The opinion of the court was delivered by: ALLEN G. SCHWARTZ
ALLEN G. SCHWARTZ, DISTRICT JUDGE:
This is an action brought by a father and his minor child against the child's mother, who, along with several individuals, are alleged to have assisted in smuggling the child from the United States to Iceland, in violation of Florida court orders. Plaintiffs seek damages stemming from the alleged smuggling of the child to Iceland, on claims of intentional interference with custodial rights, intentional infliction of emotional distress, and false imprisonment.
Defendant Icelandair, Inc. ("Icelandair") moves to dismiss this action pursuant to 12(b)(1) of the Federal Rules of Civil Procedure (Fed. R. Civ. P.) for lack of subject matter jurisdiction based on the Warsaw Convention
or pursuant to Fed. R. Civ. P. 12(b)(6) on the grounds that section 1305(a)(1) of the Federal Aviation Act
(FAA) preempts plaintiffs' state law claims of intentional interference with custodial rights, intentional infliction of emotional distress, and false imprisonment. Alternatively, Icelandair moves to dismiss this action on the basis of forum non conveniens. For the reasons set forth below, defendant's motions are denied.
Jurisdiction of this Court is grounded upon diversity of citizenship. See 28 U.S.C. § 1332.
Plaintiff Elizabeth Pittman ("Elizabeth"), born March 23, 1982, is the daughter of plaintiff Frederick Pittman ("Fred Pittman") and defendant Erna Grayson Pittman a/k/a Erna Eyjolfsdottir ("Eyjolfsdottir"). Defendant Eyjolfsdottir is a citizen of Iceland who currently resides in Iceland with Elizabeth and her other daughter, Anna Nicole Grayson ("Anna"). Complaint at PP 1, 3.
Plaintiff Fred Pittman is a Gunnery Sergeant in the United States Marines and is stationed in Philadelphia. Id. at P 2.
Defendants Helgi Hilmarsson ("Hilmarsson") and Gundmundur Karl Jonsson ("Jonsson") are both residents and citizens of Iceland. Jonsson, Eyjolfsdottir's stepfather, is the manager of the duty free shop at Keflavik Airport in Iceland. Plaintiffs allege that Hilmarsson is Eyjolfsdottir's boyfriend and that Hilmarsson assisted Eyjolfsdottir in her flight from Florida to Iceland. Id. at P 4, 7, 25.
Defendant Icelandair is incorporated in Iceland, maintains its principal place of business at Reykjavik Airport in Reykjavik, Iceland and is authorized to do business in the State of New York. Defendant Icelandair's Answer with Cross-Claims at P 2.
During 1991, plaintiff Fred Pittman initiated a custody proceeding against Eyjolfsdottir for sole custody of their daughter, Elizabeth. At the time Fred Pittman initiated this proceeding, he and Eyjolfsdottir had joint custody of Elizabeth. Complaint at PP 8-9.
Plaintiffs allege that Eyjolfsdottir was informed by her counsel in late April, 1992 that the Florida court in Okaloosa County was going to grant Fred Pittman sole custody of Elizabeth and that Eyjolfsdottir subsequently fled Florida with Elizabeth and Anna. Plaintiffs further claim that after fleeing Florida, Eyjolfsdottir and her two daughters arrived at JFK International Airport ("JFK International") on May 2, 1992 to catch Icelandair's evening nonstop flight to Keflavik Airport. Id. at PP 15-17.
With respect to defendant Icelandair, plaintiffs allege that on the evening of May 2, 1992, Icelandair's employees and/ or agents, hid Elizabeth and Anna at JFK International and then smuggled them onto an Icelandair aircraft bound for Keflavik Airport, based on a prior arrangement with Eyjolfsdottir and Jonsson. Plaintiffs maintain that the girls were boarded on the aircraft from an entrance different from that of the other passengers and without passports. In addition, plaintiffs allege that by surreptitiously boarding Elizabeth onto its aircraft, defendant Icelandair was fully aware that Eyjolfsdottir was not entitled to leave the United States with Elizabeth. Id. at PP 30, 31, 33.
Based on Icelandair's alleged smuggling of the girls onto an Icelandair aircraft, plaintiffs claim defendant Icelandair intentionally interfered with the custodial relationship between plaintiffs Fred Pittman and Elizabeth, intentionally inflicted emotional distress on Fred Pittman and falsely imprisoned Elizabeth.
On May 4, 1992 the Circuit Court for Okaloosa County, Florida issued an order awarding plaintiff Fred Pittman sole custody of Elizabeth and subsequently issued an order for Eyjolfsdottir's arrest on February 15, 1993. Ex. 2 of Affidavit of Robert K. Erlanger sworn on October 29, 1993 ("Erlanger Aff.").
In early 1993, a three member team from Corporate Training Unlimited (CTU), an organization devoted primarily to recovering children involved in international custody cases, went to Reykjavik, Iceland in an attempt to retrieve Elizabeth and Anna from defendant Eyjolfsdottir. CTU's efforts, however, were foiled by the Icelandic police. Affidavit of Desmond T. Barry, Jr., Esq. sworn to September 29, 1993 ("Barry Aff.") at P 7.
On February 3, 1993, the Supreme Court of Iceland granted Eyjolfsdottir sole custody of Elizabeth, and on May 2, 1993, the Icelandic Committee of Child Protection issued an order stating that there were no grounds to interfere in the relationship of Eyjolfsdottir and her daughters. Ex. 4 of Erlanger Aff. at 38-41. Barry Aff. at P 8; Ex. G of Barry Aff. On April 29, 1993, plaintiffs filed their complaint in this Court.
Defendant Icelandair moves pursuant to 12(b)(1) of the Fed. R. Civ. P. to dismiss this action for lack of subject matter jurisdiction based on the Warsaw Convention or pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss this action on the grounds that section 1305(a)(1) of the FAA preempts plaintiffs' state law claims of intentional interference with custodial rights, intentional infliction of emotional distress, and false imprisonment. Alternatively, Icelandair ...