Sikhs for Justice v. Nath

• Decision Date: 07 March 2012
• Docket Number: No. 10 Civ. 2940.,10 Civ. 2940.
• Citation: 850 F.Supp.2d 435
• Parties: SIKHS FOR JUSTICE, on behalf of deceased and injured members of the Sikh community, et al., Plaintiffs, v. Kamal NATH, and Indian National Congress Party, Defendants, and Indian Legal Heritage, Intervenor.
• Court: U.S. District Court — Southern District of New York

850 F.Supp.2d 435

SIKHS FOR JUSTICE, on behalf of deceased and injured members of the Sikh community, et al., Plaintiffs,

v. Kamal NATH, and Indian National Congress Party, Defendants,andIndian Legal Heritage, Intervenor.

No. 10 Civ. 2940.

United States District Court,

S.D. New York.

March 7, 2012.

Michael F. Fitzgerald, Esq., New York, NY, for Plaintiffs.

Pillsbury Winthrop Shaw Pittman LLP, by: David M. Lindley, Esq., Ranah L. Esmaili, Esq., Anne C. Lefever, Esq., Tameka M. Beckford–Young, Esq., New York, NY, for Defendant Kamal Nath.

OPINION

SWEET, District Judge.

Defendant Kamal Nath (“Nath” or the “Defendant”) has moved pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2) and 12(b)(5) to dismiss the First Amended Complaint of plaintiffs Sikhs for Justice and seven individuals (collectively, the “Plaintiffs”) alleging violations of the Alien Tort Claims Act (“ATCA”) and the Torture Victim Protection Act (“TVPA”).

Upon the facts and conclusions set forth below, the motion is granted for failure to affect service and lack of personal jurisdiction.

I. Prior Proceedings

The original Complaint in this action was filed on April 6, 2010. It alleged nine claims against Nath for violations of international law under the ATCA and TVPA and under state law for wrongful death, negligence, public nuisance, battery, intentional infliction of emotional distress and negligent infliction of emotional distress. (Dkt. No. 1.)

On March 1, 2011, Plaintiffs filed an Amended Complaint adding plaintiffs and defendant Congress Party (the “Congress Party”) and dropping all state law claims. (Dkt. No. 16.) As to Defendant Nath, Plaintiffs allege claims of genocide, rape, torture, summary executions, extrajudicial killings, and crimes against humanity under the ATCA (Am. Compl. ¶¶ 160–65); torture and extrajudicial killings under the TVPA (Am. Compl. ¶¶ 166–73); and aiding and abetting the commission of those violations under the ATCA and TVPA (Am. Compl. ¶¶ 174–79).

With regard to the Congress Party, Plaintiffs allege claims under the ATCA for genocide, rape, torture, summary executions, and extrajudicial killings as well as aiding and abetting the commission and conspiracy to commit those violations under both the ATCA and TVPA. (Am. Compl. ¶¶ 146–59.) Plaintiffs allege that the Congress Party was the ruling party of India in October and November of 1984, “virtually had complete control over the governance of India” at that time, and “[a]s the ruling political party of India nationally and locally, [the Congress Party] was able to pursue a policy of genocide against the Sikhs under color of state law and with the apparent or actual authority of the Government of India.” (Am. Compl. ¶¶ 28–30, 108.)

The Amended Complaint alleges that the individually-named Plaintiffs and the individuals they represent were present and/or injured in states throughout India when officials organized, armed and led attacks on Sikhs. (Am. Compl. ¶¶ 34–66, 73–106.) Nath appears in the Amended Complaint in connection with one site of violence in New Delhi on November 1, 1984. (Am. Compl. ¶¶ 37–39, 66–72.) Plaintiffs additionally allege that Nath aided and abetted the violence in India by his presence and participation at a meeting of the Congress Party where the violence was planned. (Am. Compl. ¶¶ 37–39.)

The instant motion asserting lack of jurisdiction based upon failure of service, immunity, lack of standing, and the act of state doctrine was heard and marked fully submitted on September 21, 2011.

II. The Facts

The parties have submitted affidavits setting forth the facts which are not disputed except as noted below.

In India in 1984, the assassination of former Prime Minister Indira Gandhi sparked violence throughout India, during which a large number of Sikhs were killed and injured. Nath has, throughout the relevant period, been an elected Member of Parliament or Union Minister for the Government of India.

On November 1, 1984, Nath went to one of the sites of violence in New Delhi, Gurudware Rakab Ganj Sahib.

Over the years, the Indian Government, headed by various political party leadership, including political parties other than the Congress Party, appointed various commissions to look into these events. In 2005, Nath's presence at Gurudware Rakab Ganj Sahib was considered by one such commission, the Nanavati Commission. That Commission concluded that it was “[i]n absence of better evidence, it is not possible for the Commission to say that [Nath] had in any manner instigated the mob or that he was involved in the attack on the Gurudware.” Justice Nanavati Commission of Inquiry: 1984 Anti–Sikh Riots at 141 (Sept. 2, 2005), available at http:// www. mha. nic. in/ pdfs/ nanavati- I_ eng. pdf. ¹ No court proceedings relating to the Anti–Sikh Riots of 1984 have been initiated against Nath in India or elsewhere other than the instant action.

In the last six years, Nath has taken thirteen trips to the United States (eight of which were to New York) in his official capacity. He has submitted by affidavit that he has not, in that time, conducted any business other than in his official capacity, derived revenue from goods used or consumed or services rendered, had any bank accounts, employed anyone, institute any legal actions, filed any tax returns, owned property, maintained offices, or had a mailing address, in New York or the United States. (Nath Aff. ¶¶ 14–16 (Dkt. No. 33).) The Plaintiffs note that he has authored a book published by a New York firm. Nath submits that as of the date of his affidavit, he had collected no royalties on the book. ( Id. at ¶ 15.)

Nath's two most recent trips to the United States were in September 2009 and April 2010.

In September 2009, Nath traveled to New York and met with the President of the World Bank in India and other World Bank officials and participated in a discussion with a special advisor to the Secretary General of the United Nations and the United States former ambassador to India.

Nath came to New York again in April 2010. He attended and gave a keynote address at the 2010 Global Construction Summit, an international conference organized by the publisher McGraw–Hill and attended by numerous foreign government officials and representatives of the U.S. International Trade Commission, the U.S. Federal Environmental Executive, the US–Indian Business Council (“USIBC”), and the US–India CEO Forum. He also attended a roundtable organized by the Indian Embassy and the USIBC on that trip.

On August 5, 2010, Plaintiffs filed with this Court an affidavit of service by Ms. Yoselin Genao (“Genao”) stating that she served Nath with process on April 6, 2010 on the street in front of 3 East 64th Street, the Indian Consulate. (Dkt. No. 3.) At that time, Plaintiffs were pro se.

Nath was at the Indian Consulate in April 2010 to give a press conference and lecture, but was not approached or handed papers by anyone on the street, either upon arrival or departure from the Consulate. Nath arrived at the Consulate at approximately 6:30 p.m. No witness observed any person approach or hand anything to Nath. At approximately 7 p.m. after Nath had gone inside the Consulate, Genao spoke to the Consulate security guard about serving Nath. The guard directed her to a person referred to as Sandeep. Genao handed the summons and complaint to the man referred to as Sandeep, who looked at them, refused to accept them, and threw the envelope in a trash bin on the sidewalk. Genao retrieved the summons and complaint and then left the area after making a telephone call.

Inside the Consulate Nath held a press conference and a member of the press corp handed him a copy of the same summons and complaint which Genao had sought to serve outside the Consulate. Nath looked at and commented on the papers he had been given.

III. The Plaintiffs Did Not Effect Service On Nath

“ ‘Before a federal court may exercise personal jurisdiction over a defendant,the procedural requirement of service of summons must be satisfied.’ ” Dynegy Midstream Servs. v. Trammochem, 451 F.3d 89, 94 (2d Cir.2006) (quoting Omni Capital Int'l v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987)). On a motion to dismiss pursuant to Rule 12(b)(5) for deficient service of process, “the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 Fed.Appx. 202, 203 (2d Cir.2010) (citing Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir.2005)). Plaintiff must meet this burden by making a prima facie case of proper service “through specific factual allegations and any supporting materials.” Kwon v. Yun, No. 05 Civ. 1142, 2006 WL 416375, at *2 (S.D.N.Y. Feb. 21, 2006) (citations omitted); see also Jazini v. Nissan Motor Co., 148 F.3d 181, 184 (2d Cir.1998). In this regard, conclusory statements are not sufficient to overcome a defendant's sworn affidavit that service was improper. Darden v. DaimlerChrysler N. Am. Holding Corp., 191 F.Supp.2d 382, 387 (S.D.N.Y.2002). In resolving a Rule 12(b)(5) motion to dismiss for insufficient service of process, “a Court must look to matters outside the complaint to determine whether it has jurisdiction.” Mende v. Milestone Tech., Inc., 269 F.Supp.2d 246, 251 (S.D.N.Y.2003) (quoting Darden, 191 F.Supp.2d at 387).

Under Rule 4 of the Federal Rules of Civil Procedure, service may be affected by:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the individual personally;

(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Fed.R.Civ.P. 4(e). See alsoN.Y....