The opinion of the court was delivered by: O'Neill, J.
The federal defendants' motion for a protective order requests that I
decide whether the scheduled deposition of a third-party witness should
go forward after newly-named federal defendants have claimed qualified
immunity. For the reasons stated below, the motion will be denied.
This case derives from an international child custody dispute.*fn1 In
February 1993, Ms. Aniko Kovacs, plaintiff's wife, took their son Oscar
to Hungary, ostensibly to perform in a concert. Plaintiff alleges that
sometime thereafter his wife informed him that she was ending their
marriage and would remain in Hungary with Oscar. Plaintiff made a number
of attempts to reconcile with his wife and/or convince her to allow Oscar
to return to this country. She refused and eventually hid Oscar from his
father in Hungary. Plaintiff went to Hungary to attempt to retrieve his
son and allegedly was told by the U.S. Embassy in Budapest that he was
free to take Oscar (who was a U.S. citizen and had spent his entire life
in this country) back to the U.S. if the child could be located. On
December 18, 1993, plaintiff found his wife and son leaving her parents'
apartment in Budapest. He retrieved the child and they returned to the
On May 13, 1994, members of the Pennsylvania State Police and the U.S.
Marshals arrived at Mr. Egervary's home with an order that had been
signed by the Honorable William J. Nealon of the U.S. District Court for
the Middle District of Pennsylvania. Pursuant to the order, the law
enforcement officials removed Oscar from plaintiff's custody and
delivered him to defendant Frederick P. Rooney, Esq., Ms. Kovacs'
attorney. Defendant Rooney then immediately returned the child to his
mother in Hungary.
Plaintiff subsequently learned that his wife had, with the assistance
of State Department officials and private attorneys, filed a petition
under the Hague Convention on the Civil Aspects of International Child
Abduction and the International Child Abduction Remedies Act ("ICARA"),
42 U.S.C. § 11601 et seq. That petition was presented to Judge Nealon
in an ex parte hearing of which plaintiff was afforded no notice and in
which he had no opportunity to be heard.
Plaintiff filed his first complaint in this action in this District on
April 17, 1996. The complaint alleged that plaintiff's due process rights
had been violated and named Virginia Young and James Schuler of the State
Department (the "federal defendants") as well Frederick P. Rooney, Esq.,
James J. Burke, Esq., and Jeffrey C. Nallin, Esq. (the "attorney
defendants") who had represented Ms. Kovacs in the ICARA hearing before
On August 17, 1998, Judge Robinson dismissed the federal defendants
from the case, concluding that plaintiff had failed to allege adequately
that the proceedings before Judge Nealon were "in anyway directed by,
approved of, or even within the knowledge of the [federal defendants]."
Thereafter, upon unopposed motion by plaintiff Judge Robinson transferred
the case back to the Eastern District pursuant to 28 U.S.C. § 1404,
and it was reassigned to me.
In Egervary I, I denied the attorney defendants' motion for summary
judgment because I concluded that plaintiff's due process rights had been
violated when he was afforded no notice of or opportunity to be heard in
the ICARA proceedings.*fn3 See Egervary, 80 F. Supp.2d at 497-504. At
that time, I ordered the attorney defendants to submit briefs on why
summary judgment should not be entered against them on the issue of
liability. Id. at 509-10. After consideration of those briefs, in
Egervary II I concluded that defendant Nallin could not be held liable as
a federal actor and therefore entered summary judgment in his favor. See
Egervary II, 2000 WL 1160720, at *6. I also concluded that defendants
Rooney and Burke could assert a good faith defense at trial and therefore
declined to enter summary judgment against them. Id.
As discovery proceeded against defendants Rooney and Burke, plaintiff
uncovered evidence that arguably shows that the federal defendants had
personal involvement in the deprivation of plaintiff's due process
rights. For this reason, on March 6, 2001 I granted plaintiff leave to
amend his complaint to re-assert claims against the federal defendants.
On May 11, 2001, the federal defendants filed a motion to dismiss the
amended complaint arguing, inter alia, that plaintiff's claims are barred
by the doctrine of qualified immunity.
On Monday, May 14, 2001, I conducted a telephone conference with
counsel, who informed me that the deposition of Judge Nealon is scheduled
to take place later this month. Counsel for the federal defendants
objected to the deposition going forward because they have asserted
qualified immunity. Because the federal defendants' motion to dismiss was
recently filed, plaintiff has not yet responded to it and it is unlikely
the motion will be decided before Judge Nealon's deposition is to take
place. I therefore asked the federal defendants to provide a letter brief
in support of their oral motion for a protective order. I received that
brief on Thursday, May 17, 2001.
Because it affects my analysis of the issues involved in the federal
defendants' motion, I will describe my understanding of why Judge
Nealon's deposition is being taken and some of ...