Opinion
03-CV-6203(JMR/FLN).
June 14, 2004
ORDER
This matter is before the Court on defendant's motion to dismiss. Plaintiff seeks partial summary judgment and sanctions. For the reasons set forth herein, defendant's motion is denied, and plaintiff's motions are granted.
I. Background
The relevant allegations of the complaint are undisputed. Plaintiff and defendant were married in 1993. In May, 2003, plaintiff filed for divorce. In June, 2003, while still living in the marital home, defendant surreptitiously recorded telephone conversations between his wife and another person for at least three days. Defendant admits he recorded his wife's conversations with neither her knowledge nor that of the person with whom she spoke. After recording the phone calls, defendant gave several transcripts of conversations to his attorney, who produced them in the state court divorce proceedings. (Complaint ¶¶ 6-11; Affidavit of Leonard Milke, March 30, 2004, ¶¶ 7-13; Reply Affidavit of Leonard Milke, August 11, 2003, ¶ 5.) The transcripts were rejected by the presiding judge.
Plaintiff asserts she was a party to a total of forty-five taped conversations. The defendant provided thirty-four transcripts to his attorney. Eleven additional transcripts were recovered from the recording device. (Affidavit of Margaret Milke ¶¶ 10, 14.)
On November 20, 2003, plaintiff brought this action against defendant under 18 U.S.C. § 2511(1)(a)-(d) (also known as Title III); Minnesota Statute § 626A.02, subd. 1(a)-(d) (also known as the Minnesota Protection of Communications Act or MPCA); and common law invasion of privacy for intrusion upon seclusion. Defendant moved to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P."). Plaintiff responded by moving for summary judgment and sanctions under Fed.R.Civ.P. 56 and 11. The Court considers each motion in turn.
I. Discussion
A. Defendant's Motion to Dismiss
A Rule 12(b)(6) motion to dismiss should be denied unless there is no set of facts which would entitle plaintiff to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Defendant's motion addresses only the Title III claims. The Eighth Circuit Court of Appeals has explicitly recognized a cause of action under Title III by one spouse against the other for recording telephone conversations in the marital home. Kempf v. Kempf, 868 F.2d 970, 973 (8th Cir. 1989) (reversing summary judgment). This is true, even when the party making the recording is taping his or her own phone. Platt v. Platt, 951 F.2d 159, 161 (8th Cir. 1989) (reversing dismissal of complaint).
Taking as true the allegations of the complaint, the Court finds plaintiff has pleaded facts sufficient to survive a motion to dismiss. Defendant's motion is therefore denied.
B. Plaintiff's Motion for Summary Judgment
Plaintiff next moves for partial summary judgment based on the sworn facts in defendant's affidavit. Summary judgment is appropriate when the evidence, viewed in the light most favorable to the non-moving party, presents no genuine issue of material fact. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 246 (1986). The party opposing summary judgment may not rest upon the allegations set forth in its pleadings, but must produce significant probative evidence demonstrating a genuine issue for trial. See Anderson, 477 U.S. at 248-49; see also Hartnagel v. Norman, 953 F.2d 394, 395-96 (8th Cir. 1992).
1. Title III and the MPCA
Title III and the MPCA are nearly identical. Wagner v. Wagner, 64 F. Supp.2d 895, 899 (D. Minn. 1999), citing Copeland v. Hubbard Broad., Inc., 526 N.W.2d 402, 406 (Minn.Ct.App. 1995). Both statutes provide a civil remedy for those whose communications are intercepted. Compare 18 U.S.C. § 2520 and Minn. Stat. 626A.02, subd. 5. To prevail, plaintiff must show that defendant intercepted, used, or disclosed her telephone conversations without her consent. Defendant admits this occurred. No more is needed to establish a prima facie case of liability under Title III and the MPCA. Defendant, however, asserts affirmative defenses, which the Court considers in turn.
The federal statute provides that, subject to certain exceptions not applicable here, "any person who (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; (b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when (i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; . . . (c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of the subsection; (d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; . . . shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5)." 18 U.S.C. § 2511 (2004).
First, defendant claims he should not be held liable because he believed in good faith that this recording was lawful. Generally, "innocence cannot be asserted of an action which violates existing law, and ignorance of the law will not excuse."Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 68 (1910). Title III permits a limited good faith reliance defense, but not for private actors such as defendant. See 18 U.S.C. § 2520(d);Rice v. Rice, 951 F.2d 942, 945-46 (8th Cir. 1991). Here, defendant represents that he spoke to a lawyer prior to making the recordings, but has expressly avoided claiming he relied on any legal advice. The Court rejects this purported "good faith" defense as unsupported by either the law or the facts of this case.
Next, defendant asserts plaintiff knew of, and impliedly consented to, the recording, thereby making it lawful. See 18 U.S.C. § 2511(2)(d); Minn. Stat. § 626A.02, subd. 2 (prior consent exception). He supports this by offering intercepted comments between the parties while in conversation, who purportedly "greeted" him. "When someone voluntarily participates in a telephone conversation knowing that the call is being intercepted, this conduct supports a finding of implied consent to the interception." United States v. Corona-Chavez, 328 F.3d 974, 978 (8th Cir. 2003). However, "[c]onsent under Title III is not to be cavalierly implied. . . . Knowledge of the capability of monitoring alone cannot be considered implied consent." Deal v. Spears, 980 F.2d 1153, 1157 (8th Cir. 1992) (citations and emphasis omitted). In Deal, an employer taped an employee's personal conversations on a business telephone. The district court refused to imply that the employee had consented to the recording, even though she knew of the employer's private extension phone and had been warned that the employer might start monitoring calls. The Eighth Circuit affirmed. Id.
Here, defendant asks the Court to infer plaintiff's consent from isolated remarks in the transcript of June 6, 2003: "maybe he is listening to phone conversations," and shortly thereafter, "Hi Leonard!" followed by "Yeah right!" and laughter. (Margaret Milke Aff., Ex. B at 6.) The Court finds these comments to be wholly insufficient to create an issue of material fact as to whether the plaintiff acquiesced in defendant's actions. Plaintiff maintains she learned of the taping only after all of the calls at issue were recorded, and when she found defendant's notes and later his tape recorder. (Margaret Milke Aff., ¶¶ 4, 7.)
Defendant never told plaintiff he was recording her calls, and presents no evidence suggesting she otherwise had reason to know.Contrast United States v. Horr, 963 F.2d 1124, 1126 (8th Cir. 1992) (inmate, who voluntarily used prison telephone with actual knowledge that calls were being monitored and taped, impliedly consented to interception); Corona-Chavez, 328 F.3d 974, 979 (caller, who agreed to participate in controlled drug purchase, used mechanical device to record calls, and listened to tape of calls afterward, impliedly consented to interception);Griggs-Ryan v. Smith, 904 F.2d 112, 118 (1st Cir. 1990) (call recipient, previously warned that all incoming calls were being recorded, impliedly consented to interception); Stewart v. Stewart, 645 So.2d 1319, 1322 (Miss. 1994) (plaintiff testified she knew of defendant's taping and intended him to hear and record the conversation).
Finally, the Court considers that the personal nature of many of the intercepted calls — including the one in which the remarks above were made — strongly supports plaintiff's assertion that she believed her calls were private. See Deal v. Spears, 780 F. Supp. 618, 622 (W.D. Ark. 1991), aff'd, 980 F.2d 1153 (8th Cir. 1992). No reasonable jury could find that plaintiff consented to defendant's actions.
Defendant suggests he was justified in his actions out of concern for the welfare of his children. To support this position, he offers Wagner v. Wagner, 64 F. Supp.2d 895, 901 (D. Minn. 1999) (Frank, J.). In Wagner, Judge Frank held that a custodial parent of minor children might vicariously consent on the children's behalf to recording the children's telephone conversations with the other parent, provided he had "a good faith, objectively reasonable belief that the interception of telephone conversations is necessary for the best interest of the children." Id. So finding, Judge Frank denied summary judgment to plaintiff, finding a question of fact as to defendant's motivation in recording the children's telephone conversations.
This case is emphatically not the Wagner case. These were no conversations between a minor child and a parent. The Court does not gainsay his colleague's thought that a parent might vicariously consent to recording on behalf of the parent's own child. But no such conversation took place here. These were conversations between two adults, fully capable of consent — but from whom none was sought. Defendant cannot shelter himself within the tissue of concern for his children when he consciously engaged in a prohibited act. The Court has no reason to doubt defendant's concern for his children, but that concern affords him no defense to liability under Title III.
Accordingly, the Court finds as a matter of law that plaintiff has established her claims under Title III and the MPCA concerning conversations between herself and the other adult with whom she was speaking.
2. Invasion of Privacy
Plaintiff also seeks summary judgment on her invasion of privacy claim. The Minnesota Supreme Court adopted the privacy tort of intrusion upon seclusion in Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 233 n. 2 and 235 (Minn. 1998) (citing Restatement (Second) of Torts § 652B). While Minnesota courts have yet to fully delineate the contours of this tort, the Restatement specifically mentions surreptitious recording of telephone conversations as an example of the tort of intrusion upon seclusion. Restatement (Second) of Torts, § 652B, comment b and illustration 3. Other jurisdictions recognizing this privacy tort acknowledge that conduct similar to defendant's would constitute an invasion. See Rhodes v. Graham, 37 S.W.2d 46, 47 (Ky. 1931) (telephone wiretap is invasion of privacy);LeCrone v. Ohio Bell Tel. Co., 201 N.E.2d 533, 538 (Ohio Ct.App. 1963) (same for unauthorized extension phone). As this claim lies before the Court in diversity, the Court must assess the manner in which Minnesota's courts would address the issue and its outcome. Upon review, the Court concludes that Minnesota would follow the Restatement and view defendant's conduct as an actionable intrusion on plaintiff's seclusion.
Defendant responds that plaintiff waived her privacy interest in the conversations by filing the unsealed transcripts with the Court in connection with her motion. His claim is unavailing. A waiver is a "voluntary and intentional relinquishment or abandonment of a known right" which may be decided as a matter of law where, as here, the facts are not in dispute. Montgomery Ward Co. v. County of Hennepin, 450 N.W.2d 299, 304 (Minn. 1990). Plaintiff may waive her right to privacy through conduct manifesting a clear intent to do so. See Anderson v. Low Rent Housing Comm'n of Muscatine, 304 N.W.2d 239, 249 (Iowa 1981) (limited public statements not a waiver); Black v. City and County of Honolulu, 112 F. Supp.2d 1041, 1053-54 (D. Haw. 2000) (being friendly to surveillance officers not a waiver). Defendant bears the burden of proof on waiver. Black, 112 F. Supp.2d at 1054.
By defendant's own admission, from June, 2003, through August, 2003, he intercepted plaintiff's private conversations, generated a transcript, and disclosed the contents to several persons in connection with the divorce and custody proceedings. Defendant also attempted unsuccessfully to file the transcript in state court. Plaintiff brought this action in November, 2003, without filing the transcript, and only filed it with the Court in January, 2004, when responding to defendant's motion.
Ultimately, defendant's claim of waiver is disingenuous, because plaintiff did not offer these transcripts to show the content of her wrongfully intercepted conversations. She placed them before this Court as proof of defendant's wrongful acts. This is clearly not a waiver of her privacy; it is proof of her claim of invasion of that privacy. The invasions of privacy forming the basis of plaintiff's claim were complete long before this lawsuit was filed. Defendant's liability for his acts is not affected by plaintiff's filing transcripts of her purloined conversations with this Court.
Accordingly, no reasonable jury could find other than that defendant is liable to plaintiff for violations of Title III, the MPCA, and invasion of privacy.
C. Sanctions
Under Rule 11, an attorney must certify that his "claims, defenses and other legal contentions . . . are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law." Fed.R.Civ.P. 11(b)(2).
Plaintiff argues that defendant's motion to dismiss is frivolous. This Court agrees. The Eighth Circuit has recognized plaintiff's Title III cause of action for 15 years. In the face of this established rule of law, defense counsel's attempt to argue that the appellate court has limited its holdings inKempf and Platt finds no support. All of the authorities cited by defendant in support of his position — with one notable exception discussed below — precede Kempf and Platt, arise in other jurisdictions, were issued by lower courts, rely on reasoning explicitly rejected by the Eighth Circuit, do not involve interspousal wiretapping, and in some instances present a combination of these factors.
The citations speak for themselves. See Meredith v. Gavin, 446 F.2d 794 (8th Cir. 1971); Anonymous v. Anonymous, 558 F.2d 677 (2d Cir. 1977) (explicitly rejected by the Eighth Circuit in Platt); Janecka v. Franklin, 843 F.2d 110 (2d Cir. 1988) (following Anonymous); Scheib v. Grant, 814 F. Supp. 736 (N.D. Ill. 1993), aff'd, 22 F.3d 149 (7th Cir. 1994) (same); Lizza v. Lizza, 631 F. Supp. 529 (E.D.N.Y. 1986) (same); Perfit v. Perfit, 693 F. Supp. 851 (C.D. Cal. 1988) (same); Stewart v. Stewart, 645 So.2d 1319 (Miss. 1994) (same); Baumrind v. Ewing, 279 S.E.2d 359 (S.C. 1981) (following Simpson v. Simpson, 490 F.2d 803 (5th Cir.),cert. denied, 419 U.S. 897 (1974), a case explicitly rejected by the Eighth Circuit in Kempf). A first year law student should know from reading these cases that they do not, and cannot, limit the Eighth Circuit's holdings in Kempf orPlatt, and none speaks to a federal district court in this Circuit with the authority of the Eighth Circuit Court of Appeals.
The sole exception is Rice v. Rice, 951 F.2d 942 (8th Cir. 1991), decided by the Eighth Circuit shortly after Kempf and Platt. Defendant advances Rice in support of his Rule 12 motion claiming that "no cause of action could exist where the spouse believed that making such recordings was allowable under the law." (Defendant's Memorandum at 2, Defendant's Reply at 2, Defendant's Response at 7.) This is a frank misstatement of the law, and could only arise from a knowing misreading of Rice. Rice holds nearly the exact opposite: that private actors such as defendant enjoyed no "good faith reliance" defense to liability under Title III. Rice, 951 F.2d at 945, citing 18 U.S.C. § 2520(d)(3).
Rice's particular facts make this clear. Rice was decided in the district court while the Eighth Circuit's decision inKempf was pending. The Rice trial court followed the district court's opinion in Kempf, soon to be reversed on appeal. InRice, the Eighth Circuit merely affirmed summary judgment for defendants, holding that they and their counsel had reasonably relied on the now-reversed district court decisions in Kempf and Platt, and that to do otherwise would have amounted to a then-improper retroactive application of the law. Id., citing Chevron Oil Co. v. Huson, 404 U.S. 97, 106 (1971) (subsequently overruled in part by Harper v. Virginia Dept. of Taxation, 509 U.S. 86 (1993)). After this early unsettled period, the Eighth Circuit's decisions in Kempf and Platt have been the law for 15 years. Defendant disregarded and misstated their holdings at his peril.
Defendant also cites Reynolds v. Spears, 93 F.3d 428 (8th Cir. 1996), for the proposition that the Eighth Circuit has limited Kempf and Platt. (Def.'s Memorandum at 2.)Reynolds, which had nothing to do with interspousal wiretapping, provides less support than Rice. Reynolds involved the same employer from Deal v. Spears, supra., who taped employees' telephone conversations at work. Perhaps because no interspousal wiretapping was at issue, the Eighth Circuit did not cite Kempf or Platt, nor did it address the holding in either case; rather, it affirmed the denial of summary judgment to certain plaintiffs based on the facts presented. Defendant's assertion that Reynolds somehow "underscored" the "narrowness" of Kempf by "reject[ing] numerous arguments to support causes of action under [Title III]" is fanciful and is unsupported in the opinion.
The Court is troubled by defendant's persistent mischaracterization of the law, especially in Rice. No credible interpretation of Kempf, or of any case cited by defendant, casts doubt on the validity of plaintiff's cause of action in this Circuit. A plain reading of all three of defendant's briefs and his counsel's oral argument makes clear "under existing precedents that there is no chance of success, and [defendant's counsel has advanced] no reasonable argument to extend, modify or reverse the law as it stands." Azurite Corp. Ltd. v. Amster Co., 844 F. Supp. 929, 940 (S.D.N.Y. 1994), aff'd, 52 F.3d 15 (2d Cir. 1995). Such behavior mandates the imposition of Rule 11 sanctions.
Defendant argues that his motion to dismiss is not frivolous because it affords the Court an early opportunity to resolve the inevitable question of summary judgment. This argument might be more credible had defendant sought summary judgment or conceded the absence of disputed facts.
A baseless motion to dismiss for failure to state a claim does not become less frivolous simply because plaintiff might later have to respond to a motion for summary judgment. Accordingly, the Court finds sanctions appropriate under Rule 11. Counsel for defendant is therefore personally ordered to pay plaintiff's attorney's fees in the amount of $12,097.50 incurred in responding to his spurious motion to dismiss, and the additional sum of $2,902.50 as a Rule 11 sanction, for a total of $15,000.
II. Conclusion
For all of the foregoing reasons, defendant's motion to dismiss is denied [Docket No. 8]; plaintiff's motions for partial summary judgment [Docket No. 4] and sanctions [Docket No. 12] are granted.
LET JUDGMENT BE ENTERED ACCORDINGLY.