Tait v. Powell et al

Filing 20

MEMORANDUM AND OPINION, Following a hearing and for the reasons stated in open court, Tait's motion for a preliminary injunction was denied and the complaint was dismissed. This Opinion is filed to provide a more expansive explanation of that de cision. This case was dismissed for lack of subject matter jurisdiction, without prejudice to pltff's right to seek appropriate relief in a state court of appropriate jurisdiction. (Ordered by Judge Eric N. Vitaliano on 2/27/17) c/m Fwd. for Judgment. (Galeano, Sonia)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------------------x MYHOOD IAN TAIT, Plaintiff, -against- MEMORANDUM OPINION ANGELLA HOPA L POWELL, 16-cv-06377 (ENV) (RER) Defendant, ATTORNEY GENERAL LORETT A E. LYNCH, Respondent CHILDREN ' S LAW CENTER, Intervenor. -----------------------------------------------------------------X VITALIANO, D.J. On November 23, 2016, plaintiff Myhood Ian Tait filed a complaint against defendant Angella Hopal Powell , the mother of his twin 8-year-old girls, raising claims for (I) violations of the federal criminal kidnapping statute, (2) breach of contract, (3) violations of the Immi gration Nationality Act (" INA") and (4) declaratory judgment. 1 Comp!., ECF No. 1. In conjunction with the filing of the complaint, Tait made an application fo r a preliminary injunctioo (i) transferring all proceedings between him and Powell now pending in Kings County Family .ourt to this Court and (ii) directing Powell to surrender the children to him pending resolution of hi s claims. Pl. ' s Mot. 1-2, ECF No. 2. Follow ing a hearing and for the reasons then stated in open court, Tait' s motion for a preliminary injunction was denied and the complaint was di missed. l . Plaintiff also named Loretta E. Lynch, the then-Attorney General of the United States, as what he termed a "Non-Party Respondent. " Comp!. ~ 8, ECF No. l . This Opinion is filed to provide a more expansive explanation of that decision. Background and Procedural History This lawsuit springs from a contentious dispute between parents concerning the custod of their children. Tait and Powell used to be romantically involved but are not, and wer1 ne er, I married to each other. Compl. ~ 21. 2 As a result of their romance, twin girls {KT and C ) ere born abroad in Kingston, Jamaica in August 2008. Id. at~ 23. At that time, both Tait an Po ell were Jamaican citizens, but he subsequently obtained United States citizenship and now r sid sin Queens. Id. at~~ 6-7, 67. Although the children lived primarily in Jamaica with Powel d ing the first seven years of their lives, they also spent time in Jamaica with their father's f ily and with Tait himself when he was in Jamaica. Id at~~ 27-28. This living arrangement changed in October 2015 after Tait and Powell agreed that the children should move to the United States to live with plaintiff. Id. at ~ 28. In line ith the parental agreement, Tait petitioned for the children to immigrate to the United States, , d secured status as United States lawful permanent residents ("LPR"). Id. at~~ 10, 12-1 . e children arrived in the United States on October 13, 2015, and moved in with their fath r i house in Queens. Id. The children continued to live there until July 4, 2016. Id at~ 3. that date, Powell, while on a trip to the United States, asked Tait if the children could vis t h r in Brooklyn. Id at ~ 53. Tait agreed, but Powell never returned the children to him. Id. 55. The parents, now at odds, then kicked off a stream of legal proceedings that ev ntu lly brought them here. As might be surmised, federal court was not the first stop. On July 27, 2016, Po a pro se petition in Kings County Family Court, seeking an order granting her custod 2. Unless otherwise indicated, the facts set forth in the complaint are accepted as true. 2 11 children. Aff. Supp. Mot. Intervene~ 9, ECF No. 11-1. Tait did not appear at the Au us 2016, hearing on that petition, and Family Court issued a final order granting Powell c to m light of Tait's default. Id at~ 11. On September 8, Tait filed his own custody petitions in F ily Id at~~ 15-16. Plaintiff moved Family Court, on October 11, for an order, inter alia, vacating the Au ust 23 and September 23 orders and directing that the children be returned to him. Id Following a hearing on October 18, Family Court granted Powell's request to return to with the children, pending a further hearing, and again ordered Tait to produce their passpo s. Id. at~~ 22, 25. Three days later, Tait sought leave in the Appellate Division, Second Dep+e t to appeal the October 18 orders, resulting in an interim stay. Id at ~~ 25-26. On Oct ber 26, Family Court scheduled a traverse hearing for November 17 to determine whether the dy order should be vacated on the grounds that Powell's custody petition was never served n Id at~ 29. On November 4, the Second Department denied Tait leave to appeal and diss Ive its interim stay. Id at ~ 30. On November 17, the traverse hearing was adjourned ait represented that he intended to file a motion in this Court to stay the Family Court pro eed ngs and transfer them here. Id. at~~ 33, 39. Family Court also ordered that Tait, absent fe ral court order to the contrary, produce the children's passports by November 23. Id. at~ 38. Tait filed his complaint in this Court on November 23, 2016. Comp!. That s:Le ay, Tait also sought, by order to show cause, a temporary restraining order (i) staying procJ:n sin Family Court and (ii) barring Powell from removing the children from New York. Pl.'s Mo. 12. Plaintiffs motion also sought a preliminary injunction (i) transferring all procee ing in Family Court to this Court and (ii) directing Powell to surrender the children to him en ing 3 resolution of the case. Id. The Court denied plaintiffs request for a TRO, Order, EC N . 7, and issued an order scheduling a show-cause hearing for December 13 on plaintiffs moti n preliminary injunction, Order to Show Cause, ECF No. 8. Tait's subsequent motion for reconsideration of the denial of the TRO was de 11/28/16 Order. Then, having finally succeeded in her quest to obtain the children's p ssp rts and having made arrangements to return to Jamaica, Powell was granted leave to ap ea by telephone at the show-cause hearing. 12/8/16 Order; Def.'s Mot., ECF No. 14. The Ch ldr n's Law Center ("CLC"), which represented the children in the Family Court proceedin s, subsequently granted leave to intervene in the action. 12/12/16 Order. as a memorandum opposing Tait's motion for a preliminary injunction. Pretrial Mem., ECF On December 13, 2016, the Court held the scheduled show-cause hearing, a w ich plaintiffs counsel and counsel for CLC (effectively the law guardians for the children) a pe ed in person, while Powell appeared by telephone. 12/13/16 Minute Entry. Tait's counsel counsel pressed their arguments, with special focus on whether the Court possessed subjec m er jurisdiction over the case. The parties having been heard, the Court denied plaintiffs mo ion for a preliminary injunction and dismissed the case for want of subject matter jurisdiction. Applicable Law Whether to grant or deny a preliminary injunction lies within the sound discreti n district court. Procter & Gamble Co. v. Ultreo, Inc., 574 F. Supp. 2d 339, 344 (S.D.N.Y 20 8); see also S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 237 (2d Cir. 2001). It s 11- settled that a "party seeking a preliminary injunction must demonstrate '(l) irreparable h absence of the injunction and (2) either (a) a likelihood of success on the merits or (b) suf cie tly serious questions going to the merits to make them a fair ground for litigation and a bal c of 4 hardships tipping decidedly in the movant's favor."' MyWebGrocer, LLC v. Hometown Ii 375 F.3d 190, 192 (2d Cir. 2004) (quoting Merkos L 'inyonei Chinuch, Inc. v. Ots Lubavitch, Inc., 312 F.3d 94, 96 (2d Cir. 2002)). Elementarily, of course, the court m st ave subject matter jurisdiction over the controversy. United States v. Bond, 762 F.3d 255, 63 (2d Cir. 2014). Discussion Federal courts, unlike their state brethren, are courts of limited jurisdiction. Nichols, Houston, Hodgson & Cortese-Costa P. C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 200 ). federal court's entertaining a case that is not within its subject matter jurisdiction is n technical violation; it is nothing less than an unconstitutional usurpation of state judicial rw r." Atanasio v. 0 'Neill, No. 16-CV-2269 (ENV) (RLM), --- F. Supp. 3d ----, 2017 WL 38408', at *1 (E.D.N.Y. Jan. 27, 2017) (quoting Martin v. Wal-Mart Stores, Inc., 709 F. Supp. 2d 3 5, 46 (D.N.J. 2010)); Charles Alan Wright et al., 13 Federal Practice & Procedure§ 3522 (3d ed. 20 8). Consequently, given their limited role in the judicial system established by our Const tuti n, federal courts have a continuing and independent duty to ensure that they possess subject ma er jurisdiction, and must dismiss a case-even sua sponte-when they find subject matter juris ict' n lacking. Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject at er jurisdiction, the court must dismiss the action."); Durant, 565 F.3d at 62 (citing Loui Nashville R.R. v. Mottley, 211 U.S. 149, 152, 29 S. Ct. 42, 43, 53 L. Ed. 126 (1908)). Tait's complaint alleges that subject matter jurisdiction exists under 28 U.S.C. § (federal question) and 1332 (diversity of citizenship). The Supreme Court, howev recognized a domestic relations exception to subject matter jurisdiction that "divests the courts of power to issue divorce, alimony, and child custody decrees." Ankenbrandt v. Ric ar s, 5 504 U.S. 689, 703, 112 S. Ct. 2206, 2215, 119 L. Ed. 2d 468 (1992). The domestic rflat ons exception springs from the Supreme Court's century-and-a-quarter-old recognition tht "[]he whole subject of the domestic relations of husband and wife, parent and child, belongs to re 1 ws of the states, and not to the laws of the United States," In re Burrus, 136 U.S. 586, 593-9r, I S. Ct. 850, 853, 34 L. Ed. 500 (1890), and it is equally applicable whether jurisdiction is jse ed under§ 1331 or§ 1332, see Dowlah v. Dowlah, No. 09-CV-2020 (SLT) (LB), 2010 WL 89 92, at *4 (E.D.N.Y. Mar. 10, 2010) ("While the exception finds its origin in an interpretatio o the federal courts' diversity jurisdiction, it also has been applied to federal question jurisdic ion ... ."). Because it is limited to divorce, alimony, and child custody decrees, the domestic r laf ns exception is undeniably very narrow in its focus, Williams v. Lambert, 46 F.3d 1275, 1283 '2d ir. 1995); yet, the exception is also understood to grant to federal courts the "discretion to abs ain from exercising jurisdiction over issues on the verge of being matrimonial in nature as lon as and fair adjudication is available in state courts," Fischer v. Clark, No. 08-CV-3807 (JS) (A 2009 WL 3063313, at *2 (E.D.N.Y. Sept. 24, 2009) (alterations omitted) (quoting Mitche -A gel v. Cronin, No. 95-7937, 1996 WL 107300, at *2 (2d Cir. Mar. 8, 1996) (unpublished). instance, the Second Circuit has applied the exception to tort claims where those claims "b gin and end in a domestic dispute." Schottel v. Kutyba, No. 06-1577-cv, 2009 WL 230106, a *1 2d Cir. Feb. 2, 2009) (unpublished). The Schottel court, in concluding that the domestic r lati ns exception divested federal courts of subject matter jurisdiction over the suit, noted plaintiffs "complaint makes clear that her tort claim for monetary damages is, at heart, a surrounding the custody of a child." Id. Declining to elevate form over substance, the Circuit justified the application of the domestic relations exception specifically on the gro nd hat 6 "a plaintiff cannot obtain federal jurisdiction merely by rewriting a domestic dispute as a to for monetary damages." Id. Regardless of the labels, words and characterizations, the dispute between Tait and Po is a family law dispute, plain and simple. It could not be more obvious. Analysis only c nfi s the obvious. For example, Tait's first claim asserts that Powell, by taking the children in 2016 and not returning them to him, violated the federal statute criminalizing internro al, parental kidnapping. Compl. ~~ 52-64; 18 U.S.C. § 1204. More particularly, this cause o act on complains that Powell "secured custody by fraud and misrepresentation" by representing to Court that Tait was properly served with process. Compl. ~ 57. Deep digging is not req ire to reach the conclusion that the custody of the children is the subject and object of this clam. Indeed, the factual allegations are strikingly similar to those reported in Schottel, where it as found that the plaintiffs claim fell within the domestic relations exception to otherwise- res nt subject matter jurisdiction. See 2009 WL 230106, at * 1 (noting that the complaint alleg d t at the defendants made fraudulent misrepresentations to the domestic relations court and "th t, a a result of this fraud and coercion, Schottel ha[d] been deprived of custody and visitation ri hts '). In the same fashion, Tait's first claim falls within the domestic-relations exception.3 The second cause of action that Tait advances is for breach of contract. Comp!.~~ 5- 5. Breach-of-contract actions are frequently litigated in federal court, but the object of this contract squarely provides for the custody of the children. Not running from the p 3. Moreover, Tait lacks standing to seek a civil remedy under this federal criminal statute. S e 18 U.S.C. § 1204 (providing no indication of a private right of action); Corrado v. N. Y. 0 Temp. & Disability Assistance, No. 15-CV-7316 (SJF) (AYS), 2016 WL 3181128, at *5 (E.D.N.Y. June 2, 2016) ("It is a 'general precept of criminal law that unless the statute specifically authorizes a private right of action, none exists.'" (quoting Vasile v. Dean Witt ir Reynolds Inc., 20 F. Supp. 2d 465, 477 (E.D.N.Y. 1998))). 7 contract's custodial nature, Tait contends that either an implied or express contract was ,art d parcel of Powell's alleged request that the children come to the United States to live with h·m. at ~~ 65-75. He further alleges that, as a component of this supposed deal, he was to, d incur a variety of expenses, including $200,000 for the purchase of a home in Queens, ' sev ral thousand dollars repairing said house to provide a safe healthy home environment" for the c. il and $12,000 as a result of filing applications to obtain LPR status for them. Id at~~ 67- 9. In other words, the steps he took were all in furtherance of his alleged deal with Powell-a says, in which she agreed to turn over physical custody of the children to him. Powell's breach, Tait obviously alleges, was her failure to return the children to hi . ultimately, whether Powell breached is immaterial. Indeed, at bottom, the details of the allege ly breached contract, its propriety, or even whether Powell would offer a different interpretation of the deal are all immaterial to a determination of federal subject matter jurisdiction over the case. They are described and referenced mainly for context because it is context that is here. What the context makes crystal clear is that the controversy giving rise to this claim, an to all the claims for which Tait seeks relief, regardless of how he identifies them, is about the c sto y of children. Thus, his second cause of action also falls within the heartland of the do es ic relations exception to federal subject matter jurisdiction. See Schottel, 2009 WL 230106, t *. This theme guides the evaluation of Tait's third cause of action, in which he clai . s t at Powell violated an unidentified provision or provisions of the INA. Compl. ~~ 76-89 complaint asserts that Powell defrauded immigration officers by representing that she was e teri the United States for vacation when her "sole purpose ... was to kidnap the children." ~ at 78-81. This claim echoes Tait's first, which also alleged that Powell made false represen to secure custody of the children. Id. at ~ 81. The commonality between the two claims ea h 8 with roots in the dispute over child custody, prefigures a commonality in result. ~ince is t ird claim is centered on Powell's alleged misconduct in securing custody of the chilc;lren, pr vai ing on the claim would warrant a remedy involving their custody, which places it within the rbi of domestic relations and, thus, outside the subject matter jurisdiction of federal courts. See 2009 WL 230106, at* 1. Last on the field of battle, Tait advances his demand for a declaratory judgment. ~~ 90-100. He prays for a declaration that the children are citizens of the United States. 99. Even if Tait's declaratory claim sought merely such a limited and straightforward decl at on of citizenship, it would surely run afoul of jurisdictional limitations on this Court's power eca se Tait has failed to exhaust administrative remedies. See Henry v. Quarantil/o, 684 F. S pp. 2d 298, 302-03 (E.D.N.Y. 2010) (noting that 8 U.S.C. § "1503(a) grants district courts subject ma er jurisdiction to declare, after an administrative denial to the contrary, than an individual is an tio al of the United States," unless the issue of the person's status arose in connection with a r mo al proceeding (footnote omitted)). But, in any event, the prayer's reach extends further still, hi h, importantly, also offers insight into Tait's transparent litigation plan. The second shoe to . ro Tait's request for a declaration that, as a result of the Court's declaration of the children's States citizenship, "the status quo would be to return the children to the care and custody United States Citizen father." Compl. ~ 99. Plainly, although cloaked partially in immi rati n law, all of Tait's claims manifest the same aim: to obtain custody of the children, notwithst the contrary rulings of Family Court. Simply stated, Tait's complaint seeks to bring to federal court a dispute that centers custody of children. That the doors to the federal courthouse are barred to entry by this t pe f dispute does neither Tait nor the law any harm. Family court is available as a forum to co si er 9 /S/ USDJ ERIC N. VITALIANO

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