The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
This diversity action, which was removed from New York Supreme
Court, is the latest episode in long running matrimonial
litigation that continues and belongs in the courts of
Connecticut. Defendant moves to dismiss for failure to state a
claim, lack of subject matter jurisdiction, lack of personal
jurisdiction, and improper venue and on the ground of forum non
conveniens and for other relief, including sanctions. Facts
The Court accepts as true, for purposes of this motion, the
well pleaded factual allegations of the complaint save that it
considers the affidavits specifically cited below solely insofar
as they bear on the issue of personal jurisdiction.
Plaintiff and defendant were married in 1991 and divorced in
1997 pursuant to a judgment of the Superior Court for the State
of Connecticut. A separation agreement providing, among other
things, for visitation rights with respect to the minor child of
the marriage was incorporated in the divorce decree.
The parties have had continuing disagreements with respect to
visitation. In November 2003, in an effort to resolve these
problems, they entered into a supplemental agreement that was
reduced to an order of the Family Court in Connecticut.
Plaintiff, now a citizen of New York, claims that his former
spouse, still a citizen of Connecticut, has breached the
separation and supplemental agreements and otherwise misbehaved,
chiefly in relation to his visitation rights. He allegedly has
been unsuccessful in obtaining relief from the Connecticut
courts. So he brought this action in New York Supreme Court,
whence defendant removed it to this Court.
The complaint contains eight claims for relief:
Breach of the separation and supplemental
agreements, chiefly in relation to visitation.
Breach of the covenant of good faith and fair
dealing implicit in the separation and supplemental agreements, chiefly in
relation to visitation.
Fraud in the inducement of the separation and
supplemental agreements in that the defendant
allegedly had no intention of performing.
Tortious interference with custodial rights.
Intentional infliction of emotional distress.
Negligent infliction of emotional distress.
Prima facie tort.
The complaint alleges in conclusory terms that the actions
complained of either occurred in New York or have had a
detrimental impact here.*fn1 Its specific allegations,
however, all contend that defendant improperly acted or failed to
act in the State of Connecticut.*fn2 It asserts falsely,
as shown below that defendant commenced an unspecified
proceeding against plaintiff in New York Family Court.*fn3
Defendant has submitted an affidavit stating that she has
resided in Connecticut for many years, that the child always has lived there, that she has
had no contacts with New York pertaining to these matters except
that she has received telephone calls and correspondence
initiated by plaintiff from New York, and that she never has
traveled to New York for any reason connected with the dispute
with her ex-husband.*fn4
The separation agreement, which is incorporated in the judgment
of divorce, provides that plaintiff is to have "liberal and
reasonable visitation," that the defendant shall meet plaintiff
in Milford, Connecticut, on alternate weekends to exchange the
child, and that the plaintiff shall pick up the child in
Connecticut for specified holidays. Any disputes concerning
visitation are to be mediated and then submitted to the
Connecticut Superior Court either to incorporate any agreements
reached in mediation in court orders or for resolution on
motion.*fn5 The supplemental agreement similarly provides
for plaintiff to have "parenting time" with the child, with
exchanges of the child to occur in Connecticut.*fn6
Defendant's affidavit in opposition to the motion is extremely
sparse on the issue of personal jurisdiction. He contends that
the "Court appears to have . . . personal jurisdiction" and
again refers to the alleged New York Family Court action, but
otherwise does not address the issue save to say without a
shred of support and in the face of the express terms of the
agreements "that defendant's obligations under the agreements
between us, principally the Separation Agreement, were to have been performed, fulfilled and/or effectuated in the
City and State of New York."*fn7
Plaintiff's reference to the New York Family Court action is
more circumspect than in the complaint. The complaint alleged
that defendant "commenced" such an action.*fn8 The
affidavit, in contrast, says that "[d]efendant filed or caused
to be filed a Family Court action here" in consequence of which
he now makes child support payments to the State of New
York.*fn9 The reason for the change in wording is readily
apparent, as defendant quite clearly did not commence any
proceeding against plaintiff in the New York Family
Court.*fn10 What happened was quite different.
Defendant fell into arrears in child support payments. The
Support Enforcement Division of the Connecticut Superior Court
demanded payment from the plaintiff.*fn11 Connecticut
authorities then pursued the ...