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Barapind v. Government of Republic of India

United States District Court, E.D. California

September 26, 2014

KULVIR SINGH BARAPIND, Plaintiff
v.
GOVERNMENT OF THE REPUBLIC OF INDIA, et al., Defendants

Page 1389

For Kulvir Singh Barapind, Plaintiff: Manmeet Toor, Sikh Alliance, Modesto, CA; Kamardeep Singh Athwal, Athwal law Office, Fairfield, CA.

For Government of the Republic of India, State Government of Pubjab, The Punjab Police, Defendants: Juan Carlos Basombrio, Katherine J. Santon, LEAD ATTORNEYS, Dorsey & Whitney LLP, Costa Mesa, CA.

Page 1390

ORDER RE: MOTION TO DISMISS (Docs. 40 and 48)

Anthony W. Ishii, Senior United States District Judge.

I. Background

Plaintiff Kulvir Singh Barapind is a citizen of the Republic of India. Defendants are the Government of the Republic of India (" GOI" ), the State Government of Punjab, and the Punjab Police. In the 1980s, Plaintiff lived in Punjab and was active with organizations that sought the independence of that Indian state. Plaintiff was charged with several crimes in connection with the activities of the independence movement, including murder. In 1993, Plaintiff traveled to the United States and sought asylum. GOI sought to have Plaintiff extradited; the United States and the GOI signed an extradition treaty on June 25, 1997. Plaintiff fought the extradition in United States courts for many years. On November 9, 2005, the Eastern District of California denied Plaintiff's habeas corpus petition and issued a Certification and Order of Extraditability with respect to three murder charges. This was a final ruling and ended the U.S. courts' involvement in Plaintiff's extradition.

The United States has signed and ratified the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (" Convention" ). Among other requirements, the Convention prohibits extradition in situations where a person would be subject to torture. The Foreign Affairs Reform and Restructuring Act of 1998 (" FARRA" ) implements the Convention. In key part, the Secretary of the U.S. Department of State (" Department" ) may not extradite a person if he/she is " more likely than not" to be tortured after extradition. See 22 C.F.R. § 95.2. On November 23, 2005, Plaintiff submitted an application to the Department asking for

Page 1391

his extradition to be halted on the basis that he would be subject to torture in India. Doc. 63-1, 9. The Department communicated with the GOI concerning Plaintiff's potential treatment in police custody in India. Through diplomatic notes in 2005 and 2006, the GOI assured the Department that Plaintiff would not be tortured (" Agreement" ). The Agreement is not a contract that the GOI and the Department signed; instead, it is a series of communications that went back and forth describing what Plaintiff's treatment in Indian custody would be. The terms can only be gleaned indirectly from the diplomatic notes. The assurances satisfied the Department and Plaintiff was extradited in June 2006.

In May 2008, Plaintiff was acquitted of the three criminal charges in Indian courts and was released. Plaintiff resumed his activity with organizations seeking the independence of Punjab. On September 20, 2012, Plaintiff was arrested on new criminal charges. Plaintiff alleges that he was subjected to torture September 21-25, 2012, carried out by the local police forces. Plaintiff sought relief in the Indian courts, which issued an order on September 28, 2012 that Plaintiff was to be presented to medical authorities for examination. That order was not complied with.

On May 7, 2013, Plaintiff filed the present suit, in the Eastern District of California, against Defendants and a number of government officials who work for Defendants. Doc. 1. Plaintiff voluntarily dismissed the individual government officials. Doc. 30. Against the three remaining Defendants, Plaintiff's complaint alleges they " are liable for having violated the term & condition of Mr. Barapind's surrender and their resulting legal duty not to subject him to torture as defined by the Convention...Consequently the Government of India and the other defendants are liable to Mr. Barapind for damages resulting from the torture he has and is experiencing." Doc. 1, Complaint, 26:4-26.

Defendants filed a motion to dismiss on a number of grounds; most notably, Defendants argue a lack of subject matter jurisdiction as Defendants are entitled to sovereign immunity. Doc. 40-1. Plaintiff opposes the motion. Doc. 41. After Defendants filed a reply, Plaintiff requested leave to make additional filings to present evidence. Doc. 51. The request was granted, which allowed for a complete factual briefing on the issue of sovereign immunity. Doc. 57.

II. Legal Standard

Fed. Rule Civ. Proc.12(b)(1) allows a motion to dismiss for lack of subject matter jurisdiction. It is a fundamental precept that federal courts are courts of limited jurisdiction. Limits upon federal jurisdiction must not be disregarded or evaded. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978). The plaintiff has the burden to establish that subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). This burden, at the pleading stage, must be met by pleading sufficient allegations to show a proper basis for the court to assert subject matter jurisdiction over the action. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Fed.R.Civ.P. 8(a)(1). A Rule 12(b)(1) jurisdictional attack may be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

This case deals with a factual challenge, which permits the court to look beyond the complaint. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). " [I]n a

Page 1392

factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004); Savage v. Glendale Union High School, Dist. No. 205, Maricopa County, 343 F.3d 1036, 1040 n.2 (9th Cir. 2003). In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). " No presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Thornhill Publishing Co. v. General Telephone Electronics, 594 F.2d 730, 733 (9th Cir. 1979).

III. Discussion

The Foreign Sovereign Immunities Act (" FSIA" ) states that " a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607." 28 U.S.C. § 1604. In relevant part, sovereign immunity does not apply when " the foreign state has waived its immunity either explicitly or by implication." 28 U.S.C. § 1605(a)(1). A " foreign state" includes " a political subdivision of a foreign state or an agency or instrumentality of a foreign state." 28 U.S.C. § 1603(a). FSIA is " the sole basis for obtaining jurisdiction over a foreign state in our courts." Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d ...


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