                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 13-1522
                                    ____________

                        SHARON BEN-HAIM; SOL HAVIVI;
                            GAMLIEL ELMALEM,
                                             Appellants

                                           v.

                 YAAKOV NEEMAN; MOSHE KACHLON; EDNA
                ARBEL; SIMONA SHTINMETZ; BATYA ARTMAN;
               NIVA MILNER; DANIEL EDRI; KONRAD ADENAUER
                 STIFTUNG; INTERNATIONAL FELLOWSHIP OF
                  CHRISTIANS AND JEWS; NEW ISRAEL FUND
                     __________________________________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                              (D.C. Civ. No. 12-cv-00351)
                       District Judge: Honorable Jose L. Linares
                      __________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 1, 2013

               Before: AMBRO, SHWARTZ and SCIRICA, Circuit Judges

                          (Opinion filed: November 4, 2013)
                                _________________

                                     OPINION
                                 _________________

PER CURIAM

       Appellants Sharon Ben-Haim, Sol Havivi, and Gamliel Elmalem appeal the

District Court’s order dismissing their amended complaint. For the following reasons, we

will affirm.
       Ben-Haim, Havivi, and Elmalem are fathers who are dissatisfied with the

resolution of their marital and child custody cases in the courts of Israel. They allege that

Israel’s family law system discriminates unfairly against fathers in child custody and

support disputes. On January 17, 2012, they filed suit in the United States District Court

for the District of New Jersey against high-ranking Israeli officials, including a current

Justice of Israel’s Supreme Court, two former cabinet-level Ministers, and a current judge

of the Haifa Rabbinical District Court. They also sued three not-for-profit, charitable

entities, contending that they provide funds, and lobby, for policies that promote

discrimination against fathers in the Israeli courts.

       Ben-Haim is a New Jersey resident alien who alleged that his child was kidnapped

from the United States to Israel by the child’s mother. Ben-Haim sought relief in Israel

pursuant to the Hague Convention on the Civil Aspects of International Child Abduction,

but, during the pendency of his lawsuit in Israel, his efforts for interim access to his child

allegedly were thwarted by the defendants. He claims that they failed to take action to

abolish institutionalized policies elevating the rights of mothers over the rights of fathers.

Ben-Haim’s child abduction case ultimately was resolved in Israel’s Supreme Court.

Elmalem is a United States citizen, who currently resides in Israel. He alleged that his

domestic violence arrest in Israel, his child support payments, and his supervised

visitation were unlawful. Havivi also is a United States citizen, currently residing in

Israel. He alleged that social workers have “abused” and “tortured” him by subjecting

his children to psychiatric treatment and medications intended to teach them that they do

not need him in their lives.



                                              2
       Count 1 of the amended complaint sought money damages under the Alien Tort

Statute (“ATS”), 28 U.S.C. § 1350, for recklessly disregarding torture and crimes against

humanity in violation of international law. Count 2 sought damages for recklessly

disregarding torture under the Torture Victim Protection Act (“TVPA”), 28 U.S.C. §

1350 note. Count 3 sought money damages for reckless disregard for human and parental

rights under the ATS. Count 4 appeared to be a common law claim for emotional

distress, and Counts 5, 6, and 7 sought money damages against the non-profit, charitable

organizations for financing radical feminism, allegedly in violation of the ATS. The

defendants moved to dismiss the amended complaint for lack of subject matter

jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim

upon which relief may be granted under Federal Rule of Civil Procedure 12(b)(6).

       In an order entered on January 24, 2013, the District Court dismissed all claims

against all defendants for lack of subject matter jurisdiction and for failure to state a

claim. Among other things, the court concluded that the amended complaint alleged no

cognizable ATS claims and that the plaintiffs had not alleged that any of the defendants

tortured them within the meaning of the TVPA. Although the District Court held that the

specific claims under the ATS could not proceed, the court noted in the margin that the

United States Supreme Court had recently heard oral argument in Kiobel v. Royal Dutch

Petroleum Co., 133 S. Ct. 1659 (2013), concerning whether the ATS allows courts to

recognize a cause of action for violations of the law of nations occurring within the

territory of another nation. The District Court reasoned that Kiobel, depending on how it

was decided, could provide yet another basis for dismissing the ATS claims with

prejudice for lack of subject matter jurisdiction.

                                               3
       Ben-Haim, Elmalem, and Havivi appeal. We have jurisdiction under 28 U.S.C.

§ 1291. We exercise plenary review over the District Court’s dismissal of a complaint

pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See Howard Hess

Dental Labs. Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 246 (3d Cir. 2010) (Rule

12(b)(6)); United States ex rel. Atkinson v. Pennsylvania Shipbuilding Co., 473 F.3d 506,

514 (3d Cir. 2007) (Rule 12(b)(1)). Under Rule 12(b)(1), the District Court must grant a

motion to dismiss if subject matter jurisdiction is lacking. See In re Schering Plough

Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012); see also

Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter

jurisdiction, the court must dismiss the action.”).

       We will affirm. The ATS provides that “district courts shall have original

jurisdiction of any civil action by an alien for a tort only, committed in violation of the

law of nations or a treaty of the United States.” 28 U.S.C. § 1350. The ATS is a

jurisdictional statute that provides no causes of action, but permits federal courts to

recognize private claims “defined by the law of nations and recognized at common law.”

Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004). As a general matter, subject matter

jurisdiction under the ATS is very limited. See id. A claim is not recognized unless it

establishes a violation of a “specific, universal, and obligatory” norm of international

law, see id. at 732 (quoting In re Estate of Marcos Human Rights Litigation, 25 F.3d

1467, 1475 (9th Cir. 1994)).

       Although we very much doubt that the allegations in the amended complaint

concerning Israel’s family law system are actionable under the ATS (for example, it was

alleged that Israeli family courts elevate the rights of mothers over the rights of fathers in

                                              4
a way that amounts to “crimes against humanity”), 1 we need not reach the issue because,

in Kiobel, 133 S. Ct. 1659 (2013), the Supreme Court held that the ATS does not apply

when all of the relevant conduct took place outside the United States. See id. at 1669. In

Kiobel, Nigerian nationals sued Dutch, British, and Nigerian corporations under the ATS,

alleging that the corporations aided and abetted the Nigerian Government in committing

violations of the law of nations – extrajudicial killings, crimes against humanity, torture,

arbitrary arrest and detention, forced exile – in Nigeria. Relying on the statutory canon

against extraterritorial application of federal statutes, the Court held that the presumption

against extraterritoriality applied to claims brought under the ATS and that nothing in the

statute’s text, history, or purposes rebutted that presumption. 2 Here, the conduct that

formed the basis of the ATS claims took place in Israel, and thus subject matter

jurisdiction over Counts 1, 3, and 5-7 of the amended complaint is lacking in the federal

courts.

          With respect to the claims under the TVPA, dismissal under Rule 12(b)(6) is

proper where the amended complaint fails to state a claim upon which relief may be

granted, such as where the plaintiffs are unable to plead “enough facts to state a claim to

relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007). The plausibility standard “asks for more than a sheer possibility that a defendant

1
  The appellee Israeli officials have represented in their brief that, in fact, Israel’s child
custody laws and social welfare policies are based on “the best interests of the child,” the
standard applied in the United States. See Appellee’s Brief at 18.
2
 The presumption against extraterritorial application provides that “[w]hen a statute
gives no clear indication of an extraterritorial application, it has none.” Morrison v.
National Australia Bank Ltd., 130 S. Ct. 2869, 2878 (2010). The presumption “serves to
protect against unintended clashes between our laws and those of other nations which
could result in international discord.” E.E.O.C. v. Arabian American Oil Co., 499 U.S.
244, 248 (1991).
                                               5
has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Conclusory

allegations are insufficient to survive a motion to dismiss. See Fowler v. UPMC

Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Although the TVPA explicitly establishes

the liability of an individual who subjects another to torture, 28 U.S.C. § 1350 note,

§ 2(a), the District Court correctly determined that the TVPA claims here failed to state a

claim for relief.

       Torture under the TVPA is defined as:

               (1) [A]ny act, directed against an individual in the offender’s custody or
               physical control, by which severe pain or suffering (other than pain or
               suffering arising only from or inherent in, or incidental to, lawful
               sanctions), whether physical or mental, is intentionally inflicted on that
               individual for such purposes as obtaining from that individual or a third
               person information or a confession, punishing that individual for an act that
               individual or a third person has committed or is suspected of having
               committed, intimidating or coercing that individual or a third person, or for
               any reason based on discrimination of any kind.

Id. at § 3(b)(1). Torture under the TVPA refers to “extreme, deliberate, and unusually

cruel practices . . . .” See Simpson v. Socialist People’s Libyan Arab Jamahiriya, 326

F.3d 230, 234 (D.C. Cir. 2003) (quoting Price v. Socialist People’s Libyan Arab

Jamahiriya, 294 F.3d 82, 92 (D.C. Cir 2002)) (listing as examples of torture “sustained

systematic beating, application of electric currents to sensitive parts of the body, and

tying up or hanging in positions that cause extreme pain”).

       The claims alleged in the amended complaint here fail for numerous reasons but,

among those reasons the District Court correctly held that the amended complaint

contains no allegations of extreme, deliberate, or unusually cruel practices. There are in

fact no allegations of physical harm. Nor were there any allegations of severe mental

harm. Severe mental pain or suffering is defined by the TVPA as

                                              6
                . . . prolonged mental harm caused by or resulting from—
                (A) the intentional infliction or threatened infliction of severe
                physical pain or suffering;
                (B) the administration or application, or threatened
                administration or application, of mind altering substances or
                other procedures calculated to disrupt profoundly the senses
                or the personality;
                (C) the threat of imminent death; or
                (D) the threat that another individual will imminently be
                subjected to death, severe physical pain or suffering, or the
                administration or application of mind altering substances or
                other procedures calculated to disrupt profoundly the senses
                or personality.

28 U.S.C. § 1350 note, § 3(b)(2)(A)-(D). Nothing of the sort was alleged in the amended

complaint, and, although Havivi claimed that his children were subjected to forcible

psychiatric treatment and medication, this allegation, even if true, does not support the

plausible inference that the defendants tortured him with the threat that his children

would be subjected to psychiatric treatment and medications. Accordingly, because the

amended complaint failed to allege any facts from which the District Court could

plausibly have inferred that the appellants were subjected to severe physical or mental

pain, Count 2 was properly dismissed for failure to state a claim upon which relief may

be granted. 3

       For the foregoing reasons, we will affirm the order of the District Court dismissing

the amended complaint. Appellant’s motion to add evidence to the appeal is denied.




3
  The District Court also properly declined to exercise jurisdiction on the basis of
diversity of citizenship over Count 4, see 28 U.S.C. § 1332(a). See also Swiger v.
Allegheny Energy, Inc., 540 F.3d 179, 183-84 (3d Cir. 2008) (“In order to be a citizen of
a State within the meaning of the diversity statute, a natural person must be both a citizen
of the United States and be domiciled within the State.” (quoting Newman-Green, Inc. v.
Alfonzo-Larrain, 490 U.S. 826, 828 (1989))).
                                              7
