18-1035-cv 

Mohamad v. Rajoub 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY 

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN 

CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE 

EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 

“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON 

ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the 

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 

16th day of April, two thousand nineteen. 

 

PRESENT: ROBERT D. SACK, 

PETER W. HALL, 

CHRISTOPHER F. DRONEY, 

 Circuit Judges.

 

_____________________________________ 

Shahid Mohamad, Said Mohamad, Shahed Azzam Rahim, 

Mashud Rahim, Asid Mohamad, as representative of the Estate 

of Azzam Rahim, Asid Mohamad, Asia Rahim, 

Plaintiffs-Appellants, 

 

v. No. 18-1035-cv 

Jibril Rajoub, 

    Defendant-Appellee.    

_____________________________________ 

For Appellants: MEIR KATZ (Robert J. Tolchin, on the brief), The 

Berkman Law Office, LLC, Brooklyn, NY 

For Appellee: JOHN A. BURLINGAME, (Mitchell R. Berger, Aaron 

W. Knights, on the brief), Squire Patton Boggs (US) 

LLP, Washington, D.C.; Gassan A. Baloul, Squire 

Patton Boggs (US) LLP, New York, NY 
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 Appeal from a judgment of the United States District Court for the Southern District of 

New York (Preska, J.). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED.

 Plaintiffs-Appellants Shahid Mohamad, Said Mohamad, Shahed Azzam Rahim, Mashud 

Rahim, Asid Mohamad, as representative of the Estate of Azzam Rahim, Asid Mohamad, and Asia 

Rahim appeal the district court’s March 12, 2018, judgment and accompanying memorandum and 

order dismissing their claims against Defendant-Appellee Jibril Rajoub pursuant to Fed. R. Civ. P. 

12(b)(6). 

Plaintiffs challenge the district court’s conclusion that the doctrine of res judicata bars the 

present action, based on Plaintiffs’ assertion of virtually the same claims against Rajoub—

including claims under the Alien Tort Statute, 28 U.S.C. § 1350, and the Torture Victim Protection 

Act, 106 Stat. 73, note following 28 U.S.C. § 1350—in an earlier action filed in 2005 in the United 

States District Court for the Southern District of New York, Asid Mohamad, et al. v. Jibril Rajoub, 

et al., Case No. 1:05-cv-08335 (LAP) (S.D.N.Y. 2005) (“Mohamad I”). That 2005 action was 

transferred to the United States District Court for the District of Columbia, Asid Mohamad, et al. 

v. Jibril Rajoub, et al., Case No. 08-01800 (RJL) (D.D.C. 2008), where Plaintiffs eventually 

voluntarily dismissed their claims against Rajoub with prejudice. As in Mohamad I, Plaintiffs 

allege in the instant suit that Rajoub, as head of the Palestinian Preventive Security Force and a 

high-ranking official with the Palestinian Authority, was responsible for the brutal torture and 

murder of their father and husband, Azzam Rahim, during Rahim’s 1995 visit to the West Bank. 
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We assume the parties’ familiarity with the underlying facts, the procedural history of the case, 

and the issues on appeal. 

We review de novo the district court’s grant of a Rule 12(b)(6) motion to dismiss, Ricci v. 

Teamsters Union Local 456, 781 F.3d 25, 26 (2d Cir. 2015) (per curiam), including a dismissal on 

res judicata grounds, Soules v. Conn., Dep’t of Emergency Servs. & Pub. Prot., 882 F.3d 52, 55 

(2d Cir. 2018). “The doctrine of res judicata, or claim preclusion, holds that ‘a final judgment 

on the merits of an action precludes the parties or their privies from relitigating issues that were or 

could have been raised in that action.’” Brown Media Corp. v. K&L Gates, LLP, 854 F.3d 150, 

157 (2d Cir. 2017) (quoting Monahan v. N.Y.C. Dep’t of Corr., 214 F.3d 275, 284 (2d Cir. 2000)). 

Res judicata bars re-litigation if “1) the prior decision was a final judgment on the merits, 2) the 

litigants were the same parties, 3) the prior court was of competent jurisdiction, and 4) the causes 

of action were the same.” Id. (internal quotation marks omitted). Plaintiffs acknowledge that 

the second and fourth requirements are satisfied but contest application of the first and third. 

Because Plaintiffs voluntarily dismissed their claims against Rajoub in Mohamad I with 

prejudice and because “[a] voluntary dismissal with prejudice is an adjudication on the merits for 

purposes of res judicata,” Chase Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d 343, 345 (2d 

Cir. 1995), we easily conclude that the first factor is met, see also Carter v. Inc. Vill. of Ocean 

Beach, 759 F.3d 159, 165–66 (2d Cir. 2014). Plaintiffs attempt to attack the validity of their 

earlier dismissal on the technical ground that Fed. R. Civ. P. 41(a)(1)(A)(i) did not permit them to 

dismiss their claims against some but not all defendants in Mohamad I, citing, inter alia, a recent 

Eleventh Circuit decision in Perry v. Schumacher Grp. of La., 891 F.3d 954 (11th Cir. 2018). 

Plaintiffs concede that Perry did not establish new legal principles and that they did not raise this 
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argument before the district court. Indeed, Plaintiffs took the opposite position in their brief 

opposing Defendant’s motion to dismiss in the district court. The argument is therefore forfeited 

on appeal. New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 662 (2d Cir. 2015). 

 Plaintiffs also argue that the third res judicata requirement was not met because the court 

in Mohamad I lacked personal jurisdiction over Rajoub, who is not domiciled in the United States 

and who was never served with process in the earlier action. This Court has recognized, however, 

that “a prior decision remains a bar to a future action even though it now appears that the court had 

no jurisdiction in the prior action.” Samuels v. N. Telecom, Inc., 942 F.2d 834, 837 (2d Cir. 1991) 

(quoting Lambert v. Conrad, 536 F.2d 1183, 1185 (7th Cir. 1976)). Notwithstanding Plaintiffs’ 

creative arguments regarding the district court’s alleged lack of authority to issue a final judgment 

in Mohamad I, it was Plaintiffs’ own voluntary dismissal, that “took on heightened significance 

when” they decided “to dismiss with prejudice,” id., which precludes any subsequent suit based 

on the same causes of action. We are sympathetic to the fact that Plaintiffs did not anticipate 

relitigating claims against a defendant who, to their knowledge, did not appear in the United States 

until the recent events that prompted Plaintiffs to serve Rajoub with process and initiate the instant 

case. Res judicata, however, “may not be avoided on the basis of . . . an ill-considered decision 

to enter into an all-encompassing stipulation of withdrawal with prejudice,” or, as here, a voluntary 

dismissal with prejudice. Id. 

We also note that Plaintiffs’ request that we decline to apply res judicata on equitable 

grounds is expressly foreclosed by well-established precedent. See Federated Dep’t Stores, Inc. 

v. Moitie, 452 U.S. 394, 401 (1981), abrogated on other grounds by Rivet v. Regions Bank of La., 

522 U.S. 470 (1988) (“The doctrine of res judicata serves vital public interests beyond any 
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individual judge’s ad hoc determination of the equities in a particular case. There is simply no 

principle of law or equity which sanctions the rejection by a federal court of the salutary principle 

of res judicata.”) (internal quotation marks omitted). 

We have considered Plaintiffs-Appellants’ remaining arguments and find them to be 

without merit. Because we affirm the district court’s dismissal of the complaint, we decline to 

reach Rajoub’s argument that dismissal was proper on the alternate basis that the district court 

could not lawfully exercise personal jurisdiction over him. We hereby AFFIRM the judgment 

of the district court. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk of Court