Bower v. El-Nady Bower et al

Filing 171

Judge Richard G. Stearns: ORDER entered re: 157 Motion to Rule on Subject Matter Jurisdiction. (RGS, law3)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 10-10405-RGS
COLIN BOWER
v.
MIRVAT EL-NADY and EGYPTAIR AIRLINES
MEMORANDUM AND ORDER
ON PLAINTIFF’S MOTION FOR A RULING
ON SUBJECT MATTER JURISDICTION
February 21, 2012

STEARNS, D.J.
Plaintiff Colin Bower brought this action on his own behalf and as the guardian
of his two minor children after his ex-wife, defendant Mirvat El-Nady, took the children
to Cairo, Egypt, in August of 2009, without his consent and in violation of a court order
granting Bower custody. Bower alleges that defendant EgyptAir, the airline on which
El-Nady flew with her children from New York to Cairo, is liable for interference with
Bower’s custodial relations, negligence, negligent infliction of emotional distress, and
the loss of filial consortium. See Am. Compl.
On January 24, 2012, in papers opposing EgyptAir’s motion for summary
judgment, Bower asked this court to preemptively resolve the (hitherto unraised) issue

of subject matter jurisdiction.1 Bower’s suspicion is that EgyptAir is holding the issue
as a trump card against any adverse ruling by this court. See Am. Fiber & Finishing,
Inc. v. Tyco Healthcare Grp., LP, 362 F.3d 136, 138-139 (1st Cir. 2004) (any party,
or the court sua sponte, may raise a jurisdictional defect at any stage of the litigation).
The court heard oral argument on February 10, 2012.
DISCUSSION
El-Nady’s Domicile
Bower asks this court to remand his action to state court after nearly two years
of federal litigation. Bower asserts that because El-Nady is a “fugitive from justice,”
her domicile is Massachusetts, the state from which she fled to New York, and
ultimately to Cairo. (The consequence of a Massachusetts domiciliary finding would
be the spoliation of the complete diversity on which federal jurisdiction depends, see
28 U.S.C. § 1332). In an electronic Order, the court asked Bower to explain the theory
under which El-Nady could be deemed a “fugitive from justice” for domiciliary
1

Bower maintains that a careful reading of EgyptAir’s answer to its Amended
Complaint “suggests that a subject matter jurisdiction issue may exist, specifically
whether there is complete diversity among the parties.” Pl.’s Mot. for Ruling Resolving
Subject Matter Jurisdiction ¶ 1. In its Answer to Bower’s assertion of diversity
jurisdiction, EgyptAir responded that it “[a]dmits the allegations in paragraph 9 of the
Amended Complaint and refers all questions of jurisdiction to the Court.” Answer ¶ 11.
At the time EgyptAir removed the case to federal court from the Massachusetts
Superior Court, Bower took the position that he was domiciled in Massachusetts, while
the defendants (including his ex-wife) were domiciled in Egypt.
2

purposes.2 As presented to the court, Bower’s premise is that in cases of international
parental abduction, the abductor-parent is axiomatically deemed a fugitive under federal
law. In support of this contention, Bower cites Pub. L. No. 96-611, § 10(a), 94 Stat.
3566, which is entitled “Parental Kidnapping”:
In view of the findings of the Congress and the purposes of sections 6 to
10 of this Act set forth in section 302, the Congress hereby expressly
declares its intent that section 1073 of title 18, United States Code, apply
to cases involving parental kidnapping and interstate or international flight
to avoid prosecution under applicable State felony statutes.
Section 1073 criminalizes the act of fleeing to avoid prosecution.

2

In its February 3, 2012 Order, the court stated:

While the court accepts as a broad proposition of law that where a person
is a fugitive from justice her place of domicile for diversity jurisdiction
purposes is the place from which she fled, see Howell v. Tribune Entm’t
Co., 106 F.3d 215, 218 (7th Cir. 1997), a fugitive from justice in both the
common law and statutory contexts is defined as a person fleeing from a
criminal prosecution or seeking to avoid providing testimony in a criminal
proceeding. See generally United States v. 939 Salem Street, Lynnfield,
Ma., 2011 WL 3652525, at *2 (D. Mass. Aug. 19, 2011), quoting
Collazos v. United States, 368 F.3d 190, 199 (2d Cir. 2004) (the term
“fugitives” includes those who “learned that their arrests were sought and
who then refused to return to the United States in order to avoid
prosecution.”). See also 18 U.S.C. § 921(a)(15) (“The term ‘fugitive
from justice’ means any person who has fled from any State to avoid
prosecution for a crime or to avoid giving testimony in any criminal
proceeding.”). The court is not aware that El-Nady was either the subject
of an arrest warrant or had been subpoenaed or otherwise given notice
that her testimony was required in a criminal proceeding in either state or
federal court prior to her leaving New York for Egypt.
3

Whoever moves or travels in interstate or foreign commerce with intent
either (1) to avoid prosecution, or custody or confinement after
conviction, under the laws of the place from which he flees, for a crime,
or an attempt to commit a crime, punishable by death or which is a felony
under the laws of the place from which the fugitive flees, or (2) to avoid
giving testimony in any criminal proceedings in such place in which the
commission of an offense punishable by death or which is a felony under
the laws of such place, is charged, or (3) to avoid service of, or contempt
proceedings for alleged disobedience of, lawful process requiring
attendance and the giving of testimony or the production of documentary
evidence before an agency of a State empowered by the law of such State
to conduct investigations of alleged criminal activities, shall be fined
under this title or imprisoned not more than five years, or both.
According to Bower’s reading of the statute, the act of international parental
kidnapping in and of itself transforms the kidnapper into a federal fugitive. In the
alternative, Bower notes that in March of 2008, the Massachusetts Probate and Family
Court (Justice Merrill) held El-Nady in contempt.3 Bower argues that from this past
experience, El-Nady knew or should have known that her “flight to Egypt enabled her
to avoid prosecution under state parental kidnapping and contempt laws.” Bower
Letter, Feb. 6, 2012 (Dkt # 165).
EgyptAir, for its part, disagrees with the characterization of El-Nady as a fugitive

3

El-Nady was found guilty of contempt for having willfully “neglected and
refused to cooperate with the sale of the [couple’s] London flat.” Contempt Order
attached to Bower Letter, Feb. 6, 2012 (Dkt # 165). Justice Merrill ordered that ElNady be jailed until she complied, which she did after the hearing. The court notes
that at the time of El-Nady’s flight, she was no longer under the contempt order.
4

from justice. It argues that because the United States did not file a criminal complaint
against El-Nady until December 1, 2009 (well after her departure for Egypt on August
11, 2009), El-Nady could not have been fleeing a pending criminal prosecution.
EgyptAir also argues that Pub. L. No. 96-611, § 10(a), simply adds kidnapping to the
list of crimes for which a person can be charged with unlawful flight to avoid
prosecution (or the giving of testimony), and that El-Nady was not in fact charged
under section 1073.4 EgyptAir’s Resp. to Order to Show Cause at 3.
More to the point is EgyptAir’s argument that whether or not El-Nady is deemed
a fugitive, her status as such has no effect on the fixing of her domicile for purposes of
diversity jurisdiction.5 In this respect, EgyptAir is correct. The cases cited by Bower
apply when the whereabouts of a fugitive are unknown. The rationale for the rule is
perhaps best explained by Judge Posner in Lloyd v. Loeffler, 694 F.2d 489 (7th Cir.

4

El-Nady was eventually the subject of a criminal complaint filed under 18
U.S.C. § 1204(a), the international parental kidnapping statute. EgyptAir’s Resp. to
Order to Show Cause, Ex. A (Dkt # 152-6). In Bower’s reply, he states that EgyptAir’s
interpretation of Pub. L. No. 96-611, § 10(a) is “absurd on its face” as section 1073
already applied to the crime of kidnapping, and Congress was instead making clear its
intent that international “kidnappers,” as well as domestic “kidnappers,” be treated as
fugitives.
5

Although of no matter to the court’s determination (because subject matter
jurisdiction cannot be waived), EgyptAir makes the not-so-subtle aside that in his
Amended Complaint, Bower states that “on or about August 11, 2009, [El-Nady]
established a new domicile for herself in Egypt.” Am. Compl. ¶ 7.
5

1982).
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. Where, as here, El-Nady’s location – Cairo, Egypt – is known (if not her
precise geographic coordinates),6 her domicile is determined by applying the usual rule
– presence in a place coupled with the intent to remain there, determined as of the time
the litigation commences. See Hall v. Curran, 599 F.3d 70, 72 (1st Cir. 2010). See
also Connectu LLC v. Zuckerberg, 522 F. 3d 82, 91 (1st Cir. 2008), quoting Mollan
v. Torrance, 22 U.S. 537, 539 (1824) (“Citizenship is determined as of the date of
commencement of an action and, therefore, in cases premised on diversity, jurisdiction

6

EgyptAir asserts that Bower had actual knowledge of the street address in
Cairo where El-Nady was living when the lawsuit was initially filed in the Superior
Court in February of 2010, as Bower was then engaged in litigation with El-Nady in
an Egyptian court. (EgyptAir attaches, as Exhibit E to its brief, copies of invoices
issued to Bower by his Egyptian counsel.) Egyptian court orders, produced during
discovery, show that El-Nady obtained an order from an Egyptian court awarding her
custody of the children. Bower appealed the decision of the Egyptian court on
February 7, 2010. Bower has had at least four supervised visits with his children in
Egypt during the past two-and-a-half years, after the Egyptian court ordered El-Nady
to cooperate with the visitations. Bower asserts that the only address he has for ElNady in Egypt is the office address of a family member and that the actual address
where El-Nady and the children are presently living remains a secret.
6

‘depends upon the state of things at the time of the action brought.’”). Moreover, as
EgyptAir points out, there is some support for the proposition that “[a] fugitive from
justice can establish a legal ‘domicile’ where he is in hiding.” United States v.
Otherson, 480 F. Supp. 1369, 1371 n.4 (D. C. Cal. 1979), quoting Young v. Pollak, 5
So. 279, 282 (Ala. 1888).7 Here it is undisputed that at the time Bower filed this
lawsuit in Massachusetts, El-Nady had relocated to Egypt, and as Bower’s Complaint
asserts, intended to remain there with the children permanently.

7

At the February 10, 2012 hearing, EgyptAir also argued that because El-Nady
is not a citizen of the United States, her domicile must be based on her exclusion from
the relevant language of 28 U.S.C. § 1332(a), which states: “an alien admitted to the
United States for permanent residence shall be deemed a citizen of the State in which
such alien is domiciled.” EgyptAir contends that because El-Nady was not a
permanent legal resident of the United States, her domicile must be her country of
citizenship, in this case, Egypt. Thus, she falls under section 1332(a)(2), which deems
diversity to exist between “citizens of a State and citizens or subjects of a foreign
state.” The issue, however, is a subject of doubt. In Bower’s additional brief to this
court, he cites a portion of El-Nady’s deposition testimony in the 2007 Massachusetts
divorce proceedings in which she answered his attorney’s questions as follows:
Q: Do you have a social security number?
A: No, I don’t.
Q:Okay. Now, you handed the stenographer an identification, what identification
do you have today?
A: My green card, permanent resident card.
Q: And what’s your number?
A: REDACTED.
Ex. A, Dkt # 169.
7

EgyptAir’s Request to Dismiss El-Nady or Sever Her from the Action
In a request of its own, EgyptAir asks that El-Nady be severed as a defendant
from this action on two grounds.8 First, EgyptAir contends that El-Nady was not
properly served within 120 days of the filing of the Complaint as Fed. R. Civ. P. 4(m)
requires. Bower left the state court summons and Complaint at El-Nady’s former
apartment in Newton, Massachusetts, claiming it as her last “usual place of abode.”
See Fed. R. Civ. P. 4(e)(2). EgyptAir contends that service was not proper at the
Newton address because at the time – February of 2010 – Bower knew that El-Nady
resided in Cairo, Egypt. Consequently, he should have attempted to make service on
her in Egypt under the Hague Convention.9
Generally, the plaintiff must show “enough of a nexus or identity between
the individual served and the place where service was left to demonstrate
that the individual considered that place ‘home’ at the time of service.”
. . . Consistent with this analysis, Massachusetts courts considering
whether service was made at an individual’s “last and usual place of
abode” have found service to be improper where the defendant no longer
resided at the address to which the summons and complaint were
delivered. . . . Thus, in order to be considered the defendant’s “last and
usual place of abode” under Massachusetts law, there must be evidence
that the defendant was continuing to use the address as his home.
8

This is not the first time over the course of this litigation that EgyptAir has
made this request.
9

Egypt ratified the Hague Convention (formally known as the Convention on the
Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial
Matters) on December 12, 1968.
8

United States v. Tobins, 483 F. Supp. 2d 68, 75-76 (D. Mass. 2007) (citations
omitted).10
For his part, Bower argues that the court has already rejected a nearly identical
argument made by EgyptAir, holding that it lacked standing to challenge the service of
process on El-Nady. See Order on EgyptAir’s Mot. to Dismiss or Transfer (Dkt # 82).
Referencing an earlier memorandum of law in this case, Bower asserts that El-Nady
was properly served at the Newton address and that, in any event, she was on notice
that these claims were proceeding against her.11 See Dkt # 77. This factual assertion
was accepted by Magistrate Judge Dein, see Dkt # 82, and the court is not inclined to
revisit her decision.12

10

EgyptAir acknowledges that Rule 4(m)’s 120 day requirement does not apply
to service in a foreign country, but argues that Bower did not even attempt service in
Egypt.
11

Bower contends that his father, Bruce Bower, has been in contact with ElNady and emailed her a copy of the Complaint. Dkt # 77 at 7-8. See Rio Props., Inc.
v. Rio Int’l Interlink, 284 F. 3d 1007, 1017 (9th Cir. 2002) (“[T]he Constitution does
not require any particular means of service of process, only that the method selected
be reasonably calculated to provide notice and an opportunity to respond. Mullane [v.
Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)]. In proper circumstances,
this broad constitutional principle unshackles the federal courts from anachronistic
methods of service and permits them entry into the technological renaissance.”).
12

In Bower’s previous memorandum, he offered the following by way of
extenuation: “While Egypt has historically been a signatory to the Hague Convention
on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial
9

EgyptAir’s alternative argument is for severance under Fed. R. Civ. P. 21,
arguing that El-Nady is a dispensable party whose presence as a defendant casts an
uncertain shadow over the court’s jurisdiction.13

See Newman-Green, Inc. v.

Alfonzo-Larrain, 490 U.S. 826, 832 (1989) (“[I]t is well settled that Rule 21 invests
district courts with authority to allow a dispensable nondiverse party to be dropped at
any time, even after judgment has been rendered.”). The cure of a potential defect in
diversity jurisdiction by resort to Rule 21 is held to be proper. See Am. Fiber &
Finishing, Inc., 362 F.3d at 142. But because the court is persuaded that at the time
this action was filed El-Nady’s domicile was in fact in Egypt, severing El-Nady from
this action is not necessary to effect any jurisdictional cure and might, in some respect,
cause harm to El-Nady’s interests insofar as they may parallel those of EgyptAir.14 See

Matters, that treaty’s provisions cannot be invoked without a specific address for Ms.
El-Nady in Egypt. While Mr. Bower believes that, at least until the recent turmoil in
Egypt, Ms. El-Nady has remained there, she has remained elusive, and Mr. Bower has
been unable to uncover her specific location in the nineteen months since she fled.
Pursuant to Article 1, the Hague Convention on Service Abroad does not apply ‘where
the address of the person to be served with the document is not known,’ as is the case
here.” Bower Mem. at 10 (Dkt # 77).
13

EgyptAir argues that El-Nady is a dispensable party because proceeding
without her will not “prejudice her interests or expose her to double or otherwise
inconsistent obligations.” EgyptAir’s Resp. at 14.
14

As to any actual confluence of interest between the defendants, the court sees
no reason at this time to speculate.
10

In re Olympic Mills Corp., 477 F.3d 1, 12 n.10 (1st Cir. 2007).
ORDER
For the foregoing reasons, the court RULES that it has subject matter jurisdiction
based on diversity of citizenship.
SO ORDERED.
/s/ Richard G. Stearns
________________________________
UNITED STATES DISTRICT JUDGE

11