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Jenkins v. Miller

United States District Court, D. Vermont

September 29, 2017

JANET JENKINS, for herself and as next friend of ISABELLA MILLER-JENKINS, a/k/a ISABELLA MILLER Plaintiffs,
v.
KENNETH L. MILLER, LISA ANN MILLER f/k/a LISA MILLER-JENKINS, TIMOTHY D. MILLER, RESPONSE UNLIMITED, INC. for itself and as an agent of LIBERTY COUNSEL, LLC and LIBERTY UNIVERSITY, PHILIP ZODHIATES, individually and as an agent for RESPONSE UNLIMITED, INC., VICTORIA HYDEN, f/k/a VICTORIA ZODHIATES, individually and as an Agent for RESPONSE UNLIMITED, INC., And LIBERTY UNIVERSITY, LINDA M. WALL, RENA M. LINDEVALDSEN, Individually and as an agent of LIBERTY COUNSEL, LLC AND LIBERTY UNIVERSITY, MATHEW D. STAVER, Individually and as an agent of LIBERTY COUNSEL, LLC AND LIBERTY UNIVERSITY, LIBERTY COUNSEL, LLC, AND LIBERTY UNIVERSITY Defendants.

          OPINION AND ORDER

          William K. Sessions III, United States District Court Judge

         I. Background

         Plaintiff Janet Jenkins (“Jenkins”), for herself and as next friend of her daughter Isabella Miller-Jenkins (“Isabella”), brings this action against individuals and organizations that she alleges conspired with her former same-sex partner, Lisa Miller (“Miller”) to kidnap and transport her daughter outside of the United States. After Philip Zodhiates, a Defendant in this civil case, was indicted in the Western District of New York on the basis of facts closely related to the claims at issue here, this Court granted Defendants' motion to stay this civil case pending the resolution of that criminal proceeding. ECF 192. On March 20, 2017, after Zodhiates was tried and convicted, the Court issued an order granting Plaintiffs' motion to lift the stay of the civil case on the date of Zodhiates' sentencing or March 23, 2017, whichever occurred later. ECF 220. Zodhiates was sentenced at a hearing on March 22, 2017, and judgment was entered in his criminal case the following day. See United States v. Philip Zodhiates, Case No. 1:14-cr-175-rja-jjm, ECF 183. Plaintiffs filed a revised second amended complaint (“amended complaint”) in this case on May 4, 2017, bringing two claims against all Defendants. ECF 223.

         Count One of Plaintiffs' complaint, entitled “intentional tort of kidnapping, ” alleges that Lisa Miller intentionally kidnapped Isabella in order to interfere with Jenkins' lawful custody of her between the dates of September 25, 2009 and September 27, 2009. In addition, Plaintiffs allege in that count that Miller held Isabella in Nicaragua to interfere with Jenkins' lawful custody of Isabella between January 1, 2010 and the present, and to thwart the equal protection afforded Plaintiffs under Vermont law. Finally, Count One alleges that Miller conspired with, and was aided and abetted by, Philip Zodhiates (“Zodhiates”) and Victoria Hyden (“Hyden”), [1] both individually and as agents or officers of Response Unlimited, Inc. (“RUL”), as well as RUL, Liberty Counsel, LLC, Liberty University, Kenneth Miller, Timothy Miller, Linda Wall (“Wall”), and (both individually and as agents of both Liberty University and Liberty Counsel) Rena Lindevaldsen (“Lindevaldsen”) and Mathew Staver (“Staver”).

         Count Two of the complaint, entitled “Conspiracy to Violate Civil Rights, ” alleges that Lisa Miller conspired with Liberty University, Liberty Counsel, RUL, Zodhiates, individually and as an agent or officer of RUL, Hyden, individually and as an agent or officer of RUL and Liberty University, Kenneth Miller, Timothy Miller, Wall, Lindevaldsen and Staver, individually and as agents of Liberty Counsel and Liberty University, to violate Plaintiffs' civil rights based on discriminatory animus against same-sex couples and against Jenkins due to sexual orientation, to prevent the courts of Vermont and Virginia from securing to them equal protection of the law, and to prevent or hinder state authorities from securing equal protection of the law to same-sex couples. Plaintiffs seek damages for Jenkins' alleged extreme emotional distress and loss of her daughter's companionship, legal fees and lost business resulting from the obligations that arose in pursuing a legal remedy for the loss of her daughter. They also seek damages for Isabella's emotional distress arising from her abduction, her loss of emotional and financial support from her mother, as well as the loss of child support payments, educational, medical and dental care, and the support of her extended family, all of which is alleged to result in an injury to Isabella's property and future business and employment.

         Defendants Wall, as well as Liberty Counsel, Staver and Lindevaldsen, subsequently filed two, separate special motions to strike Plaintiffs' claims on the basis of 12 V.S.A. § 1041, Vermont's “anti-SLAPP” statute. ECF 239, 243.[2] In addition, Wall, Liberty Counsel, Staver and Lindevaldsen, Liberty University, and Zodhiates, Hyden and RUL filed four, separate motions to dismiss Plaintiffs' amended complaint. ECF 227, 228, 237, 238, 240, 242. Defendants assert that Plaintiffs' amended complaint fails because: (1) this Court lacks personal jurisdiction over some or all of them, (2) venue is improper in Vermont; (3) the complaint fails to state a claim upon which relief can be granted, since Plaintiffs have not sufficiently pled the elements of a claim for custodial interference, conspiracy or aiding and abetting under Vermont law, the elements of a Section 1985 conspiracy claim or, where relevant, facts establishing vicarious liability; (4) as applied to some Defendants in this case, Section 1985 violates the First Amendment of the U.S. Constitution; and (5) Plaintiffs' claims against some Defendants are time-barred by the relevant statutes of limitation. Id. For the foregoing reasons, the Court grants Defendants' motions only with respect to Isabella's claim under Count One, Liberty University's vicarious liability under both counts for Staver's acts, and for lack of personal jurisdiction over Staver. The Court otherwise denies Defendants' motions to dismiss and motions to strike.

         II. Factual allegations

         i. Allegations in the amended complaint

         Isabella Miller-Jenkins is the daughter of Lisa Miller and Janet Jenkins. Although Lisa Miller moved to Virginia with Isabella when she was seventeen months old, courts in Virginia and Vermont ruled that the family court of Rutland, Vermont has exclusive and continuing jurisdiction over custody determinations regarding Isabella. After petitioning for the dissolution of her civil union with Jenkins in 2004, Miller “asserted the belief that homosexuality was sinful and that Isabella should be shielded from exposure to the ‘lifestyle.'” ECF 223, p. 4. She began to deny court-ordered parent-child contact between Isabella and Jenkins in 2004, and was found in contempt that year. In 2004, Lisa Miller was accepted for representation by “lawyers working at Liberty University and its related law firm, Liberty Counsel, LLC.” Id. at 5.

         In 2007, the Rutland family court awarded Lisa Miller legal and physical parental rights and responsibilities over Isabella, and ordered that Jenkins be entitled to custody during holidays, vacations and some weekends. Lisa Miller initially complied with these orders in 2007. However, in 2008, after Virginia and Vermont courts affirmed Jenkins' parental rights, she defied the visitation orders and began to threaten future acts of custodial interference. By June 2008, Lisa Miller “decided and agreed” with her friend Linda Wall, a member of her church, that she should flee with Isabella. In May of 2009, Jenkins filed a Motion to Modify Parental Rights and Responsibilities in the Vermont family court, requesting that the court transfer custody of Isabella to her due to Lisa's continued interference with court ordered visitation. By late summer of 2009, Lisa Miller and her “co-conspirators had devised a plan to kidnap Isabella and avoid detection by infiltrating the Beachy Amish-Mennonite Christian Brotherhood (“Brotherhood”) to enable her abduction of Isabella.” Id. at 6. On September 4, 2009, after Lisa Miller was held in contempt of the Vermont court's orders by a Virginia court, the Vermont family court issued an interim order requiring contact between Jenkins and Isabella from September 25 to 27 of that year. On September 21, 2009, however, Philip Zodhiates and at least one other RUL employee transported Lisa Miller and Isabella to the Canadian border. The day before, Zodhiates and his daughter had communicated with Lisa's father to assist in arranging for her transportation. Disguised as Amish-Mennonites, Miller and her daughter crossed the border at the Rainbow Bridge in a taxi on September 22, 2009. There, at Kenneth Miller's request, a member of the Brotherhood transported Lisa Miller and Isabella to the Toronto airport, where they boarded a flight to Nicaragua.

         Timothy Miller, another member of the Brotherhood who had purchased Lisa and Isabella's plane tickets, met Lisa and her child in Nicaragua. Isabella and Lisa Miller lived among the Beachy Amish-Mennonite community in Nicaragua thereafter in order to avoid detection by United States authorities. In November of 2009, Rena Lindevaldsen and Linda Wall packed up Lisa Miller's personal belongings in two bags. Zodhiates picked these up and arranged to send them to Nicaragua through his son's school teacher, who was traveling there and who delivered the bags to Timothy Miller. Victoria Hyden also facilitated Lisa Miller's communication with Rena Lindevaldsen after that point “in an attempt to help her duck service of contempt and enforcement pleadings filed by Janet Jenkins.” Id. at 8.

         Needless to say, Lisa Miller did not return Isabella for the court-ordered visitation between September 25 and 27, 2009. On November 20, 2009, the Vermont family court issued an order transferring legal and physical parental rights and responsibilities for Isabella to Jenkins beginning on January 1, 2010. When Jenkins arranged for a welfare check in December of that year, police found that nobody was home. Jenkins informed the Vermont family court that Lisa Miller seemed to be missing on December 18, 2009.

         The amended complaint alleges that certain defendants took action to assist Lisa Miller even after she left the country. For example, on the day that the Vermont court ordered a transfer of custody, Kenneth Miller called Lisa Miller's pastor in Virginia to seek assistance in disposing of Lisa Miller's belongings. Moreover, since December 2009, Staver and Lindevaldsen have maintained that they did not know of their client's location after she allegedly stopped communicating with them and disappeared, making representations to this effect to courts in Vermont and Virginia. The amended complaint asserts that these statements were “demonstrably false” and that the lawyers “misled courts in two states to delay contempt proceedings aimed at locating Isabella.” Id. at 10-11. The pleading also states that Staver and Lindevaldsen “knew the identities of certain co-conspirators and solicited donations and retrieved items to support the crime.” Id. at 11. Furthermore, in 2010, Zodhiates allegedly transferred cash through Kenneth Miller to Andrew Yoder, who would in turn deliver it to Timothy Miller. Likewise, Wall sought donations for Lisa Miller after January 2010. Finally, Lisa Miller received additional assistance, including employment, from Timothy Miller since she began living with the Brotherhood in 2009.

         In addition to this course of events, the amended complaint alleges facts tending to show that the co-defendants in this case agreed with and supported Lisa Miller's conduct, as well as the ethical and religious motivations behind her decisions. As noted above, the complaint makes conclusory statements that “Wall and Lisa Miller decided and agreed as early as June of 2008 that Lisa Miller should flee with Isabella, ” and that “Lisa Miller and her co-conspirators had devised a plan to kidnap Isabella and avoid detection by infiltrating the Beachy Amish-Mennonite Christian Brotherhood ... to enable her abduction of Isabella.” Id. at 5-6. Moreover, Lindevaldsen allegedly wrote a book about Lisa Miller's legal battle, which was required reading for Liberty University School of Law's incoming students. Staver and Lindevaldsen held press conferences with Lisa after the Virginia court held her in contempt and fined her for missed contact between Jenkins and Isabella. Wall organized a coalition with an online social media presence to endorse Lisa's objectives and provide support for her cause both before and after she left the United States. Wall endorsed Miller's decision to flee with Isabella on television in 2010, and suggested that she would take similar actions with regard to other children from same-sex families. She also instructed law enforcement via phone that they should not search for Lisa Miller, and advised the public on Facebook that they should not disclose Lisa and Isabella's whereabouts if they found them. Finally, the complaint alleges that Lisa Miller stated in the months following her flight to Nicaragua that Liberty Counsel had advised her that it would be in her best interests to disappear.

         ii. Factual representations in Defendants' affidavits

         Defendants Lindevaldsen, Staver and Liberty Counsel's motion to strike makes extensive cross-references to the arguments raised in their motions to dismiss, which in turn rely on factual representations set forth in these defendants' affidavits. ECF 238-1. Likewise, Defendant Wall's motion to strike references publically available, online sources to further detail the nature of Wall's advocacy for Lisa Miller, as well as her own affidavit.

         In her affidavit, Wall denied ever telling or suggesting to Lisa Miller that she disobey any court orders, or that Lisa Miller ever told her that she was intending to or would leave the United States in order to avoid enforcement of court orders. ECF 109-1. Instead, Wall represented that she solicited donations during the 2008-2009 school year to help Lisa Miller “defray her travel costs to Vermont related to child custody issues concerning Isabella.” Id. at 3. However, Wall stated that she has not communicated with Lisa Miller since September of 2009, and that she has not asked people to donate money to Lisa Miller subsequent to June 2009. Id. Nor, according to Wall, did she herself give or ask others to give money or anything else of value to Lisa Miller for the purpose of aiding Lisa Miller to leave the United States. Likewise, Wall asserts that she has not given money or anything of value to anyone other than Lisa Miller for the benefit of Lisa or Isabella since the two left the United States.

         In addition, Wall denied any associations with the Thomas Road Baptist Church in Lynchburg, Virginia alleged in the complaint, and denied knowing or having contact with Timothy Miller, Andrew Yoder, Philip Zodhiates, or Victoria Hyden. She denied knowing or communicating with Kenneth Miller, except to send him a card of encouragement when he was in jail in Vermont awaiting trial on criminal charges. Finally, Wall stated that she was never the administrator or webmaster of the Protect Isabella Coalition website and never added content to that website.

         Lindevaldsen denied many facts asserted in the amended complaint in her affidavits. ECF 213-2, 54-5. In particular, Lindevaldsen stated that she never encouraged Lisa Miller or any of the other named defendants to not allow Isabella to have contact with Janet Jenkins, and that she never counseled Lisa Miller to disobey court orders or to flee from the state, the country or beyond the reach of any court or law enforcement. Nor did she have knowledge of anyone else that counseled, encouraged or assisted her in fleeing, or have prior knowledge that Lisa Miller would flee. Rather, according to Lindevaldsen, Lisa Miller stopped all communication with her in September 2009. Lindevaldsen also denied receiving any email from Victoria Hyden or discussing Lisa Miller with Hyden. Likewise, she asserted that she did not receive a call from Zodhiates on September 22, 2009, after he allegedly drove Lisa Miller and Isabella to the Canadian border, or speak to him about the legality of removing Isabella from the country. Finally, Lindevaldsen denied speaking with Wall by telephone on November 12, 2009 about removing Lisa Miller's belongings from her apartment, and represented that she never visited Lisa Miller's apartment and never packed up her personal belongings in November 2009 or at any other time.

         Similarly, Staver submitted an affidavit denying most of the facts concerning his involvement in Isabella's alleged kidnapping in the amended complaint. ECF 213-1. Staver asserted that he had no prior knowledge of Lisa Miller's intent or plan to leave the country or knowledge of anyone who may have assisted or participated in her departure, and that he did not counsel or suggest to Lisa Miller or others that she should “disappear.” Rather, he asserted that he always counseled her to obey all court orders. In this sense, he argued that he never “misled courts” to “delay contempt proceedings aimed at locating Isabella, ” as the amended complaint states. Staver stated that he was not aware of any email or other communication in which Zodhiates mentioned a “personal option” for Lisa Miller to Mr. Sidebottom, who was then employed by Liberty Counsel. He also represented that he never received a call from Zodhiates or anyone associated with him on September 22, 2009, and that he does not know of anyone who received such a call. Nor did he ever discuss disobeying any court order or the legality of removing Isabella from the country with Zodhiates. Finally, he denies ever having any communications with Victoria Hyden regarding Lisa Miller or anything relating to her.

         III. Standard of Review

         To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Thus, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Id. at 679.

         Defendants in this case have challenged the facts alleged in the amended complaint through signed affidavits. Although these may be considered for purposes of a motion to strike and motions to dismiss pursuant to other provisions of Rule 12 of the Federal Rules of Civil Procedure, the Court may not consider them for purposes of Defendants' motions to dismiss for failure to state a claim. See 12 V.S.A. § 1041 (for purposes of a motion to strike, “the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.”); Seemann v. U.S. Postal Serv., No. 2:11-CV-206, 2012 WL 1999847, at *1 (D. Vt. June 4, 2012) (“In deciding a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), however, the Court may resolve disputed factual issues by reference to evidence outside the pleadings, including affidavits.”) (emphasis in original) (citation omitted); Orkins v. Dumas, No. 1:09-CV-00237-JGM, 2010 WL 4063167, at *1 (D. Vt. Oct. 15, 2010) (“When deciding a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the Court's function is not to weigh the evidence that might be presented at trial but merely to determine whether the [pleading] itself is legally sufficient.”) (internal citation omitted).

         However, “a pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Iqbal, 566 U.S. at 678 (internal quotation omitted). Thus, in considering a motion to dismiss, a court may proceed by first “identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth, ” and then determining whether the remaining, well-pleaded factual allegations, would plausibly give rise to an entitlement to relief. Id.[3]

         IV. Discussion

         A. Motion to Dismiss Count One

         i. Introduction

         In three separate motions, Defendants Zodhiates, Hyden and RUL, Linda Wall, and Liberty Counsel, Staver and Lindevaldsen (hereinafter “Liberty Counsel Defendants, ” because of their joint motion) move to dismiss Count One of Plaintiffs' amended complaint, which alleges “the intentional tort of kidnapping, ” as well as conspiracy and aiding and abetting in the tort. This Court previously addressed the validity of the same claim, concluding that although the Vermont Supreme Court had not yet had occasion to determine whether an intentional tort of kidnapping would be recognized in the state, that court would likely agree that a claim of custodial interference consistent with Section 700 of the Restatement (Second) of Torts would be viable here.

         As with their other challenges, Defendants' arguments against Plaintiffs' kidnapping count overlap. First, Defendants Liberty Counsel, Staver and Lindevaldsen contend that “this Court's previous prediction that Vermont courts would adopt a Section 700 claim was and remains incorrect.” ECF 240, p. 80. Linda Wall sets forth a similar argument, alleging that “at a minimum, given the uncertainty of Vermont's willingness to recognize such a cause of action, this Court should certify the question to the Vermont Supreme Court rather than hastily prognosticate its validity.” ECF 242-1, p. 4. Next, the Liberty Counsel Defendants argue that even if such a claim existed, Jenkins cannot bring that claim against a custodial parent with superior custodial rights, and as such cannot recover for conduct occurring prior to January 1, 2010. They contend that Jenkins failed to plead that any of them engaged in wrongful conduct after that time, an omission which they claim “irreparably destroys her custodial interference claim against these defendants.” ECF 240, p. 90. Wall sets forth an identical argument, citing her own affidavit for the notion that she, also, was innocent of wrongful conduct occurring after January 1, 2010. Zodhiates, Hyden and RUL reiterate this argument in their motion, although they do not limit their assertion in time.

         Moreover, Wall argues that Jenkins' kidnapping claim on behalf of Isabella fails because that action would attach only to a parent, not a minor child. Likewise, the Liberty Counsel Defendants contend that Isabella has no standing to pursue a custodial interference claim.

         In addition, Defendants assert that the pleadings fail to sufficiently satisfy the elements of conspiracy or aiding and abetting, independently of whether Plaintiffs could make out a claim for custodial interference. Zodhiates, Hyden and RUL argue that while this Court previously determined that Plaintiffs could raise a claim for custodial interference under Vermont law, it “did not address the issue of whether it was possible to have a conspiracy to interfere with custodial rights.” ECF 227, p. 10. They contend that such a claim, to the extent it exists in Vermont, requires Defendants to have done something causing damage to Plaintiffs which is “unlawful in itself, ” and that, since Lisa Miller's actions were not unlawful, the conspiracy claim cannot stand. ECF 227, p. 10. The Liberty Counsel Defendants make the same argument as applied to their own conduct, and also assert that Jenkins has failed to plead the existence of an agreement that involves them. Finally, they argue that Jenkins has failed to state a claim for aiding and abetting, because she failed to plead that (1) these Defendants committed any tortious act as part of a common design or agreement; (2) they knew of Lisa Miller's alleged actions or provided substantial assistance to Lisa Miller for her alleged actions; and (3) these Defendants' actions separately constituted tortious activity. The Court will address each of these arguments in turn.

         ii. Analysis

         1. Existence of custodial interference claim

         In ruling upon the validity of Plaintiffs' kidnapping claim in October of 2013, this Court previously stated that “it has long been the law in Vermont ... that a parent may maintain an action for wrongful interference with ‘the custody, control, and services of [a] minor child.'” See ECF 115, p. 40-41 (citing Biondi v. Haselton, 134 A. 606 (Vt. 1926); Schuppin v. Unification Church, 435 F.Supp. 603, 608 (D. Vt. 1977)). In this sense, the Court found that Section 700 of the Restatement merely tracked settled Vermont law, and predicted that the Vermont Supreme Court would agree were it presented with the same question.

         To challenge the continued validity of this holding, Liberty Counsel Defendants point to three out-of-state cases in which other states' courts declined to recognize a custodial interference claim. See ECF 240, pp. 81-83 (citing Zaharias v. Gammill, 844 P.2d 137 (Okl. 1992); Larson v. Dunn, 460 N.W.2d 39 (Minn. 1990); Whitehorse v. Critchfield, 494 N.E.2d 743 (Ill.App.Ct. 1986)). In each of these cases, state courts highlighted the need to reduce litigation between parents with unequal custody over their children in order to protect those children's best interests. Defendants argue that since Vermont law also recognizes that “the best interest of the children should be paramount, ” and have noted that hostile custody battles could harm children, “it is more likely that Vermont Courts would reject creation of such a new tort based on the same premises as Illinois, Minnesota and Oklahoma.” Id. at 84. However, Defendants' argument ignores the line of state court decisions that have adopted the tort by pointing to the very same policy considerations as those that were upheld in Zaharias, Larson and Whitehorse. For example, in the more recent case of Stone v. Wall, 734 So.2d 1038, 1046-47 (Fla. 1999), the Florida Supreme Court examined the best interests of the child as a competing policy consideration, ultimately holding that this factor weighed in favor of recognizing the tort. The Court found that “[i]t is obviously in the best interests of children to be returned promptly to their legal custodians, ” and that child kidnapping “has the potential for causing far greater harm to the children than litigation.” Id. Given the directly opposite interpretations of how the best interest of the child standard would weigh on this determination, the mere fact that Vermont has upheld this standard in other contexts does not in itself counsel against recognizing the tort of interference with parental rights.

         Next, Defendants also argue that Vermont's recognition of certain causes of action for custodial parents in these circumstances militates against the expansion of that legal arsenal. As in other states, Vermont's criminal statutes proscribe kidnapping and custodial interference. See 13 V.S.A. §§ 2405; 2451. The existence of alternative legal remedies, however, could weigh either against or in favor of recognizing the tort. In the three cases Defendants point to, state courts took note of alternative remedies, both civil and criminal, which might be available to parents in these circumstances as reason not to adopt the tort. See Zaharias v. Gammill, 844 P.2d at 138-140 (noting that “Oklahoma already recognizes a cause of action in the parent or legal guardian of a child for the abduction or enticement of that child, ” and thus that “the tort of interference with custodial relations would not enhance the scheme of family law in Oklahoma.”); Larson v. Dunn, 460 N.W.2d at 46 (Minn. 1990) (“The law in Minnesota already provides redress for a custodial parent in such a situation.”).

         However, other states have embraced a contrary logic. In Stone v. Wall, for example, the Supreme Court of Florida reasoned that since the tort of intentional interference did not conflict with alternative legal remedies, such remedies did not preclude the court from recognizing the tort. See Stone v. Wall, 734 So.2d at 1044-1045. Similarly, in Kessel v. Leavitt, the Supreme Court of West Virginia found that the criminal proscription against interfering with custodial rights provided a rationale to recognize that tort, implying that the criminal provision embodied an expression of the state's public policy against such conduct. 511 S.E.2d 720, 764 ( W.Va. 1998) (citing In D & D Fuller CATV Construction, Inc. v. Pace, 780 P.2d 520 (Colo. 1989) (en banc) as an example of a state basing its adoption of the tort of interference with parental or custodial relationships, in part, upon the fact that it had also criminalized custodial interference). Thus, while under one line of cases the criminal proscription of this conduct in Vermont would undercut the need to create a separate civil cause of action, another line of jurisprudence suggests that the criminal provisions create policy rationale for the interference tort. In short, the relevance of alternative legal remedies, if any, is far from clear-cut. As such, the Court finds no reason to alter its prior conclusion on this question.

         In addition, Wall requests that, should the Court decline to find that no such tort exists in the state of Vermont, it should at least certify this question to the Vermont Supreme Court. She points out that the Supreme Court may answer a question of Vermont law certified to it by a federal court if the answer might determine an issue in pending litigation and there is no clear and controlling Vermont precedent. See Vt. R. App. 14. Although that is the standard the Vermont Supreme Court would deploy to determine whether it would accept the request to answer a question certified to it, this Court's decision to certify in the first place is guided by Second Circuit precedent. In State Farm Mut. Auto. Ins. Co. v. Mallela, 372 F.3d 500, 505 (2d Cir. 2004), the court explained that it has “deemed certification appropriate where state law is not clear and state courts have had little opportunity to interpret it, where an unsettled question of state law raises important issues of public policy, where the question is likely to recur, and where the result may significantly impact a highly regulated industry.” Here, a significant number of state courts have interpreted this question, and the tort draws on common law roots that have been recognized in this state for some time. See Stone v. Wall, 734 So.2d 1038, 1041-43 (Fla. 1999) (noting that the tort “has its roots in English common law, descended from a writ giving the father an action for the abduction of his heir, ” and that the “majority of states considering the question have recognized a cause of action for intentional interference with the custodial parent-child relationship.”); Wood v. Wood, 338 N.W. 123, 124-25 (Iowa 1983) (en banc) (“The claim for interference with custody rights appears to have been recognized in every jurisdiction which has addressed the issue.”); Bioni v. Haselton, 134 A. 606, 607 (Vt. 1926) (treating custody of a child as a form of property right). Moreover, while the tort certainly raises an important issue, the public policy of the state of Vermont on this matter has been expressed through its criminal statutes. Finally, although custody conflicts are common, the particular facts of this case are rare and egregious. Thus, the question of whether a tort remedy would apply to circumstances such as these is unlikely to recur. In light of these factors, certification is not warranted here. As such, the Court will not disturb its prior holding that tortious interference with parental rights constitutes a cause of action cognizable in this state.

         2. Temporal Scope of Custodial Interference Claim

         Next, Defendants argue that even if the tort is recognized, Plaintiffs have failed to allege facts that satisfy its elements in this case. The comments to Section 700 of the Restatement (Second) of Torts, on which the custodial interference tort is based, provides that “[w]hen the parents are by law jointly entitled to the custody and earnings of the child, no action can be brought against one of the parents who abducts or induces the child to leave the other.” Restatement (Second) of Torts § 700, cmt. c. Defendants cite to numerous state court decisions from outside of Vermont in which parents were required to demonstrate superior custody rights in order to establish a claim for tortious interference. See ECF 240, pp. 67-69; see, e.g., Stone, 734 So.2d at 1042 (“[t]he elements of the cause of action include that the plaintiff had superior custody rights to the child and that the defendant intentionally interfered with those rights.”); Wolf v. Wolf, 690 N.W.2d 887, 892 (Iowa 2005) (finding that “primary physical care” was sufficient to establish superior custody rights within the meaning of Section 700, even where parents had joint legal custody of the child).[4]

         Here, Plaintiffs have alleged that Lisa Miller interfered with Jenkins' parental rights on two occasions: between September 25 and 27, 2009, and between January 1, 2010 and the present time. During the first interval, the amended complaint alleges that Jenkins was entitled to contact with Isabella pursuant to an Interim Order issued by the Vermont Family Court on September 4, 2009, while Jenkins' motion to transfer custody was pending. Thus, the contact that Isabella and Jenkins missed on those dates was not part of a regular visitation schedule, but rather a temporary decision made before the Family Court rendered its ultimate custody determination. During the second interval, the amended complaint alleges that Jenkins was entitled to legal and physical parental rights and responsibilities for Isabella.

         The Court need not decide, at this stage, whether the Interim Order granting Jenkins contact between September 25 and 27, 2009 is sufficient to establish her superior custody rights on those dates.[5] Even if the Court were to assume, for the sake of argument, that Jenkins could not assert a claim of tortious interference against Lisa Miller for her deprivation of contact with Isabella in September of 2009, there is no basis to hold that the remaining defendants' acts cannot have taken place during this time. Plaintiffs have not alleged a claim of tortious interference directly against these Defendants, but rather assert claims of aiding and abetting Lisa Miller in the commission of that tort and conspiracy to commit that tort. Thus, so long as Defendants took actions in furtherance of interfering with Jenkins' parental rights after she was granted full custody, there is no per se rule requiring the overt acts or assistance to have taken place during or after the commission of the actual tort.

         In this case, the amended complaint alleges facts supporting the inference that the Defendants' acts in furtherance of the abduction of Isabella were undertaken with the expectation that Jenkins would soon have superior custody rights over Isabella. In fact, all of the alleged assistance took place after Jenkins filed her Motion to Modify Parental Rights and Responsibilities on May 27, 2009. The plan to “kidnap Isabella and avoid detection by infiltrating the Beachy Amish-Mennonite Christian Brotherhood ... to enable [Lisa Miller's] abduction of Isabella” was allegedly devised thereafter, by the late summer of 2009. ECF 223, p. 6. Additional facts permit the Court to infer that this plan was devised in order to avoid the consequences of Jenkins' pending motion. For example, Zodhiates sent an email implying that he and the Liberty lawyers were aware that Lisa Miller would soon lose custody of Isabella, and Lisa Miller held a press conference when she was fined for contempt of the family court orders along with her conspirators. Thus, the facts alleged sufficiently establish that Defendants participated in a conspiracy, and aided and abetted Lisa Miller, to interfere with Jenkins' superior custody rights after January 1, 2010.

         Even if Defendants had only taken acts to deprive Jenkins of her custodial rights while Lisa Miller also had custody of Isabella, the case law Defendants cite does not clearly establish that this conduct would be permissible. First, Defendants' rely on Marshak v. Marshak, 629 A.2d 964 (Ct. 1993), in which the Connecticut Supreme Court determined that third parties who had supported a father in abducting his four children to a different country while the father and mother had equal custody over the children could not be held liable for the tort of child abduction. That conclusion, however, was subsequently questioned in the context of a criminal case of child abduction. See State v. Vakilzaden, 742 A.2d 767, 771 (1999) (“Quite simply, the legal premise underlying our holding in Marshak was faulty. We were wrong to conclude that a joint custodian could never, under any scenario, be liable for custodial interference.”). Moreover, in assessing the civil claim against the third party who assisted the father prior to his losing custody, the Court in Marshak relied on the fact that no claim for civil conspiracy existed in Connecticut. Thus, “the cause of action is for damages caused by acts committed pursuant to a formed conspiracy rather than by the conspiracy itself.” Marshak, 628 A.2d at 972 (citing Cole v. Associated Construction Co., 141 Conn. 49, 54 (1954)). The requirement that the third party's act have occurred at a time when the abduction would have been unlawful, therefore, stemmed from the law concerning civil conspiracies in Connecticut. Id. (“Without an independent basis for finding illegality in the defendant's actions in allegedly conspiring with and aiding [the father] prior to … the date of the order awarding custody to the [mother], and in the absence of a specific finding that the defendant conspired with or aided [the father] subsequent to that date, the [mother] cannot prevail on her claim against this defendant.”). Thus, Marshak does not provide a basis to require that all of Defendants' acts in this case have occurred after full custody was transferred to Jenkins. Nor do Defendants' other references provide authority for such a claim. See Finn v. Lipman, 526 A.2d 1380, 1381-82 (Me. 1987) (holding that no action for tortious interference lay where third party did not have direct contact with children, so as to interfere with their father's rights while serving as an attorney for the children's mother in the relevant divorce proceeding); D & D Fuller CATV Const. Inc. v. Pace, 780 P.2d 520 (Colo. 1989) (holding that court could exercise jurisdiction over custodial interference claim against third parties). Accordingly, the mere fact that some of Defendants' alleged actions to assist Lisa Miller may have taken place before January 1, 2010 does not provide a basis for dismissing Plaintiffs' claim.

         3. Isabella's claim for kidnapping

         Next, Defendants also argue that Jenkins' claim as next friend of Isabella must fail as a matter of law because the claim for custodial interference attaches only to a parent with custody. On this question, Defendants are correct. Vermont Rule of Civil Procedure 17(b) provides that a representative (or a next friend or guardian ad litem, in the event that no representative has been appointed) may sue on behalf of an infant. The real party in interest in these circumstances would therefore be the infant. See Vt. R. Civ. P. 17(a) (“Every action shall be prosecuted in the name of the real party in interest.”). However, § 700 of the Restatement (Second) of Torts provides that an individual who interferes with a parent's custody “is subject to liability to the parent.” Since Isabella was not a parent, and did not have custody, she cannot make out this claim herself.[6] Accordingly, the Court must dismiss Jenkins' claim on behalf of Isabella under count one of the amended complaint.

         4. Conspiracy

         Aside from challenging the elements of the underlying tort of interference with Jenkins' custody, which Plaintiffs have alleged only against Lisa Miller, Defendants also assert that Jenkins has failed to state a claim for conspiracy against them. In a non-precedential order issued by a three-judge panel, the Vermont Supreme Court has called into question whether such a cause of action should continue to exist in this state. See Davis v. Vile, No. 2002-465, 2003 WL 25746021, at *3 (Vt. Mar. 2003) (deciding whether superior court properly dismissed a civil conspiracy claim by “[a]ssuming that there continues to be an independent cause of action for the tort of civil conspiracy, ” but collecting cases from other jurisdictions in which civil conspiracy is only considered as a basis for imposing damages rather than a separate cause of action). However, numerous cases from this Court have recognized such a cause of action nonetheless. See, e.g., Saunders v. Morton, No. 5:09-CV-125, 2011 WL 1135132, at *9-11 (D. Vt. Feb. 17, 2011); Mansfield Heliflight, Inc. v. Freestream Aircraft USA, Ltd., No. 2:16-CV-28, 2016 WL 7176586, at *15-16 (D. Vt. Dec. 7, 2016); Dernier v. U.S. Bank Nat'l Ass'n for CSMC Mortg.-Backed Pass-Through Certificates, Series 2006-3, No. 2:16-CV-000230, 2017 WL 2483799, at *6 (D. Vt. June 8, 2017). Following these decisions, the Court predicts that in certain circumstances, a cause of action for civil conspiracy may be recognized in Vermont.

         Under Vermont law, “the crime of conspiracy consists in a combination of two or more persons to effect an illegal purpose, either by legal or illegal means, or to effect a legal purpose by illegal means. For a civil action, the plaintiff must be damaged by something done in furtherance of the agreement, and the thing done must be something unlawful in itself. There can be no recovery unless illegal means were employed.” Akerley v. N. Country Stone, Inc., 620 F.Supp.2d 591, 600 (D. Vt. 2009) (internal quotations and alterations omitted). Thus, at a minimum, Defendants must have reached an agreement. In this case, the amended complaint alleges that this agreement was for the purpose of interfering with Jenkins' parental rights between September 25 and 27, 2009 and as of January 1, 2010. In addition, the act done in furtherance of that end by each defendant held liable for the conspiracy must be “unlawful in itself.” Liberty Counsel Defendants first argue that Plaintiffs have failed to allege the requisite agreement in the amended complaint. They contend that any allegations of agreement are vague and conclusory, and do not involve them.[7] However, the complaint sets forth facts that, taken together, establish that Defendants agreed to this common goal. For example, paragraph 29 states that RUL “was working in conjunction with the lawyers at Liberty Counsel to raise funds in support of the effort to terminate [Jenkins'] contact with her daughter, Isabella, ” and states that as part of this work, Zodhiates offered Liberty Counsel a “personal option” for Lisa Miller in the event that her legal fight failed. ECF 223, p. 6. The allegation that Liberty Counsel lawyers were “working in conjunction” with others to interfere with Jenkins' custody by legal or illegal means would itself suffice to establish the requisite agreement. Moreover, paragraph 34 alleges, in a more conclusive fashion, that by “late summer of 2009, Lisa Miller and her co-conspirators had devised a plan to kidnap Isabella and avoid detection by infiltrating the Beachy Amish-Mennonite Christian Brotherhood (“Brotherhood”) to enable her abduction of Isabella.” Id. Although that paragraph does not clearly delineate who those co-conspirators were, Plaintiffs' later claims make clear that these co-conspirators include the Liberty Counsel Defendants. Given these specific and conclusory factual claims, Plaintiffs have satisfied their burden of alleging agreement with respect to the Liberty Counsel Defendants.

         Next, Liberty Counsel Defendants also assert that the conspiracy claim must fail because there is no underlying act liability: that is, no liability for the alleged underlying tort. However, as noted above, Defendants cannot show that Plaintiffs have failed to state an underlying claim for tortious interference.[8] Even if the Court were to construe this challenge as asserting that the means that Defendants employed in furtherance of the agreement were not unlawful, that argument would also fail. Plaintiffs have alleged that Lindevaldsen aided Lisa Miller by packing her belongings after she fled, as part of a scheme to abduct Isabella “in such a way as to avoid detection by United States authorities.” Id. at 7. They have also alleged that Lindevaldsen and Staver lied to state courts about their knowledge of Isabella and Lisa Miller's whereabouts. Aside from whether these actions could themselves constitute a component of the tort of intentional interference with Jenkins' custody, there is no question that they would also violate other provisions of Vermont law if proven to be true. See, e.g., 13 V.S.A. § 2904 (false swearing). Accordingly, Plaintiffs have pleaded sufficient facts to allege a conspiracy claim against the Liberty Counsel Defendants.

         Separately, Wall also asserts that Plaintiffs have failed to state a claim of conspiracy against her. She does not, however, lay out a specific argument as to why the facts alleged in the amended complaint about her conduct fail to meet the elements of that claim. In fact, the amended complaint plainly alleges an agreement, stating that Linda Wall discussed Lisa Miller's plans for preventing Jenkins' contact with Isabella and agreed to support her in fleeing the country with Isabella. It also alleges that Linda Wall raised funds to support the kidnapping and packed Lisa Miller's belongings as part of a scheme to allow Miller to flee without being detected by U.S. authorities. Given the criminal nature of Lisa Miller and Zodhiates' conduct, the Court has no trouble finding that Wall's conduct constituted an unlawful means in furtherance of that agreement. Accordingly, Plaintiffs have sufficiently pleaded a claim of conspiracy against Wall, as well.

         5. Aiding and abetting

         Finally, Defendants assert that Plaintiffs have failed to state a claim for aiding and abetting. However, Liberty Counsel Defendants identify an incorrect standard to determine whether a party can be held liable for aiding and abetting in the commission of a tort. According to the very case they cite, Montgomery v. Devoid, 915 A.2d 270 (Vt. 2006), aiding and abetting another in the commission of a tort requires a plaintiff to show “(1) the existence of a primary violation; (2) knowledge of this violation on the part of the aider and abettor; and (3) substantial assistance by the aider and abettor in the achievement of the primary violation.” Id. at 278 (citing Calcutti v. SBU, Inc., 273 F.Supp.2d 488, 493 (S.D.N.Y.2003)). “Closely intertwined with the concept of ‘substantial assistance' is the principle of proximate cause.” Id. In that case, the Vermont Supreme Court cited the standard discussed by Defendants, drawing from the Restatement (Second) of Torts § 876, in addressing whether a joint tortfeasor should be held liable for the entirety of harm caused to a plaintiff or only for a portion of it. Thus, the court noted that “[a] person is subject to liability for harm resulting to a third person from the tortious conduct of another if the person: (1) commits a tortious act as part of a common design with the other; (2) gives substantial assistance to the other knowing that the other's conduct is a breach of duty; or (3) gives substantial assistance to the other to accomplish a tortious result while also acting in a manner that is a breach of duty to the third person. ” Id. at 281 (citing Restatement (Second) of Torts § 876 (1979)).

         Regardless of which standard one applies, Defendants' argument in this case is unavailing. Defendants contend that Plaintiffs have failed to plead that they provided substantial assistance to Miller. However, the amended complaint alleges that Defendants made misrepresentations to state courts in order to delay contempt proceedings aimed at locating Isabella. If, as the amended complaint alleges, Liberty Counsel's lawyers in fact knew of Lisa Miller's plan to flee with Isabella, a truthful statement would have likely aided law enforcement in preventing the kidnapping. As such, the misrepresentation constitutes substantial assistance. Moreover, the assistance the lawyers provided by lying about their knowledge of Lisa Miller's whereabouts was done with knowledge of Lisa Miller's duty to turn over physical custody of Isabella pursuant to the family court's Interim Order, as well as Jenkins' pending motion to transfer custody of Isabella. Moreover, as discussed above, Plaintiffs have alleged that Liberty Counsel lawyers acted pursuant to an agreement to prevent Jenkins' contact with Isabella. Thus, whether one applies the standard in Calcutti or the first prong of § 876 of the Restatement (Second) of Torts, Plaintiffs have sufficiently plead a claim for aiding and abetting Lisa Miller's tortious interference with Jenkins' custody. As such, the Court denies Defendants' motions challenging Count One of Plaintiffs' amended complaint for failure to state a claim.

         B. Motions to Dismiss Count Two

         i. ...


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