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.