United States District Court, W.D. Virginia, Lynchburg Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court upon (1) Defendant Liberty
University, Inc.'s motion to dismiss, (dkt. 27); (2)
Defendants Liberty Counsel, Inc., Mathew Staver, and Rena
Lindevaldsen's (“Liberty Counsel Defendants”)
motion to dismiss, (dkt. 38); (3) Defendant Timothy
Miller's motion to dismiss, (dkt. 40); (4) Defendant
Linda Wall's motion to dismiss, (dkt. 63); and (5)
Plaintiff Janet Jenkins's (appearing on her own behalf
and as the next friend of her daughter, Isabella
Miller-Jenkins) motion to stay, (dkt. 52).
Court finds that Plaintiff has engaged in claim splitting by
filing this suit while another essentially identical action
remains pending in the District of Vermont. Accordingly, the
Court will grant Defendants' motions to dismiss, deny
Plaintiff's motion to stay, and strike this case from the
Court's active docket.
Facts as Alleged & Procedural History
Janet Jenkins and Defendant Lisa Ann Miller entered into a
civil union in Vermont in or before 2002, at which point
their daughter, Isabella Miller-Jenkins, was born. (Dkt. 1
¶ 20 (“Complaint”)). In 2003, when Isabella
was 17 months old, Miller moved to Virginia, renounced
homosexuality, and began to deny court-ordered parent-child
contact between Isabella and Jenkins. (Id. ¶
21). Miller was found in contempt of Vermont court orders
(which Virginia courts registered and enforced) beginning in
2004. (Id.). On November 20, 2009, a Vermont family
court ordered Isabella's transfer to Jenkins on January
1, 2010. (Id. ¶ 22). Jenkins alleges that
Miller, with Defendants' aid, had already fled with
Isabella to Nicaragua on or about September 21, 2009 in
anticipation of this order. (Id. at 2). Isabella has
been listed as missing by the National Center for Missing and
Exploited Children since January 2010. (Id.).
Jenkins (in her personal capacity and as next friend of
Isabella) alleges that Defendants participated in a
conspiracy to kidnap Isabella to interfere with Vermont court
orders granting Jenkins custody over Isabella and to violate
Jenkins's and Isabella's civil rights, in part
because of Defendants' alleged animus toward
Jenkins's sexual orientation.
August 14, 2012, Jenkins filed suit against Defendants in the
District of Vermont. (Id. ¶ 70). The complaint
in that action, (see dkt. 28-1), includes two
claims. In Count One, Plaintiff alleges the
intentional tort of kidnapping under Vermont law. In Count
Two, Plaintiff alleges a conspiracy to violate her and
Isabella's civil rights under 42 U.S.C. § 1985(3).
After a stay of the case pending the criminal trial of
Defendant Philip Zodhiates, the District of Vermont granted
Defendant Staver's motion to dismiss for lack of personal
jurisdiction and granted Liberty University's motion to
dismiss under Fed.R.Civ.P. 12(b)(6). (Complaint ¶¶
72, 74). Neither order has been certified as final under
Fed.R.Civ.P. 54(b), and both remain subject to revision by
the District of Vermont or appeal. Defendant Timothy Miller
has a motion to dismiss for lack of personal jurisdiction
currently pending before the District of Vermont. The
District of Vermont has denied all other defendants'
motions to dismiss. (Id. ¶ 74). Discovery
remains underway in the Vermont action.
filed an essentially identical action in this Court on
September 21, 2018. The complaint includes three counts. In
Count One, Plaintiff alleges tortious interference with
parental rights against all defendants “under Vermont
and Virginia law.” (Id. ¶ 75). In Count
Two, Plaintiff alleges the intentional tort of abduction by
kidnapping under both Vermont and Virginia law against all
defendants. (Id. ¶ 78). In Count Three,
Plaintiff alleges a conspiracy to violate civil rights under
42 U.S.C. § 1985(3), asserting that Defendants conspired
to violate the civil rights of Jenkins and Isabella
“based on class-based, invidiously discriminatory
animus against same-sex couples” and against
“Jenkins due to her sexual orientation.”
(Id. ¶ 82).
defendants have not yet responded to the complaint. On
January 3, 2019, the Court extended the period of service of
Defendant Lisa Ann Miller, who apparently remains at large in
Nicaragua, until a reasonable time after her return to the
United States or until such time as her whereabouts are
otherwise known so as to allow service under Fed.R.Civ.P.
4(f). (Dkt. 31). In that same order, the Court extended the
time for Defendants Philip Zodhiates, Response Unlimited,
Inc., and Victoria Hyden to respond to the complaint to June
14, 2019. (Id.).
move to dismiss on multiple grounds, including an argument
that Jenkins has engaged in claim splitting by filing an
action in this Court while an essentially identical action
remains pending in the District of Vermont.
is undisputed that it is within a district court's power
to stay or dismiss a suit that is duplicative of another
federal court suit.” Chihota v. Fulton, Friedman
& Gullace, LLP, No. WDQ-12-0975, 2012 WL 6086860, at
*2 (D. Md. Dec. 5, 2012) (quoting Sensormatic Sec. Corp.
v. Sensormatic Elecs. Corp., 452 F.Supp.2d 621, 626 (D.
Md. 2006), aff'd in relevant part, 273 Fed.Appx.
256, 264-66 (4th Cir. 2008)). See also Great Am. Ins. Co.
v. Gross, 468 F.3d 199, 207, n.6 (4th Cir. 2006) (noting
same); Couch v. Jabe, No. 7:09-cv-00434, 2010 WL
1416730, at *1 (W.D. Va. Apr. 8, 2010) (noting same and
quoting Curtis v. Citibank, N.A., 226 F.3d 133, 138
(2d Cir. 2000)). “As between two federal district
courts, the general rule is that duplicative litigation
should be avoided.” Great Am. Ins. Co., 468
F.3d at 206 (citing Colorado River Water Conservation
Dist. v. United States, 424 U.S. 800, 817 (1976) (noting
principles behind the claim-splitting doctrine, like those
behind res judicata, are to foster judicial economy,
to protect parties from vexatious and expensive litigation,
and to prevent piecemeal litigation.” Superior
Performers, Inc. v. Family First Life, LLC, No.
1:14-cv-382, 2015 WL 471389, at *4 (M.D. N.C. Feb. 4, 2015).
The doctrine also aims to avoid a situation where
“identical issues” are “determined in
separate actions, ” creating “both confusion and
inefficiency.” McNeely v. Soyoola, No.
2:12-cv-8727, 2013 WL 3457731, at *4 (S.D. W.Va. July 9,
a claim splitting case, the second suit will be barred if the
claim involves the same parties and ‘arises out of the
same transaction or series of transactions as the first
claim.'” Sensormatic Sec. Corp., 273
Fed.Appx. at 265 (quoting Trustmark Insur. Co. v. ESLU,
Inc., 299 F.3d 1265, 1269-70 (11th Cir. 2002)). See
also Bloch v. Executive Office of the President, 164
F.Supp.3d 841, 854-55 (E.D. Va. 2016) (noting same);
Superior Performers, Inc., 2015 WL 471389, at *3
(noting same). Dismissal on claim-splitting grounds does not
require a final judgment in the parallel action, as the
doctrine of claim splitting “bars two suits that are
pending at the same time.” Id. at *4
court faced with a duplicative suit will commonly stay the
second suit, dismiss it without prejudice, enjoin the parties
from proceeding with it, ” or, if possible,
“consolidate the two actions.” Couch,
2010 WL 1416730, at *1 (quoting Ridge Gold Std. Liquors,
Inc. v. Joseph E. Seagram & Son, 572 F.Supp. 1210,
1213 (N.D. Ill. Oct. 17, 1983)). “Dismissal of a
duplicative lawsuit ‘foster[s] judicial economy'
and the ...