Full 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 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. 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 opportunity to take a teaching position in Budapest until the end of the year. Id. Shortly thereafter, she separated from Egervary and informed him that she would not return to the U.S. and would not return Oscar to this country. Id. In June and July of that year, Egervary traveled to Hungary in an attempt to reconcile with his wife and bring Oscar home. Id. In July, Kovacs returned to the U.S. with Egervary for a short time, but she insisted on leaving Oscar in Hungary with her parents. Id. In August, Egervary returned to Hungary and stayed for three months in another attempt to reconcile with his wife. Id. During that stay, he took a job teaching English in order to support himself. Id. He stayed there from approximately August to November of 1993. Id. He brought some personal belongings from the U.S., but he did not plan on establishing residence there and did not register with the Hungarian government as a resident. Id. In September, Kovacs took Oscar to an undisclosed location in Hungary in an apparent attempt to hide the child from his father. See Egervary Aff. (June 9, 1994) ¶ 8. At that time, she left Egervary a letter that, in part, stated:' “I’d like to notify you in this farewell letter that I’ve moved out from you, together with Ossika [i.e., Oscar] ... I moved to a location unknown to others deliberately and I didn’t move to my parents on purpose.” See Egervary Aff. (July 7, 1994) ¶ 3. Egervary searched for his son for approximately three months. Id. During that time, he consulted with the American Embassy in Budapest and was told that if he could find Oscar he was free to take the child back to the U.S. Id. On December 18, 1993, Egervary found Kovacs and Oscar leaving her parents’ apartment house in Budapest. Id. According to Egervary, Oscar’s clothing was “dirty and ragged” and the boy appeared undernourished. See Egervary Aff. (June 9, 1994) ¶ 9. Egervary took Oscar from Kovacs and left Hungary with him the next day. Id. Upon their return to the U.S., Egervary set up residence with his son in Monroe County, Pennsylvania. Id. On May 13, 1994, members of the Pennsylvania State Police and U.S. Marshals arrived at Egervary’s home with an order signed by the Honorable William J. Nealon of the United States District Court for the Middle District of Pennsylvania. Id. ¶ 10. Pursuant to the order, Oscar was removed from Egervary’s custody and delivered to defendant Frederick P. Rooney, Esq. Id. Rooney then took Oscar to the airport, flew him to Europe, and returned the child to his mother. See Rooney Dep. at 169. All parties concede that Egervary was given no notice of or opportunity to be heard in the ex parte Hague Convention/ICARA proceedings that led to the order. B. The Hague Convention/ICARA Proceedings 1. The Law The Hague Convention on the Civil Aspects of International Child Abduction is a multilateral international treaty on parental kidnaping adopted by the United States and other nations in 1980. The goal of the Convention is to “protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence.” See Hague Convention, Preamble. The Convention reflects “a universal concern about the harm done to children by parental kidnaping and a strong desire among the Contracting States to implement an effective deterrent to such behavior.” Feder v. Evans-Feder, 63 F.3d 217, 221 (3d Cir.1995). The Convention is “designed to restore the ‘factual’ status quo which is unilaterally altered when a parent abducts a child.” Id. The United States has implemented the Hague Convention by enactment of the International Child Abduction Remedies Act (“ICARA”), 42 U.S.C. § 11601 et seq. ICARA vests state and district courts with concurrent jurisdiction over claims arising under the Convention and empowers those courts to order the return of kidnaped children. See 42 U.S.C. § 11603. An ICARA hearing is not a custody hearing. See Blondin v. Dubois, 189 F.3d 240, 245 (2d Cir.1999) (under ICARA, a district court has “the authority to determine the merits of an abduction claim, but not the merits of the underlying custody claim”), quoting Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir.1993); Hague Convention, Article 19 (“A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.”). An ICARA proceeding merely determines which nation should hear the underlying custody claim. See Blondin, 189 F.3d at 246. An ICARA petitioner bears the burden of proving by a preponderance of the evidence that the child in question has been wrongfully removed from the nation of his or her “habitual residence” immediately before the removal. See 42 U.S.C. § 11603(e)(1)(A); Hague Convention, Articles 3 and 4. 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 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, 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). 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. 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 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. 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 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 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. According to Judge Nealon, Rooney: 1) portrayed himself as representing the State Department; 2) stated that he was seeking to have the Judge enforce a Hungarian court order; 3) had already made arrangements to return the child to Hungary that day; and 4) never suggested any remedy that would require Judge Nealon to conduct a hearing on the matter: Q: What did Mr. Rooney tell you about them [i.e., the papers that had been filed in support of the petition]? A: Well, capsulizing what he told me and I have to use this word advisedly whether he said he was retained, I thought he said he was retained, at least that’s the impression I got, by the State Department to present this petition that there had been a proceeding in Hungary where a — at which the father was represented. And the court awarded custody to the mother and that the father went over to Hungary, kidnaped the youngster and took the youngster back and was now located in Cresco in Monroe County. And what he was seeking to do was enforce the Hungarian Court judgment by signing the warrant and picking up the child. And once again, and you people can flush it out later, it was indicated to me that this was the appropriate remedy and that the arrangements had been made to take the child and return, I think, that day to Hungary. It was a very critical period, according to him, that something had to be done promptly. Q: Was that because arrangements had already been made to take the child back? A: Well, that had been represented that the arrangements had been made. Now, the extent of them I don’t know. Whether he said he had an airplane ticket or could get an airplane ticket or something along that line I don’t know. But it was really an emergency matter according to him. A: And let me — I know the petition mentions hearings, but at no time did he suggest a hearing to me. I want to be 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: 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 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. 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 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 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 waiver of the child’s passport so that he could be removed immediately from the country (id. at 165-66). On this basis, plaintiff argued that Rooney’s testimony had undermined the rationale for Judge Robinson’s earlier order dismissing the federal defendants from the case and moved for leave to file an amended complaint reasserting claims against them. I granted that motion on March 6, 2001. Thereafter, the federal defendants filed a motion for reconsideration arguing that leave to amend was not appropriate. I denied the motion for reconsideration on March 23, 2001: ... Rule 15 requires that leave to amend be freely given “when justice so requires.” The federal defendants were dismissed from this case by Judge Robinson because she concluded that “plaintiff cannot prove that [the federal defendants] had any personal involvement in” the deprivation of plaintiffs due process rights. See Order dated August 17, 1998. There now is testimony that could give rise to a conclusion that these defendants were personally involved. Accordingly, I conclude that justice will be served by allowing the amendment. See Order (March 23, 2001) at 3-4. The amended complaint was filed on March 23, 2001. The federal defendants subsequently moved to dismiss the amended complaint, arguing that: 1) venue is lacking in this District; 2) the original complaint was not properly served; 3) the amended complaint is barred by the statute of limitations; and 4) they cannot he held liable because of the defense of qualified immunity. While the motion to dismiss was pending, the federal defendants filed a motion for summary judgment alleging that they had no personál involvement in the constitutional tort. 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 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. 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.” 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 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. 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 dismissed 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) when in fact he should have attempted to effect service under Pa. R. Civ. P. 402(a)(1) & (2). 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. 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 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. 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.” See 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.” 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. The federal defendants concede that plaintiff filed the first complaint within the two year statute of limitations for Bivens actions in Pennsylvania. 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). 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 afte