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Jenkins v. Miller

United States District Court, D. Vermont

October 24, 2013

JANET JENKINS, for herself and as next friend of ISABELLA MILLER-JENKINS, a/k/a ISABELLA MILLER, Plaintiffs,

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For Janet Jenkins, for herself and as next friend of Isabella Miller-Jenkins, a/k/a Isabella Miller, by next friend Isabella Miller-Jenkins, Plaintiff: Frank H. Langrock, Katherine B. Kramer, Esq., Langrock Sperry & Wool, LLP, Middlebury, VT; Lisa B. Shelkrot, Esq., Langrock Sperry & Wool, LLP, Burlington, VT; Sarah Star, Esq., Sarah Star, PL, Middlebury, VT.

For Kenneth L. Miller, Defendant: Brooks G. McArthur, Esq., Jarvis, McArthur & Williams, LLC, Burlington, VT; Joshua M. Autry, Esq., PRO HAC VICE, Boyle, Autry & Murphy, Camp Hill, PA.

For Andrew Yoder, individually and as an agent for Christian Aid Ministries, Inc., agent of Christian Aid Ministries, Inc., Christian Aid Ministries, Inc., Defendants: Peggy J. Schmitz, Esq., PRO HAC VICE, Critchfield, Critchfield & Johnson, Ltd., Wooster, OH; Steven J. Shrock, Esq., PRO HAC VICE, Critchfield, Critchfield & Johnston, Ltd., Millersburg, OH; Thomas E. McCormick, McCormick, Fitzpatrick, Kasper & Burchard, P.C., Burlington, VT.

For Response Unlimited, Inc., Philip Zodhiates, individually and as an agent of Response Unlimited, Inc., Defendants: Norman C. Williams, Gravel & Shea PC, Burlington, VT; Robert B. Hemley, Gravel and Shea, Burlington, VT.

For Victoria Hyden, individually and as agent for both Response Unlimited, Inc. and Liberty University School of Law and its related ministry Thomas Road Baptist Church, Inc., formerly known as Victoria Zodhiates, agent of Liberty University School of Law, agent of Thomas Road Baptist Church, Inc., agent of Response Unlimited, Inc., Defendant: Ritchie E. Berger, Sophie E. Zdatny, Esq., Dinse, Knapp & McAndrew, P.C., Burlington, VT; Robert B. Hemley, Gravel and Shea, Burlington, VT.

For Linda M. Wall, other Thomas Road Baptist Church, Inc., Defendant: Michael J. DePrimo, Esq., Hamden, CT; Norman C. Smith, Esq., Norman C. Smith, PC, Essex Junction, VT.

For Douglas Wright, Defendant: Robert G. Cain, Paul Frank Collins PC, Burlington, VT.

For Thomas Road Baptist Church, Inc., Liberty University, Inc., Defendants: Ritchie E. Berger, Sophie E. Zdatny, Esq., Dinse, Knapp & McAndrew, P.C., Burlington, VT.


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William K. Sessions III, United States District Court Judge.

Plaintiff Janet Jenkins, for herself and as next friend of her daughter Isabella Miller-Jenkins, has brought suit against several individuals and organizations, alleging that they kidnapped and conspired to kidnap Isabella. Plaintiffs assert claims of commission of and conspiracy to commit an intentional tort of kidnapping, violations of the Racketeer Influenced and Corrupt Organizations Act (" RICO" ) under 18 U.S.C. § 1962(c) and (d), conspiracy to violate civil rights under 42 U.S.C. § 1985(3), and failure to prevent a violation of civil rights under 42 U.S.C. § 1986. All of the served Defendants [1] have moved to dismiss on various grounds, including lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2), improper venue pursuant to Fed.R.Civ.P. 12(b)(3), and failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6). In the alternative, several Defendants have moved for a change of venue to the Western District of Virginia pursuant to 28 U.S.C. § 1404(a). For the reasons set forth below, the motions to dismiss are granted in part and denied in part. The motions for change of venue are denied.

Defendants Andrew Yoder, Christian Aid Ministries, Inc., Liberty University, Inc., Thomas Road Baptist Church, Inc. and Douglas Wright are dismissed from the case for lack of personal jurisdiction. Jurisdictional discovery is permitted with respect to Defendant Response Unlimited, Inc.

The motions to dismiss Count One, alleging an intentional tort of kidnapping/custodial interference are denied. Counts Two and Three, alleging violations of RICO, are dismissed for failure to state a claim upon which relief can be granted. Count Five, alleging a violation of 42 U.S.C. § 1986 and brought solely against Defendant Douglas Wright, is dismissed without prejudice, for lack of personal jurisdiction over the Defendant.

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Count Four, brought under 42 U.S.C. § 1985(3) and alleging a conspiracy to violate Plaintiffs' civil rights, is dismissed with leave to amend. As discussed in more detail below, last term the United States Supreme Court held that the definition of " marriage" and " spouse" in the Defense of Marriage Act (" DOMA" ) unconstitutionally deprived married same-sex couples of the equal protection of the laws guaranteed by the Fifth Amendment to the United States Constitution. United States v. Windsor, 133 S.Ct. 2675, 2695, 186 L.Ed.2d 808 (2013). The Court explained that the law " divest[ed] married same-sex couples of the duties and responsibilities that are an essential part of married life" and that " the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage." Id. Specifically,

[t]he class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. . . . DOMA instructs all . . . persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. . . . [N]o legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.

Id. at 2696. In so holding, the Supreme Court necessarily concluded that same-sex couples whose unions are recognized under State law constitute a class that is entitled to equal protection. See id.; see also id. at 2690 (" [DOMA's] operation is directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect." ); id. at 2692 (" What the State . . . treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect." ); id. at 2693 (" DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government." ).

Plaintiffs' Count Four alleged discriminatory animus on the basis of gender, a claim which cannot survive a motion to dismiss. The facts alleged in the Amended Complaint would support a claim however that Defendants harbored invidiously discriminatory animus against same-sex couples, and sought to thwart the operation of state laws designed to guarantee them equal protection.

Plaintiffs may move to amend to plead a claim, under the hindrance clause of 42 U.S.C. § 1985(3), of conspiracy to violate their civil rights based on discriminatory animus against same-sex couples, and to prevent the courts of Vermont and Virginia from securing to them the equal protection of the law.


I. The Litigation between Lisa Miller and Janet Jenkins

Isabella Miller-Jenkins is the daughter of Defendant Lisa Miller and Janet Jenkins. She is the biological child of Lisa Miller, born in April 2002 while the two women were joined in a civil union, which they obtained in Vermont in 2000. [2] At first the family lived in Virginia, but moved to Vermont in August 2002. When

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Isabella was seventeen months old Miller and Jenkins separated, and Miller moved with Isabella back to Virginia. Miller petitioned the Vermont Family Court to dissolve the union and to determine parental rights and responsibilities [3] with respect to Isabella. The family court issued a temporary order on June 17, 2004, granting temporary legal and physical responsibility to Miller and setting a visitation schedule for parent-child contact between Jenkins and Isabella, including monthly visits and daily telephone contact. Other than a visit on the first weekend of the visitation schedule, Miller did not allow Jenkins to have parent-child contact either in person or by telephone.

Instead, she filed a new petition in the Circuit Court of Frederick County, Virginia, asking that court to declare her the sole parent of Isabella and to rule that Jenkins had no parental or visitation rights. On appeal from an order granting Miller's requested relief, the Virginia Court of Appeals held that by filing her petition in Vermont Miller had invoked the jurisdiction of the courts of Vermont, that Virginia courts lacked jurisdiction over her subsequent petition and were required to extend full faith and credit to the custody and visitation orders of the Vermont court. Miller-Jenkins v. Miller-Jenkins, 49 Va.App. 88, 637 S.E.2d 330, 338 (Va. App. 2006).

In June 2007 the Vermont family court ordered sole physical and legal custody of Isabella to Miller, and awarded Jenkins visitation rights. The Court warned Miller however that continued interference with the relationship between Isabella and Jenkins could warrant a modification of the custody order. See Miller-Jenkins v. Miller-Jenkins, 189 Vt. 518, 2010 VT 98, ¶ 5, 12 A.3d 768, 772 (entry order). Although Miller did comply with the visitation schedule on several occasions in the last half of 2007, by the spring of 2008 Miller renewed her defiance of the visitation orders, and was found in contempt of court multiple times. In August 2009 Jenkins moved to modify the family court order concerning parental rights and responsibilities. Miller did not attend the hearing on the motion, but filed an objection to any transfer of custody.

Before the Vermont family court ruled on Jenkins' motion, Miller left the country with Isabella on September 22, 2009. On November 20, 2009, the Vermont family court concluded that Miller had willfully interfered with Jenkins' visitation rights, and it transferred legal and physical rights and responsibilities for Isabella to Jenkins as of January 1, 2010. As far as is known however neither Isabella nor Miller have returned to this country.

II. The Criminal Investigation and Prosecution

The Government investigated Miller's disappearance with Isabella. It determined that they traveled by car from Virginia to Buffalo, New York, where they took a taxi across the border to Ontario, Canada. On September 22, 2009, Miller and Isabella flew from Toronto, Ontario to Mexico City and on to Managua, Nicaragua through El Salvador. The tickets were purchased by Defendant Timothy Miller (no relation to Lisa Miller), an Amish

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Mennonite pastor and missionary affiliated with Christian Aid Ministries (" CAM" ) living in Managua, Nicaragua.

The Government further determined that Defendant Kenneth Miller (no relation to Lisa or Timothy Miller), a Beachy Amish Mennonite pastor from Virginia, had contacted Timothy Miller through Tim Schrock, another pastor affiliated with CAM, to request Timothy's assistance in getting Lisa Miller and Isabella to Nicaragua. Timothy Miller agreed to purchase one-way plane tickets and to meet them at the airport in Managua. He took them to Jinotega, a city about two hours distant from Managua, and left them with another member of his church. Some six weeks later Lisa Miller and Isabella came to Managua, and stayed there until April, 2010, after which they returned to Jinotega.

On April 27, 2010, an arrest warrant was issued for Lisa Miller. Timothy Miller and Kenneth Miller were charged with aiding and abetting the international parental kidnapping of Isabella, in violation of 18 U.S.C. § 1204. The charge against Timothy Miller was dropped in exchange for his agreement to cooperate with the investigation and to provide testimony if needed. The case against Kenneth Miller went to trial in August 2012. On August 14, 2012, a jury returned a guilty verdict on the charge of aiding and abetting an international parental kidnapping. Kenneth Miller was sentenced on March 4, 2013 to a term of imprisonment of twenty-seven months. The sentence has been stayed pending appeal.

At trial, several witnesses provided additional details of a scheme to assist Lisa Miller to remove Isabella from the United States and to help them once they had left. Ervin Horst, a Mennonite pastor from Ontario, testified that he received a telephone call from Kenneth Miller asking if he would assist someone to leave the country by traveling to Buffalo, New York and crossing the border with her. When Horst understood that the reason for her leaving involved a custody dispute, he refused to enter the United States, but did agree to pick her up once she had crossed the border into Canada and to take her to the airport.

Horst also talked with a man identified as " Philip," who he understood was bringing Lisa Miller and Isabella from Virginia to Buffalo. Defendant Philip Zodhiates' cell phone traveled north from Virginia to Buffalo that day. Another cell phone, assigned to Defendant Response Unlimited, Inc. (" RUL" ), made a similar journey on the same day.

Defendant Andrew Yoder, field director of CAM in Managua from 2007 to October 2011, attended the Amish-Mennonite church where Timothy Miller was pastor. He testified that he became aware of Lisa Miller and Isabella and their situation shortly before they arrived in Nicaragua, in an email from Timothy Miller. He met Lisa Miller, knew where she was living, and was aware that she was using a false name and was disguised as an Amish Mennonite.

In early November 2009 Yoder notified CAM that Lisa Miller was in Nicaragua. CAM responded with instructions that he was not to be involved in helping Lisa Miller in any way. Yoder communicated to Timothy Miller that CAM could not help Lisa Miller.

Yoder and CAM remained sympathetic to her case, however. In May 2010 Timothy Miller sent Kenneth Miller Yoder's name and a Tennessee address in order for Yoder to cash a check from Kenneth Miller for $500.00 during Yoder's trip to the United States, and to bring the cash back to Nicaragua. The check was issued

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by Milmont Greenhouses, the Kenneth Miller family business. Yoder had never done business with Milmont Greenhouses, and the company did not owe him money. Yoder suspected that the cash might be for Lisa Miller. He cashed the check and delivered the cash to Timothy Miller.

III. Factual Allegations of the Amended Complaint

Plaintiffs' Amended Complaint alleges that while living in Virginia Lisa Miller joined the Keystone Baptist Church in Winchester, Virginia, and became acquainted with its pastor, Defendant Douglas Wright. At about that time she began to prevent Jenkins from seeing Isabella and to interfere with the court-ordered visitation schedule. Miller regularly discussed her custody case with Wright between 2004 and 2009.

In the spring of 2008, Lisa Miller moved from Winchester to Lynchburg, Virginia, and obtained housing, employment and a vehicle from Defendant Thomas Road Baptist Church (" TRBC" ), affiliated with Defendant Liberty University. Miller was hired as a teacher at TRBC's elementary school, Liberty Christian Academy, and Isabella was enrolled there.

In the ongoing custody and visitation dispute, Lisa Miller obtained the services of attorneys Mathew Staver and Rena Lindevaldsen of Liberty Counsel, affiliated with Liberty University School of Law and Liberty University. Defendant Linda Wall was involved in obtaining the representation, and in discussions of Lisa Miller's situation. The Amended Complaint alleges that Wall and Miller " decided and agreed as early as June of 2008 that Lisa Miller should flee with Isabella." Am. Compl. ¶ 26. After Miller and Isabella left the country, Wall publicly compared herself to Harriet Tubman and suggested she would take similar actions with regard to other children from same-sex families. Id. ¶ 41. She advised anyone with knowledge of Miller's whereabouts not to reveal it.

Wall and Lisa Miller and others, including members of TRBC, launched the Protect Isabella Coalition in the spring of 2008 to support Miller's efforts to avoid complying with court-ordered visitation. Donations were solicited and a Facebook site established. In May 2009 Miller made the acquaintance of Philip Zodhiates, the president of RUL, a direct mail marketing company specializing in Christian and conservative causes.

By the late summer of 2009, Lisa Miller and others had decided that she and Isabella would flee the country with the help of members of the Beachy Amish Mennonite Church and related ministries. On September 19, 2009, two days before she left, Lisa Miller and Isabella returned to Winchester, Virginia. Miller met her former pastor, Douglas Wright, in a parking lot to say goodbye. Miller asked him to help her dispose of some personal items. He understood from their meeting that he would not be seeing them again.

In 2009, Victoria Hyden, daughter of Philip Zodhiates, was an employee of RUL and a student at and employee of Liberty University School of Law. She had attended grade school in Stuart's Draft, Virginia, where Kenneth Miller had been a pastor. Kenneth Miller was acquainted with Philip Zodhiates and Victoria Hyden. On September 20, 2009, both Philip Zodhiates and Victoria Hyden called Lisa Miller's father for assistance in arranging a rendezvous at a Walmart parking lot where Lisa Miller abandoned her car.

Disguised as Amish Mennonites, Lisa Miller and Isabella were transported to the Canadian border by Philip Zodhiates and an employee of RUL on September 21, 2009. After their flight to Nicaragua,

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Lisa Miller and Isabella lived near or among the Amish Mennonite community, the Nicaraguan Brethren, in Nicaragua. They adopted the pseudonyms of Sarah and Lydia. They managed however to continue to communicate with members of TRBC with the assistance of Zodhiates. Since then Lisa Miller has received aid from the Amish Mennonite community, and at some point became a member of the church. The plaintiffs allege on information and belief that Zodhiates arranged to have money transferred to Lisa Miller through a phony purchase of hydrangea plants from Kenneth Miller's family business, the money having been transferred through a payroll account into a check for $500.00 to Andrew Yoder. The check was mailed to Yoder at a United States address. He cashed the check and gave the cash to Timothy Miller in Nicaragua.

The Amended Complaint alleges that Victoria Hyden subsequently solicited donations for supplies for Lisa Miller from her co-workers at the law school to enable Miller to remain outside the country. Elders at TRBC packed Miller's remaining belongings in Lynchburg, and Philip Zodhiates arranged to have them and some supplies transported to Timothy Miller in Nicaragua. Kenneth Miller arranged for Pastor Wright to dispose of Lisa Miller's belongings in Winchester.

The Amended Complaint alleges that Lisa Miller's attorneys, Staver and Lindevaldsen, respectively a dean and a professor at Liberty University School of Law, routinely advised their students that the correct course of action for a person in Lisa Miller's situation would be to engage in civil disobedience and to defy court orders. Despite Staver's acquaintance with Zodhiates, both attorneys have at all times maintained that they do not know their client's location; that she simply stopped communicating with them and disappeared. They did however proceed with the litigation of her case, citing advance instructions from Lisa Miller.

TRBC's pastor, Jonathan Falwell, is among the dozens of religious leaders who have signed the " Manhattan Declaration," a pledge to call for the church to take a stand that is anti-abortion, considers marriage to be a union solely between a man and a woman, and embraces a right to express freely one's deeply held religious convictions. The Manhattan Declaration closes with a vow not to " bend to any rule purporting to force us to bless immoral sexual partnerships, treat them as marriages or the equivalent, or refrain from proclaiming the truth, as we know it, about morality and immorality and marriage and the family." [4]

The Amended Complaint alleges that TRBC and Liberty University therefore encouraged its agents to disregard state laws governing parental rights.

Defendant Douglas Wright has moved to dismiss the complaint against him for lack of personal jurisdiction and failure to state a claim upon which relief can be granted. ECF No. 40. Defendant Kenneth Miller has moved to dismiss the complaint against him for lack of personal jurisdiction, failure to state a claim upon which relief can be granted, and improper venue. In the alternative he moves for a change of venue. ECF No. 56. Defendants Philip Zodhiates and RUL have moved to dismiss the complaint for lack of personal jurisdiction and improper venue. ECF No. 57. Defendant Andrew Yoder has moved to dismiss the complaint against him for lack

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of personal jurisdiction and failure to state a claim upon which relief can be granted. ECF No. 62. Defendant CAM has moved to dismiss for lack of personal jurisdiction and failure to state a claim upon which relief can be granted. ECF No. 63. Defendants Liberty University, TRBC and Victoria Hyden in her alleged capacity as an agent of Liberty University or TRBC have moved to dismiss for lack of personal jurisdiction, lack of venue and failure to state a claim, ECF No. 66, and have moved for a change of venue to the United States District Court for the Western District of Virginia. ECF No. 67. Defendant Linda Wall has moved to dismiss the complaint against her for lack of personal jurisdiction, improper venue and failure to state a claim upon which relief can be granted. ECF No. 109.


I. Personal Jurisdiction

On a pretrial motion to dismiss for lack of personal jurisdiction, a district court may determine the motion on the basis of affidavits alone, or it may permit discovery, or it may conduct an evidentiary hearing on the merits. Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir. 2013) (per curiam) (quoting Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981)). The showing that a plaintiff must make to defeat the motion to dismiss varies with the procedure followed. A court proceeding on the basis of affidavits assumes the truth of the plaintiffs' factual allegations for purposes of the motion and " 'construe[s] the pleadings and affidavits in the light most favorable to plaintiffs, resolving all doubts in their favor.'" Id. at 85 ( quoting S. New Eng. Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 138 (2d Cir. 2010)). In order to survive a motion to dismiss for lack of personal jurisdiction at this stage, a plaintiff must make a prima facie showing that jurisdiction exists, which must include an averment of facts that, if credited by the trier of fact, would suffice to establish jurisdiction. In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 659, 673 (2d Cir. 2013), petition for cert. filed, (Sept. 9, 2013).

In resolving issues of personal jurisdiction, the Court assesses whether the exercise of personal jurisdiction comports with the requirements of due process. See Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir. 1996). [5] " Due process requirements are satisfied when in personam jurisdiction is asserted over a nonresident corporate defendant that has 'certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.'" Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (alteration in original) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). " The due process test for personal jurisdiction has two related components the 'minimum contacts' inquiry and the 'reasonableness' inquiry." Metro. Life, 84 F.3d at 567; accord Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 164 (2d Cir. 2010).

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Personal jurisdiction may be general or specific " Specific jurisdiction exists when a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant's contacts with the forum; a court's general jurisdiction, on the other hand, is based on the defendant's general business contacts with the forum state and permits a court to exercise its power in a case where the subject matter of the suit is unrelated to those contacts." Metro. Life, 84 F.3d at 567-68 (quotation marks and citation omitted). In evaluating the strength of the contacts with the forum, a court looks to the totality of the circumstances. Chloe, 616 F.3d at 164.

A. General Jurisdiction

Plaintiffs assert they have general jurisdiction over Liberty University, CAM and RUL. " A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so 'continuous and systematic' as to render them essentially at home in the forum State." Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S.Ct. 2846, 2851, 180 L.Ed.2d 796 (2011). An appropriate forum for the exercise of general jurisdiction over a corporation will include its place of incorporation or its principal place of business, see id. at 2854, or a ...

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