Jenkins v. Miller et al

Filing 161

OPINION AND ORDER denying 142 Renewed Motion to Dismiss for Lack of Jurisdiction; denying 143 Renewed Motion to Dismiss for Lack of Jurisdiction. Signed by Judge William K. Sessions III on 7/15/2014. (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, 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 RESPONSE UNLIMITED,
:
INC., LINDA M. WALL,
:
:
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, brings this action claiming
that defendants have kidnapped and conspired to kidnap Isabella.
Several defendants previously moved to dismiss for lack of
personal jurisdiction, and some were dismissed from the case on
that basis.1

Personal jurisdiction challenges brought by

defendants Philip Zodhiates, Victoria Hyden, and Linda Wall were
denied, and the Court granted leave for jurisdictional discovery
with respect to defendant Response Unlimited, Inc. (“RUL”).
1

caption.

The dismissed defendants are no longer listed in the case

Those four defendants have now renewed their motions to dismiss
in light of the United States Supreme Court’s ruling in Walden v.
Fiore, __ U.S. __, 134 S. Ct. 1115 (2014).

For the reasons set

forth below, the renewed motions are DENIED.
Factual Background
Lisa Miller and Janet Jenkins joined in a civil union under
Vermont law in 2000.2

In 2002, Miller gave birth to Isabella.

When Isabella was seventeen months old, Miller and Jenkins
separated and Miller moved with Isabella to Virginia.
At that time, Miller petitioned the Vermont Family Court to
dissolve her civil union with Jenkins and determine parental
rights and responsibilities with respect to Isabella.3

On June

17, 2004, the Family Court issued an order granting temporary
legal and physical responsibility to Miller, and setting a
visitation schedule for contact between Jenkins and Isabella.
That schedule included monthly visits and daily telephone
contact.

Miller allegedly failed to comply with the visitation

schedule, as aside from a visit on the first scheduled weekend,

2

In Vermont, 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 Family Division of
the Vermont Superior Court has 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.

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she did not allow Jenkins to have contact with Isabella either in
person or by telephone.
Miller subsequently filed a separate 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 original petition in Vermont, Miller had
invoked the jurisdiction of the courts of Vermont, and that
Virginia courts 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 granted sole physical
and legal custody 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 she again defied the court’s orders and was found
in contempt multiple times.
In August 2009, Jenkins moved to modify the family court
order concerning parental rights and responsibilities.

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Miller

did not attend the hearing on the motion, but filed an objection
to any transfer of custody.

In September 2009, before the

Vermont Family Court ruled on Jenkins’s motion, Miller left the
country with Isabella.

On November 20, 2009, the Vermont Family

Court concluded that Miller had willfully interfered with
Jenkins’s visitation rights, and transferred legal and physical
rights and responsibilities for Isabella to Jenkins as of January
1, 2010.

Miller and Isabella are believed to still be outside

the United States.
A government investigation subsequently determined that in
September 2009, Miller and Isabella traveled by car from Virginia
to Buffalo, New York, where they took a taxi across the border to
Ontario, Canada.

On September 22, 2009, they flew from Toronto

to Mexico City, and ultimately to Managua, Nicaragua.

The

tickets were purchased by Defendant Timothy Miller (no relation
to Lisa Miller), an Amish Mennonite pastor and missionary living
in Managua.

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 to request his assistance.
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.

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The charge against

Timothy Miller was dropped in exchange for his agreement to
cooperate with the investigation and to provide testimony if
needed.
The case against Kenneth Miller went to trial in August
2012.

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 details of a scheme to
help Lisa Miller remove Isabella from the United States, and to
further assist them once they were outside the country.

Ervin

Horst, a Mennonite pastor from Ontario, testified that he
received a telephone call from Kenneth Miller asking if he would
help someone 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,” whom he
understood was bringing Lisa Miller and Isabella from Virginia to
Buffalo.

Defendant Philip Zodhiates was the president of

Defendant RUL, a direct mail marketing company specializing in

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Christian and conservative causes.

Zodhiates’s cell phone, as

well as a cell phone assigned to RUL, traveled north from
Virginia to Buffalo that day.
While still in the United States, Lisa Miller had discussed
her situation with Defendant Linda Wall.

The Amended Complaint

alleges that Wall and Miller “decided and agreed as early as June
of 2008 that Lisa Miller should flee with Isabella.”
at 6, ¶ 26.

ECF No. 59

Wall and Lisa Miller and others launched the Protect

Isabella Coalition in the spring of 2008 to support Miller’s
efforts to avoid complying with court-ordered visitation.
Donations were solicited and a Facebook site established.

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 also advised anyone with knowledge of Miller’s

whereabouts not to reveal it.
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 was a pastor, and
she and her father were acquainted with Kenneth Miller.

On

September 20, 2009, both Philip Zodhiates and Victoria Hyden
allegedly called Lisa Miller’s father for assistance in arranging
a rendezvous at a parking lot where Lisa Miller abandoned her

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car.
After their flight to Nicaragua, Lisa Miller and Isabella
lived near or among the Amish Mennonite community in Nicaragua.
The plaintiffs allege on information and belief that Zodhiates
has arranged to have money and supplies sent to Lisa Miller in
Nicaragua.

The Amended Complaint also alleges that Victoria

Hyden solicited donations for supplies.
Procedural Background
The Court previously denied motions to dismiss for lack of
personal jurisdiction filed by Defendants Zodhiates, Hyden, and
Wall.

The Court found that each of these Defendants aimed

intentional tortious acts at Janice Jenkins, and “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.”
ECF No. 115 at 26 (citing Calder v. Jones, 465 F.3d 783, 389
(1984)). The Court further found that the exercise of personal
jurisdiction in the District of Vermont is reasonable, given the
plaintiffs’ interest in obtaining relief in their home state, and
Vermont’s “strong interest in adjudicating claims involving
repeated and flagrant violations of Vermont court orders and
seeking redress for injuries sustained by a Vermont resident.”
Id. at 37.

The Court also granted jurisdictional discovery with

respect to Defendant RUL.

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Discussion
Defendants Zodhiates, Hyden, Wall, and RUL (“movants”) now
renew their motions to dismiss, relying upon the Supreme Court’s
recent personal jurisdiction ruling in Walden v. Fiore, __ U.S.
__, 134 S. Ct. 1115 (2014).

In Walden, two travelers at the San

Juan, Puerto Rico airport were found by Transportation Security
Administration agents to be carrying $97,000 in their carry-on
bags.

One of the travelers, Gina Fiore, explained to agents from

the Drug Enforcement Agency (“DEA”) that she and the other
individual, Keith Gipson, had been gambling.

The two showed

State of California identification, and told the agents that they
had homes in California and Nevada.

The couple was allowed to

board their flight to Atlanta, with a connection to Las Vegas,
Nevada, but a DEA task force in Atlanta was notified.
Anthony Walden was a police officer working as a deputized
DEA agent at the Atlanta airport.

When Fiore and Gipson arrived

in Atlanta, he seized their cash and informed them that the money
would be returned if they later proved its legitimate source.
Fiore and Gipson flew on to Nevada, and Walden placed the money
in a secure location.

Walden subsequently drafted a probable

cause affidavit, which Fiore and Gipson claimed was false and
misleading.

No forfeiture complaint was ever filed, and the

funds were ultimately returned.
Fiore and Gipson filed a Bivens action against Walden in the

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United States District Court for the District of Nevada, alleging
violations of their Fourth Amendment rights.

The district court

granted Walden’s motion to dismiss for lack of personal
jurisdiction.

The Night Circuit reversed, and the case was heard

by the Supreme Court.
The Supreme Court found that Officer Walden did not have the
requisite minimum contacts for personal jurisdiction in the
District of Nevada.

The Court first noted that minimum contacts

are determined by evaluating “the defendant’s contacts with the
forum State itself, not the defendant’s contacts with persons who
reside there.”

Walden, 134 S. Ct. at 1122.

The Court further

stated that a “plaintiff cannot be the only link between the
defendant and the forum,” and that if the only factual basis for
jurisdiction was a “defendant’s relationship with a plaintiff or
third party,” an exercise of jurisdiction would be inconsistent
with due process.

Id. at 1122-23.

Applying these principles to the case at hand, the Court
concluded that personal jurisdiction was lacking because Officer
Walden had taken no action in Nevada, had no contact with Nevada,
and that none of his “challenged conduct had anything to do with
Nevada itself.”

Id. at 1124.

The Court noted that its holding

was consistent with Calder, in which it
made clear that mere injury to a forum resident is not
a sufficient connection to the forum. Regardless of
where a plaintiff lives or works, an injury is
jurisdictionally relevant only insofar as it shows that
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the defendant has formed a contact with the forum
State. The proper question is not where the plaintiff
experienced a particular injury or effect but whether
the defendant’s conduct connects him to the forum in a
meaningful way.
Id. at 1125.
Here, the movants’ relationships with Janet Jenkins,
Isabella, and the State of Vermont were fundamentally different
from Officer Walden’s connection to Nevada.

Jenkins was granted

certain rights by the Vermont state courts, and the movants
allegedly conspired to frustrate those rights.

Isabella’s

interests, as determined by the Vermont courts, were at issue as
well.

Jenkins’s parental rights, which ultimately consisted of

sole physical and legal custody, were to be exercised in Vermont.
The movants’ alleged actions were thus directed not only at a
forum resident, but at the forum itself.
Walden found that the police officer’s conduct had nothing
to do with Nevada, as he seized money from persons in Georgia who
had displayed California identification and were flying on to Las
Vegas.

In contrast, the movants in this case allegedly engaged

in a concerted effort to provide transportation and funds for
Lisa Miller and Isabella so that Miller could defy Vermont law
and cause harm to a person residing in Vermont.

That conduct

connected them “to the forum in a meaningful way.”

Id.

The Supreme Court held in Calder that a defendant’s
intentional and tortious out-of-state activity can establish

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specific personal jurisdiction.

465 U.S. at 789.

The Court’s

holding was based not merely upon the defendant’s contact with
the plaintiff, but also upon “the relationship among the
defendant, the forum, and the litigation.”

Id. at 788.

The

Court ultimately concluded that although the allegedly-wrongful
acts, the writing and editing of a scandalous news article, took
place in Florida, California was a proper forum because it was
“the focal point both of the [allegedly-libelous] story and of
the harm suffered.”

Id. at 789.

Here, the movants have allegedly interfered with Jenkins’s
parental rights, and specifically, her right to assert legal and
physical responsibility for Isabella.

Those rights arose out of

a Vermont civil union and subsequent Vermont Family Court
rulings.

Accordingly, Vermont was “the focal point” not only

because movants aimed to deprive Jenkins of her parental rights
in Vermont, but because specific rulings by Vermont state courts
granted those rights.

Id.

Walden presented a very different set

of facts, left undisturbed established Supreme Court precedent,
and does not dictate an alteration here.
Conclusion
For the reasons set forth above, the movants’ renewed
motions to dismiss (ECF 142, 143) are DENIED.

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Dated at Burlington, in the District of Vermont, this 15th
day of July, 2014.
/s/ William K. Sessions III
William K. Sessions III
United States District Court Judge

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