Jenkins v. Miller et al
Filing
396
OPINION AND ORDER denying 337 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge William K. Sessions III on 10/29/2019. (jam)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
JANET JENKINS
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:
:
:
:
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v.
KENNETH L. MILLER ET. AL.,
Defendants.
Case No. 2:12-cv-184
OPINION AND ORDER: DEFENDANT’S MOTION TO DISMISS
(Doc. 337)
Plaintiff Janet Jenkins, for herself and as next friend of
her daughter Isabella Miller-Jenkins, has brought suit against
several individuals and organizations, alleging that they
kidnapped and conspired to kidnap Isabella. Plaintiffs assert
claims of commission of, and conspiracy to, commit an
intentional tort of kidnapping and conspiracy to violate civil
rights under 42 U.S.C. § 1985(3).
Defendant Timothy Miller (“Defendant”) moves to dismiss the
Complaint for lack of personal jurisdiction and insufficient
services of process, under Federal Rules of Civil Procedure
12(b)(2) and 12(b)(5).
For the reasons set forth below, Defendant’s motion to
dismiss is denied.
1
Factual Background
Defendant Timothy Miller currently resides in Denver,
Pennsylvania. In September 2009, he resided in Managua,
Nicaragua.
Isabella Miller-Jenkins is the daughter of Defendant Lisa
Miller and Plaintiff Janet Jenkins. She is the biological
daughter of Lisa Miller, born in April 2002 while the two women
were joined in a civil union, which they obtained in Vermont in
2000. At first the family lived in Virginia, but moved to
Vermont in August 2002. When Isabella was seventeen months old,
Miller and Jenkins separated and Miller moved with Isabella back
to Virginia.
Lisa Miller petitioned the Vermont Family Court to dissolve
the union and to determine parental rights and responsibilities
with respect to Isabella. The family court issued a temporary
order on June 17, 2004, granting temporary legal and physical
responsibility to Lisa Miller and setting a visitation schedule
for parent-child contact between Jenkins and Isabella, including
monthly visits and daily telephone contact.
Other than a visit on the first weekend of the visitation
schedule, Lisa Miller did not allow Jenkins to have parent-child
contact either in person or by telephone. Instead, she filed a
new petition in the Circuit Court of Frederick County, Virginia,
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asking that court to declare her the sole parent of Isabella and
to rule that Jenkins had no parental or visitation rights. On
appeal from an order granting Lisa Miller’s requested relief,
the Virginia Court of Appeals held that by filing her petition
in Vermont Lisa Miller had invoked the jurisdiction of the
courts of Vermont, that Virginia courts lacked jurisdiction over
her subsequent petition and were required to extend full faith
and credit to the custody and visitation orders of the Vermont
court. Miller-Jenkins v. Miller-Jenkins, 637 S.E.2d 330, 338
(Va. App. 2006).
In June 2007 the Vermont family court ordered sole physical
and legal custody of Isabella to Lisa Miller, and awarded
Jenkins visitation rights. The Court warned Lisa Miller,
however, that continued interference with the relationship
between Isabella and Jenkins could warrant a modification of the
custody order. See Miller-Jenkins v. Miller-Jenkins, 2010 VT 98,
¶ 5, 12 A.3d 768, 772 (entry order). Although Lisa Miller did
comply with the visitation schedule on several occasions in the
last half of 2007, by the spring of 2008 Lisa Miller renewed her
defiance of the visitation orders, and was found in contempt of
court multiple times. In August 2009 Jenkins moved to modify the
family court order concerning parental rights and
responsibilities. Lisa Miller did not attend the hearing on the
motion, but filed an objection to any transfer of custody.
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Before the Vermont family court ruled on Jenkins’ motion,
Lisa Miller left the country with Isabella on September 22,
2009. On November 20, 2009, the Vermont family court concluded
that Lisa Miller had willfully interfered with Jenkins’
visitation rights, and it transferred legal and physical rights
and responsibilities for Isabella to Jenkins as of January 1,
2010. As far as is known however neither Isabella nor Lisa
Miller have returned to this country.
A criminal investigation and prosecution followed, which
involved Defendant. In April 2011, Defendant was arrested for
aiding and abetting the kidnapping of Isabella. He appeared
twice in Vermont in response to those charges, which were
dismissed in exchange for Defendant’s agreement to testify
against Kenneth Miller. Defendant did not testify and was later
charged in the Western District of New York with conspiracy to
commit international parent kidnapping in violation of 18 U.S.C.
§ 371. He pleaded guilty in December 2016.
Plaintiffs filed this action 2012, alleging, inter alia,
that Defendant purchased plane tickets for Lisa Miller and
Isabella from Canada to Nicaragua, met Lisa Miller and Isabella
when they arrived in Nicaragua, helped them rent an apartment,
allowed them to visit his home and teach his children, and
arranged for their belongings to be brought from Virginia to
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Nicaragua. Plaintiffs allege he did this while advising his
family not to discuss Lisa Miller by email (to avoid her being
traced to Nicaragua), and continued to help her after learning
that a Vermont court had transferred custody of Isabella from
Lisa Miller to Jenkins on November 20, 2009.
When Plaintiffs filed their initial Complaint in 2012,
Defendant was still in Nicaragua and Plaintiffs were not
successful in personally serving him there. Plaintiffs moved
under Rule 4(f)(3) of the Federal Rules of Civil Procedure for
permission to serve process on Defendant through Jeffrey A.
Conrad, an attorney who had appeared on Defendant’s behalf in
both criminal cases pending against him. This Court granted
Plaintiffs’ motion for alternate service as unopposed.
On March 30, 2015, a process server hired by Plaintiffs
hand-delivered a copy of the summons and complaint to Kathy
Amaro, the secretary of Conrad’s law office in Lancaster,
Pennsylvania. Defendant did not file an answer or Rule 12 motion
by the April 20, 2015 deadline, or at any time since.
Defendant now moves to dismiss the complaint against him
for lack of personal jurisdiction.
5
LEGAL STANDARD
To survive a motion to dismiss for lack of personal
jurisdiction under Rule 12(b)(2) of the Federal Rules of Civil
Procedure, the plaintiff has the burden of making a prima facie
case showing that personal jurisdiction over the defendant
exists. Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673
F.3d 50, 59 (2d Cir. 2012). In assessing personal jurisdiction
on a Rule 12(b)(12) motion, the court is neither required to
“draw argumentative inferences in the plaintiff's favor,”
Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d
Cir. 1994) (internal quotation marks and citation omitted), nor
must it “accept as true a legal conclusion couched as a factual
allegation.” Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 185
(2d Cir. 1998) (citation omitted).
DISCUSSION
Defendant makes two main arguments in his Motion to
Dismiss. First, he argues that he had insufficient contacts with
the state of Vermont to warrant the state’s exercise of personal
jurisdiction over him. Second, he argues that Plaintiffs’
service of process upon him was procedurally improper.
I. Defendant Established Sufficient Contacts with Vermont
to Justify This Court’s Exercise of Personal Jurisdiction
Over Him
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“A court cannot exercise personal jurisdiction over a
defendant unless doing so comports with constitutional due
process principles.” Licci, 673 F.3d at 60. Most relevant here
is the question of “whether the defendant has sufficient
contacts with the forum state to justify the court’s exercise of
personal jurisdiction.” Chloe v. Queen Bee of Beverly Hills,
LLC, 616 F.3d 158, 164 (2d Cir. 2010).
For purposes of this
inquiry, a distinction is made between “specific” jurisdiction
and “general” jurisdiction. “The inquiry whether a forum State
may assert specific jurisdiction over a nonresident defendant
focuses on the relationship among the defendant, the forum, and
the litigation.” Walden v. Fiore, 571 U.S. 277, 283-84 (2014)
(internal quotation and citations omitted). “For a State to
exercise jurisdiction consistent with due process, that
relationship must arise out of contacts that the defendant
himself creates with the forum, and must be analyzed with regard
to the defendant's contacts with the forum itself, not with
persons residing there.” Id. (internal quotations and citations
omitted).
Defendant argues that he has created no contacts with
Vermont: he has never lived in Vermont, owned or leased property
in Vermont, paid taxes in Vermont, or voluntarily visited
Vermont. ECF 337-1 at 5. Defendant contends that the only link
7
between him and the state of Vermont is that Plaintiff resides
in Vermont and allegedly suffered injury in Vermont.
Defendant is correct that these two facts alone would be
insufficient to establish minimum contacts with Vermont. See
Walden, 571 U.S. at 285 (“[T]he plaintiff cannot be the only
link between the defendant and the forum state. Rather, it is
the defendant’s conduct that must form the necessary connection
with the forum State that is the basis for its jurisdiction over
him.”). However, Defendant is connected to Vermont by more than
Plaintiff’s residency in the state: Defendant’s alleged actions
in this case were aimed at impeding Vermont’s courts. His own
conduct created a connection between him and Vermont.
Defendant has testified, in a sworn deposition in
connection with his earlier criminal case, that his involvement
with Lisa Miller and Isabella Jenkins-Miller began when he
received a telephone call from Kenneth Miller telling him that
Lisa Miller wanted to leave the United States and travel to
Nicaragua because a court might transfer custody of her child to
another woman. ECF 48-1 at 13-14. Defendant learned that it was
important to get Lisa Miller to Nicaragua specifically because
Nicaragua would not extradite Lisa Miller if the court did rule
against her. Id. at 24.
8
All of Defendant’s alleged actions in this case took place
in Nicaragua, but its purpose was to prevent Vermont courts from
giving effect to their order granting a Vermont resident custody
of her child. By so impeding Vermont’s courts, Defendant created
the minimum contacts required to hale him into court in Vermont.
II. Plaintiffs Properly Served Process on Defendant Through
his Counsel
For a court to exercise personal jurisdiction over a
defendant, a “plaintiff’s service of process upon the defendant
must have been procedurally proper.” Licci, 673 F.3d at 59.
After attempting to personally serve Defendant in
Nicaragua, this Court ordered that Plaintiffs could serve
process on Defendant by serving his criminal attorney, Jeffrey
A. Conrad. Plaintiffs hired a process server who hand-delivered
a copy of the summons and complaint to Kathy Amaro, the
secretary at Conrad’s law office in Lancaster, Pennsylvania.
Since Defendant’s attorney was in the United States, FRCP
4(e)(1) allowed for service by “following state law for serving
summons in an action brought in courts of general jurisdiction
in the state . . . where service is made.” Fed. R. Civ. P.
4(e)(1). Attorney Conrad resided in Pennsylvania, so
Pennsylvania’s civil procedure rules guided Plaintiffs’ service
of process. Pennsylvania Rule of Civil Procedure 402(2)(iii)
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permits service of process “by handing a copy . . . at any
office or usual place of business of the defendant to his agent
or to the person for the time being in charge thereof.” Pa. R.
C. P. 402(2)(iii).
Defendant argues that service of process was improper in
this case because (1) Pennsylvania Rule of Civil Procedure
402(2)(iii) only authorizes service on a defendant’s “place of
business,” not a defendant’s attorney’s “place of business” and
(2) even if the rule did so provide, Kathy Amaro, the secretary
of Conrad’s law firm, does not count as “the person for the time
being in charge” of the office.
Defendant’s first argument can be dealt with quickly:
Plaintiffs properly read the Pennsylvania rule with respect to
Conrad. This Court authorized Plaintiffs to serve Defendant
through Conrad.
As to Defendant’s second argument, the Third Circuit has
shed light on whether or not a secretary can be considered
someone “in charge” of an office. In Grand Entertainment Group,
Ltd. v. Star Media Sales, Inc., the Third Circuit found that
“the secretary of a defendant may meet the statutory definition
of a proper party to be served” and that the “propriety of
service under Pennsylvania law commonly depends upon the
relationship between the person receiving process and the
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party.” 988 F.2d 476, 485 (3d Cir. 1993). In that case, the
receptionist at the defendants’ office building was found not to
be a “person in charge” because she did not work in the offices
of the defendants and was not employed by them, but was instead
a building employee who took messages for tenants while they
were out of office. Id. The Court held that “‘the person for the
time being in charge’ of any office or usual place of business
of the defendants for purposes of Pennsylvania Rule of Civil
Procedure 402 must either be an individual with some direct
connection to the party served or one whom the process server
determines to be authorized, on the basis of her representation
of authority, as evidenced by the affidavit of service.” Id. at
486.
It is uncontested that Ms. Amaro is Attorney Conrad’s
secretary. There is no argument that she does not work for
Attorney Conrad. Defendant himself has referred to Ms. Amaro as
“Attorney Conrad’s secretary.” ECF 337-1 at 9. Because Ms. Amaro
had a “direct connection” to Attorney Conrad, under Pennsylvania
law, she could be “in charge” of Attorney Conrad’s office for
purposes of service of process. See Grand Entertainment Group,
Ltd., 988 F.2d at 485 (finding that the “propriety of service
under Pennsylvania law commonly depends upon the relationship
between the person receiving process and the party.”).
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Defendant argues that the return of service affidavit
forecloses this argument: in the return of process, the process
server had the option of checking “Agent or person in charge of
Defendant’s office or usual place of business” but instead
checked “Other” and elaborated that they had served “Kathy
Amaro, secretary.” ECF 345 Ex. 1 at 3. But as addressed above,
Ms. Amaro was employed by Attorney Conrad, not Defendant, so it
would have been incorrect to label her as the person in charge
of “Defendant’s office of usual place of business” on the return
of service.
Plaintiffs argue that “[i]t is the practice of the process
servers at the firm hired by Plaintiffs’ counsel to serve
process on an individual by handing the summons and complaint to
a third party only if that third party represents that she is
authorized to accept service for the individual to be served.”
ECF 341, Ex 1. Defendant asserts that they also spoke with the
firm and a representative told them that “when serving an
individual’s receptionist or secretary, the firm ‘follow[s] the
instructions of the client.’” ECF 345 at 4 (quoting Ex. 2).
In the end, Pennsylvania law recognizes that a secretary
may be “the person for the time being in charge” if they have a
direct connection to the person being served. That is the case
here. Service of process on Ms. Amaro was not improper.
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In sum, because Defendant has sufficient connections to the
state of Vermont and was properly served, his motion to dismiss
for lack of jurisdiction necessarily fails. Defendant’s motion
to dismiss is denied.
CONCLUSION
For the reasons set forth above, Defendant’s motion to
dismiss is denied.
DATED at Burlington, in the District of Vermont, this 29th
day of October, 2019.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge
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