United States District Court, S.D. New York
SIKHS FOR JUSTICE INC on behalf of Deceased and injured members of the Sikh community, JASBIR SINGH, MOHENDER SINGH, Individually and on behalf of His deceased father: SARDAR DARSHAN SINGH, et al., Plaintiffs,
INDIAN NATIONAL CONGRESS PARTY, et al., Defendants, and INDIAN LEGAL HERITAGE, Intervenor
Decided: April 24, 2014.
For Plaintiffs: Michael F. Fitzgerald, Esq., MICHAEL F. FITZGERALD, ESQ., New York, NY.
For Defendants: Ravi Batra, Esq., Todd B. Sherman, Esq., THE LAW FIRM OF RAVI BATRA, P.C., New York, NY.
ROBERT W. SWEET, U.S.D.J.
Defendant Indian National Congress Party a/k/a " Congress (I)" (" INC" ) has moved pursuant to Federal Rules of Civil Procedure 12 (b) (1) and 12 (b) (6) to dismiss the Second Amended Complaint (" SAC" ) of Plaintiffs Sikhs for Justice, Inc. (" Sikhs" ) on behalf of Jasbir Singh (" Jasbir" ), Mohender Singh (" Mohender" ), Sardar Darshan Singh (" Sardar" ) and others (collectively, the " Plaintiffs" ).
Upon the facts and conclusions set forth below, the motion is granted under Fed.R.Civ.P. 12(b) (1).
The original Complaint in this action was filed on April 6, 2010 alleging nine claims against defendant Kamal Nath (" Nath" ) for purported violations of international law under the Alien Tort Statute, 28 U.S.C. § 1350 (the " ATS" ), and under state law for wrongful death, negligence, public nuisance, battery, intentional infliction of emotional distress and negligent infliction of emotional distress.
On March 1, 2011, the Plaintiffs filed the First Amended Complaint (" FAC" ), adding additional Plaintiffs and the Defendant INC, and dropping all state law claims. (Dkt. No. 16.) In addition, the FAC added various allegations against the two Defendants. As to Nath, the Plaintiffs added allegations of genocide, rape, torture, summary executions, extrajudicial killings, and crimes against humanity under the ATS (FAC ¶ ¶ 160-65); torture and extrajudicial killings under the Torture Victims Protection Act of 1991 (the " TVPA" ) ( Id. ¶ ¶ 166-73); and for aiding and abetting the commission of those violations under both the ATS and TVPA. ( Id. ¶ ¶ 174-79). With regard to the INC, the Plaintiffs alleged claims under the ATS for genocide, rape, torture, summary executions, and extrajudicial killings ( Id. ¶ ¶ 146-53); and for aiding and abetting the commission and conspiracy to commit those violations under both the ATS and TVPA. ( Id. ¶ ¶ 154-59).
According to the FAC, the individually-named Plaintiffs and the individuals they represented were present and/or injured in states throughout India when officials organized, armed and led attacks on Sikhs. ( Id. ¶ ¶ 34-66, 73-106). During the relevant time period, the INC purportedly " had complete control over the governance of India," and " [a]s the ruling political party of India nationally and locally," was responsible for these atrocities and able to do so " under color of state law and with the apparent or actual authority of the Government of India." ( Id. ¶ ¶ 28-30, 108). Nath appeared in the FAC in connection with one site of violence in New Delhi on November 1, 1984, during which he allegedly aided and abetted the violence in India by his presence and participation at a meeting of the INC where such attacks were planned. ( Id. ¶ ¶ 37-39, 66-72.)
On June 24, 2011, Nath moved to dismiss the FAC, asserting lack of jurisdiction based upon failure of service, immunity, lack of standing, and the act of state doctrine. (Dkt. No. 31.) The motion was heard and marked fully submitted on September 21, 2011 and the Court issued its Opinion granting Nath's motion to dismiss the FAC on March 7, 2012. See Sikhs for Justice v. Nath, 850 F.Supp.2d 435, 2012 WL 760164 (S.D.N.Y. 2012) (" Sikhs I " or the " March Opinion" ).
While Nath's motion was sub judice, Plaintiffs moved for default judgment against the INC pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure and Local Rule 55.2(b) on February 2, 2012. The motion was heard and marked fully submitted on May 9, 2012.
On March 21, 2012, the Plaintiffs filed their motion for reconsideration pursuant to Rules 54(a), 59(e) and 60(b) of the Federal Rules of Civil Procedure and Local Rule 6.3, requesting that the Court revisit its March Opinion, which dismissed without prejudice the FAC as to Nath. The motion was heard on submission and marked fully submitted on April 18, 2012.
On May 29, 2012, the INC moved to dismiss the FAC, or in the alternative, for a stay of proceedings pending the Supreme Court's resolution of Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir.2010) (" Kiobel I " ), cert. granted, ___ U.S. ___, 132 S.Ct. 472, 181 L.Ed.2d 292 (2011) (" Kiobel I " ). The Plaintiffs subsequently filed a cross-motion on June 29, 2012 for consolidation of the pending motions, jurisdictional discovery, a declaration that service had been effected or an alternate method of service, and for leave to further amend the complaint if the INC's Motion to Dismiss was granted in whole or in part. The motion and cross-motion were heard on submission and marked fully submitted on July 18, 2012, and the Court issued its Opinion on September 12, 2013 denying the Motion for Reconsideration and Default Judgment, denying in part and granting in part the Motion to Dismiss, granting the INC's motion to stay the proceedings, and denying in part and granting in part Plaintiffs' cross-motion. See Sikhs for Justice v. Nath, 893 F.Supp.2d 598 (S.D.N.Y. September 12, 2012) (" Sikhs II " or the " September Opinion" ).
On November 13, 2013, after the Supreme Court ruled in Kiobel II, the stay was lifted, and Plaintiffs were granted leave to file the SAC, which was subsequently filed on November 20, 2013.
On January 17, 2014, Defendant INC filed the instant motion to dismiss the SAC. This motion was heard and marked fully submitted on March 19, 2014.
The facts underlying this action are set out in the March and September Opinions, the parties' affidavits and the SAC, familiarity with which is assumed. The facts relevant to the instant motions are set forth below.
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. ( Id. ¶ ¶ 2, 31-36, 109-11.)
The Plaintiffs are a class consisting of resident and non-resident Sikh men, women and children who survived the allegedly unlawful attacks on them in India in November 1984 and the lawful heirs and claimants of those men, women and children who did not survive. (SAC ¶ 17.) The class also consists of Sikhs whose homes, businesses, temples and personal property were allegedly damaged. ( Id.) The class period is from November 1 to November 4, 1984. ( Id.)
The SAC references the same underlying facts alleged in the FAC, including that the INC, as the ruling political party of India, was allegedly 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. ( Id. ¶ 108.)
In addition, the SAC adds allegations that the INC " conducts ongoing and significant business in the United States particularly in the State and City of New York both directly and through its wholly owned subsidiary 'Indian National Overseas Congress' (the " INOC" ), which is a corporation organized and existing pursuant to the laws of the State of New York with its principal place of business located at Queens County, State of New York." ( Id. ¶ ¶ 15; 147-65.) " Upon information and belief," Plaintiffs contend that the
INC " operates INOC as a department or agent and controls its activities." ( Id.)
Finally, the SAC also contends that local supporters of the INC have continued to threaten the families of certain Plaintiffs in India. ( See, e.g., SAC ¶ 79(a).) Specifically, the SAC states that: Mohender's " wife has been the target of local INC supporters and employees who have illegally invaded her home, falsely arrested, detained and imprisoned her, beaten her, threatened her with sexual assault and who, on August 15, 2013, led a violent attack on her home which was set on fire while she and their five year old daughter were inside." ( Id.)
The Motion to Dismiss is Granted
Defendant INC moves to dismiss Plaintiffs' suit under 12 (b) (1) and 12 (b) (6) of the Federal Rules of Civil Procedure contending that this Court lacks subject matter jurisdiction over the Plaintiffs' claims, and that in any event Plaintiffs fail to state a claim upon which relief can be granted.
Plaintiffs' SAC is Dismissed for Lack of Subject Matter Jurisdiction Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(h) (3)
Defendants' subject matter jurisdiction allegations are addressed first. See Magee v. Nassau County Med. Ctr., 27 F.Supp.2d 154, 158 (E.D.N.Y. 1998) (" A court faced with a motion to dismiss . . . must decide the jurisdictional question first because a disposition of a Rule 12(b) (6) motion is a decision on the merits and, therefore, an exercise of jurisdiction." ); see also Rhu ...