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Tait v. Powell

United States District Court, E.D. New York

February 27, 2017



          ERIC N. VITALIANO United States District Judge

         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 (1) violations of the federal criminal kidnapping statute, (2) breach of contract, (3) violations of the Immigration Nationality Act ("INA") and (4) declaratory judgment.[1] Compl., ECF No. 1. In conjunction with the filing of the complaint, Tait made an application for a preliminary injunction (i) transferring all proceedings between him and Powell now pending in Kings County Family Court to this Court and (ii) directing Powell to surrender the children to him pending resolution of his claims. Pl's Mot. 1-2, ECF No. 2. Following a hearing and for the reasons then 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 decision.

         Background and Procedural History

         This lawsuit springs from a contentious dispute between parents concerning the custody of their children. Tait and Powell used to be romantically involved but are not, and were never, married to each other. Compl. ¶ 21.[2] As a result of their romance, twin girls (KT and CT) were born abroad in Kingston, Jamaica in August 2008. Id. at ¶ 23. At that time, both Tait and Powell were Jamaican citizens, but he subsequently obtained United States citizenship and now resides in Queens. Id. at ¶¶ 6-7, 67. Although the children lived primarily in Jamaica with Powell during the first seven years of their lives, they also spent time in Jamaica with their father's family 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 with the parental agreement, Tait petitioned for the children to immigrate to the United States, and they secured status as United States lawful permanent residents ("LPR"). Id. at ¶¶ 10, 12-13. Hie children arrived in the United States on October 13, 2015, and moved in with their father in his house in Queens. Id. The children continued to live there until July 4, 2016. Id. at ¶ 13. On that date, Powell, while on a trip to the United States, asked Tait if the children could visit her in Brooklyn. Id. at ¶ 53. Tait agreed, but Powell never returned the children to him. Id. at ¶¶ 54-55. The parents, now at odds, then kicked off a stream of legal proceedings that eventually brought them here.

         As might be surmised, federal court was not the first stop. On July 27, 2016, Powell filed a pro se petition in Kings County Family Court, seeking an order granting her custody of the children. Aff. Supp. Mot. Intervene ¶ 9, ECF No. 11-1. Tait did not appear at the August 23, 2016, hearing on that petition, and Family Court issued a final order granting Powell custody in light of Tait's default. Id. at ¶ 11. On September 8, Tait filed his own custody petitions in Family Court, and, on September 23, Tait was ordered to turn the children's passports over to Powell. Id. at ¶¶15-16.

         Plaintiff moved Family Court, on October 11, for an order, inter alia, vacating the August 23 and September 23 orders and directing that the children be returned to him. Id. at ¶ 18. Following a hearing on October 18, Family Court granted Powell's request to return to Jamaica with the children, pending a further hearing, and again ordered Tait to produce their passports. Id. at ¶¶ 22, 25. Three days later, Tait sought leave in the Appellate Division, Second Department to appeal the October 18 orders, resulting in an interim stay. Id. at ¶¶ 25-26. On October 26, Family Court scheduled a traverse hearing for November 17 to determine whether the custody order should be vacated on the grounds that Powell's custody petition was never served on Tait. Id. at ¶ 29. On November 4, the Second Department denied Tait leave to appeal and dissolved its interim stay. Id. at ¶ 30. On November 17, the traverse hearing was adjourned after Tait represented that he intended to file a motion in this Court to stay the Family Court proceedings and transfer them here. Id. at ¶¶ 33, 39. Family Court also ordered that Tait, absent a federal 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. Compl. That sane day, Tait also sought, by order to show cause, a temporary restraining order (i) staying proceedings in Family Court and (ii) barring Powell from removing the children from New York. Pl's Mo:. 1-2. Plaintiffs motion also sought a preliminary injunction (i) transferring all proceedings in Family Court to this Court and (ii) directing Powell to surrender the children to him sending resolution of the case. Id. The Court denied plaintiffs request for a TRO, Order, ECF No. 7, and issued an order scheduling a show-cause hearing for December 13 on plaintiff's motion far a preliminary injunction, Order to Show Cause, ECF No. 8.

         Tait's subsequent motion for reconsideration of the denial of the TRO was denied. 11/28/16 Order. Then, having finally succeeded in her quest to obtain the children's passports and having made arrangements to return to Jamaica, Powell was granted leave to appear by telephone at the show-cause hearing. 12/8/16 Order; Def.'s Mot., ECF No. 14. The Children's Law Center ("CLC"), which represented the children in the Family Court proceedings, was subsequently granted leave to intervene in the action. 12/12/16 Order. CLC filed a memorandum opposing Tait's motion for a preliminary injunction. Pretrial Mem., ECF No. 17.

         On December 13, 2016, the Court held the scheduled show-cause hearing, at which plaintiffs counsel and counsel for CLC (effectively the law guardians for the children) appeared in person, while Powell appeared by telephone. 12/13/16 Minute Entry. Tait's counsel and C LC counsel pressed their arguments, with special focus on whether the Court possessed subject matter jurisdiction over the case. The parties having been heard, the Court denied plaintiffs motion for a preliminary injunction and dismissed the case for want of subject matter jurisdiction. Id.

         Applicable Law

         Whether to grant or deny a preliminary injunction lies within the sound discretion of a district court. Procter & Gamble Co. v. Ultreo, Inc.,574 F.Supp.2d 339, 344 (S.D.N.Y. 2008); see also S.C. Johnson & Son, Inc. v. Clorox Co.,241 F.3d 232, 237 (2d Cir. 2001). It s well-settled that a "party seeking a preliminary injunction must demonstrate '(1) irreparable harm in the absence of the injunction and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance: of hardships tipping decidedly in the movant's favor.'" MyWebGrocer, LLC v. Hometown Info, inc.,375 F.3d 190, 192 (2d Cir. 2004) (quoting Merkos L'inyonei Chinuch, Inc. v. Otsar Sifrei Lubavitch, ...

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