Egervary v. Young, CIV. A. 96-3039.

• Decision Date: 22 May 2001
• Docket Number: No. CIV. A. 96-3039.,CIV. A. 96-3039.
• Citation: 152 F.Supp.2d 737
• Parties: Oscar W. EGERVARY, v. Virginia YOUNG, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

152 F.Supp.2d 737

Oscar W. EGERVARY, v. Virginia YOUNG, et al.

No. CIV. A. 96-3039.

United States District Court, E.D. Pennsylvania.

May 22, 2001.

Gary L. Azorsky, Schnader, Harrison, Segal & Lewis, L.L.P., Philadelphia, PA, for Plaintiff.

Richard Mentzinger, Jr., Keir N. Dougall, James G. Sheehan, Office of the U.S. Attorney, Philadelphia, PA, for Virginia Young, James Schuler, and John Does One-Ten.

Richard A. Kraemer, Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, PA, for Frederick P. Rooney and James J. Burke.

Deborah R. Popky, Robert S. Tintner, Fox, Rothschild, O'Brien & Frankel, Philadelphia, PA, Frederick C. Horn, Fox, Rothschild, O'Brien & Frankel, LLP, Lansdale, PA, for Jeffrey C. Nallin.

MEMORANDUM

O'NEILL, District Judge.

The federal defendants' motion for a protective order requests that I decide whether the scheduled deposition of a third-party witness should go forward after newly-named federal defendants have claimed qualified immunity. For the reasons stated below, the motion will be denied.

I.

This case derives from an international child custody dispute.¹ In February 1993, Ms. Aniko Kovacs, plaintiff's wife, took their son Oscar to Hungary, ostensibly to perform in a concert. Plaintiff alleges that sometime thereafter his wife informed him that she was ending their marriage and would remain in Hungary with Oscar. Plaintiff made a number of attempts to reconcile with his wife and/or convince her to allow Oscar to return to this country. She refused and eventually hid Oscar from his father in Hungary. Plaintiff went to Hungary to attempt to retrieve his son and allegedly was told by the U.S. Embassy in Budapest that he was free to take Oscar (who was a U.S. citizen and had spent his entire life in this country) back to the U.S. if the child could be located. On December 18, 1993, plaintiff found his wife and son leaving her parents' apartment in Budapest. He retrieved the child and they returned to the United States.

On May 13, 1994, members of the Pennsylvania State Police and the U.S. Marshals arrived at Mr. Egervary's home with an order that had been signed by the Honorable William J. Nealon of the U.S. District Court for the Middle District of Pennsylvania. Pursuant to the order, the law enforcement officials removed Oscar from plaintiff's custody and delivered him to defendant Frederick P. Rooney, Esq., Ms. Kovacs' attorney. Defendant Rooney then immediately returned the child to his mother in Hungary.

Plaintiff subsequently learned that his wife had, with the assistance of State Department officials and private attorneys, filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11601 et seq. That petition was presented to Judge Nealon in an ex parte hearing of which plaintiff was afforded no notice and in which he had no opportunity to be heard.

Plaintiff filed his first complaint in this action in this District on April 17, 1996. The complaint alleged that plaintiff's due process rights had been violated and named Virginia Young and James Schuler of the State Department (the "federal defendants") as well Frederick P. Rooney, Esq., James J. Burke, Esq., and Jeffrey C. Nallin, Esq. (the "attorney defendants") who had represented Ms. Kovacs in the ICARA hearing before Judge Nealon.

The case was originally assigned to the Honorable E. Mac Troutman. On January 7, 1997, Judge Troutman concluded that venue was improper in this District and transferred it to the Middle District where it was assigned to Judge Nealon.² Subsequently Judge Nealon recused himself. Thereafter, all of the other judges in the Middle District also recused themselves, and the Honorable Sue L. Robinson of the U.S. District Court for the District of Delaware was designated to preside over the case in the Middle District.

On August 17, 1998, Judge Robinson dismissed the federal defendants from the case, concluding that plaintiff had failed to allege adequately that the proceedings before Judge Nealon were "in anyway directed by, approved of, or even within the knowledge of the [federal defendants]." Thereafter, upon unopposed motion by plaintiff Judge Robinson transferred the case back to the Eastern District pursuant to 28 U.S.C. § 1404, and it was reassigned to me.

In Egervary I, I denied the attorney defendants' motion for summary judgment because I concluded that plaintiff's due process rights had been violated when he was afforded no notice of or opportunity to be heard in the ICARA proceedings.³ See Egervary I, 80 F.Supp.2d at 497-504. At that time, I ordered the attorney defendants to submit briefs on why summary judgment should not be entered against them on the issue of liability. Id. at 509-10. After consideration of those briefs, in Egervary II I concluded that defendant Nallin could not be held liable as a federal actor and therefore entered summary judgment in his favor. See Egervary II, 2000 WL 1160720, at *6. I also concluded that defendants Rooney and Burke could assert a good faith defense at trial and therefore declined to enter summary judgment against them. Id.

As discovery proceeded against defendants Rooney and Burke, plaintiff uncovered evidence that arguably shows that the federal defendants had personal involvement in the deprivation of plaintiff's due process rights. For this reason, on March 6, 2001 I granted plaintiff leave to amend his complaint to re-assert claims against the federal defendants. On May 11, 2001, the federal defendants filed a motion to dismiss the amended complaint arguing, inter alia, that plaintiff's claims are barred by the doctrine of qualified immunity.

On Monday, May 14, 2001, I conducted a telephone conference with counsel, who informed me that the deposition of Judge Nealon is scheduled to take place later this month. Counsel for the federal defendants objected to the deposition going forward because they have asserted qualified immunity. Because the federal defendants' motion to dismiss was recently filed, plaintiff has not yet responded to it and it is unlikely the motion will be decided before Judge Nealon's deposition is to take place. I therefore asked the federal defendants to provide a letter brief in support of their oral motion for a protective order. I received that brief on Thursday, May 17, 2001.

II.

Because it affects my analysis of the issues involved in the federal defendants' motion, I will describe my understanding of why Judge Nealon's deposition is being taken and some of the issues that the deposition may touch upon.

One of plaintiff's claims in this case is that the attorney defendants, acting in concert with the federal defendants, made misleading representations to Judge Nealon during the ex parte ICARA hearing. The basis for this claim appears in an affidavit by plaintiff's counsel that was submitted as part of the record in Egervary I:

At a case management conference in this action before The Honorable William J. Nealon, Jr. on December 11, 1997, defendants' counsel presented Judge Nealon with [their clients rendition of the facts surrounding the ex parte hearing]. Judge Nealon advised counsel that his recollection significantly differed from defendants' stated position. His Honor stated that it was not true that defendants presented him with several options from which to choose, and that he decided upon one option following careful review and consideration of all options. His Honor advised that it was his recollection that Mr. Rooney stated that he represented the State Department, that no notice to Mr. Egervary was required, that the State Department "does this all the time," and that all arrangements had been made to take plaintiff's son to Hungary that afternoon as soon as His Honor signs the order permitting them to move forward.

Id. at 496 n. 3 (quoting the Affidavit of Gary L. Azorsky, Esq.). At some time thereafter, Judge Nealon apparently realized that he could be a witness in this case and recused himself. Id.

In addition, during his deposition defendant Rooney testified that the federal defendants had both direct and indirect contact with Judge Nealon's chambers on the day of the ex parte hearing:

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 that 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: Did you speak to [defendant Shuler] about [the petition presented to Judge Nealon] 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 time I spoke to Jim Shuler 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 Shuler 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 Shuler said to me he's the judge. He's...