14‐1724‐cv Sikhs for Justice v. Nath

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 19th day of December, two thousand fourteen.

PRESENT: ROBERT D. SACK, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

SIKHS FOR JUSTICE, INC. on behalf of deceased and injured members of the Sikh community and on behalf of all those similarly situated, JASBIR SINGH, Individually and on behalf of all those similarly situated, MOHENDER SINGH, Individually and on behalf of his deceased father Sardar Darshan Singh and on behalf of all those similarly situated, DAVINDER PAL BHATIA, Individually and on behalf of all those similarly situated, IQBAL KAUR BHATIA, Individually and on behalf of her deceased father Anant Singh and deceased son Manvinder Singh Bhatia and on behalf of all those similarly situated, MANJIT SINGH, on behalf of his deceased brother Gursharan Singh Rishi and on behalf of all those similarly situated, TEJINDER SINGH, on behalf of his deceased brother Gursharan Singh Rishi and on behalf of all those similarly situated, KAMALJIT KAUR GIRIN, Individually and on behalf of her deceased husband Jamail Singh Girin, and on behalf of all those similarly situated, Plaintiffs‐Appellants,

v. 14‐1724‐cv

KAMAL NATH, a national and citizen of India, INDIAN NATIONAL CONGRESS PARTY, AKA Congress (I), Defendants‐Appellees,

INDIAN LEGAL HERITAGE, Intervenor.

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FOR PLAINTIFFS‐APPELLANTS: MICHAEL F. FITZGERALD, ESQ., New York, New York.

FOR DEFENDANT‐APPELLEE EDWARD FLANDERS, Pillsbury Winthrop KAMAL NATH: Shaw Pittman LLP, New York, New York.

FOR DEFENDANT‐APPELLEE RAVI BATRA (Todd B. Sherman, on the brief), INDIAN NATIONAL CONGRESS The Law Firm of Ravi Batra, P.C., New York, PARTY: New York.

Appeal from the United States District Court for the Southern District of

New York (Sweet, J.).

UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

-2- Plaintiffs‐appellants, Sikhs for Justice and seven individuals, all suing on

behalf of deceased and injured Sikhs, appeal from a final judgment entered on April 28,

2014 dismissing their second amended complaint. The district court issued three

opinions, holding, inter alia, that plaintiffs failed to state a claim under the Torture

Victims Protection Act of 1991,

, note following

, (ʺTVPAʺ) and that it lacked subject matter jurisdiction over plaintiffsʹ claims

under the Alien Tort Statute,

(ʺATSʺ). We assume the partiesʹ

familiarity with the facts, procedural history, and issues on appeal, which we reference

only as necessary to explain our decision.

As an initial matter, we conclude that plaintiffs have waived any appeal of

the district courtʹs dismissal of the TVPA claims. To preserve arguments for appellate

review, plaintiffs must set forth their ʺcontentions and the reasons for them, with

citations to the authorities and parts of the record on which the appellant relies.ʺ Fed.

R. App. P. 28(a)(8)(A); see also Norton v. Samʹs Club,

(2d Cir. 1998). In

their briefs on appeal, plaintiffs have not addressed the district courtʹs decision with

respect to the TVPA claims and thus the claims are not properly before us for appellate

review.

We thus turn to the question of whether the district court had subject

matter jurisdiction to hear plaintiffsʹ ATS claims. ʺWhen reviewing a district courtʹs

determination of subject matter jurisdiction pursuant to Rule 12(b)(1), we review factual

-3- findings for clear error and legal conclusions de novo.ʺ Tandon v. Captainʹs Cove Marina

of Bridgeport, Inc.,

(2d Cir. 2014) (internal quotation marks omitted)

(alterations in original).

The ATS is a jurisdictional statute that creates no causes of action. Kiobel v.

Royal Dutch Petroleum Co.,

(2013). Instead, it permits federal courts

ʺto hear claims in a very limited category defined by the law of nations and recognized

at common law.ʺ Sosa v. Alvarez‐Machain,

(2004). We presume,

however, that when a statute ʺgives no clear indication of an extraterritorial application,

it has none.ʺ Morrison v. Natʹl Australia Bank Ltd.,

(2010). This

presumption ʺserves to protect against unintended clashes between our laws and those

of other nations which could result in international discord.ʺ EEOC v. Arabian Am. Oil

Co.,

(1991). In Kiobel, the Supreme Court held that ʺthe presumption

against extraterritoriality applies to claims under the ATS,ʺ but it also concluded that

claims that ʺtouch and concern the territory of the United States . . . with sufficient force

[may] displace the presumption.ʺ Kiobel,

. Where ʺall the relevant

conduct [takes] place outside the United States,ʺ however, a defendantʹs ʺmere

corporate presenceʺ in the United States does not suffice to displace the presumption

and establish jurisdiction under the ATS.

Here, all the relevant conduct took place outside the United States in

India, many years ago. Even assuming that, as plaintiffs allege, defendants‐appellees

-4- Indian National Congress Party (ʺINCʺ) and Kamal Nath carried out or were

responsible for acts of violence against Sikhs, those acts were taken by Indian nationals

against other Indian nationals in India. Under the presumption against

extraterritoriality, then, as the Supreme Court held in jurisdictionally similar

circumstances in Kiobel, we lack jurisdiction over plaintiffsʹ claims. See also Balintulo v.

Daimler AG,

, 189‐90 (2d Cir. 2013) (ʺ[C]laims under the ATS cannot be

brought for violations of the law of nations occurring within the territory of a sovereign

other than the United States . . . . [I]f all the relevant conduct occurred abroad, that is

simply the end of the matter under Kiobel.ʺ).

Plaintiffs argue that their claims sufficiently ʺtouch and concernʺ the

United States because INC allegedly conducts ongoing, systematic, and substantial

activities in the United States. They specifically assert that INC engages in economic,

political, and social activities in the United States through a corporate affiliate, the

Indian National Overseas Congress (ʺINOCʺ). They urge this Court to remand the case

for the district court to consider whether these claims sufficiently touch and concern the

United States. We conclude, however, that plaintiffs fail to establish that the relevant

conduct touched and concerned the United States with sufficient force to displace the

presumption against extraterritorial application of the ATS.

Contrary to plaintiffsʹ contention, however, we note that the district court

did analyze their claims under the ʺtouch and concernʺ standard articulated in Kiobel.

-5- App. at 373‐378. Plaintiffsʹ conclusory assertion that INOC is an ʺagentʺ of INC and that

INC is using the United States as a ʺsafe harborʺ is unsupported by the record.

Moreover, even assuming INOC is related to INC, INOC was established after the

underlying incidents of violence against the Sikhs and plaintiffs do not allege or

identify evidence supporting a connection between INOC and the prior acts of violence.

Plaintiffs argue that there were continued acts after the Sikh massacre, but these acts are

also alleged to have occurred in India and therefore, without more, appear to have

limited connection to United States interests. We agree with the district court that ʺeven

if the INOC acted as a corporate affiliate of the INC, and even if the INC orchestrated

acts directed at individuals in the United States, the performing actors and the actual

conduct at issue occurred entirely abroad.ʺ Sikhs for J. Inc. v. Indian Natʹl Cong. Party,

(S.D.N.Y. 2014). Plaintiffsʹ allegations suggest that, at most,

defendants have merely a corporate presence in the United States. Accordingly,

because all of the conduct relevant to the alleged ATS violations occurred abroad,

defendantsʹ alleged presence in the United States is insufficient to displace the

presumption against extraterritoriality and to establish jurisdiction under the ATS. See

Ellul v. Congregation of Christian Bros., No. 11‐cv‐1682,

(2d Cir.

Dec. 8, 2014) (rejecting ʺthe notion that a defendantʹs mere presence in the United States

is sufficient to displace the presumptionʺ).

-6- Because we conclude that the district court lacked subject matter

jurisdiction over plaintiffsʹ ATS claims, we have no need to address the issues of

plaintiffsʹ standing, the sufficiency of service of process, personal jurisdiction, or

whether, under current law, corporate defendants are subject to suit under the ATS.

For the reasons set forth above, we AFFIRM the judgment of the district

court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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