Choksi et al v. Trivedi et al

Filing 8

Judge William G. Young: ORDER entered granting 3 Motion for Leave to Proceed in forma pauperis; denying 4 Motion to Appoint Counsel ; denying 5 Motion to Appoint Counsel ; granting 2 Motion for Leave to Proceed in forma pauperis. The pla intiffs are ordered to show cause, within thirty-five (35) days, why this action should not be dismissed for the reasons set forth above. Failure to do so will result in dismissal of the action. (Copies of Order sent by first-class mail to each plaintiff on 4/4/2017.) (PSSA, 3)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
LEENA CHOKSI and VIKAS CHOKSI,
Plaintiffs,
v.
RUPAL TRIVEDI, et al.,
Defendants.

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CIVIL ACTION NO.
16-12340-WGY

MEMORANDUM AND ORDER
YOUNG, D.J.

April 4, 2017

For the reasons set forth below, the Court (i) grants the
plaintiffs’ motions for leave to proceed in forma pauperis;
(ii) directs the plaintiffs to show cause why this action should
not be dismissed; and (iii) denies the plaintiffs’ motions for
appointment of counsel.
I.

Background
On November 18, 2016, Leena Choksi (“Leena”) and her adult

son Vikas Choksi (“Vikas”), filed a self-prepared complaint in
which they allege that three individuals--Anantvijay Trivedi
(“Anantvija”), Dharmista Trivedi (“Dharmista”), and their
daughter Rupal Trivedi (“Rupal”) were responsible for the sexual
exploitation and abuse of Vikas in 1988.

At that time, Vikas was

15 years old and all the parties lived in India.

Presently, the

plaintiffs live in Washington state and Rupal lives in Lowell
Massachusetts.

The plaintiffs acknowledge that Rupal’s mother,

Dharmista, is deceased.

See Compl. at 7, ¶ 3.

Public media

reports suggest that Anantvijay passed in September 2016.1
According to the allegations in the complaint, which the
Court assumes to be true for purposes of present review of the
sufficiency of the pleading, all three defendants manipulated
Vikas to have a sexual relationship with Rupal, notwithstanding
that he did not want to.

Rupal was less than a year older than

Vikas and he viewed her as a sister rather than as a romantic
interest.

Vikas was uncomfortable when Rupal started to make

advances to him, and sought advice from Rupal’s father, whom
Vikas thought of as a “guru.”

Anantvijay told Vikas that there

was nothing wrong with Rupal and Vikas being sexually intimate
and that sexual relationships bring enlightenment.

Reluctantly,

Vikas had sexual intercourse with Rupal on two occasions,
believing that it was a religious exercise and that it would be a
“sin” to not follow the directions of Rupal’s father.

Vikas’s

mother was unaware of the situation at the time.
In 1989 Rupal and her parents immigrated to the United
States. At some point, Vikas and his mother immigrated to the
United States.

As an adult, he had a car accident in the United

States which resulted in him undergoing a psychological
evaluation.

During this process, he realized for the first time

that Rupal and her family abused and harmed him and that the

1

See “Obituary for Anantvijay M. Trivedi” on the website of
Driscoll Funeral Home, available at
http://driscollfuneralhome.tributes.com/obituary/read/AnantvijayM.-Trivedi-103904293 (last visited Mar. 27, 2017). In light of
this document, the Court will assume that Anantvijay is deceased.
However, the plaintiffs are free to rebut this assumption.
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sexual relationship into which he had been manipulated had
nothing to do with religion or karma.

He also understood that he

had been suffering from Post Traumatic Stress Disorder from these
events that happened in his childhood.
After this discovery, Vikas shared with his family what had
happened between him and Rupal.

His mother then understood why

he had changed from a “happy go lucky” child to one that was no
longer emotionally close to his family, why his personality had
changed, why his memory and concentration had declined, and why
he had dropped out of medical school.
The plaintiffs seek damages in the amount of $10 million.
They invoke the Court’s diversity subject matter jurisdiction.
In the body of the complaint and in separate motions, the
plaintiffs seek appointment of counsel.
II.

Discussion
A.

Motion for Leave to Proceed In Forma Pauperis

Upon review of th plaintiffs’ motions for leave to proceed
in forma pauperis, the Court concludes that they are without
income or assets to pay the $400.00 filing fee.

The motions are

therefore granted.
B.

Screening of the Action

When a plaintiff is allowed to proceed without prepayment of
the filing fee, summonses do not issue until the Court reviews
the complaint and determines that it satisfies the substantive
requirements of 28 U.S.C. § 1915.

This statute authorizes

federal courts to dismiss a complaint sua sponte if the claims
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therein are frivolous, malicious, fail to state a claim on which
relief may be granted, or seek monetary relief against a
defendant who is immune from such relief.
§ 1915(e)(2).

See 28 U.S.C.

In conducting this review, the Court liberally

construes the complaint because the plaintiff is proceeding pro
se.

See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
For the reasons set forth below, the plaintiffs have failed

to state a claim upon which relief may be granted.
1.

Choice of Law

Because the plaintiffs’ action does not arise under federal
law, the Court must consider which law it should apply in
determining the sufficiency of the complaint.

A federal court

sitting in diversity jurisdiction must employ the choice-of-law
principles of the forum state.

See Klaxon Co. v. Stentor Elec.

Mfg. Co., 313 U.S. 487, 496 (1941).

Thus, the Court looks to

Massachusetts conflicts law to determine what law should apply.
In choice of law matters, Massachusetts “look[s] to [its]
established ‘functional’ choice of law principles and to the
Restatement (Second) of Conflict of Laws [1971]
[(“Restatement”)], with which those principles generally are in
accord.”

Hodas v. Morin, 442 Mass. 544, 549 (2004).

More

specifically, in regards to the instant action, the Court must
inquire what law concerning the statute of limitations and the
survival of an action would apply.
2.

Statute of Limitations

Under the “functional” choice of law principles, a
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Massachusetts court will apply its own statute of limitations
unless “(a) maintenance of the claim would serve no substantial
interest of the forum; and (b) the claim would be barred under
the statute of limitations of a state having a more significant
relationship to the parties and the occurrence.”

Anderson v.

Lopez, 80 Mass. App. Ct. 813, 815 (2011) (quoting Restatement
(revised 1988)).
Both prongs of this test are met in this case.
Massachusetts does not have an interest in application of its own
statute of limitations because all of the alleged misconduct
occurred in India decades ago when all the parties resided in
that country.

The only reason the action can be brought in

Massachusetts is because the defendants happen to live here
presently.
Further, under Indian law, the claim is time-barred.
India’s Limitation Act, 1963 (No. 36 of 1963),2 contains a
schedule of the period of limitations for certain enumerated
torts, the most applicable of which is for “an illegal, irregular
or excessive distress.”

The Limitation Act, 1963 (No. 36 of

1963) (Schedule Item No. 79).

The time for filing an action for

this tort is one year from the date of distress.

See id.

The

Limitation Act also contains a three-year period of limitations
for torts that are not specifically mentioned therein, which time
period is calculated from when the right to sue accrues.
2

See id.

Available at
http://lawmin.nic.in/ld/P-ACT/1963/A1963-36.pdf (last visited
Apr. 3, 2017).
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(Schedule Item No. 113).

Under either of these periods of

limitations, the plaintiffs’ claims are untimely.3
3.

Survival of Actions

Moreover, the claims against Anantvijay and Dharmista, the
parents of Rupal are subject to dismissal because the claims did
not survive the death of these defendants.

As noted above, the

plaintiffs acknowledge that Dharmista is deceased and it appears
that Anantvijay has also passed.

Thus, for purposes of this

memorandum and order, the Court will assume that the plaintiffs
are attempting to assert claims against the estates of Anantvijay
and Dharmista.4
The plaintiffs have not alleged that, under Indian law,
claims against Anantvijay and Dharmista for their conduct in the
1980’s would survive their death decades later.
Under the Restatement, “[t]he law selected by application
of the rule of § 145 determines whether a claim for damages for a
tort survives the death of the tortfeasor or of the injured
person.”

Restatement § 167.

In turn, Section 145 of the

Restatement provides the general principle applicable to torts,
3

Even assuming, arguendo, that the relevant period of
limitation did not commence until the plaintiffs realized that
the defendants conduct was wrongful, the plaintiffs have not
identified the date of that event. Further, they represent in a
letter filed in another federal court in July 2016 that they had
been speaking with attorneys for two to three years at that
point. See Choksi v. Trivedi, C.A. No. 16-05600-RBL (W.D. Wash.
July 7, 2016) (Docket Entry No. 2-1 at 2).
4

“[A] complaint brought against a deceased person cannot be
maintained because it is, ‘in truth, brought against nobody.’”
White v. Helmuth, 45 Mass. App. Ct. 634, 635 n.2 (1998) (quoting
Chandler v. Dunlop, 311 Mass. 1, 15 (1942)).
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and § 146 provides a principle applicable to causes of action
involving personal injury.

See Cosme v. Whitin Mach. Works,

Inc., 417 Mass. 643, 646-47 (1994).

In regards to choice of law

for tort actions, the relevant considerations are:
(a)

the place where the injury occurred,

(b)

the place where the conduct causing the injury
occurred,

(c)

the domicile, residence, nationality, place of
incorporation and place of business of the
parties, and

(d)

the place where the relationship, if any, between
the parties is centered.

Restatement § 145(2).

In an action for personal injury,5 “the

local law of the state where the injury occurred determines the
rights and liabilities of the parties, unless, with respect to
the particular issue, some other state has a more significant
relationship . . . to the occurrence and the parties.”
Restatement § 146.
Applying the principles set forth in these two sections, it
is clear that the last of India, rather than the law of
Massachusetts, should be applied in determining whether the
defendants’ alleged conduct gives rise to a cause of action by
the plaintiff.

The injury and the conduct causing the injury

occurred in India.

All the parties were domiciled in India at

the time of the relevant events occurred in India.
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The parties’

As used in the Restatement, a “‘personal injury’ may
involve either physical harm or mental disturbance, such as
fright and shock, resulting from physical harm or from threatened
physical harm or other injury to oneself or to another.”
Restatement § 146 cmt. b.
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relationship to each other centers around India, notwithstanding
the fact that they all presently reside in India.
India’s law concerning the survival of actions bars the
claims against Anantvijay and Dharmista.

Under India’s Legal

Representatives Suits Act, 1855, as amended by the Limitation
Act, 1963, an action may be maintained against the executor or
representative of an estate for wrongs committed within one year
before the death of the alleged wrong-doer.6

Because the

complaint concerns alleged events decades before the deaths of
Anantvijay and Dharmista, the plaintiffs cannot pursue claims
against their estates.
C.

Motions for the Appointment of Counsel
Although the Court “may request an attorney to represent any

person unable to afford counsel,” 28 U.S.C. §1915(e)(1), a civil
plaintiff lacks a constitutional right to free counsel, see
DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991).

The Court

does not have the funds to pay attorneys to represent plaintiffs
in civil cases.

The Court must rely on attorneys who volunteer

to provide their services on a pro bono basis.

To qualify for

6

Under the Legal Representatives’ Suits Act, 1855:

[A]n action may be maintained against the Executors or
Administrators or Heirs or Representatives of any
person deceased for any wrong committed by him in his
life time for which he would have been subject to an
action, so as such wrong shall have been committed
within one year before such person’s death . . . .
The Legal Representatives’ Suits Act, 1855 (No. 12 of 1855)
(emphasis added), available through http://indiacode.nic.in/
(last visited Apr. 3, 2017).
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this scarce resource, a party must be indigent and exceptional
circumstances must exist such that the denial of counsel will
result in fundamental unfairness impinging on the party’s due
process rights.

See DesRosiers, 949 F.2d at 23.

Here, there are no exceptional circumstances that would
justify the appointment of pro bono counsel.

As explained above,

the plaintiffs have failed to state a claim upon which relief may
be granted.

While the Court will give the plaintiffs an

opportunity to object to that conclusion, it is not apparent that
the defects identified by the Court can be cured. Accordingly,
the motions for appointment of counsel are DENIED.
ORDER
Accordingly:
1.

The motions for leave to proceed in forma pauperis are

GRANTED.
2.

The motion for appointment of counsel are DENIED.

3.

The plaintiffs are ordered to show cause, within

thirty-five (35) days, why this action should not be dismissed
for the reasons set forth above.

Failure to do so will result in

dismissal of the action.
SO ORDERED.
/s/ William G. Young
WILLIAM G. YOUNG
UNITED STATES DISTRICT JUDGE

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