[00:00:01] Speaker 00:
Case number 17-7116, Jabati Scott Shatsky, Individually and as a personal representative of the estate of Karen Shatsky et al.

[00:00:11] Speaker 00:
Appellate of the Palestine Liberation Organization et al.

[00:00:14] Speaker 00:
Mr. Singh for the appellate, Mr. Berger for the appellate.

[00:00:18] Speaker 03:
Good morning, Judge Anderson, and may it please the Court.

[00:00:22] Speaker 03:
Of course, I'm here to answer questions, and there are a lot of issues in the case.

[00:00:25] Speaker 03:
Happy to talk about any.

[00:00:26] Speaker 03:
But if I get to pick, I'd like to start with our claims for secondary liability.

[00:00:31] Speaker 02:
Okay.

[00:00:32] Speaker 02:
Let's say you don't get to pick, because we've got both two jurisdictional issues on personal jurisdiction and on non-final action.

[00:00:44] Speaker 02:
address those.

[00:00:45] Speaker 03:
Yes, Your Honor.

[00:00:46] Speaker 03:
I'll start with appellate jurisdiction.

[00:00:47] Speaker 03:
That point is we think there's clearly appellate jurisdiction because there was a final judgment in the court below.

[00:00:56] Speaker 03:
All of the claims that are remaining in this civil action were resolved against us, and we've appealed from that final judgment.

[00:01:03] Speaker 03:
The fact that

[00:01:05] Speaker 03:
Eleven years prior to that, certain other defendants were voluntarily dismissed doesn't undermine the finality of that order.

[00:01:11] Speaker 03:
And to be clear, no case has been cited suggesting otherwise.

[00:01:16] Speaker 03:
The only cases that have been cited about voluntary dismissal undermining finality involve a very specific fact pattern.

[00:01:23] Speaker 03:
That is, a non-final adverse judgment is entered against the plaintiff, and the plaintiff tries to manufacture finality by voluntarily dismissing its remaining claims subsequently to that.

[00:01:36] Speaker 03:
That didn't happen in this case.

[00:01:37] Speaker 04:
But isn't that similar to what happened here?

[00:01:39] Speaker 04:
I mean, you dismissed the Syrian defendants so that you could get a final judgment against these defendants?

[00:01:48] Speaker 03:
No, I don't think that's right, Your Honor.

[00:01:50] Speaker 03:
I think that the reason the Syrian defendants were dismissed was not to manufacture appellate jurisdiction at all.

[00:01:56] Speaker 03:
At the time, we had a favorable order that we were looking toward pursuing to a default judgment.

[00:02:02] Speaker 03:
I think what we have here in this case was a case where it was just recognized that these really are two different cases.

[00:02:09] Speaker 03:
And so the case against the Syrian defendants should be in a different case.

[00:02:12] Speaker 04:
Well, what's different about that case?

[00:02:13] Speaker 04:
It's the same transaction and occurrence, right?

[00:02:18] Speaker 03:
Some of the underlying facts are the same, but of course, Your Honor, that happens all the time.

[00:02:23] Speaker 03:
There frequently are examples where a defendant engages in a course of conduct.

[00:02:26] Speaker 03:
Imagine a pollution incident, for example.

[00:02:29] Speaker 03:
And if multiple plaintiffs who are all injured sue that defendant and those cases aren't consolidated, the finality of one of those cases would never affect the finality of the others, even if the cases had been consolidated.

[00:02:40] Speaker 04:
But you're not allowed to split claims.

[00:02:42] Speaker 04:
I mean, that's why we have Rule 19 and Rule 20, right?

[00:02:46] Speaker 04:
And as a practical matter, the other lawsuit is on hold, pending the resolution of this one, because the issues are identical.

[00:02:56] Speaker 03:
I think there is considerable overlap.

[00:02:57] Speaker 03:
I wouldn't go so far as to say that the issues are identical.

[00:03:00] Speaker 03:
I think the ways that the Syrian defendants supported the PFLP or alleged to support the PFLP

[00:03:05] Speaker 03:
are different than the ways that these defendants support the PFLP.

[00:03:09] Speaker 03:
And of course, as you see from the way the substantive litigation went, those issues may well be dispositive.

[00:03:14] Speaker 03:
Judge Leon's order is based entirely on the issue of proximate cause, which is going to be adjudicated very differently, depending on the type of support given to the PFLP by a particular defendant.

[00:03:25] Speaker 03:
So I don't think it's right that there's that kind of overlap.

[00:03:27] Speaker 03:
I will also say, and we've cited these cases in our opening brief on the question of appellate jurisdiction.

[00:03:33] Speaker 03:
This is footnote one.

[00:03:34] Speaker 03:
We've cited a couple of out-of-circuit cases that adopt the Brightline rule that I told you about earlier, which is that when you have this situation, that is where a voluntary dismissal occurs prior to the allegedly non-final order,

[00:03:50] Speaker 03:
then what you have is no problem at all as long as the second order resolves all the remaining claims in the civil action.

[00:03:57] Speaker 03:
And so I think you would have to, at a minimum, create a circuit split with those courts to rule in the appellee's favor on this question here.

[00:04:06] Speaker 01:
We think that... Were you planning to appeal the default judgment?

[00:04:10] Speaker 01:
You dismissed that you separated the Syrian defendants out because you wanted to have a final judgment.

[00:04:15] Speaker 01:
Was it one that you intended to appeal?

[00:04:17] Speaker 03:
No, we weren't going to appeal.

[00:04:18] Speaker 03:
That's what I was saying.

[00:04:19] Speaker 03:
We weren't trying to manufacture appellate jurisdiction in this case at all.

[00:04:23] Speaker 03:
We just wanted to pursue these cases on two different tracks.

[00:04:27] Speaker 03:
we think is appropriate, given the differences in the allocations.

[00:04:31] Speaker 02:
How about the personal jurisdiction?

[00:04:32] Speaker 03:
On personal jurisdiction, Your Honor, the argument that we've briefed most heavily and relied upon is waiver.

[00:04:37] Speaker 03:
In this case, after their personal jurisdiction motion was denied, the defendants willfully defaulted.

[00:04:43] Speaker 03:
And a willful default is a big deal.

[00:04:44] Speaker 03:
It can be left in place simply because it was willful.

[00:04:49] Speaker 03:
In this case, the way the defendants got out of their willful default is they told Judge Leon, we are committed to litigating this case on the merits.

[00:04:57] Speaker 04:
But how does that revoke their reliance also on personal jurisdiction defense?

[00:05:06] Speaker 03:
Your Honor, we think in this case what they said specifically to Judge Leon strongly implied that they were waiving it.

[00:05:13] Speaker 03:
And I want to make clear that this is an issue.

[00:05:15] Speaker 04:
So we're going to find waiver based on something less than expressed language?

[00:05:21] Speaker 03:
Your Honor, the language was very expressed.

[00:05:23] Speaker 03:
But I want to make clear that this Court's review of this question was for abuse of discretion.

[00:05:27] Speaker 04:
What was expressed about waiver?

[00:05:31] Speaker 04:
when they said that they were reserving their defenses.

[00:05:34] Speaker 03:
Now, so I think the standard for waiver, even for Damble, even when a defendant raises a defense in its answer, let's say, it can subsequently waive that defense if it doesn't do anything to pursue it and gives the court the strong, those legal standard is if it gives the plaintiffs the impression that it intends to litigate the merits, or a reasonable expectation that intends to litigate the merits.

[00:05:56] Speaker 04:
But they had already moved to dismiss and that had been denied.

[00:06:00] Speaker 03:
That's correct, Your Honor.

[00:06:01] Speaker 03:
And then they willfully defaulted.

[00:06:02] Speaker 03:
I do think the default makes it very different here, because what they could have done is a default judgment could have been entered against them.

[00:06:08] Speaker 03:
They could have appealed on their personal jurisdiction defense.

[00:06:12] Speaker 03:
That's not what they did in this case.

[00:06:16] Speaker 03:
Their commitment to litigate on the merits is very explicit.

[00:06:19] Speaker 03:
They have an affidavit submitted by their prime minister saying, we are committed to participating fully in the discovery process.

[00:06:26] Speaker 03:
We want to address these issues head on.

[00:06:28] Speaker 03:
We are happy to litigate and answer these claims in US courts.

[00:06:32] Speaker 03:
And just about personal jurisdiction.

[00:06:34] Speaker 04:
So what that means is then they basically wanted to do what we said they could do in practical concepts.

[00:06:43] Speaker 04:
instead of appealing the default and putting all their eggs in that basket, because if they had appealed that and lost, then game over, right?

[00:06:54] Speaker 04:
They couldn't raise their merits defenses, right?

[00:06:56] Speaker 04:
That's correct, Your Honor.

[00:06:58] Speaker 04:
So they said, well, maybe we don't want to do that.

[00:07:01] Speaker 03:
But I think they did something very different.

[00:07:02] Speaker 03:
So just to be clear about what was happening at the time, the Palestinian Authority and the PLO had a change in leadership.

[00:07:08] Speaker 03:
And that change in leadership led to them taking a different substantive position about the virtues of defending this litigation.

[00:07:15] Speaker 03:
They had a policy, basically, of defaulting on all of these cases.

[00:07:19] Speaker 03:
And then they turned around and said, no, what we really want to do is we want to clear our names.

[00:07:23] Speaker 03:
We want to confront these allegations.

[00:07:25] Speaker 03:
And I think that when they do something like that as the predicate for getting out of a default, it's very difficult to say that the district judge abused his discretion by vacating the default

[00:07:35] Speaker 03:
relying on those representations.

[00:07:37] Speaker 04:
Let's look at the whole reason we have this waiver by conduct, jurisprudence.

[00:07:43] Speaker 04:
It's so that the district court doesn't waste its resources and the parties don't waste their resources on discovery and litigating the merits when the defendant could have raised personal jurisdiction and then if the district court had agreed with that, you wouldn't have needed to go to that second step.

[00:08:05] Speaker 04:
Here, that personal jurisdiction was raised, it was rejected.

[00:08:10] Speaker 04:
So what harm was done by the defendants in this case saying, well, now we want to litigate the merits.

[00:08:19] Speaker 04:
What harm was done that is consistent with this whole reason that we have the waiver doctrine?

[00:08:25] Speaker 03:
So Your Honor, I want to be clear that waiver by conduct is really only part of our argument, but I think the better part of our argument is that they said things to the District Court to induce it to vacate the default, that we're essentially, we are committed to litigating this case on the merits.

[00:08:42] Speaker 03:
I mean, that is an all caps bold statement in their

[00:08:46] Speaker 04:
How is that any different than them just saying, we want to proceed as practical concepts said that we can proceed?

[00:08:54] Speaker 03:
Your Honor, I think if they had said something like that, if they had said, we want to preserve our appellate rights in our personal jurisdiction argument and also litigate the merits, the district court could have made a decision.

[00:09:05] Speaker 03:
Or if they wanted to preserve, their more prominent defense in their initial motion was based on foreign sovereign immunity.

[00:09:09] Speaker 03:
And they've let that one go.

[00:09:11] Speaker 03:
If they wanted to say, that's what we want to do.

[00:09:14] Speaker 04:
So they let that one go explicitly.

[00:09:16] Speaker 03:
Well, they haven't raised it in this appeal, is what I mean.

[00:09:19] Speaker 03:
I mean, they didn't say anything different about it at the time, but I think it's just been understood through the way they subsequently litigated.

[00:09:26] Speaker 03:
So, for example, they did have a one-sentence statement in their answer that said, there's no personal jurisdiction.

[00:09:32] Speaker 03:
But they never filed another motion to dismiss.

[00:09:35] Speaker 03:
They never filed a motion to dismiss based on the theory that they're asserting now at any point.

[00:09:40] Speaker 03:
They never argued this point in their summary judgment motion.

[00:09:44] Speaker 03:
They only brought it up after the Daimler decision.

[00:09:46] Speaker 03:
And I think that it's very difficult to say that when they litigated that much after having made these express representations to the district court, that they've

[00:09:56] Speaker 03:
preserved the defense in any meaningful sense, Your Honor.

[00:10:00] Speaker 03:
Or at least that it was an abuse of discretion for Judge Lee to find a defense.

[00:10:03] Speaker 04:
But the grounds for denying the personal jurisdiction motion were basically a holding that there was general jurisdiction because of the activities that the PLO undertakes in the US, both with the UN and here in Washington, right?

[00:10:20] Speaker 03:
That's by no means clear.

[00:10:21] Speaker 03:
The motion was denied in a minute order unaccompanied by any reasoning.

[00:10:24] Speaker 04:
I looked at the reasoning and the reasoning said that, right?

[00:10:30] Speaker 03:
So I believe their personal jurisdiction motion was just denied in a very brief minute.

[00:10:37] Speaker 04:
I looked at... Now the personal jurisdiction argument was later discussed.

[00:10:43] Speaker 03:
Document entry 278, page 2.

[00:10:45] Speaker 04:
Sorry.

[00:10:46] Speaker 04:
Document entry 278, page 2.

[00:10:49] Speaker 04:
If you don't have it in your appendix, I think I had to find it on the district court docket myself, but that's the rule then.

[00:10:58] Speaker 03:
Oh, so that is the motion for reconsideration that was subsequently filed later.

[00:11:04] Speaker 03:
Right.

[00:11:04] Speaker 03:
I'm talking about the initial personal jurisdiction motion filed before their default.

[00:11:09] Speaker 03:
So we're just talking about different orders.

[00:11:11] Speaker 03:
It's true that their motion for reconsideration was denied, but it was principally denied on waiver grounds.

[00:11:16] Speaker 03:
And in the course of explaining that, sure, Judge Leon talked about what he might have been thinking about earlier.

[00:11:21] Speaker 03:
But I think that that's a different

[00:11:23] Speaker 03:
thing altogether.

[00:11:24] Speaker 03:
They had every reason to continue pressing their personal jurisdiction argument in the beginning of the case if they thought they had a live defense, but they didn't.

[00:11:32] Speaker 03:
In fact, they didn't even identify it as one of their potentially meritorious defenses that justified vacating the default.

[00:11:38] Speaker 03:
I see that time is quickly going.

[00:11:39] Speaker 03:
If I could move to the substance.

[00:11:41] Speaker 02:
I would like to ask you if we find no waiver, what would you

[00:11:46] Speaker 02:
say you would seek in jurisdictional discovery?

[00:11:49] Speaker 03:
So we have preserved, so first we've preserved for further review the argument that these folks lack the ability to raise due process challenges to personal jurisdiction.

[00:11:59] Speaker 03:
We understand the circuit's precedent doesn't allow that at this time.

[00:12:03] Speaker 03:
We would seek in jurisdictional discovery potentially evidence indicating that they knew that this conduct was going to be directed at the United States, but

[00:12:12] Speaker 03:
I think that the principal arguments are really legal, not factual, about why the personal jurisdiction defense has been waived or why they can't assert it in a case like this one.

[00:12:22] Speaker 03:
And it's very clear that Congress intended for Americans who are killed in terrorist attacks to be able to sue in U.S.

[00:12:28] Speaker 03:
court.

[00:12:28] Speaker 03:
That's made clear time and time again.

[00:12:30] Speaker 03:
So really the question would be whether constitutionally Congress was allowed to do that, and we would litigate that question on further review if necessary.

[00:12:38] Speaker 01:
Can I ask you something about your secondary liability theories?

[00:12:41] Speaker 01:
That's right.

[00:12:42] Speaker 01:
And that is, do you agree that you need to have a link or a terrorist organization to press those claims?

[00:12:49] Speaker 03:
That's correct.

[00:12:50] Speaker 01:
Right.

[00:12:50] Speaker 01:
And so don't you still need the Nassau linkage that was missing to give you the linkage to the PFLP here?

[00:12:59] Speaker 01:
that was missing at primary liability.

[00:13:01] Speaker 01:
Don't you also need to have that established here?

[00:13:03] Speaker 03:
I don't believe so.

[00:13:04] Speaker 03:
I think that it is clear that the bomber, Hafez, was acting on behalf of the PFLP.

[00:13:09] Speaker 03:
I think it's clear that the defendants provided multiple forms of support to the PFLP.

[00:13:14] Speaker 03:
If you look at pages 27 and 28 of our opening brief, we have like a bulleted list

[00:13:18] Speaker 03:
where we describe all the ways that they provided support, and only some of those forms of support go to Nazal.

[00:13:24] Speaker 03:
Other support that they provided to the PFLP included paying the rent for the PFLP's office in Kalkilia, and the Kalkilia cell is the one that undertook this bombing.

[00:13:33] Speaker 03:
They provided the PFLP's second-in-command with a car and driver service in an apartment so you could attend executive committee meetings for the PLO.

[00:13:42] Speaker 03:
They made, of course, the payments to Nassau, but they also made payments after the fact to Hafez, the bomber, and we argue that those are also support for the PFLP, a conclusion that's supported by the district court decisions in Lind and Miller that we cited in our brief.

[00:13:57] Speaker 03:
So there's a multifaceted array of support that they're providing to the PFLP, even independent of Nizal.

[00:14:03] Speaker 03:
And then even if Nizal had nothing to do directly with the bombing, it's undisputed that Nizal was involved in the PFLP.

[00:14:10] Speaker 03:
He was the elected head of the Qalqiliya government and the head of the militant wing in Qalqiliya.

[00:14:16] Speaker 03:
And so even if we don't have direct evidence that he participated in the bombing, the support to Nizal is still support to the PFLP, which carried out the bombing.

[00:14:26] Speaker 03:
Now, I will also say, just on this point about Nizal, one point that I want to make really, really clear in this argument is that there are three pieces of direct evidence linking Nizal to the bombing that were excluded as hearsay.

[00:14:37] Speaker 03:
Even if you exclude those, we have what I would describe as strong circumstantial evidence that he was involved.

[00:14:44] Speaker 03:
The Kalkilia cell carried out this attack.

[00:14:46] Speaker 03:
He was the leader of the cell.

[00:14:48] Speaker 03:
It was a small cell.

[00:14:50] Speaker 03:
And it's almost impossible.

[00:14:51] Speaker 03:
that in a small cell like that, the leader, the guy who's run all of their militant operations for years and years and years, and is one of the most senior commanders in the PFLP, is going to be out of the loop when they carry out one of their most major terrorist attacks.

[00:15:07] Speaker 03:
And so even though Judge Leon quibbled with the specific evidence, we had three people say he was involved in this.

[00:15:12] Speaker 03:
Even though he quibbled with that specific evidence, even if you don't give it to us, I think we can win that argument.

[00:15:17] Speaker 03:
Now, I do think all that evidence should come in for the reasons we've given.

[00:15:20] Speaker 01:
Well, let me drop the Dabor testimony.

[00:15:21] Speaker 01:
If all he was doing was repeating the contents of either media accounts or intelligence files, which are hearsay, so if you strip that out, what do you have in his testimony?

[00:15:36] Speaker 01:
That actually did the linkage as opposed to rely on hearsay to have a linkage.

[00:15:45] Speaker 03:
The premise of the question is all he did was parrot these hearsay statements.

[00:15:49] Speaker 03:
So let me start with that one.

[00:15:51] Speaker 03:
If that is true, the testimony is nevertheless admissible because of the special character of 30 B6 witnesses.

[00:15:57] Speaker 03:
30 B6 witnesses are not only supposed to testify on the basis of their personal knowledge.

[00:16:02] Speaker 03:
They're testifying as mouthpieces for the entities that designate them.

[00:16:06] Speaker 03:
And anything they say, it is understood that they will aggregate knowledge from all of the sources that inform the entity.

[00:16:13] Speaker 01:
But the media is not one of

[00:16:15] Speaker 01:
the entities for which they were speaking.

[00:16:18] Speaker 03:
Well, he doesn't have to be speaking for the media.

[00:16:22] Speaker 01:
No, he says that's where the information came from, was not his role in this entity, but from the media.

[00:16:28] Speaker 03:
Well, that's correct, but I think that what he's saying is as the, so his role at the time was to be with the General Intelligence Service in Qalqiliya, and then he was subsequently promoted by the time of his deposition.

[00:16:39] Speaker 03:
And what he actually said is, in preparing this deposition, I relied on the information in our intelligence files

[00:16:46] Speaker 03:
And I looked at Nassal's file because I knew he was involved in the bombing.

[00:16:49] Speaker 03:
And then the questions were asked, well, how did you know?

[00:16:51] Speaker 03:
And he answered those questions by saying, well, I saw a reference to it in another one of our files, the file about Hafez, the bomber.

[00:16:57] Speaker 03:
I saw a reference to Nassal.

[00:16:58] Speaker 03:
And I also saw that the Israelis had accused him.

[00:17:00] Speaker 03:
And I saw that in the media.

[00:17:03] Speaker 03:
He's saying that's how he came to know.

[00:17:06] Speaker 03:
And that may go to the weight of his testimony.

[00:17:09] Speaker 03:
But in terms of whether it is admissible, Federal Rule of Civil Procedure 32 is very clear that the testimony of a 30 v.

[00:17:15] Speaker 03:
6 witness can be introduced against the entity that designated him for any purpose, at deposition or at trial, or at summary judgment or at trial.

[00:17:25] Speaker 03:
And the other rules of evidence that we pointed to.

[00:17:27] Speaker 01:
Just to be clear, so if he had rephrased his things or put the two lines together in response to the question,

[00:17:33] Speaker 01:
Why did you pick his file?

[00:17:38] Speaker 01:
Did you know he was involved?

[00:17:39] Speaker 01:
And he said, the media said he was.

[00:17:44] Speaker 01:
You're saying that would be admissible.

[00:17:46] Speaker 01:
Because he's a 36 witness.

[00:17:47] Speaker 03:
The statement would be admissible.

[00:17:50] Speaker 03:
It just wouldn't be very weighty.

[00:17:52] Speaker 01:
It would be admissible.

[00:17:53] Speaker 01:
It would not be hearsay, even if phrased that way.

[00:17:55] Speaker 03:
I think that's correct.

[00:17:57] Speaker 03:
If he's saying here is what

[00:17:59] Speaker 03:
I, as the representative of the entity, know, then how he comes to know it is just a question that goes to the weight.

[00:18:08] Speaker 03:
It's not a question of admissibility.

[00:18:09] Speaker 03:
And the reason for this, this is in the Sarah Lee case that we cited, is that when a party designates a 36 witness, it is saying, OK, you go and you speak for us.

[00:18:18] Speaker 03:
And there is no concern that they don't have the ability to cross-examine the underlying sources on which he's going to rely.

[00:18:24] Speaker 03:
They get to control him in his preparation of that testimony.

[00:18:28] Speaker 03:
And so I'll just be clear about this.

[00:18:30] Speaker 03:
We have cited multiple cases saying that when you have a 30B6 witness, even if what the witness does is recite hearsay, that testimony is admissible and qualms go to its wake.

[00:18:41] Speaker 03:
They have zero cases saying that when you have a 30B6 witness, the testimony is inadmissible if it is predicated on hearsay.

[00:18:48] Speaker 03:
And that has to be right, because if you think about 30B6 witnesses generally, they're always drawing in hearsay.

[00:18:53] Speaker 04:
But 30B6 witnesses are relying on things like business records

[00:18:58] Speaker 04:
And talking to people within the organization to understand how the organization operates, the procedures it uses, what documents mean, you know, all of those sorts of things.

[00:19:13] Speaker 04:
And that's what the rule is contemplating.

[00:19:16] Speaker 04:
That's not really this.

[00:19:18] Speaker 03:
I think it is.

[00:19:20] Speaker 03:
I think that he's commenting as a member of their intelligence services about the sources that they looked at.

[00:19:25] Speaker 03:
Now, he's not polluted about all of the sources.

[00:19:28] Speaker 03:
As it's clear, he looked at both the intelligence files and the media reports, and it's certainly not clear at all that all of the information came in the first instance from the media reports as opposed to any other intelligence gathering.

[00:19:40] Speaker 03:
And as I would say, all of those are very reasonable points to make to a jury about the weight of this testimony.

[00:19:46] Speaker 03:
And to be clear, we also have two other pieces of testimony that were excluded as hearsay that say the same thing, that are from folks who were first-hand involved on the PFLP side of this bombing.

[00:20:00] Speaker 03:
So I don't want to allow this focus on Dabour's testimony to derail us from the point that there is a lot of evidence linking Rydnizal to this bombing.

[00:20:08] Speaker 03:
And that evidence is not about 30 desiccations.

[00:20:10] Speaker 04:
It's admissible evidence.

[00:20:12] Speaker 04:
That was not admissible because it didn't meet the

[00:20:15] Speaker 04:
requirements for a hearsay exception, right?

[00:20:18] Speaker 03:
So the argument that was made and accepted was that those were not statements against interest.

[00:20:24] Speaker 03:
And we've explained in our briefs in considerable detail why they were.

[00:20:27] Speaker 03:
These individuals firsthand implicated themselves in this bombing.

[00:20:31] Speaker 03:
Alam Kabi did so by saying that the cell in Nablus participated jointly with Ryad Nizal.

[00:20:37] Speaker 03:
That's Kabi's own cell, implicating him in the bombing directly.

[00:20:41] Speaker 03:
Muhammad Wasif implicated himself in the bombing by saying that he was the bridge who brought the bomber, Hafez, and Nassal together, and that Nassal then authorized the bombing.

[00:20:52] Speaker 03:
That implicates me.

[00:20:53] Speaker 01:
No, so maybe the bridge statement would be an inculpatory statement, but saying that Nassal was there, too, doesn't inculpate.

[00:21:01] Speaker 03:
But to have a bridge, you have to have something on either side of it.

[00:21:04] Speaker 03:
On one side is Nassal, and the other one is Hafez.

[00:21:05] Speaker 01:
Doesn't mean they're both inculpatory, does it?

[00:21:08] Speaker 03:
I think it does.

[00:21:09] Speaker 03:
I think saying I introduced the bomber to Nizal in my capacity as Nizal's subordinate in the PFLP.

[00:21:17] Speaker 03:
is an inculpatory statement for sure.

[00:21:21] Speaker 03:
And then I guess what you're asking, Your Honor, is the subsequent statement that Nizal authorized the bombing also inculpatory?

[00:21:26] Speaker 03:
I think it certainly is, because you're saying I put in motion this chain of events that led to the bombing.

[00:21:33] Speaker 03:
You're not just saying completely unrelated to the thing that I did, Nizal organized the bombing.

[00:21:39] Speaker 03:
You're saying this was my role in the bombing that Nizal organized.

[00:21:44] Speaker 03:
And I think that that is an inculpatory statement.

[00:21:46] Speaker 03:
And I would just analogize it, Your Honor, to there are lots of cases in which people identify other members of conspiracies while identifying themselves.

[00:21:55] Speaker 03:
And those statements are frequently held to be inculpatory.

[00:21:58] Speaker 03:
They're held to be exculpatory when what it looks like the declarant is doing is trying to say, it wasn't me, it was other people.

[00:22:05] Speaker 03:
But when the declarant is saying, I did this with him, that's a different story, and that's inculpatory.

[00:22:12] Speaker 03:
And it shouldn't be a high bar for this exception to the hearsay rule to be met, because the point of the exception is they're not going to say these sorts of things unless they're likely to be true.

[00:22:23] Speaker 03:
And that's the type of statement that you would not make to Israeli authorities falsely, I don't think.

[00:22:28] Speaker 03:
He was in custody in Israel at the time.

[00:22:30] Speaker 03:
So I think that the statement is credible enough to come in.

[00:22:32] Speaker 03:
And again, if the defendants want to raise qualms about the weight of this testimony, they should do so.

[00:22:38] Speaker 03:
But they should do that in front of a jury.

[00:22:40] Speaker 03:
And also, just to preface all of this, as I said at the beginning, I don't even think we need any of this evidence to get to a jury.

[00:22:47] Speaker 03:
So really what we're talking about here is how strong our case would be at trial, not whether this court should reverse on the liability finding or not.

[00:22:57] Speaker 03:
I see I've gone considerably over.

[00:22:58] Speaker 03:
I'm happy to answer any other questions.

[00:23:00] Speaker 03:
Thank you.

[00:23:06] Speaker 05:
Good morning and may it please the court.

[00:23:08] Speaker 05:
I'll start with jurisdiction as you asked Mr. Singh to start with jurisdiction.

[00:23:12] Speaker 05:
On appellate jurisdiction, we know the two cases are the same case.

[00:23:17] Speaker 05:
Judge Leon at, this is page 281 of the joint appendix, said the two cases arise from the same tragic event, quote unquote.

[00:23:27] Speaker 05:
The whole purpose, why,

[00:23:30] Speaker 05:
Judge Leon stayed the second case was because he knew there would be efficiencies from resolving the first case.

[00:23:38] Speaker 05:
We didn't consolidate him.

[00:23:41] Speaker 01:
He didn't consolidate him.

[00:23:42] Speaker 01:
He could have, but he didn't.

[00:23:45] Speaker 05:
He didn't, and indeed he treated his judgment in this case as final, and we're prepared to meet the ball on that because we think there is no jurisdiction in any event under personal jurisdiction.

[00:23:58] Speaker 05:
We responded on this issue because the court raised it to a sponte when we submitted it.

[00:24:03] Speaker 05:
We think there is a clear case that appellate jurisdiction was manufactured here because these were... How did they manufacture appellate

[00:24:11] Speaker 01:
jurisdiction by dismissing a case 13 years before the final judgment, in order to obtain a judgment, they would have had no intention whatsoever of appealing to get a default judgment.

[00:24:23] Speaker 05:
They're incredibly prescient.

[00:24:25] Speaker 05:
Well, and I'll give them credit for that.

[00:24:28] Speaker 05:
It is that they dismissed it precisely to streamline the case so that as we sit here today,

[00:24:35] Speaker 05:
we would be having this conversation rather than being still in the district court as they knew would be the case and that's the reason why they told the district court they wanted to split the case was for efficiency purposes.

[00:24:47] Speaker 01:
There's all kinds of efficiencies.

[00:24:49] Speaker 01:
Normally efficiency is a good thing in litigation and they wanted to get a default judgment which of course they would not appeal and get that case cleaned up and over and done with.

[00:25:00] Speaker 01:
I don't see anything wrong about that.

[00:25:04] Speaker 05:
I don't think appeal was the consequence.

[00:25:07] Speaker 05:
The reason why they wanted, what they wanted was finality.

[00:25:11] Speaker 05:
They wanted finality in a default judgment because that's how they would begin collections efforts.

[00:25:15] Speaker 01:
So whether they proposed to appeal or not... I know, but blue is all about manufacturing appellate jurisdiction.

[00:25:20] Speaker 01:
That wasn't what was going on here.

[00:25:22] Speaker 01:
You would agree with that.

[00:25:23] Speaker 05:
I do, but it comes by way of manufacturing finality.

[00:25:27] Speaker 05:
The whole purpose, as Blu identifies, is not to use self-help methods to achieve what would otherwise be something they could have asked the court to do.

[00:25:37] Speaker 01:
Right, so this is not a manufacturing appellate jurisdiction.

[00:25:39] Speaker 01:
Your objection is just manufacturing.

[00:25:41] Speaker 05:
No, I don't agree.

[00:25:42] Speaker 01:
The final jurisdiction?

[00:25:43] Speaker 05:
No, what I'm saying is they manufactured appellate jurisdiction rather than going through the district court, which they should have done, and asked for a certification of that part of the case.

[00:25:54] Speaker 01:
In this case, they were going to ask for a 54B certification.

[00:25:56] Speaker 01:
There were no claims and no parties left in this case.

[00:25:59] Speaker 05:
And what I'm saying is that's how they should have done so in order to do it.

[00:26:02] Speaker 01:
In this case, after summary judgment was entered, they should have asked for

[00:26:06] Speaker 01:
54B from this district court?

[00:26:08] Speaker 05:
I think we all behaved as though the case were final because that was the cue that the district court gave us.

[00:26:13] Speaker 05:
But when it's telling that at no point did they seek a, you know, remand for an indicative ruling on a certification issue because obviously they believe they haven't manufactured palate jurisdiction.

[00:26:25] Speaker 05:
We believe the case has been split.

[00:26:27] Speaker 05:
The district judge thinks the case has been split.

[00:26:29] Speaker 05:
But I'll grant you, the district court also thinks that this case is over.

[00:26:33] Speaker 05:
And I'm content with that.

[00:26:34] Speaker 05:
Our goal was to answer the court's question here.

[00:26:36] Speaker 05:
We think it is far from a clear case that appellate jurisdiction wasn't manufactured here.

[00:26:42] Speaker 05:
But the reality is there's no jurisdiction in any event, even if there's appellate jurisdiction.

[00:26:48] Speaker 05:
So it's not my role to concede appellate jurisdiction.

[00:26:52] Speaker 05:
Obviously, my role was to answer the court's question on whether or not we think they manufactured it.

[00:26:57] Speaker 05:
We think that they did.

[00:26:58] Speaker 05:
But regardless, we think the court does not proceed beyond the issue of jurisdiction.

[00:27:03] Speaker 05:
because of the personal jurisdiction issue.

[00:27:06] Speaker 01:
And I'll sort of put myself... You didn't cross the field on jurisdiction.

[00:27:09] Speaker 05:
Nor did we need to.

[00:27:11] Speaker 01:
This is exactly... Oh, you absolutely needed to.

[00:27:14] Speaker 05:
I think under both the implicit ruling in the Gilmore decision of this Court, which presented exactly the same procedural scenario, the explicit holding in this Court's decision in Jones v. Bernanke, which is 557, F3, 670 at 676, says as follows.

[00:27:35] Speaker 01:
Sorry, was that in your brief?

[00:27:38] Speaker 05:
But no, Your Honor, I'm responding to a point that was made in the plaintiff's reply.

[00:27:41] Speaker 05:
And so I am responding to that now in an oral argument and in terms of an issue they raised by subsequent debriefing 28 J letters, whereas Your Honor knows we're constrained to 350 words.

[00:27:52] Speaker 05:
We gave Your Honor our best authority on that.

[00:27:54] Speaker 05:
But we have additional authority that I think answers this question.

[00:27:58] Speaker 05:
Jones versus Bernanke says, a party that prevails entirely in the district court needn't cross-appeal an adverse interlocutory order.

[00:28:06] Speaker 05:
who urged the rejected argument as an alternative ground for affirming the final judgment.

[00:28:11] Speaker 01:
This is an alternative ground for affirmance.

[00:28:13] Speaker 01:
That's the problem.

[00:28:14] Speaker 01:
We've got a lot of cases that say

[00:28:16] Speaker 01:
You can argue all kinds of alternative grounds for affirmance, including ones where you would disagree with the district court, but you don't want affirmance.

[00:28:22] Speaker 01:
We do want affirmance.

[00:28:23] Speaker 01:
You want vacatur.

[00:28:24] Speaker 01:
No, no, no.

[00:28:24] Speaker 01:
Personal jurisdiction results in vacatur.

[00:28:26] Speaker 01:
That's well established.

[00:28:27] Speaker 05:
No, I don't think so, Your Honor.

[00:28:28] Speaker 05:
I respectfully disagree.

[00:28:29] Speaker 05:
I think it is possible to affirm alternatively with a judgment that will dismissal it as without prejudice on the basis of jurisdiction.

[00:28:37] Speaker 05:
This is precisely what the court tells us in the Gilmore decision, which also involved my clients.

[00:28:42] Speaker 05:
that jurisdiction must be considered first.

[00:28:45] Speaker 05:
There was no cross-appeal in Gilmore.

[00:28:47] Speaker 05:
This is what the Kaplan versus Central Bank of Iran case, decided by this court a year and a half, two years ago, tells us, which is, jurisdiction, if it has been preserved in the district court, must be addressed first, because without it, the court has no power to proceed.

[00:29:02] Speaker 05:
It is no different in that respect.

[00:29:04] Speaker 05:
Once preserved in the district court, then appellate jurisdiction.

[00:29:08] Speaker 05:
The court cannot proceed.

[00:29:09] Speaker 01:
You've preserved the court.

[00:29:10] Speaker 01:
We had cases that said,

[00:29:12] Speaker 01:
Personal jurisdiction has to be raised by – sorry.

[00:29:17] Speaker 01:
Personal jurisdiction is not an argument for affirmance because it would result in vacatur.

[00:29:23] Speaker 01:
Then on what basis would we have that issue?

[00:29:25] Speaker 01:
And because you didn't cross appeal, nor did you show exceptional circumstances, which our courts have required when there's a failure to cross appeal, then on what possible basis would we entertain this argument?

[00:29:37] Speaker 05:
Because this is precisely the scenario, as I said, is when we raised jurisdiction and the court acknowledged its obligation to address it first in Gilmore.

[00:29:45] Speaker 05:
The entire purpose of cases like Bernanke is to say, to borrow a page from your book Judge Millett, that efficiency means do not burden the court with a fourth brief with a cross-appeal argument that could otherwise be raised as they were here in the red brief and the gray brief,

[00:30:03] Speaker 05:
There's no question that we understood from Gilmore and from cases like Jones that jurisdiction was available as an alternative ground for affirmance, albeit on its missile without prejudice.

[00:30:17] Speaker 05:
We followed the Gilmore model in doing that here, and we have circuit precedent that's telling us please don't waste our time with a pointless cross-appeal when it's an interlocutory order below and you prevailed entirely on the final judgment.

[00:30:29] Speaker 05:
I think that if efficiency is the goal here, much as the court's questions about appellate jurisdiction, then we find ourselves in exactly the same position when it comes to personal jurisdiction.

[00:30:42] Speaker 05:
We raise personal jurisdiction so often below, it hardly could come as a surprise indeed in briefing in the district court.

[00:30:50] Speaker 05:
we began to get when we moved for reconsideration repeatedly, responses both from the district court and from the plaintiffs that enough already.

[00:30:58] Speaker 05:
You've raised this multiple times.

[00:30:59] Speaker 05:
We've heard plenty.

[00:31:00] Speaker 05:
For the court to overlook its lack of power here because of the absence of personal jurisdiction over the defendant on what is purely a debate between some cases like Jones versus Bernanke, the implicit guidance of Gilmore, and the cases that Your Honor has in mind,

[00:31:17] Speaker 05:
would be to force these defendants to forfeit against their will a constitutional defense that they've fully preserved.

[00:31:25] Speaker 05:
When did you move for reconsideration before 2014?

[00:31:29] Speaker 05:
We didn't move for reconsideration before 2014, nor did we have to, because once, as Your Honor pointed to practical concepts, I embraced that case fully.

[00:31:37] Speaker 05:
What that case says is, when you're done, you're done.

[00:31:40] Speaker 05:
And indeed, Jones, the same Jones versus Bernanke case that I cited, says not only are you done,

[00:31:46] Speaker 05:
But you don't have to raise it again on summary judgment.

[00:31:48] Speaker 05:
So your omission of a previously raised and lost defense in your summary judgment motion, another one of their arguments, doesn't forfeit it either.

[00:31:57] Speaker 05:
Well, why shouldn't you have to raise it after a good year in 2011?

[00:32:01] Speaker 05:
Well, Your Honor, I think this court answered that question several months ago in Clemen.

[00:32:06] Speaker 05:
I know that in Gilmore there was some debate on what was the touchstone for the change in the law in general jurisdiction.

[00:32:14] Speaker 05:
Kleeman resolved that issue for this circuit and said, okay, sure, there is some similarities between Goodyear and Daimler, but Daimler is the touchstone.

[00:32:23] Speaker 05:
And that's resolved now as a matter of circuit law, that Daimler is the right time.

[00:32:28] Speaker 05:
And within three weeks of Daimler, we moved for reconsideration on jurisdiction.

[00:32:31] Speaker 05:
It fits the Kleeman model precisely.

[00:32:35] Speaker 01:
for obvious reason, our decision in Livnet as very important to your personal jurisdiction argument.

[00:32:43] Speaker 01:
When did you tell the district court, alert the district court about our decision in Livnet, which was three months before summary judgment?

[00:32:51] Speaker 05:
Your Honor, I know we did.

[00:32:53] Speaker 05:
I don't know.

[00:32:54] Speaker 01:
I couldn't find it anywhere.

[00:32:56] Speaker 01:
You can tell me where and how.

[00:32:57] Speaker 05:
I'm sure it's in both our motions for reconsideration and in our summary judgment briefing.

[00:33:04] Speaker 05:
Your Honor, we didn't put in, in accordance with circuit law, the entirety of our

[00:33:10] Speaker 05:
our briefing, but even if we hadn't, the district court, when it decided its summary judgment motion, our summary judgment motion fully reviewed the law on summary on personal jurisdiction.

[00:33:26] Speaker 05:
And here's an important part that relates to both what

[00:33:29] Speaker 05:
Judge Henderson asked Mr. Singh about jurisdictional discovery, and it relates to the arguments that have been forfeited before this court, which is, plaintiffs have not preserved for review any merits argument on jurisdiction.

[00:33:43] Speaker 05:
What they have done is they said we are arguing waiver, and if we're wrong about waiver, we reserve two alternative arguments.

[00:33:50] Speaker 05:
One, that the defendants are not entitled to be processed, live not put to the end to that reserved argument.

[00:33:57] Speaker 05:
Their other reserved argument, they said, is that the Anti-Terrorism Clarification Act provides an alternative basis for jurisdiction.

[00:34:05] Speaker 05:
Kleeman disposed of that argument as well as a matter of circuit law.

[00:34:09] Speaker 05:
They have not preserved, nor did they make in their brief, any argument that says, oh, Livnott doesn't apply or Kleeman doesn't apply.

[00:34:17] Speaker 05:
And indeed,

[00:34:19] Speaker 05:
that what they have not done is challenged in any way a connection between the underlying events in this form.

[00:34:26] Speaker 05:
It all turns on waiver and it turns on two other pure issues of law that have been disposed of.

[00:34:32] Speaker 05:
And there is no question that the district court committed three legal errors, three fundamental errors in legal rules that by definition

[00:34:41] Speaker 05:
equate with an abuse of discretion.

[00:34:43] Speaker 05:
I know Mr. Singh was anxious to tell you that it's abuse of discretion review here on the waiver.

[00:34:48] Speaker 05:
But here are the three separate applications of erroneous legal principles the district court engaged in in finding waivers.

[00:34:56] Speaker 05:
Number one, submission to jurisdiction

[00:35:00] Speaker 05:
by making a promise to litigate on the merits.

[00:35:02] Speaker 05:
But how can we do otherwise?

[00:35:03] Speaker 05:
Rule 55 requires that we say we have a meritorious defense.

[00:35:08] Speaker 05:
That is what we are obliged to do.

[00:35:09] Speaker 05:
But further, it was not something where we ever said we would waive our jurisdictional defense.

[00:35:16] Speaker 05:
At the Joint Appendix, page 183, the defendants said in their motion to vacate default, we will no longer rely exclusively on jurisdiction.

[00:35:25] Speaker 05:
Simultaneously, they submitted a proposed answer that preserved the jurisdictional defense.

[00:35:31] Speaker 05:
And Mr. Singh said to you, well, you know, the question is reasonable expectations of the plaintiffs.

[00:35:36] Speaker 05:
That is not the standard.

[00:35:37] Speaker 05:
It has never been adopted in the circuit.

[00:35:39] Speaker 05:
That is not the standard.

[00:35:40] Speaker 01:
The question is whether... No, the test is whether you communicated to the court and parties' consent, and you didn't raise it in your summary judgment motion.

[00:35:48] Speaker 01:
I could find no filing anywhere where you told the district court about our decision in Lib-Net.

[00:35:54] Speaker 01:
I could find nothing.

[00:35:55] Speaker 01:
You told them about the district court in Litnap, but you never told them about ours, which is now one of your most central arguments on appeal.

[00:36:02] Speaker 01:
And then you didn't cross-appeal.

[00:36:04] Speaker 01:
And so why don't those things, combined with the other things the district court was worried about, suggest that you have waived personal jurisdiction, either in the district court or

[00:36:15] Speaker 01:
on appeal, by not cross-appealing, by not demonstrating exceptional circumstances, and by never having told the district court about our decision in Livnet.

[00:36:23] Speaker 05:
Well, I'll take the last bit first.

[00:36:26] Speaker 05:
Certainly, district courts are presumed to know the law of this circuit, but more importantly, in context.

[00:36:31] Speaker 01:
That's not the point.

[00:36:32] Speaker 01:
The point is whether you made clear to the district court that you were continuing to press the personal jurisdiction objection.

[00:36:38] Speaker 01:
The district court

[00:36:39] Speaker 01:
didn't think you were and then wasn't told it wasn't raised again in summary judgment.

[00:36:45] Speaker 01:
It's easy enough to say we know you've already rejected this, but here we go.

[00:36:49] Speaker 05:
So I'll break it down in terms of moments in time.

[00:36:52] Speaker 05:
Number one, the 2003 motion to dismiss raised personal jurisdiction and the plaintiffs litigated on the merits.

[00:36:58] Speaker 05:
The judge in granting the motion to vacate the default expressly acknowledged that he had resolved the motion to dismiss on grounds of personal jurisdiction.

[00:37:09] Speaker 05:
When the motion to vacate was made, jurisdiction was preserved.

[00:37:14] Speaker 05:
When summary judgment was sought, you can find this in the district court record at docket entry 247-2 at pages three to four.

[00:37:26] Speaker 05:
It's partially reproduced.

[00:37:27] Speaker 01:
I'm sorry.

[00:37:28] Speaker 01:
Is that a JA site you have for me?

[00:37:30] Speaker 05:
It's partially reproduced at 272, but the entirety of pages 3 and 4 is a docket entry 247-2 of 3 to 4.

[00:37:39] Speaker 05:
The summary judgment motion that the defendants made stated their understanding that the jurisdictional defense had been resolved by their motion to dismiss.

[00:37:50] Speaker 05:
So in any event, while summary judgment was pending,

[00:37:55] Speaker 05:
Within months of having made the motion, defendants made their first motion for reconsideration.

[00:38:00] Speaker 05:
Summary judgment hadn't been resolved.

[00:38:03] Speaker 05:
That effectively supplemented the summary judgment motion.

[00:38:06] Speaker 05:
Your Honor, I'm moving forward in time to cover all of the points here.

[00:38:09] Speaker 05:
Thereafter, once we move for reconsideration, the District Court at no time

[00:38:17] Speaker 05:
examined or expressed interest in the merits theory on jurisdiction and looked exclusively at the question of waiver.

[00:38:25] Speaker 05:
We met the ball on waiver.

[00:38:27] Speaker 05:
The failure to submit what would be the equivalent of a supplement to a motion for reconsideration, if indeed we did that, should not waive under these circumstances a personal jurisdiction defense, particularly

[00:38:40] Speaker 05:
when the entire interval of time between when we moved to vacate the default, and that was granted, and when we move for reconsideration was spent conducting merits discovery.

[00:38:52] Speaker 05:
That is exactly the same scenario as in Cleveland.

[00:38:55] Speaker 05:
Mostly plaintiffs do not regard themselves as prejudiced when what they do is spend their time doing merits discoveries for what they want.

[00:39:02] Speaker 05:
So neither the district court nor the plaintiffs have ever identified a single step that they had to take

[00:39:08] Speaker 05:
before reconsideration was made that was a needless step that would not have been taken in the ordinary course.

[00:39:14] Speaker 05:
Under these circumstances, the failure, if that's what it was, Your Honor, to submit in essence a notice of supplemental authority cannot stand against what are the clear direction of Jones v. Bernanke and the implicit direction of Gilmore that we need not cross-appeal on jurisdiction in order to preserve it as an alternative ground for affirmance.

[00:39:34] Speaker 01:
Okay, so our decision in span said you need to cross-appeal

[00:39:39] Speaker 01:
to preserve personal jurisdiction.

[00:39:41] Speaker 01:
If you don't, you have to demonstrate exceptional circumstances.

[00:39:45] Speaker 01:
Do you have any exceptional circumstances for not having cross-appealed?

[00:39:48] Speaker 05:
Well, number one, I don't think we had to as a matter of law.

[00:39:51] Speaker 01:
I'm just telling you what our case said, so just please answer.

[00:39:53] Speaker 01:
Do you have exceptional circumstances?

[00:39:55] Speaker 05:
I appreciate, Your Honor, that that's the summary of span, and you've heard my point on what the law is.

[00:40:00] Speaker 05:
The answer is yes.

[00:40:01] Speaker 05:
I have given you what I think is a list of a half a dozen exceptional circumstances where these defendants have gone out of their way to preserve personal jurisdiction as it pertains.

[00:40:12] Speaker 01:
No, why you didn't...exceptional is...let me be clear.

[00:40:15] Speaker 01:
What exceptional circumstances did you have that prevented you from filing a cross-appeal?

[00:40:20] Speaker 05:
We didn't believe we needed exceptional circumstances because we did what we did in Gilmore, where we raised, after a summary judgment, personal jurisdiction as an alternative ground for affirmance, and the court, in its opinion, acknowledged that that was the court's obligation, consistent with the capital case.

[00:40:38] Speaker 01:
You said you hadn't preserved personal jurisdiction in that case for other reasons, and so

[00:40:43] Speaker 01:
nowhere said you don't have to do it or that our decision in span is overruled.

[00:40:56] Speaker 01:
It sounds like you don't have exceptional circumstances.

[00:40:59] Speaker 01:
You just have a difference.

[00:41:00] Speaker 05:
I believe we do.

[00:41:01] Speaker 05:
I don't know what else I could say.

[00:41:02] Speaker 05:
I'll start my list with the fact that we believed having followed the model that worked in Gilmore for raising after summary judgment in favor of our clients in precisely the same scenario where a waiver holding was made and we briefed jurisdiction as an alternative grounds.

[00:41:19] Speaker 05:
And I might add,

[00:41:20] Speaker 05:
The plaintiffs did not even challenge it in their reply brief.

[00:41:22] Speaker 05:
Belatedly, in a 28-J letter, which is not an appropriate way to raise this issue for the court, it was the first time that they raised after full briefing that we thought there should be a cross-appeal.

[00:41:34] Speaker 05:
So therefore, it's not even preserved by them as an argument in their brief because the law is also clear in the circuit that a 28-J letter is not a proper vehicle for raising a numeric argument omitted from the briefs.

[00:41:48] Speaker 05:
The array of circumstances here realistically favors the defendants of having preserved this argument throughout the appeal and stacked against those of the plaintiffs.

[00:41:57] Speaker 05:
And that is why we think it would be depriving these defendants against their will and against the record of their constitutional right to due process personal jurisdiction defense to find that it hasn't been preserved simply because we did hear what we did in Gilmore and simply because every court, including Kaplan and other anti-terrorists in that case,

[00:42:17] Speaker 05:
said the court's first obligation is to examine its jurisdiction over the pardon, personal jurisdiction in that case, when that issue has been preserved below, we've preserved it below.

[00:42:29] Speaker 05:
I'm happy to address any other questions the pardon may have, but I see I'm over my time as well.

[00:42:33] Speaker 05:
Thank you.

[00:42:33] Speaker 05:
Thank you, Your Honor.

[00:42:35] Speaker 02:
All right.

[00:42:36] Speaker 02:
Why don't you take two minutes?

[00:42:41] Speaker 03:
I'd like to just say two quick things about personal jurisdiction and then briefly on some of the stuff we haven't talked about.

[00:42:47] Speaker 03:
On personal jurisdiction, first there's the question of the Kleeman case and I think the big distinction between this case and Kleeman is that in Kleeman, the case came out the other way in the district court and this court reviewing for abuse of discretion was very deferential to the district court's finding that there had been no waiver.

[00:43:02] Speaker 03:
The same reasoning dictates, of course, the opposite result in this case.

[00:43:07] Speaker 03:
And if you look at the language of the claimant opinion, it's very clear that the standard of review plays a huge role.

[00:43:12] Speaker 03:
And then, this is the second point I would make, if you look at our reply brief pages seven through nine, we quote the language that they gave to the district court.

[00:43:21] Speaker 03:
And then I commend you to pages 293 through 295 of the Joint Appendix, which is where Judge Leon, in discussing the other side's motion for reconsideration, refers back to these representations that they made.

[00:43:35] Speaker 03:
And he said, look, I clearly understood you to mean that you are not

[00:43:40] Speaker 03:
taking this case forward on jurisdictional grounds, I granted you the extraordinary relief of vacating your willful default precisely because you told me you were committed to the merits.

[00:43:50] Speaker 03:
And so I think that here the standard of review does considerable work for us.

[00:43:53] Speaker 04:
If we think that he's just wrong as a matter of law based on practical concepts by taking that interpretation of the facts, then that's an abuse of discretion, right?

[00:44:04] Speaker 03:
I don't see how he could be wrong as a matter of law for taking that interpretation of the facts.

[00:44:10] Speaker 03:
I think there's no law in this circuit that says a defendant can't, by saying something to a district court, waive personal jurisdiction.

[00:44:19] Speaker 03:
And I think what he's conveying is his clear understanding of what they said.

[00:44:22] Speaker 03:
And I think once you read what they said, it's crystal clear.

[00:44:25] Speaker 03:
The only sentence that they point you to is this one about, you know, we're not going to rely exclusively on jurisdictional defenses.

[00:44:31] Speaker 03:
But in our reply brief, we point out that wasn't even a statement about this case.

[00:44:35] Speaker 03:
That was a statement about terrorism cases generally.

[00:44:39] Speaker 03:
For this case, they were crystal clear that they only wanted to litigate the merits, really.

[00:44:44] Speaker 03:
And I think that, or at least it was not an abuse of discretion to find that that's what they were saying to Judge Leon to cause him to grant extraordinary relief.

[00:44:51] Speaker 03:
The only last thing I want to say, if you'll allow me, is that there are a couple of issues that were decided by mood order.

[00:44:58] Speaker 02:
Is it reply?

[00:45:00] Speaker 02:
Are you replying to something?

[00:45:02] Speaker 03:
No, it isn't.

[00:45:03] Speaker 03:
And so we would urge you to please turn.

[00:45:06] Speaker 02:
Thank you.