Bower v. El–Nady
| Decision Date | 21 March 2012 |
| Docket Number | Civil Action No. 10–10405–RGS. |
| Citation | 847 F.Supp.2d 266 |
| Parties | Colin BOWER, on his own behalf and on behalf of his minor children, N and R v. Mirvat EL–NADY, and EgyptAir Airlines. |
| Court | U.S. District Court — District of Massachusetts |
OPINION TEXT STARTS HERE
Barry S. Pollack, Joshua L. Solomon, Sullivan & Worcester LLP, Howard M. Cooper, Julie E. Green, Todd & Weld LLP, Boston, MA, for Colin Bower.
Brian P. Voke, Shalissa M. Dougherty, Campbell, Campbell, Edwards & Conroy, PC, Boston, MA, Christopher Carlsen, Deborah A. Elsasser, Clyde & Co U.S. LLP, New York, NY, for Mirvat El–Nady, and Egyptair Airlines.
MEMORANDUM AND ORDER ON DEFENDANT EGYPTAIR AIRLINES' MOTION FOR SUMMARY JUDGMENT
Plaintiff Colin Bower brought this action on his own behalf and in his capacity as the guardian of his two minor children after his former wife, defendant Mirvat El–Nady, fled to Cairo, Egypt, in August of 2009, taking the children with her without his consent and in violation of a Massachusetts court order granting custody to Bower. This decision does not affect the validity of the custody order, or the criminal prosecution of Mirvat El–Nady. Rather, it involves a related but separate claim against defendant EgyptAir, the airline on which El–Nady flew with her children from New York to Cairo. Bower alleges that EgyptAir should have refused passage to El–Nady and the children, and by failing to do so is liable for interference with his custodial relations, negligence, negligent infliction of emotional distress, and loss of filial consortium.
On February 5, 2010, Bower brought this action in the Massachusetts Superior Court. On March 8, 2010, EgyptAir removed the case to the federal district court on both diversity and preemption grounds. After the removal, Bower filed an Amended Complaint on March 12, 2010. The case was assigned to Judge Gertner. On June 18, 2010, EgyptAir filed a motion to dismiss for lack of personal jurisdiction, or, in the alternative, to dismiss or transfer venue to New York pursuant to 28 U.S.C. § 1406(a) or § 1404(a). A number of jurisdictional discovery motions ensued, including motions to compel the deposition testimony of Bruce Bower (Colin Bower's father), a motion to compel Michael Traft, El–Nady's attorney, to respond to a subpoena for an in camera inspection by the court of a privilege log and retention agreement with El–Nady, as well as motions to quash various subpoenas to third-parties. The resolution of these motions was referred by Judge Gertner to Magistrate Judge Dein. On March 29, 2011, 2011 WL 1253897, Judge Gertner adopted a Report and Recommendation that she deny EgyptAir's motion to dismiss.1
On September 23, 2011, following Judge Gertner's retirement, the case was assigned to this session. On February 21, 2012, the court resolved a subject matter jurisdiction dispute among the parties, finding the existence of diversity jurisdiction pursuant to 28 U.S.C. § 1332. See Bower v. El–Nady, 844 F.Supp.2d 191, 2012 WL 542589 (D.Mass. Feb. 21, 2012). Presently before the court is EgyptAir's motion for summary judgment. The court heard oral argument on March 1, 2012. Neither El-Nady nor her representative appeared at the hearing.
The facts, in the light most favorable to Bower as the nonmoving party, are as follows.2 El–Nady, an Egyptian citizen, and Bower, a United States citizen, met in Cairo, Egypt, and were married there in 1998. They later moved to London, where their two sons, N and R, were born. The children are citizens of both the United Kingdom and the United States.3 In 2005, the family moved to Massachusetts, but by December of 2008, the marriage had deteriorated into a divorce. Bower was given sole legal custody of the children, but shared physical custody with his ex-wife. Judgment of Divorce ¶ 1. Under the terms of the divorce decree, El–Nady was not permitted to take the children out of Massachusetts. Id. ¶ 8. Between December of 2008 and August of 2009, El–Nady lived in an apartment in Newton and the children attended private school in Boston.
On August 11, 2009, during a scheduled multi-day visit, El–Nady drove the children to John F. Kennedy International Airport (JFK) in New York and purchased three one-way business-class tickets to Cairo on a departing EgyptAir flight. Am. Compl. ¶ 11. El–Nady paid for the tickets, which cost nearly $10,000, with cash. Statement of Facts (SOF) ¶¶ 34–35, 38, 84.4 El–Nady produced her own Egyptian passport, as well as Egyptian passports for N and R. SOF ¶ 36. The last name on her passport—El-Nady—differed from the name on her sons' passports.5Id. Bower contends that he had no knowledge that his sons had been issued Egyptian passports and that he had never consented to the issuance.6Id. ¶ 37.
EgyptAir did not examine the children's passports for prior entry visas to the United States, nor were there any.7Id. ¶¶ 34, 87. Bower asserts that EgyptAir also failed to request I–94 forms from El–Nady for herself and the children.8Id. ¶ 88.
On August 16, 2009, Bower discovered that the children were missing and filed a police report. As a result, El–Nady was charged with both state and federal criminal kidnapping offenses. Am. Compl. ¶¶ 7, 24. Since August of 2009, Bower has seen his children four times. SOF ¶ 80. Each of the visits took place in Cairo and were arranged through the United States Embassy; the visits were supervised by El–Nady and members of her family. Id. During the visits, Bower observed a “shift in the behavior of his children reflecting serious psychological injury and trauma” and that “both boys appeared physically unhealthy.” Id. ¶ 103. Bower alleges that he has personally suffered “intense emotional distress which has been accompanied by physical manifestations including headaches, stomachaches, loss of sleep, scabs on his scalp, loss of hair, and heart palpitations.” Id.
Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “To succeed, the moving party must show that there is an absence of evidence to support the nonmoving party's position.” Rogers v. Fair, 902 F.2d 140, 143 (1st Cir.1990). If this is accomplished, the burden then “shifts to the nonmoving party to establish the existence of an issue of fact that could affect the outcome of the litigation and from which a reasonable jury could find for the [nonmoving party].” Id. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphases in original). A material fact is one which has the “potential to affect the outcome of the suit under applicable law.” Nereida–Gonzalez v. Tirado–Delgado, 990 F.2d 701, 703 (1st Cir.1993). Rule 56 “mandates the entry of summary judgment ... upon motion against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The nub of Bower's case against EgyptAir is the allegation that the airline “failed to use any reasonable pre-embarkation safeguards to protect against the use of its services by a customer to abduct children.” Am. Compl. ¶ 15. Bower alleges that Id. ¶ 22. Moreover, “EgyptAir knew or should have known of the particular risk of child abductions to Egypt because of the difficulty in apprehending abductors in and recovering children kidnapped to Egypt.” Id. ¶ 19.
For its part, EgyptAir asserts that it owed Bower no duty to investigate whether a citizen of Egypt, traveling to Cairo with her children (both of whom appeared to have valid Egyptian passports and who showed no signs of distress), was in fact doing so in violation of a court order. EgyptAir contends that the “red flags” to which Bower refers—principally El–Nady's use of cash to buy expensive same-day one-way tickets to Cairo—would not have alerted it to a parental child abduction. Because it owed Bower no legal duty, EgyptAir maintains that Bower cannot succeed on any of his claims.9Preemption by the Airline Deregulation Act and/or The Warsaw Convention, as amended by the Montreal Agreement
As a preliminary matter, EgyptAir asserts that Bower's common-law tort claims are preempted by the Airline Deregulation Act (ADA), which prohibits any state from “enact[ing] or enforc[ing] a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier....” 49 U.S.C. § 41713(b)(1). On this issue, the court disagrees. Even accepting the proposition that the ticketing and checking-in of passengers are “services,” that determination does not conclude the matter. “The ADA does not preempt all claims arising from an airline service, but only those arising under state laws that are ‘related to’ that service.” Gill v. JetBlue Airways Corp., 836 F.Supp.2d 33, 41, 2011 WL 6258518, at *6 (D.Mass. Dec. 14, 2011). “[I]n cases involving personal injury, courts have generally held that negligence claims were not preempted by the ADA on the grounds that the enforcement of tort remedies is not sufficiently ‘related to’ airline services.” Id., at 42, at *7 (omitting cited cases).
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Bower v. Egyptair Airlines Co.
...in question implicated “services,” but it felt that the claims did not “relate to” the “services” strongly enough. Bower v. El–Nady, 847 F.Supp.2d 266, 272 (D.Mass.2012). It viewed the negligence claims as being similar to personal injury tort claims, which nearly all courts agree are not p......
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Bower v. El-Nady
...with her children from New York to Cairo. The court granted summary judgment in EgyptAir's favor on March 22, 2012. Bower v. El–Nady, 847 F.Supp.2d 266 (D.Mass.2012). That decision is currently on appeal by Bower. The appeal does not, however, divest this court of jurisdiction to enter an a......