# Egervary v. Young

> District Court, E.D. Pennsylvania · September 6, 2001 · 159 F. Supp. 2d 132

URL: https://www.frixlaw.com/law-library/cases/2384896

## Case

- **Full name:** Oscar W. EGERVARY v. Virginia YOUNG, Et Al.
- **Court:** District Court, E.D. Pennsylvania
- **Decided:** September 6, 2001
- **Citations:** 159 F. Supp. 2d 132; 2001 U.S. Dist. LEXIS 13726; 2001 WL 1021176
- **Precedential status:** Published
- **Opinion:** Opinion by O'Neill
- **Judges:** O'Neill
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2384896

## How later opinions describe it (automated extraction)

- finding venue proper in a district where the federal defendants “conspired with, gave substantial assistance or encouragement to, and/or ordered or induced” the taking of a child in an international custody dispute

## Opinion text

MEMORANDUM
O’NEILL, Distict Judge.
TABLE OF CONTENTS
I. INTRODUCTION.136
II. BACKGROUND.136
A. Oscar’s Alleged Abduction and Return to Hungary.136
B. The Hague Convention/ICARA Proceedings.137
1. The Law.137
2. The Proceedings.139
C. The History of This Action.146
III. DISCUSSION.149
A. Venue.149
1. The Law of the Case Doctrine.149
2. A Substantial Part of the Events Giving Rise to the Claim.150
B. Service of Process.151
1. Rule 4 and Pa. R. Civ. P. 403 .152
2. 22 C.F.R. § 172.2 .153
C. Statute of Limitations .154
1. Rule 54(b).155
2. Rule 15(c) and the Relation Back Doctrine.156
3. Equitable Estoppel.158
D. Qualified Immunity.160
1. Due Process Violation.160
a. Liberty Interest.161
b. The Constitutional Sufficiency of the Process.162
2. Clearly Established Right.164
a. Federal Law as of May 1994 .164
b. Violations of ICARA, State Law, and Federal Regulations.167
3. The Federal Defendants’ Reply Arguments.169
E. Personal Involvement .171
1. The Summary Judgment Standard.171
2. The Legal Standard for Personal Involvement in a Constitutional Tort.,172
3. Evidence of Personal Involvement.173
a. The Retention of and Assistance to Rooney and the Model Pleadings.173
b. The Phone Call to Judge Nealon’s Chambers.175
c. The Federal Defendants’ Ignorance of the “Fourth Option”.177
*136
d. The Federal Defendants’ Ignorance of the
Ex Parte
Nature of the Meeting with Judge Nealon.178
e. The Phone Calls after the Meeting with Judge Nealon.181
f. The Passport Waiver.182
g. Schuler’s Follow Up Letter.183
IV. CONCLUSION. .184
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.
1
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 Eger-vary 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 oppor
*137
tunity 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 ,
*138
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.
2
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 UC-CJA 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 pen-dency 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).
The Convention also provides that “a Contracting State shall designate a Central Authority to discharge the duties
*139
which are imposed by the Convention upon such authorities.”
See
Hague Convention, Article 6. The Bureau of Consular Affairs of the U.S. Department of State has been designated the Central Authority for the United States.
See
22 C.F.R. § 94.2 . The Convention describes the duties of such Central Authorities:
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,
3
*140
defendant Virginia Young of the Bureau of Consular Affairs had contacted defendant Rooney and asked him to represent Ko-vacs 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).
4
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, 80, 61-62.
5
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 post-deprivation 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
*141
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.
6
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 Eger-vary and deliver him to Petitioner’s agent [i.e., Rooney] for immediate return to the physical custody of Petitioner [i.e., Ko-vacs].”
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(e).
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?
A: I think he questioned whether or not he had the authority to order the return of the child, and I said all
*142
I could tell him is that in my experience in foreign jurisdictions, and I mean domestic foreign, not Pennsylvania, that under the UCCJA that with a certified copy of a court order that you could go from Pennsylvania to retrieve children in California with a certified Pennsylvania court order without having to invoke the whole process of hearings in California.
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
*143
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.
7
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
*144
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 empathie about that. That this — that while hearings may have been required in a normal kid-naping 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:
*145
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 26-28,189-40 .
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 attorneys remained parked on the public road outside of Egervary’s residence while the Marshals retrieved the child.
Id.
at 158-59 . " 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 Mannicci, 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 a passport.
Id.
at 165-66 . Mannicci testified that she could not remember anything about contacting the State Department to arrange for the passport waiver, including
*146
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 Eger-vary 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.
8
See
Schuler Ltr. (June 1,1994).
C. The History of This Action
Plaintiff filed the complaint in this action on April 17, 1996 in the Eastern District of
*147
Pennsylvania. It named Rooney, Burke, and Nallin (the “attorney defendants”), as well as Young and Schuler (the “federal defendants”). Count I alleged that, the defendants violated plaintiffs due process rights under the Fifth Amendment by depriving him of custody of his child without notice or opportunity to be heard; Count II alleged that the defendants conspired to violate those rights.
The case was assigned to the Honorable E. Mac Troutman. By Memorandum and Order dated January 7, 1997, Judge Trout-man 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.
By Order dated August 17, 1998, Judge Robinson dismissed the federal defendants from the case because she concluded that plaintiff had not sufficiently alleged that
*148
the proceedings before Judge Nealon were “in any way directed by, approved of, or even within the knowledge of’ the federal defendants.
See
Order (August 17, 1998) at 5-6. With the federal defendants dismissed from the case, venue in the Eastern District became proper pursuant to 28 U.S.C. § 1891 (b)(1). Therefore, upon unopposed motion by plaintiff, Judge Robinson transferred the case back to the Eastern District pursuant to 28 U.S.C. § 1404 (a), and it was reassigned to me.
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, 2000,1 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 waiv
*149
er 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 personál involvement in the constitutional tort.
9
III. DISCUSSION
A. Venue
The federal defendants first argue that the amended complaint should be dismissed for improper venue pursuant to Fed.R.Civ.P. 12(b)(5). Specifically, they argue that: 1) the law of the case doctrine precludes me from reconsidering Judge Troutman’s 1997 finding that venue is lacking in this District; and 2) if considered on the merits, venue is lacking. I disagree.
1. The Law of the Case Doctrine
The Court of Appeals has recognized that the law of the case doctrine “expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.”
Zichy v. City of Philadelphia,
590 F.2d 503, 508 (3d Cir.1979),
quoting Messinger v. Anderson,
225 U.S. 436, 444 , 32 S.Ct. 739 , 56 L.Ed. 1152 (1912). “A judge need not follow a previous decision of the same issue in the same case if ‘unusual circumstances’ exist that permit a different conclusion.”
Hayman Cash Register Co. v. Sarokin,
669 F.2d 162, 169 (3d Cir.1982),
quoting Evans v. Buchanan,
555 F.2d 373, 378 (3d Cir.1977). One “commonly recognized exception ... exists if new evidence is available to the second judge when hearing the issue.”
Id.
In such a situation, “the question has not really been decided earlier and is posed for the first time; the second judge ought, therefore, to be free to render a decision.”
Id., quoting United
*150
States v. Wheeler,
256 F.2d 745, 748 (3d Cir.1958).
When Judge Troutman decided the venue question in 1997, he considered plaintiffs general allegation that “Rooney and Burke maintained their legal offices in this district, and as such, defendants Young and Schuler ... contacted, encouraged, and directed Rooney in this district.”
See Egervary I,
1997 WL 9787 , at *4. He did not, however, have available to him the evidence since produced in discovery regarding the nature and extent of those contacts and how those contacts relate to the alleged due process violation. Specifically, Judge Troutman did not know that:
• Young contacted Rooney in his office in the Eastern District and asked him to represent Kovacs.
See
Rooney Dep. at 59-60. She later faxed him copies of model pleadings published by the American Bar Association and Hungarian government documents related to Kovacs’ allegations.
Id.
at 62-64 .
• While he was preparing the ICARA petition Rooney consulted with the State Department “a bunch of times” from his office in the Eastern District.
Id.
at 62 ;
• Rooney “relied” on the federal defendants’ assistance in preparing the petition because he “was not extremely well-versed on The Hague.”
Id.;
• This reliance included finding out “where the child was” and establishing the facts to be presented in the petition. Id. at 62-63, 86-89 . In fact, Rooney never spoke to Kovacs or her family prior to presenting the petition. Id. at 74 ; and
• After Rooney had taken custody of Oscar, he directed his associate Lori Mannicci, working from his office in the Eastern District, to make arrangements to remove the child from this country, including consulting with the State Department for a passport waiver. Id. at 156, 165-66 ; Mannicci Dep. at 8.
10
This new evidence is sufficient to justify reconsideration of venue under the law of the case doctrine and, in my view, is sufficient to establish venue in this District.
2. A Substantial Part of the Events Giving Rise to the Claim
As Judge Troutman observed, “it is clear that neither § 1391(b)(1) or § 1391(b)(3) applies in the present situation.”
11
Egervary I,
1997 WL 9787 , at *4. Venue must therefore be viewed under the requirements of § 1391(b)(2), which provides that “[a] civil action wherein jurisdiction is not founded solely on diversity of citizenship may ... be brought only in ... a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred.” This language reflects a 1990 amendment which “changed
*151
pre-existing law to the extent that the earlier version had encouraged an approach that a claim would generally arise in only one venue.”
Cottman Transmission Sys., Inc. v. Martino,
36 F.3d 291, 294 (3d Cir.1994). In other words, “the statute no longer requires a court to select the ‘best’ forum.”
Id.
“This expanded venue statute should be construed broadly.”
Bowdoin v. Oriel,
No. 98-5539, 1999 WL 391486 , at * 5 (E.D.Pa. May 5, 1999). “The defendant bears the burden of showing improper venue in connection with a motion to dismiss.”
Myers v. Am. Dental Assoc.,
695 F.2d 716, 725 (3d Cir.1982).
The federal defendants argue that the new evidence summarized above “adds nothing of significance” for the purposes of determining venue. They also argue that contacting the State Department for a passport waiver does not have “anything of significance to do with the alleged deprivation of plaintiffs right to due process.”
See
Federal Defendants’ Reply Br. (July 9, 2001) at 5-6 n. 3.1 disagree.
Courts in this District have previously found that telephone calls that take place in this District can constitute events sufficient to establish venue in this District, even where “more substantial” events occurred outside of this District.
See, e.g., Nowocki v. United Timber Co.,
No. 99-257, 1999 WL 619648 , at *1 n. 1 (E.D.Pa. Aug.12, 1999) (Yohn, J.) (contract negotiations via telephone sufficient to establish venue in this District even though contract was signed in New York and dealt with property located in the Middle District);
Bowdoin,
1999 WL 391486 , at *5 (Bartle, J.) (in diversity action between Florida and Massachusetts residents, venue was proper in the Eastern District because defendant had telephone conversations with now-deceased, non-party co-conspirator who lived in the Eastern District). As was the case in
Nowicki
and
Bowdoin ,
the telephone calls that took place in this District allegedly “gave rise to” the conduct that occurred outside of this District.
Cf.
28 U.S.C. § 1391 (b)(2). The gravamen of plaintiffs claim against the federal defendants is that they conspired with, gave substantial assistance or encouragement to, and/or ordered or induced Rooney to take custody of Oscar in violation of plaintiffs due process rights.
12
That conduct is alleged to have taken place by way of telephone calls to this District, and consistent with
Nowicki
and
Bowdoin
that is sufficient to establish venue under § 1391(b)(2).
Of particular importance to this conclusion is plaintiffs allegation that arrangements to have the child removed from this country without a passport were made in this District. The federal defendants imply that the removal of the child was irrelevant to the due process violation. However, as I noted in
Egervary II,
the immediate removal of the child consummated the due process violation by making a prompt, state-initiated postdeprivation hearing impossible.
See Egervary II,
80 F.Supp.2d at 502 n. 7,
citing Weller v. Dep’t of Soc. Servs.,
901 F.2d 387 , 396 (4th Cir.1990), and
Hooks v. Hooks,
771 F.2d 935, 942-43 (6th Cir.1985).
See also infra
Part III-E-3-f.
I therefore conclude that a substantial part of the events giving rise to plaintiffs claim occurred in this District and venue is proper under § 1391(b)(2).
B. Service of Process
The federal defendants next argue that the amended complaint should be dis
*152
missed for insufficient service of process pursuant to Fed.R.Civ.P. 12(b)(5). I disagree.
1. Rule 4 and Pa. R. Civ. P. 403
The starting point for this discussion is Rule 4(i)(2)(b), which states:
Service on an officer or employee of the United States sued in an individual capacity for acts or omissions occurring in connection with the performance of duties on behalf on the United States— whether or not the officer or employee is sued also in an official capacity — is effected by serving the United States in the manner prescribed by Rule 4(i)(l) and by serving the officer or employee in the manner prescribed by Rule 4(e), (f), or (g).
The parties agree that the first part of this Rule was satisfied, i.e., plaintiff properly served the United States pursuant to Rule 4(i)(l) by sending copies of the summons and complaint to the United States Attorney for the Eastern District of Pennsylvania and the Attorney General of the United States. The parties disagree, however, about whether plaintiff properly effectuated personal service on the federal defendants pursuant to Rule 4(e), (f), or (g).
The federal defendants first raised the service issue in their motion to dismiss the original complaint in 1996. At that time, they argued that plaintiff had attempted to effect service under 28 U.S.C. § 1391 (e)
13
when in fact he should have attempted to effect service under Pa. R. Civ. P. 402(a)(1)
&
(2).
14
See
Federal Defendants’ Br. (August 7,1996) at 34.
Plaintiff responded by arguing that he had not attempted service pursuant to § 1391(e).
See
Plaintiffs Br. (September 24, 1996) at 19. Instead, he argued, he had served the United States pursuant to Rule 4(i)(l) and had served the federal defendants personally pursuant to Rule 4(e)(1), which provides for personal service “pursuant to the law of the state in which the district court is located.”
Id.
at 20-21. Specifically, he argued, he had personally served Young and Schuler pursuant to Pa. R. Civ. P. 403 by sending copies of the summons and complaint to their place of business by certified mail.
The federal defendants subsequently filed a reply brief but did not respond to plaintiffs argument.
See
Federal Defendants’ Br. (October 18, 1996). Judge Robinson later granted the motion to dismiss but did not address the service of process issue.
15
See
Order (August 17, 1998).
The federal defendants now renew the service of process argument, but their theory has changed. They now agree with plaintiff that the sufficiency of the personal service should be viewed in terms of Pa. R. Civ. P. 403.
See
Federal Defendants’ Br. (May 11, 2001) at 13-14. They argue, however, that plaintiff failed to effect service pursuant to Pa. R. Civ. P. 403 because plaintiff cannot prove that an “agent” of the federal defendants signed the return receipt that accompanied the copies of the
*153
complaint sent to the federal defendants at their place of business.
Plaintiff initially responds by arguing that the federal defendants have waived the opportunity to challenge the sufficiency of process under Pa. R. Civ. P. 403 because the issue was not raised in the original motion to dismiss.
16
I disagree. Fed.R.Civ.P. 12(h)(1) provides that the defense of insufficient service of process is waived if it is not raised in the defendant’s first responsive pleading or motion. Plaintiff has cited no support for the proposition that Rule 12(h)(1) requires every argument in support-of the defense to be perfectly fleshed-out the first time it is stated. In my view, the federal defendants properly raised and preserved the defense and the latest version of their argument in support of the defense should be addressed on the merits.
I conclude, however, that the present record is insufficient to determine whether plaintiff has satisfied the Pennsylvania Rule. Pa. R. Civ. P. 403 provides:
If a rule of civil procedure authorizes original process to be served by mail, a copy of the process shall be mailed to the defendant by any form of mail requiring a receipt signed by the defendant or his authorized agent. Service is complete upon delivery of the mail.
The Court of Appeals considered this provision in
Lampe v. Xouth, Inc.,
952 F.2d 697 (3d Cir.1991). The
Lampe
Court found that “Pennsylvania Rule 403 requires ... a receipt signed by the defendant or his authorized agent.”
Id.
at 701 . It went on to find that Rule 403 had not been satisfied in that case because the plaintiff had not proved that the signatures on the return receipts that had accompanied copies of the complaint and summons belonged to either the defendants or their agents.
Id.
In this case, plaintiff has produced return receipts that were sent to the federal defendants’ place of business and signed by someone named “L. [or possibly F.] Barton.”
See
Plaintiffs Br. (June 19, 2001) at 15 n. 7; Affidavit of Gary L. Azorsky, Esq. (May 9, 1996) at Exhibits A and B. No party has offered any explanation as to who this individual is. I therefore cannot determine whether plaintiff has met the requirements of Pa. R. Civ. P. 403 as set out in
Lampe .
2. 22 C.F.R. § 172.2
The parties differ on the appropriate course of action I should take if I find that I cannot decide whether plaintiff has satisfied Pa. R. Civ. P. 403. Plaintiff argues that “[a]t the very least, Mr. Egervary should be permitted to conduct limited discovery on the question of the identity of the signatory of the return receipt card, so as to be able to define that person’s authority to accept service for the federal defendants.”
See
Plaintiffs Br. (June 19, 2001) at 17. The federal defendants’ only response to this request for limited discovery is to characterize it as “lame.”
17
See
*154
Federal Defendant’s Reply Br. (July 9, 2001) at 12.
In my view, however, discovery is not the appropriate course of action because service can be perfected promptly. Allowing plaintiff to perfect service is consistent with the Rules and case law. Rule 4(i)(3)(A) provides that a court “shall allow a reasonable time to serve process under Rule 4(i) for the purpose of curing the failure to serve ... all persons required to be served.” Similarly, Rule 4(m) provides that a court “shall extend the time for service for an appropriate period” if the plaintiff shows “good cause” for the failure to serve within the prescribed period. Here, the federal defendants’ failure to raise the Rule 403 theory until five years after service was attempted constitutes “good cause.” Similarly, the Court of Appeals has stated that:
Upon determining that process has not been properly served on a defendant, district courts possess broad discretion to either dismiss the plaintiffs complaint for failure to effect service or to simply quash service of process. However, dismissal of a complaint is inappropriate when there exists a reasonable prospect that service may yet be obtained.
See Umbenhauer v. Woog,
969 F.2d 25, 30 (3d Cir.1992). For the following reasons, I find that there is more than a “reasonable prospect” that proper service may yet be obtained.
The federal defendants have repeatedly quoted a portion of 22 C.F.R. § 172.2 for the proposition that “the [State] Department is not an authorized agent for service of process with respect to civil litigation against Department employees purely in their personal, non-official capacity.”
See
Federal Defendants’ Br. (May 11, 2001) at 15; Federal Defendants’ Reply Br. (July 9, 2001) at 12. This portion of § 172.2 is not relevant to this case. Plaintiff has not made claims against the federal defendants “purely in their personal, non-official capacity.” Rather, plaintiff has made claims against them “in an individual capacity for acts or omission occurring in connection with the performance of duties on behalf of the United States.”
Cfi
Fed.R.Civ.P. 4(i)(2)(B).
However, the remainder of § 172.2, to which the federal defendants have not referred, does apply to this case. It states: “[T]he Executive Office of the Legal Adviser (L/EX) is authorized to receive and accept summonses or complaints sought to be served upon the Department or Department employees.”
See
22 C.F.R. § 172.2 (a). The regulation goes on to state, in the sentence immediately following the one quoted by the federal defendants, that: “Copies of summonses or complaints directed to Department employees in connection with legal proceedings arising out of the performance of official duties may ... be served upon L/EX.”
18
See
22 C.F.R. § 172.2 (c).
I will therefore deny the federal defendants’ motion to dismiss pursuant to Rule 12(b)(5) and allow the plaintiff to perfect service pursuant to 22 C.F.R. § 172.2 within 30 days.
C. Statute of Limitations
The federal defendants next argue that the amended complaint is barred by the statute of limitations. I disagree.
*155
The federal defendants concede that plaintiff filed the first complaint within the two year statute of limitations for
Bivens
actions in Pennsylvania.
19
They argue, however, that the amended complaint was filed after the limitations period had run and that “a statute of limitations is not tolled by the filing of a complaint subsequently dismissed without prejudice.”
See
Federal Defendants Br. (May 11, 2001) at 17,
quoting Cardio-Medical Assoc., Ltd. v. Crozer-Chester Med. Ctr.,
721 F.2d 68 , 77 (3rd Cir.1983).
20
1. Rule 54(b)
In the cases relied upon by the federal defendants, the first complaint had been dismissed without prejudice and a new complaint was filed in a separate action. In such situations, a statute of limitations is not tolled by the filing of the first complaint. Here, however, the complaint was dismissed with prejudice as to two defendants but survived as to the remaining defendants. This situation is expressly covered by Rule 54(b):
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim,
or ivhen multiple parties are involved,
the court may direct the entry of a final judgment as to one or more but fewer than all of the claims
or parties
only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all claims or the rights and liabilities of
fewer than all the parties
shall not terminate the action as to any of the claims or parties,
and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
Fed.R.Civ.P. 54(b) (emphasis added). Because no final judgment was entered after Judge Robinson’s dismissal order, the action did not terminate as to the federal defendants and Judge Robinson’s order was “subject to revision at any time.”
Id.
In order to avoid the obvious impact of Rule 54(b) on their statute of limitations argument, the federal defendants argue that Judge Robinson’s dismissal order was never “revised” within the meaning of the Rule:
A fundamental problem with plaintiffs theory is that he never sought to have the court revise Judge Robinson’s decision dismissing the Federal Defendants from the case and the Court never determined that, given the facts presented in plaintiffs original complaint, Judge Robinson’s ruling was in error or subject to revision.
See
Federal Defendant’s Reply Br. (July 9, 2001) at 14.
This argument lacks merit. As I stated in my Order of March 23, 2001:
... Rule 15 requires that leave to amend be freely given “when justice so
*156
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 is now 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 28, 2001) at 3-4.
The federal defendants are correct that I never held that “Judge Robinson’s ruling was in error”; however, I need not make such a determination. Viewing the newly discovered evidence in the light most favorable to plaintiff, it can no longer be said that the proceedings before Judge Nealon were not “in any way directed by, approved of, or even within the knowledge of the [federal defendants].”
Cf.
Order (August 17, 1998) at 5-6. Nothing in Rule 54(b) states or implies that a valid “revision” of an “order or other form of decision” dismissing fewer than all of the parties cannot be made unless the court concludes that the order was in error at the time it was entered.
21
Judge Robinson’s order did not terminate the action against the federal defendants and the amended complaint is not barred by the statute of limitations if it relates back to the original complaint.
2. Rule 15(c) and the Relation Back Doctrine
Rule 15(c)(2) states: “An amendment of a pleading relates back to the date of the original pleading when ... the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” This provision means what it says:
[A]mendments that merely correct technical deficiencies or expand or modify the facts alleged in the earlier pleading meet the Rule 15(c) test and will relate back. Thus, amendments that do nothing more than restate the original claim with greater particularity or amplify the details of the transaction alleged in the preceding pleading fall within Rule 15(c).
See
6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure
§ 1497 (2d ed.1990).
Rule 15(c)(2) obviously applies to the amended complaint in this case, which merely restates the allegations of the original complaint with greater particularity. The federal defendants do not discuss Rule 15(c)(2) in their initial brief, and the discussion in their reply brief is limited to the following passage:
Plaintiff argues that his claims against the Federal Defendants in the Amended Complaint relate back to the filing of the original complaint under Rule 15(c)(2) of the Federal Rules of Civil Procedure because the Amended Complaint did not change “the party or the naming of the party” against who [sic] the claim is asserted.
See
Plaintiffs Brief at 28-29. Plaintiff further argues that even if Rule
*157
15(c)(3) of the Federal Rules of Civil Procedure is applicable, his amended complaint relates back to the filing of the original complaint because there was a “mistake” in the naming of the party.
Id.
at 29-31. Plaintiff is wrong on both counts.
See
Federal Defendants’ Reply Br. (July 9, 2001) at 16. Rule 15(c)(2) is never mentioned again, however, and the reader is left wondering why “plaintiff is wrong on [that] count.”
Id.
Instead, the federal defendants embark on a three page discussion of Rule 15(c)(3).
22
There are, however, two problems with their discussion.
First, Rule 15(c)(3) does not apply to this situation. Rule 15(c)(3) applies to an “amendment [that] changes the party or the naming of the party against whom a claim is asserted.” The Advisory Committee notes illustrate the circumstances where the Rule applies:
The problem has arisen most acutely in certain actions by private parties against officers or agencies of the United States. Thus an individual denied social security benefits by the Secretary of Health, Education, and Welfare may secure review of the decision by bringing a civil action against that officer within sixty days. 42 U.S.C. § 405 (g) (Supp.III, 1962). In several recent cases the claimants instituted timely action but mistakenly named as defendant the United States, the Department of HEW, the “Federal Security Administration” (a nonexistent agency), and a Secretary who had retired from office nineteen days before. Discovering their mistakes, the claimants moved to amend their complaints to name the proper defendant; by this time the statutory sixty-day period had expired. The motions were denied on the ground that the amendment “would amount to the commencement of a new proceeding and would not relate back in time so as to avoid the statutory provision ... that suit be brought within sixty days.”
See
Fed.R.Civ.P. 15 Advisory Committee Notes (1966 Amendment). The present case is not such a situation. Yet, the federal defendants argue that “plaintiff offers no explanation of his assertion that his amended complaint did not change ‘the party or the naming of the party’ against whom a claim is made.”
See
Federal Defendants’ Reply Br. (July 9, 2001) at 16. This argument is incomprehensible for two reasons. First, the explanation is self-evident. The original complaint named Virginia Young and James Schuler.
See
Complaint ¶¶ 2, 3. The amended complaint also names Virginia Young and James Schuler.
See
Amended Complaint ¶¶ 2, 3. Second, the federal defendants themselves have previously stated that “[h]ere, there was no mistake concerning the identity of the Federal Defendants; plaintiff Eger-vary brought suit against the Federal Defendants in his original Complaint.”
See
Federal Defendants’ Br. (May 11, 2001) at 20.
Second, even if Rule 15(c)(3) did apply to this case, plaintiff has met the requirements of that Rule. In most circumstances,
*158
a plaintiff invoking Rule 15(c)(3) must prove that the newly named party “(A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.”
See
Fed.R.Civ.P. 15(c)(3). However, these requirements generally do not apply to federal defendants. The Rule goes on to state that:
The delivery or mailing of process to the United States Attorney, or United States Attorney’s designee, or the Attorney General of the United States, or an agency or officer who would have been a proper defendant if named, satisfies the requirement of subparagraphs (A) and (B) of this paragraph (3) with respect to the United States or any agency or officer thereof to be brought into the action as a defendant.
See
Fed.R.Civ.P. 15(c).
The federal defendants admit plaintiff correctly and timely served the United States Attorney for the Eastern District of Pennsylvania and the United States Attorney General.
See
Federal Defendants’ Br. (May 11, 2001) at 11. Yet, rather than acknowledging that that service relieved plaintiff from the requirements of Rule 15(c)(3)(A) and (B), the federal defendants ignore the provision quoted above and engage in an extended discussion of Rule 15(c)(3)(B).
23
See
Federal Defendants’ Br. (May 11, 2001) at 19-20; Federal Defendants’ Reply Br. (July 9, 2001) at 16-18.
I conclude that the amended complaint relates back to the original complaint pursuant to Rule 15(c)(2).
3. Equitable Estoppel
Finally, even if Rules 15(c)(2) and 54(b) did not apply, I would hold that the federal defendants are equitably estopped from asserting the statute of limitations because of their concealment of their personal involvement in this case.
Under Pennsylvania law, a defendant is estopped from invoking the statute of limitations where “through fraud or concealment, the defendant causes the plaintiff to relax his vigilance or deviate from his right of inquiry.”
Schaffer v. Larzelere,
410 Pa. 402 , 189 A.2d 267, 269 (1963). The defendant’s conduct “need not rise to the level of fraud or concealment in the strictest sense, that is an intent to deceive; unintentional fraud or concealment is sufficient.”
Krevitz v. City of Philadelphia,
167 Pa.Cmwlth. 412 , 648 A.2d 353, 357 (1994). Courts have held, however, that “[m]ere mistake, misunderstanding or lack of knowledge is not sufficient to toll the running of the statute.”
Schaffer,
189 A.2d at 269 . Moreover, “mere silence or nondisclosure is not enough to trigger estoppel.”
Krevitz,
648 A.2d at 357 . Rather, the adversary “must commit some affirmative independent act of concealment upon which the plaintiffs justifiably rely in order to toll the statute.”
Id. A
court may find an estoppel “only in clear cases of fraud, deception, or concealment” and plaintiff has the burden of making such a showing.
Belfi Brothers & Co. v. Safeco Ins. Co. of Am.,
No. 94-0844, 1994 WL 591762 , at *4 (E.D.Pa. Oct.28, 1994).
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In my view, the federal defendants concealed their personal involvement in this case when in response to the original complaint they immediately moved to stay discovery, an affirmative act, and dismiss the complaint. In that motion, they argued that plaintiff had failed “to substantiate his claims with a single fact showing that defendants Young and Schuler, or any other State Department official, had any involvement in the removal of the child without notice.”
See
Federal Defendants’ Br. (August 7, 1996) at 10. On this basis, Judge Robinson concluded that “plaintiff cannot prove that the moving defendants had any personal involvement in, nor did they conspire to, deprive plaintiff of his right to due process.”
See
Order (August 18,1998) at 6. Yet, discovery had since yielded more than “a single fact” that arguably shows that the federal defendants were personally involved in the events of this case:
• Young contacted and retained Rooney on behalf of Kovacs.
See
Rooney Dep. at 59-60. She later faxed him Hungarian government documents and copies of model ICARA pleadings published by the American Bar Association.
Id.
at 62-64 .
• Rooney “relied” on the federal defendants’ assistance in drafting the petition presented to Judge Nealon and spoke to them about it “a bunch of times.”
See
Rooney Dep. at 62. He never, on the other hand, spoke with his client, Kovacs, or any member of her family in order to prepare the petition.
Id.
at 74 . The factual representations he later made to Judge Nealon were based entirely on conversations with the federal defendants and the Hungarian government documents that he received from the federal defendants.
Id.
at 86-89 .
• The federal defendants contacted Judge Nealon’s chambers on May 13, 1994 to inform the Court that a Hague Convention petition would be presented that day.
Id.
at 120-21 .
• During the presentation to Judge Nealon, Rooney called the State Department and spoke with James Schu-ler to confirm that Judge Nealon could order that the child be returned to Hungary immediately.
Id.
at 115-16, 131-32 . Rooney also called them thereafter from the Marshal’s office and on the road to Newark.
See
Burke Dep. at 70-71. He was “continuously in conversation” with them that day.
Id.
• After the child had been taken from plaintiffs custody, the State Department arranged for a passport waiver so that the child could be removed from the country that same day.
See
Rooney Dep. at 165-66.
See also
Mannicci Dep. at 19, 22-23, 30-31.
The federal defendants did not literally misrepresent the extent of their involvement to Judge Robinson, i.e., they did not specifically deny that they had any personal involvement. Rather, they argued that claims against government officials are subject to a heightened pleading standard and plaintiff had failed to meet that standard.
See
Federal Defendants’ Br. (August 7, 1996) at 16-27. However, in order for equitable estoppel to apply their conduct “need not rise to the level of fraud or concealment in the strictest sense.”
Krevitz,
648 A.2d at 357 . The federal defendants effectively hid behind the heightened pleading standard, causing plaintiff to do more than just “relax his vigilance.”
See Schaffer,
189 A.2d at 269 . As a result of the federal defendants’ strategy, plaintiff was forced to “deviate from his right of inquiry” by operation of a court order that at their request initially stayed discovery and later led to dismissal of the complaint.
Id.
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The federal defendants respond to this conclusion by arguing the following:
In their original motion to dismiss, the Federal Defendants argued, as they plainly were entitled to do, that the plaintiffs complaint, on its face, failed to sufficiently state a claim against them for violation of constitutional rights. They also argued, as they were plainly entitled to do, that discovery was not appropriate because they had raised the defense of qualified immunity. These perfectly legitimate arguments by the Federal Defendants cannot form the basis for some claim of fraud or concealment sufficient to justify equitable es-toppel or equitable tolling.
See
Federal Defendants’ Reply Br. (July 9, 2001) at 21.
I agree with the premise of this argument but disagree with the conclusion. Certainly, the federal defendants had the right to assert that a heightened pleading standard applied to plaintiffs’ claim. Equity, however, should not allow them to benefit from a strategy that delayed the discovery of evidence of their personal involvement.
I therefore conclude that the amended complaint is not barred by the statute of limitations.
D. Qualified Immunity
The federal defendants next argue that they are entitled to qualified immunity.
24
I disagree.
Under the qualified immunity doctrine, government officials performing discretionary functions are generally “shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald,
457 U.S. 800, 818 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). The Supreme Court has directed courts evaluating claims of qualified immunity to proceed in two steps: a court “must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation.”
Wilson v. Layne,
526 U.S. 603, 608 , 119 S.Ct. 1692 , 143 L.Ed.2d 818 (1999).
1. Due Process Violation
The Due Process Clause of the Fifth Amendment states that no person shall “be deprived of life, liberty, or property without due process of law.”
See
U.S. Const, amend. V. “Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.”
Mullane v. Central Hanover Bank & Tr. Co.,
339 U.S. 306, 313 , 70 S.Ct. 652 , 94 L.Ed. 865 (1950). Neither of these “fundamental requisite[s]” of due process is satisfied by mere pretense.
Id.
at 314 , 70 S.Ct. 652 . Notice must be “reasonably calculated, under all the circumstances, to apprise inter
*161
ested parties of the pendency of the action”
(id.),
and the opportunity to be heard “must be granted at a meaningful time and in a meaningful manner.”
Armstrong v. Manzo,
380 U.S. 545, 552 , 85 S.Ct. 1187 , 14 L.Ed.2d 62 (1965).
Procedural due process questions are examined in two steps.
See Kentucky Dep’t. of Corrections v. Thompson,
490 U.S. 454, 460 , 109 S.Ct. 1904 , 104 L.Ed.2d 506 (1989). The first step “asks whether there exists a liberty interest which has been interfered with by the State.”
Id.
If there is such an interest, the second step asks “whether the procedures attendant upon that deprivation were constitutionally sufficient.”
Id.
a. Liberty Interest
An abundance of case law supports the conclusion that plaintiff had a fundamental liberty interest in the custody of his child.
See Hollingsworth v. Hill,
110 F.3d 733, 739 (10th Cir.1997) (in a Section 1983 suit brought by a mother whose children were removed from her custody without prior notice, the mother had “a constitutionally protected liberty interest [in the custody of her children] which could not be deprived without due process”);
Jordan v. Jackson,
15 F.3d 333 , 342 (4th Cir.1994) (in a Section 1983 suit brought by parents whose son was removed from their custody without prior notice, the court found that there “are few rights more fundamental in and to our society than those of parents to retain custody over and care for their children, and to rear their children as they deem appropriate”);
Weller v. Dep’t. of Soc. Servs.,
901 F.2d 387 , 391 (4th Cir.1990) (in a Section 1983 suit brought by a father whose children were removed from his custody without prior notice, the father “clearly [had] a protectible liberty interest in the care and custody of his children”);
Robison v. Via,
821 F.2d 913, 921 (2d Cir.1987) (in a Section 1983 suit brought by a mother whose children were removed from her custody without prior notice, “it was clearly established that a parent’s interest in the custody of his or her children was a constitutionally protected interest of which he or she could not be deprived without due process”);
Hooks v. Hooks,
771 F.2d 935, 941 (6th Cir.1985) (in a Section 1983 suit brought by a mother whose children were removed from her custody without prior notice, the court found that it is “well-settled that parents have a liberty interest in the custody of their children”);
Lossman v. Pekarske,
707 F.2d 288, 290 (7th Cir.1983) (in a Section 1983 suit brought by a father whose children were removed from his custody without prior notice, the father “unquestionably” had a liberty interest in the custody of his children);
Duchesne v. Sugarman,
566 F.2d 817, 825 (2d Cir.1977) (in a Section 1983 suit brought by a mother whose children were removed from her custody without prior notice, the court found a liberty interest in “the most essential and basic aspect of familial privacy, the right of the family to stay together without the coercive interference of the awesome power of the state”).
It is also clear that plaintiff had a fundamental liberty interest in the custody of his son even though his estranged wife contested legal custody. Courts have recognized a parent’s liberty interest in the physical custody of a child even when the parent lacks legal custody. For example, in
Farina v. City of Tampa,
874 F.Supp.383 (M.D.Fla.1994), prospective adoptive parents sued the city police after officers returned the child to his biological parents without any prior notice or judicial proceedings.
Id.
at 384-85. The defendants conceded the underlying facts and acknowledged that the operative law provided for notice and opportunity to be heard
*162
before custody decisions are made.
Id.
at 385. Defendants argued, however, that plaintiffs had no protected liberty interest because they had only physical, not legal, custody of the child. The court flatly rejected that distinction and found “no authority in support of [defendants’] distinction between physical and legal custody for procedural due process purposes.”
Id.
at 386. On this basis, the court granted partial summary judgment in favor of the plaintiffs.
Id.
at 387.
Plaintiff therefore had a fundamental liberty interest in the continued physical custody of his son.
b. The Constitutional Sufficiency of the Process
Since Egervary had a fundamental liberty interest in the custody of his son, the child could not be removed from his custody without either prior process or a prompt, state-initiated postdeprivation hearing.
Obviously, plaintiffs due process rights would not have been violated if he had received notice and opportunity to be heard prior to Oscar’s removal from his custody. However, “due process is flexible and calls for such procedural protections as the particular situations demands.”
Morrissey v. Brewer,
408 U.S. 471, 481 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972). For this reason, courts have found that even though parents have a fundamental liberty interest in the custody of their children they do not always have a right to prior process when the state removes their children from their custody.
Courts agree that “in emergency circumstances which pose an immediate threat to the safety of a child, officials may temporarily deprive a parent of custody without parental consent or a court order.”
Hollingsworth,
110 F.3d at 739 .
See also Jordan,
15 F.3d at 343 (parents can be deprived of custody of their children without prior process “where emergency action is necessary to avert imminent harm to a child”);
Weller,
901 F.2d at 393 (“Due process does not mandate a prior hearing where emergency action may be needed to protect a child.”);
Doe v. Hennepin County, 858 F.2d
1325, 1329 (8th Cir.1988) (the state may intervene on behalf of “abused children” without prior notice);
Robison,
821 F.2d at 921 (“officials may temporarily deprive a parent of custody in ‘emergency’ circumstances”);
Lossman,
707 F.2d at 291 (“When a child’s safety is threatened, that is justification enough for action first and hearing afterwards.”);
Duchesne,
566 F.2d at 826 (child can be removed without prior process in “extraordinary situations”).
It is not clear whether the facts in this case justified Oscar’s removal without prior process. In each of the cases cited above where an emergency removal was found to be justified, there was specific evidence of an imminent threat of severe neglect or physical abuse.
See Jordan,
15 F.3d at 336 (neglect);
Weller,
901 F.2d at 391 n. 7 (physical abuse);
Doe,
858 F.2d at 1326 (sexual abuse);
Robison,
821 F.2d at 916 (sexual abuse);
Lossman,
707 F.2d at 289 (physical abuse and death threats);
Duchesne,
566 F.2d at 822 (neglect). By contrast, in
HollingswoHh,
where there were merely general allegations of “abuse, injury, molestation, and harassment” but no concrete evidence of an “immediate threat,” the removal without prior process was found to be unjustified.
See Hollingsworth,
110 F.3d at 740 . In this case, plaintiff was accused of kidnaping his son, a serious offense that arguably involves an inherent risk of further flight. It is unclear, however, whether the bare allegation of parental kidnaping is serious enough to justify emergency action to remove a child from his parent’s custody without prior
*163
process. I need not resolve this issue because plaintiff was also denied a prompt, state-initiated postdeprivation hearing.
Even when an imminent threat of harm justifies removing a child from his parent’s custody without prior process, there must be a prompt, state-initiated postdeprivation hearing to ratify the removal.
25
See Jordan,
15 F.3d at 343 (“[T]he requirements of due process may be delayed where emergency action is necessary to avert imminent harm to a child, provided that post-deprivation process to ratify the emergency action is promptly accorded.”);
Weller,
901 F.2d at 396 (“[E]ven if it is constitutionally permissible to temporarily deprive a parent of the custody of a child in an emergency, the state has the burden to initiate prompt judicial proceedings to ratify its emergency action.”);
Hennepin County,
858 F.2d at 1329 (“[T]he state may intervene on behalf of abused children ... if the state provides an adequate postdeprivation hearing.”);
Lossman,
707 F.2d at 291 (“[WJhere the state has a procedure for a prompt, adversary postdeprivation hearing in a child custody matter and the hearing is held and establishes that the state officers acted prudently in removing the child from the parent’s custody without a prior hearing, that finding extinguishes a claim that the failure to hold a predeprivation hearing was a denial of due process.”);
Duchesne,
566 F.2d at 826 (“[I]n those ‘extraordinary situations’ where deprivation of a protected interest is permitted without prior process, the constitutional requirements of notice and an opportunity to be heard are not eliminated, but merely postponed.”).
The federal defendants have not attempted to argue that plaintiff received either a prior hearing or a prompt, state-initiated postdeprivation hearing.
26
I therefore conclude that plaintiffs due process rights were violated and the federal defendants can be held liable for that violation unless there was no clearly established right at the time of the violation.
27
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2. Clearly Established Right
The federal defendants are entitled to quahfied immunity if they did not violate a “clearly established” right “of which a reasonable person would have known.”
Harlow,
457 U.S. at 818 , 102 S.Ct. 2727 . The “contours” of the asserted right “must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.”
Anderson v. Creighton,
483 U.S. 635, 640 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987). “Some factual correspondence” to precedent is necessary, but “it is not necessary that there have been a previous precedent directly in point.”
Good v. Dauphin County Soc. Servs. for Children and Youth,
891 F.2d 1087, 1092 (3d Cir.1989). “Thus, government officials are not barred from the protection of quahfied immunity if they fail to predict fluctuations in legal debates. They will not, however, be granted immunity if they fail to make obvious inferences from a generally established right, to its application in particular situations.”
Doe v. Delie,
257 F.3d 309, 331 (3d Cir.2001) (Nygaard, J., concurring in part and dissenting in part). “In sum, an official will not be liable for allegedly unlawful conduct so long as his actions are objectively reasonable under current federal law.”
Gruenke v. Seip,
225 F.3d 290, 299 (3d Cir.2000).
a. Federal Law as of May 1994
I conclude that plaintiffs right to due process was clearly established at the time of the alleged violation in May 1994 because there was a consensus among federal appellate courts that a parent is entitled to notice and opportunity to be heard in a situation like the present one. Of the numerous appellate court decisions cited in the previous section, only two,
Hollingsworth v. Hill,
110 F.3d 733, 739 (10th Cir.1997) and
Jordan v. Jackson,
15 F.3d 333 , 342 (4th Cir.1994), were decided after the events in this case. Therefore, if the federal defendants were reasonably cognizant of federal constitutional law in May 1994, as the qualified immunity defense
*165
requires them to be, they should have been aware of the following.
In 1977, in
Duchesne v. Sugarman,
566 F.2d 817, 821-22 (2d Cir.1977), a mother brought a § 1983 claim on behalf of herself and her two minor children against four supervisory level municipal welfare employees and two private child care institutions. The mother alleged that the defendants had violated her due process rights by taking custody of her children without notice or opportunity to be heard.
Id.
at 824. The court concluded that the initial taking of the children was lawful because there was an imminent threat of neglect, the mother having been confined to a psychiatric hospital.
Id.
at 825-26. It also held that defendants violated the mother’s due process rights because there was no prompt, state-initiated postdeprivation hearing.
Id.
at 828. The state defendants raised the defense of qualified immunity, but the court remanded the case so that the district court could address the issue initially.
Id.
at 829-30.
In 1983, in
Lossman v. Pekarske,
707 F.2d 288, 289 (7th Cir.1983), a father brought a § 1983 claim on behalf of himself and his three minor children against county welfare and law-enforcement officers. The father alleged that the defendants had violated his due process rights by taking custody of his children without notice or opportunity to be heard.
Id.
at 289-90. The court concluded that the father had an fundamental liberty interest in the custody of his children and, therefore, they could not be removed from his custody without notice or opportunity to be heard.
Id.
at 290-91. It found, however, that the father had received due process in the form of a prompt, state-initiated post-deprivation hearing.
Id.
at 291-92. It therefore affirmed the district court’s grant of summary judgment in favor of the defendants.
Id.
at 292.
In 1985, in
Hooks v. Hooks,
771 F.2d 935, 937-38 (6th Cir.1985), a mother brought a § 1983 claim against her former husband, his parents, two of his friends, officers and employees of a county sheriffs department, and an employee of the state Department of Human Services. The mother alleged that the defendants had violated her due process rights by taking custody of her two minor children without notice or opportunity to be heard.
Id.
at 938. The court concluded that the mother had stated a claim for violation of her due process rights, at least in part because the children had been removed from her custody and immediately taken to another state, “effectively eliminating the opportunity for plaintiff to receive a post-deprivation hearing.”
Id.
at 942. The court also discussed the extent to which co-conspirators could be held liable to the mother:
Express agreement among all the conspirators is not necessary to find the existence of a civil conspiracy. Each conspirator need not have known all of the details of the illegal plan or all of the participants involved. All that must be shown is that there was a single plan, that the alleged coconspirator shared in the general conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy that caused injury to the complainant.
Id.
at 944. On this basis, the court found that the mother could not maintain a claim against her ex-husband’s friends and parents because they were not alleged to have had knowledge of the conspiracy.
Id.
However, the court allowed the case to continue as to the remaining defendants.
Id.
In 1987, in
Robison v. Via,
821 F.2d 913, 915 (2d Cir.1987), a mother brought a § 1983 claim against a state trooper and an assistant state’s attorney. The mother alleged that the defendants had violated
*166
her due process rights by taking custody of her two minor children without notice or opportunity to be heard.
Id.
at 917. In analyzing the defendants’ qualified immunity defense, the court stated the following:
To be sure, in 1981, when the Robison children were taken into custody, it was clearly established that a parent’s interest in the custody of his or her children was a constitutionally protected liberty of which he or she could not be deprived without due process, which would generally require a predeprivation hearing ... However, it was, and remains, equally well established that officials may temporarily deprive a parent of custody in emergency circumstances without parental custody or a prior court order.
Id.
at 921. The court went on to conclude that due process had been satisfied because there were credible allegations of sexual abuse that justified emergency removal of the child and there was a prompt, state-initiated postdeprivation hearing the next day.
Id.
at 922.
In 1990, in
Weller v. Dep’t. of Soc. Servs.,
901 F.2d 387 , 389 (4th Cir.1990), a father brought a § 1983 claim against twenty-five defendants, including “agencies of Maryland, employees of the State of Maryland and the City of Baltimore, and his ex-wife and mother-in-law.” The father alleged that the defendants had violated his due process rights by taking custody of his minor son without notice or opportunity to be heard.
Id.
at 393. The court held that “a parent is entitled to a hearing initiated by the State before he may be deprived of the custody of his child, and in an emergency a prompt hearing may ratify the state action.”
Id.
at 398. It also expressed “additional concern” because the defendants had immediately taken the son to a different jurisdiction, “thereby reducing the possibility of a post-deprivation hearing.”
Id.
at 396. The court acknowledged, however, that the defendants could assert qualified immunity and therefore remanded the case to the district court to determine whether the right had been clearly established at the time of the alleged deprivation.
Id.
at 398.
These precedents establish more than just the “contours” of the right that was allegedly violated; they are a well-marked roadmap.
28
All of the cases agree that a parent has a fundamental liberty interest in the custody of his or her child. All of the cases agree that that interest cannot be infringed upon without either prior process or, in the case of an emergency, a prompt, state-initiated postdeprivation hearing. Two of the cases,
Duchesne
and
Weller,
implicitly illustrate that liability for such an unconstitutional deprivation can extend further than the individual who physically takes custody of the child, and a third case,
Hooks ,
explicitly describes the limits of conspiratorial liability for such a deprivation. Two of the cases,
Duchesne
and
Weller,
declared that the asserted right exists but remanded to the district court to determine whether it had been
*167
clearly established at the times of the alleged violations. A third case,
Robison ,
explicitly stated that the right to due process in such situations had been clearly established as of 1981.
See Robison,
821 F.2d at 921 . Two of the cases,
Hooks
and
Weller,
noted that the immediate removal of the children to another jurisdiction had effectively eliminated the possibility of a postdeprivation hearing.
The only distinguishing point is that these precedents arose out of the conduct of state actors acting pursuant to state law, while this case arises out of the conduct of federal agents acting pursuant to an international treaty and the federal law that implements it. Extending these precedents to this situation, however, is not a “fluctuation in legal debate” that the federal defendants could be forgiven for failing to predict.
See Doe,
257 F.3d at 331 . Rather, applying the Due Process Clause to the actions of State Department employees is an “obvious inference from a generally established right.”
Id.
b. Violations of ICARA, State Law, and Federal Regulations
The preceding analysis is a sufficient and independent rationale for finding that the federal defendants are alleged to have violated a clearly established right. There are, however, additional reasons that may support this finding; namely, the federal defendants’ alleged conduct also likely violated ICARA, state law, and federal regulations. Before I discuss these violations, however, I will explain why they may be relevant to the qualified immunity analysis.
Doe v. Delie
is the Court of Appeals’ most recent decision addressing the qualified immunity defense. In
Doe,
a former inmate of the Pennsylvania Department of Corrections claimed that prison officials had violated his constitutional right to medical privacy by allowing others to learn that he was HIV-positive.
See Doe,
257 F.3d at 311 . The panel ultimately affirmed the dismissal of the claim, but it was divided. Judge Garth was unwilling to declare that there is a constitutional right to medical privacy in prison.
Id.
at 323 . Judge Nygaard believed that there is right to medical privacy in prison and that the right was clearly established at the time of the alleged violation.
Id.
at 330 . Judge Roth was of the view that there is a right to medical privacy in prison but the right was not clearly established at the time of the alleged violation.
Id.
at 311 .
There was also a difference of opinion as to whether a concurrent violation of state law is relevant to the qualified immunity inquiry. Judge Roth found that such evidence is not relevant because “[t]he Supreme Court has held that officials do not forfeit qualified immunity from suit for violation of a federal constitutional right because they failed to comply with a clear state statute.”
Id.
at 318 . Judge Nygaard disagreed. He argued that an overlapping state law should “raise [an] official’s awareness that a parallel federal right may exist” and therefore is relevant to the qualified immunity inquiry.
Id.
at 334 . Judge Garth did not reach the issue.
It is not my function to determine whether Judge Roth’s or Judge Nygaard’s view is correct. Cognizant of the disagreement, however, I feel obliged to discuss plaintiffs contention that the federal defendants also violated ICARA, state law, and federal regulations because the Court of Appeals may ultimately find this contention relevant to the qualified immunity analysis.
First, ICARA 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 provi
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sion 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 .
Klam
is instructive. In
Klam ,
a German father alleged that his ex-wife was unlawfully retaining their children in New York and that the children should be returned to Germany pursuant to the Hague Convention and ICARA. To that end, he filed an ICARA petition asking that his children be taken into protective custody before the mother was notified of the ICARA proceedings.
Id.
at 203 . In support of this request, the petition made a series of conclusory assertions, including the claim that the children were being “wrongfully detained” from the nation of their “habitual residence” and that the children would be “carried out of the jurisdiction” and “suffer irreparable injury” unless the petition was granted.
Id.
at 204 . The court was confronted with the issue of whether the petition could be granted
ex parte
based only on those assertions.
Id.
at 206 .
The court concluded that
ex parte
relief would violate the procedural protections of ICARA and gave two rationales for this conclusion. First, the court looked to a series of cases holding that
ex parte
relief is inappropriate under PKPA and UCCJA absent “a showing of extraordinary circumstances.”
Id.
Second, the court was hesitant to rely on the unsubstantiated allegations contained in the petition.
Id.
It therefore denied the
ex parte
request for interim relief, but stated that it would allow the father to proceed after the mother had been served.
Id.
at 207 n. 5.
The petition submitted to Judge Nealon was remarkably similar to the petition rejected by the court in
Klam .
For example, it alleged that plaintiffs removal of his son from Hungary in December 1993 was a “wrongful removal” from the child’s “habitual residence” within the meaning of the Hague Convention and ICARA.
See
ICARA Petition of Aniko Kovacs (May 13, 1994) ¶¶ 2, 5 and 6. The petition also alleged that Egervary would “upon being informed of these proceedings ... further abduct and secrete the child.”
Id.
¶ 12. However, Kovacs’ petition also went a significant step further than the
Klam
petition. The petition asked that Oscar be turned over to Rooney immediately and returned to Kovacs, rather than being held pending final resolution of the ICARA petition.
Id.
¶ 13. The petition at issue in this case was, therefore, a more egregious violation of plaintiffs rights than the petition involved in
Klam .
I therefore conclude that the federal defendants’ alleged conduct violated the ICARA notice provision.
Second, ICARA provides that a child cannot be “removed from a person having physical control of the child unless the applicable requirements of State law are satisfied.”
See
42 U.S.C. § 11604 (b). The notice provision of the Pennsylvania version of the UCCJA, 23 Pa.C.S.A. § 5345, states that: “Before making a decree under this subchapter, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated and any person who has physical custody of the child.” The
Klam
analysis above is sufficient to show that the federal defendants’ alleged conduct also violated this state law.
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Finally, there also is evidence from which it could be concluded that the federal defendants violated the State Department’s regulations governing the Hague Convention. Those regulations provide that: “The U.S. Central Authority [i.e., the Bureau of Consular Affairs where the federal defendants worked] is 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). However, the U.S. Central authority “shall ... [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 federal defendants have repeatedly cited these regulations as evidence that they could not have engaged in any conduct that violated plaintiffs due process rights.
See, e.g.,
Federal Defendants’ Br. (August 7, 1996) at 11; Federal Defendants’ Br. (May 11, 2001) at 26-27; Federal Defendants’ Reply Br. (July 9, 2001) at 25.
29
It is clear, however, that the federal defendants’ conduct — even the limited account of their conduct that has been set forth in their briefs — exceeded what they were authorized to do under the regulations. In their briefs, the federal defendants acknowledge that they: 1) contacted Rooney to ask him to represent Kovacs; and 2) sent Rooney written materials that would assist him in drafting the ICARA petition.
See
Federal Defendants’ Br. (July 9, 2001) at 2-7 (“Statement of Undisputed Facts”). Section 94.6(d) does not authorize the State Department to retain an attorney on behalf of a petitioner or to give substantive assistance to an attorney. Rather, it permits assistance in “securing information useful for choosing or obtaining legal representation.” When the federal defendants — by their own admission— helped Kovacs to find an attorney and then provided that attorney with written information to assist him in drafting the petition the federal defendants exceeded their authority under § 94.6(d) and became an “agent” of Kovacs, which is prohibited under § 94.4(a).
To reiterate, the federal case law previously discussed is, in my view, more than sufficient to establish that the federal defendants violated plaintiffs clearly established right to notice and opportunity to be heard. However, if the Court of Appeals should adopt Judge Nygaard’s
Doe
opinion, there also is ample evidence that federal defendants violated ICARA, state law, and State Department regulations.
3. The Federal Defendants’ Reply Arguments
All of the federal appellate decisions discussed in my analysis of the qualified immunity issue were also discussed at length in
Egervary II. See Egervary II,
80 F.Supp.2d at 497-504 . When I denied the federal defendants’ motion for reconsideration of my order allowing plaintiff to file an amended complaint, I specifically called that discussion to their attention and stated my belief that the “wealth of authorities” cited therein would be probative of
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the qualified immunity decision.
See
Order (March 23, 2001) at 3. Since that time, the federal defendants have filed 105 pages of briefs on the motion to dismiss and motion for summary judgment, yet they have never cited, discussed, or attempted to distinguish any of those cases.
Instead, they have argued for qualified immunity by mischaracterizing the conduct they are alleged to have engaged in and the right they are alleged to have violated. For example, they argue that:
• “Plaintiffs claim against the Federal Defendants boils down to the contention that they offered legal advice that prompted the plaintiffs former wife, a litigant in court proceedings, to seek and obtain relief from Judge Nealon that violated plaintiffs due process rights under the Fifth Amendment.”
See
Federal Defendants’ Br. (May 11, 2001) at 25.
• “Plaintiffs claim is limited to the allegation that the Federal Defendants offered inaccurate legal advice to counsel for the plaintiffs former wife concerning the type of relief she, as a litigant, could request from the court.”
Id.
at 26.
• “[T]he Federal Defendants, neither of whom was a lawyer, allegedly gave this legal advice to defendant Rooney, who was a lawyer and who represented the plaintiffs wife in all court proceedings ... it is inherently illogical to suggest that lay persons should be held responsible for providing allegedly inaccurate legal advice to a lawyer ...” Id at 27-28.
• “[TJhere plainly was no ‘clearly established’ law that defendants Young and Schuler, neither of whom are lawyers, could be held responsible for violating plaintiff Egervary’s constitutional rights for supposedly advising defendant Rooney ...”
Id.
at 30.
• “In this case, defendants Young and Schuler may not be held responsible for any of the actions by defendant Rooney in seeking an order from Judge Nealon for the seizure of the plaintiffs son and then executing the Court’s order, merely because the Federal Defendants supposedly advised him that he might be able to seek such an order.”
Id.
at 31.
• “[Pjlaintiff completely fails to address the Federal Defendants’ argument that in May, 1994 there was no ‘clearly established’ law that they could be liable to the plaintiff for a violation of his due process rights under the circumstances of this case, where they allegedly offered advice to the attorney for plaintiffs former wife concerning the type of relief which she could seek in court.”
See
Federal Defendants’ Reply Br. (July 9, 2001) at 22.
• “Plaintiff ... does not offer a single case or any other legal authority to support his claim that the Federal Defendants, neither of whom is a lawyer, may be held liable for allegedly offering inaccurate legal advice to the attorney for a third party ...”
Id.
at 24.
Assuming
arguendo
that plaintiffs claim were “limited to the allegation that the Federal Defendants offered inaccurate legal advice,” it is unclear whether the federal defendants could be held liable. It is clear that the qualified immunity defense does not absolve the federal defendants of liability simply because they are not lawyers (as they seem to imply in the passages quoted above). Rather, the qualified immunity defense is predicated on the concept that competent government officials will have a reasonable working knowledge of federal constitutional law.
See Malley v. Briggs,
475 U.S. 335, 341 , 106 S.Ct. 1092 , 89 L.Ed.2d 271 (1986).
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It is clear, however, that this case is about more than just offering inaccurate legal advice. Plaintiff alleges, and based on the current record a reasonable jury could conclude, that the federal defendants did the following:
• In violation of State Department regulations, the federal defendants retained a private attorney on behalf Aniko Kovacs.
See supra
Part III-D-2-b;
• The federal defendants conspired with, gave substantial assistance or encouragement to, and/or ordered or induced Rooney to present a petition to Judge Nealon that made false representations of fact and requested removal of the plaintiffs child from his custody without notice or opportunity to be heard.
See infra
Part III-E;
• The federal defendants contacted Judge Nealon’s chambers on the morning that the ICARA petition was filed to alert the Court that Rooney would be presenting the petition that day.
See
Rooney Dep. at 120-21.
See also infra
Part III-E-3-b;
• In response to an inquiry from Judge Nealon, the federal defendants communicated through Rooney that the “official State Department position” was that the child could be lawfully removed from his father’s custody and returned to Hungary without a hearing.
See
Rooney Dep. at 115-16, 131— 32.
See also
Nealon Dep. at 16-20, 22-24, 26-28,139-40;
• The federal defendants arranged for a passport waiver so that the child could immediately be returned to Hungary, effectively eliminating the possibility of a postdeprivation hearing.
See
Rooney Dep. at 165-66; Mannicci Dep. at 19, 22-23.
See also infra
Part III— E-3-f.
Plaintiffs claim, therefore, is not “limited to the allegation that the Federal Defendants offered inaccurate legal advice.”
E. Personal Involvement
Finally, the federal defendants move for summary judgment on the grounds that there is insufficient evidence of their personal involvement in the alleged deprivation of plaintiffs due process rights. I disagree.
1. The Summary Judgment Standard
Rule 56 empowers a court to grant summary judgment if “there is no genuine issue as to any material fact” and “the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Initially, the moving party must state the basis for its motion and identify those portions of the record which it believes indicate the absence of any genuine issue of material fact.
See Celotex Corp. v. Catrett,
477 U.S. 317, 323 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). When the moving party does not bear the burden of persuasion at trial, it may properly support its motion merely by showing that there is an absence of evidence to support the non-moving party’s case.
Id.
at 325 , 106 S.Ct. 2548 .
In response to a properly supported motion for summary judgment, the non-moving party must point to specific facts demonstrating that a genuine issue exists for trial.
See
Fed.R.Civ.P. 56(e). It may not rest upon unsupported allegations or denials.
See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986). A “mere scintilla of evidence” supporting the non-moving party’s position is insufficient to create a genuine issue of material fact; there must be sufficient evidence from which a jury could reasonably find for the non-moving party.
Id.
at 252 , 106 S.Ct. 2505 . “Credibility
*172
determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts” should be left to the jury.
Id.
at 255 , 106 S.Ct. 2505 . All evidence must be viewed in the light most favorable to the non-moving party.
Id.
I note that the federal defendants’ arguments in support of their motion misapply the summary judgment standard in a number of ways. First, although this is their motion for summary judgment Young and Schuler have not submitted affidavits giving their account of the events in this case.
30
In their briefs, however, they make factual claims about their conduct. For example, they claim that the passport waiver was granted by the duty officer in the State Department’s Passport Services office and that they had no involvement in issuing the waiver.
See
Federal Defendants’ Br. (August 17, 2001) at 16-17. There is no evidence in the record to establish those facts, and, as I will explain in greater detail below, the record supports the inference that Young had some involvement in obtaining the waiver. The federal defendants’ unsworn denial of that fact cannot affect my analysis.
Second, the federal defendants have at times attempted to rebut damaging testimony by citing other testimony that, in their view, explains away the damaging testimony. For the purposes of a summary judgment motion, however, I must assume that a jury might give no weight to the explanatory testimony. Therefore, even if I find the explanatory testimony to be reasonable I must find that an issue of fact exists on that point.
2. The Legal Standard for Personal Involvement in a Constitutional Tort
The federal defendants begin their summary judgment argument by claiming that plaintiff “has never coherently articulated his theory of liability.”
See
Federal Defendants’ Br. (August 17, 2001). I disagree.
Plaintiff has discussed the legal standard for personal involvement in a constitutional tort.
See
Plaintiffs Br. (August 3, 2001) at 4-5. Specifically, he relies upon
Rode v. Dellarciprete,
845 F.2d 1195 (3d Cir.1988), and
Robinson v. City of Pittsburgh,
120 F.3d 1286, 1294 (3d Cir.1997). In
Rode ,
the Court of Appeals held that “[a] defendant in a civil rights action must have personal involvement in the alleged wrongs.”
See Rode,
845 F.2d at 1207 . The
Robinson
Court later discussed the
Rode
requirement in situations where a government employee has supervisory authority over the person who commits the constitutional tort.
See Robinson,
120 F.3d at 1294 . The
Robinson
Court also stated in a footnote that when the issue arises in other situations, courts should be guided by the Restatement (Second) of Torts §§ 876 and 877(a).
Id.
at 1294 n. 6.
Section 876 states:
PERSONS ACTING IN CONCERT
For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he
(a) does a tortious act in concert with the other or pursuant to a common design with him, or
(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or
(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.
Section 877(a) states:
*173
DIRECTING OR PERMITTING CONDUCT OF ANOTHER
For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he (a) orders or induces the conduct, if he knows or should know of circumstances that would make the conduct tortious if it were his own ...
On this basis, plaintiff has argued that the federal defendants potentially could be held liable under any of these standards (conspiring with, giving substantial assistance or encouragement to, and/or ordering or inducing the conduct). In my view, plaintiffs discussion is coherent and supported by
Rode
and
Robinson .
The federal defendants, however, have not cited any authority to guide my consideration of their alleged personal involvement and have argued for at least three different standards in their briefs.
31
For the purposes of this motion, I need not decide which provision of the Restatement applies to plaintiffs claim. The federal defendants’ analysis of the record consistently argues that there is no evidence that they knew what Rooney was doing, and knowledge of the other party’s action is arguably a prerequisite to liability under any of the provisions of Restatement §§ 876 and 877(a).
32
I find, however, that there is ample evidence that the federal defendants’ knew of Rooney’s actions. Moreover, viewing the record in the light most favorable to plaintiff a jury could reasonably conclude that the federal defendants conspired with, gave substantial assistance or encouragement to, and/or ordered or induced Rooney’s actions.
3. Evidence of Personal Involvement
a. The Retention of and Assistance to Rooney and the Model Pleadings
The starting point for the federal defendants’ analysis of the record is the model pleadings that Young sent Rooney. In numerous instances, each of which will be discussed in greater detail below, the federal defendants argue that they could not have known that Rooney was seeking an
ex parte
.order because the model pleadings did not provide for
ex parte
proceedings.
See, e.g.,
Federal Defendants’ Br. (July 9, 2001) at 13 (“Rooney’s purported assumption that defendant Schuler thought that defendant Rooney was seeking an
ex parte
order is not worthy of any consideration because it was inconsistent with the model pleadings pointed out to defendant Rooney by the State Department.”). There are two problems with this argument.
First, this argument ignores the extensive contacts that Rooney had with Young and Schuler after he received the model pleadings. Rooney testified that he “had to rely on them [i.e., Young and Schuler] to help [him]” because he “was not extremely well-versed on The Hague.”
See
Rooney Dep. at 62. He therefore spoke to
*174
them “a bunch of times.”
Id.
Burke confirmed that during the days when Rooney was receiving that help “they [i.e., Young and Schuler] 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. Similarly, on the day of the
ex parte
meeting, Rooney was “continuously in conversation” with the State Department.
Id.
at 71. Given this volume of phone calls after Rooney received the model pleadings, a reasonable jury could infer that the model pleadings were merely the starting point for the help Rooney received from the federal defendants.
Second, the federal defendants mis-characterize the contents of the model pleadings. They argue that the model pleadings “provided for full notice of all proceedings.”
See
Federal Defendants’ Br. (August 17, 2001) at 10. This is incorrect. The model pleadings in fact suggest 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.
The model pleadings Young sent Rooney consisted of two parts. The first was a model ICARA petition.
See
Federal Defendants’ Br. (July 9, 2001) at Exhibit G. The model petition contains two provisions that are relevant to the present discussion. The first is labeled “Notice of Hearing.” It provides: “Pursuant to 42 U.S.C. § 11603 (c), Respondent shall be given notice pursuant to [state law].” The federal defendants’ contention that the model pleadings provided for “full notice of all proceedings” apparently rests on this provision. However, as my previous discussion of 42 U.S.C. § 11603 (c) showed, this statute merely provides for “reasonable notice and opportunity to be heard” and allows for the seizure of a child without prior notice in “extraordinary circumstances.”
See supra
Part III-D-2-b,
discussing
§ 11603(c) and
Klam .
Therefore, read in isolation the “Notice of Hearing” provision of the model petition does not stand for the proposition that the alleged parent-kidnapper will be given “full notice of all proceedings.”
The other relevant provision of the model petition also does not support the federal defendants’ claim. The model petition also contains

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2384896. Public record. Not legal advice.