GLADYS KESSLER, District Judge.
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,
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
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.
The attack occurred at the beginning of the Second Intifada, a period of sustained violence and unrest in Israel and Palestine.
Although it is undisputed that the State of Israel never 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 unit known as the Presidential Security Services, or "Force 17," and members of an armed PLO faction called "Tanzim."
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 ¶ 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. ¶¶ 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.
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."
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.
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 mention any participation in the NII attack.
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.
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").
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 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."
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.
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.
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 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.
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.
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 ("Aweis"), and National Insurance Institute designee Ya'akov Aravot; and the June 2012 deposition of Israeli journalist Avi Issacharoff ("Issacharoff"), co-author of the book
On August 9, 2012, Defendants filed the instant Motion for Summary Judgment, arguing,
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.
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
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:
18 U.S.C. § 2331(1).
"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."
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. Civ. 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.'"
A summary judgment movant may carry its initial burden by "pointing out . . that there is an absence of evidence to support the nonmoving party's case."
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.
As the Supreme Court stated in
As our Court of Appeals has observed, "rvierdicts cannot rest on inadmissible evidence."
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.
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.
As to expert testimony, as the Supreme Court held in
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 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.
Plaintiffs do not disagree that, in order to survive summary judgment, they must produce admissible evidence that Abu Halawa killed Gilmore.
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 places, lacks any explanation whatsoever. As our Court of Appeals recently observed:
With these observations in mind, the Court considers whether Plaintiffs have identified any admissible evidence to support their theory that Abu Halawa killed Gilmore.
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 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 killed and another wounded (30 October)."
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.
Plaintiffs argue that these IMFA "reports" are admissible under Federal Rule of Evidence 803(8),
Plaintiffs have not provided one iota of information as to how the material in the IMFA webpages was compiled or from what 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.
Further, Rule 803(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."
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.
Next, Plaintiffs rely on a passage in Issacharoff's book
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) Aweis' statements to Issacharoff at the interview in 2004,
Plaintiffs have not established a basis to admit the statements of either Abu Halawa or Aweis.
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).
Plaintiffs make two arguments for admitting Aweis's out-of-court statements to Issacharoff, both of which are similarly unavailing.
Plaintiffs first argue that Aweis's statements are admissible as a vicarious party admission under Rule 801(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. 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 Issacharoff, he was serving "multiple life sentences" in an Israeli prison for his involvement in a number of terrorist attacks.
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."
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.
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.
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,
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 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
For all of these reasons, Plaintiffs have not shown that Aweis's statements are admissible as a vicarious party admission under Rule 801(d).
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 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.
In any event, this definition of unavailability "applies only if the declarant is unable to remember the
Aweis did not testify to a lack of memory regarding the subject matter of his interview with Issacharoff, which was his 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.
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 the attack. Second, at the time Aweis made the statements, he was already serving 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 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).
In sum, even if the passage in
Next, Plaintiffs contend that Al Khatib testified under penalty of perjury at Damara'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."
Rule 801(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."
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 Israeli 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, about Bashir Nafa, Omar Ka'adan, everything is correct but whatever is related to [Damara] is incorrect. Correct?" and Al Khatib answered "Yes."
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 Damara's trial. Tolchin Decl., Ex. E (Al Khatib tr.) at 29-31. He did not follow up by asking Al Khatib specifically about his oneword 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.
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, 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.
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.
Fourth, Plaintiffs rely on Maslamani's January 18, 2001, custodial statement that Abu Halawa took credit for carrying out the attack at the National Insurance Institute.
First, as previously discussed, a statement against interest is only admissible if the declarant is "unavailable."
Plaintiffs contend that Maslamani nevertheless is "unavailable" because they did not have the opportunity to
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 selfinculpatory."
Because Maslamani is available and his testimony about the NII attack was not contrary to his penal interests, his custodial statement is not admissible under Rule 804(b)(3) and cannot be used at trial to prove that Abu Halawa killed Gilmore.
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."
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 reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case." Fed. R. Evid. 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.
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) 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."
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).
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. ¶¶ 34-64.
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."
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.
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.
Eviatar fails, however, to discuss the
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."
In sum, Eviatar's opinion is not based on any reliable "principles [or] methodology" reliably applied to the facts of the case,
"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.'"
Consequently, Eviatar's opinion is not admissible to prove that Abu Halawa killed Gilmore.
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."
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.
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 their supplemental claims, summary judgment shall be granted on these claims as well.
For the foregoing reasons, Defendants' Motion for Summary Judgment shall be
