Buckingham, v. Gailor

Full title: ELIZABETH BUCKINGHAM, et al., v. CAROLE S. GAILOR, et al

Court: United States District Court, D. Maryland

Date published: Mar 27, 2001

CIVIL NO. CCB-00-1568 (D. Md. Mar. 27, 2001)

Opinion

CIVIL NO. CCB-00-1568

March 27, 2001

MEMORANDUM

CATHERINE BLAKE, District Judge

Plaintiffs David T. Buckingham, Elizabeth S. Buckingham, Carolyn M. Buckingham, Brianna L. Buckingham, William D. Buckingham, and Mary C. Buckingham (hereinafter referred to as "the Buckingham Plaintiffs") allege that Defendants Cynthia Bailey Buckingham as well as Carole S. Gailor, Kimberly A. Wallis, and Gailor Associates, P.L.L.C., (hereinafter referred to as the "Gailor Defendants") violated Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., by intercepting a series of conversations that occurred between the parties. There are two central motions pending in this case: (1) a motion to dismiss filed by Cynthia Bailey Buckingham for lack of personal jurisdiction, failure to state a claim upon which relief can be granted, and lack of federal subject matter jurisdiction; and (2) a motion to dismiss filed by the Gailor Defendants for lack of personal jurisdiction, failure to state a claim upon which relief can be granted, and lack of federal subject matter jurisdiction. All been considered and no hearing is deemed necessary. See Local Rule 105.6. For the reasons that follow, the Court will grant the defendants' motions.¹

1 There are three subsidiary motions that have been filed as well: a motion for security for costs filed by the Gailor Defendants; a motion for continuance and discovery filed by the Buckingham Plaintiffs; and a motion for leave to file Exhibit B to the Defendant's Reply filed by Cynthia Bailey Buckingham. The Court will grant Cynthia Bailey Buckingham's motion for leave to file Exhibit B to the Defendant's Reply; and deny the other two motions.

STANDARD OF REVIEW

Cynthia Bailey Buckingham and the Gailor Defendants have filed motions to dismiss under Rule 12 of the Federal Rules of Civil Procedure, seeking in the alternative summary judgment under Rule 56. The purpose of Rule 12(b)(6) is "`to provide a defendant with a method of testing the legal sufficiency,'" not the factual accuracy, of the plaintiff's complaint.Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir. 1991) (quoting District 28, United Mine Workers of America, Inc. v. Wellmore Coal Corp., 609 F.2d 1083, 1085-86 (4th Cir. 1979)), cert. denied, 503 U.S. 936 (1992). When ruling on a 12(b)(6) motion, the court must view the complaint in the light most favorable to the plaintiff and accept the plaintiff's factual allegations, as well as all reasonable inferences therefrom, as true. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993), cert. denied, 510 U.S. 1197 (1994); Schatz, 943 F.2d at 489;Westray v. Porthole, Inc., 586 F. Supp. 834, 836 (D. Md. 1984). Because all well-pleaded factual allegations in the nonmoving party's pleadings are presumed true, and all contravening assertions are presumed false, a motion to dismiss under Rule 12(b)(6) may be granted only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324-5 (4th Cir. 1989).

In addition, because the court is testing the legal sufficiency of the claims, the court is not bound by the plaintiff's legal conclusions.Randall v. United States, 30 F.3d 518, 522 (4th Cir. 1994); Schatz, 943 F.2d at 489. Similarly, conclusory allegations regarding the legal effect of facts alleged are not binding. Labram v. Havel, 43 F.3d 918, 921 (4th Cir. 1995) (affirming Rule 12(b)(6) dismissal with prejudice because the plaintiff had not alleged sufficient facts to support her conclusion that the defendant owed her a fiduciary duty at common law).

Matters outside of the pleadings have been presented by the defendants, who requested that their motions to dismiss be treated as motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Rule 56(c) of the Federal Rules of Civil Procedure provides that:

[Summary judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). In making this determination, the evidence of the party opposing summary judgment is to be believed and all justifiable inferences drawn in his favor. Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196 (4th Cir. 1997) (citing Anderson, 477 U.S. at 255). The non-moving party may not rest upon mere allegations or denials in his pleading, however, but must set forth specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 248; Allstate Fin. Corp. v. Financorp, Inc., 934 F.2d 55, 58 (4th Cir. 1991). The "mere existence of a scintilla of evidence in support of the plaintiff's position" is not enough to defeat a defendant's summary judgment motion.Anderson, 477 U.S. at 252.

The Buckingham Plaintiffs have submitted a motion, along with an attached Rule 56(f) affidavit, requesting a continuance and additional discovery. See Evans v. Technologies Application Serv., Co., 80 F.3d 954, 961 (4th Cir. 1991). Particularly in light of the opportunity for discovery already made available through the on-going litigation in North Carolina, however, they have not made a sufficient showing of any additional discovery that could reasonably affect the outcome of the defendants' motions. Accordingly, their motion will be denied, and the defendants' motions will be considered as motions for summary judgment.²

2 The defendants also have challenged this court's personal jurisdiction over them. In light of its ruling on the claims raising a federal question, the court will assume without deciding that it has personal jurisdiction.

BACKGROUND

Plaintiff David Buckingham and Defendant Cynthia Bailey Buckingham were married on January 30, 1993; separated on November 5, 1996; and divorced on January 16, 1998. (Comp. at ¶ 14; Buck. Mem. Supp. Mot. Dis. at 2.) Cynthia Bailey Buckingham retained the services of attorney Carole Gailor (and later in 1996, the services of attorney Kimberly Wallis) of Gailor Associates, P.L.L.C. in July 1994. (Gailor Mot. Dis., Ex. 1, Aff. of Carole Gailor at ¶ 5, Ex. 2, Aff. of Kimberly Wallis at ¶¶ 3, 5.) At the time of the separation in 1996, David Buckingham moved for custody of the parties' child, Anne, who was born in 1995. (Comp. at ¶¶ 14, 16.) David Buckingham and Cynthia Bailey Buckingham are residents of North Carolina. (Comp. at ¶¶ 9, 13.)

In October 1997, the parties signed a Memorandum of Consent Judgment, which granted Cynthia Bailey Buckingham primary custody of Anne; David Buckingham retained secondary custody and visitation rights. On January 20, 1998, a state district court approved the entry of a permanent custody order for Cynthia Bailey Buckingham based on the parties' prior agreement. David Buckingham appealed this order. The North Carolina Court of Appeals refused to overturn the permanent custody order in July 1999 and the North Carolina Supreme Court declined to review this decision in October 1999. (Buck. Mem. Supp. Mot. Dis. at 2-3.) David Buckingham has continued to seek custody of his daughter; a separate action seeking to modify the current custody arrangement is currently before a state district court in North Carolina. (Comp. at ¶ 17.) The continuing custody dispute over Anne has generated acrimonious litigation. (Gailor Mot. Dis., Ex. 1, Aff. of Carole Gailor at ¶ 5.)

As a result of this custody dispute, Cynthia Bailey Buckingham began to record her conversations with David Buckingham in 1996. Cynthia Bailey Buckingham states that her purpose "in recording telephone conversations and face-to-face communications with David Buckingham was to maintain an accurate record of what was said." (Buck. Mot. Dis., Ex. A, Aff. of Cynthia Bailey Buckingham at ¶ 4.) Ms. Buckingham recorded these conversations upon the advice of her counsel. ( Id.) Ms. Buckingham used a "simple, inexpensive, hand-held tape recorder" to record these exchanges between herself and Mr. Buckingham. (Id. at ¶ 9.) The tape recorder was not hooked into the telephone, but rather, placed beside the telephone or held by hand close to the receiver. (Buck. Mot. Dis., Ex. B, Dep. of Cynthia Bailey Buckingham at 273-274.) Ms. Buckingham placed the recordings in envelopes, id. at 194, which were turned over to her counsel. (Buck. Mot. Dis., Ex. A, Aff. of Cynthia Bailey Buckingham at ¶ 7.)

Ms. Buckingham recorded at least nine different conversations between 1996 and 2000. The majority of these conversations took place between July and September of 1998. On July 7, 1998, Cynthia Bailey Buckingham spoke to Plaintiff Elizabeth Buckingham. Elizabeth Buckingham is David Buckingham's mother and a resident of Maryland. (Comp. at ¶ 4.) Cynthia Bailey Buckingham called to check on Anne Buckingham who was visiting her grandmother in Bethesda, Maryland. (Buck. Rep. Br., Ex. B, Tr. of 7/7/98 at 28.) The conversation was brief because Anne was attending swimming lessons. ( Id. at 29.) Cynthia Bailey Buckingham called back two days later on July 9, 1998. Again, Cynthia and Elizabeth Buckingham exchanged pleasantries before Anne picked up the phone. (Buck. Rep. Br., Ex. B, Tr. of 7/9/98 at 30.) Cynthia and Elizabeth spoke again briefly at the end of the conversation. ( Id. at 55.)

A third conversation occurred on an unknown date in July 1998. In this conversation, Cynthia Bailey Buckingham spoke at length with Anne Buckingham, who was visiting her relatives in Maryland. (Buck. Rep. Br., Ex. B, Tr. of 7/-/98 at 56-58, 59-61.) William Buckingham, the six year-old nephew of David Buckingham and a resident of Maryland, spoke briefly with Cynthia Bailey Buckingham. ( Id. at 58.)

In August 1998, Cynthia Bailey Buckingham recorded three other conversations. Two of these conversations were with David Buckingham. Each of these conversations took place in North Carolina. (See Buck. Rep. Br., Ex. B, Tr. of 8/17/98 at 66; Tr. of 8/-/98 at 76.) During the first conversation, the parties argued over the treatment of an ill Anne Buckingham. ( Id., Tr. of 8/17/98, at 67, 68-75.) During the second conversation, David Buckingham and Cynthia Bailey Buckingham argued over the propriety of each other's behavior. (Buck. Rep. Br., Ex. B, Tr. of 8/-/98 at 76.)³ During the last conversation, Elizabeth Buckingham spoke briefly with Cynthia Bailey Buckingham before handing the phone to Anne Buckingham. ( Id., Tr. of 8/-/98 at 78.)

3 It is unclear which of these August 1998 conversations is at issue in Counts 26-35 of the complaint.

In September 1998, Cynthia Bailey Buckingham taped a conversation involving Plaintiffs David, Carolyn, William, Brianna and Mary Buckingham. Carolyn Buckingham is David Buckingham's sister-in-law; William, Mary, and Brianna are his minor nephew and nieces. All are residents of Maryland. (Comp. at ¶ 5.) On September 1, 1998, Cynthia Bailey Buckingham returned a call made by David Buckingham. At the time of this call, Cynthia, David and Anne Buckingham were in North Carolina; the other Buckinghams spoke with Anne from Maryland via conference call initiated by David Buckingham. (Buck. Rep. Br., Ex. B, Tr. of 9/1/98 at 7.) After a conversation with Cynthia Bailey Buckingham, David Buckingham spoke with Anne Buckingham. ( Id. at 1-9.) Anne Buckingham then spoke to her cousins Brianna and William (with a number of interjections from David Buckingham) ( Id. at 9-21.) Anne Buckingham's cousin Mary cried over the phone. ( Id. at 22.) Carolyn Buckingham spoke briefly to David and Anne Buckingham. ( Id. at 8-9.)

There are two taped conversations which did not take place within the same time period as the other recorded conversations. On July 12, 1999, Cynthia Bailey Buckingham called Anne Buckingham, who was once again visiting her relatives in Maryland. During the conversation with her daughter, Cynthia Bailey Buckingham spoke with her husband's niece, Mary Buckingham. (Buck. Rep. Br., Ex. B, Tr. of 7/12/99 at 64-65.) The second conversation occurred on February 24, 2000 in North Carolina between Cynthia, David and Anne Buckingham. This face to face conversation occurred during a tense custody exchange. (Buck. Rep. Br., Ex. B, Tr. of 2/24/00 at 82-90.)

ANALYSIS

Based on the above-described conversations, the Buckingham Plaintiffs allege that: (1) Cynthia Bailey Buckingham unlawfully intercepted, disclosed, used or endeavored to use the contents of conversations recorded between herself and the Buckingham Plaintiffs; (2) the Gailor Defendants procured, disclosed, used or endeavored to use the contents of conversations recorded by Cynthia Bailey Buckingham; and (3) Cynthia Bailey Buckingham unlawfully used and the Gailor Defendants unlawfully procured the use of an interception device in violation of the federal wiretapping statute.⁴ See 18 U.S.C. § 2511 (a)-(e). The Buckingham Plaintiffs also allege that Cynthia Buckingham Bailey violated several state laws.⁵

1. Federal Wiretapping Claims

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 "provides a civil remedy against any person who `intentionally intercepts' another person's wire, oral, or electronic communications." Abraham v. County of Greenville, 237 F.3d 386, 389 (4th Cir. 2001) (citing 18 U.S.C. § 2520 (a) and 18 U.S.C. § 2511 (1)(a)). In Counts 1⁶, 6, 11, 16, 21, 26, 31, and 36 of the complaint, the Buckingham Plaintiffs allege that Cynthia Bailey Buckingham violated 18 U.S.C. § 2511 (1)(a) by intentionally recording wire and oral communications between herself and the plaintiffs.⁷ The defendants contend that the plaintiffs fail to state a claim because Cynthia Bailey Buckingham's behavior was permitted by the statutory exception outlined in 18 U.S.C. § 2511 (2)(d), which allows interception by one party to a conversation. The Buckingham Plaintiffs insist, however, that Cynthia Bailey Buckingham cannot seek the shelter of the consent exception because the interceptions were allegedly done for the purpose of committing a criminal or tortious act. See 18 U.S.C. § 2511 (2)(d).

6 David Buckingham denies that Cynthia Bailey Buckingham was a party to this conversation. (See Pls' Opp. at Ex. 2, Aff. of David Buckingham at ¶ 5.) A review of the transcript, however, reveals that Cynthia Bailey Buckingham initiated the conversation in North Carolina and, furthermore, participated in a lengthy exchange with David Buckingham over visitation rights. (See Buck. Rep. Br., Ex. B, Tr. of 9/1/98 at 1-4.) Therefore, the court will analyze this conversation in light of the exception outlined in 18 U.S.C. § 2511 (d)(2).

7 In Count 36, the Buckingham Plaintiffs allege that Cynthia Bailey Buckingham intercepted an oral communication, by intentionally recording a face to face conversation among her, Anne, and David Buckingham. Section 2510(2) provides that oral communications will be protected only if they are "uttered by a person exhibiting an expectation that such communication is not subject to interception under such circumstances justifying such expectation." 18 U.S.C. § 2510 (2). The Buckingham Plaintiffs argue that Cynthia Bailey Buckingham unlawfully intercepted the conversation in February 2000 because David Buckingham had a reasonable expectation of privacy during the custody exchange. (Pls. Opp. at 33-35.) Even if David Buckingham's expectations were reasonable under the circumstances, however, Title III was not violated if Cynthia Bailey Buckingham's purpose in intercepting the conversation was not tortious or criminal under 18 U.S.C. § 2511 (2)(d). See Clifford S. Fishman Anne T. McKenna, Wiretapping and Eavesdropping § 6.37 at 6-81 (2nd Ed. 1995.)

As an initial matter, the Buckingham Plaintiffs argue that Cynthia Bailey Buckingham acted with the tortious purpose of violating Maryland's Wiretapping and Electronic Surveillance Act, Md. Cts. Jud. Proc. § 10-402 et seq. The Maryland wiretapping statute is more restrictive than the federal version, prohibiting the interception of a conversation unless all of the parties to the conversation have given prior consent.See Md. Cts. Jud. Proc. § 10-402(c)(3); Mustafa v. State, 591 A.2d 481, 485 (Md. 1991) (consent requirement in Section 10-402(c)(3) is aimed at providing greater protection for privacy interests than federal law.

A number of courts have found, however, that the violation of a restrictive state wiretapping statute will not demonstrate that the interception of a communication was motivated by a tortious purpose since section 2511 does not punish the taping of the conversation itself but rather the improper use of the recording by the party who intercepted the communications. See By-Prod Corp. v. Armen-Berry Co., 668 F.2d 956, 960 (7th Cir. 1982) ("it is the use of the interception with intent to harm rather than the fact of interception that is critical to liability"); Sussman v. American Broadcasting Companies, Inc., 186 F.3d 1200, 1202-3 (9th Cir. 1999).

For example, in Payne v. Norwest Corp., 911 F. Supp. 1299, 1304 (D. Mont. 1995), affirmed in part, reversed on other grounds, 113 F.3d 1079 (9th Cir. 1997), the court found that a party's violation of a restrictive state wiretapping statute did not by itself demonstrate that the individual had acted with a tortious purpose because the focus of 18 U.S.C. § 2511 is:

"not upon whether the interception itself violated another law; it is upon whether the purpose for the interception — its intended use — was criminal or tortious. To hold otherwise would result in the imposition of liability under the federal statute for something that is not prohibited by the federal statute (i.e. recording a conversation with the consent of only one party) simply because the same act is prohibited by a state statute."

See also Roberts v. Americable Int'l, Inc., 883 F. Supp. 499, 503 (E.D. Cal. 1995). Similarly, where the alleged unlawful use is invasion of privacy, courts have required plaintiffs to prove that a defendant had a tortious purpose to invade another's privacy, independent of an intent to simply record the conversation. See Sussman, 186 F.3d at 1203; United States v. Phillips, 540 F.2d 319, 327, fn. 5 (8th Cir. 1976).

Because the act of recording itself is not enough to demonstrate that an individual intended to violate the federal wiretapping statute or commit invasion of privacy under state law, in order to have stated a claim, the Buckingham Plaintiffs must have sufficiently alleged that Cynthia Bailey Buckingham acted with a tortious purpose independent of the act of recording itself. No specific criminal or tortious purpose is alleged in the complaint.⁸ The only tortious purpose the Buckingham Plaintiffs appear to suggest is that Cynthia Bailey Buckingham selectively recorded these conversations in an attempt to portray David Buckingham in a false light in their ongoing custody dispute in North Carolina. (See Pl. Opp. Mot. Dis., Ex. 2, Decl. of David Buckingham at ¶ 7; Buck. Def. Mot. to Dis., Ex. B, Dep. of Cynthia Bailey Buckingham at 273.) The courts in North Carolina, however, have not expanded the tort of invasion of privacy to include the tort of "false light". See Renwick v. The News and Observer Publishing Co., 312 S.E.2d 405, 410 (N.C. 1984). Moreover, Cynthia Bailey Buckingham asserts that she taped the conversations only to have an accurate record of what was said in the event it was relevant to the ongoing custody dispute. This is a lawful purpose. See By-Prod., 668 F.2d at 959; Consumer Electronic Products, Inc. v. Sanyo Electric, Inc., 568 F. Supp. 1194, 1197-8 (D. Col. 1983.) Accordingly, summary judgment will be granted on the Buckingham Plaintiffs' claims of unlawful interception.⁹

8 On December 19, 2000, after an evidentiary hearing held in connection with a motion to disqualify counsel, the North Carolina state court found no tortious purpose or violation of state law by any of the defendants. (Defs. Jt. Supp. Mem., Ex. 1, Order of 12/19/00.)

9 Considering the plaintiffs' failure adequately to allege a criminal or tortious purpose, the result would be the same under a Rule 12 standard.

The Buckingham Plaintiffs also raise three other claims. They first assert that both Cynthia Bailey Buckingham and the Gailor Defendants unlawfully used or disclosed the interceptions within the course of the custody dispute in violation of 18 U.S.C. § 2511 (1)(c)-(d). The use and disclosure of interceptions, however, will not be considered unlawful, if, as in this instance, the interceptions themselves are lawful. See In re High Fructose Corn Syrup Antitrust Litigation, 216 F.3d 621, 625 (7th Cir. 2000); Zerilli v. Evening News Ass'n, 628 F.2d 217, 221 (D.C. Cir. 1980); Meredith v. Gavin, 446 F.2d 794, 799 (8th Cir. 1971). Therefore, these claims will be dismissed as well.

The Buckingham Plaintiffs next assert that the Gailor Defendants "procured" Cynthia Bailey Buckingham's allegedly unlawful actions. Although the Fourth Circuit earlier recognized the existence of a civil action for procurement, see Flowers v. Tandy Corp., 773 F.2d 585, 590 (4th Cir. 1985), such an action is no longer available under 18 U.S.C. § 2520, as a result of amendments passed by Congress in 1986. See Peavy v. WFAA-TV, Inc., 221 F.3d 158, 168-70 (5th Cir. 2000). In any event, there can be no violation where the interceptions "procured" were lawful. Accordingly, the claims of unlawful procurement will be dismissed.

Finally, the Buckingham Plaintiffs assert that Cynthia Bailey Buckingham intentionally used a hand-held tape recorder to intercept an oral communication between the parties on February 24, 2000, and that the Gailor Defendants procured that use. The plaintiff's failure to allege or prove any criminal or tortious purpose on the part of Cynthia Bailey Buckingham requires that these claims be dismissed.

2. State Claims

Because all of the federal question claims have been dismissed, the Court will decline to exercise supplemental jurisdiction over the state claims. See 28 U.S.C. § 1367 (c)(3). These claims will be dismissed.

A separate Order follows.

ORDER

For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:

1. Defendant Cynthia Bailey Buckingham's motion for leave to file Exhibit B to defendant's reply is GRANTED;

2. The Buckingham Plaintiffs' motion for continuance and discovery is DENIED;

3. Defendant Cynthia Bailey Buckingham's motion to dismiss or for summary judgment is GRANTED;

4. The Gailor Defendants' motion to dismiss or for summary judgment is GRANTED;

5. Judgment is entered in favor of the defendants on all federal claims; the state law claims are dismissed without prejudice;

6. The Gailor Defendants' motion for security for costs is DENIED as moot;

7. The Clerk shall CLOSE this case; and

8. Copies of this Order and the accompanying Memorandum shall be mailed to counsel of record.