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Jenkins v. Miller

United States District Court, D. Vermont

March 20, 2017

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


          William K. Sessions III District Court Judge

         1. Procedural Background

         Plaintiff Janet Jenkins (“Jenkins”), for herself and as next friend of her daughter Isabella Miller-Jenkins (“Miller-Jenkins”), brings this action against individuals and organizations that she alleges conspired with her former same-sex partner, Lisa Miller (“Miller”) to kidnap her daughter and transport her outside of the United States. Jenkins contends that Miller, fearing that courts would award Jenkins full custody over her daughter, left the country with the Defendants' aid after failing to comply with a Vermont court's orders granting Jenkins parental rights and visitation.

         This Court previously granted the Defendants' request for a stay of this civil case in light of the federal indictment of Defendant Philip Zodhiates (“Zodhiates”) and the criminal investigation of Defendant Response Unlimited, Inc. (“RUL”) on the basis of facts closely related to the claims at issue here. ECF No. 192. Although the Court did not explicitly specify how long the stay would last, the Defendants' motion granted by the Court had requested the stay “pending the resolution of the criminal proceedings [then] pending in the United States District Court for the Western District of New York.” ECF No. 172. Moreover, the Court ordered the parties to “inform the Court of the status of Zodhiates' criminal case within 14 days of the conclusion of the trial, a guilty plea, or dismissal of the charges in that case.” ECF No. 192. Zodhiates was convicted by a jury in that district on September 29, 2016, and a sentencing hearing was initially scheduled for January 30, 2017. The trial judge granted Zodhiates' motion to adjourn sentencing, and sentencing is now set for March 22, 2017. Post-trial motions have been filed and are currently pending with the Court. On October 7, 2016, Plaintiffs filed the instant motion informing the Court that Zodhiates' trial had concluded in a guilty verdict, and requesting that the Court lift its prior stay of this case. ECF No. 204.

         In addition, Plaintiffs have moved to join additional defendants connected to the legal representation of Jenkins' former same-sex partner, Lisa Miller (“Miller”).[1] In particular, they seek to join attorneys Rena Lindevaldsen, Esq. (“Lindevaldsen”) and Mathew Staver, Esq. (“Staver”), as well as Liberty Counsel, a Christian law firm with which they were affiliated when they began to represent Miller. In addition, they seek to join Liberty University, an institution that the Court had previously dismissed from the case for lack of personal jurisdiction, arguing that the evidence adduced at Zodhiates' trial and in discovery so far provides new grounds for a different jurisdictional ruling. ECF No. 204.

         Finally, the Plaintiffs seek a ruling from the Court asserting that it has specific jurisdiction over Defendant Response Unlimited, Inc. (“RUL”). Defendant RUL had previously moved to dismiss the Plaintiffs' claims against it, alleging lack of personal jurisdiction. ECF No. 57. The Court subsequently ordered the parties to proceed with jurisdictional discovery to permit it to reach a more informed decision on this question. ECF No. 115. The Plaintiffs contend that information obtained through the criminal proceedings and jurisdictional discovery suffices to show that RUL had sufficient minimum contacts with Vermont to give rise to personal jurisdiction in this forum, and request that the Court rule on this question.

         For the reasons outlined below, the Court grants Plaintiffs' motion to lift the stay of this civil case. Moreover, the Court grants Plaintiffs' motion to amend the complaint so as to join Lindevaldsen, Staver, Liberty Counsel and Liberty University. Finally, the Court finds that it has jurisdiction over Defendant RUL, and thereby denies RUL's pending motion to dismiss on this ground.

         2. New Facts Alleged in Revised Second Amended Complaint

         Plaintiffs put forth substantial additional evidence gathered through Zodhiates' criminal proceeding and in jurisdictional discovery, both in their revised pleadings, in the recitation of facts contained in their motion and reply brief, and in supporting exhibits. These facts are laid out in greater detail in the parties' filings, and will not be recited in their entirety here. However, several incidents described in the Plaintiffs' papers are worth highlighting briefly.

         First, the Plaintiffs allege that Defendant RUL had a business relationship with Liberty Counsel specifically related to Liberty Counsel's efforts to terminate Jenkins' contact with Miller-Jenkins and entitle Miller to obtain sole custody of Miller-Jenkins. In particular, RUL entered into an agreement with Liberty Counsel to raise funds for Liberty Counsel's work on behalf of Miller by developing and sending out materials on the case to conservative mailing lists. Around the time that these entities entered into this agreement in 2007, Zodhiates met with Staver and toured Liberty University and Liberty Counsel's premises. Although the parties dispute how long this business relationship continued, Plaintiffs allege that RUL employees continued to correspond over Miller's case well into the fall of 2009. In January of 2009, Zodhiates wrote to William Sidebottom, the director of communications for Liberty Counsel, with whom he had communicated regarding RUL's work with Liberty Counsel, to suggest that he had a “personal option” for Lisa Miller that the lawyers “should not or would not want to know about”. In addition, the Plaintiffs allege in their motion that as part of its work for Liberty Counsel, RUL hosted Miller and Miller-Jenkins at its offices, where its staff prayed that Jenkins' contact with Miller-Jenkins would be stopped. Finally, Plaintiffs assert that on the day that Zodhiates drove Miller to the United States border with Canada in order to flee the country, he wrote to other RUL employees stating that he was working from home on Liberty Counsel, and that other employees speculated that he was working on the Lisa Miller case.

         Furthermore, the Plaintiffs have alleged additional facts regarding Lindevaldsen's and Staver's involvement in Miller's scheme to transport Miller-Jenkins outside of the country and avoid detection by law enforcement. Specifically, they allege that Zodhiates was in touch with Lindevaldsen via his daughter, and that he asked Lindevaldsen through his daughter when others involved in the conspiracy could go to Miller's last apartment in the United States to obtain her belongings after she left the country. In addition, Jenkins alleges that Lindevaldsen deliberately misled a Vermont family court by stating that she did not know of her clients' whereabouts, when in fact she knew that her client had fled the country. Plaintiffs also allege that, in her role as a professor at Liberty University, Lindevaldsen essentially espoused the notion that Miller should commit civil disobedience rather than comply with a Vermont court's orders granting her former same-sex partner parental rights and full custody of Miller-Jenkins. Furthermore, Plaintiffs assert that Zodhiates was in contact with both Lindevaldsen and Staver on the day that he drove Miller to the border in order to flee the country. Finally, Plaintiffs contend that Staver was Lindevaldsen's boss and supervisor during the relevant time period, both at Liberty Counsel and Liberty University, and specifically served as co-counsel to Miller alongside Lindevaldsen in Miller's family court litigation.


         1. Lifting the stay on the case

         This Court has broad discretion in deciding whether to issue or extend a stay, and must exercise its “studied judgment, ” weigh “competing interests[, ] and maintain an even balance” in doing so. Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 96-97, 99 (2d Cir. 2012) (“[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort.”). Nevertheless, staying a civil case until the conclusion of a parallel criminal prosecution “has been characterized as an extraordinary remedy, ” id. at 98, and a criminal defendant has “no absolute right to a stay of civil proceedings pending the outcome of criminal proceedings.” Guggenheim Capital, LLC v. Birnbaum, 722 F.3d 444, 453-54 (2d Cir. 2013) (internal quotation omitted); see also Gen. Dynamics Corp. v. Selb. Mfg. Co., 481 F.2d 1204, 1213 (8th Cir. 1973) (noting that protection of the rights of a defendant in a criminal case “does not mandate a complete disregard for the rights of civil litigants). The Second Circuit has embraced a six-factor test for courts to consider as a “rough guide” in its exercise of this discretion. Louis Vuitton, 676 F.3d at 99. Thus, as this Court previously noted, it should look to:

1) the extent to which the issues in the criminal case overlap with those presented in the civil case; 2) the status of the case, including whether the defendants have been indicted; 3) the private interests of the plaintiffs in proceeding expeditiously weighed against the prejudice to plaintiffs caused by the delay; 4) the private interests of and burden on the defendants; 5) the interests of the courts; and 6) the public interest.

Id. (citing Trs. of Plumbers & Pipefitters Nat'l Pension Fund, 886 F.Supp. 1134, 1139 (S.D.N.Y. 1995).

         Here, there is no question that the issues in the criminal case, which center on Zodhiates' assistance to Miller in escaping the country with Miller-Jenkins in order to avoid complying with a Vermont court's custody orders, substantially overlap with the allegations in this civil case, as required by the first factor. In assessing the second factor, courts typically look to whether an indictment has been issued, in order to avoid giving weight to mere speculation that a criminal proceeding could result from a defendant's testimony. See, e.g., Id. at 1139 (“A stay of a civil case is most appropriate where a party to the civil case has already been indicted for the same conduct”); Hicks v. City of New York, 268 F.Supp.2d 238, 242 (E.D.N.Y. 2003) (“[T]he strongest argument for granting a stay is where a party is under criminal indictment”). However, the existence of an indictment itself does not weigh in favor of granting a stay where the case has already been tried. Chartis Prop. Cas. Co. v. Huguely, No. DKC 13-1479, 2013 WL 5634266, at *3 (D. Md. Oct. 15, 2013) (“Defendant is correct that courts are loath to stay a civil case when a criminal case is in the pre-indictment stage. But while this case is post-indictment, it is also post-trial, post-verdict, and post-sentencing, and currently on appeal. . . . Balancing the posture of the case weighs slightly against imposition of a stay.”).

         To be sure, as the Defendants posit here, a defendant is entitled to assert his Fifth Amendment privilege at sentencing, on appeal and at a potential re-trial. See Mitchell v. United States, 526 U.S. 314, 327 (1999); United States v. Duchi, 944 F.2d 391, 394 (8th Cir. 1991) (“the Fifth Amendment right not to testify concerning transactions for which one has been convicted continues until the time for appeal has expired or until the conviction has been affirmed on appeal”); United States v. Kennedy, 372 F.3d 686, 691-692 (4th Cir. 2004) (“Because any post-conviction evidence could be used against a defendant if his conviction were to be overturned, the risk of coerced self-incrimination remains until the conviction has been affirmed on appeal.”). Thus, “there is no question that [the defendant's] Fifth Amendment rights are implicated” when a civil case unfolds alongside a criminal case, even on appeal. Sec. & Exch. Comm'n v. Braslau, No. 14-CV-01290-ODW, 2015 WL 9591482, at *3 (C.D. Cal. Dec. 29, 2015). Nor do the Plaintiffs here contest that they are. The question “turns upon the extent to which his Fifth Amendment rights are implicated. Id. Since “[a] defendant has no absolute right not to be forced to choose between testifying in a civil matter and asserting his Fifth Amendment privilege, ” courts evaluate the likelihood that asserting the privilege in the civil case, and risking an adverse inference as a consequence, will hurt the defendant's case. Louis Vuitton, 676 F.3d at 98-100. Thus, while there is no clear standard that dictates when the constitutional privilege necessitates a stay, “a plausible constitutional argument would be presented only if, at a minimum, denying a stay would cause substantial prejudice to the defendant.” Guggenheim Capital, 722 F.3d 453 (citing Louis Vuitton, 676 F.3d 100) (internal quotation omitted).

         In practice, courts evaluating a case after a defendant has been convicted have typically given less weight to the burden to a defendant of proceeding with a civil case than they would before the trial, even when the defendant may assert a Fifth Amendment privilege during the civil proceeding. For example, in In re Terrorist Attacks on Sept. 11, 2001, No. 03-MDL-1570-GBD-FM, 2011 WL 5913526, at *5 (S.D.N.Y. Nov. 22, 2011), the court noted that “the status of a defendant's criminal case weighs strongly against granting a stay when the defendant has already been tried, convicted and sentenced.” (citing Sparkman v. Thompson, No. 08-01-KKC, 2009 WL 1941907, at *2 (E.D.Ky. July 6, 2009)). Relying on the example from the Eastern District of Kentucky, the Southern District of New York in that case also noted that since the defendant had already challenged the government's case at trial and was able to ascertain its theories of guilt, he would be better positioned to avoid making incriminating statements if his civil case proceeded. Similarly, since the government already assembled the evidence needed for a conviction, the defendant would have “only a minimal concern that civil discovery will aid the criminal prosecution.” Id. Finally, the court looked to the theories on which the defendant had challenged his conviction and concluded that discovery in the civil case would be unlikely to implicate the defendant's right against self-incrimination. Id; see also Gen. Dynamics Corp., 481 F.2d at 1215 (pointing out that although defendants had challenged their convictions on appeal, neither had attacked the sufficiency of the evidence to support a finding of guilt).

         In addition, courts weigh the likelihood that a conviction will be reversed on appeal and that a new trial will be granted in deciding whether to stay a civil case at this late stage. Id. (noting that it was far from clear that the defendant's conviction in that case would be reversed by the Circuit court, or that a retrial would be granted); Sec. & Exch. Comm'n, 2015 WL 9591482, at *3 (denying stay of civil proceeding where “the possibility of a retrial appears remote” because the Court presiding over the defendant's trial had noted that his appeal does not raise any “substantial question of law or fact likely to result in reversal [or] an order for a new trial.”); Taylor v. Ron's Liquor Inc., No. C-10-00694-SI, 2011 WL 499944, at *3-4 (N.D. Cal., Feb. 8, 2011) (holding that stay was not warranted where “the possibility of a retrial appear[ed] remote” and the defendant did not “state that he [was] making any argument on appeal that would entitle him to a new trial if he won”). When the likelihood is low, courts have favored the imposition of other measures to protect a defendant's Fifth Amendment rights if they were to arise in the future. Id.

         Here, the factors typically considered by courts at the post-conviction stage weigh against maintaining a stay once Zodhiates has been sentenced. On February 14, 2017, the court presiding over Zodhiates' criminal case denied his motion for a judgment of acquittal and motion for a new trial. A brief review of the attached post-trial briefing substantiates the Plaintiffs' view that Zodhiates' “claims of trial court error appear weak if not entirely frivolous.” As such, the likelihood of success on appeal also appears remote. Finally, sentencing is set to occur in two days, and will therefore likely have concluded by the time discovery in this case gets underway.

         Even if a new trial were granted pursuant to Fed. R. Crim. P. 33 or on appeal, the bases for the retrial do not appear to implicate his Fifth Amendment rights in this civil proceeding, but rather the rights of other Defendants. According to the government brief, Zodhiates has requested a new trial on the basis of (1) the Court's denial of his motion to suppress RUL phone bills; (2) the Court's denial of his offer to introduce specific instances of good conduct in support of his character; (3) a legal error in the jury instructions regarding parental rights; and (4) the Court's allegedly improper questioning of a witness. Only the first of these grounds raises potential conflicts for the civil litigation. If the RUL phone bills indicating Zodhiates' location were to be excluded in a future retrial, for example, they may be discovered from RUL through this litigation and therefore introduced into the criminal proceeding regardless. In fact, the only prejudice that the Defendants point to in their response brief is a potential prejudice to RUL that would arise if Zodhiates invoked the Fifth Amendment rather than provided evidence that would weaken the arguments for a finding of specific jurisdiction against RUL. Nothing in this opinion precludes Zodhiates from pursuing this strategy and continuing to assert the Fifth Amendment in this civil case or at later stages of the criminal proceeding. These forms of harm, however, do not rise to the level of a constitutional argument because they are not being asserted on behalf of a non-corporate defendant. See Taylor, 2011 WL 499944, at *4 (finding that a stay was not warranted where the “primary focus of the motion to stay appears to be the possible prejudice to the other defendants in this civil action” and “these other defendants are not attempting to exercise a constitutional privilege”). To the extent that discovery of RUL phone records would harm Zodhiates in a re-trial if an appeals court were to reverse the trial judge's ruling on the suppression claim, this Court could simply permit RUL to produce these documents subject to a protective order upon a motion by the Defendants. Plaintiffs have indicated that they are amenable to such an order on this or other specific issues that may arise.

         In addition to bearing on the second and fourth factors (regarding the status of the case and the Defendants' interests) of the six-factor test identified in Louis Vuitton, the conclusion of the trial also touches on the Court's analysis of the fifth factor (its own interest). Courts deciding whether to stay a case after an indictment has been issued have noted that doing so “will likely narrow the issues before the court, and prevent both parties from performing unnecessarily duplicative work.” Harris v. Nassau Cty., No. 13-CV-4728-NGG-RML, 2014 WL 3491286, at *4 (E.D.N.Y. July 11, 2014) (citing Crawford & Sons, 298 F.Supp.2d 317, 319 (E.D.N.Y. 2004) (finding that a stay would “avoid duplication” as a “conviction or acquittal in the criminal action may negate or buttress some or all of the plaintiffs' claims” and provide the parties with the benefit of “the transcript and rulings in the criminal action”) and Trs. of Plumbers, 886 F.Supp. at 1140 (finding that the criminal action “may reduce the scope of discovery in the civil case and the evidence gathered during the criminal prosecution can later be used in the civil action”)). Having already incurred the benefits to judicial efficiency that stem from allowing the criminal case to go to trial before the civil case advances, this Court's interests will weigh in favor of allowing the civil case to proceed once Zodhiates has been sentenced.

         Finally, the Supreme Court's ruling on same-sex partnerships and family rights since this Court's last opinion granting a stay touches on both the public's interest and the Plaintiffs' interests in this litigation and weighs in favor of lifting the stay under the third and sixth factors. In Obergefell v. Hodges, 135 S.Ct. 2584, 2604, 192 L.Ed.2d 609 (2015), the Court held that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.” In doing so, the Court highlighted the importance of the judiciary's role in protecting fundamental individual rights even in the midst of democratic political deliberation on contentious and sensitive issues. Id. at 2605-2606. Finally, the Court made clear that legal questions that affect the stability of same-sex families require particularly urgent action. Id. at 2606 (“The petitioners' stories make clear the urgency of the issue they present to the Court. . . . April DeBoer and Jayne Rowse now ask whether Michigan may continue to deny them the certainty and stability all mothers desire to protect their children, and for them and their children the childhood years will pass all too soon.”). Here, Jenkins alleges deprivations of her rights stemming from her same-sex union by individuals who explicitly advocated against legal respect for those rights. Having received clear confirmation from the Supreme Court that the Constitution protects Jenkins' rights, and that courts must act as stewards of those rights in times of controversy, the public and Jenkins have an interest in ensuring that these claims are resolved expeditiously.

         In short, all of the factors analyzed above weigh in favor of lifting the stay once the trial and sentencing stages of Zodhiates' criminal case have been completed. Thus, the Court orders that the stay be lifted on March 23, 2017 or on the date Zodhiatez is sentenced, whichever occurs later.[2] Zodhiates may assert the Fifth Amendment ...

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