Jenkins v. Miller et al

Filing 556

OPINION AND ORDER denying 495 Motion for Partial Summary Judgment as to All Claims Plaintiff Janet Jenkins Purports to Bring as Next Friend of Isabella Miller; denying 512 Motion for Sanctions Against Plaintiff and Her Counsel. Signed by Judge William K. Sessions III on 8/31/2020. (law)

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UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
JANET JENKINS, ET AL.,

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Plaintiffs,
v.
KENNETH L. MILLER ET AL.,
Defendants.

Case No. 2:12-cv-184

OPINION AND ORDER: DEFENDANTS’ MOTION FOR PARTIAL SUMMARY
JUDGMENT AND MOTION FOR SANCTIONS
(ECF 495, 512)
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).
Defendants Liberty Counsel and Rena Lindevaldsen now file
this motion for partial summary judgment as to all claims
Plaintiff Janet Jenkins brings as a next friend of Isabella
Miller-Jenkins, on account of the fact that Isabella reached the
age of majority on April 16, 2020. Liberty Counsel and
Lindevaldsen have also filed a motion for sanctions against
Jenkins for her continued maintenance of these next friend
claims.

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For the reasons set forth below, Defendants’ motion for
partial summary judgment on this issue is denied, and
Defendants’ motion for sanctions is denied.
FACTUAL BACKGROUND
This case arises out of the alleged international
kidnapping of Isabella Miller-Jenkins in September 2009 by her
mother, Lisa Miller, in obstruction of the parental rights of
her other mother, Janet Jenkins. Defendants Zodhiates, Kenneth
Miller, and Timothy Miller have been criminally convicted for
conspiring to commit, or aiding and abetting, the international
parental kidnapping. ECF 439-9; ECF 439-16; ECF 439-21. Among
the many claims Jenkins brings in this lawsuit, she brings
claims of conspiracy and aiding and abetting under Vermont law,
as well as of conspiracy to violate civil rights under federal
law, as a next friend of Isabella.
Isabella was born on April 16, 2002. ECF 494-1. On April
16, 2020, Isabella reached the statutory age of majority under
Vermont law. Cavallari v. Martin, 169 Vt. 210, 213 (1999). That
day, the Liberty Counsel Defendants and Lindevaldsen promptly
filed a motion for partial summary judgment on all claims
Jenkins brought as next friend of Isabella. These Defendants
also brought a Rule 11 motion against Jenkins and her counsel
for her continued maintenance of the claims.

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Isabella is still missing; the federal government’s efforts
to locate her are ongoing. See Lisa Miller Docket Report 4, Ex.
1. Her last known location was in Jinotega, Nicaragua, where she
was taken on April 27, 2010. Dep. Tr. 55, ECF 470-1.
STANDARD OF REVIEW
I.

Summary Judgment Standard
To prevail on a motion for summary judgment the movant must

show “that there is no genuine dispute as to any material fact
and [that it] is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). The movant bears the burden of demonstrating
the absence of a question of material fact. In making this
determination, the Court must view all facts “in the light most
favorable” to the non-moving party. Holcomb v. Iona Coll., 521
F.3d 130, 132 (2d Cir. 2008). If the movant fails to meet her
initial burden, the motion will fail even if the opponent does
not submit any evidentiary matter to establish a genuine factual
issue for trial. BBS Norwalk One, Inc. v. Raccolta, Inc., 117
F.3d 674, 677–78 (2d Cir. 1997).
If the movant meets her burden, “the nonmoving party must
come forward with admissible evidence sufficient to raise a
genuine issue of fact for trial in order to avoid summary
judgment.” Jaramillo v. Weyerhauser Co., 536 F.3d 140, 145 (2d
Cir. 2008). In doing so, the opposing party must come forward

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with sufficient evidence that would justify a reasonable jury in
returning a verdict in its favor. See Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). If
“the party opposing summary judgment propounds a reasonable
conflicting interpretation of a material disputed fact,” summary
judgment must be denied. Schering Corp. v. Home Ins. Co., 712
F.2d 4, 9–10 (2d Cir. 1983).
In determining whether there are genuine issues of material
fact, a court is “required to resolve all ambiguities and draw
all permissible factual inferences in favor of the party against
whom summary judgment is sought.” Johnson v. Killian, 680 F.3d
234, 236 (2d Cir. 2012) (quoting Terry v. Ashcroft, 336 F.3d
128, 137 (2d Cir. 2003)). “A party asserting that a fact [ . . .
] is genuinely disputed must support the assertion by [ . . . ]
citing to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made
for purposes of the motion only), admissions, interrogatory
answers, or other materials.” Fed. R. Civ. P. 56(c)(1).
II.

Motion for Sanctions

Rule 11 of the Federal Rules of Civil Procedure provides
the following:
By presenting to the court a pleading, written motion, or
other paper—whether by signing, filing, submitting, or

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later advocating it—an attorney or unrepresented party
certifies that to the best of the person’s knowledge,
information, and belief, formed after an inquiry reasonable
under the circumstances:
(1) it is not being presented for any improper
purpose, such as to harass, cause unnecessary delay, or
needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions
are warranted by existing law or by a nonfrivolous argument
for extending, modifying, or reversing existing law or for
establishing new law;
(3) the factual contentions have evidentiary support
or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for
further investigation or discovery; and
(4) the denials of factual contentions are warranted
on the evidence or, if specifically so identified, are
reasonably based on belief or a lack of information.
The Second Circuit has offered guidance that Rule
11 sanctions should be “made with restraint.” Schlaifer Nance &
Co. v. Estate of Warhol, 194 F.3d 323, 333 (2d Cir. 1999). The
decision whether to impose sanctions is a matter for the Court's
discretion. Perez v. Posse Comitatus, 373 F.3d 321, 325 (2d Cir.
2004).
DISCUSSION
I.

Defendants’ Motion for Partial Summary Judgment
Defendants Liberty Counsel and Lindevaldsen claim that they

are entitled to judgment as a matter of law because Jenkins’
next friend authority and standing to sue on behalf of Isabella
expired on April 16, 2020. Jenkins counters that she may proceed

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as Isabella’s next friend under Whitmore v. Arkansas, 495 U.S.
149 (1990), Rule 17(c)(2) of the Federal Rules of Civil
Procedure, and the Court’s broad equitable powers. Defendants’
motion for partial summary judgment is denied.
As a general matter under Vermont law, a plaintiff’s
capacity to bring next friend claims on behalf of a minor expire
when said minor reaches the age of majority. See Schuppin v.
Unification Church, 435 F. Supp. 603, 605 (D. Vt. 1977).
Because Isabella clearly reached the age of majority on April
16, 2020, Jenkins no longer has standing to bring next friend
claims based on Isabella’s status as a minor.
However, Jenkins may still bring next friend claims on
behalf of Isabella because she has shown that Isabella lacks
access to the U.S. courts under Whitmore v. Arkansas. 495 U.S.
149 (1990). In Whitmore, the Supreme Court put forth a two-prong
test to determine whether a party has standing to bring a next
friend claim on behalf of another individual. Under this test,
the putative next friend must first show that there is “an
adequate explanation — such as inaccessibility, mental
incompetence, or other disability” to explain “why the real
party in interest cannot appear on his own behalf to prosecute
the action.” Id. at 163. “Second, the ‘next friend’ must be
truly dedicated to the best interests of the person on whose
behalf he seeks to litigate.” Id.

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Jenkins argues that the courts are inaccessible to Isabella
because, based on the circumstances surrounding her
disappearance in 2009 and the federal government’s continued
inability to locate her, Isabella is demonstrably being held
captive outside of the United States, and thus lacks the
practical and financial ability to access American courts.
Defendants counter, however, that Jenkins has not sufficiently
established that Isabella – now a legal adult – is actually
being held against her will or otherwise facing serious barriers
to accessing the U.S. court system. Based on the evidence in the
record, however, Jenkins prevails in her argument.
Record evidence in this case clearly establishes that, in
2009, Isabella was removed from the country to Nicaragua by Lisa
Miller; Zodhiates, Kenneth Miller, and Timothy Miller have been
criminally convicted for conspiring to commit, or aiding and
abetting, international parental kidnapping based on these
events. ECF 439-9; ECF 439-16; ECF 439-21. Efforts to locate
Isabella by the federal government, law enforcement, and Jenkins
over the course of many years have yielded no results, providing
strong evidence that, at least up until now, Isabella’s
kidnapping has been ongoing.
As a district court held in Ali Jaber v. United States,
individuals may be found to lack access to U.S. courts based on
a holistic showing of barriers in the record, even if none of

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these obstacles would categorically prevent the individual from
making a court appearance. 155 F. Supp. 3d 70 (D.D.C. 2016).
Specifically, the Ali Jaber court held that the estates of
individual civilians killed in Yemen did not have access to the
American judicial system due to an ongoing civil war, financial
hardship, and infrastructure limitations which made it
impossible for them to travel or to communicate with American
courts. Id. at 76-77. Here, too, record evidence of Isabella’s
longstanding status as a victim of kidnapping shows that she
faces significant obstacles to appearing in American court,
including her location overseas, financial barriers, her age,
and her history of captivity.
Moreover, the facts of this case are distinguishable from
Al-Aulaqi v. United States, in which a district court held that
a citizen enemy combatant abroad had access to the U.S. courts
despite the risk of arrest and detainment he would face if he
made a court appearance. 727 F. Supp. 2d 1 (D.D.C. 2010). As the
District Court for the District of Columbia noted, Al-Aulaqi’s
main barrier to appearing in the American court system was his
enemy combatant status, a functionally distinct and far more
abstract obstacle compared to Isabella’s status as a kidnapped
missing person. Id. at 19 (“Al-Aulaqi is not in U.S. custody,
nor is he being held incommunicado against his will.”). Unlike
Isabella, who is known to be only eighteen years old with a

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history of captivity abroad, Al-Aulaqi’s only barrier to
appearing in the judicial system was his fear of arrest – a fear
which the court held insufficient to proving that the courts
were inaccessible to him. A kidnapped missing person, however,
faces much more serious obstacles to representing her interests
in U.S. courts in light of her inability to control her own
movement.
While Defendants again raise the argument that Jenkins has
not expressly proven that Isabella is presently being held
against her will, the evidence before the court establishes that
Isabella was a captive in Nicaragua at the time of her last
known whereabouts. In the absence of any other new evidence,
this Court cannot assume that Isabella’s kidnapping has ended
simply because she has reached the age of majority. As such, the
Court finds that Isabella lacks access to the American court
system for the purposes of next friend jurisdiction.
Additionally, Jenkins’ argument successfully meets the
requirements of Whitmore’s second prong, in large part due to
her significant relationship with Isabella. See Whitmore, 495
U.S. at 163. Jenkins is Isabella’s parent. She has had sole
legal custody of Isabella for many years, and has demonstrated
her commitment to her daughter through continuous attempts to
make contact and renew a relationship with her, as well her
pursuit of this litigation.

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Many courts have held in other cases that an individual may
not assert next friend standing where there is no evidence of
the real party’s intention or desire to bring a lawsuit. See AlAulaqi, 727 F. Supp. 2d at 20; Idris v. Obama, 667 F. Supp. 2d
25, 29 (D.D.C. 2009); Fenstermaker v. Bush, No. 05 Civ. 7468
(RMB), 2007 WL 1705068, *6 (S.D.N.Y. June 12, 2007). Moreover,
Defendants correctly observe that Jenkins has not had contact
with Isabella for over a decade, nor has she had any way of
confirming Isabella’s wishes or interests in pursuing her own
claims in this litigation. However, unlike in the cases cited to
by Defendants, Jenkins has not had the opportunity to
investigate Isabella’s wishes due to the very harm at the heart
of this case – her kidnapping. Indeed, as a kidnapped missing
person, Isabella has not been capable of articulating her
interests or wishes at all, regardless of their content.
In light of these specific and highly unusual
circumstances, it would defy reason for the Court to render a
lack of Isabella’s stated intent to bring a claim dispositive.
Looking to the totality of the factors articulated in Whitmore,
the Court finds that Jenkins’ significant relationship with
Isabella, along with her longstanding involvement in this
litigation, establish that she represents Isabella’s best
interests for the purposes of this litigation. As such, Jenkins
has next friend standing to bring claims on behalf of Isabella,

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and Defendants’ motion for partial summary judgment is denied.
The Court need not address Jenkins’ argument under Fed. R. Civ.
P. 17(c)(2).
II.

Defendants’ Motion for Sanctions

Finally, Defendants submit that the Court should sanction
Jenkins under Rule 11 for “pressing claims that she had no
standing to maintain.” This argument lacks merit, as Jenkins’
next friend claims were not frivolous and had some chance of
success. Defendants’ motion for sanctions is denied.
CONCLUSION
For the aforementioned reasons, Defendants’ motion for
partial summary judgment (ECF 495) on this issue is denied, and
Defendants’ motion for sanctions (ECF 512) is denied.
DATED at Burlington, in the District of Vermont, this 31st
day of August, 2020.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge

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