Argued Nov. 8, 2013.
Rehearing Denied Dec. 23, 2013.
Robert James Pavich, Attorney, Pavich Law Group, Chicago, IL, for Plaintiffs-Appellants.
Michelle L. Jacobs, Biskupic & Jacobs, S.C., Mequon, WI, for Defendant-Appellee.
Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge.
This appeal presents a single issue, which is whether the defendant was served with process; yet the case could be the basis for a novel of international intrigue.
Sikhism is an Indian religion. Most Sikhs live in the northwestern Indian state of Punjab. The state's highest official is its Chief Minister. Parkash Singh Badal, the defendant in this case— a Sikh of course (all male Sikhs have " singh," a derivative of " simha," the Sanskrit word for lion, as part of their names)— is that official,
despite his advanced age (85). He has held the office intermittently since 1970 and continuously since 2007.
Sikhs for Justice (SFJ), a U.S.-based human rights group, see www. sikhsfor justice. org/? q= content/ about- us (the websites cited in this opinion were visited on November 25, 2013), accuse Badal of being responsible for overseeing police and other security personnel implicated in extrajudicial killings and torture in Punjab, in violation of customary international law and the Torture Victim Protection Act of 1991, 28 U.S.C. § 1350 note, P.L. 102-256, 106 Stat. 73 (1992). Joined by several persons who claim to have been torture victims, SFJ filed this class action suit last year in the federal district court in Milwaukee. The complaint based federal subject-matter jurisdiction on the Alien Tort Statute, 28 U.S.C. § 1350, which confers jurisdiction over " any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." Whether that jurisdiction extends to a tort committed by a foreign official in a foreign country is doubtful in light of the Supreme Court's recent decision in Kiobel v. Royal Dutch Petroleum Co., --- U.S. ----, 133 S.Ct. 1659, 1669, 185 L.Ed.2d 671 (2013), but the issue has not been briefed and need not be decided if the district judge was right to dismiss the suit (as he did after an evidentiary hearing and some post-hearing discovery) on the ground that the defendant had not been served with the complaint and as a result the district court had not acquired personal jurisdiction. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583-85, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). The plaintiffs contend in their appeal that the defendant was served, or alternatively that the district judge, by arbitrarily refusing to give them more time to gather evidence of service, improperly prevented them from proving that he was served.
Through news reports the plaintiffs had learned that the defendant was coming from India to Milwaukee to attend a wedding. He arrived in the United States on August 7. The suit was filed the next day. Now it happened that six people had been killed in an attack on a Sikh temple in Wisconsin two days earlier, and a commemorative meeting had been hurriedly scheduled to take place at a high school in a Milwaukee suburb for the late afternoon of the ninth. The plaintiffs hoped and expected that the defendant would attend the event, and so they hired a process server, Christopher Kratochvil, to serve the defendant during it. They gave him a photograph of the defendant to help Kratochvil identify him, and Kratochvil also watched a video of the defendant. The photograph and the video showed a tall, thin, elderly man with a long white beard and a mustache, wearing a turban (mandatory for Sikh men) and eyeglasses.
Such a man was indeed present at the high school event, standing at the front of the room in which the meeting was about to begin. Kratochvil walked up to him, said, " Excuse me, Mr. Singh Badal," handed him the summons and complaint, and hurried from the room without waiting for a response. According to Kratochvil the time was 4:50 p.m.
The defendant argues that he was never served during his visit to the United States; that he had not been at the high school on August 9 (he was there on August 10 for a larger event, related to the attack on the Sikhs, with Attorney General Holder); that the supposed service of him was a case of mistaken identity. He presented evidence in the district court proceeding that the person who had been served was another tall, thin, elderly Sikh, an American citizen named Surinderpal Singh Kalra. Fluent in both English and
Punjabi, Kalra was at the high school event on August 9 as an interpreter. He was sporting eyeglasses, a turban, a long white beard, and a mustache. He testified that he had received the service papers intended for the defendant while standing at the front of the room waiting for the meeting to begin, but that he hadn't understood their significance. He further testified that he had lost track of the papers and thought he'd simply left them on a table in the high school, and later forgot about them altogether— but, later still, had discovered them in the trunk of his car shortly before the evidentiary hearing in this ...