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November 4, 1994

ELIZABETH JEANNE PITTMAN, a minor under 18 years of age by Frederick Pittman her father and legal custodian and FREDERICK PITTMAN individually, Plaintiffs,

The opinion of the court was delivered by: ALLEN G. SCHWARTZ



 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 *fn1" or pursuant to Fed. R. Civ. P. 12(b)(6) on the grounds that section 1305(a)(1) of the Federal Aviation Act *fn2" (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.

 During the custody proceedings, Eyjolfsdottir stated under oath at her deposition that she did not intend to leave Florida with the girls. Id. at P 13. Plaintiffs claim that during the custody proceedings, Eyjolfsdottir was under the restraining orders of two Florida courts not to leave Northern Florida with her daughters and that as a precautionary measure, Eyjolfsdottir's and the girls' passports had been removed from Eyjolfsdottir's possession. Id. at P 12. Plaintiffs further claim that Eyjolfsdottir was at the time of the custody proceedings, attempting to acquire new Icelandic passports for herself and the girls through the Icelandic Consul in Florida by claiming that her passport had been lost. Id. at P 13.

 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 moves to dismiss this action based on forum non conveniens. For the reasons set forth below, we deny defendant's motions.

 A. The Warsaw Convention

 Icelandair argues that because plaintiffs' claims arise from "international transportation", as defined by Article 1(2) of the Warsaw Convention ("Convention"), *fn3" the conditions and limits of the Convention automatically apply, including the forum limitations of Article 28. Article 28 provides that actions must be brought, at the option of the plaintiff, (1) "in the territory of one of the High Contracting Parties, either before the court of the domicile of the carrier or of his principal place of business", (2) "where he has a place of business through which the contract has been made", or (3) "before the court at the place of destination."

 Icelandair further argues that if the Court determines that a claim falling under Article 1(2) of the Convention has not been brought in accordance with the forum limitations of Article 28, the court should dismiss the complaint without further inquiry into the Convention's liability provisions. *fn4"

 Plaintiffs concede that their claims arise out of "international transportation", as defined by Article 1(2) of the Convention. Plaintiffs, however, maintain that the forum limitations of Article 28 are applicable only to claims falling within the liability provisions of the Convention. Plaintiffs further contend that Article 17 is the Convention's only potentially applicable liability provision. Article 17 states:


The carrier shall be liable for damages sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damages so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

 Plaintiffs argue that their claims fall under neither Article 17 nor any of the other substantive liability provisions of the Convention and consequently that the Convention is inapplicable to their claims. For the reasons set forth below, we find for plaintiffs on this issue.

 The Warsaw Convention was designed to effectuate two central public policy goals: (1) to establish uniformity in the aviation industry with respect to claims arising out of international transportation, as well as uniformity as to documentation, and (2) to limit air carriers' potential liability in the event of accidents. In re Disaster at Lockerbie, Scotland, 928 F.2d 1267, 1270 (2d Cir. 1991) (citations omitted). State law claims which fall within the scope of the Convention are preempted by the Convention. Id. at 1273. However, "the text of the Warsaw Convention does not state that it is exclusive as to all causes of action arising out of international air flight; rather, it merely states that it is exclusive as to causes of action governed by its liability provisions." Walker v. Eastern Air Lines, Inc., 785 F. Supp. 1168, 1170 (S.D.N.Y. 1992). *fn5"

 As a threshold matter, the Court must determine whether the Convention applies to plaintiffs' claims. Pflug v. Egyptair Corp., 961 F.2d 26, 28-29 (2d Cir. 1992) (citations omitted). The Court of Appeals has stated:


This Court has held that when an action is one that falls within the province of the Convention, and the Convention does not authorize suit in the jurisdiction in which the action is brought, our inquiry ceases . . . . However, the Convention does not apply to all claims of injury suffered in conjunction with international air travel; thus, as an initial matter this Court must determine whether the Convention applies to all of plaintiffs' claims.

 Id. (emphasis added).

 Contrary to defendant Icelandair's position, the overwhelming weight of legal authority, both within and without this Circuit, requires this Court to determine whether the Convention's liability provisions apply to all of plaintiffs' claims, prior to evaluating whether the plaintiff has met the conditions and limits of the Convention. *fn6" Shen v. Japan Airlines, 1994 U.S. App. LEXIS 35895, No. 93- 1505, 1994 WL 167989, at *2 (S.D.N.Y. Apr. 13, 1994) (finding that all of plaintiffs' claims were governed by the Convention but dismissing case because all of the fora under Article 28 were in Japan or China); Malik v. Butta, 1993 U.S. Dist. LEXIS 14472, No. 92-8703, 1993 WL 410168, at *3 (S.D.N.Y. Oct. 14, 1993) (determining plaintiffs' claims to be cognizable only under the Convention before evaluating subject matter jurisdiction, including Article 28); Pflug, 961 F.2d at 30 (finding that the question of whether defendant is "carrier" under Article 17 was "obviously antecedent to an examination of whether the United States [was] one of the jurisdictions in which Article 28 . . . allows the plaintiffs to proceed against the carrier."). Accordingly, we now turn to the issue of whether the Warsaw Convention's substantive liability provisions apply to the plaintiff's claims.

 Article 17 establishes the liability of international air carriers for harm to passengers. Air France v. Saks, 470 U.S. 392, 396, 105 S. Ct. 1338, 1341, 84 L. Ed. 2d 289 (1985). Under Article 17, an air carrier is liable for passenger injury only when three conditions are satisfied: (1) there has been an accident, in which (2) the passenger suffered death, wounding or other bodily injury and (3) the accident occurred on board the aircraft or in the course of embarking or disembarking. Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 535, 111 S. Ct. 1489, 1494, 113 L. Ed. 2d 569 (1991).

 Plaintiffs argue that the case at bar does not meet the criteria of Article 17, because the events alleged by plaintiffs do not constitute an "accident" nor do plaintiffs' claims include "bodily injury". *fn7" In Air France v. Saks, the Supreme Court held that an "accident" triggering liability under Article 17 arises only if a passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger." Saks, 470 U.S. at 405. The Court further noted that this definition of accident "should be flexibly applied after an assessment of all the circumstances surrounding a passenger's injuries." Id. Recently, this Court determined whether an alleged incident was an "accident" by considering whether such occurrence was a "risk characteristic of air travel". See Curley v. American Airlines, Inc., 846 F. Supp. 280, 283 (S.D.N.Y. 1994).

 The history of the Convention suggests that the drafters intended the word "accident" to include incidents occurring while airplanes are in motion or en route and particularly to provide for events such as air disasters. Walker, 785 F. Supp. at 1172. Article 17 has also been interpreted by some courts to include torts committed by terrorists or fellow passengers. Saks, 470 U.S. at 405 (citations omitted). The Second Circuit recently affirmed its position that hijackinq qualifies as an accident under Article 17. Pflug, 961 F.2d at 29 (citations omitted).

 Instances found by this Court to fall outside the meaning of "accident" range from deaths due to natural causes to injuries sustained by inebriated plaintiffs. Curley, 846 F. Supp. at 283 (passenger's injuries while being detained and searched by Mexican authorities, after the captain of his flight falsely identified him as having smoked marijuana on the flight, were not caused by an "accident" under Article 17); Walker, 785 F. Supp. at 1170 (passenger who died of natural causes during an international flight did not fit the meaning of "accident" under Article 17); Price v. British Airways, 1992 U.S. Dist. LEXIS 9581, 1992 WL 170679, *1, 3 (S.D.N.Y.) (plaintiff who voluntarily consumed alcoholic beverages during a flight and subsequently suffered injuries when punched by a fellow passenger could not recover under Article 17, because his injuries were not caused by an "accident"); Padilla v. Olympic Airways, 765 F. Supp. 835, 836, 838 (S.D.N.Y. 1991) (plaintiff's injuries as a result of falling in an aircraft lavatory after voluntarily consuming alcoholic beverages during a flight were not due to an "accident" under Article 17).

 Here, plaintiffs claim that Icelandair conspired to intentionally interfere with a custodial relationship, intentionally inflicted emotional distress on plaintiff Fred Pittman and falsely imprisoned plaintiff Elizabeth Pittman. Plaintiffs claims arise from allegations that Icelandair hid Elizabeth and Anna in JFK International and then smuggled Elizabeth and Anna onto an Icelandic aircraft by boarding them onto the aircraft from an entrance different from that of the other passengers and boarding them without passports. Complaint at PP 30-31.

 While the issue of whether Icelandair's conduct qualifies as an "accident" is a close question, inasmuch as the alleged action is literally "unexpected", "unusual" and "external to the passenger", a thorough examination of relevant legal precedent persuades us that defendant's conduct should not be regarded as an "accident" under the Warsaw Convention. First, in applying the Saks test, courts have focused on whether the alleged conduct constitutes a "risk inherent in air travel". See Curley, 846 F. Supp. at 283. This criteria both explains why instances such as aircraft collisions, terrorist activities, or even intentional torts by other passengers qualify as accidents, and renders defendant's reference to decisions involving such conduct tenuous at best. The risk that airline personnel will smuggle a passenger onto an international flight in violation of a court order, or will otherwise commit intentional torts against a passenger, hardly constitutes a "risk inherent in air travel". See Curley, 864 F. Supp. at 283. *fn8"

 We cannot agree with Icelandair's suggestion that the drafters of the Convention intended the term "accident" to encompass the conduct alleged here. Nor do we believe that judicial interpretation of the term "accident" under precedent to date compels such a finding. Accordingly, because state law causes of action arising from an international flight remain viable where, as here, they do not fall under the Convention, Lockerbie, 928 F.2d at 1273, plaintiffs' state law claims with respect to defendant Icelandair -- intentional interference with custodial relations, intentional infliction of emotional distress and false imprisonment -- survive Icelandair's motion to dismiss based on the Convention.

 B. The Airline Deregulation Act

 Icelandair further maintains that this Court should dismiss plaintiffs' state law claims against Icelandair, because such claims are preempted by section 1305 of the FAA.

 In 1978, Congress enacted the Airline Deregulation Act (ADA) which amended the FAA. Pub. L. No. 95-504, 92 Stat. 1705 (1978). To ensure that states would not undo federal deregulation with regulation of their own, the ADA included a preemption provision which prohibited states from enforcing any law "relating to rates, routes, or services" of any air carrier. 49 U.S.C.A. § 1305(a)(1) (West Supp. 1994).

 In Morales v. Trans World Airlines, the Supreme Court reviewed the federal preemption section of the ADA. See Morales v. Trans World Airlines, 119 L. Ed. 2d 157, 112 S. Ct. 2031, 2037 (1992). In Morales, airlines sued to enjoin state attorneys general from prohibiting allegedly deceptive airline fare advertisements through enforcement of state consumer protection statutes. The Court concluded that the ADA preemption provision expresses "a broad preemptive purpose." Id., 112 S. Ct. at 2037. Adopting the same standard as that of the preemption provision of the Employee Retirement Income Security Act of 1974 (ERISA), the Court held that "state enforcement actions having a connection with or reference to airline 'rates, routes, or services'" are preempted under § 1305(a)(1). Id. The Court did, however, leave room for state laws relating to airlines by noting that "some state actions may affect [airline fares] in too tenuous, remote, or peripheral a manner to have preemptive effect." Id. at 2040.

 Icelandair claims that plaintiffs' claims of intentional interference with a custodial relationship, intentional infliction of emotional distress, and false imprisonment arise out of the reservation, ticketing, and boarding of Elizabeth. The 5th Circuit has defined services as including "ticketing [and] boarding procedures". Hodges v. Delta Airlines, Inc., 4 F.3d 350 (5th Cir. 1993). Based on Morales and some of its progeny, Icelandair maintains that plaintiffs' claims against Icelandair fall within the scope of "services" and are therefore preempted.

 Relying upon Morales' caveat against an overly broad application of ADA's preemption provision, plaintiffs contend that state law tort claims are not preempted by the ADA because such claims affect rates, routes or services in "too tenuous, remote, or peripheral a manner to have preemptive effect." Morales, 112 S. Ct. at 2040.

 Based on an analysis of the legislative history of the ADA, and subsequent judicial discussion of the Act, plaintiffs urge this Court to test whether their claims are preempted on the basis of an evaluation of whether the state claims in question would affect the competitiveness of the airlines. Plaintiffs argue that plaintiffs' state law claims, alleging airline employees/ agents committed intentional torts, implicate ADA-protected airline services, in only a most tenuous and non-economic manner and were thus not the target of Congressional regulation via the ADA.

 The Second Circuit has not as yet ruled on § 1305(a)(1). Recent cases in the District Courts in this Circuit suggest, however, that actions in which plaintiffs invoke traditional elements of tort law -- suing for personal injuries sustained in airport terminals, during flights, or at the hands of airlines employees or fellow passengers -- overwhelmingly incline against federal preemption. Heller v. Delta Airlines, 1993 U.S. Dist. LEXIS 11854, No. 92-1937, 1993 WL 330093, at *2 (S.D.N.Y. Aug. 25, 1993) (finding that plaintiffs' claim of airline's negligence in causing a bag to fall from an overhead compartment causing injury to a plaintiff was not preempted by the ADA and further that the purpose of the ADA "does not require preemption of a state common law claim based on negligence like plaintiffs' claim in this action."); Stagi v. Delta Air Lines, 849 F. Supp. 179, 180-2 (E.D.N.Y. 1994) (determining that claim by an elderly passenger injured by a fellow passenger in the baggage carousel area was not preempted by the ADA, since it would be illogical to assume that Congress intended § 1305 to exempt all air carriers from the duty to exercise reasonable care in maintaining their buildings or terminal space and plaintiff's claim "falls far short of encroaching upon economic deregulation of the airline industry"); Curley, 846 F. Supp. at 284 (concluding that plaintiff's state law claims of negligence and false imprisonment - based on captain's passing on to ground personnel information concerning a passenger's smoking habits - were not preempted by the ADA, since they consisted of conduct that fell within the Morales exception to preemption).

 In a case analogous to the present action, one court analyzed the is sue of preemption on the basis of whether the regulation affects competitiveness. See Sedigh v. Delta Airlines, Inc., 850 F. Supp. 197 (E.D.N.Y. 1994). In Sedigh v. Delta Airlines, plaintiff brought suit on a number of state law claims including unlawful imprisonment and intentional infliction of emotional distress. Plaintiff claimed that the captain on his flight abused him verbally and physically, accused him of travelling with a false passport and handed him over to the German police who held him for three days. The court concluded that plaintiff's claims were not preempted under § 1305(a)(1) and that in determining preemption, "the proper focus should be on whether the specific common law action addresses matters about which the airlines wish or are likely to compete." Id. at *4.

 Icelandair relies on Morales, as well as on decisions of the 5th Circuit and District Courts in Texas and Tennessee, to support its proposition that § 1305 should be interpreted broadly to preempt state tort claims if such claims relate to "services". *fn9" In the only Circuit Court decision on ADA preemption of certain state tort claims, a passenger brought a personal injury claim against Delta Airlines, alleging that the airline was negligent in allowing a case of rum to be stored in an overhead bin. Hodges v. Delta Airlines, 4 F.3d 350, (5th Cir. 1993), reh'g en banc granted, 12 F.3d 426 (5th Cir. 1994). Despite its reluctance to preempt Hodges' state claims, Hodges, 4 F.3d at 355, the 5th Circuit found that it was obliged to reach such a result by a previous, unpublished decision by that Court, Baugh v. Trans World Airlines, Inc., 915 F.2d 693 (5th Cir. 1990). Hodges, 4 F.3d at 355. *fn10" The Court did note that "generally, however, state tort laws concerning safety can be enforced consistently with and distinctly from the services that Congress deregulated" under the ADA, while adding that "our vindication of airline safety claims under state law would not extend to all state tort claims". Id. at 355-356. Notably, the 5th Circuit has granted a rehearing en banc of Hodges with regard to the issue of ADA preemption of state law tort claims, but has not yet rendered its decision. *fn11"

  In its moving papers, Icelandair emphasizes that in order for plaintiffs to prove their claims, plaintiffs must show that the airline violated its own reservation, ticketing, boarding, seating, ground service and in-flight service procedures. Despite Icelandair's observations concerning the relationship between plaintiffs' claims and "services", whether a state law claim relates to "services" is not the only consideration in evaluating preemption of state law claims under § 1305.

 Plaintiffs' proposition that a state claim should be evaluated from the standpoint of its impact on the economic competitiveness of airlines has received express support in this Circuit, as well as receiving general support by the 5th Circuit which began its analysis of § 1305 in Hodges by stating, "In evaluating the scope of § 1305(a) preemption, one must bear in mind its origin in the ADA, an economic deregulation statute." (emphasis added). In the Court's view, allowing plaintiffs' suit to go forward would not frustrate the ADA's economic deregulation of the airlines nor would it significantly impact the Airline's competitive posture.

 The present action may be further distinguished from other cases involving potential preemption under the ADA by the fact that plaintiffs are alleging intentional torts which represent the civil offspring of criminal behavior. We agree with plaintiffs that the ADA is not intended to be a safe harbor for airlines from civil prosecution for the civil analogues of criminal offenses. See Morales, 112 S. Ct. at 2040 ("we do not. . .set out on a road that leads to preemption of state laws against gambling and prostitution as applied to airlines.").

 For the above stated reasons, we cannot agree with Icelandair's position that the ADA preempts plaintiffs' claims of intentional interference with a custodial relationship, intentional infliction of emotional distress, and false imprisonment. Accordingly, plaintiffs' state law claims against Icelandair survive Icelandair's motion to dismiss based on preemption by the ADA.


 Icelandair's final argument is that this action should be dismissed on the basis of forum non conveniens.

 Under a forum non conveniens analysis, the ultimate inquiry is to determine "where trial will be most convenient and will serve the ends of justice." R. Maganlal & Company v. M.G. Chemical Company, Inc., 942 F.2d 164, 167 (2d Cir. 1991) (citations omitted). A determination of forum non conveniens is left to the discretion of the trial court and may only be reversed when there has been a clear abuse of discretion. Piper Aircraft Company v. Reyno, 454 U.S. 235, 257, 102 S. Ct. 252, 266, 70 L. Ed. 2d 419 (1981).

 As a threshold issue, the court must determine whether there exists an alternative forum. Piper, 454 U.S. at 255, n. 22 (citations omitted). If an alternative forum does exist, a court must then weigh the relevant private and public interests, as described in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S. Ct. 839, 843, 91 L. Ed. 1055 (1947). *fn12" R. Maganlal, 942 F.2d at 167.

 As noted, we must first determine whether an alternative forum exists for this action. Although this requirement is ordinarily met when the defendant is "amenable to process", "rare circumstances . . . where the remedy offered by the forum is clearly unsatisfactory" may render the alternative forum inadequate. Piper, 454 U.S. at 255 n.22.

 The "rare circumstances" in which alternative forums are found to be inadequate do not broadly encompass all instances involving substantive and procedural "disadvantages" of foreign forums. See Blanco v. Banco Industrial de Venezuela, 997 F.2d 974, 982 (2d Cir. 1993). "Some inconveniences or the unavailability of beneficial litigation procedures similar to those available in the federal district courts does not render an alternative forum inadequate." Id. at 982 (quoting Borden v. Meiji Milk Products Co., Ltd., 919 F.2d 822, 829 (2d Cir. 1990). Furthermore, the adequacy of the alternative forum is met "when the parties will not be deprived of all remedies or treated unfairly, even though they may not enjoy the same benefits as they might receive in an American court." Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1549-50 (5th Cir. 1991)

 Alternative fora which offer a litigant no remedy or a meaningless remedy constitute the class of "rare circumstances" of inadequate fora. Piper, 454 U.S. at 255 n.22 (finding that an alternative forum would not exist if such forum did not permit litigation of the subject matter of the dispute); Borden, 919 F.2d at 829 (noting that an alternative forum would unduly prejudice the plaintiff, were the plaintiff "forced to wait for years or even months to have a Japanese district court review its application" for a preliminary injunction).

 In the present action, defendant Icelandair claims that the courts of Iceland provide an adequate alternative forum. Icelandair has indicated that Iceland's courts have personal jurisdiction over all defendants in this action and that all defendants are amenable to service of process in Iceland. Affidavit of Othar Orn Petersen sworn on September 28, 1993 (Petersen Aff.) at P 6. In addition, Icelandair claims that Icelandic law provides "an adequate remedy for damage caused by the conspiracy and intentional torts alleged in the Complaint." Id. at P 9. We disagree.

 Icelandair has failed to demonstrate that the foreign forum, Iceland, is available and adequate in this action. Plaintiffs' claims against Icelandair include a cause of action based on the airline's alleged conspiracy with other defendants to interfere intentionally with the custodial relationship between plaintiffs Fred and Elizabeth Pittman. A Florida court order, awarding Fred Pittman sole custody of Elizabeth and ordering defendant Eyjolfsdottir's arrest, provides one of the legal bases for plaintiffs' claims concerning the custodial relationship of the plaintiffs. See Ex. 2 of Erlanger Aff. Moreover, plaintiffs claim that during custody proceedings, Eyjolfsdottir was under the restraining orders of two Florida courts not to leave Northern Florida with her daughters. Complaint at P 12. Nevertheless, the Supreme Court of Iceland, disregarding Florida's court orders, has granted Eyjolfsdottir sole custody of Elizabeth. Ex. 4 of Erlanger Aff. at 38-41. In doing so, the Supreme Court of Iceland has effectively rendered plaintiffs' claim of custodial interference meaningless.

 In our view, Icelandair's failure to address the most formidable barrier to plaintiffs' opportunity to be heard in an Icelandic forum -- that the Supreme Court of Iceland has granted custody to Eyjolfsdottir -- renders its motion for dismissal based on forum non conveniens fatally deficient. *fn13"


 For the reasons set forth above and in the interests of justice, defendant's motion to dismiss this action is denied.


 Dated: New York, New York

 November 4, 1994

 Allen G. Schwartz, U.S.D.J.

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