Tag Archives: India

Case of the Day: Walia v. Aegis Center Point Developers

The case of the day is Walia v. Aegis Center Point Developers Pvt. Ltd. (N.D. Cal. 2014). According to the complaint, Aegis was in charge of a real estate project in India. It recruited Gurinder Walia to serve as a director, manage investors, and raise capital. Walia and Siddhartha Kumar were the managers of Aegis, and they agreed to share the profits equally. Walia’s claim was that Aegis and Kumar improperly appointed a new director and deprived him of profits.

Walia sued Kumar and Aegis in a court in Chandigarh, India, seeking a permanent injunction. But the Indian court dismissed his claim on the merits. Walia then sued in the Northern District of California. Aegis and Kumar moved to dismiss.
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Case of the Day: Sikhs For Justice v. Badal

The case of the day is Sikhs for Justice v. Badal (7th Cir. 2013). We considered an unrelated Sikhs for Justice case in March 2012.

In today’s case, Sikhs for Justice accused Parkash Singh Badal, the Chief Minister of the state of Punjab, of overseeing police implicated in extrajudicial killings and torture in Punjab. The case, a putative class action, was brought under the Alien Tort Statute. But the issue on which the case turned was not extraterritoriality, as one might have expected after Kiobel, but rather on an unusual service of process issue.

Sikhs for Justice had learned that Badal was going to be in Milwaukee to attend a wedding. He arrived in the United States on August 7, 2012, and SFJ commenced the lawsuit on August 8. By coincidence, the tragic shooting at the Sikh temple in Oak Creek, Wisconsin, had occurred just days before, and SFJ guessed that Badal would attend a memorial service scheduled to take place in Milwaukee on August 9. They hired a process server, Christopher Kratochvil, to serve the summons and complaint on Badal. Kratochvil had a photograph of Badal to work from. Kratochvil served the documents on a man with glasses, a long, white beard and mustache and a turban standing near the front of the crowd at the memorial after saying simply, “Excuse me, Mr. Singh Badal.” But all observant Sikh men wear a turban, all observant Sikh men had “Singh” in their names, and as the photographs appended to Judge Posner’s opinion show, at least two Sikh men, Badal and Surinderpal Singh Kalra (Kalra, it seems, had nothing whatsoever to do with the case except insofar as he bore a resemblance to Badal in Kratochvil’s eyes), have long white beards and mustaches and wear eyeglasses.

Badal moved to dismiss the action on the grounds that he had never been served with process. At a hearing on the motion, Kalra, who brought the papers with him to court, testified that the process server had handed the papers to him. Badal did not attend the hearing, but members of the security detail that the State Department had supplied to him testified that they had been with him that evening; that he had not been at the memorial service; and that no process server had ever approached him. Other witnesses testified that they met Badal that evening far from the scene of the memorial. On the other hand, Kratochvil testified that Kalra was not the man that he had served with process.

The ordinary rule is that a return of service is presumptively correct and may only be overcome by “strong and convincing” evidence. The district court, in granting Badal’s motion, found that Badal had shown that the return of service was incorrect, and the Seventh Circuit affirmed, with Judge Posner questioning the continuing rationale for the presumption in the modern age, when service is no longer made by the marshal. Judge Posner noted the fallibility of eyewitness identifications and also the difficulties in eyewitness identifications by persons of one ethnicity of persons of another ethnicity. Sikhs for Justice did their best, arguing that Badal had not testified at the hearing or even submitted an affidavit denying the service and that Kalra might have feared retribution and therefore testified falsely in Badal’s favor. They also argued they should have been given more time to take discovery. But to no avail.

The Seventh Circuit did, however, question the correctness of the district court’s decision to dismiss the case with prejudice. And rightly so. But it left the question for decision should Sikhs for Justice refile the case.

According to the opinion, Sikhs for Justice have offered $10,000 to the process server who is able to serve process on Badal. Easy. After refiling the case, seek leave under FRCP 4(f)(3) to serve Badal’s US counsel via email. SFJ, please contact me for instructions on where to wire the funds.

Case of the Day: Tuckerbrook Alternative Investments v. Banerjee

The case of the day is Tuckerbrook Alternative Investments, LP v. Banerjee (D. Mass. 2013). I considered a related case in May 2011. According to the complaint, Tuckerbrook, an investment adviser that manages hedge funds, alleges that Sumanta Banerjee, former manager of Tuckerbrook’s Global Distressed Fund and Global Special Situations Fund, breached a settlement agreement in an earlier dispute by disclosing it terms with a third party, tortiously interefering with Tuckerbrook’s relationships with others, disparaging Tuckerbrook, and so forth.

Tuckerbrook made attempts to serve process on Banerjee. First, its lawyer sent Banerjee two emails attaching the summons and complaint. Second, he sent the documents to Banerjee by certified mail “at his residence in Connecticut.” Tuckerbrook moved ex parte for an order deeming service to have been made, and the judge granted the motion. Banerjee then moved to vacate the judge’s order and to dismiss for insufficient service of process. Importantly, Banerjee asserted that he lived in India, not Connecticut. In a very terse order, Judge O’Toole denied the motions: “The defendant’s motion to vacate and dismiss is DENIED. Plaintiff has gone to great lengths to serve the defendant and provided evidence that the defendant was adequately served via electronic mail.”

The judge’s decision is apparently erroneous. Let’s assume that Banerjee resides in India rather than Connecticut. In the earlier case, Tuckerbrook had sought to serve process on him at a particular address in India, and because nothing in the new case leads me to think otherwise, I assume that Banerjee’s address in India today is the same as it was the last time around. So the Hague Service Convention applies—the exception under Article 1 for defendants whose addresses are unknown is inapplicable. Long-time readers know that I believe that when the Convention applies, service by email is always impermissible under the Convention, and doubly so when, as in the case of India, the state of destination has objected to service by postal channels under Article 10(a) (since Article 10(a) is apparently the only method permitted by the Convention that could possibly permit service by email). So if Banerjee resides in India and his address was known to Tuckerbrook, then the service by email was invalid. And to reach this result, it’s not even necessary to observe that Tuckerbrook failed to seek leave to serve process by alternative means under FRCP 4(f)(3) before sending the emails.

Let’s assume that Banerjee resides in Connecticut (which I have to say seems unlikely in light of the emails in the records in which Banerjee emphasizes to Tuckerbrook’s lawyer that he has lived in India for several years). The service by email is obviously insufficient, since nothing in either federal procedural law or Massachusetts procedural law (or, I assume, Connecticut procedural law) permits service by email within the United States. So if Banerjee resides in Connecticut, then the validity of the service turns only on the certified mail. Under FRCP 4(e)(1), service by certified mail would be proper if permitted under either Massachusetts or Connecticut law. Massachusetts law provides for service outside of the Commonwealth “by any form of mail addressed to the person to be served and requiring a signed receipt.” Under Chapter 223A, § 6(b) of the General Laws, when service is made by mail, “proof of service shall include a receipt signed by the addressee or other evidence of personal delivery to the addressee satisfactory to the court.” Tuckerbrook didn’t produce a signed receipt or other evidence of actual receipt, and so it seems to me that the service was insufficient under Massachusetts law. What about Connecticut law? Here I disclaim any special knowledge, but it appears to me after a very quick search that under § 52-59b of the Connecticut statutes, service by certified mail on a nonresident also requires service on the Connecticut Secretary of State (which apparently didn’t happen here), and I don’t see a statute authorizing service of process on a resident by mail.

So assuming that if Banerjee resided in India his address was known to Tuckerbrook, and assuming that I haven’t made a gross mistake of Connecticut law in case Banerjee, contrary to appearances, resided in Connecticut, the service seems clearly improper and the judge’s order erroneous. The next question—what to do about it—poses difficult strategic questions for Banerjee.