Opinion
No. 1:05-cv-3216-GET.
July 18, 2006
ORDER
The above-styled matter is presently before the court on:
(1) Henry County's motion to dismiss [docket no. 3]; and
(2) Jim Richer and Jimmy Mercer's motion to dismiss [docket no. 8];
Plaintiff filed the instant action on December 20, 2005, seeking damages for defendants' violation of the Electronic Communications Privacy Act of 1986, 18 U.S.C. § 2510 et. seq. ("ECPA"). Plaintiff alleges that, while she was employed as the administrative secretary to Chief of Police Jimmy Mercer, he intercepted and listened to private voice communications between plaintiff and Michael Tate, an Internal Affairs Investigator for the Police Department of Henry County. Mr. Mercer then allegedly interrogated plaintiff in two separate sessions regarding her contacts and her loyalty to him. Henry County filed a motion to dismiss on January 12, 2006. At that time, defendants Riskier and Mercer had not yet been served. Once they were served, they filed a motion to dismiss, which asserts the same arguments found in Henry County's motion to dismiss. Accordingly, the court will consider the motions together.
Standard
A motion to dismiss under Rule 12(b) (6) attacks the legal sufficiency of the complaint. It is viewed with disfavor and rarely granted. See e.g., Int'l Erectors Inc. v. Wilhoit Steel Erectors Rental Serv., 400 F.2d 465, 471 (5th Cir. 1968). A complaint should not be dismissed for failure to state a claim unless the plaintiff can prove no set of facts entitling him to relief. Hishon v. King Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229 (1989); Pataula Elec. Membership Corms. v. Whitworth, 951 F.2d 1238, 1240 (11th Cir. 1992). The court is to presume true all of the complaint's allegations and make all reasonable inferences in favor of the plaintiff. Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993). The rules require nothing more than "a short and plain statement" that will give the defendant fair notice of the claims and the grounds upon which they are based. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99 (1957).
Discussion
Plaintiff asserts a cause of action under the ECPA, and a related claim for attorney's fees. Defendants contend that plaintiff cannot state a claim because it is time-barred by the statute of limitations contained within the ECPA.The ECPA is primarily a criminal statute, but Section 2520 authorizes recovery for civil damages. 18 U.S.C. § 2520. However, "[a] civil action under this section may not be commenced later than two years after the date upon which the claimant first has a reasonable opportunity to discover the violation." 18 U.S.C. § 2520(e). Plaintiff alleges that she discovered the existence of the wiretaps on August 8, 2001, and that she discovered that defendants "accessed, acquired, used and disclosed her private wire communications on or about August 10, 2001." Plaintiff filed the instant action on December 20, 2005, more than two years after she discovered the violation.
Plaintiff had originally filed her claims in the Superior Court of Henry County within two years of discovering the statutory violation. She voluntarily dismissed the Henry County action and filed the instant action in this court, asserting similar claims. "[D]ismissal of an earlier suit without prejudice does not authorize a subsequent suit brought outside of the otherwise binding period of limitations." Stein v. Reynolds Sec., Inc., 667 F.2d 33, 33-34 (11th Cir. 1982). Plaintiff argues, however, that the Georgia Renewal Statute, O.C.G.A. § 9-2-61(a), which permits the re-filing of a dismissed action within six months without regard to limitation, should operate to enlarge the time for filing. Defendants do not dispute that plaintiff filed the instant action within the six month requirement of the renewal statute, or that the Henry County action was filed within the ECPA's two-year limitation period. Rather, defendants contend that the state law renewal statute does not apply to a federal action in federal court. "When, as here, the plaintiff voluntarily dismisses a lawsuit which was brought in federal court, asserts a purely federal claim, and is subject to a federal statute of limitations, state savings statutes do not apply." Beck v. Caterpillar Inc., 50 F.3d 405, 407 (7th Cir. 1995), citing Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582 (1946) ("If Congress explicitly puts a limit upon the time for enforcing a right which it created. [t]he Congressional statute of limitation is definitive.") See also Brown v. Hartshorne Public School Dist. No. 1, 926 F.2d 959, 961 (10th Cir. 1991) (Title VII action must be filed within a ninety day period provided by Congress, state renewal statute does not apply); Sampson v. ATT Corp., 11 F. Supp.2d 1380, 1381 (N.D. Ga. 1998) (Title VII action dismissed as time barred because state renewal statute did not apply).
Plaintiff attempts to distinguish the instant matter because it was originally filed in state court instead of federal court, and the federal court does not have exclusive jurisdiction over an ECPA claim. However, state savings statutes do not expand federal statutes of limitations merely because the cause of action could have been filed in either state or federal court. See Brown, 926 F.2d at 961 (dismissed as time-barred Title VII claims that could have been brought in state or federal court because state renewal statute did not apply); Sampson, 11 F.Supp.2d at 1381 (same). Further, plaintiff has cited no authority for her position that filing the action in state court does not change the applicable time limitation once the renewal action is filed in the federal court. See Sampson, 11 F.Supp.2d at 1381 (a Title VII action originally filed in federal court, re-filed in state court and removed to federal was dismissed as time-barred because the renewal statute did not apply). Because plaintiff's claim is based on a federal statute with a specific limitation, and the instant action was filed outside that limitation, plaintiff's action is time-barred. Accordingly, and for all the aforementioned reasons, defendants' motions to dismiss [dockets no. 3, 8] are hereby GRANTED.
Summary
(1) Henry County's motion to dismiss [docket no. 3] is hereby GRANTED;(2) Jim Riskier and Jimmy Mercer's motion to dismiss [docket no. 8] is hereby GRANTED.
SO ORDERED.