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Bush v. Adams

May 7, 2009

DAVID BUSH AND CHRISTOPHER BUSH
v.
S.C. ADAMS, ET AL.,



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

MEMORANDUM

In this suit, plaintiff David Bush brings civil rights and state tort claims arising out of his arrest for child abduction and conspiracy after allegedly attempting to take his children from the custody of his ex-wife. David Bush's arrest warrant was issued in Virginia for violations of Virginia law, but David Bush was arrested in Pennsylvania and incarcerated there before being transferred to Virginia. Plaintiff Christopher Bush, David Bush's brother and a Pennsylvania township police officer, brings civil rights and state tort claims arising from an investigation conducted by the Pennsylvania State Police into the actions he took to help his brother locate his children.

The plaintiffs brought suit against six defendants: David Bush's ex-wife, Isara Isabella Serene; two Virginia policemen, Sean Adams and Brian Russell; and three Pennsylvania state troopers, Kenneth Hill, Steven J. Ignatz, and Sergeant Tripp. Defendants Serene, Adams and Russell filed motions to dismiss, in part based on lack of personal jurisdiction. The Court granted the motions, finding no personal jurisdiction over Serene, Adams, and Russell, and dismissed the plaintiffs' claims against them.

The plaintiffs have subsequently sought through a variety of procedural methods to take an interlocutory appeal of the Court's dismissal orders. Pending before the Court are the plaintiffs' requests to certify the dismissal orders for interlocutory appeal under 28 U.S.C. § 1292(b) and to stay the remaining claims and/or transfer and consolidate them with another related case. The Court has also suggested as an alternative that the Court could enter final judgment against the dismissed defendants under Federal Rule of Civil Procedure 54(b).

For the reasons that follow, the Court will decline to certify the case for interlocutory appeal under § 1292(b) or enter final judgment under Rule 54(b). The Court will also decline to stay the case or transfer it to be consolidated with another pending matter. The Court will instead issue a pretrial schedule for the remaining claims in accordance with prior discussions with the parties.

I. BACKGROUND

In Memoranda and Orders issued November 3, 2008, and January 27, 2009, the Court granted the motions to dismiss filed by defendants Serene, Adams and Russell. The Court found that it lacked personal jurisdiction over these defendants and dismissed all claims against them. As part of its ruling, the Court denied defendants Adams and Russell's motion to sever and transfer the claims against them to the United States District Court for the Eastern District of Virginia. The Court found that, because defendant Serene had not moved to transfer her claims to Virginia and because the claims against Serene were interrelated with those against Adams and Russell, transferring the claims against Adams and Russell raised the risk of the same claims being tried in two separate jurisdictions.

In the briefing on the motions to dismiss, the plaintiffs stated that, if the Court were to dismiss the claims against Serene, Adams, and Russell, the plaintiffs would seek an immediate appeal of that dismissal and might also move to stay proceedings against the remaining defendants, Tripp, Hill, and Ignatz, during the pendency of such an appeal. In its January 27, 2009, Memorandum and Order, the Court requested that the plaintiffs file a written submission informing the Court how they wished to proceed.

On January 31, 2009, the plaintiffs filed a notice with the Court, stating that they intended to file a writ of mandamus with the United States Court of Appeals for the Third Circuit to seek review of the Court's dismissal of Serene, Adams, and Russell. Their notice also requested that the Court certify its dismissal orders for interlocutory appeal under 28 U.S.C. § 1292(b). The plaintiffs filed a petition for mandamus on February 9, 2009.

In response to the plaintiffs' notice, the Court issued an Order on February 27, 2009, asking the plaintiffs whether they wanted the Court to enter final judgment as to defendants Serene, Adams, and Russell under Federal Rule of Civil Procedure 54(b). The Court noted that the entry of final judgment under Rule 54(b) would require a lesser showing than certification of an interlocutory appeal under § 1292(b) and would allow the plaintiffs to take an immediate appeal as of right of the Court's dismissal orders. The plaintiffs responded in a notice filed March 6, 2009, stating that they opposed entry of final judgment under Rule 54(b), believing that the judgment would operate as an adjudication on the merits and would be inconsistent with the Court's finding that it lacked personal jurisdiction over the dismissed defendants.

The plaintiffs' March 6 notice also informed the Court for the first time that, after this action was filed, plaintiff Christopher Bush filed a second federal lawsuit arising, in part, out of incidents at issue in this suit. This second suit is Christopher Bush v. Newtown Township, Civil Action No. 08-4571 (E.D. Pa. filed Sept. 22, 2008), pending before the Honorable Juan R. Sanchez. In it, Christopher Bush alleges he suffered retaliation and was ultimately terminated from his job as a police officer, in part, because of his efforts to help his brother David Bush locate his children. The defendants in this second suit are Christopher Bush's employer, Newtown Township, and several Newtown Township employees, none of whom is a defendant in this case before this Court. In their March 6 Notice, the plaintiffs request that the case before this Court be "transferred [to] and consolidated" with Christopher Bush's second suit.

None of the defendants has filed a response to either the plaintiffs' January 31 or March 6 Notices. On April 22, 2009, the United States Court of Appeals for the Third Circuit denied the plaintiffs' petition for a writ of mandamus concerning the dismissal of Serene, Adams, and Russell.

II. LEGAL ISSUES

A. Entry of Judgment under Fed. R. ...


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