Bower v. Egyptair Airlines Co.
| Decision Date | 02 October 2013 |
| Docket Number | No. 12–1427.,12–1427. |
| Parties | Colin BOWER, on his own behalf and as the guardian and legal custodian of his minor children, N and R, Plaintiff, Appellant, v. EGYPTAIR AIRLINES COMPANY, Defendant, Appellee, Mirvat El–Nady Bower, Defendant. |
| Court | U.S. Court of Appeals — First Circuit |
OPINION TEXT STARTS HERE
Joshua L. Solomon, with whom Barry S. Pollack, Sullivan & Worcester LLP, Howard M. Cooper, Julie E. Green and Todd & Weld LLP, was on brief for appellant.
Christopher Carlsen, with whom Deborah Anne Elsasser, Clyde & Co. U.S. LLP, Brian Paul Voke and Campbell Campbell Edwards & Conroy, P.C., was on brief for appellee.
Judith R. Nemsick, with whom Holland & Knight LLP and Michael T. Maroney, was on brief for Amici Curiae International Air Transport Association and Air Transport Association of America, Inc.
Before LYNCH, Chief Judge, TORRUELLA, Circuit Judge, and DiCLERICO, * District Judge.
This appeal stems from an international parental kidnapping perpetrated by defendant Mirvat El–Nady. Plaintiff-appellant in this case, Colin Bower, is El–Nady's former husband. In August 2009, El–Nady acted in violation of a court order when she drove the former couple's two minor children to New York City, where they boarded an EgyptAir Airlines Company (“EgyptAir”) flight to Cairo, Egypt. This prompted Bower, on his own behalf and on behalf of his two minor children, to initiate this lawsuit against El–Nady and EgyptAir. Bower claims that the airline interfered with his custodial relations and was negligent in allowing El–Nady to board the flight despite the alleged presence of “red flags” suggesting that she was abducting the two children. The district court granted EgyptAir's motion for summary judgment and dismissed Bower's claims, finding that EgyptAir did not know of El–Nady's plan to abduct the children and did not owe either Bower or the children a duty to investigate the “red flags.” Bower now appeals from that determination, arguing, among other things, that the district court erred in determining that it had subject matter jurisdiction. We find that the district court had jurisdiction over the claims and affirm their dismissal, albeit on the grounds that the claims are preempted under the Airline Deregulation Act, 49 U.S.C. § 41713 (“ADA”).
Mirvat El–Nady, an Egyptian citizen, and Colin Bower, a United States citizen, met in Cairo, Egypt and married in 1998. Subsequently, they moved to London where they had two children, whom the parties refer to as “N” and “R.” 1 In 2005, the family moved to Massachusetts, but the relationship between Bower and El–Nady eventually soured, and they divorced in Massachusetts on December 1, 2008. Pursuant to the divorce decree, Bower was given sole legal custody of the children, but he shared physical custody with El–Nady. The decree also prohibited El–Nady from taking the children out of Massachusetts.
On or about August 7, 2009, Bower dropped off the children at El–Nady's home in Massachusetts for a court-ordered visit. On August 11, 2009, El–Nady drove the two children to John F. Kennedy International Airport (“JFK”) in New York. Once there, she purchased three one-way business-class tickets to Cairo, Egypt, for which she paid almost $10,000 in cash. El–Nady and her children presented Egyptian passports for travel. EgyptAir did not recognize that the children's passports had no entry visas reflecting the children's arrival in the United States. Moreover, EgyptAir did not comment on the fact that El–Nady and her children had different last names,2 nor did it check for their I–94 forms.3
Following their flight, El–Nady and the children remained in Cairo, Egypt with no intention of returning to the United States. El–Nady had previously worked in Egypt and currently has family there. In December 2009, approximately four months after moving to Egypt, El–Nady obtained an order from a court in Cairo granting her custody of the two children. Shortly thereafter, Bower retained counsel in Cairo and appealed the custody order.4 The Cairo court granted Bower's motion seeking visitation rights, and he was able to visit the children at least four times in Cairo, under the supervision of El–Nady and members of her family.
On February 5, 2010, Bower filed this action in Massachusetts Superior Court on his behalf and on behalf of his children in his capacity as guardian of “N” and “R.” As defendants, he listed both El–Nady 5 and EgyptAir. His complaint asserted that EgyptAir intentionally interfered with his custodial relations and was negligent in allowing El–Nady and the children passage to Egypt despite the presence of numerous “red flags” that suggested a child abduction was in progress. He also alleged that he has incurred significant economic damages in attempting to locate and recover his children since they were abducted by his former spouse, and that he has suffered trauma and emotional distress with physical manifestations, as well as loss of filial consortium, due to the absence of his children.
On March 8, 2010, EgyptAir removed the case to federal district court on diversity grounds or, alternatively, on the grounds that the claims were preempted by an international treaty known as the Montreal Convention. 6 Following removal, Bower filed a motion seeking a ruling to resolve the issue of whether the court possessed subject matter jurisdiction. The district court determined that there was diversity jurisdiction, finding that both El–Nady and EgyptAir were citizens of Egypt at the time the litigation commenced.
On March 21, 2012, the district court granted EgyptAir's motion for summary judgment and dismissed all of Bower's claims against EgyptAir. As a threshold matter, the district court rejected EgyptAir's argument that the claims against it were preempted by the ADA and the Montreal Convention. As to the merits, the district court found that EgyptAir had no actual knowledge that El–Nady in fact planned to kidnap the children, thus dooming Bower's interference with custodial relations claim. As to the negligence claims, the court concluded that EgyptAir owed no duty of care, either to Bower or the children, to investigate whether El–Nady was traveling with them in violation of a court order.
Following the district court's ruling on the motion for summary judgment, Bower filed this timely appeal.7
We begin our discussion by explaining why the district court possessed subject matter jurisdiction over this case. We then proceed to the matter of preemption under the ADA.
Bower's first argument on appeal is that the district court erred when it found that the parties had complete diversity of citizenship. Specifically, Bower claims that El–Nady is a “fugitive from justice” under 18 U.S.C. § 1073, since she fled the United States to avoid prosecution for kidnapping his children. Because she is a fugitive, he argues, the district court should have found that her domicile was her last known pre-flight residence in Massachusetts. Such a finding would, Bower argues, properly divest the court of subject matter jurisdiction.
We review the district court's conclusion that it had subject matter jurisdiction over the complaint de novo. Fernández–Vargas v. Pfizer, 522 F.3d 55, 63 (1st Cir.2008). For the following reasons, we disagree with Bower's jurisdiction argument and find that the district court correctly concluded that El–Nady's domicile for diversity purposes is Egypt.
The law is well established that an adult person acquires a legal “domicile” when he or she is physically present in a location and has the intent to remain there for the indefinite future. Hall v. Curran, 599 F.3d 70, 72 (1st Cir.2010); see García–Pérez v. Santaella, 364 F.3d 348, 350 (1st Cir.2004); Rodríguez–Díaz v. Sierra–Martínez, 853 F.2d 1027, 1029 (1st Cir.1988) (). El–Nady, by virtue of her presence in Egypt and her demonstrated intent to remain there, acquired a legal domicile in Egypt. Her status as a fugitive does not prevent such a finding where the “presence plus intent” rule is satisfied. See Stifel v. Hopkins, 477 F.2d 1116, 1123 (6th Cir.1973) (); Popal v. Slovis, No. 12 Civ. 3916, 2013 WL 1234875 (S.D.N.Y. Mar. 27, 2013) ().
It is only when these presence and intent requirements cannot be met, such as when a fugitive's current whereabouts are unknown, that the fugitive's last domicile before fleeing “should be his domicile for diversity purposes.” See Lloyd v. Loeffler, 694 F.2d 489, 490 (7th Cir.1982). As Judge Posner explained:
It seems absurd to hold that since a fugitive might be domiciled anywhere or maybe even nowhere the act of becoming a fugitive puts a person beyond the jurisdiction of the federal courts. Probably the last domicile of the fugitive before he fled should be his domicile for diversity purposes.... This is a simple rule, and avoids rewarding the fugitive for his elusiveness.
Id. at 490 (internal citation omitted). Where an alleged fugitive has established both physical presence and intent to remain indefinitely at a known location, however, the logic of Lloyd does not sound with equal force. Cf. Ríos v. Civiletti, 571 F.Supp. 218, 223 (D.P.R.1983) (). Under such circumstances, the fugitive has, through compliance with the ...
To continue reading
Request your trial
- R.J. Reynolds Tobacco Co. v. Cnty. of San Diego
- Neighborhood Mkt. Ass'n, Inc. v. Cnty. of San Diego
-
NCTA -- The Internet & Television Ass'n v. Frey
...is "inconsistent with" § 546 of that same federal statute. See 47 U.S.C. § 556(c). Our review is de novo. See Bower v. Egyptair Airlines Co., 731 F.3d 85, 92 (1st Cir. 2013).Section 546 of the Cable Act provides that where a franchising authority determines preliminarily that a cable system......
-
Capron v. Office of the Attorney Gen. of Mass.
...this same inference.6 We review de novo the District Court's finding that there is no field preemption. See Bower v. Egyptair Airlines Co., 731 F.3d 85, 92 (1st Cir. 2013). We conclude that the District Court did not err in rejecting the plaintiffs' field preemption claim.1.In DeCanas v. Bi......