Briggs v. American Air Filter Co., Inc.

• Decision Date: 28 June 1978
• Docket Number: Civ. No. C77-1418A,C77-1419A.
• Citation: 455 F. Supp. 179
• Parties: Philip BRIGGS v. AMERICAN AIR FILTER COMPANY, INC., a Foreign Corporation, and William F. McClure, Jr. Dan C. ROBY v. AMERICAN AIR FILTER COMPANY, INC., a Foreign Corporation, and William F. McClure, Jr.
• Court: U.S. District Court — Northern District of Georgia

455 F. Supp. 179

Philip BRIGGS v. AMERICAN AIR FILTER COMPANY, INC., a Foreign Corporation, and William F. McClure, Jr.

Dan C. ROBY v. AMERICAN AIR FILTER COMPANY, INC., a Foreign Corporation, and William F. McClure, Jr.

Civ. Nos. C77-1418A, C77-1419A.

United States District Court, N. D. Georgia, Atlanta Division.

June 28, 1978.

Donald A. Weissman, Katz, Weissman & Loftis and Robert C. Dillon, Merrill & Dillon, Atlanta, Ga., for plaintiffs.

Burt DeRieux, Greene, Buckley, DeRieux & Jones, Atlanta, Ga., for defendants.

MEMORANDUM AND ORDER

O'KELLEY, District Judge.

In these related removal actions from the Superior Court of DeKalb County, Georgia, the respective plaintiffs are seeking recovery of damages for defendant William F. McClure's allegedly unlawful monitoring of a certain telephone conversation between the plaintiffs of March 9, 1977. Count one of both complaints alleges a cause of action for invasion of privacy. Count two alleges a cause of action under 18 U.S.C. § 2520 for violation of the wiretap provisions of the Omnibus Crime Control and Safe Streets Act of 1968 hereinafter the "Omnibus Act of 1968", 18 U.S.C. § 2510 et seq. A counterclaim in Civil Action No. C77-1419A alleges a cause of action against plaintiff Dan C. Roby for breach of a loyalty agreement with defendant American Air Filter Company hereinafter "AAF". Removal jurisdiction is predicated upon these actions being ones "of which the district courts of the United States have original jurisdiction" by virtue of the presence of a claim arising under the laws of the United States count two, the doctrine of pendent jurisdiction count one, and principles of ancillary jurisdiction the counterclaim in C77-1419A. 28 U.S.C. § 1441. These actions are presently before the court on cross motions for summary judgment on counts one and two of the complaints.

The underlying facts in these actions are essentially uncontroverted. At all material times herein plaintiff Dan C. Roby was an employee at the Atlanta branch office of defendant AAF. Plaintiff Philip Briggs was a former employee of defendant AAF who was operating a business in competition with AAF. Defendant William F. McClure, Jr. was the manager of the AAF Atlanta branch office. Over a period of months prior to the telephone conversation in question, McClure apparently learned that Roby was meeting with Briggs under circumstances that led him to believe that Roby was disclosing confidential business information to Briggs in contravention of a loyalty agreement which Roby had signed in connection with his employment with AAF. On March 9, 1977, Roby and McClure had a brief discussion at the AAF Atlanta branch office about a job on which AAF would be making a bid. Shortly thereafter, the AAF office secretary informed McClure that Roby was engaged in a telephone conversation with Briggs on one of the AAF business telephones. Having reason to believe that Roby was acting in consort with Briggs to the detriment of AAF, McClure picked up an extension phone and listened to their conversation to determine whether they were discussing confidential AAF matters. During the course of monitoring the conversation between Briggs and Roby on the extension phone, McClure learned that Roby was, in fact, leaking confidential price and bidding information to Briggs. McClure then reported the contents of this conversation to others at AAF as evidence of Briggs' disloyalty. His actions apparently resulted in a decision to terminate Briggs' employment with AAF.

Except for certain explicit, narrowly defined exemptions, the federal wiretap statute generally prohibits the "interception" of "any wire or oral communication." 18 U.S.C. § 2511. "Intercept" is defined as "the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device." (Emphasis added.) 18 U.S.C. § 2510(4). The phrase "electronic, mechanical, or other device" is defined as:

any device or apparatus which can be used to intercept a wire or oral communication other than —

(a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a communications common carrier in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business . . ..

(Emphasis added.) 18 U.S.C. § 2510(5). The motions of the defendants for summary judgment on count two of these related complaints raise a substantial federal question in interpretation of the foregoing wiretap provisions: Is use of an extension phone to monitor a conversation without the consent of the parties thereto implicitly exempted from the conduct proscribed in 18 U.S.C. § 2511 by virtue of the definition of the phrase "electronic, mechanical, or other device" in 18 U.S.C. § 2510(5)(a)(i)?

Although the Court of Appeals for the Fifth Circuit answered this question in the affirmative in the interspousal controversy in Simpson v. Simpson, 490 F.2d 803 (5th Cir.), cert. denied, 419 U.S. 897, 95 S.Ct. 176, 42 L.Ed. 2d 141 (1974), the court stated that its decision was "limited to the specific facts" therein — the interception of a family member's telephone conversation by use of an extension phone in the family home. Thus, Simpson left unanswered in this circuit the more general question of whether there is an extension phone exemption to the interception prohibitions of 18 U.S.C. § 2511 where the locus in quo extends beyond the marital home of the parties, as in the case sub judice. In attempting to answer this more general question in United States v. Harpel, 493 F.2d 346 (10th Cir. 1974), the Court of Appeals for the Tenth Circuit focused on the statutory language "in the ordinary course of business" and found that the telephone extension exemption applies only to telephone extensions used "in the ordinary course of the subscriber's business." The court then held that "as a matter of law . . . a telephone extension used without authorization or consent to surreptitiously record a private conversation is not used in the ordinary course of the subscriber's business." Id. at 351.

This court agrees with the Harpel court that the operative factual test to determine the...