Bower v. El-Nady Bower et al

Filing 214

Judge Richard G. Stearns: ORDER on Assessment of Damages entered. (RGS, law2)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 10-10405-RGS
COLIN BOWER, on his own behalf
and on behalf of his minor children, N and R
v.
MIRVAT EL-NADY,
and EGYPTAIR AIRLINES
MEMORANDUM AND ORDER ON ASSESSMENT OF DAMAGES
August 27, 2013
STEARNS, D.J.
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 sole custody to Bower. In his Amended Complaint,
Bower asserted claims against El-Nady for interference with his custodial
relations (Count I), negligent and intentional infliction of emotional distress
(Counts IV and V), and loss of filial consortium (Count VI), as well as claims
for emotional distress (Counts IV and V) and false imprisonment (Count III)

on behalf of his children.1 Despite extended notice, El-Nady failed to answer
the Complaint or otherwise appear, and on October 26, 2012, the court
entered a default judgment against her. A hearing on assessment of damages
was held on June 27, 2013. El-Nady again refused to appear.
FINDINGS2
El-Nady, an Egyptian citizen, and Bower, a U.S. citizen, met in Cairo,
Egypt, and were married there in 1998. They later moved to London, where
their two sons, Noor and Ramsay, were born. The children are citizens of both
the United Kingdom and the United States, and by virtue of their birth to an
Egyptian parent are deemed Egyptian nationals. In 2005, the family moved
to Massachusetts, but by December of 2008, the marriage had deteriorated

Bower also asserted claims for interference with custodial relations,
negligence, negligent infliction of emotional distress, and loss of filial
consortium against EgyptAir, the airline on which El-Nady flew 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 award of
damages in the suit against El-Nady. See United States v. Brooks, 145 F.3d
446, 455-456 (1st Cir. 1998).
1

The following findings are drawn from testimony given by Bower at the
hearing on assessment of damages and from the well-pleaded facts in the
complaint, which upon entry of default are accepted as true. See Remexcel
Managerial Consultants, Inc. v. Arlequin, 583 F.3d 45, 52 (1st Cir. 2009),
citing Conetta v. Nat’l Hair Care Ctrs., Inc., 236 F.3d 67, 75-76 (1st Cir. 2001).
2

2

into a divorce. Bower was granted sole legal custody of the children and
shared physical custody with El-Nady. The custody decree stipulated that ElNady was not to remove the children from Massachusetts.
On August 11, 2009, during a scheduled multi-day visit, El-Nady drove
the children to John F. Kennedy International Airport and purchased three
one-way tickets to Cairo on a departing EgyptAir flight. Bower discovered the
children missing and filed a police report on or about August 16, 2009. ElNady was subsequently held in contempt by the Probate and Family Court and
charged in both state and federal court with criminal kidnaping offenses.3
Noor and Ramsay, who at the time of the abduction were eight and six years
of age, respectively, remain in Egypt to this day.
Bower has worked assiduously since his children’s abduction to secure
their return. He has gathered the support of several national political leaders,
including then-Senator and now Secretary of State John Kerry and former
Massachusetts Congressman Barney Frank, who sponsored congressional
resolutions calling on the government of Egypt to facilitate the immediate
return of the children to the United States. See S. Res. 477, 112th Congress
(2011-2012); H.R. Res.193, 112th Congress (2011-2012). Despite those efforts
The Family Court also reaffirmed its award to Bower of sole legal
custody and granted him sole physical custody.
3

3

and repeated appeals to the Egyptian authorities by members of the U.S.
Department of State, no action has been taken by the Egyptian government.
In the four years since the abduction, Bower has seen his children only
three times. He has flown to Egypt on at least twelve occasions to date, but ElNady has repeatedly refused to permit court-ordered visitations.4 The visits
that have occurred were under the tight control of El-Nady and members of
her family. Egyptian state security officials were also present. Bower testified
that they were “unnatural visits, but at least I was able to put eyes on the
children and spend some time with them.” It has been more than a year and
a half since he was last able to do so.
Bower is deeply concerned for the emotional and physical well-being of
his children. The Massachusetts Probate and Family Court’s decision to award
sole legal custody to Bower was based in part on El-Nady’s history of
substance abuse and the determination by a guardian ad litem and two
independent evaluators that she was unable to provide structure and
consistent oversight for young children and to make reasoned decisions.
According to the House Resolution, El-Nady filed for custody of Noor
and Ramsay through the Egyptian probate court equivalent in or around
March of 2008 by falsely claiming that the children and Bower were residents
of Egypt. The Egyptian court authorized bi-monthly visits by Bower with his
children during the duration of the custody dispute, which was ultimately
resolved in Bower’s favor.
4

4

Bower further testified that during his three successful visits, the boys
appeared physically unhealthy. He is also concerned that they are being
indoctrinated in a radical Islamist strain of their Muslim faith and alienated
against the United States and Western values. The current turmoil in Egypt
and threat of a civil war further adds to his worries.
Bower’s travail has entailed emotional, physical, and financial costs. He
attends counseling and has been diagnosed with post-traumatic stress
disorder, anxiety, and mild depression as a result of having lost the children
that “were very much the center of what [his] life was.” He has logged
countless hours and more than $120,000 in expenses traveling to and from
Washington, D.C., and Cairo, in his attempts to meet with the children and
advocating with U.S. and Egyptian officials for their return. He has also
engaged the assistance of legal counsel and investigative services in Egypt and
the United States.
DISCUSSION
While Bower’s economic damages are a matter of simple calculation, his
and his children’s hedonic damages are not. The court is in the impossible
position of having to place a dollar value on something that is intangible and
invaluable – “the wrongful taking of children from parents with custodial

5

rights, an experience which evokes deep-seated, time-honored, and broad
societal concerns regarding the health and development of both the children
and the parents wrongfully deprived of the right to share in and guide the
passage of their offspring from childhood to adulthood with all of the joy and
pleasure that journey usually affords a custodial parent.” Streeter v. Rifton
Mgmt, LLC, 2004 WL 3130585, at *8 (D. Conn. 2004). Although the court
recognizes that no monetary sum can compensate for this type of loss, it finds
El-Nady liable in the amount of $40,000,000.00 in hedonic damages and
$250,000.00 in actual damages.
This amount conforms to jury verdicts awarded in two similar cases. In
Pittman v. Grayson, 1997 WL 370331 (S.D.N.Y. July 2, 1997), a jury awarded
compensatory and punitive damages against Icelandair in the amount of $10
million for a father and $5 million for his daughter where the child’s mother
had flown her to Iceland in violation of a court order and in defiance of the
father’s right to joint legal custody. See id. at *1 (vacating verdict on other
grounds). The jury in Streeter awarded $27 million to a mother and $1.5
million to her two minor children against an air charter operator that
facilitated abduction of the children to Egypt by their father, who shared legal
custody. Streeter, 2005 WL 4357633 (Conn. Super. 2005) (unpublished

6

opinion). The child in Pittman remained in Iceland at the time of trial, while
the children in Streeter were rescued approximately two years after their
abduction and were known to be in good health. Pittman by Pittman v.
Grayson, 149 F.3d 111, 115 (2d Cir. 1998); Streeter, 2005 WL at *15 n. 21.
Here the separation has already endured twice the length of time as in
Streeter and, given the current strife in Egypt and the diminished diplomatic
influence of the United States, may not be resolved at any time in the near
future (and may not be resolved before the boys reach their majority). Under
the circumstances, the court believes that an award of $20 million to Bower
and $10 million each to Noor and Ramsay is appropriate, whether seen as
symbolic or as a rough approximation of an immeasurable loss of filial
companionship that may be permanent. The court also awards Bower
$250,000.00 for the actual expenses that he has incurred to date in his efforts
to rescue the boys and for the likely expenses he will incur in the foreseeable
future in the endeavor.
ORDER
The Clerk shall enter judgment for plaintiffs in the amount of
$40,250,000.00 as provided in the body of this decision.

7

SO ORDERED.
/s/ Richard G. Stearns
_________________________
UNITED STATES DISTRICT JUDGE

8