Eliahu v. Jewish Agency for Isr.

919 F.3d 709
CourtCourt of Appeals for the Second Circuit
DecidedMarch 27, 2019
DocketDocket No. 18-244-cv (L); 18-246-cv (Con); August Term 2018
StatusPublished
Cited by92 cases

This text of 919 F.3d 709 (Eliahu v. Jewish Agency for Isr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eliahu v. Jewish Agency for Isr., 919 F.3d 709 (2d Cir. 2019).

Opinion

Per Curiam:

*712Plaintiffs-appellants Eitan Eliahu, Dotan Newman, R. David Weisskopf, and Eldad Gidon ("Plaintiffs") appeal from a December 28, 2017 order of the district court dismissing their action against defendants-appellees, current and former officials of the Government of Israel (the "Israeli Officials") and nine charitable organizations and three affiliated individuals. Plaintiffs' claims arise from their dissatisfaction with the outcome of divorce proceedings in Israel and subsequent efforts by their ex-wives, with the assistance of the charitable organizations, to collect child support from them. Weisskopf and Eliahu also appeal the district court's order permanently enjoining them from filing any future action in federal court related to the allegations asserted in this lawsuit without the district court's preauthorization. We affirm the district court's order of dismissal as well as its anti-filing injunction.

I. Order of Dismissal

"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000). On appeal from a dismissal for lack of subject matter jurisdiction, factual findings are reviewed for clear error and legal conclusions are reviewed de novo . Id. For a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), this Court reviews the district court's ruling de novo , "accepting as true all factual claims in the complaint and drawing all reasonable inferences in the plaintiff's favor." Fink v. Time Warner Cable , 714 F.3d 739, 740-41 (2d Cir. 2013) (per curiam). To survive a motion to dismiss for failure to state a claim, the complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; see also Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

The district court properly dismissed all claims against the Israeli Officials for lack of subject matter jurisdiction because, as foreign government officials acting their official capacity, they are entitled to immunity. See Underhill v. Hernandez , 168 U.S. 250, 252, 18 S.Ct. 83, 42 L.Ed. 456 (1897) (recognizing "[t]he immunity of individuals from suits brought in foreign tribunals for acts done within their own states, in the exercise of governmental authority ... as civil officers"); Matar v. Dichter , 563 F.3d 9, 14 (2d Cir. 2009) (recognizing that foreign officials are entitled to immunity for acts performed in their official capacity).

Specifically, the Israeli Officials are eleven registrars or directors of Israel's Enforcement and Collection Authority, a retired *713Israeli judge, and Israel's former Minister of Justice and Foreign Affairs. Plaintiffs allege that these officials created fictious debts, impeded the payment of debts, and engaged in other similar misconduct while operating under color of Israeli law. Even assuming the officials' challenged conduct was improper under Israeli law, there is no doubt that the conduct was official in nature. See Larson v. Domestic & Foreign Commerce Corp ., 337 U.S. 682, 689-90, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949) (distinguishing between an official's erroneous exercise of power, which is protected by sovereign immunity, and an official's acts taken in the absence of any delegated power, which are not so protected); Velasco v. Gov't Of Indonesia , 370 F.3d 392, 399 (4th Cir. 2004) (recognizing that foreign sovereign immunity, including foreign official immunity, "models federal common law relating to derivative U.S. sovereign immunity"). Accordingly, the Israeli Officials are entitled to foreign official immunity.

With respect to the remaining defendants, the district court held that Plaintiffs failed to satisfy the domestic injury requirement of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1964(c), or identify any requisite predicate acts of racketeering activity, id. § 1962(b)-(c). See Appellants' App'x. at 211-14. In addition, the district court held there is no private right of action that allows for Plaintiffs' claims of aiding and abetting a RICO violation, extortion, and mail fraud against defendants in the circumstances here. Id.

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919 F.3d 709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eliahu-v-jewish-agency-for-isr-ca2-2019.