Bower v. El-Nady

962 F.Supp.2d 368

Colin BOWER, on his own behalf and on behalf of his minor children, N and R

v.Mirvat EL–NADY, and Egyptair Airlines.

Civil Action No. 10–10405–RGS.

United States District Court, D. Massachusetts.

Aug. 27, 2013.

Barry S. Pollack, Joshua L. Solomon, Pollack Solomon Duffy LLP, Howard M. Cooper, Julie E. Green, Todd & Weld LLP, Boston, MA, for Colin Bower.

Michael J. Connolly, Laura B. Angelini, Hinckley, Allen and Snyder, LLP, Boston, MA, for Bruce 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 Bower.

Hanson S. Reynolds, Rackemann, Sawyer & Brewster, P.C., Boston, MA, Jacob A. Sommer, Zwillinger Genetski LLP, Washington, DC, for Yahoo! Inc.

James B. Re, Sally & Fitch LLP, Boston, MA, for Grand Circle LLC, Grand Circle Holdings, LLC.

Allison D. Burroughs, Sarah P. Kelly, Nutter, McClennen & Fish, LLP, Boston, MA, for Google Inc. Google Inc.

Michael J. Traft, Carney & Bassil, Boston, MA, pro se.

MEMORANDUM AND ORDER ON ASSESSMENT OF DAMAGES

STEARNS, District Judge.

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.

FINDINGS ²

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 into a divorce. Bower was granted sole legal custody of the children and shared physical custody with El–Nady. The custody decree stipulated that El–Nady 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. El–Nady 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 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 El–Nady 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. 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 rights, an experience which evokes deep-seated, time-honored, and broad societal concerns regarding the health and development of...