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EGERVARY v. YOUNG

September 6, 2001

OSCAR W. EGERVARY
V.
VIRGINIA YOUNG, ET AL.



The opinion of the court was delivered by: O'neill, Distict Judge.

    MEMORANDUM

I. INTRODUCTION

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.

II. BACKGROUND

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 resident. Id.

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

1. The Law

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 measures
(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 advisors;
(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).

2. The Proceedings

Sometime prior to Oscar's removal from the United States on May 13, 1994, Kovacs had sought and received the State Department's help in retrieving her son, who, she claimed, had been kidnaped from Hungary by his father. On May 10th or 11th,*fn3 defendant Virginia Young of the Bureau of Consular Affairs had contacted defendant Rooney and asked him to represent Kovacs in filing an ICARA petition. See Rooney Dep. at 55-56. In what appears to be a follow-up letter to a phone conversation earlier that day, Young wrote:

Dear Mr. Rooney,

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 anywhere.
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 III-E-3-a.

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. at 86-89.

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 Exhibit F.

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 7(c).

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?

Id. at 125-26.

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: In between.

Q: Meaning what?

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 appropriate.
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.

Id. at 115-16, 131-32.

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?
A: We talked about alternatives that he had under the order that I had presented, and that in instances children are taken into protective custody and that the child could have been held by social services in Monroe County. I don't remember what else could have been done right now, but that he could have gone into a juvenile shelter, that he could have been taken into protective custody.
Q: And you described those alternatives to the judge?

A: Correct.

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 Hungary.

Id. at 133-34.

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 petition]?
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: Well, that had been represented that the arrangements had been made. Now, the extent of them I don't know. Whether he said he had an airplane ticket or could get an airplane ticket or something along that line I don't know. But it was really an emergency matter according to him.
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 position?
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.

Id. at 26-28, 139-40

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.

While they drove to Newark, Rooney directed Lori Mannici, Esq., an associate in his office, to make travel arrangements for the trip to Europe. See Rooney Dep. at 156. Because Rooney did not have Oscar's passport, those travel arrangements included contacting the State Department to arrange for the child to be removed from the country without passport. Id at 165-66. Mannicci testified that she could not remember anything about contracting the State Department to arrange for the passport waiver, including to whom she spoke. See Mannicci Dep. at 30-31. However, her handwritten notes from that afternoon include — on two separate pages — notations with "Ginny" Young's home telephone number. Id. at 19, 22-23 and Exhibits 9 and 10.

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:

Dear Mr. Rooney,

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 divorce.
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 Precepts.
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 assistance.*fn8

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 was transferred.

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.

After the summary judgment issues were resolved, Rooney and Burke were deposed for the first time. Rooney testified to a number of previously undisclosed facts regarding the federal defendants' alleged participation in the deprivation of plaintiffs due process rights. For example, Rooney testified that: 1) defendant Young asked Rooney to represent Kovacs, see Rooney Dep. at 55-56, and sent him Hungarian government documents regarding the alleged abduction and model ICARA pleadings (id. at 63-64); 2) while he was preparing the ICARA petition he consulted with the State Department "a bunch of times" (id. at 62); 3) someone from the State Department had called Judge Nealon's office that morning to inform the Court that a petition was going to be filed (id. at 120-21); 4) he spoke with Schuler while he was in Judge Nealon's chambers in order to confirm that the child could be removed from Egervary's custody and returned to Hungary without a hearing (id. at 115-16, 131-32); and 5) the State Department arranged for a waiver of the child's passport so that he could be removed immediately from the country (id. at 165-66). On this basis, plaintiff argued that Rooney's testimony had undermined the rationale for Judge Robinson's earlier order dismissing the federal defendants from the case and moved for leave to file an amended complaint reasserting claims against them. I granted that motion on March 6, 2001. Thereafter, the federal defendants filed a motion for reconsideration arguing that leave to amend was not appropriate. I denied the motion for reconsideration on March 23, 2001:

. . . 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 tort.*fn9

III. ...


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