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Jenkins v. Miller

United States District Court, D. Vermont

October 29, 2019

KENNETH L. MILLER ET. AL., Defendants.


          William K. Sessions, III 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 and conspiracy to violate civil rights under 42 U.S.C. § 1985(3).

         Defendant Timothy Miller (“Defendant”) moves to dismiss the Complaint for lack of personal jurisdiction and insufficient services of process, under Federal Rules of Civil Procedure 12(b)(2) and 12(b)(5).

         For the reasons set forth below, Defendant's motion to dismiss is denied.

         Factual Background

         Defendant Timothy Miller currently resides in Denver, Pennsylvania. In September 2009, he resided in Managua, Nicaragua.

         Isabella Miller-Jenkins is the daughter of Defendant Lisa Miller and Plaintiff Janet Jenkins. She is the biological daughter of Lisa Miller, born in April 2002 while the two women were joined in a civil union, which they obtained in Vermont in 2000. At first the family lived in Virginia, but moved to Vermont in August 2002. When Isabella was seventeen months old, Miller and Jenkins separated and Miller moved with Isabella back to Virginia.

         Lisa Miller petitioned the Vermont Family Court to dissolve the union and to determine parental rights and responsibilities with respect to Isabella. The family court issued a temporary order on June 17, 2004, granting temporary legal and physical responsibility to Lisa 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, Lisa 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 Lisa Miller's requested relief, the Virginia Court of Appeals held that by filing her petition in Vermont Lisa 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, 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 Lisa Miller, and awarded Jenkins visitation rights. The Court warned Lisa 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, 2010 VT 98, ¶ 5, 12 A.3d 768, 772 (entry order). Although Lisa Miller did comply with the visitation schedule on several occasions in the last half of 2007, by the spring of 2008 Lisa 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. Lisa 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, Lisa Miller left the country with Isabella on September 22, 2009. On November 20, 2009, the Vermont family court concluded that Lisa 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 Lisa Miller have returned to this country.

         A criminal investigation and prosecution followed, which involved Defendant. In April 2011, Defendant was arrested for aiding and abetting the kidnapping of Isabella. He appeared twice in Vermont in response to those charges, which were dismissed in exchange for Defendant's agreement to testify against Kenneth Miller. Defendant did not testify and was later charged in the Western District of New York with conspiracy to commit international parent kidnapping in violation of 18 U.S.C. § 371. He pleaded guilty in December 2016.

         Plaintiffs filed this action 2012, alleging, inter alia, that Defendant purchased plane tickets for Lisa Miller and Isabella from Canada to Nicaragua, met Lisa Miller and Isabella when they arrived in Nicaragua, helped them rent an apartment, allowed them to visit his home and teach his children, and arranged for their belongings to be brought from Virginia to Nicaragua. Plaintiffs allege he did this while advising his family not to discuss Lisa Miller by email (to avoid her being traced to Nicaragua), and continued to help her after learning that a Vermont court had transferred custody of Isabella from Lisa Miller to Jenkins on November 20, 2009.

         When Plaintiffs filed their initial Complaint in 2012, Defendant was still in Nicaragua and Plaintiffs were not successful in personally serving him there. Plaintiffs moved under Rule 4(f)(3) of the Federal Rules of Civil Procedure for permission to serve process on Defendant through Jeffrey A. Conrad, an attorney who had appeared on Defendant's behalf in both criminal ...

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