United States District Court, E.D. New York
N. VITALIANO United States District Judge
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. 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
Opinion is filed to provide a more expansive explanation of
and Procedural History
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. 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.
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.
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.
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.
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.
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.
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.
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, ...