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Eliahu v. The State of Israel

United States District Court, N.D. California, San Jose Division

March 3, 2015




Before the Court is the State of Israel's ("Defendant") motion to dismiss pro se plaintiff Eitan Eliahu's ("Plaintiff") complaint for, inter alia, lack of subject matter jurisdiction. Def.'s Mot., ECF 18. The Court received briefing from both sides and heard oral argument on Defendant's motion on January 22, 2015, after which it deemed the matter submitted. On January 26, 2015-four days after Defendant's Motion to Dismiss was submitted-Plaintiff filed a Motion for Expedited Discovery and Inspection of Evidence seeking to obtain jurisdictional discovery. Pl.'s Mot., ECF 47. Defendant opposes this latter motion. Def.'s Opp., ECF 51.

For the reasons stated herein, Defendant's Motion to Dismiss is GRANTED and Plaintiff's Motion for Expedited Discovery is DENIED.[1]


A. Procedural History

On November 11, 2014, after Defendant filed its Motion to Dismiss, Plaintiff filed a "Cross Motion to Amend Complaint" seeking leave to add additional factual allegations and claims against Defendant. Pl.'s Mot. to Amend, ECF 33. Though Defendant opposed Plaintiff's request to amend, it alternatively suggested that the Court could apply Defendant's arguments for dismissal to the amended pleading, which did not cure any of the defects identified in Defendant's motion. Def.'s Opp. to Mot. to Amend, ECF 40. At the January 22, 2015 hearing, the Court granted from the bench Plaintiff's motion for leave to amend and both parties accepted the Court's decision to apply Defendant's jurisdictional arguments to Plaintiff's amended complaint. As such, this order refers to Plaintiff's amended Complaint ("FAC") at ECF 33-1 as the operative pleading.

B. Facts Alleged

This lawsuit concerns a bitter divorce that spans two continents. Plaintiff and his ex-wife, Sigalit Vardi Eliahu ("Vardi"), were married in Israel in 1993. See FAC ¶¶ 18, 44. In 1997, Vardi filed a complaint in Israel seeking custody, child support, and asset distribution, as well as an accounting from Plaintiff's mother, Janet, and sister, Iris. See id. ¶¶ 18-19, 46. That complaint was closed shortly thereafter due to "reconciliation, " and the couple immigrated to the United States two months later. Id. ¶¶ 47-48.

In 2003, Vardi again sued for divorce, this time in the Superior Court for the County of Santa Clara. Id. ¶ 50. The case proceeded to trial, and the Superior Court entered final judgment in June 2007, finding as part of the division of marital property that "Plaintiff received $746, 742.84 as gifts from his family during the marriage, which were used to purchase the family residence" in California. Id. ¶¶ 53-54. The Superior Court rejected Vardi's contention that she was owed a portion of that sum of money, finding no evidence to support her assertion that the funds were community property. Id. ¶¶ 54-56.

In 2006, before the Superior Court tried the couples' divorce in California, Vardi reinstated her 1997 divorce complaint in Israel against Plaintiff, Janet, and Iris. Id. ¶ 51. After the Superior Court entered judgment, Vardi did not appeal the California court decision. Rather, she sought leave to amend her complaint in the Israeli court into a claim for monetary relief, alleging that Janet and Iris had been given funds from the marital property that was never returned. Id. ¶¶ 58-60. Vardi sought in damages "exactly the sum which the California Court deducted from her share of the California home, i.e. $382, 371.42." Id. ¶ 61.

Plaintiff and his mother and sister vigorously contested Vardi's claims in the Israeli court. On December 3, 2007, the Israeli Family Court "dismissed the action as against Plaintiff, based on res judicata in California" but maintained the claims against Janet and Iris because they had not been parties to the divorce proceedings in California. Id. ¶ 62. The case progressed to an appeal reviving Vardi's claim against Plaintiff, consideration of a report prepared by a court-appointed expert accountant, and Janet and Iris's challenge on jurisdictional grounds. Id. ¶¶ 63-66. The Israeli Family Court ultimately determined that Janet and Iris had consented to jurisdiction, that Vardi's claims against Plaintiff must be dismissed because of res judicata, and that Janet and Iris were liable to Vardi in the amount of $382, 371.42 plus interest since 2006. Id. ¶¶ 66-68. Plaintiff, Janet, and Iris appealed the decision to the Tel Aviv District Court, which appeal was denied. Plaintiff alleges that the judge of that court "stated on the record we are deliberating who will go after Eitan, the mother or the ex wife, '" which allegedly demonstrates that the court "clearly intended... that the property of Plaintiff in California will satisfy the judgment, wither in favor of appellants (Mother and Sister) or in favor of former Wife." Id. ¶ 75. In November 2013, the Israeli High Court of Justice denied leave to further appeal the decision of the Family Court. Id.

To satisfy the judgment, Vardi "docketed the Judgment with Israel Post Judgment Debt Collection Authority." Id. ¶ 76. The Debt Collection Authority "conducted proceedings to seize the homes of Janet and Iris so as to pay Vardi." Id. ¶ 20. In such proceedings, the Debt Collection Authority sells the home through an appointed receiver and uses the proceeds to satisfy the judgment owed. Id. ¶¶ 20, 30. In order to prevent his mother and sister's home from being sold, Plaintiff satisfied the judgment by selling his home in California and paying the Debt Collection Authority in full in April 2014. Id. ¶¶ 25, 76. In September 2014, after the inception of this lawsuit, Vardi returned to the Debt Collection Authority and secured an additional or amended judgment. See id. ¶¶ 21, 130-33. The precise reason for and amount of this amended judgment is not clear, as Plaintiff alternatively alleges that Vardi successfully obtained recalculation of "currency exchanges at rates favorable to her so as to generate a sum of $57, 142, " id. ¶ 21, and that she successfully applied to have the judgment entered with an earlier effective date so as to collect an additional $69, 000, id. ¶ 131-32.

Plaintiff alleges that the Israeli courts that adjudicated the dispute between Vardi and Plaintiff's family members acted in derogation of "international laws, and in particular, international reciprocity and respect of res judicata and collateral estoppel." Id. ¶¶ 1, 78-88. Although the "core of this complaint is Defendant's defiance of the international consensus that final judgments must be accorded international res judicata effect, " Plaintiff would also have this Court understand that Defendant's alleged misconduct occurred in accord with its "ideology of anti-male radical feminism" and its "unique stubbornness to separate itself from the rest of the nations in the area of family law, " whereby the rights of women are always favored over those of men in the family courts. Id. ¶¶ 5, 89-104. Based on the foregoing, Plaintiff asserts claims against Defendant for: expropriations by a foreign state; malicious prosecution; abuse of process; trespasses to chattel; constructive trust; and declaratory and injunctive relief.


A. Defendant's Request for Judicial Notice

Defendant requests that the Court take notice of three documents: a translated copy of the Israeli Supreme Court's final decision concerning the litigation in Israel (Exhibit A); translated excerpts from the Israeli Family Court's judgment referenced in the FAC (Exhibit B); and an April 28, 2014 order of the Santa Clara County Superior Court regarding an "Order to Show Cause" that Plaintiff filed in the divorce case between he and Vardi (Exhibit C). Def.'s Request for Judicial Notice ("RJN"), ECF 21. Plaintiff opposes judicial notice of these documents on the ground that they are not properly authenticated by declarants with personal knowledge. Plaintiff moreover contends that Exhibits A and B do not present a complete picture of the Israeli proceedings, and that Exhibit C is a court order that is presently on appeal and therefore not controlling in this case. Pl.'s Opp. 23-25.

When considering a motion to dismiss for lack of subject matter jurisdiction (as the Court is doing here), a court is not restricted to the face of the pleadings. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In fact, when the factual basis for a court's subject matter jurisdiction is challenged, there are few procedural limitations, and the court may consider conflicting evidence, affidavits, and documents, and even hold a limited evidentiary hearing. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989); see also Thornhill Pub. Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). The Court need not go so far here, as Exhibits A and B are court orders incorporated by reference into the operative pleading. See FAC ¶¶ 62-68, 75. Moreover, all three exhibits are matters of public record that may be judicially noticed. See Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank, 136 F.3d 1360, 1364 (9th Cir. 1998). As such, they may be considered even if the Court looks only at the face of the pleadings.

Plaintiff's objections are overruled because they go to the evidentiary weight that the Court should accord to these documents, not whether they are judicially noticeable. The Court notes that judicially noticeable documents will not be used "so as to supply, without formal introduction of evidence, facts essential to support a contention" in the present case. M/V Am. Queen v. San Diego Marine Const. Corp., 708 F.2d 1483, 1491 (9th Cir. 1983). With that proviso, Defendant's ...

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