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EGERVARY v. YOUNG
September 6, 2001
OSCAR W. EGERVARY
VIRGINIA YOUNG, ET AL.
The opinion of the court was delivered by: O'neill, Distict Judge.
This case is a Bivens action alleging the violation of
plaintiffs due process rights during an international child
custody dispute and has been the subject of four prior
memorandum opinions. See Egervary v. Young, No. 96-3039, 1997
WL 9787 (E.D.Pa. Jan. 7, 1997) (Troutman, J.) ("Egervary I");
Egervary v. Rooney, 80 F. Supp.2d 491 (E.D.Pa. 2000) (O'Neill,
J.) ("Egervary II"); Egervary v. Rooney, No. 96-3039, 2000 WL
1160720 (E.D.Pa. Aug. 15, 2000) (O'Neill, J.) ("Egervary
III"); and Egervary v. Young, 152 F. Supp.2d 737 (E.D.Pa.
2001) (O'Neill, J.) ("Egervary IV"). Presently before me are:
1) the federal defendants' motion to dismiss the amended
complaint for improper venue pursuant to Rule 12(b)(3); 2) the
federal defendants' motion to dismiss the amended complaint for
insufficient service of process pursuant to Rule 12(b)(5); 3)
the federal defendants' motion to dismiss the amended complaint
for failure to state a claim pursuant to Rule 12(b)(6) on two
grounds, statute of limitations and qualified immunity; and 4)
the federal defendants' motion for summary judgment pursuant to
Rule 56 on the grounds that they had no personal involvement in
the alleged constitutional tort. For the reasons stated below,
the motions will be DENIED.
A. Oscar's Alleged Abduction and Return to Hungary
Plaintiff Egervary was born in 1955 in Hungary, where he
suffered political oppression at the hands of the then-communist
government because his father was a church official.*fn1
See Egervary Aff. (June 9, 1994) §§ 1-2. In 1980, he emigrated
to the United States as a political refugee. Id. He became a
U.S. citizen in 1987. Id. ¶ 3.
In 1990, Egervary became romantically involved with Aniko
Kovacs, a Hungarian national who came to the U.S. to study
music. Id. ¶ 4. They briefly returned to Hungary in 1991 to be
wed by Egervary's father. Id. Thereafter, they established
their marital residence in Hackensack, New Jersey. Id. ¶ 5.
Their son, Oscar Jonathan Egervary, was born on Independence
Day, July 4, 1992. Id. ¶ 6.
In February 1993, Kovacs, a concert violinist, traveled to
Hungary with Oscar to perform in a concert to be held in
Budapest that March. Id. ¶ 7. They were scheduled to return to
the U.S. on April 6, 1993, and Egervary had purchased a ticket
to fly to Hungary and escort them back. See Egervary Aff.
(July 7, 1994) ¶ 2. A few days before, however, Kovacs called
Egervary and said she needed to stay until the beginning of May
to perform in another concert. Id. Shortly before she and
Oscar were to return in May, Kovacs again called Egervary and
said that she would be staying in Hungary because she had an
opportunity to take a teaching position in Budapest until the
end of the year. Id. Shortly thereafter, she separated from
Egervary and informed him that she would not return to the U.S.
and would not return Oscar to this country. Id.
In June and July of that year, Egervary traveled to Hungary in
an attempt to reconcile with his wife and bring Oscar home.
Id. In July, Kovacs returned to the U.S. with Egervary for a
short time, but she insisted on leaving Oscar in Hungary with
her parents. Id.
In August, Egervary returned to Hungary and stayed for three
months in another attempt to reconcile with his wife. Id.
During that stay, he took a job teaching English in order to
support himself. Id. He stayed there from approximately August
to November of 1993. Id. He brought some personal belongings
from the U.S., but he did not plan on establishing residence
there and did not register with the Hungarian government as a
In September, Kovacs took Oscar to an undisclosed location in
Hungary in an apparent attempt to hide the child from his
father. See Egervary Aff. (June 9, 1994) ¶ 8. At that time,
she left Egervary a letter that, in part, stated: "I'd like to
notify you in this farewell letter that I've moved out from you,
together with Ossika [i.e., Oscar] . . . I moved to a location
unknown to others deliberately and I didn't move to my parents
on purpose." See Egervary Aff. (July 7, 1994) ¶ 3. Egervary
searched for his son for approximately three months. Id.
During that time, he consulted with the American Embassy in
Budapest and was told that if he could find Oscar he was free to
take the child back to the U.S. Id.
On December 18, 1993, Egervary found Kovacs and Oscar leaving
her parents' apartment house in Budapest. Id. According to
Egervary, Oscar's clothing was "dirty and ragged" and the boy
appeared undernourished. See Egervary Aff. (June 9, 1994) ¶ 9.
Egervary took Oscar from Kovacs and left Hungary with him the
next day. Id. Upon their return to the U.S., Egervary set up
residence with his son in Monroe County, Pennsylvania. Id.
On May 13, 1994, members of the Pennsylvania State Police and
U.S. Marshals arrived at Egervary's home with an order signed by
the Honorable William J. Nealon of the United States District
Court for the Middle District of Pennsylvania. Id. ¶ 10.
Pursuant to the order, Oscar was removed from Egervary's custody
and delivered to defendant Frederick P. Rooney, Esq. Id.
Rooney then took Oscar to the airport, flew him to Europe, and
returned the child to his mother. See Rooney Dep. at 169. All
parties concede that Egervary was given no notice of or
opportunity to be heard in the ex parte Hague Convention/ICARA
proceedings that led to the order.
B. The Hague Convention/ICARA Proceedings
The Hague Convention on the Civil Aspects of International
Child Abduction is a multilateral international treaty on
parental kidnaping adopted by the United States and other
nations in 1980. The goal of the Convention is to "protect
children internationally from the harmful effects of their
wrongful removal or retention and to establish procedures to
ensure their prompt return to the State of their habitual
residence." See Hague Convention, Preamble. The Convention
reflects "a universal concern about the harm done to children by
parental kidnaping and a strong desire among the Contracting
States to implement an effective deterrent to such behavior."
Feder v. Evans-Feder, 63 F.3d 217, 221
(3d Cir. 1995). The Convention is "designed to restore the
`factual' status quo which is unilaterally altered when a parent
abducts a child." Id.
The United States has implemented the Hague Convention by
enactment of the International Child Abduction Remedies Act
("ICARA"), 42 U.S.C. § 11601 et seq. ICARA vests state and
district courts with concurrent jurisdiction over claims arising
under the Convention and empowers those courts to order the
return of kidnaped children. See 42 U.S.C. § 11603. An ICARA
hearing is not a custody hearing. See Blondin v. Dubois,
189 F.3d 240, 245 (2d Cir. 1999) (under ICARA, a district court has
"the authority to determine the merits of an abduction claim,
but not the merits of the underlying custody claim"), quoting
Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993);
Hague Convention, Article 19 ("A decision under this Convention
concerning the return of the child shall not be taken to be a
determination on the merits of any custody issue."). An ICARA
proceeding merely determines which nation should hear the
underlying custody claim. See Blondin, 189 F.3d at 246.
An ICARA petitioner bears the burden of proving by a
preponderance of the evidence that the child in question has
been wrongfully removed from the nation of his or her "habitual
residence" immediately before the removal. See
42 U.S.C. § 11603(e)(1)(A); Hague Convention, Articles 3 and 4.*fn2 If
the petitioner establishes that the removal was wrongful, the
child must be returned unless the respondent can establish one
or more of four defenses: 1) the ICARA proceedings were not
commenced within one year of the child's abduction; 2) the
petitioner was not actually exercising custody rights at the
time of the removal; 3) there is a grave risk that return would
expose the child to "physical or psychological harm or otherwise
place the child in an intolerable situation"; or 4) return of
the child "would not be permitted by the fundamental principles
. . . relating to the protection of human rights and fundamental
freedoms." Id.; Hague Convention, Articles 12, 13 and 20. The
first two defenses can be established by a preponderance of the
evidence; the last two must be established by clear and
convincing evidence. Id.; 42 U.S.C. § 11603(e)(2).
ICARA also provides that notice "be given in accordance with
the applicable law governing notice in interstate child custody
proceedings." See 42 U.S.C. § 11603(c). Courts interpreting
this provision have found the "applicable law" to be the
Parental Kidnaping Prevention Act, 28 U.S.C. § 1738A ("PKPA"),
and the Uniform Child Custody Jurisdiction Act, 23 Pa.C.S.A. §
5341, et seq. ("UCCJA"). See Brooke v. Willis, 907 F. Supp. 57,
60 (S.D.N.Y. 1995); Klam v. Klam, 797 F. Supp. 202, 205
(E.D.N.Y. 1992). Both PKPA and UCCJA provide for "reasonable
notice and opportunity to be heard." See 28 U.S.C. § 1738A(e);
23 Pa.C.S.A. § 5345. This generally means "a plenary hearing at
which both sides are heard." Klam, 797 F. Supp. at 205.
However, because there is an inherent risk of flight during the
pendency of a petition, courts "may take or cause to be taken
measures under Federal or State law, as appropriate, to protect
the well-being of the child involved or to prevent the child's
further removal or concealment before the final disposition of
the petition." See 42 U.S.C. § 11604(a).
Central Authorities shall cooperate with each other
and promote co-operation amongst the competent
authorities in their respective States to secure the
prompt return of children and to achieve the other
objects of this Convention.
In particular, either directly or through any
intermediary, they shall take all appropriate
(a) to discover the whereabouts of a child who has
been wrongfully removed or retained;
(b) to prevent further harm to the child or prejudice
to interested parties by taking or causing to be
taken provisional measures;
(c) to secure the voluntary return of the child or to
bring about an amicable resolution of the issues;
(d) to exchange, where desirable, information
relating to the social background of the child;
(e) to provide information of a general character as
to the law of their State in connection with the
application of the Convention;
(f) to initiate or facilitate the institute of
judicial or administrative proceedings with a view to
obtaining the return of the child and, in a proper
case, to make arrangements for organizing or securing
the effective exercise of rights of access;
(g) where the circumstances so require, to provide or
facilitate the provision of legal aid and advice,
including the participation of legal counsel and
(h) to provide such administrative arrangements as
may be necessary and appropriate to secure the safe
return of the child;
(i) to keep each other informed with respect to the
operation of this Convention and, as far as possible,
to eliminate any obstacles to its application.
See Hague Convention, Article 7. See also 22 C.F.R. § 94.6.
State Department regulations implementing the Convention
further clarify these duties. The regulations provide that State
Department officials are "prohibited from acting as an agent or
attorney or in any fiduciary capacity in legal proceedings
arising under the Convention." See 22 C.F.R. § 94.4(a). They
may, however, "[a]ssist applicants in securing information
useful for choosing or obtaining legal representation, for
example, by providing a directory of lawyer referral services,
or pro bono listing published by legal professional
organizations, or the name and address of the state attorney
general or prosecuting attorney who has expressed a willingness
to represent parents in this type of case and who is employed
under state law to intervene on the applicant's behalf." See
22 C.F.R. § 94.6(d).
The case I hope you will be able to accept is
that of an almost-two-year-old child, Oscar
Egervary, who, according to the information we
have, was quite brutally kidnapped by his father
and brought to the U.S. The mother, your
client-to-be, is a violin soloist in Budapest and
the father in the U.S. is unemployed, so I'm sorry
but it doesn't look like there's any money
The child was born in the U.S. but the family
apparently decided to go back home, and apparently
the father gave up job [sic] and belongings to
relocate. And then seems to have changed his mind.
I figure the Hague applies in that the child lived
a month or two longer in Hungary than he did in the
U.S. and the information seems to indicate that
Hungary had been established as the place of
residence when the father did the kidnapping . . .
I hope you can help. Thanks for your
consideration of this case.
See Young Ltr. (May 10, 1994).*fn4
Rooney accepted the case, and immediately began receiving
assistance from Young. See Rooney Dep. at 62. He had never
handled a Hague Convention case in the United States. See
Rooney Dep. at 23-25, 30, 61-62.*fn5 He therefore needed
assistance "in trying to figure out how to best file the order."
Id. at 62. He "had to rely on them to help [him] through it"
because he "was not extremely well-versed on The Hague."
Some of this assistance consisted of written materials. On the
day he took the case, Young faxed Rooney Hungarian government
documents regarding Egervary's alleged abduction of his son and
Kovacs' subsequent Hague Convention petition to the Hungarian
government. Id. She also sent him model ICARA pleadings that
had been published by the ABA. Id. at 63-64. Those model
pleadings contained three different options for effecting the
return of the child. See Federal Defendants' Br. (July 9,
2001) at Exhibit G ("Model Petition") and Exhibit H ("Model
Warrant"). All three of those options suggested an initial ex
parte proceeding without notice to the alleged
parent-kidnapper, followed by seizure of the child and a prompt
postdeprivation hearing with notice. Id. See also infra Part
The federal defendants' assistance to Rooney was not, however,
limited to transmission of those written documents. Between May
10th and May 13th, Rooney spoke to Young, and possibly also to
defendant James Schuler, "a bunch of times." See Rooney Dep.
at 62, 74. There were "a bunch of phone calls" about "where the
child was" and "how to get an order together." Id. at 62-63.
As defendant James Burke, Rooney's associate, later described
it, "they seemed to be calling constantly . . . I remember the
phone calls was [sic] constantly coming in and it was the State
Department . . . they were calling all the time it seemed like."
See Burke Dep. at 26-27. During this period, Rooney never
spoke with Kovacs or any member of her family. See Rooney Dep.
On May 13, 1994, Rooney, Burke, and local counsel Jeffrey
Nallin filed an ICARA petition in the Middle District.*fn6
The petition was similar to the model pleadings that Young had
sent Rooney earlier that week, but there was one difference. In
addition to the three options that provided for seizure of the
child without notice followed a postdeprivation hearing with
notice, Rooney included a fourth option that eliminated the
postdeprivation hearing. Specifically, the fourth option
directed "any peace officer within the Commonwealth of
Pennsylvania" to "take into protective custody Oscar Jonathan
Egervary and deliver him to Petitioner's agent [i.e., Rooney]
for immediate return to the physical custody of Petitioner
[i.e., Kovacs]." See Federal Defendants' Br. (July 9, 2001) at
After filing the petition, Rooney met with Judge Nealon, to
whom the petition had been assigned. According to Rooney, when
he arrived in Judge Nealon's chambers someone from the State
Department had already called to inform the Court that a Hague
Convention petition was going to be presented that day:
Q: In your Answers to Interrogatories I believe you
said, and I don't have them in front of me but I
will get them if there's a question about this, I
believe that you said that the State Department had
contacted the court to arrange for you to appear
before Judge Nealon.
A: I don't know if they called to arrange. They
called to inform the court that a petition would be
presented involving a Hague matter. I don't know
who called, I don't know with whom they spoke; I
just knew that by the time we got there the judge
was aware or the judge's chambers was aware of
someone coming in with a petition. I also think
that we may have called, someone from my office may
have called, to advise the judge that we were on
our way to Scranton.
Q: What made you think that someone from the State
Department had contacted chambers?
A: I may have recalled the secretary saying, Oh,
yes, we got a call from the State Department saying
that a petition was going to be brought in.
See Rooney Dep. at 120-21. See also Rooney Interrogatories
(July 17, 1998) at 7(c); Rooney Amended Answers (undated) at
During the meeting, Rooney argued that Judge Nealon should
order the fourth option, i.e., the immediate return of the child
to his mother in Hungary. Judge Nealon, however, doubted whether
such an order would be lawful:
Q: . . . What reservations did the judge express?
Because of these reservations, Rooney called the State
Department and spoke to Schuler to confirm that Judge Nealon had
the authority to order the immediate return of the child:
Q: Did you speak to him [i.e., Schuler] about it
[i.e., the relief requested] before it was
presented to the court or after?
A: I went in and I saw Judge Nealon. I spoke to him
about the situation, presented him with the
petitions and the order, and to the best of my
recollection he then had a status conference or had
to do something, and so he adjourned our meeting. I
waited and during that period of time I spoke to
Jim Schuler because the judge was specifically
concerned about whether or not he had the authority
to allow the child to be returned. While it was my
impression that he did, in order to assure the
judge that, in fact, my interpretation of his
authority was correct, I called Schuler from the
Judge's chambers and I said, Jim, Judge Nealon
appears to be willing to sign an order for the
child to be returned, but he wants to just be sure
that that's within his authority and Schuler said
to me he's the judge. He's got the authority to
make whatever decision he wants.
Q: Tell me, as best you remember, what was said
during that telephone conversation.
A: That I was in the judge's chambers and that he
had a petition and one of the options was the
return of the child to Hungary, and that he had
some concern about whether or not that was in his
discretion. I said to you before, his answer was
he's the judge. Basically this is not verbatim, but
he's the judge. He can do whatever he feels is
Q: Did you, during that conversation, advise Mr.
Schuler that no notice of this, the filing of this
petition, had been given to Mr. Egervary?
A: No, but I think that we would have assumed that
that was the case simply because in most Hague
matters notice is not given to someone who has been
determined to be an abducting parent for fear that
upon notice of something pending that there would
be a flight with a child. It would have been highly
irregular to give notice to a parent in this
situation for fear that the child would then be
taken someplace else.
Rooney also states that after his conversation with Schuler he
discussed other options with Judge Nealon:
Q: And what was discussed during that second
meeting in chambers with the judge?
Q: And you described those alternatives to the
Q: And then what was said?
A: Well, I remember the judge mentioning, it was
Friday and it may have been difficult to get
protective services in at that time, given the time
of day or the fact that it was a Friday. That I
remember. And I told him that I didn't know anyone
else in the area. I didn't know if there was any
other family members with whom the child could be
left, and that given those circumstances, whatever
his decision was I would abide by it and respect
it, but I told him if the child, if he ordered the
return of the child, that I would take the child to
Judge Nealon's testimony agrees with much of Rooney's
testimony, but it differs on a few key points.*fn7 According
to Judge Nealon, Rooney: 1) portrayed himself as representing
the State Department; 2) stated that he was seeking to have the
Judge enforce a Hungarian court order; 3) had already made
arrangements to return the child to Hungary that day; and 4)
never suggested any remedy that would require Judge Nealon to
conduct a hearing on the matter:
Q: What did Mr. Rooney tell you about them [i.e.,
the papers that had been filed in support of the
A: Well, capsulizing what he told me and I have to
use this word advisedly whether he said he was
retained, I thought he said he was retained, at
least that's the impression I got, by the State
Department to present this petition that there had
been a proceeding in Hungary where a — at which the
father was represented. And the court awarded
custody to the mother and that the father went over
to Hungary, kidnaped the youngster and took the
youngster back and was now located in Cresco in
Monroe County. And what he was seeking to do was
enforce the Hungarian Court judgment by signing the
warrant and picking up the child. And once again,
and you people can flush it out later, it was
indicated to me that this was the appropriate
remedy and that the arrangements had been made to
take the child and return, I think, that day to
Hungary. It was a very critical period, according
to him, that something had to be done promptly.
Q: Was that because arrangements had already been
made to take the child back?
A: And let me — I know the petition mentions
hearings, but at no time did he suggest a hearing
to me. I want to be empathic about that. That this —
that while hearings may have been required in a
normal kidnaping context, here was a court order
out of Hungary and that he had been retained by the
State Department to implement this and pick up this
child and have her returned to Hungary. It was an
interpretation of international law. And I remember
being concerned about it and saying that I want to
find out if this is the official State Department
position. I don't have experience in these matters
and I'm willing to take their representation if
they say that no hearing is required, no notice is
required, and that the child should be immediately
picked up and turned over to Mr. Rooney for prompt
return to Hungary.
Q: When you said that to Mr. Rooney what did he do?
A: He made a phone call and came back and said,
yes, they said that is the remedy they're seeking
and that is the appropriate remedy.
Q: During that meeting did Mr. Rooney show you a
copy of the language of the Hague Convention on
international child abduction to support that
A: I can't say that he did, but once again in a
sophisticated legal area where — with which I have
little familiarity I was prepared to rely upon the
representation of the Department of State of the
United States of America was telling me as a Judge
that this was the remedy that was being sought.
See, and I know there's dispute about the hearing,
but the easiest thing in the world for me to do
would be to order a hearing. I mean, if he came in
and said one of your options is a hearing, I would
have ordered that immediately. That would be the
appropriate thing to do. I had to be talked out of
it. And I was talked out of it by saying this is
what the State Department says that that — the
appropriate remedy and the remedy they're seeking
is the immediate taking custody of the youngster
and taking him right back to his mother in
recognition of a valid order from Hungary. I can't
conceive of why I would ask him to call the State
Department if I was going to set a hearing. Why
would I need to ask the State Department about a
hearing? The only reason I wanted to call the State —
to have the State Department called was he was
telling me there was no need for notice and no need
for a hearing. And the word came back that this was
correct that is what they were seeking and that was
the appropriate thing for me to do.
See Nealon Dep. at 16-20, 22-24.
Judge Nealon also repeatedly emphasized that he ordered the
immediate return of the child because he was relying upon what
he perceived to be the State Department's representation that
that remedy was appropriate:
Q: Now, among the other choices available on this
second page are choices which would enable the
child to be taken into protective custody
immediately and then released to either a juvenile
shelter or to the mother or her agent and kept in
this district pending a hearing. Did you discuss
those options with Mr. Rooney or did Mr. Rooney
suggest those as viable alternatives?
A: No. He did not suggest them. He did not suggest
them. The only request he was making, as I said,
was for the immediate action by the law enforcement
officer to take the child into custody. See a
hearing would have been the easiest thing in the
world for me to do. If he had said you can hold a
hearing, I'd say fine, let's set it down. About
custody, I'd be willing to turn custody over to
him. That would be no problem. I wouldn't be the
least bit interested in what the State Department
had to say at that point. There would be no need
for me to make an emergency phone call. The State
Department could make their arguments at the
hearing, so I — they were never presented to me as
alternatives . . . And as I say — maybe it's too
much trust, but you're inclined to rely on the
expertise of a federal department that purportedly
has expertise in that area. But I did have qualms
about it. I mean, I just didn't sit down and sign
it. I said I want you to get an assurance that this
is the appropriate thing to do.
Q: And is it accurate to say that the reason that
you wouldn't rely on that is because it would be
important to know what the person from the state
Department knew about the case, what he had been
told about the case and what he had actually said
about the case?
A: Absolutely. If it weren't for the involvement of
the State Department I would not have taken the
action I did take.
After Judge Nealon signed the order, Rooney and Burke went to
the U.S. Marshal's office to get the Marshal's assistance in
executing the order. See Rooney Dep. at 157. While waiting in
the Marshal's office, Rooney called the State Department to
update them on what was happening. See Burke Dep. at 70-71.
Rooney and Burke then accompanied the Marshals to Egervary's
home. See Rooney Dep. at 157. The attorney's remained parked
on the public road outside of Egervary's residence while the
Marshals retrieved the child. Id. at 158-159. The Marshals
brought the child to Rooney and Burke, who immediately drove the
child to Newark International Airport. Id. at 160. On the way
to the airport, Rooney again called the State Department to give
them an update. See Burke Dep. at 70-71. In fact, as Burke
later testified, Rooney was "continuously in conversation" with
the State Department throughout that day. Id. at 71.
Rooney accompanied the child to Frankfort, Germany, and Kovacs
was waiting for them in the airport when they arrived. See
Rooney Dep. at 169.
Sometime thereafter, Egervary filed a motion for
reconsideration before Judge Nealon. See Egervary II,
80 F. Supp.2d at 504-507. At that time, Rooney sought a follow-up
letter from Schuler in order to "reassure" himself. See Rooney
Dep. at 194. Schuler's letter to Rooney stated:
This is to thank you for effecting the prompt
return of the child Oscar Egervary to his mother in
Hungary under the auspices of the Hague Convention
on the Civil Aspects of International Child
Abduction, and to briefly review the background of
the case . . .
Oscar Egervary was born in the United States
July 4, 1992, and at the age of approximately eight
months was taken by his parents to Hungary, where
both mother and father are citizens. (The father is
also a U.S. citizen.) The parents separated in the
summer of 1993 and the mother was granted temporary
custody by a Hungarian court pending the couple's
Hungarian police reports indicate that in
December 1993 the father and his brother accosted
Mrs. Egervary in the street in Budapest and
kidnapped the child. Mrs. Egervary attempted to
hang on to the departing car, but fell off. She
immediately filed a police report, and soon after
filed an application for the return of her son
under the Hague Convention which was received in
this office in March, 1994.
At the time of his abduction, Oscar Egervary
had lived for 10 months in Hungary and eight months
in the United States. In addition, the information
provided this office indicated that the parents had
intended resettlement in Hungary, in that their car
and personal effects had been sent there and an
apartment in Pennsylvania had been vacated.
It seemed clear that Oscar Egervary's country
of habitual residence was Hungary and that Mrs.
Egervary's claim of unlawful removal and retention
of her child under Article 3 of the Hague
Convention was a valid one.
We located your name on a list of persons who
had previously handled Hague Convention matters,
and asked you to represent Mrs. Egervary. You
agreed to assist on a pro bono basis.
Article 2 of the Convention asks that "the most
expeditious procedures available" be utilized in
effecting the implementation of Convention
We are grateful for your prompt, humane and
professional assistance. I hope we can continue to
request your help whenever cases of international
abduction to or from Pennsylvania are brought to
our attention. Thank you again for your
See Schuler Ltr. (June 1,1994).
C. The History of This Action
The case was assigned to the Honorable E. Mac Troutman. By
Memorandum and Order dated January 7, 1997, Judge Troutman found
that venue was lacking in this District and gave plaintiff
thirty days in which to move to transfer the case to the Middle
District pursuant to 28 U.S.C. § 1406(a). See Egervary I, 1997
WL 9787, at *4-*5. Judge Troutman reasoned that venue would lie
in this District, if at all, under 28 U.S.C. § 1391(b)(2), i.e.,
if "a substantial part of the events or omissions giving rise to
the claim" occurred in this District. Id. at *4. Judge
Troutman acknowledged that Rooney maintained his law offices in
this District and that plaintiff alleged that the federal
defendants had "contacted, encouraged, and directed" the
attorney defendants in this District. Id. However, he did not
find this alleged contact to be sufficiently substantial under §
1391(b)(2). Id. at *5. Pursuant to Judge Troutman's Order,
plaintiff thereafter moved pursuant to § 1406(a) and the action
In the Middle District, the case was assigned to Judge Nealon,
who had heard the underlying ICARA petition. However, during a
case management conference on December 11, 1997, Judge Nealon
realized that he might be called as a witness and immediately
recused himself. See Order (December 16, 1997). Thereafter,
all of the remaining judges in the Middle District also recused
themselves, and the Honorable Sue L. Robinson of the United
States District Court for the District of Delaware was
designated to preside over the case in the Middle District.
Prior to the close of discovery, the attorney defendants filed
a motion for summary judgment arguing that: 1) Egervary's due
process rights had not been violated; and 2) even if his rights
had been violated he could not recover in a Bivens suit
because of certain defenses (namely, waiver, collateral attack,
lack of damages, and immunity). By Memorandum and Order dated
January 21, 2000, I rejected these arguments. See Egervary II,
80 F. Supp.2d at 492. Specifically, I found that Egervary had a
fundamental liberty interest in the custody of his son (id. at
498-99) and therefore could not be deprived of custody without
either prior process (id. at 501-02) or a prompt,
state-initiated postdeprivation hearing (id. at 502-04). I
also noted that the essential facts necessary to establish a
violation of his due process rights were not in contention.
Id. at 509. I therefore ordered the attorney defendants to
brief whether summary judgment should be entered against them on
the question of liability on the Bivens claim. Id. at 510.
In response to that Order, the attorney defendants argued
that: 1) they were not state actors and/or federal agents who
could be held liable in a Bivens suit; and 2) even if they
were federal agents, they could assert a good faith defense to
liability that precluded the entry of summary judgment against
them. By Memorandum and Order dated August 15, 2000, I accepted
these arguments in part and rejected them in part. See Egervary
III 2000 WL 1160720. Specifically, I found that Nallin could
not be held liable as a federal agent because he did not
participate in executing the order that led to the deprivation
of plaintiffs due process rights. Id. at *4-*6. Rooney and
Burke, on the other hand, did participate in the execution of
that order and therefore could be deemed federal agents for the
purposes of Bivens. Id. at *5. However, given the Court of
Appeals' decision in Jordan v. Fox, Rothschild, O'Brien &
Frankel, 20 F.3d 1250, 1277 (3d Cir. 1994), I held that they
could assert a good faith defense to liability. Id. at *6. I
further concluded that whether they had acted in good faith was
a jury question that precluded the entry of summary judgment in
plaintiffs favor on the question of liability. Id.
. . . Rule 15 requires that leave to amend be freely
given "when justice so requires." The federal
defendants were dismissed from this case by Judge
Robinson because she concluded that "plaintiff cannot
prove that [the federal defendants] had any personal
involvement in" the deprivation of plaintiffs due
process rights. See Order dated August 17, 1998.
There now is testimony that could give rise to a
conclusion that these defendants were personally
involved. Accordingly, I conclude that justice will
be served by allowing the amendment.
See Order (March 23, 2001) at 3-4.
The amended complaint was filed on March 23, 2001. The federal
defendants subsequently moved to dismiss the amended complaint,
arguing that: 1) venue is lacking in this District; 2) the
original complaint was not properly served; 3) the amended
complaint is barred by the statute of limitations; and 4) they
cannot he held liable because of the defense of qualified
immunity. While the motion to dismiss was pending, the federal
defendants filed a motion for summary judgment alleging that
they had no personal involvement in the constitutional