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May 22, 2001


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 United States.

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 Judge Nealon.

The case was originally assigned to the Honorable E. Mac Troutman. On January 7, 1997, Judge Troutman concluded that venue was improper in this District and transferred it to the Middle District where it was assigned to Judge Nealon.*fn2 Subsequently, Judge Nealon recused himself. Thereafter, all of the other judges in the Middle District also recused themselves, and the Honorable Sue L. Robinson of the U.S. District Court for the District of Delaware was designated to preside over the case in the Middle District.

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 ...

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