Jenkins v. Miller et al

Filing 277

OPINION AND ORDER denying in part 170 , 171 , 228 , 237 , 238 , 242 Motions to Dismiss and 239 , 243 Motions to Strike. Signed by Judge William K. Sessions III on 9/29/2017. (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.:
for itself and as an agent of
:
LIBERTY COUNSEL, LLC and LIBERTY
:
UNIVERSITY, PHILIP ZODHIATES,
:
individually and as an agent
:
for RESPONSE UNLIMITED, INC.,
:
VICTORIA HYDEN, f/k/a VICTORIA
:
ZODHIATES, individually and as an :
Agent for RESPONSE UNLIMITED, INC.,:
And LIBERTY UNIVERSITY, LINDA M.
:
WALL, RENA M. LINDEVALDSEN,
:
Individually and as an agent of
:
LIBERTY COUNSEL, LLC AND LIBERTY
:
UNIVERSITY, MATHEW D. STAVER,
:
Individually and as an agent of
:
LIBERTY COUNSEL, LLC AND
:
LIBERTY UNIVERSITY, LIBERTY
:
COUNSEL, LLC, AND LIBERTY
:
UNIVERSITY
:
:
Defendants.
:

Case No. 2:12-cv-184

OPINION AND ORDER
I.

Background

Plaintiff Janet Jenkins (“Jenkins”), for herself and as
next friend of her daughter Isabella Miller-Jenkins

(“Isabella”), brings this action against individuals and
organizations that she alleges conspired with her former samesex partner, Lisa Miller (“Miller”) to kidnap and transport her
daughter outside of the United States. After Philip Zodhiates, a
Defendant in this civil case, was indicted in the Western
District of New York on the basis of facts closely related to
the claims at issue here, this Court granted Defendants’ motion
to stay this civil case pending the resolution of that criminal
proceeding. ECF 192. On March 20, 2017, after Zodhiates was
tried and convicted, the Court issued an order granting
Plaintiffs’ motion to lift the stay of the civil case on the
date of Zodhiates’ sentencing or March 23, 2017, whichever
occurred later. ECF 220.

Zodhiates was sentenced at a hearing

on March 22, 2017, and judgment was entered in his criminal case
the following day. See United States v. Philip Zodhiates, Case
No. 1:14-cr-175-rja-jjm, ECF 183. Plaintiffs filed a revised
second amended complaint (“amended complaint”) in this case on
May 4, 2017, bringing two claims against all Defendants. ECF
223.
Count One of Plaintiffs’ complaint, entitled “intentional
tort of kidnapping,” alleges that Lisa Miller intentionally
kidnapped Isabella in order to interfere with Jenkins’ lawful
custody of her between the dates of September 25, 2009 and
September 27, 2009. In addition, Plaintiffs allege in that count
2

that Miller held Isabella in Nicaragua to interfere with
Jenkins’ lawful custody of Isabella between January 1, 2010 and
the present, and to thwart the equal protection afforded
Plaintiffs under Vermont law. Finally, Count One alleges that
Miller conspired with, and was aided and abetted by, Philip
Zodhiates (“Zodhiates”) and Victoria Hyden (“Hyden”),1 both
individually and as agents or officers of Response Unlimited,
Inc. (“RUL”), as well as RUL, Liberty Counsel, LLC, Liberty
University, Kenneth Miller, Timothy Miller, Linda Wall (“Wall”),
and (both individually and as agents of both Liberty University
and Liberty Counsel) Rena Lindevaldsen (“Lindevaldsen”) and
Mathew Staver (“Staver”).
Count Two of the complaint, entitled “Conspiracy to Violate
Civil Rights,” alleges that Lisa Miller conspired with Liberty
University, Liberty Counsel, RUL, Zodhiates, individually and as
an agent or officer of RUL, Hyden, individually and as an agent
or officer of RUL and Liberty University, Kenneth Miller,
Timothy Miller, Wall, Lindevaldsen and Staver, individually and
as agents of Liberty Counsel and Liberty University, to violate
Plaintiffs’ civil rights based on discriminatory animus against
same-sex couples and against Jenkins due to sexual orientation,

1

Victoria Hyden, Zodhiates’ daughter, was formerly known as Victoria
Zodhiates. The complaint refers to her by both names interchangeably. The
Court will refer to her as Hyden and to her father as Zodhiates throughout
this order.

3

to prevent the courts of Vermont and Virginia from securing to
them equal protection of the law, and to prevent or hinder state
authorities from securing equal protection of the law to samesex couples. Plaintiffs seek damages for Jenkins’ alleged
extreme emotional distress and loss of her daughter’s
companionship, legal fees and lost business resulting from the
obligations that arose in pursuing a legal remedy for the loss
of her daughter. They also seek damages for Isabella’s emotional
distress arising from her abduction, her loss of emotional and
financial support from her mother, as well as the loss of child
support payments, educational, medical and dental care, and the
support of her extended family, all of which is alleged to
result in an injury to Isabella’s property and future business
and employment.
Defendants Wall, as well as Liberty Counsel, Staver and
Lindevaldsen, subsequently filed two, separate special motions
to strike Plaintiffs’ claims on the basis of 12 V.S.A. § 1041,
Vermont’s “anti-SLAPP” statute. ECF 239, 243.2 In addition, Wall,
Liberty Counsel, Staver and Lindevaldsen, Liberty University,
and Zodhiates, Hyden and RUL filed four, separate motions to

2

That statute creates a mechanism whereby individuals who are sued for
conduct “arising from [their] exercise, in connection with a public issue, of
the right to freedom of speech or to petition the government for redress of
grievances under the U.S. or Vermont Constitution” may bring an early motion
to strike that action. These types of lawsuits have been labeled “strategic
lawsuits against public participation,” or “SLAPP.”

4

dismiss Plaintiffs’ amended complaint. ECF 227, 228, 237, 238,
240, 242. Defendants assert that Plaintiffs’ amended complaint
fails because: (1) this Court lacks personal jurisdiction over
some or all of them, (2) venue is improper in Vermont; (3) the
complaint fails to state a claim upon which relief can be
granted, since Plaintiffs have not sufficiently pled the
elements of a claim for custodial interference, conspiracy or
aiding and abetting under Vermont law, the elements of a Section
1985 conspiracy claim or, where relevant, facts establishing
vicarious liability; (4) as applied to some Defendants in this
case, Section 1985 violates the First Amendment of the U.S.
Constitution; and (5) Plaintiffs’ claims against some Defendants
are time-barred by the relevant statutes of limitation. Id. For
the foregoing reasons, the Court grants Defendants’ motions only
with respect to Isabella’s claim under Count One, Liberty
University’s vicarious liability under both counts for Staver’s
acts, and for lack of personal jurisdiction over Staver. The
Court otherwise denies Defendants’ motions to dismiss and
motions to strike.
II.
i.

Factual allegations

Allegations in the amended complaint
Isabella Miller-Jenkins is the daughter of Lisa Miller and

Janet Jenkins. Although Lisa Miller moved to Virginia with
5

Isabella when she was seventeen months old, courts in Virginia
and Vermont ruled that the family court of Rutland, Vermont has
exclusive and continuing jurisdiction over custody
determinations regarding Isabella. After petitioning for the
dissolution of her civil union with Jenkins in 2004, Miller
“asserted the belief that homosexuality was sinful and that
Isabella should be shielded from exposure to the ‘lifestyle.’”
ECF 223, p. 4. She began to deny court-ordered parent-child
contact between Isabella and Jenkins in 2004, and was found in
contempt that year. In 2004, Lisa Miller was accepted for
representation by “lawyers working at Liberty University and its
related law firm, Liberty Counsel, LLC.” Id. at 5.
In 2007, the Rutland family court awarded Lisa Miller legal
and physical parental rights and responsibilities over Isabella,
and ordered that Jenkins be entitled to custody during holidays,
vacations and some weekends. Lisa Miller initially complied with
these orders in 2007. However, in 2008, after Virginia and
Vermont courts affirmed Jenkins’ parental rights, she defied the
visitation orders and began to threaten future acts of custodial
interference. By June 2008, Lisa Miller “decided and agreed”
with her friend Linda Wall, a member of her church, that she
should flee with Isabella. In May of 2009, Jenkins filed a
Motion to Modify Parental Rights and Responsibilities in the

6

Vermont family court, requesting that the court transfer custody
of Isabella to her due to Lisa’s continued interference with
court ordered visitation. By late summer of 2009, Lisa Miller
and her “co-conspirators had devised a plan to kidnap Isabella
and avoid detection by infiltrating the Beachy Amish-Mennonite
Christian Brotherhood (“Brotherhood”) to enable her abduction of
Isabella.” Id. at 6. On September 4, 2009, after Lisa Miller was
held in contempt of the Vermont court’s orders by a Virginia
court, the Vermont family court issued an interim order
requiring contact between Jenkins and Isabella from September 25
to 27 of that year. On September 21, 2009, however, Philip
Zodhiates and at least one other RUL employee transported Lisa
Miller and Isabella to the Canadian border. The day before,
Zodhiates and his daughter had communicated with Lisa’s father
to assist in arranging for her transportation. Disguised as
Amish-Mennonites, Miller and her daughter crossed the border at
the Rainbow Bridge in a taxi on September 22, 2009. There, at
Kenneth Miller’s request, a member of the Brotherhood
transported Lisa Miller and Isabella to the Toronto airport,
where they boarded a flight to Nicaragua.
Timothy Miller, another member of the Brotherhood who had
purchased Lisa and Isabella’s plane tickets, met Lisa and her
child in Nicaragua. Isabella and Lisa Miller lived among the

7

Beachy Amish-Mennonite community in Nicaragua thereafter in
order to avoid detection by United States authorities. In
November of 2009, Rena Lindevaldsen and Linda Wall packed up
Lisa Miller’s personal belongings in two bags. Zodhiates picked
these up and arranged to send them to Nicaragua through his
son’s school teacher, who was traveling there and who delivered
the bags to Timothy Miller. Victoria Hyden also facilitated Lisa
Miller’s communication with Rena Lindevaldsen after that point
“in an attempt to help her duck service of contempt and
enforcement pleadings filed by Janet Jenkins.” Id. at 8.
Needless to say, Lisa Miller did not return Isabella for
the court-ordered visitation between September 25 and 27, 2009.
On November 20, 2009, the Vermont family court issued an order
transferring legal and physical parental rights and
responsibilities for Isabella to Jenkins beginning on January 1,
2010. When Jenkins arranged for a welfare check in December of
that year, police found that nobody was home. Jenkins informed
the Vermont family court that Lisa Miller seemed to be missing
on December 18, 2009.
The amended complaint alleges that certain defendants took
action to assist Lisa Miller even after she left the country.
For example, on the day that the Vermont court ordered a
transfer of custody, Kenneth Miller called Lisa Miller’s pastor
8

in Virginia to seek assistance in disposing of Lisa Miller’s
belongings. Moreover, since December 2009, Staver and
Lindevaldsen have maintained that they did not know of their
client’s location after she allegedly stopped communicating with
them and disappeared, making representations to this effect to
courts in Vermont and Virginia. The amended complaint asserts
that these statements were “demonstrably false” and that the
lawyers “misled courts in two states to delay contempt
proceedings aimed at locating Isabella.” Id. at 10-11. The
pleading also states that Staver and Lindevaldsen “knew the
identities of certain co-conspirators and solicited donations
and retrieved items to support the crime.” Id. at 11.
Furthermore, in 2010, Zodhiates allegedly transferred cash
through Kenneth Miller to Andrew Yoder, who would in turn
deliver it to Timothy Miller. Likewise, Wall sought donations
for Lisa Miller after January 2010. Finally, Lisa Miller
received additional assistance, including employment, from
Timothy Miller since she began living with the Brotherhood in
2009.
In addition to this course of events, the amended complaint
alleges facts tending to show that the co-defendants in this
case agreed with and supported Lisa Miller’s conduct, as well as
the ethical and religious motivations behind her decisions. As

9

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

10

had advised her that it would be in her best interests to
disappear.
ii.

Factual representations in Defendants’ affidavits
Defendants Lindevaldsen, Staver and Liberty Counsel’s

motion to strike makes extensive cross-references to the
arguments raised in their motions to dismiss, which in turn rely
on factual representations set forth in these defendants’
affidavits. ECF 238-1. Likewise, Defendant Wall’s motion to
strike references publically available, online sources to
further detail the nature of Wall’s advocacy for Lisa Miller, as
well as her own affidavit.
In her affidavit, Wall denied ever telling or suggesting to
Lisa Miller that she disobey any court orders, or that Lisa
Miller ever told her that she was intending to or would leave
the United States in order to avoid enforcement of court orders.
ECF 109-1. Instead, Wall represented that she solicited
donations during the 2008-2009 school year to help Lisa Miller
“defray her travel costs to Vermont related to child custody
issues concerning Isabella.” Id. at 3. However, Wall stated that
she has not communicated with Lisa Miller since September of
2009, and that she has not asked people to donate money to Lisa
Miller subsequent to June 2009. Id.

Nor, according to Wall, did

she herself give or ask others to give money or anything else of
11

value to Lisa Miller for the purpose of aiding Lisa Miller to
leave the United States. Likewise, Wall asserts that she has not
given money or anything of value to anyone other than Lisa
Miller for the benefit of Lisa or Isabella since the two left
the United States.
In addition, Wall denied any associations with the Thomas
Road Baptist Church in Lynchburg, Virginia alleged in the
complaint, and denied knowing or having contact with Timothy
Miller, Andrew Yoder, Philip Zodhiates, or Victoria Hyden. She
denied knowing or communicating with Kenneth Miller, except to
send him a card of encouragement when he was in jail in Vermont
awaiting trial on criminal charges. Finally, Wall stated that
she was never the administrator or webmaster of the Protect
Isabella Coalition website and never added content to that
website.
Lindevaldsen denied many facts asserted in the amended
complaint in her affidavits. ECF 213-2, 54-5. In particular,
Lindevaldsen stated that she never encouraged Lisa Miller or any
of the other named defendants to not allow Isabella to have
contact with Janet Jenkins, and that she never counseled Lisa
Miller to disobey court orders or to flee from the state, the
country or beyond the reach of any court or law enforcement. Nor
did she have knowledge of anyone else that counseled, encouraged
12

or assisted her in fleeing, or have prior knowledge that Lisa
Miller would flee. Rather, according to Lindevaldsen, Lisa
Miller stopped all communication with her in September 2009.
Lindevaldsen also denied receiving any email from Victoria Hyden
or discussing Lisa Miller with Hyden. Likewise, she asserted
that she did not receive a call from Zodhiates on September 22,
2009, after he allegedly drove Lisa Miller and Isabella to the
Canadian border, or speak to him about the legality of removing
Isabella from the country. Finally, Lindevaldsen denied speaking
with Wall by telephone on November 12, 2009 about removing Lisa
Miller’s belongings from her apartment, and represented that she
never visited Lisa Miller’s apartment and never packed up her
personal belongings in November 2009 or at any other time.
Similarly, Staver submitted an affidavit denying most of
the facts concerning his involvement in Isabella’s alleged
kidnapping in the amended complaint. ECF 213-1. Staver asserted
that he had no prior knowledge of Lisa Miller’s intent or plan
to leave the country or knowledge of anyone who may have
assisted or participated in her departure, and that he did not
counsel or suggest to Lisa Miller or others that she should
“disappear.” Rather, he asserted that he always counseled her to
obey all court orders. In this sense, he argued that he never
“misled courts” to “delay contempt proceedings aimed at locating

13

Isabella,” as the amended complaint states. Staver stated that
he was not aware of any email or other communication in which
Zodhiates mentioned a “personal option” for Lisa Miller to Mr.
Sidebottom, who was then employed by Liberty Counsel. He also
represented that he never received a call from Zodhiates or
anyone associated with him on September 22, 2009, and that he
does not know of anyone who received such a call. Nor did he
ever discuss disobeying any court order or the legality of
removing Isabella from the country with Zodhiates. Finally, he
denies ever having any communications with Victoria Hyden
regarding Lisa Miller or anything relating to her.
III. Standard of Review
To survive a Rule 12(b)(6) motion to dismiss for failure to
state a claim, “a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. Thus,
“where the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has

14

alleged—but it has not shown—that the pleader is entitled to
relief.” Id. at 679.
Defendants in this case have challenged the facts alleged
in the amended complaint through signed affidavits. Although
these may be considered for purposes of a motion to strike and
motions to dismiss pursuant to other provisions of Rule 12 of
the Federal Rules of Civil Procedure, the Court may not consider
them for purposes of Defendants’ motions to dismiss for failure
to state a claim. See 12 V.S.A.

§ 1041 (for purposes of a

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

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

Motion to Dismiss Count One

i.

Introduction
In three separate motions, Defendants Zodhiates, Hyden and

RUL, Linda Wall, and Liberty Counsel, Staver and Lindevaldsen
(hereinafter “Liberty Counsel Defendants,” because of their
joint motion) move to dismiss Count One of Plaintiffs’ amended
complaint, which alleges “the intentional tort of kidnapping,”
as well as conspiracy and aiding and abetting in the tort. This
Court previously addressed the validity of the same claim,
concluding that although the Vermont Supreme Court had not yet

3

“In considering a motion to dismiss for failure to state a claim pursuant to
Rule 12(b)(6), a district court may consider the facts alleged in the
complaint, documents attached to the complaint as exhibits, and documents
incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C.,
622 F.3d 104, 111 (2d Cir. 2010) (internal quotation omitted).

16

had occasion to determine whether an intentional tort of
kidnapping would be recognized in the state, that court would
likely agree that a claim of custodial interference consistent
with Section 700 of the Restatement (Second) of Torts would be
viable here.
As with their other challenges, Defendants’ arguments
against Plaintiffs’ kidnapping count overlap. First, Defendants
Liberty Counsel, Staver and Lindevaldsen contend that “this
Court’s previous prediction that Vermont courts would adopt a
Section 700 claim was and remains incorrect.” ECF 240, p. 80.
Linda Wall sets forth a similar argument, alleging that “at a
minimum, given the uncertainty of Vermont’s willingness to
recognize such a cause of action, this Court should certify the
question to the Vermont Supreme Court rather than hastily
prognosticate its validity.” ECF 242-1, p. 4. Next, the Liberty
Counsel Defendants argue that even if such a claim existed,
Jenkins cannot bring that claim against a custodial parent with
superior custodial rights, and as such cannot recover for
conduct occurring prior to January 1, 2010. They contend that
Jenkins failed to plead that any of them engaged in wrongful
conduct after that time, an omission which they claim
“irreparably destroys her custodial interference claim against
these defendants.” ECF 240, p. 90. Wall sets forth an identical

17

argument, citing her own affidavit for the notion that she,
also, was innocent of wrongful conduct occurring after January
1, 2010. Zodhiates, Hyden and RUL reiterate this argument in
their motion, although they do not limit their assertion in
time.
Moreover, Wall argues that Jenkins’ kidnapping claim on
behalf of Isabella fails because that action would attach only
to a parent, not a minor child. Likewise, the Liberty Counsel
Defendants contend that Isabella has no standing to pursue a
custodial interference claim.
In addition, Defendants assert that the pleadings fail to
sufficiently satisfy the elements of conspiracy or aiding and
abetting, independently of whether Plaintiffs could make out a
claim for custodial interference. Zodhiates, Hyden and RUL argue
that while this Court previously determined that Plaintiffs
could raise a claim for custodial interference under Vermont
law, it “did not address the issue of whether it was possible to
have a conspiracy to interfere with custodial rights.” ECF 227,
p. 10. They contend that such a claim, to the extent it exists
in Vermont, requires Defendants to have done something causing
damage to Plaintiffs which is “unlawful in itself,” and that,
since Lisa Miller’s actions were not unlawful, the conspiracy
claim cannot stand. ECF 227, p. 10. The Liberty Counsel
18

Defendants make the same argument as applied to their own
conduct, and also assert that Jenkins has failed to plead the
existence of an agreement that involves them. Finally, they
argue that Jenkins has failed to state a claim for aiding and
abetting, because she failed to plead that (1) these Defendants
committed any tortious act as part of a common design or
agreement; (2) they knew of Lisa Miller’s alleged actions or
provided substantial assistance to Lisa Miller for her alleged
actions; and (3) these Defendants’ actions separately
constituted tortious activity. The Court will address each of
these arguments in turn.
ii.

Analysis

1.

Existence of custodial interference claim
In ruling upon the validity of Plaintiffs’ kidnapping claim

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

19

Vermont Supreme Court would agree were it presented with the
same question.
To challenge the continued validity of this holding,
Liberty Counsel Defendants point to three out-of-state cases in
which other states’ courts declined to recognize a custodial
interference claim. See ECF 240, pp. 81-83 (citing Zaharias v.
Gammill, 844 P.2d 137 (Okl. 1992); Larson v. Dunn, 460 N.W.2d 39
(Minn. 1990); Whitehorse v. Critchfield, 494 N.E.2d 743 (Ill.
App. Ct. 1986)). In each of these cases, state courts
highlighted the need to reduce litigation between parents with
unequal custody over their children in order to protect those
children’s best interests.

Defendants argue that since Vermont

law also recognizes that “the best interest of the children
should be paramount,” and have noted that hostile custody
battles could harm children, “it is more likely that Vermont
Courts would reject creation of such a new tort based on the
same premises as Illinois, Minnesota and Oklahoma.” Id. at 84.
However, Defendants’ argument ignores the line of state court
decisions that have adopted the tort by pointing to the very
same policy considerations as those that were upheld in
Zaharias, Larson and Whitehorse. For example, in the more recent
case of Stone v. Wall, 734 So. 2d 1038, 1046–47 (Fla. 1999), the
Florida Supreme Court examined the best interests of the child

20

as a competing policy consideration, ultimately holding that
this factor weighed in favor of recognizing the tort. The Court
found that “[i]t is obviously in the best interests of children
to be returned promptly to their legal custodians,” and that
child kidnapping “has the potential for causing far greater harm
to the children than litigation.” Id. Given the directly
opposite interpretations of how the best interest of the child
standard would weigh on this determination, the mere fact that
Vermont has upheld this standard in other contexts does not in
itself counsel against recognizing the tort of interference with
parental rights.
Next, Defendants also argue that Vermont’s recognition of
certain causes of action for custodial parents in these
circumstances militates against the expansion of that legal
arsenal. As in other states, Vermont’s criminal statutes
proscribe kidnapping and custodial interference. See 13 V.S.A.
§§ 2405; 2451. The existence of alternative legal remedies,
however, could weigh either against or in favor of recognizing
the tort. In the three cases Defendants point to, state courts
took note of alternative remedies, both civil and criminal,
which might be available to parents in these circumstances as
reason not to adopt the tort. See Zaharias v. Gammill, 844 P.2d
at 138-140 (noting that “Oklahoma already recognizes a cause of

21

action in the parent or legal guardian of a child for the
abduction or enticement of that child,” and thus that “the tort
of interference with custodial relations would not enhance the
scheme of family law in Oklahoma.”); Larson v. Dunn, 460 N.W.2d
at 46 (Minn. 1990) (“The law in Minnesota already provides
redress for a custodial parent in such a situation.”).
However, other states have embraced a contrary logic. In
Stone v. Wall, for example, the Supreme Court of Florida
reasoned that since the tort of intentional interference did not
conflict with alternative legal remedies, such remedies did not
preclude the court from recognizing the tort. See Stone v. Wall,
734 So.2d at 1044-1045. Similarly, in Kessel v. Leavitt, the
Supreme Court of West Virginia found that the criminal
proscription against interfering with custodial rights provided
a rationale to recognize that tort, implying that the criminal
provision embodied an expression of the state’s public policy
against such conduct. 511 S.E.2d 720, 764 (W. Va. 1998) (citing
In D & D Fuller CATV Construction, Inc. v. Pace, 780 P.2d 520
(Colo. 1989) (en banc) as an example of a state basing its
adoption of the tort of interference with parental or custodial
relationships, in part, upon the fact that it had also
criminalized custodial interference). Thus, while under one line
of cases the criminal proscription of this conduct in Vermont

22

would undercut the need to create a separate civil cause of
action, another line of jurisprudence suggests that the criminal
provisions create policy rationale for the interference tort. In
short, the relevance of alternative legal remedies, if any, is
far from clear-cut. As such, the Court finds no reason to alter
its prior conclusion on this question.
In addition, Wall requests that, should the Court decline
to find that no such tort exists in the state of Vermont, it
should at least certify this question to the Vermont Supreme
Court. She points out that the Supreme Court may answer a
question of Vermont law certified to it by a federal court if
the answer might determine an issue in pending litigation and
there is no clear and controlling Vermont precedent. See Vt. R.
App. 14. Although that is the standard the Vermont Supreme Court
would deploy to determine whether it would accept the request to
answer a question certified to it, this Court’s decision to
certify in the first place is guided by Second Circuit
precedent. In State Farm Mut. Auto. Ins. Co. v. Mallela, 372
F.3d 500, 505 (2d Cir. 2004), the court explained that it has
“deemed certification appropriate where state law is not clear
and state courts have had little opportunity to interpret it,
where an unsettled question of state law raises important issues
of public policy, where the question is likely to recur, and

23

where the result may significantly impact a highly regulated
industry.” Here, a significant number of state courts have
interpreted this question, and the tort draws on common law
roots that have been recognized in this state for some time. See
Stone v. Wall, 734 So. 2d 1038, 1041–43 (Fla. 1999) (noting that
the tort “has its roots in English common law, descended from a
writ giving the father an action for the abduction of his heir,”
and that the “majority of states considering the question have
recognized a cause of action for intentional interference with
the custodial parent-child relationship.”); Wood v. Wood, 338
N.W. 123, 124-25 (Iowa 1983) (en banc) (“The claim for
interference with custody rights appears to have been recognized
in every jurisdiction which has addressed the issue.”); Bioni v.
Haselton, 134 A. 606, 607 (Vt. 1926) (treating custody of a
child as a form of property right). Moreover, while the tort
certainly raises an important issue, the public policy of the
state of Vermont on this matter has been expressed through its
criminal statutes. Finally, although custody conflicts are
common, the particular facts of this case are rare and
egregious. Thus, the question of whether a tort remedy would
apply to circumstances such as these is unlikely to recur. In
light of these factors, certification is not warranted here. As
such, the Court will not disturb its prior holding that tortious

24

interference with parental rights constitutes a cause of action
cognizable in this state.
2.

Temporal Scope of Custodial Interference Claim
Next, Defendants argue that even if the tort is recognized,

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

25

establish superior custody rights within the meaning of Section
700, even where parents had joint legal custody of the child).4
Here, Plaintiffs have alleged that Lisa Miller interfered
with Jenkins’ parental rights on two occasions: between
September 25 and 27, 2009, and between January 1, 2010 and the
present time. During the first interval, the amended complaint
alleges that Jenkins was entitled to contact with Isabella
pursuant to an Interim Order issued by the Vermont Family Court
on September 4, 2009, while Jenkins’ motion to transfer custody
was pending. Thus, the contact that Isabella and Jenkins missed
on those dates was not part of a regular visitation schedule,
but rather a temporary decision made before the Family Court
rendered its ultimate custody determination. During the second
interval, the amended complaint alleges that Jenkins was
entitled to legal and physical parental rights and
responsibilities for Isabella.
The Court need not decide, at this stage, whether the
Interim Order granting Jenkins contact between September 25 and
27, 2009 is sufficient to establish her superior custody rights

4

However, only two cases cited by Defendants specifically held that
interference with a parent’s visitation rights was insufficient to establish
superior custody rights for purposes of the tort during the time that that
parent should have had physical custody of the child. See Cosner v. Ridinger,
882 P.2d 1243 (Wyo. 1994); McGrady v. Rosenbaum, 62 Misc. 2d 182, 188 (N.Y.
Sup. Ct. 1970).

26

on those dates.5 Even if the Court were to assume, for the sake
of argument, that Jenkins could not assert a claim of tortious
interference against Lisa Miller for her deprivation of contact
with Isabella in September of 2009, there is no basis to hold
that the remaining defendants’ acts cannot have taken place
during this time. Plaintiffs have not alleged a claim of
tortious interference directly against these Defendants, but
rather assert claims of aiding and abetting Lisa Miller in the
commission of that tort and conspiracy to commit that tort.
Thus, so long as Defendants took actions in furtherance of
interfering with Jenkins’ parental rights after she was granted
full custody, there is no per se rule requiring the overt acts
or assistance to have taken place during or after the commission
of the actual tort.
In this case, the amended complaint alleges facts
supporting the inference that the Defendants’ acts in
furtherance of the abduction of Isabella were undertaken with
the expectation that Jenkins would soon have superior custody

5

Nevertheless, it is worth noting that, where a parent has abducted a child
and removed her from the country so as to prevent the other parent from
having equal contact with the child, some courts have recognized a claim for
interference against a third party who conspires with the parent. See
Rosefield v. Rosefield, 34 Cal. Rptr. 479, 482–83 (Ct. App. 1963) (“If,
however, one parent makes away with the offspring, removes it effectually
from judicial control, conceals it, and leaves the other parent utterly
bereft of the means of enjoying any of the privileges of parenthood, it is
folly to say that the decamping parent is merely exercising his ‘equal right’
to the custody of the child. There is no equality about it.”).

27

rights over Isabella. In fact, all of the alleged assistance
took place after Jenkins filed her Motion to Modify Parental
Rights and Responsibilities on May 27, 2009. The plan to “kidnap
Isabella and avoid detection by infiltrating the Beachy AmishMennonite Christian Brotherhood ... to enable [Lisa Miller’s]
abduction of Isabella” was allegedly devised thereafter, by the
late summer of 2009. ECF 223, p. 6. Additional facts permit the
Court to infer that this plan was devised in order to avoid the
consequences of Jenkins’ pending motion. For example, Zodhiates
sent an email implying that he and the Liberty lawyers were
aware that Lisa Miller would soon lose custody of Isabella, and
Lisa Miller held a press conference when she was fined for
contempt of the family court orders along with her conspirators.
Thus, the facts alleged sufficiently establish that Defendants
participated in a conspiracy, and aided and abetted Lisa Miller,
to interfere with Jenkins’ superior custody rights after January
1, 2010.
Even if Defendants had only taken acts to deprive Jenkins
of her custodial rights while Lisa Miller also had custody of
Isabella, the case law Defendants cite does not clearly
establish that this conduct would be permissible. First,
Defendants’ rely on Marshak v. Marshak, 629 A.2d 964 (Ct. 1993),
in which the Connecticut Supreme Court determined that third

28

parties who had supported a father in abducting his four
children to a different country while the father and mother had
equal custody over the children could not be held liable for the
tort of child abduction. That conclusion, however, was
subsequently questioned in the context of a criminal case of
child abduction. See State v. Vakilzaden, 742 A.2d 767, 771
(1999) (“Quite simply, the legal premise underlying our holding
in Marshak was faulty. We were wrong to conclude that a joint
custodian could never, under any scenario, be liable for
custodial interference.”). Moreover, in assessing the civil
claim against the third party who assisted the father prior to
his losing custody, the Court in Marshak relied on the fact that
no claim for civil conspiracy existed in Connecticut. Thus, “the
cause of action is for damages caused by acts committed pursuant
to a formed conspiracy rather than by the conspiracy itself.”
Marshak, 628 A.2d at 972 (citing Cole v. Associated Construction
Co., 141 Conn. 49, 54 (1954)). The requirement that the third
party’s act have occurred at a time when the abduction would
have been unlawful, therefore, stemmed from the law concerning
civil conspiracies in Connecticut. Id. (“Without an independent
basis for finding illegality in the defendant's actions in
allegedly conspiring with and aiding [the father] prior to … the
date of the order awarding custody to the [mother], and in the
absence of a specific finding that the defendant conspired with
29

or aided [the father] subsequent to that date, the [mother]
cannot prevail on her claim against this defendant.”). Thus,
Marshak does not provide a basis to require that all of
Defendants’ acts in this case have occurred after full custody
was transferred to Jenkins. Nor do Defendants’ other references
provide authority for such a claim. See Finn v. Lipman, 526 A.2d
1380, 1381-82 (Me. 1987) (holding that no action for tortious
interference lay where third party did not have direct contact
with children, so as to interfere with their father’s rights
while serving as an attorney for the children’s mother in the
relevant divorce proceeding); D & D Fuller CATV Const. Inc. v.
Pace, 780 P.2d 520 (Colo. 1989) (holding that court could
exercise jurisdiction over custodial interference claim against
third parties). Accordingly, the mere fact that some of
Defendants’ alleged actions to assist Lisa Miller may have taken
place before January 1, 2010 does not provide a basis for
dismissing Plaintiffs’ claim.
3.

Isabella’s claim for kidnapping
Next, Defendants also argue that Jenkins’ claim as next

friend of Isabella must fail as a matter of law because the
claim for custodial interference attaches only to a parent with
custody. On this question, Defendants are correct. Vermont Rule
of Civil Procedure 17(b) provides that a representative (or a
30

next friend or guardian ad litem, in the event that no
representative has been appointed) may sue on behalf of an
infant. The real party in interest in these circumstances would
therefore be the infant. See Vt. R. Civ. P. 17(a) (“Every action
shall be prosecuted in the name of the real party in
interest.”). However, § 700 of the Restatement (Second) of Torts
provides that an individual who interferes with a parent’s
custody “is subject to liability to the parent.” Since Isabella
was not a parent, and did not have custody, she cannot make out
this claim herself.6 Accordingly, the Court must dismiss Jenkins’
claim on behalf of Isabella under count one of the amended
complaint.
4.

Conspiracy
Aside from challenging the elements of the underlying tort

of interference with Jenkins’ custody, which Plaintiffs have
alleged only against Lisa Miller, Defendants also assert that
Jenkins has failed to state a claim for conspiracy against them.
In a non-precedential order issued by a three-judge panel, the
Vermont Supreme Court has called into question whether such a
cause of action should continue to exist in this state. See
Davis v. Vile, No. 2002-465, 2003 WL 25746021, at *3 (Vt. Mar.

6

Plaintiffs’ reference to the Vermont Supreme Court’s discussion of the
victims of the crime of custodial interference is unpersuasive, since it does
not address who the real party in interest would be in a civil context.

31

2003) (deciding whether superior court properly dismissed a
civil conspiracy claim by “[a]ssuming that there continues to be
an independent cause of action for the tort of civil
conspiracy,” but collecting cases from other jurisdictions in
which civil conspiracy is only considered as a basis for
imposing damages rather than a separate cause of action).
However, numerous cases from this Court have recognized such a
cause of action nonetheless. See, e.g., Saunders v. Morton, No.
5:09-CV-125, 2011 WL 1135132, at *9–11 (D. Vt. Feb. 17, 2011);
Mansfield Heliflight, Inc. v. Freestream Aircraft USA, Ltd., No.
2:16-CV-28, 2016 WL 7176586, at *15–16 (D. Vt. Dec. 7, 2016);
Dernier v. U.S. Bank Nat'l Ass'n for CSMC Mortg.-Backed PassThrough Certificates, Series 2006-3, No. 2:16-CV-000230, 2017 WL
2483799, at *6 (D. Vt. June 8, 2017). Following these decisions,
the Court predicts that in certain circumstances, a cause of
action for civil conspiracy may be recognized in Vermont.
Under Vermont law, “the crime of conspiracy consists in a
combination of two or more persons to effect an illegal purpose,
either by legal or illegal means, or to effect a legal purpose
by illegal means. For a civil action, the plaintiff must be
damaged by something done in furtherance of the agreement, and
the thing done must be something unlawful in itself. There can
be no recovery unless illegal means were employed.” Akerley v.

32

N. Country Stone, Inc., 620 F. Supp. 2d 591, 600 (D. Vt. 2009)
(internal quotations and alterations omitted). Thus, at a
minimum, Defendants must have reached an agreement. In this
case, the amended complaint alleges that this agreement was for
the purpose of interfering with Jenkins’ parental rights between
September 25 and 27, 2009 and as of January 1, 2010. In
addition, the act done in furtherance of that end by each
defendant held liable for the conspiracy must be “unlawful in
itself.”
Liberty Counsel Defendants first argue that Plaintiffs have
failed to allege the requisite agreement in the amended
complaint. They contend that any allegations of agreement are
vague and conclusory, and do not involve them.7 However, the
complaint sets forth facts that, taken together, establish that
Defendants agreed to this common goal. For example, paragraph 29
states that RUL “was working in conjunction with the lawyers at
Liberty Counsel to raise funds in support of the effort to
terminate [Jenkins’] contact with her daughter, Isabella,” and
states that as part of this work, Zodhiates offered Liberty
Counsel a “personal option” for Lisa Miller in the event that
her legal fight failed. ECF 223, p. 6. The allegation that
Liberty Counsel lawyers were “working in conjunction” with

7

Defendants also include extensive citations to their own affidavits denying
the facts in the complaint. For purposes of determining whether the complaint
fails to state a claim, the Court must ignore those affidavits at this stage.

33

others to interfere with Jenkins’ custody by legal or illegal
means would itself suffice to establish the requisite agreement.
Moreover, paragraph 34 alleges, in a more conclusive fashion,
that by “late summer of 2009, Lisa Miller and her coconspirators had devised a plan to kidnap Isabella and avoid
detection by infiltrating the Beachy Amish-Mennonite Christian
Brotherhood (“Brotherhood”) to enable her abduction of
Isabella.” Id. Although that paragraph does not clearly
delineate who those co-conspirators were, Plaintiffs’ later
claims make clear that these co-conspirators include the Liberty
Counsel Defendants. Given these specific and conclusory factual
claims, Plaintiffs have satisfied their burden of alleging
agreement with respect to the Liberty Counsel Defendants.
Next, Liberty Counsel Defendants also assert that the
conspiracy claim must fail because there is no underlying act
liability: that is, no liability for the alleged underlying
tort. However, as noted above, Defendants cannot show that
Plaintiffs have failed to state an underlying claim for tortious
interference.8 Even if the Court were to construe this challenge
as asserting that the means that Defendants employed in
furtherance of the agreement were not unlawful, that argument
would also fail. Plaintiffs have alleged that Lindevaldsen aided

8

For this reason, Defendants Zodhiates, Hyden and RUL’s challenge to the
sufficiency of the conspiracy claim must fail as well.

34

Lisa Miller by packing her belongings after she fled, as part of
a scheme to abduct Isabella “in such a way as to avoid detection
by United States authorities.” Id. at 7. They have also alleged
that Lindevaldsen and Staver lied to state courts about their
knowledge of Isabella and Lisa Miller’s whereabouts. Aside from
whether these actions could themselves constitute a component of
the tort of intentional interference with Jenkins’ custody,
there is no question that they would also violate other
provisions of Vermont law if proven to be true. See, e.g., 13
V.S.A. § 2904 (false swearing). Accordingly, Plaintiffs have
pleaded sufficient facts to allege a conspiracy claim against
the Liberty Counsel Defendants.
Separately, Wall also asserts that Plaintiffs have failed
to state a claim of conspiracy against her. She does not,
however, lay out a specific argument as to why the facts alleged
in the amended complaint about her conduct fail to meet the
elements of that claim. In fact, the amended complaint plainly
alleges an agreement, stating that Linda Wall discussed Lisa
Miller’s plans for preventing Jenkins’ contact with Isabella and
agreed to support her in fleeing the country with Isabella. It
also alleges that Linda Wall raised funds to support the
kidnapping and packed Lisa Miller’s belongings as part of a
scheme to allow Miller to flee without being detected by U.S.

35

authorities.

Given the criminal nature of Lisa Miller and

Zodhiates’ conduct, the Court has no trouble finding that Wall’s
conduct constituted an unlawful means in furtherance of that
agreement. Accordingly, Plantiffs have sufficiently pleaded a
claim of conspiracy against Wall, as well.
5.

Aiding and abetting
Finally, Defendants assert that Plaintiffs have failed to

state a claim for aiding and abetting. However, Liberty Counsel
Defendants identify an incorrect standard to determine whether a
party can be held liable for aiding and abetting in the
commission of a tort. According to the very case they cite,
Montgomery v. Devoid, 915 A.2d 270 (Vt. 2006), aiding and
abetting another in the commission of a tort requires a
plaintiff to show “(1) the existence of a primary violation; (2)
knowledge of this violation on the part of the aider and
abettor; and (3) substantial assistance by the aider and abettor
in the achievement of the primary violation.” Id. at 278 (citing
Calcutti v. SBU, Inc., 273 F.Supp.2d 488, 493 (S.D.N.Y.2003)).
“Closely intertwined with the concept of ‘substantial
assistance’ is the principle of proximate cause.” Id. In that
case, the Vermont Supreme Court cited the standard discussed by
Defendants, drawing from the Restatement (Second) of Torts
§ 876, in addressing whether a joint tortfeasor should be held
36

liable for the entirety of harm caused to a plaintiff or only
for a portion of it. Thus, the court noted that “[a] person is
subject to liability for harm resulting to a third person from
the tortious conduct of another if the person: (1) commits a
tortious act as part of a common design with the other; (2)
gives substantial assistance to the other knowing that the
other's conduct is a breach of duty; or (3) gives substantial
assistance to the other to accomplish a tortious result while
also acting in a manner that is a breach of duty to the third
person. ” Id. at 281 (citing Restatement (Second) of Torts § 876
(1979)).
Regardless of which standard one applies, Defendants’
argument in this case is unavailing. Defendants contend that
Plaintiffs have failed to plead that they provided substantial
assistance to Miller. However, the amended complaint alleges
that Defendants made misrepresentations to state courts in order
to delay contempt proceedings aimed at locating Isabella. If, as
the amended complaint alleges, Liberty Counsel’s lawyers in fact
knew of Lisa Miller’s plan to flee with Isabella, a truthful
statement would have likely aided law enforcement in preventing
the kidnapping. As such, the misrepresentation constitutes
substantial assistance. Moreover, the assistance the lawyers
provided by lying about their knowledge of Lisa Miller’s

37

whereabouts was done with knowledge of Lisa Miller’s duty to
turn over physical custody of Isabella pursuant to the family
court’s Interim Order, as well as Jenkins’ pending motion to
transfer custody of Isabella. Moreover, as discussed above,
Plaintiffs have alleged that Liberty Counsel lawyers acted
pursuant to an agreement to prevent Jenkins’ contact with
Isabella. Thus, whether one applies the standard in Calcutti or
the first prong of § 876 of the Restatement (Second) of Torts,
Plaintiffs have sufficiently plead a claim for aiding and
abetting Lisa Miller’s tortious interference with Jenkins’
custody. As such, the Court denies Defendants’ motions
challenging Count One of Plaintiffs’ amended complaint for
failure to state a claim.
B.

Motions to Dismiss Count Two

i.

Introduction
In four separate motions, Defendants also move to dismiss

the Plaintiffs’ claim of conspiracy to violate civil rights
(Count Two) for failure to state a claim. See ECF 242, pgs. 5-6;
ECF 237, pgs. 15-17; ECF 227, pgs. 11-20; ECF 240, pgs. 100-114.
Wall asserts that, as applied to her, Plaintiffs’ claim fails to
allege facts concerning her state of mind with sufficient
specificity, fails to assert that she committed a tort, and
fails to sufficiently allege that Defendants acted with the
38

force required to make out a claim under 42 U.S.C. § 1985. ECF
242, pgs. 5-6. Liberty University claims that this count fails
as applied to it because Plaintiffs have failed to allege that
the harm they suffered was caused by a policy or custom of the
University, and that as such, they cannot be held liable under a
theory of vicarious liability. ECF 237, pgs. 15-17. Defendants
Zodhiates, Hyden and RUL also argue that Plaintiffs have failed
to establish that they acted with such a degree of force as
would interfere with the capabilities of state law enforcement,
which they contend is required under § 1985. Moreover, they
argue that that the Plaintiffs have failed to allege facts that
they acted with animus, or even that go to their states of mind.
Finally, these Defendants argue that because sexual
orientation and same-sex couples were not a protected class at
the time that the events at issue took place, applying § 1985 to
penalize their conduct would violate retroactivity norms.
Defendants Liberty Counsel, Staver and Lindevaldsen rely on
their own affidavits to argue that, as a result, Plaintiffs
cannot allege facts that establish a meeting of minds sufficient
to support a conspiracy claim. Moreover, they assert that
Jenkins cannot prevail on her § 1985 claim because she is not a
member of a protected class, since she is not in a same-sex
marriage. Likewise, they argue that Jenkins, on behalf of

39

Isabella, cannot prevail on her § 1985 claim because the
complaint does not allege that Defendants acted with
discriminatory animus against Isabella, either on the basis of
sexual orientation or membership in a same-sex couple. Finally,
they argue that since Plaintiffs claim that their equal
protection rights have been infringed upon, and since the right
to equal protection is protected only against state
encroachment, Plaintiffs must allege state action. Having failed
to allege participation by the state in the alleged wrongdoing,
Defendants contend, Plaintiffs cannot prevail on this claim. The
Court reviews these arguments in turn. For the reasons discussed
below, Defendants’ challenges to Count Two of Plaintiffs’
amended complaint are denied.
ii.

Analysis
Plaintiffs bring Count Two of their amended complaint

pursuant to Section 2 of the Civil Rights Act of 1871, also
known as the Klu Klux Klan Act. That provision, codified at 42
U.S.C. § 1985(3), 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
40

giving or securing to all persons within such State ... the
equal protection of the laws.” Id. The first section is known as
the “deprivation” clause, while the second is known as the
“hindrance” clause. See Bray v. Alexandria Women's Health
Clinic, 506 U.S. 263, 278–79, 113 S.Ct. 753, 122 L.Ed.2d 34
(1993). Plaintiffs bring their claim pursuant to the latter
clause.
1.

Force requirement
Defendants Zodhiates, Hyden and RUL, along with Linda Wall

and Liberty Counsel, Staver and Lindevaldsen by reference argue
that Plaintiffs have failed to allege that they acted with the
force required under Section 1985. They review the Supreme
Court’s construction of the Ku Klux Klan Act’s legislative
history in Bray v. Alexandria Women’s Health Clinic, 506 U.S.
263, 300 (1993) to argue that, in order to be actionable, a
conspiracy must entail action “with enough force, of whatever
sort, to overwhelm the capacity of legal authority to act
evenhandedly in administering the law.” Here, these Defendants
claim, “the allegations suggest, at best, that some of the
Defendants sought to evade law enforcement,” but that the law
enforcement system was equipped to handle the type of wrongdoing
at issue by issuing sanctions. Holding otherwise, they argue,

41

“will turn routine non-compliance with state custody orders into
federal cases.” ECF 227, p. 16.
Even if this Court assumes, for the sake of discussion,
that Bray requires such a showing of force, however, Plaintiffs
have not failed to allege it in this case. Contrary to
Defendants’ suggestion, this is precisely the type of case where
the forceful nature of the action at issue –kidnapping of a
child and assisting in her physical transportation overseas in
order to escape the jurisdiction of state courts- overwhelmed
law enforcement capacity.

Moreover, the particular defendants

who raised this claim –especially Zodhiates and Hyden –were
directly involved in Isabella’s removal to Canada and then to
Nicaragua. Accordingly, to the extent that § 1985 requires a
Plaintiff to allege force, Plaintiffs have clearly done so in
this case.
2.

State action requirement
Defendants Liberty Counsel, Staver and Lindevaldsen also

contend that Plaintiffs have failed to allege the requisite
state action to support her claim under either the hindrance
clause or the deprivation clause of § 1985. In this Court’s
first order on a number of defendants’ motions to dismiss, the
Court addressed whether the deprivation clause required state
action. See ECF 115, p. 64. In particular, the Court noted that
42

the Supreme Court had recognized only two rights protected
against private as well as official encroachment under the
deprivation clause: the right to be free form involuntary
servitude and the right to interstate travel. ECF 115, p. 65
(citing Bray, 506 U.S. at 278). The first of these rights is
clearly not implicated by the facts alleged in this case. And
since Plaintiffs had failed to allege a conspiracy that was
aimed primarily at impeding or preventing the exercise of
interstate travel, the Court found that neither right was
implicated. Accordingly, the Court concluded that Plaintiffs had
failed to state a claim under the deprivation clause of Section
1985. Since Plaintiffs’ amended complaint does not now allege
facts to suggest that the purpose of the conspiracy was to
interfere with their right to interstate travel, it does not
substantially alter the facts relevant to this analysis.
Accordingly, if the Plaintiffs had only alleged a claim under
the deprivation clause of § 1985, the § 1985 count would fail.
However, Plaintiffs have brought a claim under the
hindrance clause of § 1985, asserting that the Defendants
conspired “to prevent the courts of Vermont and Virginia from
securing to them the equal protection of the law, and to prevent
or hinder State authorities from securing the equal protection
of the law to same-sex couples.” ECF 223, p. 13. In addressing a

43

hindrance clause claim in its earlier order, this Court declined
to decide whether a hindrance clause claim is limited to rights
protected only against official encroachment, or whether
interfering with state officials necessarily implicates the
state action that would be required to make out a hindrance
clause claim. Rather, this Court concluded that 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 under either of these standards.
See ECF 115, p. 69.
Once again, Defendants now challenge this Court’s
conclusion on that question. The argue that the Supreme Court in
Bray decided this question to the contrary, and that “the
majority of circuits to address this issue have concluded ...
that the Hindrance Clause requires state action for rights whose
infringement is protected only against official encroachment.”
ECF 240, p. 128. However, a renewed look at Bray and the
authorities cited by the parties contrasts bluntly with
Defendants’ conclusion.
In Bray, a majority of the Supreme Court declined to
address whether Plaintiffs had established a claim under the
“hindrance” clause. Bray, 506 U.S. at 279 (“The ‘hindrance’44

clause issue is not fairly included within the questions on
which petitioners sought certiorari.”). Rather, Justice Scalia,
writing for the majority, noted that the question of whether a
hindrance clause claim would be viable in the context of that
case was “far from” an easy one. Id. at 281. In dicta, Scalia
concluded that, on the facts of that case, the claim would fail
“unless the ‘hindrance’ clause applies to a private conspiracy
aimed at the rights that are constitutionally protected only
against official (as opposed to private) encroachment.” Id. at
282-83. Although he expressed disagreement with Justice Souter’s
analysis of this question in dissent, and with Justice
O’Connor’s contrary conclusion on the matter without analysis,
he did not provide an independent interpretation of whether the
hindrance clause would apply in those circumstances. Justice
Souter, in contrast, would have resolved that issue in favor of
Plaintiffs alleging a private conspiracy aimed at depriving them
of their constitutionally-protected rights. Id. at 340 (“A
conspiracy that seeks to interfere with law enforcement
officers’ performance of their duties entails sufficient
involvement with the State to implicate the federally protected
right ... and to give rise to a cause of action under §
1985(3).”).

45

Moreover, contrary to what Defendants allege, circuit
authority does not weigh in favor of finding that state actors
must actually be involved in a conspiracy in order for that
party to state a claim under the hindrance clause. In fact, in a
pre-Bray decision, the Second Circuit reached the opposite
conclusion, holding that plaintiffs could state a claim under
the hindrance clause for a conspiracy by private actors to
hinder the state’s ability to enforce their Fourteenth Amendment
rights through the means chosen by the state to do so. See
People by Abrams v. 11 Cornwell Co., 695 F.2d 34, 43 (2d Cir.
1982), vacated sub nom. People of State of N.Y. by Abrams v. 11
Cornwell Co., 718 F.2d 22 (2d Cir. 1983) (“In short, we think
that both the nature of 11 Cornwell's conduct and the class
basis of the discrimination complained of are sufficient to make
out a colorable claim that 11 Cornwell prevented or hindered the
State from providing the mentally retarded with “equal
protection of the laws” within the meaning of section
1985(3).”). Although Scalia’s opinion in Bray called this
holding into question, it did not overrule it. Nor has the
Second Circuit subsequently overturned that basic conclusion in
Abrams. Accordingly, the Court will apply this rule of decision
to the matter at hand.

46

Moreover, Defendants’ references to other Courts of
Appeals’ decisions and District Court authorities in this
circuit are unavailing because these cases either dealt with
claims brought under the deprivation clause or did not
distinguish between the requirements of the hindrance and
deprivation clauses. For example, the Tenth Circuit in Tilton v.
Richardson, 6 F.3d 683, 687 (10th Cir. 1993) rejected the
plaintiff’s argument that he could state a valid cause of action
because his complaint alleged a “private conspiracy aimed at
influencing State conduct.” It did so, however, in the context
of discussing a deprivation clause claim, and never held, as
Defendants contend, that “the Hindrance Clause also requires
state action.” ECF 240, p. 129. Likewise, Brown v. Phillip
Morris, Inc. and Ramirez v. City of Wichita also dealt with a
deprivation clause claim. See Brown v. Phillip, 250 F.3d 789,
805 (3d Cir. 2001) (“[Plaintiffs] assert the deprivation of a
different type of rights: those of property and contract.”);
Ramirez v. City of Wichita, 78 F.3d 597 (10th Cir. 1996) (“Mr.
Ramirez has failed to demonstrate any deprivation of his equal
protection or equal privileges and immunities.”). Finally, the
Third Circuit in Magnum v. Archdiocese of Philadelphia, 253 F.
App’x 224, 229-31 (3rd Cir. 2007) upheld the dismissal of the
plaintiffs’ § 1985 claim on the ground that they had not pleaded
a violation of any right protected against private encroachment,
47

but did not acknowledge a distinction between the hindrance
clause and the deprivation clause, or specifically address the
state action requirement.
Moreover, some of the authorities Defendants cite
acknowledge that state action is not always required to state a
claim under § 1985. For example, in Sanders v. Prentice-Hall,
the Sixth Circuit expressly acknowledged that “Section 1985 does
not explicitly require state action,” that it “can reach private
conduct designed to interfere with certain civil rights,” and
that a conspiracy may violate § 1985 if “the aim of the
conspiracy is to influence the activity of the state.” 178 F.3d
1296 (6th Cir. 1999). Likewise, in Stevens v. Tillman, the
Seventh Circuit recognized that § 1985(3) would reach “raciallymotivated conspiracies to deprive persons of rights secured only
against governmental action ... provided the defendants are
either state actors or seeking to influence the state to act in
a prohibited way.” 855 F.2d 394, 405 (7th Cir. 1988) (emphasis
added). Ultimately, however, the court ruled that the claim
failed because state actors were not, in fact, influenced as the
plaintiff alleged, and therefore the plaintiff “did not suffer
injury at official hands.” Id.9

9

Finally, Defendants reference one Ninth Circuit case that relied on an
outdated citation of the elements of a § 1985(3) cause of action. Hoffman v.
Halden, 268 F.2d 280 (9th Cir. 1959), overruled by Cohen v. Norris, 300 F.2d

48

Finally, those authorities that have recognized a hindrance
clause claim without requiring actual state involvement in a
conspiracy have provided a compelling rationale for doing so.
For example, the Second Circuit acknowledged in Abrams 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.” Abrams, 695 F.2d at 43. As a
result, requiring such state action would undercut the hindrance
clause altogether. Moreover, as the First Circuit reasoned in
Libertad, hindering a state effort to provide equal protection
itself clearly implicates state action. Libertad v. Welch, 53
F.3d 428 (1st Cir. 1995). Therefore, eliminating the state
action requirement in the hindrance clause context would not
unreasonably expand the scope of liability under § 1985(3). In
light of these reasons, and given the dearth of compelling
authority to the contrary, the Court finds that the
participation of state actors is unnecessary to state a claim
under the hindrance clause.
3.

Discriminatory animus

24 (9th Cir. 1962). Even there, where the court required a showing that “the
acts complained of were done under color of state law or authority,” the
court acknowledged that “private discrimination is not inequality before the
law unless there is some manipulation of the law or its agencies to give
sanction or sanctuary for doing so.” Id. at 291.

49

To state a claim under § 1985(3), Plaintiffs must also
allege “some racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the conspirators’
action.” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). In
Bray, the majority noted that “the ‘hindrance’ clause would seem
to require the same ... animus that the ‘deprivation’ clause
requires.” 506 U.S. at 281. Justice Souter similarly agreed that
an animus requirement would apply, but concluded that “classbased animus can be inferred if the conspirators’ conduct
burdens an activity engaged in predominantly by members of the
class.” Id. at 342. Thus, the parties in this case do not
dispute that Plaintiffs must allege animus in order to make out
a claim, and this Court has previously held that such animus may
be based on a protected status other than race. ECF 115, pp. 5658.
The Liberty Defendants contend, however, that Plaintiffs’
claim must fail because “any alleged discrimination on the basis
of [Jenkins’] purported sexual orientation is not protected
under Section 1985.” ECF 240, p. 123. In particular, they argue
that the Supreme Court’s two most recent cases addressing the
rights of gays and lesbians –United States v. Windsor, 133 S.
Ct. 2675 (2013) and Obergefell v. Hodges, 135 S. Ct. 2584 (2015)
–did not recognize homosexuals as a suspect or quasi-suspect

50

class, or apply strict or intermediate scrutiny to their equal
protection claims. As such, they argue, this Court should follow
authorities pre-dating these cases (some by more than thirty
years), which refused to recognize homosexuals as a class for
purposes of § 1985. Plaintiffs respond that Defendants’
citations to pre-Windsor case law is either completely
misleading (in that the cases do not hold what Defendants claim
they do) or have been called into question by the Supreme
Court’s recent jurisprudence.
The Court agrees, and will focus its analysis on the state
of the law as it stands after Windsor and Obergefell. First,
although the animus required to state a claim under Section 1985
is connected to the scope of constitutional protection a group
is afforded, the two are far from synonymous. Rather than
require that, to be protected by § 1985(3), a group be
recognized as a suspect or quasi-suspect class for
constitutional purposes, or that discrimination against that
class be subject to strict or intermediate scrutiny, the Second
Circuit has merely asked whether conspiracies against that class
would be “inherently invidious, and repugnant to the notion of
equality of rights for all citizens.” New York State Nat. Org.
for Women v. Terry, 886 F.2d 1339, 1359 (2d Cir. 1989).10 In

10

Defendants’ citation to authorities from other circuits in reply does not
override the approach enunciated by the Second Circuit.

51

doing so, it held that Ҥ 1985(3) is necessarily tied to
evolving notions of equality and citizenship.” Id. Thus, the
mere fact that the Supreme Court in Windsor and Obergefell did
not specify which level of scrutiny it would use, or expressly
categorize gays and lesbians as members of a suspect or quasisuspect class, does not itself preclude a finding that gays and
lesbians constitute a class for purposes of § 1985(3).
Rather, more significant to this Court’s understanding of
the scope of § 1985(3) protection is the Supreme Court’s
thorough, recent discussion of the forms of discrimination to
which gays, lesbians and members of their family have been
subjected in the past. See Obergefell, 135 S. Ct. at 2598. The
Court found that historically, “many persons did not deem
homosexuals to have dignity in their own distinct identity. A
truthful declaration by same-sex couples of what was in their
hearts had to remain unspoken.” Id. The “legal question of samesex marriage” therefore arose against this backdrop of
discrimination against gays and lesbians on the basis of their
sexual orientation. Id. The Court ultimately grounded its
ruling, holding that states could not deny homosexuals the right
to marry, on both the Due Process Clause and the Equal
Protection Clause of the Fourteenth Amendment. Both the
protection of fundamental rights and of equal protection inhere

52

in the individual person. Thus, in its discussion of the
fundamental right to marry, the Court first emphasized that “the
right to personal choice regarding marriage is inherent in the
concept of individual autonomy.” Id. at 2599. Moreover, denying
that right to personal choice on the basis of sexual orientation
“has the effect of teaching that gays and lesbians are unequal
in important respects. It demeans gays and lesbians for the
State to lock them out of a central institution of the Nation's
society.” Id. at 2602. The resulting subordination of
individuals on the basis of their sexual orientation was thus
central to the Court’s equal protection analysis. Id. at 2604
(“Especially against a long history of disapproval of their
relationships, this denial to same-sex couples of the right to
marry works a grave and continuing harm. The imposition of this
disability on gays and lesbians serves to disrespect and
subordinate them.”). In short, while this Court previously
acknowledged the protection that Windsor provides to same sex
couples, the Supreme Court’s decision in Obergefell clearly
establishes that the constitutional protection afforded to gays
and lesbians arises from their historic subordination as a
class, and that it attaches to them as individuals. As such,
Jenkins’ allegation that Defendants conspired to violate her
civil rights based on discriminatory animus due to her sexual
orientation states a valid claim under § 1985(3).
53

Defendants also contend that because Jenkins and Lisa
Miller never married, Jenkins cannot allege that Defendants
acted against her with discriminatory animus against same-sex
couples. In their view, Obergefell “only addressed protections
related to a class of individuals joined in same-sex marriages.”
ECF 240, p. 125. As explained above, however, membership in a
same-sex marriage was not, in fact, the basis of protection the
Court afforded this historically subordinated group. Rather, it
was the long history of discrimination against homosexuals due
to their sexual orientation, along with the particular
infringement of their dignity that exclusion from marriage would
impose, that motivated the Court’s holding. Moreover, even if
formalistic membership in a same-sex couple were the source of
the Court’s constitutional protection, Jenkins has alleged that
the animus against her arose as a consequence of her same-sex
partnership. Had Jenkins not been partnered with Lisa Miller,
and had that coupling not been between members of the same sex,
the animus Jenkins alleges here would not have arisen.
Accordingly, the Court is not persuaded that the mere fact that
Jenkins and Lisa Miller were never married strips Jenkins of
protection under § 1985(3).
Finally, Defendants also contend that Jenkins’ claim as
next friend of Isabella fails because Jenkins has not alleged

54

animus directed at Isabella. Once again, Defendants incorporate
a lengthy string-cite without substantive discussion of the
relevant authorities. And yet again, Defendants’ references are
largely off base.11 The only case that is directly pertinent to
the argument Defendants attempt to make, non-precedential
authority from the Eastern District of Pennsylvania, is readily
distinguishable from the case at hand. See Hardmon v. Lehigh
County, 613 F. Supp. 649, 653 (E.D. Pa. 1985). To be sure, the
court in that case explained that “[a]s presently worded, this
allegation does not state a cause of action pursuant to §§ 1985

11

For example, in Magnum v. Archdiocese of Philadelphia, 253 F. App’x 224 (3d
Cir. 2007), the Court of Appeals found that minority itself was not a basis
of invidious discrimination, and animus on that basis could not give rise to
a § 1985 claim. But Plaintiffs here make no such claim to begin with, and
instead argue that Isabella was injured by a conspiracy motivated by animus
against same-sex couples and on the basis of sexual orientation. Similarly,
in Nieves-Ramos v. Gonzalez-De-Rodriguez, 737 F. Supp. 727, 729 (D.P.R.
1990), plaintiffs “made no allegation which even inferentially indicate[d]
that any defendant was motivated by any class-based, invidiously
discriminatory animus.” The status of one plaintiff as a minor was entirely
beside the point. Likewise, the Court in Koenig v. Snead, 757 F. Supp. 41, 44
(D. Ore. 1991) dismissed the plaintiffs’ § 1985 claims in a short paragraph,
noting simply that “nowhere in his complaint does [the plaintiff] allege that
the acts of the defendants were motivated by the kind of invidiously
discriminatory animus required to state a claim under 42 U.S.C. § 1985(3).”
The same is true of the decision in L.Q.A. By & Through Arrington v.
Eberhart. 920 F. Supp. 1208, 1229 (M.D. Ala. 1996) (noting that “the
plaintiff has not only failed to present any evidence of a racial or class
based ‘individual discriminatory animus behind the conspirator's actions,’
but the plaintiff has even failed to allege such.”). Likewise, the Court in
Allison v. Shabazz, No. C 14-04813 JSW, 2016 WL 2957121, at *6 (N.D. Cal. May
23, 2016) found that Plaintiff could not base her claim of animus on the two
social categories she raised (female protective parents and victims of
domestic violence). Although these cases did involve children, the Courts did
not rely on either the children’s minor status or the fact that the children
were not the direct targets of animus that otherwise motivated the
conspiracy. They are thus inapposite to the point Defendants attempt to make
in their brief.

55

... because it does not allege a conspiracy directed at
plaintiff's minor.” Id. at 653. It clarified, however, that “a
necessary element of a conspiracy for purposes of a § 1985
action is that the conspirator act knowingly and willfully and
with the intent to deprive the plaintiff of equal protection of
the laws.” Id. Since the defendants in that case did not know of
the existence of the minor, they could not have acted knowingly
and willfully to deprive her of those rights. Here, Plaintiffs
allege that Defendants acted knowingly and willfully to deprive
Isabella of contact with her mother, out of animus against samesex couples.
Regardless of the lack of support in the authorities
Defendants reference, Plaintiffs contend that their argument
fails for two additional reasons. First, they argue that
Isabella need not allege membership in a protected class to
claim that she was injured by a conspiracy motivated by classbased animus, citing the plain language of the statute and a
single decision from the District of Minnesota. In fact, § 1985
does not expressly require that the person injured by a
conspiracy be a member of the class suffering the animus that
motivated a conspiracy. For all practical purposes, however, the
cases in which the identity of the person injured and the form
of discrimination motivating the conspiracy differ are likely to

56

be rare. The hindrance clause itself applies to conspiracies
that aim to hinder authorities from “giving or securing to all
persons within such State or Territory the equal protection of
the laws.” 42 U.S.C. § 1985(3). Thus, it is not limited to those
that infringe only on the rights of a certain class of people.
In addition, the provision allowing an individual to bring suit
is not limited to those individuals who are members of the class
against which defendants have targeted their animus. Rather, any
“party so injured or deprived” may bring an action against those
who do or cause to be done “any act in furtherance of the object
of such conspiracy.” Id. However, the authorities extending
liability in this manner are limited, and not binding on this
Court. Despite Plaintiffs’ argument to the contrary, Arias
allowed the § 1985 claim to proceed without any substantive
discussion of whether the object of animus must match the
plaintiffs’ identity, and without citing any authority for the
notion that it need not. See Arias v. U.S. Immigration & Customs
Enf't Div. of Dep't of Homeland Sec., No. CIV. 07-1959 ADMJSM,
2008 WL 1827604, at *15 (D. Minn. Apr. 23, 2008) (finding that
allegation that “conspirators were motivated by the fact that
almost all Plaintiffs are Latinos” was sufficient to defeat a
motion to dismiss the § 1985(3) claim).

57

Instead, Isabella’s claim survives because she, too, was
directly targeted by the alleged “inherently invidious” conduct
of Defendants. New York State Nat. Org. for Women, 886 F.2d at
1359. In Obergefell, the Supreme Court recognized that children
of gays and lesbians also suffer the brunt of discrimination
that deprives their families of equal recognition, security and
respect. 135 S. Ct. at 2600 (same-sex couples’ “children suffer
the stigma of knowing their families are somehow lesser.”).
Although the posture of that case did not prompt the question of
whether their rights, also, would be infringed by virtue of
their parents being denied the right to marry, the Court’s
discussion clearly included these children among the victims of
anti-homosexual bias. In this sense, Isabella, too, is a member
of a subordinated group deserving of protection under § 1985(3).
As such, both Plaintiffs have properly alleged the animus
required to state a claim under that provision.
4.

Retroactivity
Defendants Zodhiates, Hyden and RUL also argue that “the

recent advances in the law concerning sexual orientation and
same-sex couples make enforcing Section 1985 against Defendants
unfair.” ECF 227, p. 17. While their argument is difficult to
decipher fully, they first appear to contend that “the rules for
legislative retroactivity should govern this case” because
58

Congress made a “definitive statement in passing [the Defense of
Marriage Act (“DOMA”)]” that Defendants apparently relied upon.
Id. at 19. Second, they suggest that the Court should recognize
a type of protection from conspiracy claims under § 1985 similar
to the qualified immunity doctrine applicable to 42 U.S.C. §
1983 claims. They provide no support for this argument other
than to suggest that holding otherwise would chill the right to
freedom of association.
Defendants’ argument is unavailing. First, the Supreme
Court’s interpretation of federal law is applicable in all cases
open on direct review, as in this one. See Harper v. Va. Dep’t
of Taxation, 509 U.S. 86, 97 (1993). Even if this case were not
open, the change in law at issue here concerned constitutional
rights, and as such should be given retroactive effect. Id.
Finally, the Supreme Court has limited the reach of qualified
immunity because the “set of special federal policy
considerations” it reflects are specific to Section 1983
litigation. See Reynoldsville Casket Co v. Hyde, 514 U.S. 749,
758 (1995). Accordingly, the Court must apply the Supreme
Court’s current understanding of the Constitutional protections
afforded to gays, lesbians and their families to this case.
5.

Agreement/ meeting of the minds

59

Liberty Counsel Defendants also argue that Plaintiffs
failed to plead specific facts that demonstrate they reached an
agreement to engage in the conspiracy at issue. According to
them, these alleged deficiencies are “incurable” because they
did not engage in such conduct. ECF 240, p. 120-21 (citing
Defendant’s factual affidavits). They also generally claim that
Plaintiffs have failed to plead specific facts to allege a
conspiracy, but do not specify which elements of conspiracy,
beyond agreement, Plaintiffs have failed to adequately plead.
To make out a claim of conspiracy under Section 1985,
Plaintiffs must plead “an agreement between two or more
individuals where one acts in further[ance] of the objection
[sic] of the conspiracy and each member has knowledge of the
nature and scope of the agreement.” Morpurgo v. Inc. Vill. of
Sag Harbor, 697 F. Supp. 2d 309, 339 (E.D.N.Y. 2010), aff'd, 417
F. App'x 96 (2d Cir. 2011); Dove v. Fordham Univ., 56 F. Supp.
2d 330, 337–38 (S.D.N.Y. 1999), aff'd sub nom. Dove v. O'Hare,
210 F.3d 354 (2d Cir. 2000). A conspiracy “need not be shown by
proof of an explicit agreement but can be established by showing
that the ‘parties have a tacit understanding to carry out the
prohibited conduct.’ ” LeBlanc–Sternberg v. Fletcher, 67 F.3d
412, 427 (2d Cir.1995) (quoting United States v. Rubin, 844 F.2d
979, 984 (2d Cir.1988)). In the context of a Section 1985 claim,

60

the Seventh Circuit has noted that “[t]he very nature of a
conspiracy obscures most, if not all, information about the
alleged conspirators' agreement; circumstantial evidence of the
conspiracy, particularly regarding the overt acts performed in
furtherance of the conspiracy, is all that is ordinarily
obtainable before discovery and trial. This is particularly true
where, as here, much of the information regarding ... the
formation of the conspiracy [is] in the hands of the defendant.”
Quinones v. Szorc, 771 F.2d 289, 291 (7th Cir. 1985).
Here, Plaintiffs have pled sufficient facts that the all
Defendants had such a “tacit understanding” to carry out the
kidnapping of Isabella, and that each one committed acts in
furtherance of that purpose. In particular, this Court has
already held that the prior complaint, which contained less
specific facts than those at hand, “adequately allege[d] that
Defendants Lisa Miller, Timothy Miller, Kenneth Miller, Philip
Zodhiates, Victoria Hyden and Linda Wall agreed, tacitly or
explicitly, to further” the purpose of the conspiracy. ECF 115,
p. 55. The new allegations in the amended complaint, which
incorporate evidence obtained from Zodhiates’ criminal trial,
further supports this conclusion. For example, based on this
evidence, Plaintiffs now allege that Victoria Hyden delivered
emails from her father so as to coordinate the removal of items

61

from Lisa Miller’s apartment in order to assist her in
secretively leaving the country with Isabella. Wall allegedly
packed those items.

Thereafter, Hyden allegedly used her

position at Liberty University to facilitate Lisa Miller’s
communication with her lawyer. These additional facts provide
circumstantial evidence that these Defendants agreed to
facilitate Lisa Miller’s kidnapping of Isabella, and took overt
acts to do so.
Similarly, the amended complaint sufficiently alleges that
Defendants Lindevaldsen and Staver reached either a tacit or
explicit agreement with Lisa Miller to support her in leaving
the country with Isabella, and committed overt acts to do so. In
particular, the amended complaint alleges that Lindevaldsen
packed Lisa Miller’s belongings, that she continued to
communicate with Lisa Miller after she left the country through
Victoria Hyden, and that she misled the Vermont family court by
stating that she did not have reason to believe that Lisa Miller
was not home. Staver, Lindavaldsen’s employer, also allegedly
misled courts to delay contempt proceedings. In addition, both
Staver and Lindevaldsen allegedly advised Lisa Miller that “it
would be in her best interests to disappear.” ECF 223, p. 8.12

12

Since Plaintiffs’ claims against Liberty Counsel and Liberty University
rest on theories of vicarious liability or agency, Lindevaldsen and Staver’s
actions and mental state constitute the relevant conduct for purposes of
establishing their liability under Section 1985.

62

Thus, the extent and severity of the alleged misconduct allow
the Court to infer that Liberty Counsel Defendants also reached
a tacit or explicit agreement to support Lisa Miller in
kidnapping Isabella, and that they committed overt acts in
furtherance of that goal. Thus, Plaintiffs have adequately
alleged that Defendants engaged in a conspiracy to violate their
rights under § 1985.
6.

Applicability of Monnell to Liberty University
In addition to arguing that Liberty University cannot

generally be held liable for the alleged tortious acts of its
employees, Liberty University contends that the Monell doctrine,
applicable to municipal corporations in the context of Section
1983 claims, should also apply to bar the claim against it under
Section 1985. See Monell v. Department of Social Services of
City of New York, 436 U.S. 658 (1978). However, Liberty
University cites no binding authority applying the Monell
doctrine to private institutional defendants. In fact, the
District Court decisions from this Circuit cited in Liberty
University’s brief have expressly refrained from deciding this
question. For example, in Litras v. PVM Int'l Corp., No. 11-CV5695 JFB AKT, 2013 WL 4118482, at *9 (E.D.N.Y. Aug. 15, 2013),
the Eastern District of New York rejected the defendants’
argument that the plaintiff had failed to sufficiently allege a
63

meeting of the minds to make out a conspiracy claim under
Section 1985. The liability of the corporate defendant was not
raised at this stage, and the court merely noted in a footnote
that “courts within this Circuit have used the standard to
evaluate the sufficiency of a Section 1985 claim brought against
a private corporation for purposes of surviving a motion to
dismiss.” Id. However, the case the Litras court cited for that
proposition also expressly failed to reach that question. See
Bowen v. Rubin, 385 F. Supp. 2d 168, 181, n. 8 (E.D.N.Y.
2005)(“[E]ven if applying Monell to private entities is
warranted with respect to Section 1983 claims, which require
action under color of state law, it is unclear that the same
holds true for claims brought under Section 1985(3), which
encompasses wholly private conspiracies to engage in invidiously
discriminatory conduct. However, since both plaintiffs and
defendants argue within the framework of the Monell “official
policy or custom” standard, and since, as shown below, there are
genuine issues of material fact with respect to whether
defendants had a policy or custom that subjects them to
liability under the Monell standard, I decline to reach this
issue.”) (internal quotation omitted).
Moreover, although Defendant is correct that the Second
Circuit has extended the Monell doctrine to claims brought

64

against municipalities under § 1985, and that the Monell
doctrine applies to Section 1983 claims against private
employers, the Court is not persuaded that this doctrine would
apply to claims against private employers. See Zherka v. City of
New York, 459 F. App'x 10, 12 (2d Cir. 2012) (“municipal
liability under § 1985(3) must also be predicated on an
“official custom or policy” of the municipality”) (citing Owens
v. Haas, 601 F.2d 1242, 1247 (2d Cir. 1979)); Rojas v.
Alexander's Dep't Store, Inc., 924 F.2d 406, 408–09 (2d Cir.
1990) (“Private employers are not liable under § 1983 for the
constitutional torts of their employees, unless the plaintiff
proves that action pursuant to official policy of some nature
caused a constitutional tort.”) (internal quotations omitted).
In extending the Monell doctrine to private employers under §
1983, the Second Circuit relied on a Fourth Circuit case that
held the same. Rojas, 924 F.2d at 408 (citing Powell v. Shopco
Laurel Co., 678 F.2d 504, 506 (4th Cir.1982)). The Fourth
Circuit based its conclusion on the applicability of Monell’s
underlying rationale to a private employer. Powell, 678 F.2d at
506 (“No element of the Court's ratio decidendi lends support
for distinguishing the case of a private corporation.”). That
rationale was two-fold: first, it was premised on the language
of the section 1983 statute itself, and second, it was based on
the particular policy considerations that must be taken into
65

account with public actors. However, while policy considerations
specific to public action might be equally applicable in the
context of § 1983, where even private actors must be acting
under color of state law, they are not applicable in the context
of § 1985, where private actors are not subject to that
additional requirement. The Ninth Circuit underscored this
difference in concluding that Monell should not extend to § 1985
claims against private employers. See Scott v. Ross, 140 F.3d
1275 (9th Cir. 1998). Thus, the reasoning of the very decisions
Liberty University cites does not support extending the Monell
doctrine in the manner that Defendant advocates. Accordingly,
the Court declines to stretch the law in this manner, and will
apply traditional principles of respondeat superior to the
private conspiracy at issue in Plaintiffs’ § 1985 claim.
C.

Liberty University’s Vicarious Liability

i.

Introduction
Liberty University raises two additional challenges to

Plaintiffs’ claims of vicarious liability for the acts of its
employees. ECF 237. In particular, it contends that (1) it
cannot be held vicariously liable for its employees’ actions in
connection with the events Plaintiffs allege because the
complaint “neither alleges nor allows any plausible inference
that any of these employees acted within the scope of their
66

employment with the University in the alleged events,” and (2)
Plaintiffs may not hold Liberty University liable for the acts
of those with whom its employees conspired because “such an
attenuated chain of responsibility does not comport with the
purpose underlying vicarious liability.” Id. at 3. Plaintiffs
contend that Liberty University employees committed tortious
acts during or incidental to the scope of their employment, such
that the University can be held liable for those acts.
ii.

Analysis
The Vermont Supreme Court has held that “[u]nder the

settled doctrine of respondeat superior, an employer or master
is held vicariously liable for the tortious acts of an employee
or servant committed during, or incidental to, the scope of
employment.”

See Brueckner v. Norwich Univ., 169 Vt. 118, 122–

23 (1999) (citing Anderson v. Toombs, 119 Vt. 40, 44–45 (1955);
Poplaski v. Lamphere, 152 Vt. 251, 257 (1989)). “To be within
the scope of employment, conduct must be of the same general
nature as, or incidental to, the authorized conduct. Conduct of
the servant falls within the scope of employment if: (a) it is
of the kind the servant is employed to perform; (b) it occurs
substantially within the authorized time and space limits; (c)
it is actuated, at least in part, by a purpose to serve the
master; and (d) in a case in which the force is intentionally
67

used by the servant against another, it is not unexpectable by
the master. Conduct of a servant is not within the scope of
employment if it is different in kind from that authorized, far
beyond the authorized time and space limits, or too little
actuated by a purpose to serve the master.” Id. at 123 (citing
Restatement (Second) of Agency §§ 228(1), 228(2), 229(1)
(1958)).
Here, Plaintiffs have shown that some of Lindevaldsen’s
allegedly tortious conduct was committed within the scope of her
employment. First, although Lindevaldsen was not employed
primarily to litigate family court cases for the University, the
Court can reasonably infer from the facts alleged that her work
in representing Lisa Miller was at least incidental to her job
at Liberty University. She allegedly wrote a book about this
representation and used that book as a teaching tool, assigning
the book as required reading for all incoming students at the
law school. In this sense, her overall representation furthered
the purpose of the law school. Moreover, she allegedly
communicated with her client while her client was abroad through
a Liberty University employee, who delivered messages to her
while she was at Liberty University. Thus, at least some of this
representation was within the time and space limits of
Lindevaldsen’s employment at the University. Finally, the

68

tortious conduct (especially her misrepresentations to courts
and her alleged advice to Lisa Miller to flee the country) was
not unexpectable by the University because it was part and
parcel of her representation of Lisa Miller. Given these facts,
Plaintiffs have sufficiently alleged that Lindevaldsen’s
tortious conduct was within the scope of her employment at
Liberty University.
In addition, the Vermont Supreme Court has “expressly
adopt[ed] [§ 219(2)(d) of the Restatement (Second) of Agency] as
applicable in assessing whether an employer has vicarious
liability for the tortious conduct of an employee when that
conduct falls outside the scope of his or her employment.” Doe
v. Forrest, 176 Vt. 476, 486 (2004). Section 219(2) provides
that “a master is not subject to liability for the torts of his
servants acting outside the scope of their employment, unless:
...(d) the servant purported to act or to speak on behalf of the
principal and there was reliance upon apparent authority, or he
was aided in accomplishing the tort by the existence of the
agency relation.” Id. at 485.13 In interpreting the last clause
of this section, the Vermont Supreme Court has highlighted the

13

Although neither party raises this potential basis for vicarious liability,
the Court finds that the second provision –permitting vicarious liability for
acts outside of an employee’s scope of employment where the employee was
aided in accomplishing the tort by the existence of the agency relationship
with his employer –may also be at issue here, and therefore considers the
issue of its own initiative.

69

importance of analyzing the power that a particular employment
relationship bestows on a defendant with respect to the injured
party, as well as the need to create an “incentive for vigilance
by those in a position to prevent” the injury from happening.
Id.
Here, the amended complaint alleges that some of
Lindevaldsen’s tortious conduct was committed with the help of
Victoria Hyden, and vice versa. Each acted using the authority
and resources she had as an employee of Liberty University.
Thus, even if each woman’s tortious conduct were considered to
be outside of the scope of each one’s employment, the employment
relationship certainly aided in their accomplishment of the
tortious acts in question.

As such, Liberty University can

still be held vicariously liable for this conduct.
Staver’s alleged acts, on the other hand, are insufficient
to give rise to vicarious liability under either of the theories
outlined above.

First, the Plaintiffs have not alleged specific

facts that Staver’s role in representing Lisa Miller was as
intertwined with his teaching and administrative roles at the
University as it was in Lindevaldsen’s case. Therefore, even if
he also committed tortious acts as part of his representation of
Lisa Miller, that representation is not clearly incidental to
his work at the University. Nor is it clear that his
70

representation of Lisa Miller furthered the University’s
educational goals as much as Lindevaldsen’s, who wrote a book on
the basis of that representation that served to educate Liberty
University students. Moreover, the complaint does not allege
that Staver abused his position at Liberty University to further
the goals of the conspiracy by, for example, using Liberty
University resources to communicate with Lisa Miller in an
undetected manner. For these reasons, Liberty University cannot
be held vicariously liable for Staver’s acts.
Finally, Liberty University’s concern that it may be held
liable for the torts of unaffiliated third parties is not
warranted in this case. It argues that “[w]here the employee’s
liability is itself based on the actions of a third party in
which the employee did not directly participate, the employer
cannot be made the insurer of the third party’s conduct through
vicarious liability.” ECF 237, p. 13. Here, however, Liberty
University’s liability for Lindevaldsen and Hyden’s tortious
conduct in furtherance of the conspiracy will attach only
insofar as they directly participated in that unlawful endeavor.
While the Court appreciates the University’s concern for
protecting the principles that underlie vicarious liability, the
preoccupation is unnecessary in the case at hand.

71

Accordingly,

Liberty University’s motion to dismiss due to lack of vicarious
liability cannot succeed.
D.

Timeliness

i.

Custodial interference claim
Liberty Counsel Defendants also challenge Plaintiffs’ claim

for custodial interference and § 1985(3) claim as untimely. In
particular, they contend that Plaintiffs’ custodial interference
claim is subject to Vermont’s three-year statute of limitations
for personal injury actions, and that Jenkins’ action accrued
when she gained knowledge that Isabella was kidnapped in
December of 2009. Since Plaintiffs’ first complaint, filed in
2012, did not name Liberty Counsel, Staver and Lindevaldsen as
Defendants, Defendants contend that Plaintiffs missed the
deadline to bring an action against them. Plaintiffs argue that
their custodial interference claim is timely because (1) the
relation back doctrine applies to Liberty Counsel defendants,
because they knew or should have known that they were proper
defendants at the time of initial filing; (2) the interference
with Jenkins’ custody of Isabella is a continuing tort.
The parties do not dispute that Plaintiffs’ custodial
interference claims are governed by Vermont’s three-year statute
of limitations for personal injury actions. See Eaton v. Prior,

72

58 A.3d 200, 204 (Vt. 2012) (applying three-year statute of
limitations to emotional distress claim); 12 V.S.A. § 512
(“Actions for the following causes shall be commenced within
three years after the cause of action accrues, and not after:
... (4) Except as otherwise provided in this chapter, injuries
to the person suffered by the act or default of another person,
provided that the cause of action shall be deemed to accrue as
of the date of the discovery of the injury”). Rather, they
dispute when it accrued.

The Vermont Supreme Court has held

that “[a]n action accrues so as to trigger the statute of
limitations ‘when a plaintiff discovers or reasonably should
discover the injury, its cause, and the existence of a cause of
action.’” Eaton, 58 A.3d at 204 (citing Lillicrap v. Martin, 591
A.2d 41, 47 (1989); Earle v. State, 743 A.2d 1101, 1108 (1999)
(observing that limitation period “begins to run when a
plaintiff had information, or should have obtained information,
sufficient to put a reasonable person on notice that a
particular defendant may have been liable for the plaintiff's
injuries” (quotation omitted)).
However, even if Jenkins effectively discovered that Lisa
Miller had fled with Isabella in December 2009, a reasonable
person in her position would not have been on notice that the
Liberty Counsel Defendants played the role that they did at that

73

time. In fact, both Staver and Lindevaldsen sought to withdraw
their representation of Lisa Miller on grounds that they did not
know where she was, and Lindevaldsen directly represented to the
Vermont courts that she was unaware of Lisa Miller’s
whereabouts. If Plaintiffs’ allegations are assumed to be true,
these deliberate attempts to mislead the courts would also have
misled a reasonable person about the cause of Jenkins’ injury,
as well as Staver and Lindevaldsen’s potential liability for
Plaintiffs’ injuries. Indeed, this Court initially found that
Plaintiffs had not set forth sufficiently credible facts that
Lisa Miller’s attorneys had engaged in tortious conduct at all.
See ECF 115, p. 29. Moreover, Staver and Lindevaldsen submitted
affidavits at earlier stages of this litigation representing
that they did not engage in tortious conduct. It was only after
Zodhiates’ criminal trial for Isabella’s kidnapping in 2016 that
the basis for the specific facts of Lindevaldsen’s tortious
conduct became known to Jenkins. In particular, they became
aware that Hyden and Zodhiates exchanged emails that implied
Lindevaldsen’s direct engagement in assisting Lisa Miller in
fleeing the country. They also heard testimony from a witness
suggesting that Liberty Counsel lawyers had advised Lisa Miller
to flee with Isabella. Thus, only after acquiring these facts
would a reasonable person have been put on notice that the
Liberty Counsel Defendants may have been liable for the
74

conspiracy to intentionally interfere with Jenkins’ parental
rights. Since the amended complaint was filed less than three
years after that point, Plaintiffs’ claim is not time-barred. In
light of this conclusion, the Court need not address whether
custodial interference is a continuing tort, or whether the
relation-back doctrine applies to this claim.14
ii.

§ 1985 claim
In addition, Defendants argue that Plaintiffs’ § 1985

claims are likewise time barred. They argue that because § 1985
claims are subject to the statute of limitations that state
courts would apply in an analogous state action, the statute of
limitations for personal injury actions should apply to this
claim, as well. Moreover, the cause of action accrued, they
argue, at the time of the discriminatory act, which they then

14

While the Court need not reach this issue, it is not persuaded that the
Supreme Court’s holding in Krupski v. Costa Crociere S.P.A., 560 U.S. 538,
549 (2010) would apply to the instant case, since it does not merely change
“the party or the naming of the party against whom a claim is asserted,” or
involve “a mistake concerning the proper party’s identity.” Fed. R. Civ. P.
15(c)(1)(C). Nevertheless, the claims against the new defendants clearly
arise out of the same occurrence set out in the original pleading –that is,
the removal of Isabella from the country in order to preclude Jenkins from
having contact with her. Thus, the relation-back doctrine may apply pursuant
to Fed. R. Civ. P. 15(c)(1)(B). The Second Circuit has noted that, as in
claims brought under Rule 15(c)(1)(C), “the central inquiry is whether
adequate notice of the matters raised in the amended pleading has been given
to the opposing party within the statute of limitations by the general fact
situation alleged in the original pleading.” Slayton v. Am. Exp. Co., 460
F.3d 215, 228 (2d Cir. 2006), as amended (Oct. 3, 2006) (internal quotation
omitted). Given that Lindevaldsen, Staver, Liberty Counsel and Liberty
University were all closely connected to Lisa Miller’s case prior to this
point, and that Lindevaldsen and Staver submitted affidavits concerning their
conduct in relation to this case when Liberty University was initially named
a defendant, Defendants are hard-pressed to show that they failed to get
adequate notice of this matter.

75

equate to “the date at which [Jenkins] obtained notice of the
alleged act.” ECF 240, p. 17.
Even under Defendants’ own understanding of the law,
however, this argument fails. First, it is true that a Section
1985 action “is subject to the statute of limitations the state
courts would apply in an analogous state action.” Meyer v.
Frank, 550 F.2d 726, 728 (2d Cir. 1977). Likewise, Defendants
are correct that for claims brought under Section 1983, “accrual
is a matter of federal law.” Pearl v. City of Long Beach, 296
F.3d 76, 80 n.2 (2d Cir. 2002). In transferring this rule to the
context of Section 1985, however, Defendants face an obstacle
that their logic fails to overcome. Specifically, under federal
law, a cause of action arises when a plaintiff knows or has
reason to know of his or her injury. See Keating v. Carey, 706
F.2d 377, 382 (2d Cir. 1983). However, Defendants contend that
“[i]n analyzing the timing of accrual in the context of
discrimination claims, the Supreme Court has instructed that the
proper focus is on the time of the discriminatory act, not the
point at which the consequences of the act become painful.”
Morse v. Univ. of Vermont, 973 F.2d 122, 125 (2d Cir. 1992).15 In
Chardon v. Fernandez, the decision upon which Morse relied, the
Court concluded that a Section 1983 action accrued at the moment

15

Morse dealt with a claim brought by a “handicapped person” for violation of
the Rehabilitation Act of 1973, but relied on precedent involving Section
1983 claims. Id. at 122.

76

employees were notified of an allegedly discriminatory decision
to terminate them at a future point, even though time elapsed
before they actually lost their jobs. In the context of Section
1985, however, it is less clear exactly what constitutes the
“discriminatory” act. It is quite possible that a defendant
could commit an overt act as part of a conspiracy that bears
fruit much later, hindering the state’s ability to provide equal
protection under the law at some point down the road. Thus,
holding that each overt act committed by a defendant in
furtherance of a conspiracy constitutes the relevant
discriminatory act would run contrary to the more general
principle that a cause of action accrues only when a plaintiff
knows or has reason to know of his or her injury. See Keating,
706 F.2dat 382. Instead, because the similarity between Section
1983 and 1985 arises from the potential violation of an
individual’s constitutional rights, it is the hindrance of the
state’s ability to “giv[e] or secur[e] to all persons ... the
equal protection of the law” that constitutes the relevant
discriminatory act triggering accrual of the cause of action. 42
U.S.C. § 1985. Here, that hindrance came in the form of removing
Isabella from the state’s jurisdiction, and continuing to hold
her abroad to prevent the state from enforcing Jenkins’ rights
under the law. Thus, although the Court need not reach the
question of whether custodial interference is a continuing tort,
77

the continuing nature of the hindrance of equal protection by
the state extends the accrual date in this case to the present
moment. Accordingly, Plaintiffs’ Section 1985 claim is not timebarred, either.
E.

Venue
Defendants Lindevaldsen, Staver, Liberty Counsel, Liberty

University and Wall also move to dismiss due to improper venue
under Federal Rule of Civil Procedure 12(b)(3). This Court has
already ruled, on the basis of allegations made in an earlier
complaint, that venue is proper in Vermont. ECF 115, p. 70-73.
Wall nevertheless incorporates by reference the arguments she
made in the earlier motion this Court rejected. ECF 242-1
(citing ECF 109). Liberty University contends that venue is
improper here because “no events or omissions material to
Plaintiffs’ claims took place in Vermont.” ECF 237. It moves to
dismiss on this ground or, in the alternative, to transfer this
case to the Western District of Virginia, but provides no
argument in support of this latter request. Lindevaldsen, Staver
and Liberty Counsel also sustain that venue does not lie here
because “the only connection between Vermont and this case is
Plaintiff’s residence,” “most of the witnesses, documents and
other information necessary to litigate Jenkins’ claims are
located outside of Vermont,” Vermont is an inconvenient venue
78

for all parties except Jenkins, the operative events are alleged
to have occurred “entirely outside of Vermont,” and the relative
means of the parties does not weigh in favor of finding venue in
Vermont. ECF 240, pp. 72-79. Although these factors are relevant
to whether the Court should transfer venue, these Defendants do
not expressly move for such a transfer.
In its prior order, this Court explicitly addressed whether
significant events or omissions material to Plaintiffs’ claims
occurred in this District. ECF 115, pp. 72-74. It found that
such events or omissions had occurred here because the rulings
of the Vermont courts were deliberately and repeatedly flouted,
and the interference with visitation orders and Jenkins’
custodial rights occurred in Vermont. Id. 73-74. In doing so,
the Court implicitly found that the relevant acts and omissions,
for purposes of Plaintiffs’ claims, constitute not only the
particular tortious conduct of each Defendant, but also the
interaction between that conduct and the orders of the Vermont
court, whose ability to protect Jenkins’ parental rights was
hindered or interfered with as a result of the conspiracy.
Defendants agree that 28 U.S.C. § 1391 permits a civil action to
be brought “in a judicial district in which a substantial part
of the events or omissions giving rise to the claim occurred.”
However, they argue for a different interpretation of what

79

constitutes the relevant “events or omissions” in this case,
suggesting that only the overt acts each defendant took to
participate in the conspiracy should be evaluated. Moreover,
Liberty University argues that, “neither the Second Circuit nor
any other federal appellate court has found that extraterritorial acts intended to have a tortious effect within a
district can be the basis for a venue selection.” ECF 237, p. 44
(citing Steen v. Murray, 770 F.3d 698, 703 (8th Cir. 2014)
(court’s focus in a venue analysis “must be on relevant
activities of the defendant in the forum state, not on the
effect of those activities on the plaintiff in the forum
state.”)).16
However, as Defendant itself implicitly acknowledges, that
analysis is incorrect in the context of civil rights cases,
where a potential deprivation of a party’s constitutional rights
is involved. See, e.g. Farmland Dairies v. McGuire, 771 F. Supp.
80, 82 (S.D.N.Y. 1991) (finding that a substantial part of the
events occurred where state law was actually applied to the
plaintiff’s conduct). In this case, Plaintiffs’ Section 1985
claim requires a showing that the conspiracy aimed to hinder the
state from providing equal protection, and that some injury

16

Because Defendants challenge the basic logic of the Court’s legal analysis
on this question, the Court will simply address Defendants’ argument rather
than rely on the law of the case, as Plaintiffs suggest. See ECF 261, p. 4546.

80

occurred because of that hindrance. Therefore, since the
inhibition of Vermont’s ability to protect Jenkins’ rights is a
key component of the § 1985 claim, that effect on the state of
Vermont must be part of the “events” considered for purposes of
establishing proper venue. Thus, the Court does not rest its
analysis on the effect of Defendants’ conduct on the Plaintiff,
as Defendants suggest, but rather on the repercussions of their
acts on the state’s ability to protect Jenkins’ rights.
Accordingly, since the hindrance of the equal protection
guaranty occurred primarily in Vermont, venue is proper in this
District.
Next, Defendants’ poorly-supported motions to transfer
venue (to the extent that they have made such motions) fail for
similar reasons. In considering a motion to transfer venue,
Courts are guided by “(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 parties, (5) the locus of operative facts,
(6) the availability of process to compel the 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). “District courts have broad discretion in making
determinations of convenience” in this context. Id. at 106. This

81

Court has already considered and rejected a motion to transfer
venue to the Western District of Virginia, analyzing precisely
the factors outlined above. The only aspect of this Court’s
analysis that has been called into question by Defendants’
motions concerns the impact of this choice of venue on potential
witnesses under the third and sixth factors. This Court
previously found that “defendants have not identified any
witnesses located in Virginia who would be inconvenienced in
Vermont.” ECF 115, p. 74. At this stage, Defendants contend that
“Jenkins’ [complaint] reveals the names of many prospective
witnesses and further reveals that, other than Jenkins herself,
none of those individuals reside in Vermont.” ECF 240, p. 75. In
particular, they list Ruth and Claude Jenkins, Deborah Thurman,
members of Lisa Miller’s church in Virginia, individuals who
were targeted by Hyden’s fundraising efforts, and Lindevaldsen,
all of whom are allegedly located in Virginia. It is equally
plausible, however, that witnesses with knowledge of the family
court proceeding, Lisa Miller’s noncompliance with visitation
and the damages Jenkins suffered will be located in Vermont.
Therefore, while this factor does weigh slightly more heavily in
favor of transferring venue, it is not wholly one-sided.
Moreover, in the Court’s earlier order on venue, it also
dismissed Plaintiffs’ Section 1985 claim. As explained above,

82

the inclusion of this newly pleaded claim at this stage makes
the events in Vermont all the more central to this matter. Thus,
even if the convenience of the witnesses tips the scale slightly
in favor of transferring venue to Virginia, the shift in the
locus of operative facts for purposes of the newly pleaded claim
rebuts this effect. Accordingly, the Court adheres to its
earlier conclusion on this question, and denies Defendants’
motions to transfer venue to the Western District of Virginia.
F.

Jurisdiction
In addition, Defendants Liberty University, Liberty

Counsel, Lindevaldsen, Staver and Wall also move to dismiss the
complaint for lack of personal jurisdiction under Fed. R. Civ.
P. 12(b)(2). They challenge the underlying rationale of this
Court’s earlier determination that the Plaintiffs’ proposed
amendment to the complaint would not be futile because the Court
may exercise personal jurisdiction over Defendants. ECF 220. In
addition, Linda Wall requests that the Court revisit its 2013
decision holding that the Court may exercise personal
jurisdiction over her. ECF 115.
Plaintiffs first contend that this Court should deny these
motions because the law of the case “commands that when a court
has ruled on an issue, that decision should generally be adhered
to by that court in subsequent stages in the same case unless
83

cogent and compelling reasons militate otherwise.” ECF 261, p.
31 (citing Johnson v. Holder, 564 F.3d 95, 99 (2d Cir. 2009)).
A court “may depart from the law of the case for “cogent” or
“compelling” reasons including an intervening change in law,
availability of new evidence, or the need to correct a clear
error or prevent manifest injustice.” Johnson, 564 F.3d at 99–
100. Importantly, however, the Second Circuit has noted that,
“the law of the case doctrine does not rigidly bind a court to
its former decisions, but is only addressed to its good sense.”
Id. at 99 (internal quotation omitted).
This Court has clearly already ruled on whether it has
personal jurisdiction over Wall. ECF 115. Wall does not dispute
the substance of this Court’s prior analysis in any way, but
merely reincorporates by reference the arguments she already
made, and which this Court already rejected. As such, the Court
has no trouble rejecting her arguments for the same reasons as
it articulated previously.
The application of the law of the case doctrine to the
issues raised by the remaining defendants is less clear-cut. In
particular, this Court framed its earlier ruling on personal
jurisdiction in light of the question presented at that stage:
namely, whether allowing Plaintiffs to amend the complaint in
the manner they proposed would be futile. That question is no
84

longer before the Court. However, the substance of the analysis
in relation to that question largely overlaps with the issue
raised by Defendants here: whether the Court has personal
jurisdiction over them. Thus, given the extensive consideration
it has already given to that issue, the Court will center this
discussion on the Defendants’ assertions that aspects of the
Court’s prior analysis were in error.
First, Defendants contend that the Court erred by failing
to give greater consideration to Hyden, Lindevaldsen and
Staver’s factual affidavits. In particular, Liberty University
asserts that allegations in the complaint must only be taken as
true in the context of a Rule 12(b)(2) motion to the extent they
are uncontroverted by the defendants’ affidavits. Since
Defendants’ affidavits flatly deny all the tortious conduct
Plaintiffs allege, Defendants contend that the Court should have
weighed that evidence in undertaking its jurisdictional
analysis. Liberty University relies on a misleading excerpt from
Seetransport Wiking Trader Schiffarhtsgesellschaft MBH & Co.,
Kommanditgesellschaft v. Navimpex Centrala Navala, 989 F.2d 572,
580 (2d Cir. 1993), as amended (May 25, 1993), in which the
Second Circuit noted that “[t]he allegations in the complaint
must be taken as true to the extent they are uncontroverted by
the defendant's affidavits.” However, Defendants omit the legal

85

rule the circuit court enunciated immediately following that
statement, holding that “[i]f the parties present conflicting
affidavits, all factual disputes are resolved in the plaintiff's
favor, and the plaintiff's prima facie showing is sufficient
notwithstanding the contrary presentation by the moving party.”
Id. This Court previously articulated a parallel standard,
finding that in ruling on a motion to dismiss under Rule
12(b)(2) on the basis of affidavits, the court “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.’” ECF 115, p. 16 (citing Dorcester Fin. Sec., Inc.
v. Banco BRJ, S.A., 722 F.3d 81, 85 (2d Cir. 2013)); see also
Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d
161, 167 (2d Cir. 2013) (“In evaluating whether the requisite
showing has been made, we construe the pleadings and any
supporting materials in the light most favorable to the
plaintiffs.”). Here, the Court correctly resolved the direct
conflict between Plaintiffs’ allegations and supporting
materials and Defendants’ affidavits in Plaintiffs’ favor,
refusing to give weight to Defendants’ denials. Thus, the Court
is satisfied that it relied on the appropriate factual basis in
its prior analysis of specific jurisdiction.

86

In addition, Liberty University challenges this Court’s
reliance on Daynard v. Ness, Motley, Loadholt, Richardson &
Poole, P.A., 290 F.3d 42 (1st Cir. 2002) and Mansfield
Heliflight, Inc. v. Heli-One Canada Inc., No 2:12-CV-46, 2012 WL
4479851 (D. Vt. Sept. 28, 2012) to establish personal
jurisdiction over Liberty University due to its close connection
to Liberty Counsel with respect to the Lisa Miller case. It
argues that Daynard and Mansfield Heliflight are distinguishable
because these cases “effectively rested on principles of
estoppel” and “involved an element of reliance by the
plaintiffs.” Id. at 39. In sharp language, they also accuse the
Court of improperly relying on the Christian character of both
organizations to casually overlook their separate corporate
forms.1718
First, in reaching its conclusion on personal jurisdiction,
this Court did not intend to resolve whether Liberty Counsel and
Liberty University would be considered a joint venture under
state law, or whether they acted as one unified entity for all
purposes. Rather, the goal of the Court’s analysis was to

17

Defendants also suggest that the use of the word “Liberty” in each
institution’s name may have confused the court’s jurisdictional analysis. It
did not, as the Court did not rely on the linguistic similarity in the
organizations’ names in reaching its conclusion.
18
In addition, Liberty University asserts that the Court cannot exercise
personal jurisdiction over it based on the tortious conduct of its employees
in this matter. However, the Court did not rely on this theory of
jurisdiction in its earlier order, and need not do so here. See ECF 220.

87

address whether the jurisdictional contacts arising from
Lindevaldsen and Staver’s tortious conduct directed at Vermont
could be imputed to Liberty University because of the
intertwined nature of Liberty University and Liberty Counsel’s
engagement on this matter in particular. See, e.g., Mansfield
Heliflight, Inc. v. Heli-One Canada Inc., 2012 WL 4479851, at
*8, n. 9 (“The question presented, precisely stated, is whether
the actions of Heli–One Norway in this case can be attributed to
Heli–One Canada, not whether the two companies are effectively
one (and thus merged) for the purposes of jurisdictional
analysis.”). Moreover, the Court explicitly noted that the
question of attribution of contacts for jurisdictional purposes
was subject to “a less stringent test than that for liability”
under a joint venture theory. See Mansfield Heliflight, Inc.,
2012 WL 4479851, at *6. It is in this context that the shared
mission and views of the organizations’ employees with respect
to same-sex couples’ rights, as well as those employees’ use
Liberty University resources for purposes of litigating Lisa
Miller’s case in Vermont, become relevant.
In addition, contrary to Liberty University’s suggestion,
Mansfield Heliflight and Daynard did not establish that the
jurisdictional contacts of two organizations that are closely
connected with respect to particular, tortious conduct at issue

88

in a case would be attributed to both only if the plaintiff
actually relied on the shared nature of that conduct. Rather,
the gravamen of those decisions was the connection between the
two entities with respect to the wrongdoing at issue in those
cases. In Mansfield Heliflight, a breach of contract and torts
case, this Court emphasized that the plaintiff engaged with
representatives from both entities at issue when it negotiated
the relevant contract. 2012 WL 4479851, at *8. It did not
suggest or require that the plaintiff rely on both companies’
participation when it agreed to the contract, or that the
plaintiff’s understanding that both companies were involved was
somehow detrimental. Likewise, in Daynard, the First Circuit
reviewed the elements of joint venture and agency by estoppel,
but clarified that “[e]ven if the defendants' relationship were
to fall slightly outside of the confines of these specific
doctrines, the question before us is whether a sufficient
relationship exists under the Due Process Clause to permit the
exercise of jurisdiction, not whether a partnership, joint
venture, or other particular agency relationship between the two
defendants exists.” Daynard, 290 F.3d at 56–57. Although the
Court in that case did take note of the fact that the Plaintiff
had relied on his communications with both organizations, it
ultimately rested its conclusion on the fact that an officer of
one organization ratified the others’ representation that the
89

plaintiff would be hired on behalf of both firms. Id. at 60.
Thus, true to its word, the Court’s analysis fell outside the
confines of the estoppel doctrine, relying principally on the
joint conduct of the defendant organizations.
In this case, Defendant Liberty University has moved to
dismiss without the benefit of discovery. Thus, Plaintiffs need
only make out a prima facie case of personal jurisdiction, and
it is plausible that further development of the record could
clarify that, in fact, Liberty University and Liberty Counsel
did not act in tandem for purposes of this case at all. However,
at this point, Plaintiffs have set forth sufficient facts to
permit the Court to infer that these two entities were operating
in a closely connected manner with regard to the representation
of Lisa Miller, that the representation furthered the
University’s educational ends and was used for educational
purposes, and that third parties (including Jenkins and her
counsel) understood Liberty University to be providing support
to the litigation.19 Although the Court may revisit this question

19

In its prior order, the Court pointed to the following facts in this
regard: Liberty University and Liberty Counsel “shared common leadership,
were located in the same building, and Lindevaldsen, when acting as an
attorney for Liberty Counsel, used the resources of Liberty University to
carry out the business of her representation of Miller. The Plaintiffs allege
that Liberty Counsel acted as a “laboratory school” to train Liberty
University students, essentially serving as a law school clinical program.
Furthermore, Lindevaldsen and Staver’s representation of Miller, ostensibly
solely on behalf of Liberty Counsel, was critical to carrying out their roles
as professors at Liberty University. Lindevaldsen wrote a book about her
representation of Miller which Plaintiffs allege was required reading for

90

if a different factual showing is made at a later stage, these
facts are sufficient to attribute Liberty Counsel’s contacts to
Liberty University with regard to the matter at issue in this
case.
Finally, Liberty Counsel, Lindevaldsen and Staver reiterate many of the arguments they previously made, without
specifically engaging with the Court’s prior analysis of these
issues. By and large, the Court has already considered and
rejected these arguments. However, these Defendants make an
additional contention that provides reason to reverse the
Court’s prior conclusion concerning its jurisdiction over
Staver. Specifically, Defendants argue that this Court cannot
exercise personal jurisdiction over Staver as a consequence of
his agency relationship with Lindevaldsen, which arose from his
position as her boss at Liberty Counsel and Liberty University.
Lindevaldsen’s alleged contacts with this forum, they contend,
must be imputed to Liberty Counsel only, rather than to Staver.

students at the law school, and, as noted above, designed exam questions
based on this case. In addition, Plaintiffs allege that the entities held
themselves out to the student body and the public as being closely connected.
For example, when RUL was in the process of negotiating an agreement with
Liberty Counsel to fundraise for Miller’s legal representation, Staver gave
Zodhiates a tour of the Law School building. Ms. Lindevaldsen communicated
from a Liberty University email address and used a Liberty University phone
when she served as counsel in the Miller litigation on behalf of Liberty
Counsel.”

91

As Defendants note, the Restatement (Third) of Agency §
1.01 establishes that, generally, supervisors should be
considered co-agents, rather than principles, of the employees
they supervise. No court appears to have considered whether a
co-agency relationship is sufficient to attribute an employee’s
jurisdictional contacts, and Defendants’ suggestion to the
contrary is misleading.20 Nevertheless, general agency principles
may be applied to establish personal jurisdiction. See, e.g.,
Myers v. Bennett Law Offices, 238 F.3d 1068, 1073 (9th Cir.
2001). Moreover, the Second Circuit has relied on the
Restatement of Agency to establish those principles in other
contexts. See, e.g., Johnson v. Priceline.com, Inc., 711 F.3d
271, 277 (2d Cir. 2013). Under the Restatement’s guidance, then,

20

The authorities Defendants cite in this regard do not support this
proposition, but rather apply general agency principles to the personal
jurisdiction analysis. See Carreras v. PMG Collins, LLC, 660 F.3d 549, 556
(1st Cir. 2011)(analyzing whether individual was an agent of a corporation
but holding that “the record is hopelessly murky on the matter of agency,”
without addressing whether that individual would be an agent of a higher
officer in the corporation); United Elec., Radio & Mach. Workers of Am. v.
163 Pleasant St. Corp., 960 F.2d 1080, 1090 (1st Cir. 1992) (assuming, for
the sake of argument, that employee’s conduct was attributable to one
corporation, but primarily discussing the attribution of contacts from that
corporation to another); Doe v. Forrest, 853 A. 2d 48 (Vt. 2004) (failing to
discuss either liability of an individual supervisor for an employee’s acts
or sufficiency of contacts for personal jurisdiction); Brueckner v. Norwich
Univ., 730 A.2d 1086 (Vt. 1999) (same); Myers v. Bennett Law Offices, 238
F.3d 1068, 1073 (9th Cir. 2001) (failing to discuss whether supervisor could
have an agency relationship with subordinate employee); Mason v. Sallyport
Glob. Holdings, Inc., 987 F. Supp. 2d 707, 711 (E.D. Va. 2013) (failing to
discuss supervisory status, but concluding merely that a company’s “contacts
cannot be imputed to [an employee with supervisory status] simply because he
is an employee of” the company); Grynberg v. BP P.L.C., 855 F. Supp. 2d 625,
645 (S.D. Tex. 2012), aff'd, 527 F. App'x 278 (5th Cir. 2013) (same); Corbo
v. Laessig, No. 2:10-CV-316-GMN-LRL, 2012 WL 1068271, at *5 (D. Nev. Mar. 28,
2012) (same, discussing fiduciary shield doctrine); Siegel v. Holson Co., 768
F. Supp. 444, 446 (S.D.N.Y. 1991) (same).

92

Staver must be considered Lindevaldsen’s co-agent rather than
principle, and her tortious acts therefore cannot be imputed to
him for jurisdictional purposes.
This Court determined previously that the “allegations
against Staver alone are admittedly weaker than those against
Lindevaldsen,” and that Plaintiffs’ allegations “do not
demonstrate that Staver himself participated in efforts to
assist Miller in fleeing the country.”

ECF 220, pp. 31, 32.

The Court was also “not persuaded by Plaintiffs’ argument that
Staver’s mere representation of Miller in the Vermont
proceedings permits us to find personal jurisdiction over him
here.”

Id., pp. 32-33.

The Court nonetheless granted leave to

amend to add Staver as a party based upon agency principles.

In

light of Defendants’ more thorough briefing of this question at
the instant stage, the Court is now persuaded that it cannot
exercise jurisdiction over Staver.
G.

First Amendment challenges

i.

Introduction
Defendants Zodhiates, Hyden and RUL, as well as Wall, also

moved to dismiss Plaintiffs’ Section 1985(3) and intentional
interference claims on grounds that they violate the First
Amendment. In particular, Defendants Zodhiates, Hyden and RUL

93

contend that these claims are unconstitutionally overbroad and
vague, and punish speech without a demonstration that it poses a
clear and present danger.21 Defendant Linda Wall references her
special motion to strike, which contends generally that her
requests for donations and her advocacy on behalf of Lisa Miller
were protected by the First Amendment. ECF 242; 243-1.
Defendants raise their free speech arguments in the context
of a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6)22. ECF 227. Thus, the Court must apply the
standard of review discussed above for such motions. In
particular, the Court must accept as true all of Plaintiffs’
well-pleaded factual allegations and draw inferences from those
allegations in the light most favorable to the Plaintiffs. Starr
ex rel. Estate of Sampson v. Georgeson S'holder, Inc., 412 F.3d
103, 109 (2d Cir. 2005). Therefore, the Court must disregard
Defendants’ citations to their own affidavits for purposes of
these motions, as well.
ii.

Analysis

21

These Defendants’ arguments are directed primarily at the Section 1983
claim. They merely allege, in passing, that the same overbreadth, vagueness
and “clear and present danger” challenges arise with respect to Plaintiffs’
state law claims. Given the lack of an argument on the latter claim, the
Court will center its discussion of these issues on Defendants’ arguments
concerning Section 1985.
22
Although Defendants Zodhiates, Hyden and RUL do not identify the grounds
for their motion, the Court will interpret their argument that Section 1985
violates the First Amendment as raising a defense that the complaint fails to
state a claim upon which relief can be granted pursuant to Fed. R. Civ. P.
12(b)(6).

94

1.

Overbreadth
Defendants first assert that Section 1983 is

unconstitutionally overbroad because the amended complaint
“imputes to all Defendants a variety of activities protected by
the First Amendment.” ECF 227, p. 4 (emphasis added). This
argument, however, severely distorts the overbreadth doctrine.
In Broadrick v. Oklahoma, the Supreme Court permitted
individuals whose own conduct was not protected by the First
Amendment to bring a facial challenge to a statute where “the
statute's very existence may cause others not before the court
to refrain from constitutionally protected speech or
expression.” 413 U.S. 601, 611 (1973). The Court announced that,
since the overbreadth doctrine is a departure from the
traditional rules of standing, “the overbreadth of a statute
must not only be real, but substantial as well, judged in
relation to the statute's plainly legitimate sweep,”
“particularly where conduct and not merely speech is involved.”
Id. at 616. Thus, “[f]acial overbreadth has not been invoked
when a limiting construction has been or could be placed on the
challenged statute.” Id. at 613. Later, the Court clarified that
“where, despite some possibly impermissible application, the
remainder of the statute covers a whole range of easily
identifiable and constitutionally proscribable conduct, ... the

95

Court has required a litigant to demonstrate that the statute
“as applied” to him is unconstitutional.” Sec'y of State of Md.
v. Joseph H. Munson Co., 467 U.S. 947, 964–65 (1984); see also
Bordell v. Gen. Elec. Co., 922 F.2d 1057, 1061 (2d Cir. 1991)
(The overbreadth doctrine “only allows those who have suffered
some cognizable injury, but whose conduct is not protected under
the First Amendment, to assert the constitutional rights of
others.” (emphasis added)).
Here, however, Defendants neither demonstrate that the
statute as applied to them is unconstitutional, nor show that,
although it is constitutional as applied to them, a substantial
amount of protected speech would be prohibited or chilled.
Rather, they point to a laundry list of facts alleged in the
amended complaint that entail speech, without explaining how or
why that speech would be proscribed by the statute at issue. In
fact, none of these facts fully encompasses the predicate
conduct for a Section 1985 claim, which requires that Defendants
engage in overt acts to hinder the authorities from providing
equal protection of the law to Plaintiffs, and cause injury to
Plaintiffs in doing so. The key predicate conduct, therefore,
entailed assisting Lisa Miller in physically removing Isabella
from the country so as to avoid the jurisdiction of U.S.
authorities –conduct which, clearly, does not merely constitute

96

protected speech. Moreover, even Defendants’ argument that the
statute would have a chilling effect on attorneys who seek to
represent their clients fails. Clearly, a limiting construction
can and has been placed on Section 1985’s hindrance clause to
ensure that attorneys will not be punished under the law for
merely representing a client. That construction is evident in
the language of the statute itself, which requires an individual
to actually aim to hinder state authorities from providing equal
protection under the law. Here, Defendants created such an
obstacle by physically and materially assisting Lisa Miller in
kidnapping a child, and her attorneys did so by providing
similar physical assistance and allegedly committing fraud to
assist Lisa Miller in removing Isabella from the country. As
such, the Court finds that Defendants have failed to show that
the statute as applied to them is unconstitutional, or that
statute is facially overbroad.
2.

Vagueness
Next, Defendants also contend that Section 1985 is

unconstitutional because the term “hinder” is impermissibly
vague, especially “when it is the person’s role to ‘hinder’ the
operation of the system.” ECF 227, p. 7. To be sure, “[i]t is a
basic principle of due process that an enactment is void for
vagueness if its prohibitions are not clearly defined.” Grayned
97

v. City of Rockford, 408 U.S. 104, 108–09 (1972). The Supreme
Court in Grayned found that a statute is impermissibly vague
when it offends several values. First, statutes must “give the
person of ordinary intelligence a reasonable opportunity to know
what is prohibited,” thereby providing “fair warning.” Id.
Second, laws must not “impermissibly delegate[] basic policy
matters” to those who enforce them, as this would constitute a
“broad invitation to subjective or discriminatory enforcement.”
Id. at 108-09, 113. Third, “where a vague statute abuts upon
sensitive areas of basic First Amendment freedoms, it operates
to inhibit the exercise of those freedoms.” Id. at 109 (internal
quotations omitted). Therefore, laws that permit “persons to be
punished for merely expressing unpopular views” may also be
unconstitutionally vague for this reason. Id. at 113.
None of these considerations make Section 1985
unconstitutionally vague in this case. First, the statute
provides sufficient fair warning to reasonably intelligent
people about the scope of the conduct it prohibits. Defendants
cite two cases in which the Supreme Court struck down statutes
(or interpretations of statutes) that included the word
“hinder.” See ECF 227, p. 7 (citing Cox v. Louisiana, 379 U.S.
536, 551 (1964); Thornhill v. Alabama, 310 U.S. 88 (1940)). In
Cox, however, the Court did not single out the word “hinder” as

98

the cause of the constitutional defect, and instead relied on
the overbreadth of the statute to reach its conclusion about
vagueness. 379 at 552 (“A statute which ... is so vague and
indefinite as to permit the punishment of the fair use of this
opportunity [for free political discussion] is repugnant to the
guaranty of liberty contained in the Fourteenth Amendment.”).
Likewise, Thornhill neither singled out the term “hinder” as a
reason for holding that the statute at issue was
unconstitutional, nor engaged in a vagueness analysis at all.
310 U.S. at 100.
In fact, the Supreme Court has warned that, “[c]ondemned to
the use of words, we can never expect mathematical certainty
from our language.” Grayned, 408 U.S. at 110. Rather, the
vagueness of particular words in a statute is circumscribed by
their “particular context.” Id. Thus, for example, in Grayned,
the Supreme Court found that a law prohibiting certain
disturbances was not vague even though the “prohibited quantum
of disturbance is not specified in the ordinance,” since “the
prohibited disturbances are easily measured by their impact” on
particular activities. Id.
Likewise, in this case, the term “hinder” is given a
precise meaning by the context in which it appears. In
particular, the hindrance clause prohibits conspiracies “for the
99

purpose of preventing or hindering the constituted authorities
of any State or Territory from giving or securing to all persons
within such State or Territory the equal protection of the
laws.” 42 U.S.C. § 1985(3). Thus, as explained above, the
defendant must have acted with discriminatory animus against the
plaintiff, and his or her conduct must have had a measurable
impact on the capacity of the state to provide equal protection.
In this sense, whether a defendant’s hindrance is prohibited
under § 1985 will be measured both by its intent and its impact.
Thus, pursuant to Grayned’s rationale, the statute is
sufficiently specific to provide fair notice. Moreover, these
limitations ensure that the statute will not constitute a broad
invitation to discriminatory enforcement.23 Finally, the statute
is not vague as a consequence of punishing people “for merely
expressing unpopular views,” because, as explained above,
significantly more than an unpopular view is required to make
out a claim under § 1985. Accordingly, Defendants’ motion to
dismiss on this ground cannot prevail.

23

Defendants also rely on Gentile v. State Bar of Nevada, 501 U.S. 1030, 1051
(1991), arguing that careful review is required because “[t]he statute
necessarily implicates the rights of lawyers and others who have a
professional mission to challenge the actions of the State.” ECF 227, p. 8.
However, the Court in Gentile focused its inquiry on whether the regulation
of lawyers would be subject to less stringent First Amendment scrutiny, not
more so. Moreover, the Gentile Court ultimately determined that the statute
“raise[d] concerns of vagueness and selective enforcement” because a
particular safeguard provision of the statute had led the defendant in that
case to believe that his conduct was not prohibited. Gentile, 501 U.S. at
1034. This case presents no such provision, and Defendants do not argue that
they believed their conduct was permissible because of the terms of the §
1985 statute itself. Accordingly, Gentile is inapposite to this case.

100

3.

Advocacy of illegality
Finally, Defendants contend that § 1985(3) violates the

First Amendment’s protection of advocacy of illegality. In
particular, they allege that Victoria Hyden’s relevant conduct
for purposes of this claim amounted only to fundraising and
advocacy of civil disobedience. Therefore, they claim, § 1985
directly punishes her protected speech.
To be sure, the First Amendment does protect advocacy of
illegality. See Bradenburg v. Ohio, 395 U.S. 444 (1969).
However, that conduct by Hyden is not, in fact, the source of
her potential liability under § 1985. Rather, Hyden committed
overt acts to further the conspiracy by allegedly facilitating
communication between her father, who has been convicted of the
kidnapping, and Lindevaldsen, who allegedly lied to Vermont
courts, in order to facilitate Lisa Miller’s and Isabella’s
travel. That conduct is clearly distinct from merely advocating
for civil disobedience without providing direct assistance in
the commission of legal violations. Thus, Hyden’s conduct does
not fall within the category of speech protected by Bradenburg,
which applies to “the mere abstract teaching of the moral
propriety or even moral necessity for a resort to force and
violence.” Brandenburg, 395 U.S. at 448 (1969). Accordingly, the

101

Court denies Defendants’ motion to dismiss on First Amendment
grounds altogether.
H.

Motions to Strike

i.

Introduction
Along with their motions to dismiss, Defendant Wall and

Defendants Liberty Counsel, Lindevaldsen and Staver filed two
special motions to strike Plaintiffs’ amended complaint. See ECF
239, 243. Defendants contend that Vermont law allows them to
move to strike the complaint in its entirety because Plaintiffs’
claims arise out of protected First Amendment activity. In
response, Plaintiffs argue that these motions must be denied
because (1) the anti-SLAPP statute does not apply in federal
court; and (2) even if it did, Defendants have failed to meet
their burden of showing that the anti-SLAPP statute should apply
to the circumstances of this particular case. For the reasons
outlined below, the Court agrees that the anti-SLAPP statute is
inapplicable to the facts of this case, and therefore denies
Defendants’ motions to strike on this ground.
ii.

Analysis
Like other states, Vermont has enacted a statute to prevent

so-called strategic lawsuits against public participation
(“SLAPP”) from advancing at an early stage. “The statute is
102

based upon two legislative findings: (1) There has been a
disturbing increase in lawsuits brought primarily to chill the
valid exercise of the constitutional rights of freedom of speech
and freedom to petition the government for the redress of
grievances[; and] (2) It is in the public interest to encourage
continued participation in matters of public significance, and
this participation should not be chilled through abuse of the
judicial process.” Felis v. Downs Rachlin Martin PLLC, 133 A.3d
836, 847 (Vt. 2015). Although Defendants do not raise the issue,
Plaintiffs first challenge whether the statute applies at all in
federal court under Erie and its progeny.
This Court has already held that the automatic stay
provision of Vermont’s anti-SLAPP statute cannot apply to
Plaintiffs’ federal claim. ECF 220. (“[S]uch a state norm cannot
apply to a federal cause of action, since doing so would
frustrate substantive federal rights and violate the Supremacy
Clause.”) (citing Hillton v. Hallmark Cards, 599 F.3d 894, 90001 (9th Cir. 2010); Doctor's Data, Inc. v. Barrett, No. 10-cv03795, 2011 WL 5903508, at *2 (N.D. Ill. Nov. 22, 2011)).
Nevertheless, as the Court previously noted, the fact that this
Court has federal question jurisdiction over Count Two of the
amended complaint does not alone preclude the anti-SLAPP
statute’s potential applicability to the state law claim in

103

Count One. See Wright & Miller, 19 Fed. Prac. & Proc. Juris. §
4520 (3d ed.) (“It frequently is said that the doctrine of Erie
Railroad Company v. Tompkins applies only in diversity of
citizenship cases; this statement simply is wrong.”); Maternally
Yours v. Your Maternity Shop, 234 F.2d 538, 541 (2d Cir.
1956)(“[I]t is the source of the right sued upon, and not the
ground on which federal jurisdiction over the case is founded,
which determines the governing law. Thus, the Erie doctrine
applies, whatever the ground for federal jurisdiction, to any
issue or claim which has its source in state law.”) (internal
citation omitted).
In three prior cases, this Court has applied the anti-SLAPP
statute’s procedural scheme to state law claims brought in
federal court. See, e.g., Ernst v. Kauffman, 50 F. Supp. 3d 553,
559 (D. Vt. 2014), on reconsideration, No. 5:14-CV-59, 2016 WL
1610608 (D. Vt. Apr. 20, 2016); Haywood v. St. Michael’s Coll.,
No. 2:12-CV-164, 2012 WL 6552361, at * 13-16 (D. Vt. Dec. 14,
2012), aff’d, 536 F. App’x 123 (2d Cir. 2013), as corrected
(Oct. 23, 2013). Plaintiff provides persuasive arguments for
reconsidering that tradition in this District. The Court need
not depart from that precedent to resolve the question at issue,
however. Even if the Court were to consider the applicability of
the anti-SLAPP statute with respect to Plaintiffs’ state claim,

104

Defendants have failed to demonstrate that this is the type of
case to which that procedural device would apply.
The state’s anti-SLAPP claim is subject to a two-part
burden shifting standard: first, “the defendant must show that
the case arises from defendant's exercise of “the right to
freedom of speech or to petition the government” and that the
speech or petition is “in connection with a public issue.” Ernst
v. Carrigan, 814 F.3d 116, 119 (2d Cir. 2016). If the defendant
meets that burden, then the motion must be granted unless
plaintiff shows that the defendant’s exercise of his or her
right to freedom of speech and to petition was devoid of any
reasonable factual support and any arguable basis in law, and
the defendant’s acts caused actual injury to the plaintiff.
Felis v. Downs Rachlin Martin PLLC, 200 Vt. 465, 479-81 (2015).
“At the very least, to meet the first prong of this test,
Plaintiff must demonstrate that his claim is legally
sufficient.” Haywood v. St. Michael’s Coll., Case No. 2:12-cv164, 2012 WL 6552361, at *15 (D.Vt. Dec. 14, 2012).
Thus, this Court has recently identified three elements of
a defendant’s anti-SLAPP claim:
1. The defendant asserting the SLAPP motion to strike must
be sued “in an action arising from the defendant's exercise
... of the right to freedom of speech or to petition the
government for redress of grievances.” 12 V.S.A. § 1041(a).
105

2. Such statements are protected only if they are made “in
connection with a public issue.” Id.
3. The requirement that the content of a protected
statement concern issues of public interest applies to
statements made before a governmental body.
Ernst v. Kauffman, Case No. 5:14-cv-59, 2016 WL 1610608, at
*4-6 (D. Vt. Apr. 20, 2016). A defendant meets his or her burden
of showing that that a particular activity constitutes “the
exercise, in connection with a public issue, of the right to
freedom of speech or to petition the government for redress of
grievances under the U.S. or Vermont Constitution,” 12 V.S.A. §
1041(a), “by demonstrating that the act ... fits one of the
categories spelled out in subsection (i) of the anti-SLAPP
statute.” Haywood v. St. Michael’s Coll., Case No. 2:12-cv-164,
2012 WL 6552361, at *13 (D.Vt. Dec. 14, 2012).
Here, however, Plaintiffs’ state law claim for intentional
interference with Jenkins’ custody does not arise from protected
speech. Rather, it arises from Lisa Miller’s furtive departure
from the United States immediately before she would have been
obligated to surrender Isabella to Jenkins pursuant to a court
order, first temporarily and later, on a full-time basis. The
claims which Plaintiffs assert against the remaining defendants
center on the support that they allegedly provided to Lisa
Miller to carry out this wrongful conduct. The fact that some of
the activities that Defendants engaged in –including the Liberty
106

Counsel attorneys’ representations to state courts, and Wall’s
fundraising support –might constitute protected speech in some
contexts does not salvage the anti-SLAPP claim. Rather, it is
the combination of these acts along with Defendants’ alleged
agreement with Lisa Miller to support her in unlawfully
interfering with Jenkins’ custody over Isabella, and Lisa
Miller’s actions in doing so, which give rise to the claim.
Thus, while the amended complaint does include allegations that
Defendants engaged in speech, the Court concludes that
Plaintiffs’ state law claim does not “arise from” that protected
speech.
Admittedly, Wall, Staver and Lindevaldsen’s affidavits deny
that they provided any assistance to Lisa Miller to enable her
to flee the country with Isabella or to disobey any court
orders.24 However, this evidence goes to show that Plaintiff’s

24

In general, in ruling on a special motion to strike under Vermont’s antiSLAPP statute, the Court may consider a broader range of evidence than it
would in ruling on a motion to dismiss. In particular, the state anti-SLAPP
statute provides that “[i]n making its determination, the court shall
consider the pleadings and supporting and opposing affidavits stating the
facts upon which the liability or defense is based.” 12 V.S.A. § 1041(e)(2);
see also Ernst v. Carrigan, 814 F.3d 116, 119 (2d Cir. 2016) (“To decide such
motions, courts look to the pleadings and supporting and opposing
affidavits.”) (internal quotation omitted). The Vermont Supreme Court has not
yet determined how a plaintiff’s allegations in pleadings should be weighed
against supporting or opposing affidavits, and the wording of the statute
does not evince what forms of evidence hold greater weight when affidavits
conflict. In fact, states with similar anti-SLAPP statutes have reached
different conclusions concerning whether plaintiffs must submit affidavits at
all in responding to anti-SLAPP motions, or whether courts can simply rely on
the allegations in a complaint. See Robert T. Sherwin, Evidence? We Don't
Need No Stinkin' Evidence!: How Ambiguity in Some States' Anti-SLAPP Laws
Threatens to De-Fang A Popular and Powerful Weapon Against Frivolous
Litigation, 40 Colum. J.L. & Arts 431, 434–35 (2017) (explaining that

107

underlying claim is meritless, and therefore is relevant to the
second prong of the anti-SLAPP test. See Haywood, 2012 WL
6552361, at *15 (To show that defendants’ exercise of their
right to freedom of speech was devoid of any reasonable factual
support or arguable basis in law Plaintiff must demonstrate, at
the very least, “that his claim is legally sufficient.”). In
determining whether or not claims “arise from” the protected
speech, this Court must assess the nature of the allegations
themselves. Here, the nature of the claim entails far more than
speech. Accordingly, Defendants’ special motions to strike the
amended complaint are denied.
IV.

Conclusion

For the foregoing reasons, the Court denies Defendants’
motions to dismiss and motions to strike the amended complaint
in part. It grants these motions only to hold that Plaintiffs
have failed to allege that Liberty University can be held
vicariously liable for the acts of Staver, that the Court cannot
exercise personal jurisdiction over Staver, and to dismiss
Isabella Miller-Jenkins’ claim under Count One.

although California and Texas’ anti-SLAPP statutes use nearly identical
language, courts in each state have reached opposite conclusions on the
question of whether pleadings are sufficient evidence to establish a
plaintiff’s burden to defeat an anti-SLAPP motion).

108

Dated at Burlington, in the District of Vermont, this 29th
day of September, 2017.
/s/ William K. Sessions III
William K. Sessions III, Judge
United States District Court

109