Appel v. Hayut

Background

Ronit D. Appel, an attorney representing herself, sued the Honorable Esther Hayut, Yosef Meir Cohen, the Honorable Yael Antebi-Sharon, Meir Amir Cohen, David Kazhdan, Alisa Rubin Peled, Dr. Kenneth Davis, and Dr. Davis Reich. She asserted two claims under the Torture Victim Protection Act: attempted extrajudicial killing and torture.

Appel alleged that she had exposed corruption by Israel’s Supreme Court through social-media posts and was then targeted by assassination attempts, cyber threats, false rumors, and other attacks. Her allegations also concerned an Israeli proceeding involving alleged leaks and dampness affecting apartments beneath her apartment. The complaint alleged, among other things, that Israeli officials, Kazhdan, Peled, and the Mount Sinai defendants were involved with or helped conceal attacks attributed to Israel’s intelligence agency. The court treated these factual allegations as true only for purposes of deciding the motions.

Foreign official immunity

The court dismissed the claims against Hayut, Yosef Meir Cohen, and Antebi-Sharon for lack of subject-matter jurisdiction, meaning the court lacked legal authority to hear those claims. It explained that foreign officials are generally immune from suits for actions taken in their official capacities. The court concluded that all allegations against these three defendants concerned their official roles: Hayut’s alleged actions as Chief Justice, Yosef Meir Cohen’s alleged actions as Director of the Mossad, and Antebi-Sharon’s alleged actions in connection with the Israeli proceeding. The court also concluded that the complaint did not provide facts showing that they acted in personal rather than official capacities.

Service on Meir Amir Cohen

Meir Amir Cohen argued that service was defective because the Federal Express delivery appeared not to require a signature and was signed for by someone identified as “M. Meir.” The court noted that the Clerk’s certificate showed that a signature had been required, although the record did not make clear whether Federal Express’s website information was wrong or the package was delivered without the required signature. The court nevertheless found that Appel had complied with the required service process and that Cohen unquestionably knew about the lawsuit because he had submitted two letters challenging service. The court therefore found service proper.

Setting aside defaults

Kazhdan, Peled, and the Mount Sinai defendants asked the court to set aside entries of default. Under the governing rule, an entry of default may be set aside for good cause. Courts consider whether the failure to respond was deliberate, whether setting aside the default would harm the opposing party, and whether the defendant has a potentially valid defense.

The court found no evidence that these defendants deliberately failed to respond. Kazhdan said he misunderstood whether he had been properly served; the Mount Sinai defendants attributed their delay to carelessness, negligence, and the effects of the COVID-19 pandemic on their legal department; and Peled said the complaint had been sent to a former address. The court also found that setting aside the defaults would not unfairly harm Appel and noted the strong preference for resolving disputes on their merits. Because the defendants also presented potentially valid defenses, the court granted the Mount Sinai defendants’, Kazhdan’s, and Peled’s motions to set aside the defaults.

Motions to dismiss

The court applied the standard for a motion to dismiss for failure to state a claim. Under that standard, a complaint must allege enough facts to make liability reasonably plausible, rather than relying on legal conclusions or speculation. Although courts generally read filings by people without lawyers generously, the court said that Appel was an attorney representing herself and therefore was not entitled to that additional leniency.

The court dismissed the TVPA claims against Kazhdan, Peled, and the Mount Sinai defendants. First, the complaint did not allege that Appel was in any defendant’s custody or physical control, as the statute’s definition of torture requires. It also did not provide enough specific facts showing the severe pain or suffering required for a torture claim. The allegations about threats, rumors, and the Mount Sinai van were vague and conclusory.

The court also questioned whether the TVPA creates liability for an attempted, rather than completed, extrajudicial killing. It did not decide that issue because the claims failed for another reason. The court held that the complaint did not allege non-conclusory facts showing that Kazhdan, Peled, or the Mount Sinai defendants acted under the authority of, or with significant assistance from, Israel. Allegations that they were Mossad operatives or had joined a conspiracy were unsupported by specific facts. The court therefore granted those defendants’ motions to dismiss for failure to state a claim.

Other requests and disposition

The court denied Appel’s requests for criminal-contempt proceedings against opposing counsel and others, referrals to the United States Attorney’s Office, and referrals to the Department of Justice for investigation and prosecution. It found those requests frivolous and unsupported by fact or law.

The court dismissed the complaint as to every defendant except Meir Amir Cohen. Specifically, it dismissed the claims against Hayut, Yosef Meir Cohen, and Antebi-Sharon for lack of subject-matter jurisdiction, and it granted Kazhdan’s, Peled’s, and the Mount Sinai defendants’ motions to set aside the defaults and dismiss for failure to state a claim. Cohen was given until July 30, 2021, to move to vacate his default.