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Bush v. Adams

January 27, 2009


The opinion of the court was delivered by: McLaughlin, J.


On November 3, 2008, the Court issued a Memorandum and Order in this case concerning two motions to dismiss, one filed by defendant Isara Isabella Serene and one filed by defendants Sean Adams and Brian Russell.

The November 3 Memorandum and Order addressed but did not decide Isara Isabella Serene's motion to dismiss. Serene moved to dismiss the claims against her both for lack of personal jurisdiction and for failure to state a claim. In the November 3 Memorandum, the Court analyzed Serene's jurisdictional arguments and found that personal jurisdiction could properly be asserted over Serene on the basis of the plaintiffs' state law conspiracy claim, which alleged that Serene conspired with another defendant, a Pennsylvania state trooper referred to only as Sergeant Tripp. Having addressed Serene's jurisdictional arguments, the November 3 Memorandum and Order deferred a decision on Serene's legal sufficiency arguments. The Court explained that its review of the applicable law concerning the state law conspiracy claim had uncovered a line of authority that had not been discussed by the parties and that cast doubt on the viability of the claim. The Court therefore required the plaintiffs and defendant Serene to file submissions addressing this additional authority before the Court resolved the remaining issues in Serene's motion.

The November 3 Memorandum and Order also addressed Adams and Russell's motion. Adams and Russell moved to dismiss the claims against them for both lack of personal jurisdiction and lack of venue, and in the alternative, moved to have the claims against them severed and transferred to the United States District Court for the Eastern District of Virginia for the convenience of parties and witnesses under 28 U.S.C. § 1404(a). In the November 3 Memorandum and Order, the Court determined that it lacked personal jurisdiction over Adams and Russell and declined to reach their arguments as to venue or § 1404 transfer. In the absence of personal jurisdiction, a district court is required "either to dismiss or transfer to a proper forum." Lafferty v. St. Riel, 495 F.3d. 72, 76-77 (3d Cir. 2007). Finding that neither the plaintiffs nor Adams and Russell had fully addressed how the Court should proceed if it found no personal jurisdiction, the Court required the plaintiffs and defendants Adams and Russell to submit supplemental briefing on the issue.

The Court has now received the supplemental submissions that it ordered from the parties and resolves the outstanding issues concerning Serene's and Adams and Russell's motions to dismiss.*fn1

The Court will dismiss the plaintiffs' claims against defendant Serene. The Court finds that the allegations of conspiracy concerning Serene and Sergeant Tripp, over which the Court previously found it could exercise personal jurisdiction, fail to state a claim and should be dismissed under Fed. R. Civ.

P. 12(b)(6). The remaining claims as to Serene will be dismissed for lack of personal jurisdiction under Fed. R. Civ. P. 12(b)(2) for the reasons set forth in the Court's November 3, 2008, Memorandum and Order.

The Court will dismiss, rather than sever and transfer, the plaintiffs' claims against defendants Adams and Russell. The Court finds that the circumstances of this case do not support either a severance or a transfer to another jurisdiction over the opposition of the plaintiffs.


The Court previously described at length in its Memorandum and Order of November 3, 2008, the allegations of the amended complaint and the supplemental evidence submitted by the parties concerning jurisdiction. The Court incorporates that discussion by reference and will not repeat it here. For clarity, the Court will give a brief summary of the case and the facts necessary for an understanding of its decision.

This case is brought by two plaintiffs, David and Christopher Bush, who are brothers. David Bush was married, and subsequently divorced from, defendant Isara Isabella Serene, with whom he had two children. Until 2004, David Bush and Serene both lived in Pennsylvania. In 2004, after having obtained custody of the children and a protection from abuse order against David Bush from a Pennsylvania court, Isara Isabella Serene fled Pennsylvania with her children and without court approval. She subsequently moved to Virginia where she changed her children's names and Social Security numbers to avoid being located.

After Serene left, David Bush sought help in finding Serene and the children from defendant Sergeant Tripp of the Pennsylvania State Police. According to the plaintiffs' amended complaint, based on what David Bush told him, Sergeant Tripp had a duty to place the names of his children into the National Crime Information Center ("NCIC")'s Missing Child database. The amended complaint alleges, however, that Tripp intentionally failed to place the children's names in the database or otherwise search for the children because Tripp had entered into an agreement with Isara Serene "to use the under color of state authority [sic] to deprive David Bush of his association right to be with and raise his children." Am. Compl. ¶¶ 46-47.

David Bush then turned for assistance to his brother, Christopher Bush, a police officer in Newtown Township, Pennsylvania, and Christopher Bush placed the names of the Bush-Serene children into the NCIC database. With his brother's help, David Bush located the children in Virginia in 2006. David Bush then obtained an order from a Pennsylvania court granting him custody of the children and traveled to Virginia in October 2006. In Virginia, David Bush enlisted the aid of Virginia police to take his children from their schools in the middle of the day and return them to his custody, after which he then returned with them to Pennsylvania.

Defendant Serene, upon learning that her children had been taken from school and given to her ex-husband, began legal proceedings to have them returned. As part of these efforts, she traveled to Pennsylvania where she had the order that granted custody to David Bush vacated as improvidently granted. Serene then obtained a custody order from a Virginia court and sought to have David Bush arrested and the children returned. To do so, Serene contacted defendants Adams and Russell who are officers in the Richmond, Virginia police department. Adams and Russell obtained an arrest warrant for David Bush for child abduction by a parent and for conspiracy. David Bush was arrested on the warrant in Pennsylvania and extradited to Virginia where the charges against him were ultimately dropped.

Christopher Bush was subsequently investigated by the Pennsylvania State Police for his actions in seeking to locate the children. The investigation was allegedly initiated by Sergeant Tripp and defendant state troopers Kenneth Hill and Steven J. Ignatz for the purpose of retaliating against him for helping his brother. Christopher Bush was ultimately cleared of wrongdoing in the investigation.

On the basis of these facts, the plaintiffs' amended complaint brings claims under federal and state law, seeking damages for David Bush's arrest and imprisonment and for the Pennsylvania State Police investigation into Christopher Bush.


A. Defendant Serene's Motion to Dismiss

In its prior Memorandum and Order of November 3, 2008, the Court deferred a decision on defendant Isara Isabella Serene's motion to dismiss. The November 3 Memorandum analyzed the arguments in defendant Serene's motion to dismiss concerning personal jurisdiction, but put off addressing her arguments that the plaintiffs' allegations failed to state a claim until after the Court received the parties' supplemental submissions. Having received those submissions, the Court will now decide Serene's motion.

1. The State Law Claim Alleging a Conspiracy Between Serene and Sergeant Tripp

The supplemental submissions that the Court requested from the plaintiffs and Serene concerned a line of Pennsylvania decisions on official nonfeasance relevant to the plaintiffs' state law conspiracy claim alleging an agreement between Serene and Sergeant Tripp. The Court will therefore begin its analysis with this claim.

In its November 3, 2008, decision, the Court determined that it had specific personal jurisdiction over Serene as to the state law claim of conspiracy between Serene and Sergeant Tripp. The Court must now determine whether the allegations concerning the Tripp-Serene conspiracy properly state a claim.

The amended complaint alleges that Serene and Sergeant Tripp entered into a "continuing agreement" on or about April 2005, under which Tripp would "facilitate [Serene] in absconding" from Pennsylvania with her children by failing to search for either Serene or the children and by failing to enter the children's names into the NCIC missing children database. As a result of this conspiracy, David Bush was "not provid[ed] police services he was entitle[d] to." Am. Compl. ¶¶ 111-13. In support of the existence of this conspiracy, the plaintiffs allege on information and belief that Tripp is a member of the local Mansfield, Pennsylvania chapter of "an organization that hides women and children" to which either Serene or her attorney also belong. Am. Compl. ¶ 46.

a. Pennsylvania Law Concerning Law Enforcement Nonfeasance

Because the allegations concerning the Serene-Tripp conspiracy state that the two conspired to have Sergeant Tripp fail to perform his official duties, these claims implicate a line of decisions that hold that Pennsylvania does not recognize a state law cause of action for a law enforcement officer's "nonfeasance." The Court directed the plaintiffs and Serene to provide supplemental briefs addressing the application of these decisions to the conspiracy claim relating to Serene and Tripp.

Having reviewed the parties' submissions, the Court concludes that these cases are distinguishable.

Three state court decisions and one federal district court decision have considered whether Pennsylvania law would recognize a private cause of action against a law enforcement officer or a municipality for law enforcement's failure to act to protect an individual. These decisions all hold that acts of "nonfeasance" by a law enforcement officer -- a failure to perform one's duties -- are ordinarily not actionable under Pennsylvania law because they are public duties owed to the citizenry at large and not to any individual. See Miller v. U.S., 561 F. Supp. 1129, 1134-37 (E.D. Pa. 1983); Caldwell v. City of Phila., 517 A.2d 1296, 1299 (Pa. Super Ct. 1986); Melendez v. City of Phila., 466 A.2d 1060, 1063 (Pa. Super. Ct. 1983); Berlin v. Drexel Univ., 10 D. & C.3d 319, 329 (C.P. Phila. Co. 1979). A law enforcement officer or police department is therefore liable for nonfeasance only if law enforcement has a "special relationship" with an individual, such that it has voluntarily assumed responsibility to protect the individual from harm. See Miller at 1134; Melendez at 1063; Caldwell at 1300; Berlin at 328.

If Sergeant Tripp's failure to search for the Serene-Bush children or place the children's names into the NCIC database can be properly characterized as nonfeasance (and if Pennsylvania law applies here*fn2 ), then Miller, Caldwell, Melendez, and Berlin would suggest that the plaintiffs have no cause of action under Pennsylvania law against Tripp for this conduct. If the plaintiffs have no independent cause of action against Tripp, then they can have no conspiracy cause of action against Serene: "absent a civil cause of action for a particular act, there can be no cause of action for civil conspiracy to commit that act." Phillips v. Selig, 959 A.2d 420, 2008 WL 4603476 at *13 (Pa. Super. Ct. Oct. 17, 2008) (internal quotation and citation omitted).

Upon careful consideration, however, the Court does not believe that the plaintiffs' allegations against Tripp can be characterized as alleging only nonfeasance. Although the amended complaint alleges that Tripp failed to perform his official duties, it also specifically alleges that his failure to do so was intentional. Am. Compl. at ¶ 47. The Court finds that, under Pennsylvania law, nonfeasance refers only to a negligent, not an intentional, failure to act.

All four decisions holding that Pennsylvania does not recognize a cause of action for law enforcement nonfeasance involve only allegations of negligence. Miller, 561 F. Supp. at 1134 (negligent failure to protect confidential informant); Caldwell, 517 A.2d at 1299 (negligent failure to provide adequate police protection to unsafe railroad station); Melendez, 466 A.2d 1063 (negligent failure to quell racial disturbance); Berlin, 10 D. & C.3d at 329 (negligent failure to provide adequate police protection to unsafe neighborhood). The very concept of nonfeasance was developed "in negligence actions at early common law." Miller at 1134; see also Nelson v. Dusquene Light Co., 12 A.2d 299, 303 (Pa. 1940) (describing negligence as consisting of both "nonfeasance, that is, omitting to do or not doing, something which ought to be done . . . and malfeasance, that is, the doing of something which ought not to be done . . .").

Given this consistent application of the term "nonfeasance" only to negligent failures to act, the Court does not believe that Pennsylvania would extend the meaning of nonfeasance to encompass allegations of an intentional failure to act. Sergeant Tripp's allegedly intentional actions in failing to look for Bush-Serene children or to place their names in the NCIC database are therefore not "nonfeasance" under Pennsylvania law and ...

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