Jenkins v. Miller et al

Filing 116

NOTICE OF DOCKET ENTRY CORRECTION re: 115 Opinion and Order. The document image has been replaced to correct typographical errors. The corrected image is now attached to 115 and is also attached to this entry. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
JANET JENKINS, for herself and as
next friend of ISABELLA MILLERJENKINS, 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

OPINION AND ORDER
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 Defendants1 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

1

Defendants Lisa Ann Miller and Timothy D. Miller have not been

served.

2

against Defendant Douglas Wright, is dismissed without prejudice,
for lack of personal jurisdiction over the Defendant.
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.
2675, 2695 (2013).

United States v. Windsor, 133 S. Ct.

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

3

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 samesex couples, and to prevent the courts of Vermont and Virginia
from securing to them the equal protection of the law.

4

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 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 responsibilities3 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
2

Under Vermont law two members of the same sex may enter into a civil
union and thereby receive the benefits and protections and be subject to the
responsibilities of spouses. Vt. Stat. Ann. tit. 15, §§ 1201, 1202, 1204.
3

Under Vermont law, “‘[p]arental rights and responsibilities’ means
the rights and responsibilities related to a child’s physical living
arrangements, parent child contact, education, medical and dental care,
religion, travel and any other matter involving a child’s welfare and
upbringing.” Vt. Stat. Ann. tit. 15, § 664(1). The term embraces both “legal
responsibility” and “physical responsibility.” Id. The Vermont family courts
have jurisdiction over proceedings relating to the dissolution of civil
unions, including the determination of parental rights and responsibilities of
a minor child. See id. §§ 665, 1206.

5

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, 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, 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.

6

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 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

7

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.
2012.

The case against Kenneth Miller went to trial in August

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

8

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

9

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 by

Milmont Greenhouses, the Kenneth Miller family business.

Yoder

had never done business with Milmont Greenhouses, and the company
did not owe him money.
for Lisa Miller.

Yoder suspected that the cash might be

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

10

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.”
¶ 26.

Am. Compl.

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.
established.

Donations were solicited and a Facebook site
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

11

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, Lisa Miller and Isabella lived near or among the Amish
Mennonite community, the Nicaraguan Brethren, in Nicaragua.
adopted the pseudonyms of Sarah and Lydia.

They

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

12

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

13

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 antiabortion, 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.

4

In

Manhattan Declaration: A Call of Christian Conscience 9 (released
Nov. 20, 2009), http://manhattandeclaration.org.

14

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 of personal jurisdiction and
failure to state a claim upon which relief can be granted.
No. 62.

ECF

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.

Discussion
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)
15

(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

5
The Amended Complaint asserts both federal question and diversity
jurisdiction. Although in a diversity action a court must initially determine
whether a plaintiff has shown that a defendant is amenable to process under
the forum state’s laws, Vermont’s long-arm statute, Vt. Stat. Ann. tit. 12, §
913(b), “confers jurisdiction over nonresident defendants to the full extent
permitted by the Due Process Clause.” Dall v. Kaylor, 658 A.2d 78, 79 (Vt.
1995); see also Metro. Life, 84 F.3d at 567.

16

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 (1984) (alteration in
original) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310,
316 (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).
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.
A.

Chloe, 616 F.3d at 164.

General Jurisdiction

17

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
(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 corporation may do sufficient business within a state
to allow the state to assert general jurisdiction over it.

See

id. at 2856 (citing Helicopteros, 466 U.S. at 416).
“The assessment of minimum contacts is fact-specific and
must necessarily be tailored to the circumstances of each case.”
Metro. Life, 84 F.3d at 570.

The standard for general

jurisdiction is demanding, because a defendant subject to general
jurisdiction in a state may be haled into court “to answer for
any alleged wrong, committed in any place, no matter how
unrelated to the defendant’s contacts with the forum.”

uBID,

Inc. v. GoDaddy Gp., Inc., 623 F.3d 421, 426 (7th Cir. 2010);
accord CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066,
1074 (9th Cir. 2011).
1.

Liberty University
18

The Amended Complaint alleges that Liberty University is an
educational institution organized under the laws of Virginia,
with a principal place of business in Lynchburg, Virginia.
Plaintiffs offer the following as evidence of Liberty
University’s continuous and systematic contacts with Vermont:

it

currently enrolls twenty-nine tuition and fee-paying students—and
an unknown number of online students—from Vermont; it markets
itself to potential students in Vermont and solicits donations
through a website which is accessed in Vermont; and Liberty
University students participate in athletics in Vermont.
It is undisputed that Liberty University is not incorporated
in Vermont, nor is its principal place of business in Vermont.
It has no facilities, offices, mailing address or staff in
Vermont; it is not registered to do business in the state; it
does not own or lease real property in Vermont; it has no
registered agent for service of process; and it pays no state
taxes.

Although it derives some revenue from students from

Vermont who attend the university, the total number of these
students is relatively small (Liberty University has more than
12,000 residential students), and the revenue derived from their
attendance is correspondingly small.
The plaintiffs’ submissions, credited as true, do not amount
to a prima facie showing that this Court has general jurisdiction
over Liberty University, such that it is “essentially at home” in

19

Vermont.

In Gehling v. St. George’s School of Medicine, Ltd.,

for example, the Third Circuit held that forum-related activities
that included, among other things, advertising in newspapers that
circulated in the forum, having forum residents among its student
body, and sending school representatives to the forum for media
events were insufficient to establish general jurisdiction over a
Grenadian medical college.

773 F.2d 539, 542-43 (3d Cir. 1985).

It observed that
[a]dvanced educational institutions typically draw
their student body from numerous states, and
appellants’ theory would subject them to suit on nonforum related claims in every state where a member of a
student body resides. . . . [T]he fact that St.
George’s may be said to derive some percentage of its
revenues from [forum] residents in return for services
provided in Grenada does not subject it to in personam
jurisdiction.
Id.; see also Richards v. Duke Univ., 480 F. Supp. 2d 222, 230
(D.D.C. 2007) (holding that recruiting activities in and students
from the forum did not establish personal jurisdiction); Scherer
v. Curators of Univ. of Missouri & Law Sch. Admission Council,
152 F. Supp. 2d 1278, 1282 (D. Kan. 2001) (holding that access to
a website, availability of information, and student and staff
residents within the forum did not provide general personal
jurisdiction).

Similarly, participation in sporting events does

not establish “continuous and systematic” contact; there is no
suggestion that Liberty University’s athletic events focus on
Vermont any more than any other state.

20

See, e.g., Gallant v.

Trustees of Columbia Univ. in the City of New York, 111 F. Supp.
2d 638, 642 (E.D. Pa. 2000) (holding that general involvement in
interstate collegiate sports that included events in the forum
state did not establish a sufficient nexus with the forum).
2.

CAM

The Amended Complaint alleges that CAM is an Ohio
corporation that employs pastors and relief workers around the
world, including in Vermont.

It states that “CAM, through its

agents and employees, including Andrew Yoder, has sufficient
contacts with the State of Vermont to subject it to the
jurisdiction of this Court.”

Am. Compl. ¶ 11.

Plaintiffs also

contend that CAM solicits donations through its website, which
can be accessed in Vermont at www.christianaidministries.org, and
that it has received approximately $8,000.00 annually from
Vermont donors.

They also note that Andrew Yoder traveled twice

to Vermont in connection with Kenneth Miller’s criminal
proceedings,6 and assert that other agents or employees of CAM
attended Miller’s criminal trial and distributed CAM materials to
Vermont residents.
It is undisputed that CAM is a nonprofit corporation that
distributes humanitarian aid and Christian literature in the

6

Pursuant to subpoena, Yoder traveled to testify before a grand jury
on February 16, 2012, and to testify at the trial of Kenneth Miller on August
10, 2012.

21

United States and other countries.

Its administrative

headquarters and principal place of business is in Berlin, Ohio.
It has staff and centers in other states and countries, but no
operations, staff or offices in Vermont.
do business in Vermont.
Vermont.

It does not own or lease property in

It does not pay taxes in Vermont, nor does it employ

any Vermont residents.
Vermont.

It is not registered to

It has not provided disaster relief in

The amount of donations received from Vermont residents

is very small.
Andrew Yoder ceased to be an employee of CAM in 2011, well
before he traveled to Vermont, but in any event his fleeting and
involuntary contacts with Vermont do not supply general personal
jurisdiction over CAM.

The assertion that individuals who

traveled to Vermont to witness the trial and lend support to
Kenneth Miller were agents or employees of CAM does not appear in
any pleading, nor is it supported by affidavit.

See In Re

Terrorist Attacks, 714 F.3d at 673 (advising courts reviewing a
motion to dismiss not to “accept as true a legal conclusion
couched as a factual allegation” or “draw argumentative
inferences in the plaintiff’s favor”).

The plaintiffs’

submissions, credited as true, do not amount to a prima facie
showing that this Court has general jurisdiction over CAM.

See,

e.g., Morton Grove Pharm., Inc. v. Nat’l Pediculosis Ass’n, Inc.,
485 F. Supp. 2d 944, 948 (N.D. Ill. 2007) (holding that an

22

environmental group’s distribution of newsletters, solicitation
and receipt of donations, maintenance of an interactive webpage
and receipt of grants from a forum-based foundation were not
continuous and systematic contacts).
3.

RUL

The Amended Complaint alleges that RUL is a Delaware
corporation that provides Christian direct mail and marketing
services nationally and internationally, including in Vermont.
Am. Compl. ¶ 14.

Plaintiffs assert further that RUL sells

contact lists, including the masterfile for The Vermont Country
Store, Inc., a Vermont company.
It is undisputed that RUL has no clients in Vermont nor does
it send out mailings on behalf of clients, nor does it have any
ongoing relationship with any Vermont brokers of mailing lists.
RUL contends that The Vermont Country Store contact list has not
been used in more than a decade.

The plaintiffs’ submissions,

credited as true, do not amount to a prima facie showing that
this Court has general personal jurisdiction over RUL, but the
record concerning RUL is sparse, as discussed below.
B.

Specific Jurisdiction

Specific personal jurisdiction exists when a defendant has
purposefully directed activities at residents of the forum, and
the litigation results from injuries that arise out of or relate
to those activities.

Burger King Corp. v. Rudzewicz, 471 U.S.
23

462, 472 (1985).

A defendant’s intentional and allegedly

tortious out-of-state activity, if expressly aimed at the forum
state, may establish specific personal jurisdiction.

See Calder

v. Jones, 465 U.S. 783, 789 (1984); accord In re Terrorist
Attacks, 714 F.3d at 674.

In order to establish specific

personal jurisdiction under Calder, Plaintiffs must plead facts
to show that Defendants expressly aimed intentional tortious acts
at a Vermont resident, that her injuries arise out of or relate
to those activities, and that Defendants knew that the brunt of
the injury would be felt in Vermont.

See id.; see also Chaiken

v. VV Pub. Corp., 119 F.3d 1018, 1028-29 (2d Cir. 1997)
(discussing Calder).
1.

Kenneth Miller, Philip Zodhiates, Victoria
(Zodhiates) Hyden7 and Linda Wall

The plaintiffs have pled specific facts showing that Kenneth
Miller aimed intentional tortious acts at Janet Jenkins, and that
the injurious effects of his actions were felt within the forum.
They allege that he aided and abetted Isabella’s kidnapping, that
he participated in a RICO conspiracy, and that he conspired to
violate their civil rights.

Specifically they allege that he

arranged the purchase of plane tickets from Canada to Nicaragua
and arranged Lisa Miller and Isabella’s transport across the
7

Counsel for Liberty University, TRBC and Victoria Hyden in her
alleged capacity as an agent of Liberty University or TRBC appear to have
argued for dismissal on behalf of Hyden personally as well as in her alleged
agency capacity. See Re-filed Mot. to Dismiss 11, 15, 17. The Court
addresses both arguments.

24

Canadian border, among other actions.

Janet Jenkins sustained

emotional and financial damage as a result of his actions,
including the deprivation of any contact with her daughter.
The plaintiffs have pled specific facts showing that Philip
Zodhiates and Victoria Hyden aimed intentional tortious acts at
Janet Jenkins.

They allege that Zodhiates and Hyden aided and

abetted Isabella’s kidnapping, participated in a RICO conspiracy,
and conspired to violate their civil rights.

Specifically

Plaintiffs allege that Zodhiates helped Kenneth Miller arrange
the purchase of the plane tickets, drove Lisa Miller and Isabella
disguised as Amish Mennonites to the Canadian border, and
arranged a subsequent transportation of their belongings to
Nicaragua.

He also arranged a false purchase of plants from the

Miller family business to effect a transfer of cash to Lisa
Miller in Nicaragua.

With respect to Hyden, Plaintiffs allege

that she assisted in arranging Lisa Miller and Isabella’s
transportation from the location where Miller abandoned her car
to the location where she departed for Canada and Nicaragua the
next day.
The plaintiffs have pled specific facts showing that Linda
Wall aimed intentional tortious acts at Janet Jenkins.

They

allege that Wall aided and abetted Isabella’s kidnapping and
conspired to violate their civil rights.

Specifically they

allege that as early as spring 2008 Lisa Miller and Wall agreed

25

that Lisa Miller should flee with Isabella to escape the Vermont
and Virginia court rulings that permitted Janet Jenkins to see
Isabella.

Having formed this agreement, they and others launched

the Protect Isabella Coalition, whose purpose was to prevent the
court-ordered contact, and to obtain donations to further that
work.

After Lisa Miller and Isabella left the country, Wall

publicly discussed her role in the scheme, compared herself to
Harriet Tubman, and indicated that she would take similar actions
with regard to more children from same-sex families.

Wall urged

anyone with knowledge of Lisa Miller’s whereabouts not to reveal
it, and attempted to persuade law enforcement not to look for
her.
These defendants at all times knew that Jenkins was a
resident of Vermont.

Their actions were aimed at depriving her

of lawful parental rights, and the brunt of the injury as a
result of their actions was felt in Vermont.

See Calder, 465

U.S. at 789.
2.

RUL

The plaintiffs have not pled specific facts showing that
RUL, or Zodhiates or Hyden acting as RUL’s agents, aimed
intentional tortious acts at Jenkins.

The Amended Complaint

alleges that Zodhiates is the president and sole owner of RUL and
that Hyden is or was an employee and agent of RUL.

It also

alleges that Zodhiates and an employee of RUL drove Lisa Miller

26

and Isabella to Canada.

These allegations however fail to

establish a prima facie case that RUL engaged in intentional
wrongdoing aimed at Janet Jenkins.

Assuming that Zodhiates and

Hyden were agents of RUL during the relevant time period, the
Amended Complaint fails to plead any facts that would establish
that either were acting within the scope of their agency when
they allegedly conspired to interfere with Jenkins’ parental
rights.

See, e.g., Int’l Shoe, 326 U.S. at 316 (holding that a

corporation’s “presence” in the forum is manifested by activities
carried on in its behalf by those who are authorized to act for
it).
The information provided to the Court by both parties
concerning the presence or absence of contacts between RUL and
the forum state, or the existence of an agency relationship
between Hyden and RUL, or whether Zodhiates’ or Hyden’s activity
may be attributable to RUL, is sparse, and the plaintiffs have
requested jurisdictional discovery.

The plaintiffs have “‘made a

sufficient start toward establishing personal jurisdiction.’”
Uebler v. Boss Media, AB, 363 F. Supp. 2d 499, 506 (E.D.N.Y.
2005) (quoting Stratagem Dev. Corp. v. Heron Int’l N.V., 153
F.R.D. 535, 547-48 (S.D.N.Y. 1994)).

The facts necessary to

establish personal jurisdiction, or the absence of it, lie within
RUL’s knowledge, and discovery may supply a more satisfactory
factual showing.

Accordingly, Plaintiffs’ request for

27

jurisdictional discovery with respect to RUL is granted.

See,

e.g., Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n.13
(1978) (“[W]here issues arise as to jurisdiction . . . discovery
is available to ascertain the facts bearing on such issues.”).
3.

Liberty University

The plaintiffs have not pled specific facts showing that
Liberty University, or its alleged employees or agents acting on
its behalf, aimed intentional tortious acts at Janet Jenkins.
They have argued that their action arises out of a conspiracy to
aid and abet Lisa Miller in evading the orders of a Vermont
court.

Lisa Miller’s attorneys in the Vermont litigation that

dissolved her civil union and determined parental rights and
responsibilities with respect to Isabella are employed by or
affiliated with Liberty University.

Plaintiffs contend that the

actions of Lisa Miller’s attorneys in litigating her case are
sufficient to give this Court jurisdiction over Liberty
University.

The cases cited in support of this bold assertion

are neither binding on this Court nor apposite.
In this Circuit, a law firm’s allegedly tortious conduct
that caused injury in the forum will support specific
jurisdiction where the firm has minimum contacts with the forum
and has purposely availed itself of the privilege of doing
business in the forum.

Bank Brussels Lambert v. Fiddler Gonzalez

& Rodriguez, 305 F.3d 120, 128-29 (2d Cir. 2002).
28

In Bank

Brussels, a legal malpractice suit, the law firm’s engagement not
only gave rise to the cause of action; the firm maintained an
apartment in the forum, faxed newsletters to persons in the
forum, had several additional clients in the forum, and promoted
its presence and reputation in the forum.

These multiple

contacts demonstrated “a law firm which seeks to be known in the
[forum’s] legal market, makes efforts to promote and maintain a
client base there, and profits substantially therefrom.”

Id. at

128.
There are at least two flaws in Plaintiffs’ argument that
the actions of Lisa Miller’s attorneys support the exercise of
specific personal jurisdiction over Liberty University.

One,

there is no factual support for the assertion that the attorneys
committed a tortious act—or conspired to commit a tortious
act—that caused injury to Janet Jenkins.

There is no suggestion

that the attorneys committed a tort by representing their client
or publicly voicing their opinions concerning the issues.

Two,

assuming at this pre-discovery stage of the litigation that
Plaintiffs could prove that the attorneys were agents of or
employed by Liberty University as opposed to its affiliated
entity Liberty Counsel, or that the actions of Liberty Counsel
should be attributed to Liberty University for purposes of
assessing minimum contacts, the contacts with the forum do not
amount to purposeful availment of the privilege of doing business

29

here.

Unlike the firm in Bank Brussels, there is no suggestion

that Miller’s attorneys sought to be known in the Vermont legal
market, or made efforts to promote a client base here.

See id.

at 128-129.
Plaintiffs also argue that the actions of Victoria Hyden, as
a student and employee of Liberty University, subject Liberty
University to specific jurisdiction in Vermont.

Although they

assert conclusorily that Hyden is an agent of Liberty University,
they have pled no facts that would support the assertion.

An

agent is a person authorized by another to act on that other’s
account.

Among other things, agency requires a “‘manifestation

by the principal that the agent shall act for [it].’”

Cabrera v.

Jakabovitz, 24 F.3d 372, 386 (2d Cir. 1994) (quoting Restatement
(Second) of Agency § 1 cmt. b (1958)); accord Springfield
Hydroelectric Co. v. Copp, 779 A.2d 67, 72-73 (Vt. 2001) (citing
Restatement (Second) of Agency § 1).

It is undisputed that Hyden

has never been an officer, director, manager or authorized agent
of Liberty University.

There is no indication that Liberty

University manifested any consent that a student employee should
act as its agent.
Liberty University’s motion to dismiss for lack of personal
jurisdiction is granted.

Given the dearth of specific facts that

connect Liberty University with tortious activity directed
against Plaintiffs, their request for jurisdictional discovery is
30

denied.

See Lehigh Valley Indus., Inc. v. Birenbaum, 527 F.2d

87, (2d Cir. 1975) (holding that it was not an abuse of
discretion to deny jurisdictional discovery where a plaintiff
failed to establish any basis for finding that a defendant
committed any tortious activity in the forum).
4.

TRBC

Plaintiffs allege that TRBC through its members voluntarily
attended and publicly demonstrated at hearings involving the
custody of Isabella in Vermont.
internet updates.

A member of TRBC provided

From this “voluntary involvement in custody

proceedings in Vermont,” Plaintiffs conclude that TRBC has
“purposefully directed its activities at residents of the forum,
and this litigation results from alleged injuries that arise out
of or relate to those activities.”
75.

Pls.’ Response 13, ECF No.

Plaintiffs allege further that TRBC elders aided and abetted

the kidnapping of Isabella by packing their personal belongings
and maintaining a post office box for donations.

Finally they

allege that TRBC members and pastors publicly endorsed the
kidnapping of Isabella and made internet threats to continue such
activity.8
This jurisdictional argument suffers from a host of
deficiencies.

TRBC member activities within the forum

8

Plaintiffs do not argue that the actions of Defendants Victoria Hyden
and Linda Wall, allegedly agents of TRBC, give rise to specific jurisdiction
over TRBC.

31

state—attendance at hearings, public demonstrations, prayer
meetings—are not tortious.

The activities have no connection to

a conspiracy to spirit Lisa Miller and Isabella out of the
country, nor is it alleged that these activities prevented any
Vermont courts or other authorities from administering the law.
TRBC member activities outside Vermont allegedly aimed at
causing injury to Plaintiffs in Vermont consist of packing Lisa
Miller and Isabella’s belongings and shipping them to Miller in
Nicaragua, maintaining a post office box through which donations
were accepted, and publicly endorsing the kidnapping.

The

emotional and financial injuries Jenkins alleges she sustained as
a result of the custody dispute and Isabella’s kidnapping cannot
reasonably be characterized as arising out of or relating to this
activity.

Moreover, this Virginia-based church is not subject to

specific personal jurisdiction in Vermont based on the actions of
a small number of its thousands of members.

Based on the

complete absence of a colorable claim of specific personal
jurisdiction, TRBC’s motion to dismiss for lack of personal
jurisdiction is granted.
5.

Jurisdictional discovery is denied.

Andrew Yoder and CAM

Plaintiffs allege that Yoder, field director for CAM in
Nicaragua, aided and abetted an intentional kidnapping,
participated in a RICO conspiracy to kidnap Isabella, and
conspired to violate Plaintiffs’ civil rights.
32

They also contend

that CAM and Yoder conspired to kidnap Isabella.

Specifically

they allege that Yoder, knowing of Lisa Miller’s custody battle
and that she was in Nicaragua disguised as an Amish Mennonite,
brought $500.00 in cash to Timothy Miller, suspecting that the
money would be given to Lisa Miller or used on her behalf.9
also allege that CAM was sympathetic to Lisa’s case.

They

It is

undisputed that CAM advised Yoder not to assist Lisa Miller in
any way.
The plaintiffs have not made out a prima facie case that
Yoder’s actions, if tortious, were purposefully directed at
injuring Janet Jenkins within the state of Vermont.

There is no

suggestion that he was involved in the initial scheme to get Lisa
Miller and Isabella out of the country, to thwart the visitation
orders of a Vermont court and to prevent Jenkins from having a
relationship with Isabella.

Assuming that Yoder knowingly

assisted other Defendants to enable Lisa Miller to remain outside
the United States with Isabella, that activity had only an
indirect effect within the forum.

9

Yoder’s conduct did not focus

Although Plaintiffs also allege that Yoder assisted Timothy Miller
with documentation to enable Lisa Miller to remain in Nicaragua, the
transcript of Yoder’s testimony offered in support of this allegation does not
in fact support this contention. Yoder testified that on September 22, 2009,
Timothy Miller had emailed him, asking about current residency requirements
for Nicaragua. Miller Trial Tr. v. III 10:3-14, Aug. 10, 2012. Yoder
explained that he was responsible for helping CAM workers get residencies, and
that one of the steps in securing Nicaraguan residency was to obtain
authenticated birth certificates, which was the responsibility of another CAM
worker. Id. 11:15-12:2. At no point did Yoder state or imply that he
assisted Timothy Miller with the authentication of birth certificate
documentation for Lisa Miller.

33

on injuring Janet Jenkins, or inflicting injury within the forum.
Consequently Yoder’s motion to dismiss on the ground of lack of
personal jurisdiction is granted.
CAM’s motion to dismiss is granted on the ground of lack of
general or specific personal jurisdiction.

Even were the Court

to find that Yoder’s alleged activity on Lisa Miller’s behalf
subjected him to personal jurisdiction here, the plaintiffs have
failed to make even a colorable claim that Yoder acted as an
agent of CAM when engaging in this conduct.

Jurisdictional

discovery is denied with respect to these defendants.
6.

Douglas Wright

Plaintiffs allege that Wright has sufficient ties to the
state of Vermont to subject him to the jurisdiction of this
Court.

Specifically they assert that he was involved in the

underlying custody and criminal proceedings in Vermont, and that
he tortiously failed to notify Vermont authorities that Lisa
Miller was going to flee the country with Isabella.
It is undisputed that Wright’s involvement in the custody
proceedings consisted of preparing an affidavit for Miller’s
attorneys that they submitted to the Vermont family court.

In it

he identified himself as the Pastor of Keystone Baptist Church
and principal of the Keystone Christian Academy where Isabella
was enrolled.

He stated that travel out of state would

constitute an unexcused absence.
34

Wright Aff., ECF No. 79-1.

It

is likewise undisputed that Wright’s involvement in the criminal
proceedings against Kenneth Miller consisted of appearances
pursuant to subpoena before the grand jury and at trial.
Plaintiffs cite no authority for the theory that these facts
indicate that Wright purposefully directed his activities toward
the state of Vermont.

The “‘purposeful availment’ requirement

ensures that a defendant will not be haled into a jurisdiction
solely as a result of random, fortuitous, or attenuated contacts,
or of the unilateral activity of another party or a third
person.”

Burger King, 471 U.S. at 475 (citations and quotation

marks omitted).

To the extent that Wright’s affidavit and

testimony could be considered contacts with the forum, this
contact was the result of third person activity, that of Lisa
Miller’s attorneys and the government attorney who subpoenaed
Wright to the Kenneth Miller trial.
Plaintiffs’ argument that Calder supplies an alternate basis
for personal jurisdiction over Wright stretches Calder’s holding
out of all recognition.

Calder involved intentional and

allegedly tortious actions by residents of Florida directly aimed
at a resident of California.

465 U.S. at 790.

Here Plaintiffs

rely on a failure to act rather than an intentional act of
wrongdoing.

Assuming that Wright’s failure to notify authorities

that Miller intended to leave the country with Isabella involved
intentional wrongdoing, the plaintiffs cannot show that Wright

35

directly aimed an intentional tortious act at Janet Jenkins in
Vermont.

Failing to notify authorities, whether those

authorities operate in Virginia or Vermont, does not constitute
the type of direct, affirmative and overt conduct necessary to
supply specific personal jurisdiction.

See id.

Wright’s motion to dismiss, ECF No. 40, is granted on the
ground of lack of personal jurisdiction.

Jurisdictional

discovery is denied.
C.

Reasonableness

If sufficient minimum contacts exist to justify the exercise
of general or specific personal jurisdiction, then a court must
determine “whether the assertion of personal jurisdiction
comports with ‘traditional notions of fair play and substantial
justice’—that is, whether it is reasonable under the
circumstances of the particular case.”

Metro. Life, 84 F.3d at

568 (quoting Int’l Shoe, 326 U.S. at 316).

Five factors are

considered:
“(1) the burden that the exercise of jurisdiction will
impose on the defendant; (2) the interests of the forum
state in adjudicating the case; (3) the plaintiff’s
interest in obtaining convenient and effective relief;
(4) the interstate judicial system’s interest in
obtaining the most efficient resolution of the
controversy; and (5) the shared interest of the states
in furthering substantive social policies.”
Bank Brussels Lambert, 305 F.3d at 129 (quoting Metro. Life, 84
F.3d at 568).

“Where a plaintiff makes the threshold showing of

36

the minimum contacts required for the first test, a defendant
must present ‘a compelling case that the presence of some other
considerations would render jurisdiction unreasonable.”

Id.

(quoting Metro. Life, 84 F.3d at 568).
The Court need not reach the issue of reasonableness with
respect to those defendants that have not been shown to have
minimum contacts with the forum:

Liberty University, CAM, TRBC,

Andrew Yoder and Douglas Wright.

Plaintiffs are permitted to

obtain jurisdictional discovery from RUL, and the Court will
defer the reasonableness inquiry with respect to this Defendant
until discovery is complete.

The remaining Defendants, Kenneth

Miller, Philip Zodhiates, Victoria Hyden and Linda Wall have not
shown a compelling case that jurisdiction in this forum is
unreasonable.
Without question these individual Defendants, all private
citizens, will suffer a greater burden defending this suit in
Vermont as opposed to their home state of Virginia.

Also without

question, Plaintiffs’ interest in obtaining convenient and
effective relief will be served by maintaining this suit in their
chosen forum and home state.

Vermont, the forum state, has a

strong interest in adjudicating claims involving repeated and
flagrant violations of Vermont court orders and seeking redress
for injuries sustained by a Vermont resident.

The interstate

judicial system’s interest in an efficient resolution is not

37

particularly implicated by the choice of either forum.

With

respect to the fifth factor, the shared interests of the states
in furthering substantive social policies, it is possible that
Vermont and Virginia do not share interests in certain
substantive social policies, but in the absence of any record
evidence or argument on this point the Court will not indulge in
speculation.

Both fora undoubtedly share an interest in

hindering violations of federal law.

This factor, like the

fourth factor, favors neither forum.
With two factors favoring Vermont as a forum, one factor
favoring Virginia as a forum, and two factors favoring neither
forum, Defendants Kenneth Miller, Philip Zodhiates, Victoria
Hyden and Linda Wall have not shown that Plaintiffs’ choice of
forum is unreasonable.
II.

Failure to State A Claim
To survive a 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) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Although

a court must accept the truth of factual allegations, and draw
all reasonable inferences in a plaintiff’s favor, it need not
accept as true “‘a legal conclusion couched as a factual
allegation.’”

Id. (quoting Bell Atl., 550 U.S. at 555); accord

38

N. J. Carpenters Health Fund v. Royal Bank of Scotland Grp., PLC,
709 F.3d 109, 119-120 (2d Cir. 2013).

“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.”
at 678.

Iqbal, 556 U.S.

“Plausibility . . . depends on a host of

considerations,” including “the full factual picture presented by
the complaint,” and “the particular cause of action and its
elements.”

L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 430

(2d Cir. 2011).
A.

Intentional Tort of Kidnapping

Plaintiffs have alleged in Count One of their Amended
Complaint that Defendant Lisa Miller committed an intentional
tort of kidnapping Isabella, transporting her outside the United
States and holding her there in order to interfere with Jenkins’
custodial rights.

They have alleged that Lisa Miller conspired

with and was aided and abetted by Defendants Kenneth Miller,
Timothy Miller, RUL, Philip Zodhiates, Victoria Hyden, and Linda
Wall, among others.

Defendants Kenneth Miller, Hyden and Wall

have moved to dismiss this count for failure to state a claim,
arguing that no such cause of action exists under Vermont law.
In their responses in opposition to the motions to dismiss
Plaintiffs have described this cause of action not only as an
intentional tort of kidnapping, but as tortious interference with

39

parental rights.

In support of their claim’s viability, they

offer several decisions from other jurisdictions and cite to
section 700 of the Restatement (Second) of Torts (1977).

Section

700 of the Restatement (Second) of Torts provides:
One who, with knowledge that the parent does not
consent, abducts or otherwise compels or induces a
minor child to leave a parent legally entitled to its
custody or not to return to the parent after it has
been left him, is subject to liability to the parent.
Restatement (Second) of Torts § 700 (1977).
The role of defining the common law of Vermont traditionally
falls to the Vermont Supreme Court.
37, ¶ 49, 853 A.2d 48, 67.

See Doe v. Forrest, 2004 VT

The Vermont Supreme Court has used

the Restatements to define common law, recognizing “that the
purpose of a Restatement is the preparation of an orderly
restatement of the common law to reduce uncertainty in the law.”
Id. (quotation marks omitted); see also id. ¶ 22 (expressly
adopting a provision of the Restatement (Second) of Agency as
reflecting the common law of Vermont).
adopt portions of the Restatements.

It has also declined to

See, e.g., Fromson v. State,

2004 VT 29, ¶ 25, 848 A.2d 344, 351 (declining to adopt a cause
of action for prima facie tort as set forth in Restatement
(Second) of Torts § 870 under the circumstances of that case).
The Vermont Supreme Court has not had occasion to determine
whether Vermont recognizes an intentional tort of kidnapping.
has long been the law in Vermont however that a parent may

40

It

maintain an action for wrongful interference with “the custody,
control, and services of [a] minor child.”

Bioni v. Haselton,

134 A. 606, 607 (Vt. 1926) (treating custody of a child as a form
of property right); accord Schuppin v. Unification Church, 435 F.
Supp. 603, 608 (D. Vt. 1977).
This Court has previously suggested that Section 700 would
apply to a cause of action involving interference with the
relationship between a parent and her minor child.
435 F. Supp. at 608-09 & n.8.

See Schuppin,

To be sure, as this Court has

acknowledged, Vermont courts are not bound to follow the
Restatements.

See id. at 609; accord Fromson, 2004 VT 29, ¶ 25,

848 A.2d at 351.

In this case however, section 700 merely tracks

existing Vermont law.
By finding that Vermont recognizes an action for wrongful
interference with a parent’s custodial rights, this Court does
not create a new cause of action based on the Restatement, but
concludes that the law in this area has been settled for some
time.

Mindful of its role when sitting in diversity, see, e.g.,

Travelers Ins. Co. v. Carpenter, 411 F.3d 323, 329 (2d Cir.
2005), the Court predicts that were the Vermont Supreme Court
presented with the precise question today it would agree that the
elements of a Vermont common law claim of custodial interference
are consistent with section 700.

In other words, under Vermont

law, a person who abducts or otherwise compels or induces a minor

41

child to leave a parent who is legally entitled to her custody,
with knowledge that the parent does not consent, is subject to
liability to the parent.

Cf. Wood v. Wood, 338 N.W.2d 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.” (citing cases)).
Defendants object to what they characterize as an attempt to
plead a brand new claim in a responsive brief.

They have not

however argued any meaningful factual distinction between a claim
of an intentional tort of kidnapping Isabella in order to
interfere with Jenkins’ lawful custody and a claim of tortious
interference with Jenkins’ parental rights, nor do they argue
that the Amended Complaint fails to state a plausible claim of
custodial interference.

Plaintiffs are not required to “pin

[their] claim for relief to a precise legal theory,” Skinner v.
Switzer, 562 U.S. ___, 131 S. Ct. 1289, 1296 (2011), but to plead
facts sufficient to show a plausible claim for relief.

Iqbal,

556 U.S. at 678.
Defendants’ motions to dismiss Count One for failure to
state a claim are therefore denied.

Count One may proceed as a

claim of intentional interference with the custody of a minor
child.
B.

Civil RICO

Although RICO, the Racketeer Influenced and Corrupt
42

Organizations Act, 18 U.S.C. §§ 1961-1968, was enacted to assist
in the fight against organized crime, its provisions extend to
any person or entity who engages in a “pattern of racketeering
activity,” as those terms are defined in 18 U.S.C. § 1961.

See

Ideal Steel Supply Corp. v. Anza, 652 F.3d 310, 320 (2d Cir.
2011).

Section 1964(c) of Title 18 provides a civil cause of

action for “[a]ny person injured in his business or property by
reason of a violation of section 1962.”

18 U.S.C. § 1964(c); see

Ideal Steel Supply, 652 F.3d at 316.
Count Two alleges that Defendant Kenneth Miller violated 18
U.S.C. § 1962(c), which provides
It shall be unlawful for any person employed by or
associated with any enterprise engaged in, or the
activities of which affect, interstate or foreign
commerce, to conduct or participate, directly or
indirectly, in the conduct of such enterprise’s affairs
through a pattern of racketeering activity or
collection of unlawful debt.
18 U.S.C. § 1962(c).
Count Three alleges that Kenneth Miller conspired with
remaining Defendants Lisa Miller, Timothy Miller, RUL, Philip
Zodhiates individually and as an agent of RUL, Victoria Hyden
individually and as an agent of RUL, and others, to violate §
1962(c) through the same pattern of racketeering, in violation of
§ 1962(d), which makes it unlawful for any person to conspire to
violate the provisions of § 1962(a), (b) or (c).
To establish a civil RICO claim, a plaintiff must
allege (1) conduct, (2) of an enterprise, (3) through a
43

pattern (4) of racketeering activity, as well as injury
to business or property as a result of the RICO
violation. The pattern of racketeering activity must
consist of two or more predicate acts of racketeering.
Lundy v. Catholic Health Sys. of Long Island, 711 F.3d 106, 119
(2d Cir. 2013) (internal quotation marks and citation omitted).
Plaintiffs allege that the Beachy Amish-Mennonite Brotherhood is
a RICO enterprise, Am. Compl. ¶ 68, and that the predicate acts
consist of “[a]cts or threats involving kidnapping,” and money
laundering and mail fraud in connection with the phony hydrangea
purchase.

Id. ¶ 66.

Remaining Defendants Kenneth Miller and Victoria Hyden argue
first that Plaintiffs lack standing to bring a civil RICO claim
because they cannot make out a cognizable RICO injury under 18
U.S.C. § 1964(c).

They also argue that Plaintiffs have failed to

adequately plead a violation of § 1962(c) in Count Two, and have
failed to allege a cognizable RICO conspiracy claim under 18
U.S.C. § 1962(d) in Count Three.
1.

RICO Injury

Section 1964(c) permits “any person injured in his business
or property” as a result of a violation of § 1962 to bring a
civil RICO suit.

In Counts Two and Three, Plaintiffs allege that

they “have suffered injury to their business or property,
including legal fees, investigative fees, court costs, and unpaid
child support obligations, and deprivation of personal property.”
Am. Compl. ¶¶ 70, 73.

In response to the motions to dismiss,
44

Plaintiffs have specified that Jenkins closed her day care
business to spend her time trying to locate her daughter,
incurred legal expenses and court costs, has been unable to
collect on a Virginia fine imposed against Lisa Miller, has been
unable to collect child support from Lisa Miller, and that
Isabella has lost property that would have belonged to her had
she been living in Vermont with Jenkins.
A RICO plaintiff has standing if she has been injured in her
business or property by the conduct constituting the violation.
Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985).
injurious conduct must proximately cause the injury.

The

Lerner v.

Fleet Bank, N.A., 318 F.3d 113, 120 (2d Cir. 2003) (citing Holmes
v. Sec. Investor Prot. Corp., 503 U.S. 258, 268 (1992)).

A

pattern of racketeering activity or individual predicate acts
proximately causes a plaintiff’s injury if it is “a substantial
factor in the sequence of responsible causation, and if the
injury is reasonably foreseeable or anticipated as a natural
consequence.”

Hecht v. Commerce Clearing House, Inc., 897 F.2d

21, 23-24 (2d Cir. 1990).

Put another way, there must be a

“direct relation between the injury asserted and the injurious
conduct alleged.”

Holmes, 503 U.S. at 268; accord In re Am.

Express Co. S’holder Litig., 39 F.3d 395, 399 (2d Cir. 1994).

A

key reason for requiring a direct relation between the injury and
the conduct is to “avoid[] unworkable difficulties in

45

ascertaining what amount of the plaintiff’s injury was caused by
the defendant’s wrongful action as opposed to other external
factors.”

First Nationwide Bank v. Gelt Funding Corp., 27 F.3d

763, 770 (2d Cir. 1994).
Defendants contend that the injury to Jenkins’ business was
proximately caused, not by the alleged predicate acts of
kidnapping, money laundering and mail fraud, but by her discovery
of these acts and her consequent actions.

They argue further

that her pecuniary losses are derivative of her personal
injuries, which are insufficient to confer standing.
Jenkins’ claimed injuries to business or property occurred
because she became involved in court proceedings and law
enforcement’s investigation of her daughter’s disappearance.
Compl. ¶ 78-79.

Am.

Jenkins alleges no losses, direct or indirect,

from the alleged acts of money laundering and mail fraud in May
2010.
That the plaintiffs have sustained emotional and pecuniary
losses the Court has no doubt.

That the but-for cause of these

losses is Isabella’s kidnapping is accepted as true for purposes
of these motions to dismiss.

The issue rather is whether these

losses are the type of losses which convey standing to assert a
civil RICO claim.

Where a plaintiff’s injuries are caused not by

the RICO predicate acts but by her efforts to expose or thwart
those acts, courts have not found RICO standing.

46

For example, a plaintiff’s damages that stemmed from the
investigation of alleged RICO violations were not cognizable
damages under RICO in Hollander v. Flash Dancers Topless Club,
340 F. Supp. 2d 453, 459-60 (S.D.N.Y. 2004), aff’d 173 F. App’x.
15, 18 (2d Cir. 2006) (entry order).

Injuries caused by the

discovery of alleged racketeering activity and the consequences
of that discovery are likewise not cognizable damages under RICO.
See In re Am. Express Co. S’holder Litig., 39 F.3d at 400.
The injury to Jenkins’ business was not reasonably
foreseeable or anticipated, nor was it proximately caused by the
alleged racketeering activity as opposed to Jenkins’
determination to find her daughter.

Had Lisa Miller acted

entirely on her own, or had the alleged racketeering activity
never been discovered, Jenkins would have incurred the same
injury to her business as she tried to discover what had become
of her daughter.

That Jenkins has been unable to collect on the

Virginia fine assessed against Lisa Miller or on the theoretical
amount of child support she might be entitled to under the
changed custody order is not a direct consequence of the
defendants’ alleged racketeering activity.

The last item of

damages, Isabella’s lost-because-never-owned property had she
been able to have a childhood in Vermont, is not only
tangentially related to the alleged racketeering activity but
entirely speculative.

47

Because Plaintiffs have failed to allege cognizable RICO
injury, that is, an injury to business or property proximately
caused by a pattern of racketeering activity or by RICO predicate
acts, they lack standing to pursue their RICO claims.

Counts Two

and Three of the Amended Complaint must accordingly be dismissed.
Alternatively, Defendants are entitled to dismissal of the RICO
counts because Plaintiffs have failed to plausibly allege a
pattern of racketeering activity.
2.

Pattern of Racketeering Activity

To establish a violation of § 1962(c), a plaintiff must
show:

“(1) conduct (2) of an enterprise (3) through a pattern

(4) of racketeering activity.”

Sedima, 473 U.S. at 496.

A

pattern requires at least two acts of racketeering activity
committed within a ten year period.

See 18 U.S.C. § 1961(5).

Although two acts are necessary, two isolated acts will not
constitute a pattern.

See Sedima, 473 U.S. at 496 n.14.

“Where

the plaintiff alleges each element of the violation, the
compensable injury necessarily is the harm caused by predicate
acts sufficiently related to constitute a pattern, for the
essence of the violation is the commission of those acts in
connection with the conduct of an enterprise.”

Id. at 497.

Count Two alleges that Kenneth Miller committed three acts
of racketeering:

aiding and abetting a kidnapping, money

48

laundering and mail fraud.10

Money laundering and mail fraud are

alleged with respect to the May 2010 transactions between
Zodhiates, Kenneth Miller, Timothy Miller and Andrew Yoder to
bring cash into Nicaragua for Lisa Miller.
To establish a pattern, a plaintiff “must show that the
racketeering predicates are related, and that they amount to or
pose a threat of continued criminal activity.”

H.J. Inc. v. Nw.

Bell Tel. Co., 492 U.S. 229, 239 (1989) (emphasis omitted).

The

continuity necessary to prove a pattern can be either “closedended continuity” or “open-ended continuity.”

DeFalco v. Bernas,

244 F.3d 286, 320 (2d Cir. 2001); see also H.J. Inc., 492 U.S. at
241 (stating that the concept refers “either to a closed period
of repeated conduct, or to past conduct that by its nature
projects into the future with a threat of repetition”).
The Amended Complaint states that
[t]he racketeering acts committed by the Defendant
Kenneth Miller constitute a pattern of racketeering
activity . . . in that they are related to one another
and are continuous. These racketeering acts are
continuous in that they have occurred over a period
exceeding two years, will continue into the future, and
pose the threat of continuing for years. The
racketeering activities also pose of [sic] risk of
continuation because Defendant Kenneth Miller and his
co-conspirators have repeatedly used the Miller-Jenkins
custody case and kidnapping as an example that other
Christians should follow vis a vis the custody rights
of same-sex parents.
10
Defendants do not dispute that these offenses would constitute
predicate acts of racketeering activity. See 18 U.S.C. § 1961(1) (defining
racketeering activity as an act involving, inter alia, kidnapping, mail fraud
and money laundering).

49

Am. Compl. ¶ 67.

Defendants argue that the Amended Complaint

alleges a narrow single purpose scheme that fails to satisfy
either closed or open-ended continuity.
Kenneth Miller’s actions as alleged do not constitute
closed-ended continuity, that is, a closed period of repeated
conduct “‘extending over a substantial period of time.’”
Cofacrèdit, S.A. v. Windsor Plumbing Supply Co., 187 F.3d 229,
242 (2d Cir. 1999) (quoting H.J. Inc., 492 U.S. at 242).

The

acts occurred approximately eight months apart, in September 2009
and May 2010.

Conduct occurring over a period of less than two

years rarely will satisfy closed-ended continuity.

See Spool v.

World Child Int’l Adoption Agency, 520 F.3d 178, 184 (2d Cir.
2008).

These two acts, aiding an international parental

kidnapping and money laundering/mail fraud, do not constitute
“repeated conduct.”
For open-ended continuity, a plaintiff “must show that there
was a threat of continuing criminal activity beyond the period
during which the predicate acts were performed.”
F.3d at 242.

Cofacrèdit, 187

For an ongoing enterprise that primarily exists for

criminal purposes the threat of continuity is not difficult to
establish.

See id.

Where the enterprise—here alleged to be the

Beachy Amish-Mennonite Brotherhood—conducts legitimate business,
“there must be some evidence from which it may be inferred that
the predicate acts were the regular way of operating that

50

business, or that the nature of the predicate acts themselves
implies a threat of continued criminal activity.”

Id. at 243.

Plaintiffs do not allege that the Beachy Amish-Mennonite
Brotherhood is primarily a criminal enterprise, nor do they
allege that kidnapping, money laundering or mail fraud are part
of its regular operations.

They have not argued that the nature

of the alleged predicate acts of mail fraud and money laundering
implies a threat of ongoing racketeering, given that the acts in
this case were aimed at supplying Lisa Miller with a modest sum
of money.
With respect to a threat of continued criminal activity,
Plaintiffs argue that kidnapping is a continuing offense.
is of course an accurate statement of the law.

This

See, e.g., United

States v. Rodriguez-Moreno, 526 U.S. 275, 281 (1999).

By that

reasoning, one could establish a pattern of racketeering activity
whenever a kidnapping victim continued to be held.

There is no

hint in the case law that one kidnapping where the victim
continues to be held, plus one transaction involving money
laundering and/or mail fraud, could constitute an open-ended
pattern of racketeering activity.
Also as evidence of a threat of continued criminal activity,
Plaintiffs assert generally that the Nicaraguan Brethren continue
“to aid and abet Lisa Miller’s criminal activity,” and they
specify that the Brethren released a statement admitting that

51

they extended Lisa Miller and Isabella “a helping hand” once they
were in Nicaragua.

Am. Compl. ¶ 61.

Plaintiffs additionally

cite public comments by individuals who do not appear to be
associated with the Beachy Amish-Mennonite Brotherhood that
endorse the kidnapping and suggest it should be an example of the
appropriate treatment of children of same-sex parents.

See

Pls.’ Response 34-35, ECF No. 75.
A threat of continued criminal activity cannot reasonably be
inferred where the likelihood that the enterprise will conduct
similar operations in the future is largely speculative, and
substantially based on the speech-making activities of
individuals who are not alleged to be part of the enterprise.
Plaintiffs have therefore not stated a plausible threat of
continuing criminal conduct.

See Iqbal, 556 U.S. at 678 (“A

pleading that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action will not do.

Nor

does a complaint suffice if it tenders naked assertions devoid of
further factual enhancement.”) (internal quotation marks and
citation omitted).

Accepting the factual assertions of the

Amended Complaint as true, it fails to adequately allege a
pattern of racketeering.
Because the Amended Complaint fails to demonstrate that
Plaintiffs have civil RICO standing, and fails to adequately
allege a pattern of racketeering activity, the RICO counts are

52

dismissed.
C.

Conspiracy to Violate Civil Rights

Count Four alleges that Lisa Miller conspired with
Defendants RUL, Zodhiates, Hyden, Wall, Kenneth Miller, Timothy
Miller and others to violate the civil rights of Janet Jenkins
and Isabella on the basis of gender, and to prevent the courts of
Vermont from securing them equal protection of their rights to a
parent-child relationship under the law.

Am. Compl. ¶ 75.

The Civil Rights Act of 1871, also known as the Ku Klux Klan
Act, one of several civil rights acts enacted to quell resistance
to federal reconstruction after the Civil War, established among
other things civil remedies for violations of federally protected
rights.

See, e.g., Great Am. Fed. Sav. & Loan Ass’n v. Novotny,

442 U.S. 366, 370-71 (1979); Keating v. Carey, 706 F.2d 377, 385
(2d Cir. 1983).

Section 2 of the Act as amended, addressing

conspiracies to interfere with civil rights, is codified at 42
U.S.C. § 1985.

Subsection (3) of § 1985 in pertinent part

permits a civil suit for damages against “two or more persons”
who conspire
for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and
immunities under the laws; or for the purpose of
preventing or hindering the constituted authorities of
any State . . . from giving or securing to all persons
within such State . . . the equal protection of the
laws.
42 U.S.C. § 1985(3).

The first clause of subsection (3) has been
53

called the “deprivation” clause; the second clause of subsection
(3) has been called the “hindrance” clause.

See, e.g., Bray v.

Alexandria Women’s Health Clinic, 506 U.S. 263, 278-79 (1993);
Libertad v. Welch, 53 F.3d 428, 446 & n.14 (1st Cir. 1995).
Count 4 claims violation of both clauses.
Remaining Defendants Kenneth Miller, Hyden and Wall seek
dismissal of Count Four because the Amended Complaint fails to
plead sufficient factual support for a conspiracy; it fails to
plead invidious, class-based animus; and it fails to plead state
action.
1.

Conspiracy

A “‘complaint containing only conclusory, vague, or general
allegations of conspiracy to deprive a person of constitutional
rights cannot withstand a motion to dismiss.’”

Gyadu v. Hartford

Ins. Co., 197 F.3d 590, 591 (2d Cir. 1999) (quoting Sommer v.
Dixon, 709 F.2d 173, 175 (2d Cir. 1983)).

It must include “some

factual basis supporting a meeting of the minds, such that
defendants entered into an agreement, express or tacit, to
achieve the unlawful end.”

Webb v. Goord, 340 F.3d 105, 110 (2d

Cir. 2003) (quotation marks and citation omitted).

Defendants

contend that the Amended Complaint fails to allege facts
plausibly suggesting a meeting of the minds, or that they entered
into an agreement.
Although Defendants vigorously dispute the facts alleged in
54

the Amended Complaint, its allegations of conspiracy are far from
vague, conclusory or general.

Specifically, as to an agreement

to assist Lisa Miller in removing Isabella from the jurisdiction
of state and federal courts, and to prevent Janet Jenkins from
exercising lawful parental rights, the Amended Complaint alleges
as follows.

Defendant Philip Zodhiates and another RUL employee

assisted Lisa Miller and Isabella to travel disguised as Amish
Mennonites from Virginia to the New York-Canada border.
Compl. ¶ 36.

Am.

Defendants Zodhiates and Hyden arranged for Lisa

Miller and Isabella to travel from Lynchburg to Waynesboro,
Virginia, in order to embark on their journey to Canada and on to
Nicaragua.

Id. ¶ 41.

Defendants Timothy Miller, Kenneth Miller

and Zodhiates arranged for the purchase of plane tickets, and
Kenneth Miller arranged to have Lisa Miller and Isabella picked
up on the Canadian side of the border.

Id. ¶ 37.

The purpose of

this activity was to “kidnap Isabella and avoid detection by
infiltrating the Beachy Amish-Mennonite Christian Brotherhood,”
id. ¶ 34, in order to continue to obstruct any parent-child
relationship between Janet Jenkins and Isabella and to remain
outside the jurisdiction of state and federal courts.
1.

See id. at

The Amended Complaint adequately alleges that Defendants Lisa

Miller, Timothy Miller, Kenneth Miller, Philip Zodhiates,
Victoria Hyden and Linda Wall agreed, tacitly or explicitly, to
further this purpose.

55

2.

The Scope of § 1985 Protection

To state a cause of action under § 1985(3)’s deprivation
clause, a plaintiff must allege (1) a conspiracy (2) for the
purpose of depriving a person or class of persons of the equal
protection of the laws, or the equal privileges and immunities
under the laws; (3) an overt act in furtherance of the
conspiracy; and (4) an injury to the plaintiff’s person or
property, or a deprivation of a right or privilege of a citizen
of the United States.

Traggis v. St. Barbara’s Greek Orthodox

Church, 851 F.2d 584, 586-87 (2d Cir. 1988).
Section 1985(3) reaches not only conspiracies under color of
state law, but also purely private conspiracies that have an
invidiously discriminatory motive.

Griffin v. Breckenridge, 403

U.S. 88, 102 (1971) (holding that there must be “some racial, or
perhaps otherwise class-based, invidiously discriminatory animus
behind the conspirators’ action.

The conspiracy, in other words,

must aim at a deprivation of the equal enjoyment of rights
secured by the law to all.”).

Requiring an invidiously

discriminatory motive as an element of a § 1985(3) conspiracy
prevents the statute from acting as a “general federal tort law”
applying to all allegedly tortious conspiratorial interferences
with the rights of others.

Id.

The Griffin Court explicitly did not decide “whether a
conspiracy motivated by invidiously discriminatory intent other
56

than racial bias would be actionable under . . . § 1985(3).”
n.9.

Id.

By 1993 the Supreme Court had yet to address the question,

and in Bray v. Alexandria Women’s Health Clinic sidestepped the
issue when it avoided deciding whether women were a qualifying
class under § 1985(3).

506 U.S. at 269; see also United Bhd. of

Carpenters & Joiners of Am. v. Scott, 463 U.S. 825, 835 (1983)
(declining to affirm the lower courts’ holdings that § 1985(3)
provides a civil cause of action for conspiracies other than
those motivated by racial bias).

But see Novotny, 442 U.S. at

389 n.6 (1979) (White, J. dissenting) (noting that the Court was
assuming that discrimination on a basis other than race was
actionable under § 1985(3), stating “[i]t is clear that sex
discrimination may be sufficiently invidious to come within the
prohibition of § 1985(3)”).
Lower federal courts however have recognized potential §
1985(3) discrimination claims on the basis of gender, religion,
national origin, ethnicity, mental retardation, disability and
political affiliation.

See, e.g., Lake v. Arnold, 112 F.3d 682,

686 (3d Cir. 1997) (mental retardation); LeBlanc-Sternberg v.
Fletcher, 67 F.3d 412, 427 (2d Cir. 1995) (religion); Libertad v.
Welch, 53 F.3d 428, 449 (1st Cir. 1995) (women); Nat’l Org. for
Women v. Operation Rescue, 914 F.2d 582, 585 (4th Cir. 1990) (per
curiam) (gender), rev’d on other grounds sub nom. Bray v.
Alexandria Women’s Health Clinic, 506 U.S. 263 (1993); N.Y. State
57

Nat’l Org. for Women v. Terry, 886 F.2d 1339, 1359 (2d Cir. 1989)
(women); Keating, 706 F.2d at 388 (political affiliation); People
by Abrams v. 11 Cornwell Co., 695 F.2d 34, 43 (2d Cir. 1982)
(mental retardation), vacated in part on other grounds, 718 F.2d
22 (2d Cir. 1983); Taylor v. Gilmartin, 686 F.2d 1346, 1357-58
(10th Cir. 1982) (religion); Padway v. Palches, 665 F.2d 965, 969
(9th Cir. 1982) (gender); Ward v. Connor, 657 F.2d 45, 48 (4th
Cir. 1981) (religion); Novotny v. Great Am. Fed. Sav. & Loan
Ass’n, 584 F.2d 1235, 1241 (3d Cir. 1978) (en banc) (gender),
vacated on other grounds, 442 U.S. 366 (1979); Cameron v. Brock,
473 F.2d 608, 610 (6th Cir. 1973) (political supporters); Trautz
v. Weisman, 819 F. Supp. 282, 295 (S.D.N.Y. 1993) (disability);
see also Haverstick Enters., Inc. v. Fin. Fed. Credit, Inc., 32
F.3d 989, 994 (6th Cir. 1994) (“A class protected by section
1985(3) must possess the characteristics of a discrete and
insular minority, such as race, national origin, or gender.”);
Volk v. Coler, 845 F.2d 1422, 1434 (7th Cir. 1988) (Ҥ 1985(3)
extends beyond conspiracies to discriminate against persons based
on race to conspiracies to discriminate against persons based on
sex, religion, ethnicity or political loyalty.”).

But see, e.g.,

Perez-Sanchez v. Pub. Bldg. Auth., 531 F.3d 104, 108 (1st Cir.
2008) (refusing to recognize a § 1985(3) claim based on political
affiliation); Wilhelm v. Cont’l Title Co., 720 F.2d 1173, 1176-77
(10th Cir. 1983) (holding that handicapped persons did not
58

constitute a class for § 1985(3) purposes).
In-depth examinations of the legislative history of §
1985(3) have suggested that Congress did not intend the section
to be limited to providing a cause of action for conspiracies
motivated by invidiously discriminatory racial animus, often
quoting remarks from Senator George Edmunds of Vermont,11 floor
manager of the bill that became the Civil Rights Act of 1871.12
See, e.g., Bray, 506 U.S. at 294-96 (Souter, J., concurring in
part and dissenting in part); Keating, 706 F.2d at 387-88;
Novotny, 584 F.2d at 1242.

But see Carpenters, 463 U.S. at 836-

37 (acknowledging Senator Edmunds’ views, yet noting that the
Court has not yet accorded them decisive weight).
In Bray, abortion clinics and abortion rights organizations
had successfully claimed that anti-abortionists’ blockading of
abortion facilities violated § 1985(3).

506 U.S. at 267.

Reversing the lower courts, the United States Supreme Court held
that “women seeking abortion” is not a class for purposes of §
1985(3), because the term “class” “unquestionably connotes

11

Senator George Franklin Edmunds, Republican, served in the United
States Senate from 1866 to 1891. He chaired the Senate Judiciary Committee
from 1872 to 1879, and from 1882 to 1891. He was president pro tem of the
Senate from 1883 to 1885. Biographical Directory of the United States
Congress, http://bioguide.congress.gov/scripts/biodisplay.pl?index=e000056
(last visited Oct. 23, 2013).
12

Senator Edmunds “remarked that if there were a conspiracy against a
person ‘because he was a Democrat, if you please, or because he was a
Catholic, or because he was a Methodist, or because he was a Vermonter . . .
then this section could reach it.’” Bray, 506 U.S. at 296 (Souter, J.,
concurring in part and dissenting in part) (quoting Cong. Globe, 42d Cong.,
1st Sess. 567).

59

something more than a group of individuals who share a desire to
engage in conduct that the § 1985(3) defendant disfavors.”
at 269.

Id.

The Court rejected the respondents’ contention that they

alleged class-based discrimination directed at women, observing
that the record did not reflect that the anti-abortion
demonstrators were motivated by animus directed specifically at
women as a class, as opposed to hostility toward the practice of
abortion.

Id. at 269-70; accord Upper Hudson Planned Parenthood,

Inc. v. Doe, 836 F. Supp. 939, 953 (N.D.N.Y. 1993), aff’d 29 F.3d
620 (2d Cir. 1994) (unpublished op.).
As framed then, Count Four fails to state a claim for the
same reason enunciated in Bray:

the claim is cast as a

conspiracy to violate Plaintiffs’ civil rights on the basis of
gender.

See Am. Compl. ¶ 75.

Any invidiously discriminatory

animus alleged in the Amended Complaint is not directed at women
as a class.
In their oppositions to the motions to dismiss, Plaintiffs
argue that their Amended Complaint also alleges that the
conspiracy to violate their civil rights was motivated by
discriminatory animus directed toward religion and sexual
orientation.

They contend that Lisa Miller’s religion dictated

that Isabella be shielded from homosexuality.

But it is a

plaintiff’s, not a defendant’s, membership in a protected class
that enables a plaintiff to bring a § 1985(3) claim.

60

The Amended

Complaint does not allege Plaintiffs’ membership in any religion,
nor does it suggest that any Defendant harbored discriminatory
animus against them on the basis of their religion.
The factual allegations of the Amended Complaint however can
be read to suggest that the defendants harbored invidiously
discriminatory animus against Jenkins because of her sexual
orientation.

In United States v. Windsor, 133 S. Ct. 2675

(2013), the United States Supreme Court invalidated section 3 of
the Defense of Marriage Act (“DOMA”) which defined “marriage” as
“a legal union between one man and one woman,” and “spouse” as “a
person of the opposite sex who is a husband or a wife.”
2682; see 1 U.S.C. § 7.

Id. at

One purpose and effect of the enactment

of DOMA was to prevent same-sex couples from becoming eligible
through state-sanctioned marriages or civil unions for a host of
federal rights and benefits afforded to heterosexual married
couples.

See, e.g., H.R. Rep. No. 104-664, at 10-11 (1996),

reprinted in 1996 U.S.C.C.A.N. 2905, 2914-15.

In Windsor, the

surviving spouse of a same-sex couple whose marriage was
recognized in the state of their residence sued the government
for a refund of the federal estate tax levied on the estate of
her deceased spouse.

133 S. Ct. at 2683.

She sought a

declaration that section 3 violated the Equal Protection Clause
of the Fifth Amendment.

The government announced that it would

not defend DOMA’s constitutionality, because, as applied to same-

61

sex couples who are legally married under state law, it regarded
the section as violating the Equal Protection Clause.
The district court concluded that the provision could not
withstand rational basis review, and held the provision
unconstitutional.

Windsor v. United States, 833 F. Supp. 2d 394,

402, 406 (S.D.N.Y. 2012).

The Second Circuit affirmed the

district court’s holding that section 3 violated the Equal
Protection Clause, and also concluded that review of the section
required heightened scrutiny, because gays and lesbians qualify
as a “quasi-suspect class.”

Windsor v. United States, 699 F.3d

169, 181-82 (2d Cir. 2012).
The Supreme Court, without expressly deciding whether
section 3 was subject to rational basis or some degree of
heightened scrutiny, held that the provision “is unconstitutional
as a deprivation of the liberty of the person protected by the
Fifth Amendment of the Constitution.

The liberty protected by

the Fifth Amendment’s Due Process Clause contains within it the
prohibition against denying to any person the equal protection of
the laws.”

Windsor, 133 S. Ct. at 2695.

It observed:

“DOMA

seeks to injure the very class [the State] seeks to protect.
doing so it violates basic due process and equal protection
principles applicable to the Federal Government. . . . In
determining whether a law is motived by an improper animus or
purpose, ‘discriminations of an unusual character’ especially

62

By

require careful consideration.”

Id. at 2693 (quoting Romer v.

Evans, 517 U.S. 620, 633 (1996)).
Although the Supreme Court avoided deciding whether gays and
lesbians comprise a quasi-suspect class, triggering heightened or
intermediate scrutiny of laws that single them out, at a minimum
the Supreme Court acknowledged that same-sex couples constitute a
class for purposes of an equal protection analysis.

See Windsor,

133 S. Ct. at 2692; Romer, 517 U.S. at 631-32; see also
Obergefell v. Kasich, No. 1:13-cv-501, 2013 WL 3814262 at *6
(S.D. Ohio, July 22, 2013) (finding no rational basis for a state
law that discriminates against same-sex married couples); Bassett
v. Snyder, No. 12-10038, ___ F. Supp. 2d ___, 2013 WL 3285111 at
*23-25 (E.D. Mich. June 28, 2013) (granting preliminary
injunction against enforcement of a state statute prohibiting
public employers from providing medical and other benefits to
cohabitants, holding that the statute displayed animus against
same-sex couples and lacked a rational basis); Garden State
Equal. v. Dow, No. M-208-13, ___ A.3d ___, 2013 WL 5687193 at *67 (N.J. Oct. 18, 2013) (denying stay of lower court decision
holding that the State must extend the right to civil marriage to
same-sex couples, noting that Windsor found a constitutional
right to equal protection for such couples).

Such a class may

invoke protection against invidious discrimination, whether it
comes in the form of federal legislation, see Windsor, 133 S. Ct.
63

at 2693; state legislation, see Romer, 517 U.S. at 632, or
private conspiracy with a discriminatory purpose.
Plaintiffs however have not pled such a claim.

In contrast

to their first count, which contained the elements of tortious
interference with custodial rights although it was labeled an
intentional tort of kidnapping, Count Four alleges a conspiracy
to violate civil rights on the basis of gender, a claim
foreclosed by Bray.

This claim is therefore dismissed.

Because it is likely that Plaintiffs will move to amend
their Amended Complaint to allege discriminatory animus against
same-sex couples, the Court will address Defendants’ remaining
argument for dismissal of this Count, that Plaintiffs have not
shown state action.
3.

Deprivation Clause Claim:

State Action

Although the language of § 1985(3), referring to
deprivations of “equal protection of the laws, or of equal
privileges and immunities under the laws,” resembles the
Fourteenth Amendment’s guarantees against state abridgement of
citizens’ privileges and immunities and state denial of equal
protection of the laws, see U.S. Const. amend. XIV, § 1, a
deprivation of equal protection under § 1985(3) does not by its
terms require state action.

Griffin, 403 U.S. at 101; accord

Carpenters, 463 U.S. at 832-33.

But § 1985(3) does not provide

substantive rights itself; it provides a remedy for persons
64

injured by a conspiracy to deprive them of “the equal protection
of the laws, or of equal privileges and immunities under the
laws.”
833.

Novotny, 442 U.S. at 372, accord Carpenters, 463 U.S. at

The right or rights claimed to have been infringed “must be

found elsewhere.”

Id.

Thus far, the Supreme Court has

recognized only two rights protected against private as well as
official encroachment under the deprivation clause:

the right to

be free from involuntary servitude and the right of interstate
travel.

Bray, 506 U.S. at 278.

The Amended Complaint does not specify the right claimed to
have been infringed.

Plaintiffs argue that they have alleged a

conspiracy to infringe upon Isabella’s right to interstate travel
to spend time with both her parents, who at the time this cause
of action arose resided in different states.

Assuming that

Plaintiffs had properly alleged a conspiracy to deny Isabella the
right to interstate travel, the allegation fails to state a
claim.
To implicate the right to interstate travel, a § 1985(3)
conspiracy must have as its “‘predominant purpose . . . to impede
or prevent the exercise of the right of interstate travel, or to
oppress a person because of [her] exercise of that right.’”

Id.

at 275 (quoting United States v. Guest, 383 U.S. 745, 760
(1966)).

In this case a right to interstate travel, if affected,

was affected only incidentally.

“A conspiracy is not ‘for the

65

purpose’ of denying equal protection simply because it has an
effect upon a protected right.

The right must be aimed at; its

impairment must be a conscious objective of the enterprise.”
(quotation marks and citation omitted).

Id.

Plaintiffs do not claim

that the predominant purpose of the alleged conspiracy was to
prevent Isabella from traveling from Virginia to Vermont.

They

claim that the defendants engaged in a conspiracy to prevent
Janet Jenkins from having a parent-child relationship with
Isabella.

Defendants’ abhorrence of this relationship and

attempts to thwart it would have undoubtedly been undiminished
had Jenkins and Lisa Miller resided in the same state or had
Jenkins attempted to exercise her rights without the need for
Isabella to travel.
Plaintiffs fail to state a claim under the deprivation
clause of § 1985(3) “because they have identified no right
protected against private action that has been the object of the
alleged conspiracy.”
4.

Id. at 278.

Hindrance Clause Claim

Plaintiffs also argue that the aim of the alleged conspiracy
was to prevent or hinder the courts of Vermont from securing
Plaintiffs’ right to a parent-child relationship under the law,
in other words that they have stated a claim under the
“hindrance” clause of § 1985(3).
hindrance clause is sparse.

Case law interpreting the

The Supreme Court in Griffin noted
66

that the second clause of § 1985(3), dealing explicitly with
interference with State officials, was inherently a form of state
action.

Griffin, 403 U.S. at 99.

The Supreme Court in

Carpenters similarly acknowledged the hindrance clause in holding
that a conspiracy to infringe First Amendment rights under the
deprivation clause required state involvement:

“we conclude that

an alleged conspiracy to infringe First Amendment rights is not a
violation of § 1985(3) unless it is proved that the state is
involved in the conspiracy or that the aim of the conspiracy is
to influence the activity of the state.”

463 U.S. at 830

(emphasis supplied); see also id. at 833 (Where “the right
claimed to have been infringed . . . restrains only official
conduct, to make out their § 1985(3) case, it was necessary for
respondents to prove that the state was somehow involved in or
affected by the conspiracy.”) (emphasis supplied).
In Bray, the Supreme Court refused to consider the merits of
a claim under the hindrance clause because it was not properly
before the Court.

506 U.S. at 280-81.

Four dissenting Justices

however would have reached the hindrance clause claim.

Justice

Souter would have found that
the act of frustrating or thwarting state officials in
their exercise of the State’s police power would amount
simply to an extralegal way of determining how that
state power would be exercised. It would, in real
terms, be the exercise of state power itself. To the
degree that private conspirators would arrogate the
State’s police power to themselves to thwart equal
protection by imposing what amounts to a policy of
67

discrimination in place of the Constitution’s mandate,
their action would be tantamount to state action.
Id. at 301-02 (Souter, J. concurring in the judgment in part and
dissenting in part); see also id. at 356 (O’Connor, J.
dissenting) (describing the hindrance clause as covering
“conspiracies aimed at obstructing local law enforcement”)
(citing Griffin, 403 U.S. at 98-99).
In a pre-Bray decision, a Second Circuit panel held that
lack of state action did not necessarily doom a hindrance clause
claim, noting that “there would almost never be a situation in
which the State would be involved in hindering its own efforts to
secure equal protection to its citizens.”

11 Cornwell Co., 695

F.2d at 43.
The First Circuit undertook an analysis of the hindrance
clause in Libertad v. Welch, 53 F.3d at 448-50.
Plaintiffs—abortion clinics, women who had attempted to obtain
services and others—sued abortion groups and individuals who
blockaded clinics under the hindrance clause of § 1985(3), among
other claims.

The Libertad court concluded first that a

hindrance clause claim must allege a class-based invidiously
discriminatory animus, the same as a deprivation clause claim.
Id. at 448.

It drew a distinction between the two clauses

however when it came to determining whether the hindrance clause
encompasses rights protected only against official encroachment.
The hindrance clause, unlike the deprivation clause,
68

implicates the ability of the State to ensure and
safeguard rights protected against any infringement.
When private individuals conspire for the purpose of
arresting or impeding the State’s power to protect or
secure equal protection of the laws to a group of
citizens, those conspirators are supplanting the
State’s conduct with their own. It seems clear to us
that such a conspiracy is precisely the type that the
Carpenters Court was referring to when it discussed a
conspiracy “to influence the activity of the State” and
thereby prevent it from securing equal protection of
the laws to its citizens. When the State’s conduct is
thus arrogated, state action is clearly implicated, and
rights protected only against official infringement are
likewise implicated.
Id. at 450 (quoting Carpenters, 463 U.S. at 830).

It therefore

held that a hindrance clause claim
do[es] not require that the right allegedly infringed
be one guaranteed against private encroachment, but
need only be one guaranteed against official
encroachment. . . . The right infringed as a result of
the conspiracy must be constitutionally protected or
guaranteed, and the purpose, not merely the effect of
the conspiracy, must be to impede state officials in
their efforts to secure equal protection of the laws.
Id.
Whether one concludes that a hindrance clause claim is not
limited to rights protected only against official encroachment,
or that interfering with state officials necessarily implicates
state action, a claim that private citizens have conspired
against a protected class with invidiously discriminatory animus
for the purpose of preventing State authorities from securing
equal protection of the law states a valid cause of action.
id.

Plaintiffs may move to amend the Amended Complaint to

69

See

allege a conspiracy to prevent or hinder State authorities from
securing equal protection of the laws to same-sex couples, based
on invidiously discriminatory animus against same-sex couples.
D.

Action for Neglect to Prevent a § 1985 Conspiracy

Count Five is brought solely against Defendant Douglas
Wright.

Because he is not subject to personal jurisdiction, this

count is dismissed without prejudice.
III. Improper Venue/Change of Venue
A.

Venue

Under 28 U.S.C. § 1391(b)(2),13 “[a] civil action may be
brought in a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred.”
U.S.C. § 1391(b)(2).

28

Plaintiffs assert that venue in this

district is appropriate “as a substantial part of the events
giving rise to the claims occurred in this district.”
¶ 2.

Am. Compl.

Remaining Defendants Kenneth Miller, Philip Zodhiates, RUL,

Victoria Hyden and Linda Wall assert that venue is improper in
this district because none of the significant events or conduct
alleged in the Amended Complaint took place in the District of
Vermont.
At this stage of the litigation a plaintiff need only make a
prima facie showing of venue.

As with a motion to dismiss for

13

The general venue statute was amended in 2011, and applies to cases
filed after January 1, 2012. Section 1391(b) now prescribes venue for
diversity and federal question actions.

70

lack of personal jurisdiction, the facts alleged in the complaint
are taken as true and viewed in the light most favorable to the
plaintiff.

See Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 355

(2d Cir. 2005).
Venue may be appropriate in more than one district, as long
as a substantial part of the underlying events took place in
those districts.

Id. at 356.

A district court must “take

seriously the adjective ‘substantial’” in § 1391(b)(2), however.
Id. at 357.

“[F]or venue to be proper, significant events or

omissions material to the plaintiff’s claim must have occurred in
the district in question.”

Id.

This is a stricter test than the

minimum contacts test in personal jurisdiction inquiries.

Id.

The venue inquiry “focus[es] on relevant activities of the
defendant, not of the plaintiff.”

Daniel v. Am. Bd. of Emergency

Med., 428 F.3d 408, 432 (2d Cir. 2005) (citing Woodke v. Dahm, 70
F.3d 983, 985 (8th Cir. 1995)).

The Court examines first the

nature of the claims and the acts or omissions that allegedly
gave rise to the claims.

Id.

Second, it determines “whether

significant events or omissions material to those claims
occurred” in the District of Vermont.

Gulf Ins., 417 F.3d at 357

(emphasis omitted).
Plaintiffs argue that “a substantial part of the events
giving rise to the claims” embraces the effects of Defendants’
actions, which have been felt in this district.
71

If this were

generally true, then a plaintiff’s residence would almost always
be a proper venue in tort cases.
a relevant factor.

The locus of the injury may be

See Bates v. C & S Adjusters, Inc., 980 F.2d

865, 868 (2d Cir. 1992) (holding that receipt of a collection
notice is a substantial part of the events giving rise to a claim
under the Fair Debt Collection Practices Act).

It is not

necessarily a determinative factor.
This case however alleges that acts committed outside the
District of Vermont were deliberately intended to have a tortious
effect within the district.

The overall nature of the

plaintiffs’ claims involves a scheme to obstruct Plaintiff
Jenkins’ exercise of parental rights in Vermont.
Section 1391(b) contemplates that venue will be proper in
more than one district.

Defendants argue correctly that venue

would be proper in the Western District of Virginia, where they
allegedly agreed to assist Lisa Miller in obstructing a parentchild relationship between Jenkins and Isabella, where the
defendants allegedly initiated the scheme to spirit Lisa Miller
and Isabella out of the country, and where the defendants
allegedly engaged in various activities designed to support Lisa
Miller’s ability to remain outside the country.

Notwithstanding,

the wrong alleged has been inflicted in the District of Vermont.
The rulings of its courts have been deliberately and repeatedly
flouted; and the interference with visitation orders and Jenkins’

72

custodial rights occurred in Vermont where visitation was
intended to be exercised.
Plaintiffs need not demonstrate that their choice of venue
is the best forum; they need only demonstrate a prima facie case
that their choice is permissible under the statute.
980 F.2d at 867.

This they have done.

See Bates,

The motions to dismiss

for improper venue are denied.
B.

Change of Venue

Defendants Kenneth Miller and Victoria Hyden seek in the
alternative a change of venue to the Western District of Virginia
pursuant to 28 U.S.C. § 1404(a).

For the convenience of parties

and witnesses, in the interest of justice, a district court may
transfer any civil action to any other district or division where
it might have been brought or to any district or division to
which all parties have consented.

28 U.S.C. § 1404(a).

parties have not consented to transfer.

All

The parties do not

dispute that the action could originally have been brought in the
Western District of Virginia.14
Factors to be weighed in a motion to transfer venue include:
“‘(1) the plaintiff’s choice of forum, (2) the convenience of
witnesses, (3) the location of relevant documents and relative
ease of access to sources of proof, (4) the convenience of

14

Plaintiffs do not concede that personal jurisdiction could be
maintained over all defendants who have not moved for a change of venue.

73

parties, (5) the locus of operative facts, (6) the availability
of process to compel attendance of unwilling witnesses, [and] (7)
the relative means of the parties.’”

D.H. Blair & Co. v.

Gottdiener, 462 F.3d 95, 106-07 (2d Cir. 2006) (quoting Albert
Fadem Trust v. Duke Energy Corp., 214 F. Supp. 2d 341, 343
(S.D.N.Y. 2002)).

The plaintiffs’ choice of forum is given great

weight, id. at 107, and defendants must make “‘a strong case for
transfer.’”

N.Y. Marine & Gen. Ins. Co. v. Lafarge N. Am., Inc.,

599 F.3d 102, 114 (2d Cir. 2010) (quoting Filmline (CrossCountry) Prods., Inc. v. United Artists Corp., 865 F.2d 513, 521
(2d Cir. 1989)).
Defendants argue that factors two through five all weigh in
favor of changing venue.
in Virginia.

Several defendants live or may be found

Lisa Miller was a resident of Virginia before she

disappeared, and much of the planning and activity related to her
disappearance took place in Virginia.

Defendants would likely

find it more convenient for the case to be tried in Virginia.
Plaintiffs prefer that the case be litigated in Vermont.

Other

than the parties, however, the defendants have not identified any
witnesses located in Virginia who would be inconvenienced by
trial in Vermont.

Likewise, concerning location of documents and

access to sources of proof, the defendants have not identified
evidence or other relevant material that is particularly
available or accessible in Virginia rather than Vermont.

74

With

respect to weighing the convenience of witnesses, parties and
access to proof, the balance does not strongly favor a transfer
to the Western District of Virginia.
Defendants identify the “locus of operative facts” as the
details of the abduction scheme, which was hatched and initiated
in Virginia.

Plaintiffs identify their claims as arising from

events in Vermont, Virginia and elsewhere, and attach
significance to the facts that set the stage for Lisa Miller’s
disappearance:

the civil union in Vermont, the adjudication of

the dissolution of the civil union in Vermont, and the
determination of parental rights and responsibilities in Vermont.
They argue, and the Court agrees, that this factor is at least
neutral.

The fifth factor therefore does not strongly favor a

transfer to the Western District of Virginia.
Concerning the sixth factor, Defendants suggest that
witnesses “are likely to reside in Virginia” and the Western
District of Virginia will be better able to compel attendance of
unwilling witnesses at trial, referring to the limitations on a
district court’s subpoena power.

Refiled Mot. for Change of

Venue 6, ECF No. 67; see Fed. R. Civ. P. 45(b)(2).

Absent

identification of the witnesses and some indication of their
unwillingness to testify in Vermont, the Court cannot find that
this factor strongly favors transfer.
The seventh factor, the relative means of the parties, is

75

neutral and therefore does not favor transfer.

Defendant Hyden,

for example, would sustain a substantial burden to defend this
lawsuit in Vermont.

Hyden Aff. ¶ 17, ECF No. 66-3.

Plaintiff

Jenkins would sustain a substantial burden to prosecute this
lawsuit in Virginia.

Jenkins Aff. ¶ 1, ECF No. 76-13.

Overall, the weight of the factors does not point decisively
to changing venue.

Defendants have therefore not sustained their

burden of showing a strong case for transfer.

Accordingly,

Defendants’ motions to transfer venue are denied.
Conclusion
Defendant Douglas Wright’s Motion to Dismiss the Complaint
for Lack of Personal Jurisdiction and Failure to State a Claim
Upon Which Relief Can Be Granted, ECF No. 40, is granted for lack
of personal jurisdiction.

Defendant Wright is dismissed from the

case, and Count Five of the Amended Complaint is dismissed.
Defendant Andrew Yoder’s Motion to Dismiss for Lack of Personal
Jurisdiction and Failure to State a Claim, ECF No. 62, is granted
for lack of personal jurisdiction, and Defendant Yoder is
dismissed from the case.

The Motion to Dismiss Claims Against

Defendant Christian Aid Ministries, Inc. for Failure to State a
Claim upon Which Relief Can Be Granted and for Lack of Personal
Jurisdiction, ECF No. 63, is granted for lack of personal
jurisdiction, and Defendant CAM is dismissed from the case.
Defendant Kenneth Miller’s Motion to Dismiss or, in the
76

Alternative, to Change Venue, ECF No. 56, is granted in part and
denied in part.

The Motion to Dismiss by Defendant Linda M. Wall

for Lack of Personal Jurisdiction, Improper Venue, and/or Failure
to State a Claim Upon Which Relief Can Be Granted, ECF No. 109,
is granted in part and denied in part.

The Re-Filed Motion to

Dismiss for Lack of Personal Jurisdiction, Lack of Venue, and
Failure to State a Claim on Behalf of Defendants Liberty
University, Inc., Thomas Road Baptist Church, Inc. and Victoria
Hyden, ECF No. 66, is granted in part and denied in part.
Defendants Liberty University and TRBC are dismissed for lack of
personal jurisdiction.
Counts Two and Three, alleging civil RICO violations, are
dismissed against all defendants for failure to state a claim.
Count Four, alleging a conspiracy to violate civil rights, is
dismissed, with leave to move to amend within sixty days of the
date of this decision.
The Motion to Dismiss of Defendants Philip Zodhiates and
Response Unlimited, Inc. for Lack of Personal Jurisdiction and
Improper Venue, ECF No. 57, is denied in part and denied in part
as premature.

Plaintiffs shall have sixty days from the date of

this decision to conduct jurisdictional discovery with respect to
Defendant RUL.
The Re-Filed Motion for Change of Venue on Behalf of
Defendants Liberty University, Inc., Thomas Road Baptist Church,
77

Inc. and Victoria Hyden, ECF No. 67, is denied.
Dated at Burlington, in the District of Vermont, this 24th
day of October, 2013.
/s/ William K. Sessions III
William K. Sessions III
United States District Court Judge

78