Jenkins v. Miller, Case No. 2:12–CV–184.

• Court: United States District Courts. 2nd Circuit. District of Vermont
• Writing for the Court: WILLIAM K. SESSIONS III
• Citation: 983 F.Supp.2d 423
• Parties: 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, Andrew Yoder, individually and as an agent for Christian Aid Ministries, Inc., Christian Aid Ministries, Inc., Response Unlimited, Inc., Philip Zodhiates, individually and as an agent for Response Unlimited, Inc., Victoria Hyden, f/k/a Victoria Zodhiates, individually and as an agent for both Response Unlimited, Inc., and Liberty University, Inc. and its related ministry Thomas Road Baptist Church, Inc., Linda M. Wall, individually and as agent for Thomas Road Baptist Church, Inc., and Douglas Wright, Defendants.
• Decision Date: 24 October 2013
• Docket Number: Case No. 2:12–CV–184.

983 F.Supp.2d 423

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, Andrew Yoder, individually and as an agent for Christian Aid Ministries, Inc., Christian Aid Ministries, Inc., Response Unlimited, Inc., Philip Zodhiates, individually and as an agent for Response Unlimited, Inc., Victoria Hyden, f/k/a Victoria Zodhiates, individually and as an agent for both Response Unlimited, Inc., and Liberty University, Inc. and its related ministry Thomas Road Baptist Church, Inc., Linda M. Wall, individually and as agent for Thomas Road Baptist Church, Inc., and Douglas Wright, Defendants.

Case No. 2:12–CV–184.

United States District Court,
D. Vermont.

Oct. 24, 2013.

[983 F.Supp.2d 435]

Frank H. Langrock, Katherine B. Kramer, Esq., Lisa B. Shelkrot, Esq., Langrock Sperry & Wool, LLP, Sarah Star, Esq., Sarah Star, PL, Middlebury, VT, for Plaintiffs.

Brooks G. McArthur, Esq., Jarvis, McArthur & Williams, LLC, Burlington, VT, Joshua M. Autry, Esq., Boyle, Autry & Murphy, Camp Hill, PA, Peggy J. Schmitz, Esq., Critchfield, Critchfield & Johnson, Ltd., Wooster, OH, Steven J. Shrock, Esq., Critchfield, Critchfield & Johnston, Ltd., Millersburg, OH, Thomas E. McCormick, McCormick, Fitzpatrick, Kasper & Burchard, P.C., Norman C. Williams, Robert B. Hemley, Gravel & Shea PC, Ritchie E. Berger, Sophie E. Zdatny, Esq., Dinse, Knapp & McAndrew, P.C., Robert G. Cain, Paul Frank Collins PC, Burlington, VT, Michael J. Deprimo, Esq., Hamden, CT, Norman C. Smith, Esq., Norman C. Smith, PC, Essex Junction, VT, for Defendants.

OPINION AND ORDER
WILLIAM K. SESSIONS III, District 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.

[983 F.Supp.2d 436]

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, ––– U.S. ––––, 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.

Background 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

[983 F.Supp.2d 437]

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 (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, 2010 VT 98, ¶ 5, 189 Vt. 518, 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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