Sikhs for Justice v. Parkash Singh Badal

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2316
SIKHS FOR J USTICE , et al.,
Plaintiffs‐Appellants,
v.
P ARKASH SINGH BADAL ,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:12‐cv‐00806‐LA — Lynn Adelman, Judge.
____________________
A RGUED NOVEMBER 8, 2013 — D ECIDED N OVEMBER 26, 2013
____________________
Before P OSNER , R OVNER , and W ILLIAMS, Circuit Judges.
P OSNER , 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 in‐
trigue.
Sikhism is an Indian religion. Most Sikhs live in the
northwestern Indian state of Punjab. The state’s highest offi‐
cial is its Chief Minister. Parkash Singh Badal, the defendant

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2 No. 13‐2316
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 continu‐
ously since 2007.
Sikhs for Justice (SFJ), a U.S.‐based human rights group,
see www.sikhsforjustice.org/?q=content/about‐us (the web‐
sites cited in this opinion were visited on November 25,
2013), accuse Badal of being responsible for overseeing po‐
lice and other security personnel implicated in extrajudicial
killings and torture in Punjab, in violation of customary in‐
ternational 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 ac‐
tion 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.,
133 S. Ct. 1659, 1669 (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 hear‐
ing 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 jurisdic‐
tion. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583–85
(1999). The plaintiffs contend in their appeal that the defen‐
dant was served, or alternatively that the district judge, by

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No. 13‐2316 3
arbitrarily refusing to give them more time to gather evi‐
dence 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 Mil‐
waukee suburb for the late afternoon of the ninth. The plain‐
tiffs 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 tur‐
ban (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 com‐
plaint, and hurried from the room without waiting for a re‐
sponse. 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 Gen‐
eral Holder); that the supposed service of him was a case of
mistaken identity. He presented evidence in the district

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4 No. 13‐2316
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 inter‐
preter. 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 testi‐
fied that he had lost track of the papers and thought he’d
simply left them on a table in the high school, and later for‐
got about them altogether—but, later still, had discovered
them in the trunk of his car shortly before the evidentiary
hearing in this case. He had been named as a witness, the
defendant’s lawyers having discovered that he might have
been handed the service papers by the process server, by
mistake.
The hearing took place in February 2013, some six
months after the event at the high school. Kalra brought the
service papers with him to the hearing. That was some evi‐
dence in support of the defendant’s argument that the sup‐
posed service on him was a case of mistaken identity, and he
presented more evidence of that. He had had a security de‐
tail, supplied by the State Department, during his visit to the
United States. Members of the detail testified that they’d
stuck close to him and no process server had approached
him. The security detail had kept a running account of his
every move on his visit to Milwaukee; and not only was
there no mention of a visit to the high school but there was a
notation that Badal had arrived at Milwaukee’s Boelter Su‐
perStore (a fancy store selling China tableware and restau‐
rant equipment, see “Boelter SuperStore,”

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No. 13‐2316 5
http://boeltersuperstore.com) at 4:49 p.m., one minute before
Kratochvil allegedly served him, and had left the store at
5:09 p.m. after ordering some $1,000 worth of equipment.
The store is 17 miles from the high school.
Other witnesses testified to meeting the defendant on
April 9 at times that made it impossible for him to have been
at the high school at 4:50 p.m. The plaintiffs do not argue
that the man identified at the Boelter SuperStore as the de‐
fendant was a “body double” meant to fool people into
thinking the defendant was there when actually he was at
the high school. No one who had been at the high school
event (attended by about 60 persons) testified to having seen
the defendant there—except Kratochvil, the process server.
He testified that the defendant was indeed the person whom
he had served, as did his brother, who was with him and is
also a process server though he didn’t participate in serving
the man who Kratochvil insists was the defendant. A Justice
Department handout listing the dignitaries who would par‐
ticipate in the event at the high school did not mention the
defendant. The district judge adjudged the defendant’s wit‐
nesses “uniformly credible,” and an inference of credibility
drawn by a judge from live testimony is entitled to consider‐
able deference by an appellate court.
True, the rule in the federal courts is that a process
server’s affidavit of service is entitled to a presumption of
correctness that can be overcome only by “strong and con‐
vincing” evidence. E.g., Relational, LLC v. Hodges, 627 F.3d
668, 672 (7th Cir. 2010); O’Brien v. R.J. O’Brien & Associates,
Inc., 998 F.2d 1394, 1398 (7th Cir. 1993); SEC v. Internet Solu‐
tions for Business Inc., 509 F.3d 1161, 1166 (9th Cir. 2007). That
seems an odd rule—a holdover from the era in which only

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6 No. 13‐2316
U.S. marshals could serve process in federal cases, see
O’Brien v. R.J. O’Brien & Associates, Inc., supra, 998 F.2d at
1398 n. 2 (now anyone who is at least 18 years old can, see
Fed. R. Civ. P. 4(c)(2))—given how easy it must be for proc‐
ess servers to make mistakes. Cf. Note, “Kleeman v. Rheingold:
There Are No Small Mistakes—A Process Server’s Negli‐
gence Leads to the Creation of a Nondelegable Duty,” 15
Pace L. Rev. 871 (1995). A process server doesn’t want to lin‐
ger in the presence of the person served, lest that person tear
up the papers in the process server’s face or even punch him
in the nose. Recall how Kratochvil fled after handing Kalra
(if it was indeed Kalra) the summons, without waiting for
him even to acknowledge the name—for Kratochvil had ad‐
dressed him by the defendant’s name, or rather the last two‐
thirds of the name.
But this is not the right case in which to reconsider the
rule requiring strong and convincing evidence (presumably
this formula has the same meaning as the more common
“clear and convincing” evidence) to refute a process server’s
identification. For the district judge recited and applied the
rule, yet still found that Kalra, not the defendant, had been
served. What makes the judge’s finding especially convinc‐
ing is Kalra’s resemblance to the defendant, as seen in the
photographs in the appendix to this opinion. Not that the
two men would be likely to be confused if they were stand‐
ing side by side. They are not identical twins. Badal is 2 or 3
inches taller than Kalra, somewhat heavier looking, and
about 15 years older than Kalra.
Kratochvil met Kalra just before Kalra’s deposition and
swore that Kalra wasn’t the man he’d served. But Kratochvil
had never seen the two together. Even eyewitness identifica‐

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No. 13‐2316 7
tion, we now know, is highly fallible. See, e.g., Elizabeth F.
Loftus et al., Eyewitness Testimony: Civil and Criminal (4th ed.
2007); United States v. Ford, 683 F.3d 761, 764–66 (7th Cir.
2012). Attempting to identify a person from a photo (as in a
photo lineup) or brief video may be an even more common
source of error. “Even with high quality video, matching to
photographs is surprisingly error‐prone.” Peter J.B. Han‐
cock, Vicki Bruce & A. Mike Burton, “Recognition of Unfa‐
miliar Faces,” 4 Trends in Cognitive Sciences 330, 334 (2000).
One reason that is germane to this case is that when we look
at a person we tend to focus unconsciously on the “outer fea‐
tures” of his face, such as hairstyle, Stephen C. Want et al.,
“Recognizing People From the Inner or Outer Parts of Their
Faces: Developmental Data Concerning ‘Unfamiliar’ Faces,”
21 British J. Developmental Psych., 125, 133 (2003)—or, one
imagines, a turban—rather than giving equal weight to eve‐
rything we see in the face.
A related point is that people of one race sometimes have
difficulty perceiving facial differences in people of a differ‐
ent race, David J. Kelly et al., “The Other‐Race Effect Devel‐
ops During Infancy: Evidence of Perceptual Narrowing,” 18
Psychological Sci. 1084, 1084 (2007); Christian A. Meissner &
John C. Brigham, “Thirty Years of Investigating the Own‐
Race Bias in Memory for Faces: A Meta‐Analytic Review,” 7
Psychology, Public Policy & Law 3, 5 (2001), or, we imagine, of
a distinctive ethnicity visible in their appearance. Kratochvil
is not an Indian, and not a Sikh. To the non‐Sikh the salient
features of a Sikh man are abundant facial hair and a turban.
If the man is elderly, the beard will be white. The photo that
Kratochvil was carrying to enable him to spot the defendant
showed an elderly man with a long white beard and a tur‐
ban. Kratochvil had been told that the man in the photo

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8 No. 13‐2316
would be at the high school, presumably in a place of
prominence since the defendant is a very prominent Sikh
(even if hated by the SFJ)—and bingo, at the head of the
room Kratochvil sees a man who closely resembles the man
in the photo. And of course one does not expect a photo to
look exactly the same as the subject in the flesh. So Kratochvil
makes a beeline for him, hands him the papers, and flees be‐
fore the man has a chance to ask him what is this all about
and to tell him that by the way his name is not Badal.
The plaintiffs point out that the defendant had not ap‐
peared at the evidentiary hearing (he was back in India by
then) or even submitted an affidavit denying having been
served; and that before the hearing, instead of placing Kalra
in a witness room in the federal court all by himself, the de‐
fendant’s lawyer had placed him in a room in a nearby hotel
together with members of the defendant’s entourage. The
plaintiffs argue that the purpose was to intimidate Kalra,
hand him the service papers (for it is the plaintiffs’ belief that
it was the defendant who had been served, that he had taken
the service papers back with him to India after his brief visit
to the United States and had then sent the papers back to the
United States to be given to Kalra, which is how Kalra
wound up possessing them), and induce him by means of
threats to testify that it was he rather than the defendant
who had been served. Probably it would have taken threats
to get Kalra to testify in support of the defendant, for he has
spoken in public of his support for Sikhs for Justice. Al‐
though the plaintiffs argue that he might fear retaliation
against his family in India if he crossed Badal, he testified at
his deposition that he no longer has any family in India.

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No. 13‐2316 9
Kalra had brought the service papers with him to the
hearing—he had been served with them and they were
therefore in his possession—but he had also shown them to
the defendant’s lawyers the day before. That could not be
construed as service on the defendant. If handing service
papers to a lawyer counted as serving them on his client, a
suit could never be dismissed for lack of service—as soon as
the defendant’s lawyer filed the motion to dismiss for want
of service the plaintiff would serve the lawyer. And if service
on Badal’s lawyer were construed as service on Badal, it
would be invalid because untimely. It took place more than
120 days after the suit had been filed, Fed. R. Civ. P. 4(m),
for the plaintiffs never requested, let alone received, an ex‐
tension of the time within which they had to serve the de‐
fendant. Nor did they attempt to serve him in India, as they
might have been able to do under the Hague Service Con‐
vention, see Fed. R. Civ. P. 4(f); Status Table, Convention of
15 November 1965 on the Service Abroad of Judicial and Ex‐
trajudicial Documents in Civil or Commercial Matters, Hague
Conference on Private International Law, www.hcch.net/
index_en.php?act=conventions.status&cid=17—and may
now be attempting to do. See Bruce Vielmetti, “Sikhs Up
Reward to $20,000 to Serve Lawsuit; Defendant Punjab Offi‐
cial Skips Milwaukee Visit,” Milwaukee Journal Sentinel, July
12, 2013, www.jsonline.com/blogs/news/215110631.html.
There is no evidence to support the plaintiffs’ accusation
of perjury and obstruction of justice. It would make a good
tale of international intrigue, but is too unsubstantiated and
implausible to counter the abundant evidence that the de‐
fendant was never at the high school on August 9 and there‐
fore was never served; for there is no suggestion that service
was attempted on him at any other time or place. We add

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10 No. 13‐2316
that it seems extremely unlikely that a high official of a na‐
tion friendly to the United States would attempt to obstruct
justice in a U.S. court.
Nor can any weight be given to the fact that the defen‐
dant did not return to the United States from India to testify
in the district court proceeding, or even submit an affidavit.
Had he submitted an affidavit the plaintiffs would have in‐
sisted on their right to cross‐examine him. And had he re‐
turned to Milwaukee to testify or be cross‐examined he
would have been dignifying a suit accusing him of crimes
against humanity, and such a suit might have undermined
his high official status in India. And doubtless he would
have been served with process in a new suit. SFJ “has of‐
fered a $10,000 bonus to whichever of three professional
process service firms can successfully serve Badal and his
son the new summons and complaint.” Bruce Vielmetti,
“Sikhs for Justice Offer $10,000 for Anyone Who Can Serve
Lawsuit on Indian Official,” Milwaukee Journal Sentinel, June
28, 2013, www.jsonline.com/blogs/news/213549841.html.
Badal and his son (who is also his deputy) were planning a
return visit to Milwaukee. But “perhaps fearing aggressive
process servers motivated by the large cash bounty, the
Badals cancelled their trip.” Vielmetti, “Sikhs Up Reward to
$20,000 to Serve Lawsuit; Defendant Punjab Official Skips
Milwaukee Visit,” supra. It is noteworthy that the three con‐
testants for the now‐$20,000 bounty do not include Kratoch‐
vil.
The plaintiffs insinuate that the defendant’s State De‐
partment security team was complicit in the alleged service
fraud, though they do not assign a motive (such as protect‐
ing our good relations with India by squelching a lawsuit

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No. 13‐2316 11
against a high Indian official). They point out that the agent
heading the team accosted process server Kratochvil at his
home and badgered him to sign an affidavit stating that if
the defendant had never been at the high school on August
9, then he had not served the defendant. On its face this is
equivalent to saying 2 + 2 = 4, or saying if this is B, it is not A;
it is the statement of a logical relation, rather than an obser‐
vation. But maybe the agent’s purpose was to negate any in‐
ference that Kratochvil might have served the defendant at
some other time during the latter’s visit to Milwaukee. Still,
the agent’s demanding an affidavit from Kratochvil was dis‐
tinctly odd, as opposed to the defendant’s lawyer deposing
him. The government—the agent’s employer—wasn’t even a
party to the lawsuit. Maybe the agent felt that it would be a
black mark against him if the foreign official whom he was
escorting had been served with a complaint. No matter; the
irregularity of the agent’s conduct has no bearing on whom
Kratochvil served.
The plaintiffs complain that they were not given enough
time to prove that the defendant had been served. Remem‐
ber that the suit had been filed on August 8, 2012, and ser‐
vice attempted the next day. The evidentiary hearing to de‐
termine whether the defendant had been served was not
held until February 21, 2013, six and a half months later. So
the plaintiffs had plenty of time in which to conduct discov‐
ery. And at the end of the hearing the judge granted the
plaintiffs’ request to be allowed another month to conduct
additional discovery. When that month was up they asked
for an additional month, and this time the judge refused
(with the exception of allowing service of an interrogatory
dealing with a peripheral issue).

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12 No. 13‐2316
The plaintiffs are particularly wroth at the judge’s refusal
to give them more time to depose a man named Harpreet
Singh Mokha, a Justice Department employee who—Kalra
had testified at his March 11, 2013, deposition—had invited
him to interpret at the high school event. The plaintiffs
hoped that Mokha would testify that he had been with Kalra
during the event and hadn’t seen anyone try to serve him.
The judge denied the plaintiffs’ request to give them more
time to explore the matter because “the court has already
heard testimony from Kalra himself and there is no reason to
believe Mokha would have anything to add.” That was not a
good ground for denying the plaintiffs’ request, given their
theory that Kalra was lying about having been served and
their contention that they first learned about “the impor‐
tance of Mr. Mokha” at Kalra’s deposition on March 11. The
one‐month discovery extension previously granted by the
district judge expired on March 22. So they had only 11 days
in which to arrange for and conduct a deposition of Mokha,
and that was not enough time.
But there was a better ground that the judge could have
given for his ruling but did not: Kalra had not testified at his
deposition that Mokha, or anyone else, was near him when
he was served.
Anyway, testimony by Mokha that Kalra had not been
the person served, or disbelief in Kalra’s testimony that he
had been served, could not have helped the plaintiffs’ case.
Kratochvil was positive that he had served the defendant at
the high school commemorative event, and the plaintiffs in‐
sist that he was correct. He did not testify that he’d served
the defendant somewhere else as well; nor did the plaintiffs
present any evidence that the defendant was served some‐

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No. 13‐2316 13
where else. It was the high school or nowhere. The plaintiffs
do not suggest that Mokha would have testified that he had
seen the defendant served, only that he had not seen Kalra
served; remember, no credible evidence places the defendant
in the high school at 4:50 p.m. Even if Kalra had made up the
story about being served, there would still be no evidence
that the defendant had been served at the high school or an‐
ywhere else.
The plaintiffs also complain that they needed the addi‐
tional month of discovery to determine whether it was true,
as they had just learned from an employee of the Boelter Su‐
perStore, that the store’s video surveillance camera, which
would have captured the defendant on video had he been
there as claimed, had recorded over that day’s digital video
recording. (Previously they’d been told by the store that its
video recording system hadn’t been working on the day of
the defendant’s visit.) But if recorded over, the video re‐
cording could cast no light on whether the defendant had
been in the store at a time when the plaintiffs claim he was
elsewhere. The plaintiffs wanted to question a specialist in
information technology about the recording over. But they
did not explain to the judge what they thought such a spe‐
cialist could have contributed. The judge was reluctant to
allow the litigation to drag on for the sake of a desperate
quest, of indefinite length, for additional evidence.
The plaintiffs also wanted additional time to try to find
photos or videos taken at the high school event on August 9
that might prove that the defendant had been there after all.
But they had been told months earlier that the defendant
denied having attended the event, and they don’t explain

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14 No. 13‐2316
why they needed more time to obtain the photographic and
video evidence that they hoped would refute the denial.
Another reason they gave for wanting more time for dis‐
covery was that they wanted to see the affidavit that Kra‐
tochvil had signed. They were told that to obtain the affida‐
vit from the State Department (which had it) they would
have to subpoena it. We learned at the oral argument that
the plaintiffs had obtained the affidavit. It must not have
been very helpful to them, for they don’t mention it in their
briefs.
Still, since the issue of service was critical to the suit, and
an additional thirty days for discovery would not have been
a significant delay, it would have been reasonable for the
judge to have granted the plaintiffs’ request. But his refusal
to do so was not reversible error. We are reluctant to become
enmeshed in challenges to a district court’s management of
pretrial discovery—especially a challenge complaining that
the district judge imposed deadlines that were too tight; for
the greater problem in the management of pretrial discovery
is the common failure to impose tight deadlines. And the
plaintiffs did drag their feet in the conduct of pretrial dis‐
covery. But above all, and with due regard for the possibility
that the plaintiffs would have obtained additional evidence
had they had an additional month to conduct discovery, the
evidence of mistaken identity is compelling—indeed over‐
whelming. Another 30 days for discovery (the plaintiffs do
not argue that the judge should have given them even more
time than that) would not have tilted the balance of the evi‐
dence in the plaintiffs’ favor.
There is a final procedural point to note. Ordinarily a
dismissal for want of personal jurisdiction as a result of im‐

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No. 13‐2316 15
proper service is without prejudice, leaving the plaintiff free
to refile the suit and seek to serve the refiled complaint on
the defendant. Yet the plaintiffs’ opening brief states, though
without elaboration or any citation to the record, that their
suit was dismissed with prejudice. The judgment order in
this case states: “IT IS ORDERED AND ADJUDGED that this
case is DISMISSED.” Ordinarily such an order operates as an
adjudication on the merits, Fed. R. Civ. P. 41(b), and is there‐
fore with prejudice. But the rule has an exception for a dis‐
missal for “lack of jurisdiction,” and this includes a dismissal
for lack of personal jurisdiction. See, e.g., Intera Corp. v. Hen‐
derson, 428 F.3d 605, 620–21 (6th Cir. 2005). For without per‐
sonal jurisdiction, a court has no authority to adjudicate a
case on the merits. Probably, therefore, the statement in the
brief is a mistake. But that’s something to be considered if
and when the plaintiffs refile the suit.
A FFIRMED.

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16 No. 13‐2316
A PPENDIX: P HOTOGRAPHS OF BADAL AND KALRA
Parkash Singh Badal

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No. 13‐2316 17
Surinderpal Singh Kalra

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