Tolchin Decl.            ~   26.

     The     first       "report"          is        captioned      "Force       17    Background

Material - March 2001."               It does not even mention Abu Halawa but

rather     accuses       Damara       of       having      directed        a    terrorist    cell

responsible        for    "numerous             terrorist          attacks,"      including       a

"shooting attack          in    Jerusalem,            in which       a   security guard was




Defendants did not, however, support this assertion with an
attorney affidavit, and Plaintiffs have not had an opportunity
to respond to it due to the fact that Defendants made it for the
first time on reply.   For these reasons, and because Defendants
do not rest on their Rule 37 (c) argument, but rather challenge
all of Plaintiffs' evidence on its merits, the Court shall
assume, for purposes of this Motion only, that the exhibits
Defendants identified as late-produced are admissible.

                                                -20-
killed and another wounded                  ( 30 October) . "           See Tolchin Decl.,

Ex. 60 [Dkt. No. 333-19] . 8

        The second "report" is captioned "Force 17 Terrorist Mohand

Said Muniyer       Diriya          5    -   Mar        2002."           It    announces    IDF' s

assassination of Abu Halawa and claims that he was a "member of

a Ramallah-based terrorist cell" who "personally took part in" a

list of twelve attacks,                including the NII attack.                  See Tolchin

Decl., Ex. 61 [Dkt. No. 333-20].

        Plaintiffs argue that these IMFA "reports" are admissible

under    Federal    Rule    of     Evidence         803 ( 8), 9       which    states     that    a

record or statement of a public office is admissible if:                                  ( 1)   it

sets out either "a matter observed while under a legal duty to

report[]"     or    "factual           findings       from        a    legally     authorized

investigation," and         ( 2)   "neither the source of information nor

other circumstances indicate a                    lack of trustworthiness."                  Fed.

R. Evid. 803 (8) (A) (ii)- (iii),            (B).

        Plaintiffs have not provided one iota of information as to

how the material in the IMFA webpages was compiled or from what

8
  Although Plaintiffs allege that Damara ordered or directed the
NII   attack,  they have    not  attempted to prove    the  PA's
responsibility for the attack through him alone.
9
  Plaintiffs cite "Rule 803 ( 8) (C)," which, as Defendants rightly
observe, does not exist.   Defs.' Reply at 5.     The Court assumes
Plaintiffs meant to cite Rule 803(8) (A) and (B)!

                                             -21-
sources it is derived.                      As discussed,        the webpages purport to

relay information from an "IDF Spokesman" but no information has

been provided as to who that Spokesman is, where that person got

his or her information, or for what purpose.

        Plainly,       without knowing anything about the source of the

information,          the Court cannot conclude that it sets out matters

personally observed by any Israeli official, no less one with a

"legal        duty     to    report,"        or    factual     findings     from     a    legally

authorized           investigation. 10            See,   e.g.,    United     States       v.   El-

Mezain,       664 F. 3d 4 67,          4 97-507     (5th Cir.     2011)     (holding reports

inadmissible under Rule 803 ( 8)                    absent information as to "where

or      how     [the        declarant]            obtained     the    information,"            the

"circumstances under which the documents were created,                                   the duty

of the authors              to prepare such documents,               [or]    the procedures

and methods used to reach the stated conclusions"); Gill v. Arab

Bank,    PLC,        893    F.    Supp.     2d 542,      571   (E.D.N.Y.     2012)       (finding

official       reports           of   the   Israeli      Security    Agency     inadmissible


10
   This is especially true given that the State of Israel never
prosecuted anyone for the NII attack and a police report
detailing the Israeli Police department's investigation of the
NII attack neither mentions Abu Halawa nor indicates that
Israeli police made any factual findings related to the identity
of the gunman.  See Tolchin Decl., Ex. 59 (Israeli police report
titled "Murder of Esh Kodesh Gilmore          National Insurance
Institute Offices-East Jerusalem," dated Nov. 22, 2000) [ Dkt.
No. 333-18].
                              -22-
under Rule 803(8) because, inter alia, they relayed "information

of uncertain provenance"); cf. Estate of Parsons II,                                  651 F.3d at

134     (Tatel,      J.,     concurring)            (accepting          assertions        in   public

record authored by unknown source as true "would require piling

inference       (about       the      reliability          and     knowledgeability            of    the

statement's author)               upon inference (about when the statement was

written)       upon        inference          (about       the     statement's        evidentiary

basis)          akin       more     to       speculation         than    to    reasonable         fact-

finding").

        Further,      Rule       8 03 ( 8)    "is based on the notion that public

records are reliable because there is a lack of                                       . motivation

on     the    part     of     the        recording         official       to    do    other         than

mechanically         register          an      unambiguous         factual      matter."            El-

Mezain,       664    F.3d     at      498-99       (5th ·cir.       1985)       (quoting       United

States v. Quezada,            754 F.2d 1190, 1194                  (5th Cir. 1985)).            Thus,

as previously stated, the Rule requires that "neither the source

of     information         nor      other      circumstances            indicate      a    lack       of

trustworthiness."            Fed. R.          E~id.    803(8) (B).        The Court obviously

cannot       draw    any    conclusions            about    the     "motivation [ s]"          of    the

recording       officials          when       it   lacks     any    information           about     whD

those officials are, where they got their information, and under

what    circumstances.              The      complete absence            of    such   information


                                                   -23-
"indicate[s]         a     lack    of    trustworthiness."                 Fed.       R.    Evict.

803(8)(B).

      In sum,       the Court concludes that the IMFA webpages are not

admissible         under   Rule    803 (8)       and,    therefore,       do   not    create      a

genuine factual dispute that Abu Halawa killed Gilmore. 11

              2.      Passage from The Seventh War

      Next,     Plaintiffs        rely on a         passage       in    Issacharoff' s       book

The Seventh War.            The passage states that,                   after the attack at

the National Insurance Institute, Abu Halawa "phoned Abdel Karim

Aweis,   a     member      of     the    General         Intelligence       apparatus        from

Jenin" and "told Aweis that he wanted to announce to the media

that he assumed responsibility for the East Jerusalem attack on

behalf of a new military wing of Fatah."                           Tolchin Decl.           Ex.   54

[Dkt. No.      333-12].         The passage further reports that Abu Halawa

and   Awe is        conferred       on       a     name     in     which         to    announce

responsibility for the attack and eventually settled on the name

"Al   Aqsa     Martyrs      Brigades,"           which    Aweis        allegedly      preferred

"since   it    did not       contain      the      name    Fatah,"       whose    "leadership


11
  Indeed, Plaintiffs had previously acknowledged that they were
"not aware of any rule of evidence that would permit the
admission at trial of the [ IMFA] statement [ s] . "  See Pls.'
Application for Issuance of a Letter of Request for Judicial
Assistance Pursuant to the Hague Convention at 3 n. 4 [ Dkt. No.
213].

                                             -24-
feared being identified with attacks."       Id. 12      At his deposition,

Issacharoff    testified    that   this   account        was     based   on   an

interview he conducted with Aweis in an Israeli prison in 2004.

     Plaintiffs concede, as they must, that to admit the passage

as evidence that Abu Halawa killed Gilmore,           they must establish

a basis to admit each out-of-court statement embedded within it,

namely:   ( 1) Issacharoff' s written account,      ( 2) Awe is' statements

to Issacharoff at the interview in 2004, 13 and            (3)    Abu Halawa's

statement to Aweis after the NII attack.              Pls.'      Opp' n at 3-4;

see Fed. R. Evid. 805      (excluding "hearsay within hearsay" unless

"each part of the combined statements conforms with an exception

to the rule") .     The Court shall not reach whether Issacharoff's

written   account    is   admissible   because,     as    discussed      below,



12
   Earlier in the passage, the book identifies Abu Halawa as the
gunman in the NII attack, but Plaintiffs do not seek to admit
that portion. See Pls.' Opp'n at 3.
13
   Defendants argue that there is no "statement" of Aweis because
the book paraphrases rather than directly quotes the content of
his   conversation with    Issacharoff.     Defs.'  Mot.   at   21.
Assuming,   however,  that   Issacharoff's   written account was
admissible, the absence of a direct quote does not itself change
the analysis under the hearsay rules.    See Harris v. Wainwright,
760 F.2d 1148, 1152 (11th Cir. 1985) (testimony implying that
declarant had furnished the police with evidence was hearsay
although not retold verbatim); Keith v. Kurus, No. 3:08 CV 1501,
2009   WL   2948522,   at   *17   (N.D.  Ohio   Sept.. 11,    2009)
("Paraphrasing or not repeating the witness's statement verbatim
does not exclude it from being hearsay.") (citations omitted).
                                -25-
Plaintiffs have not established a basis to admit the statements

of either Abu Halawa or Aweis.

                                i.     Abu Halawa's Statement

        Plaintiffs argue that Abu Halawa's statement to Aweis "that

he    wanted       to         announce        to         the    media      that      he        assumed

responsibility for the East Jerusalem attack on behalf of a new

military wing of              Fatah"    is      a    statement against            penal       interest

admissible under Rule 804 (b) (3).

        Rule    804 (b) (3)      provides           that    an out-of-court         statement is

admissible       if:      (1)    the     declarant             is    unavailable         to    provide

testimony; and          (2)     the declarant's statement is "so contrary to

the   declarant's         proprietary               or   pecuniary      interest         or    had    so

great    a     tendency                  to         expose     the   declarant      to        civil   or

criminal liability" that "a reasonable person in the declarant's

position would have made                 [it]       only if the person believed it to

be true [.]"       Fed. R. Evid. 804 (b) (3).

        Because Abu Halawa is deceased,                        he is "unavailable" within

the meaning of Rule              804 (b) (3).              See Rule     804 (a) ( 4) .        However,

his   very desire         to     "assume      responsibility"             for   the NII         attack

suggests that he perceived public attribution for the attack to

be in his interest,              not contrary to it.                   As other courts have

observed,       "[u] nder       the    perverse            assumptions     of    terrorists,          an


                                                    -26-
armed attack on civilians reflects glory.                                  Taking       'credit'       for

such an attack is deemed a benefit,                         not a detriment[.]"                    Gill,

893 F. Supp. 2d at 569; see also Strauss, 925 F. Supp. 2d at 449

("While admitting to a violent attack on innocents typically is

detrimental       to     a        declarant's         interests,           the     interests           and

motives       of terrorists            are    far    from typical.") .              Applying this

same      reasoning;          the       Court        concludes         that        Abu          Halawa's

announcement       to Aweis            that    he would assume              responsibility             for

the     NII    attack   was        a    publicity-seeking              effort       that        was    not

contrary to his perceived interests.                             Therefore,         his    statement

is not admissible under Rule 804 (b) (3).

                              ii.       Aweis's Statements

        Plaintiffs make two arguments for admitting Aweis's out-of-

court    statements          to    Issacharoff,           both    of   which        are    similarly

unavailing.

        Vicarious Party Admission

        Plaintiffs       first          argue        that        Aweis's         statements            are

admissible        as     a        vicarious           party       admission             under         Rule

80l(d) (2) (D).         That        rule      provides        that     a    statement           offered

against an opposing party is not hearsay if it "was made by the

party's agent or employee on a matter within the scope of that

relationship       and        while           it     existed [. ] "              Fed.      R.      Evid.


                                                   -27-
801 (d) (2) (D).         Thus,        to     establish      admissibility            under       this

exception,      Plaintiffs            must       demonstrate         both    that       Aweis     was

employed by the PA at the time of the interview with Issacharoff

and that the statements concerned a matter within the scope of

his employment.

      It   is      undisputed          that      Aweis    served       as     an    intelligence

officer in the PA's General Intelligence Service ("GIS") between

1998 and 2002,       when he was arrested by Israeli authorities.                                  It

is further undisputed that,                      at the time of his interview with

Issacharbff,       he     was    serving           "multiple     life       sentences"       in    an

Israeli    prison        for    his     involvement        in    a    number       of    terrorist

attacks.      See Eviatar Decl.              ~   61 [Dkt. No. 345]; Defs.' Reply at

10.    Plaintiffs argue,               however,        that he was still an employee

of the PA at the time because the PA has a policy of promoting

and paying its           officers          while      they are       imprisbned in          Israeli

custody.      Pls.' Opp'n at 3-4.

      The Supreme Court has held that where,                            as here,        a rule or

statute    uses     "the        term       'employee'      without          defining      it,"     it

should be construed to describe "the conventional master-servant

relationship        as    understood             by     common-law         agency       doctrine."

Nationwide Mut.          Ins. Co. v.          Darden, 503 U.S.             318,    322-24    (1992)

( citations     omitted) .         For purposes            here,      it    is     sufficient to

                                                 -28-
apply the simplest formulation of that doctrine:                              an employee is

"[a]     person     who    works   in    the     service      of   another      person      (the

employer)       under an express or implied contract of hire,                              under

which the employer has the right to control the details of work

performance."          BLACK'S LAW DICTIONARY 602 (9th ed.                2009).    There is

no evidence that Aweis performed any work or services for the PA

while in prison.            While he testified that he received payments

from the PA while in prison,                   he stated that the payments came

from the "Prisoners Club," not GIS,                      and there is no indication

that he was required to perform any services in ord€r to recBive

them.        See Tolchin Decl.,          Ex.    G (deposition tr.             of Abdel Karim

Aweis,       dated Dec.     7,   2011)    ("Aweis Tr.")        at 21:23-24          [Dkt.    No.

330-7].

        Further,     although the         PA maintains         a       policy of promoting

its officers who are imprisoned in Israeli custody, the evidence

indicates       that      such   promotions           occur   automatically         with     the

passage of time.            See Tolchin Decl.; Ex.                 F    (deposition tr.       of

Mahmoud Damara, dated Dec.               6,    2011)    at 8:20-9:17          [Dkt. No.     330-

6]   ( "Q.    So you were promoted while you were in jail,                           correct?

A.   Yes.                 And the reason is that our military ranks are

subject to automatic promotion when the time factor matures.

     It's     all   computerized         lists.         As    long       as   you   meet     the


                                               -29-
standards, you get promoted.").                 There is no evidence that Aweis

was required to do anything,                 or refrain from doing anything,                in

order to receive the promotions. 14                Consequently, the record does

not    establish that he continued to be employed by the                             PA for

~urposes      of Rule 80l(d) (2) (D)         at the time of his interview with

Issacharoff. 15

       Even    assuming       Aweis    was    still    employed       by    GIS    while    he

served     out     multiple      life     sentences       in     an   Israeli        prison,

Plaintiffs       have   not    shown    that     his   statements          to    Issacharoff

fall within the scope of that employment.                        There is no evidence

that     Aweis's     job      functions       included         gathering        intelligence

related to terrorist attacks generally,                    much less that the NII

attack was the type of attack he would have investigated or did

investigate.        See Aliotta         v.    Nat' l   R. R.     Passenger Corp.,          315


14
    Indeed, Abu Halawa was promoted posthumously after his
assassination, clearly indicating that the mere fact of a
promotion does not imply the ongoing provision of services.  See
Tolchin Decl., Ex. 67 (Abu Halawa employment records) at 1 [Dkt.
No. 334-6].
15
    Plaintiffs contend that "the rationale underlying F.R.E.
801 (D) (2) (d) [sic] is not the employee's provision of services
to the employer but the employee's dependence on, and resulting
loyalty to, the employer."     Pls.' Opp'n at 3 (citing Nekolny v.
Painter, 653 F.2d 1164, 1172 (7th Cir. 1981)).      Loyalty may be
one of the rationales underlying Rule 801{d) (2) (D), but loyalty
alone does not suffice.      The Rule requires that the employee
have made the statement "while [the employment relationship]
existed." Fed. R. Evid. 801 (d) (2) (D).
                                -30-
F . 3d    756,    7 62     ( 7th       Ci r .     2003 )       ( " [ T ] he    sub j e c t        rna t t e r    of    the

admission         [must] match the subject matter of the employee's job

description.");            Wilkinson               v.    Carnival         Cruise         Line_s,           Inc.,       920

F.2d 1560,         1566-67         &    n.12       (11th Cir.           1991)        (holding that scope

of    cabin      steward's         employment              did not            include        knowing             whether

door outside his work area was defective without a showing that

"he      [was]    ordered          to       the     area        in    question,              or      told        of    the

problems with the doors in connection with his duties").

         Plaintiffs rely on the Declaration of Majed Faraj,                                                     Head of

Intelligence           for    GIS,           to     argue        that         "as    a       PA       intelligence

officer it was Aweis'                       job,        by definition,              to learn and obtain

information about terrorist activity,                                   such as the murder of Mr.

Gilmore."          Pls.'     Opp' n         at      4    (emphasis            in original) .                    However,

Faraj' s       Declaration merely                   describes           the      general             functions          of

GIS      as   an agency;        it does not mention Aweis or anything about

his specific position as an employee of GIS.                                             See Pls.'                Opp' n,

Ex. 1 (Decl. of Majed Faraj) ! ! 4-6 [Dkt. No. 336-2]).

         Further,        even          if       Aweis' s          job         included             learning            and

obtaining        information             about          the    NII     attack,        his          statements           to

Issacharoff pertained to                        selecting a             name        in which Abu Halawa

would         assume     responsibility                  for      the         attack.               There         is    no

evidence that he and Abu Halawa ever discussed any intelligence


                                                         -31-
related to attack and no suggestion that his professional duties

included       media     announcements             assigning       responsibility             for

terrorist      attacks.         To   the     contrary,       Abu    Halawa       purportedly

wanted to take credit for the attack,                      not as an officer of the

PA, but on behalf of a "new military wing of Fatahi" suggesting

that    both     men     viewed       their        conversation          as     relating       to

activities       independent          of      their        responsibilities             as     PA

employees.

       For all of these reasons,               Plaintiffs have not                shown that

Aweis's statements are admissible as a vicarious party admission

under Rule 80l(d).

       Statement Against Penal Interest

       Plaintiffs'      second argument             for    the    admission       of Aweis' s

statements     is     that   they were        contrary to          his    penal      interests

under Rule 804(b) (3).           As discussed,            to satisfy this exception,

Plaintiffs must show both that Aweis is "unavailable" and that

his    statements      had    "so    great     a     tendency"      to        expose    him    to

criminal     liability       that    a     reasonable       person       in    his     position

would not have made them unless believing them to be true.                                   Fed.

R. Evid. 804 (b) (3).

       Plaintiffs argue that Aweis is unavailable because "at his

deposition       in      this        case      he         could     not         recall        his


                                            -32-
conversations[.]"             Pls.' Opp'n at 3.               A declarant is considered

to be "unavailable" if, among other things, he or she "testifies

to not remembering the subject matter" of the prior statement.

Fed.     R.    Evid.    804 (a) (3).     Plaintiffs           do   not,   however,       specify

which     conversation they contend Aweis                         could not     recall    -    the

conversation with Issacharoff or the one with Abu Halawa.                                       As

Defendants point out,             Aweis testified that he did remember his

conversation with Issacharoff but could not recall specifically

what he had told Issacharoff.                   See Aweis Tr. at 40:20-24.

         In    any event,       this    definition           of unavailability         "applies

only      if    the    declarant        is     unable        to    remember     the    'subject

matter'" of the statement,                   "i.e.,     if    'he has no memory of the

events to which his hearsay statements relate.'                               The fact that

the witness does not remember making the statements themselves

is irrelevant."           Lamonica v. Safe Hurricane Shutters,                        Inc.,    711

F. 3d     1299,        1317     (11th        Cir.     2013)         (citations        omitted).

Consequently, Aweis's inability to recall precisely what he said

to      Issacharoff      does     not        render     him       unavailable     under       Rule

804(a) (3) so long as he remembered the underlying subject matter

of which they spoke.             Id. at 1317.

        Aweis     did not     testify to a            lack of memory regarding the

subject matter of his interview with Issacharoff, which was his

                                               -33-
purported        telephone       conversation      with     Abu    Halawa     immediately

after the NII attack.                 To the contrary,         when asked whether he

had ever discussed the NII shooting attack with Abu Halawa,                                 he

answered definitively "No,                no."     Aweis Tr.       at 41:21.          He also

testified that he had no                 knowledge    regarding the NII              shooting

and that he first met Abu Halawa in December 2001, more than one

year after the NII attack and purported conversation took place.

Id.     at    41:4-17.        Because Aweis       did not testify to             a    lack of

memory regarding the alleged conversation with Abu Halawa,                                 but

rather that it never happened,                   he is not "unavailable."

~'       United States v. Uribe,             88 F. App'x 963,           964-65       (8th Cir.

2004)        (holding that a declarant who "remembered what happened"

is not "unavailable" under Fed. R. Evict. 804(a) (3)).

        Plaintiffs also have not shown that Aweis's statements were

contrary       to   his       penal   interests.        First,      nothing      about     the

statement implicates Aweis in actually perpetrating the attack;

it merely gives           him credit       for    helping to select the name in

which Abu Halawa took responsibility for th€ attack.                             Second, at

the     time    Aweis     made    the     statements,     he      was   already       s€rving

multiple life sentences,                substantially diminishing the prospect

that     he    would     be    deterred    from    making      statements     that       could

expose him to further criminal liability.                         Third,    as the Court


                                            -34-
has already observed,                 efforts by known terrorists to associate

themselves           with    terrorist       activities    are    not   perceived         to     be

against their interests and do not qualify under Rule 804(b) (2).

See Gill,        893 F.       Supp.    2d at 569; Strauss,          925 F.    Supp.       2d at

44 9.

        In sum, even if the passage in The Seventh War qualifies as

a    recorded recollection of Issacharoff' s                     interview with Aweis,

it is still inadmissible for two other reasons, namely that the

hearsay     statements          of    both    Aweis     and Abu     Halawa    embedded           in

Issacharoff's           account        are    inadmissible.          Consequently,              the

passage     in The Seventh War                cannot    be used to prove            that Abu

Halawa killed Gilmore.

                3.      Statements of Bashar           ~   Khatib

        Next,        Plaintiffs       contend    that     Al   Khatib    testified            under

penalty of perjury at                 Damar a's military trial           on   January 12,

2009,     that        "his    statements        and   handwritten       accounts         to     the

Israeli police implicating Abu Halawa in the murder were true."

Pls.' Opp'n at 4.              They argue that this testimony is "admissible

under    Rule        801(d) (1) (A)     because       Khatib     repudiated       that        sworn

trial testimony in his deposition in this case."                         Id. 16


16
    Plaintiffs do not argue that Al Khatib's four custodial
statements are independently admissible. Our Court of Appeals
has observed that "statements made to investigating officials"
                             -35-
       Rule 8 01 (d) ( 1) (A)         applies to prior inconsistent statements

of a    witness.         Its    "essential           requirements" are that           " ( 1)    the

declarant     testifies           at     the        trial     [or     deposition];       (2)    the

declarant is subject to cross-examination concerning the                                  [prior]

statement;        (3)   the statement is              inconsistent with his              [or her]

present testimony;             and     (4)    the prior statement was given under

oath."      United States v. Emor, No. 10-298                         (PLF), 2012 WL 458610,

at *1 (D.D.C. Feb. 13, 2012)                   (internal citations omitted).

       As   Defendants         point         out,    Plaintiffs        "seek    to   rely      on   a

supposedly prior inconsistent statement without identifying the

statement."         Defs.'      Reply at 14.                Plaintiffs have not cited to

any portion of the             Damara trial            transcript          in which Al      Khatib

admitted,    as they contend,                 "that his statements and handwritten

accounts     to    the    Isra~li        police       implicating Abu           Halawa    in    the

murder were true [ . ] "             Pls.'    Opp'n at 4.            The Court's own review

of that transcript reveals none.                        Instead,       Plaintiffs appear to

hang their hat on a               brief portion of the transcript                     in which,

the    prosecutor        asked,       "[a] ccording          to     what   I   understand      from

you,   everything that            you have           said about Muhannad Abu              Halawa,


are generally inadmissible under Rule 801 (d) (1) (A) unless made
in the course of formal proceedings in which certain guarantees
of reliability are present.     United States v. Livingston, 661
F.2d 239, 242-43 (D.C. Cir. 1981) (citing cases).       As noted,
Plaintiffs have not shown that such guarantees of reliability
were present during Al Khatib's interrogation.
                               -36-
about       Bashir    Nafa,      Omar      Ka'adan,      everything      is    correct      but

whatever is related to                [Damara]     is incorrect.      Correct?" and Al

Khatib answered "Yes."               See Tolchin Decl., Ex. 18                (transcript of

military trial of Mahmoud Damara, testimony of Bashar Al Khatib)

at ECF p. 18 [Dkt. No. 331-18].

        During Al Khatib's deposition in 2011,                     Plaintiffs'         counsel

did not          confront Al Khatib with this              testimony or ask him to

explain it.          Plaintiffs' counsel asked Al Khatib only whether he

had been questioned about his custodial statements at Damar a's

trial.       Tolchin Decl.,          Ex.   E (Al Khatib tr.)        at 29-31.          He did

not follow up by asking Al Khatib specifically about his                                   one-

word response to the prosecutor's question of whether everything

he    had    said    in   his    prior     statements      about    Bashir       Nafa,     Omar

Ka'adan,         and Abu Halawa was correct.               Because Rule 801(d) (1) (A)

requires that a declarant be cross-examined about the specific

statement sought to be introduced as inconsistent,                             this failure

alone       is     grounds      to   exclude       the    2009   testimony        on      which

Plaintiffs rely.          See Fed. R. Evict. 613(b), 801(d) (1).

        Moreover,      it is not at all clear that,                in his response to

the     prosecutor's          question        at      Damara's     trial,       Al       Khatib

understood         himself      to   be    affirming      the    truth    of     his      prior

statements implicating Abu Halawa in the NII attack                              (which is,


                                             -37-
of   course,      the   only   way     in    which       that   statement       would    be

inconsistent with his testimony in this case).                         The prosecutor's

question as to whether everything he had previously said "about

Muhannad    Abu    Halawa,     about    Bashir       Nafa,      Omar    Ka'adan,      [was]

correct"    directly     followed      questioning         related to      an   incident

other than the NII attack. 17           Earlier in the same examination, Al

Khatib   testified      specifically        about    the     NII   attack,      and   that

testimony was consistent with his testimony in this case.                                In

particular,    when asked what he                knew "about the attack at the

National    Insurance     Institute         in    East    Jerusalem[,]"      Al    Khatib

answered:

     The National Insurance Institute case has no connection to
     us.   I was asked about this case.  I was interviewed about
     it, and they were unable to prove anything and then they
     threatened that they would bring in my wife, I don't want
     to talk about the nastiness there.        I did not confess
     to that, it had nothing to do with me and it is not in my
     record.


17
   See Tolchin Decl., Ex. 18 (Damara Trial Tr. of Al Khatib)
 [Dkt. No. 331-18 at ECF p. 18] ("Q. Is it correct that in that
same year, 2000-2001, you heard on the radio that there were
confrontations with Israeli army forces in the Ein Arik area and
you drove there with Nasser Nafez Darama, and then he got out
and started shooting and you got angry at him? A: Correct, but
these are his words, not mine.      Q: But you said that to the
police.    A: In another case.  Which is unrelated to this case .
       You are talking about something that happened eight years
ago.    Q:   According to what I understand from you, everything
that you have said about Muhannad Abu Halawa, about Bashir Nafa,
Omar Ka' adan, everything is correct but whatever is related to
the Defendant is incorrect. Correct? A: Yes.")
                               -38-
Tolchin Decl., Ex. 18               (tr. of military trial of Mahmoud Damara,

testimony of Bashar Al Khatib)                     at ECF p.           16     [Dkt.    No.        331-18]

 (emphasis   added) .         When asked again about                    the     "attack at            the

National Insurance Institute in East Jerusalem," he responded "I

have no connection to that" and further testified that he only

signed the written statements "because they threatened to attack

my wife."         Id.    at   17     (emphasis       added).            In sum,        Al    Khatib's

testimony     at        Damara's      trial        was        generally        consistent,            not

inconsistent,       with      his    testimony           in    this     case.       His      one     word

response to a vague question by the prosecutor does not change

that equation.

      Because      Plaintiffs         have     not       shown        that     Al     Khatib         gave

inconsistent       testimony         at   Damara's            trial,     or     that      they       ever

cross examined him regarding                  such       testimony,           the     testimony is

not   admissible        under      Rule   801 (d) (1) (A)         and       cannot     be     used at

trial to support their theory that Abu Halawa killed Gilmore. 18

             4.     Statements of Mas1amani

      Fourth,      Plaintiffs        rely     on    Maslamani' s            January         18,     2001,

custodial statement that Abu Halawa took credit for carrying out

18
   Having so concluded, the Court need not address Defendants'
argument that "the Hebrew transcript from the Damara trial .
does not even contain statements of Bashar Al Khatib" because he
"testified in Arabic and the statements in the Hebrew transcript
are those of an IDF soldier serving as an interpreter."    Reply
at 14.
                              -39-
the    attack at              the       National      Insurance        Institute.            See Tolchin

Decl.,    Ex.        8     (custodial statement of Maslamani,                           dated January

18,    2001)        at     1.           Plaintiffs        contend      that     this        statement       is

admissible          as        a    statement         against      penal       interest        under       Rule

804(b) (3).          The Court disagrees.

       First,            as       previously           discussed,         a     statement            against

interest is only admissible if the declarant is "unavailable."

See Fed. R. Evid. 804(b) (3).                            Plaintiffs do not identify a basis

on which Maslamani is "unavailable" within the meaning of Rule

804,   and none of the limited bases set forth under Rule 804(a)

apply.         Maslamani                was     deposed     in    this    case,        gave    testimony

concerning           the          NII     attack,        and     neither        refused       to      answer

questions on that topic nor testified as to a lack of memory.

See    Fed.     R.       Evid.          804 (a) (2)- (5) . 19       Consequently,             he     is    not

"unavailable."                    See Grace United Methodist                    Church v.          City Of

Cheyenne,       451 F.3d 643,                    665 n.ll       (10th Cir.          2006)    (a "deposed

declarant                         can never be            'unavailable'         for purposes of an

exception       under             Rule        804 (b) (3) ");    see     also       Campbell       ex     rel.

Campbell       v.        Coleman         Co.,      786    F.2d    892,        896    (8th     Cir.      1986)


19
   As discussed earlier, at his deposition, Maslamani repudiated
the truth of this statement as it pertained to the NII attack
and testified repeatedly that he knew "nothing about that
subject" and that Abu Halawa "never told me about that subject."
Maslamani Tr. at 19, 22.
                              -40-
 (deposed      declarant       was    not      "unavailable"              under    Rule       8 04 (a) ( 5)

because       that    "subsection           is    concerned              with     the     absence       of

testimony,      rather than the physical absence of the declarant")

(citations omitted).

       Plaintiffs            contend        that         Maslamani               nevertheless           is

"unavailable"         because        they      did      not        have    the     opportunity          to

redepose him after he purportedly agreed to the admission of his

January 2001 custodial statement as evidence against him at his

criminal trial in Israel in 2003.                         Pls.'           Opp' n at 5.          Even if

this    was      relevant,           Plaintiffs          do        not     cite     any        evidence

indicating       that        Maslamani         agreed         to     the     admission          of     his

statement as it related to the NII attack,                                  for which Maslamani

was    never     charged.            As   Defendants           point        out,        the    "Israeli

military      tribunal        quoted      in     its    entirety           the    portion        of    the

Misalmani custodial statement deemed admitted by consent, and it

did not include the portion relating to the shooting of GilmoLe

at the National Insurance Institute .                                     Rather, it relates to

the shooting of Talia and Binyamin Kahane,                                 for which Misalmani

was convicted."          Defs.' Reply at 17 (citing Tolchin Decl., Ex. 7

(verdict) )      at     5,     28-31).            Nor     do        Plaintiffs          explain       why

Maslamani's agreement to admit statements inculpating Abu Halawa

at his criminal trial is sufficiently relevant to this case that


                                                 -41-
their     inability       to    redepose    him     on    the     subject        renders     him

"unavailable. " 20

        Second,     even if Maslamani          was       unavailable,       as    Defendants

point out,         the part of his statement implicating Abu Halawa in

the NII attack was exculpatory, not inculpatory.                            Maslamani did

not confess any responsibility for the NII attack; he blamed Abu

Halawa.      As the Supreme Court has held, Rule 804(b) (3) "does not

allow admission of non-self-inculpatory statements, even if they

are   made    within      a    broader     narrative       that    is   generally          self-

inculpatory."         Williamson v. United States, 512 U.S. 594, 600-01

(1994); see also Fed. R. Evid.               804, Advisory Committee Notes to

exception      3     ("[A]     statement     admitting       guilt      and      implicating

another person, made while in custody, may well be motivated by

a desire to curry favor with the authorities and hence fail to

qualify as against interest.").

      Because Maslamani is available and his testimony about the

NII   attack        was   not    contrary      to    his        penal   interests,          his

20
   Plaintiffs argue that, under operation of Israeli military
law, Maslamani's admission of the statement "constituted an
endorsement by Maslamani of all the facts contained in the
statement."   Pls.' Opp' n at 5.  Even if this is true, and even
if Maslamani agreed to the admission of the entire statement as
opposed to mere_ly the portions pertaining to the attack for
which he was convicted, Plaintiffs do not explain how the legal
consequences of that admission under Israeli military law is
relevant to the admissibility of the statement under the Federal
Rules of Evidence.
                               -42-
custodial statement is not admissible under Rule 8 04 (b) ( 3)                                    and

cannot     be        used    at     trial    to    prove        that        Abu   Halawa        killed

Gilmore. 21

                5.      The Expert Opinion of Alon Eviatar

      Fifth and finally,                Plaintiffs have retained,                   as an expert

witness,      former IDF intelligence officer and Department Head of

Palestinian           Affairs,      Alon     Eviatar,          who     opines,      among       other

things,    that        it    is   "more      likely      than        not,    that   Muhanad       Abu

Halawa carried out the October 30,                       2000 murder of Mr. Gilmore."

See Corrected Decl. of Alon Eviatar                           ("Eviatar Decl.)        ~    33    [Dkt.

No.   345].          Plaintiffs argue that even if none of the foregoing

evidentiary           items       are       admissible,          Eviatar's          opinion         is

sufficient to take their case to a jury.

      Rule      702     of    the     Federal     Rules         of    Evidence      governs        the

admissibility of expert testimony.                            It provides that a witness

who is qualified as an expert may "testify in the                                    form of an

opinion    or        otherwise      if:     (a)   the     expert's                   specialized

knowledge will help the trier of fact to understand the evidence

or to determine a fact in issue;                        (b)    the testimony is based on

sufficient facts             or data;       (c)   the testimony is the product of

21
   The Court also notes that even if Maslamani' s own statement
was admissible, it is double hearsay because it merely recounts
Abu Halawa' s own out.,-of-court statement, which the Court has
already ruled is inadmissible.
                                -43-
reliable principles and methods; and (d) the expert has reliably

applied the principles and methods to the facts                                   of the case."

Fed. R. Evict. 702.

      Defendants argue that Eviatar's opinion that Abu Halawa was

"more likely than not" Gilmore's killer is inadmissible because

he   is   "not    applying any particular methodology or                               specialized

expertise        to      his        review       of     the       Plaintiffs'         inadmissible

hearsay," but is merely "reviewing and weighing the evidence" in

precisely the same manner as would an ordinary trier of fact.

Reply at 19. 22          The Court agrees.

      First,          Eviatar            has      not     identified            any    particular

methodology he           used       to    form his       opinion.          To   the    extent       the

Court can discern a methodology supporting his conclusion that

Abu Halawa was "more likely than not" Gilmore's murderer,                                      it is

his statement that, "[a]s a rule, the strength (likely accuracy)

of   an   assessment           or    conclusion         is    a    function      of    three      main

variables:        ( i)      the          nature        and/or      quality        of    available

information       and     data;          ( ii)   the    variety      and    diversity        of    the

sources     and/or         types         of      information        and     data;      and        (iii)



22
  Defendants note that Plaintiffs did not identify Eviatar as an
expert witness in their Rule 26 disclosures.  Defs.' Reply at 4.
However, they do not claim that his opinion is inadmissible on
that basis.
                              -44-
cumulative experience and knowledge                                  and professional instincts

and intuition."             Eviatar Decl. ! 32.

      Eviatar does not, however, even consider these variables in

reaching his conclusion that "it is very likely,                                            and certainly

more likely than not,                   that Muhanad Abu Halawa carried out the

October 30, 2000 murder of Mr. Gilmore."                                   Id. !      33. Instead, his

analysis     is    devoted             entirely           to    explaining            why    he    believes

Plaintiffs'       hearsay. evidence                  is    reliable.             See    id.       !!   34-64.

His   Declaration            contains          no        discussion        of      "the      variety        and

diversity     of        the       sources           and/or        types       of      information           and

data[.]"     Nor does he explain how his "cumulative experience and

knowledge"        as        an    IDF     intelligence                officer,         as     opposed        to

commonsense and general deductive principles that any non-expert

finder of fact would rely on,                            lead him to the conclusion that

Abu Halawa was the likely murderer.

      Because      Eviatar             fails        to    consider         the        very    factors        he

claims should be considered in determining "the strength {likely

accuracy)    of an assessment or conclusion," he has not "reliably

applied"    his        own methodology               to        the    facts      of    this       case     and,

therefore, his opinion does not satisfy Rule 702(d).                                           See, e.g.,

Strauss,    925        F.    Supp.      2d at        441        (" [I] t   is      well settled that

'[u]nder     Daubert             and    Rule        702,       expert       testimony             should     be

                                                    -45-
excluded if the witness                       is not actually applying                        [the]    expert

methodology."')                (citing United States v. Dukagjini, 326 F.3d 45,

54 (2d Cir. 2003)).

            Second,      even     if       Eviatar       had     faithfully            applied        his   own

methodology, his analysis is based entirely on hearsay evidence

that the Court has already ruled is inadmissible.                                         Eviatar Decl.

c:n:c:n:   34-64. 23          Although        an     expert          is    entitled           to     rely    on

inadmissible evidence in forming his or her opinion, the expert

"must form his                [or her]        own opinions by applying his                           [or her]

extensive              experience           and     a     reliable           methodology              to    the

inadmissible materials."                         United States v. Mejia,                  545 F.3d 179,

197         (2d   Cir.        2008)        (quotation         marks       and     internal          citations

omitted); see also

Estate of Parsons I, 715 F. Supp. 2d at 33 ("Expert opinions may

be         based on      hearsay,          but    they may not             be     a    conduit        for   the

introduction             of     factual           assertions          that       are     not       based     on

personal           knowledge.")              (citing          Fed.    R.        Civ.     P.        56(e) (1));

Strauss,          925    F.    Supp.        2d at       445     (expert      "testimony cannot be

used        as    an    excuse        to    introduce         and     summarize         straightforward


23
    Eviatar also relies on two other sets of out-of-court
statements Plaintiffs do not rely upon: Al Khatib's custodial
statements and an April 2001 edition of Force 17's official
magazine, Humat al-Areen. Eviatar Decl. c:Hc:H 34-64.

                                                     -46-
 factual evidence that has not been admitted,                                       such as a webpage

that says 'Hamas carried out a suicide bombing'").

        Eviatar has              not        applied any specialized knowledge to the

hearsay materials                 on which he              relies.           Instead,         his    analysis

consists        entirely              of     deductions          and    observations             that      flow

directly from the content of the hearsay statements and would be

self-evident to a layperson.                              For example,            he suggests that Al

Khatib's        four       custodial              statements      should          be    believed        rather

than     his     deposition                 testimony       in    this       case       because       at    his

deposition,           he        did        "not     seem     to       have    been       a     neutral       or

spontaneous        witness,                and his       testimony was             not    continuous         or

complete,        as        it    was        in     his    statements          to       Israeli       police."

Eviatar        Decl.        ~     51.         Likewise,          he     opines         that    Maslamani's

custodial statement is reliable because it is "fairly detailed

in     respect        to        both        the    circumstances             in    which       Abu      Halawa

conveyed the           information to Maslamani,                         and the particulars of

the    attacks."                Id.     ~    56.         These    are    precisely            the    type    of

generalized inferences that a lay person,                                     and the jury itself,

could draw without any expert assistance. 24


24
   The Court also notes that accepting                                             some of Eviatar's
assertions would require the suspension of                                        common sense.    For
example, he opines, without any explanation                                       whatsoever, that Al
Khatib's custodial statements are more                                            reliable than his
deposition testimony because Israeli police                                         interrogations are
                              -47-
       Eviatar' s         discussion         of       the    other evidentiary                            sources       he

relies       on    is    similarly        generalized.                      He    states             that     he       has

"followed" Issacharoff's work over the course of his career and

"found him to be knowledgeable,                             thorough,            unbiased and honest"

and has "no reason to doubt" his account.                                             Id.    <:II    44.     He does

not,    however,         provide       any       facts       regarding                the       basis        of    this

opinion      much        less     relate      it       to     his           specific          experience               and

expertise.

       The        closest       Eviatar       comes         to      drawing            on           his    extensive

experience          as    an      intelligence              officer              is     his           self-serving

conclusory statements that it is "likely" that the IMFA webpages

"would    not       have       been    issued          by     the           State       of          Israel     unless

Israeli authorities" had a "high degree of certainty" regarding

the    facts       reported.          Id.     <:II   37.          He        opines .that              this        is    so

because the Israeli government takes "formal, public accusations

of this type" as "very serious matters" that "place []                                                       Israel's

credibility on the line                               in the eyes of the international

community" and carry the risk of "an unnecessary escalation of

tensions with the Palestinians."                            Id.    <JI<JI   35-36.

       Eviatar fails,            however, to discuss the specific protections

that     constrain          the       IDF's          and     IMFA' s             decision             to     publish

"more personal, private and calm and less tense" than a civil
deposition. Eviatar Decl. <:II 57.
                                -48-
 intelligence information;                       the quantum of evidence necessary to

 satisfy           the         IMFA' s      concerns           regarding          maintaining         its

 credibility              in      the      international             community         and     avoiding

 unnecessary conflict with the Palestinians; from whom in the IDF

 the      IMFA      would       have       obtained      its    information;           the    types    of

 sources         on      which       the     IDF     would      have        relied;     and/or       what

protocols           or     processes        the     IMFA      and     IDF    would     have    used    to

confirm the accuracy of sources prior to publication.

          Because Eviatar' s               opinion consists entirely of generalized

and conclusory assertions that lack any basis in his specialized

 knowledge,           the      Court       concludes       that      he     "is   simply      repeating

hearsay evidence                 without         applying      any expertise           whatsoever,      a

practice           that        allows       [Plaintiffs]            to    circumvent         the    rules

prohibiting hearsay."                      Mejia,     54 5 F. 3d at 197            (quotation marks

and internal citations omitted) .

          In    sum,       Eviatar' s       opinion      is     not       based   on    any    reliable

"principles             [or]     methodology" reliably applied to the facts                            of

the case,           Daubert,         509 U.S.       at   595,       and does      not draw on any

specialized knowledge that would be helpful to the jury,                                            as is

required by Rule                 702.       Williams v.         Illinois,         132 S.      Ct.   2221,

-2-2-4-1----(-2-G-1-2--)-. -   -1-R-s-~eaEi-,-   l"le-merel-y---we±<jhs- ---t--he--ev-idenee----in-

precisely the same way as would a trier of fact.


                                                     -49-
        "It has long been the law in this Circuit that                                        'where the

jury is just as competent to consider and weigh the evidence as

is     an    expert    witness      and     just       as    well     qualified          to    draw    the

necessary conclusions therefrom,                        it    is improper to use opinion

evidence for the purpose.'"                      Evans v.           Wash.       Metro.    Area Trans.

Auth.,       674 F. Supp. 2d 175, 179-80                     (D.D.C. 2009)          (quoting Henkel

v.    Varner,       138 F.2d 934,      935       (D.C.       Cir.    1943)); see also United

States v.       Boney,      977    F.2d 624,           628    (D.C.    Cir.       1992)       ("[Expert]

testimony       should       ordinarily          not    extend        to    matters        within      the

knowledge of laymen.") ;              United States v.                Farrell,       563 F. 3d 364,

377     (8th    Cir.       2009)     (expert       usurped          jury        function       when    she

"opined        on    the    strength        of     the       Government's           case        and    the

credibility of its witnesses").

        Consequently,         Eviatar' s     opinion is not admissible to prove

that Abu Halawa killed Gilmore.

                6.     Plaintiffs Have Not Presented Any Admissible
                       Evidence that Abu Halawa Killed Gi1more

        As      discussed          above,         Eviatar's            expert            opinion        is

inadmissible and Plaintiffs' only other evidence that Abu Halawa

killed Gilmore is            "sheer hearsay," which "'counts                             for nothing'

on    summary        judgment."        Greer,          505     F.3d        at    1315.         Nor    have

Plaintiffs demonstrated that any of the evidence on which they

rely    is     capable      of     being    converted          into        admissible         evidence.
                                                 -50-
Therefore,      Plaintiffs          have     not      identified       any   admissible

evidence to bring their case to a                       jury on their foundational

allegation that Abu Halawa killed Gilmore and summary judgment

must be granted for Defendants. 25

      B.     Plaintiffs' Supplemental              Cla~s

      Plaintiffs           do    not       directly       address      whether     their

supplemental     claims also require proof that Abu Halawa                        killed

Gilmore.     They argue solely that "the federal ATA claim requires

plaintiffs      to     prove     more      elements      than    the    garden-variety

supplemental claims."            Pls.' Opp' n at 8.         However, Plaintiffs do

not   explain        how    their      quantum     of    proof    differs    on    their

supplemental claims,            nor do they suggest that such claims can

prevail without proof that Abu Halawa killed Gilmore.

      Because the Court has                concluded that        Plaintiffs have not

presented     any      admissible        evidence        that    Abu    Halawa    killed

Gilmore, and Plaintiffs have advanced no other basis to support


25
   Defendants also argue that, even if Plaintiffs could prove
that Abu Halawa killed Gilmore, they cannot prevail because the
ATA does not permit civil lawsuits based on vicarious liability.
Defs.' Mot. at 22-29.     The ATA does not specify whether it
permits actions based on vicarious liability and that issue is
unresolved in this Circuit.   See Estate of Parsons II, 651 F.3.d
at 133 (Tatel, J., concurring) .   Because the Court has already
concluded that Plaintiffs fail to present any "proof concerning
an essential element of [their] case," Celotex Corp., 4 77 U.S.
at 323, it ~s unnecessary to reach this issue.

                                            -51-
their supplemental claims,     summary judgment shall be granted on

these claims as well.

IV.   CONCLUSION

      For the   foregoing   reasons,   Defendants'   Motion for Summary

Judgment shall be granted,      and the case shall be dismissed in

its entirety.   An Order shall accompany this Memorandum Opinion.




July 28, 2014




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                                  -52-
