Awbrey v. Great Atlantic & Pac. Tea Co., Inc.

• Decision Date: 30 September 1980
• Docket Number: C78-2009A,Civ. A. No. C78-597A,C79-2118A and C80-303A.
• Citation: 505 F. Supp. 604
• Parties: David Martin AWBREY, and John Carl Gladys, Plaintiffs, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., Defendant. R. Kevin ANDERSON; Darryl W. Brown; David W. Krauss; Ricky K. Poole; Marie E. Baggett; and Vivian C. Heath, Plaintiffs, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., Defendant. Marvin L. DOW, Plaintiff, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., Defendant. Roger Allen FLAHERTY; Frank Stackhouse; Willis Penn; Marbuary Farmer, Jr.; Harrison Phillips; Brenda J. Smith; and Daniel Clifford Hambrick, Plaintiffs, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., Defendant.
• Court: U.S. District Court — Northern District of Georgia

505 F. Supp. 604

David Martin AWBREY, and John Carl Gladys, Plaintiffs, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., Defendant.

R. Kevin ANDERSON; Darryl W. Brown; David W. Krauss; Ricky K. Poole; Marie E. Baggett; and Vivian C. Heath, Plaintiffs, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., Defendant.

Marvin L. DOW, Plaintiff, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., Defendant.

Roger Allen FLAHERTY; Frank Stackhouse; Willis Penn; Marbuary Farmer, Jr.; Harrison Phillips; Brenda J. Smith; and Daniel Clifford Hambrick, Plaintiffs, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., Defendant.

Civ. A. Nos. C78-597A, C78-2009A, C79-2118A and C80-303A.

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

September 30, 1980.

N. David Buffington and James D. Fagan, Jr., Stanford, Buffington, Fagan & Giolito, Atlanta, Ga., for plaintiffs in case C78-597A and C80-303A.

James L. Ford, Wills & Ford, Atlanta, Ga., for plaintiffs in case nos. C78-2009A and C79-2118A.

Eugene C. Partain and Thomas D. Harper, Powell, Goldstein, Frazer & Murphy, Atlanta, Ga., for defendant in all cases.

ORDER

SHOOB, District Judge.

Defendant The Great Atlantic and Pacific Tea Company has moved for summary judgment in its favor in these consolidated cases. It does so on two separate grounds:

1.

There is no evidence that any plaintiff had a wire communication intercepted, disclosed, or used.

2.

Eleven of the plaintiffs filed their actions more than two years after the last possible date of any alleged wiretapping activities at a store in which they were employed.

Defendant's Motion for Summary Judgment, page 2.

For the reasons set forth below, defendant's motion is DENIED.

A. First Ground.

Defendant strenuously argues that after (up to) twenty-nine months of discovery, plaintiffs have produced no evidence that any of them has ever had a wire communication intercepted, disclosed or used. That contention, along with argument in the motion and the brief, is somewhat misleading. It would be more accurate to say that plaintiffs have not produced evidence of a single specific phone call which was overheard by means of a wiretap. However, there is evidence in the record that wiretaps were installed on store business phones by defendant's employees in stores where plaintiffs worked, at the time they worked; that most if not all of the plaintiffs made personal phone calls on a daily basis from the tapped telephones during the period the tap was in place; and that at times, at least, phone calls were tapped, recorded, and replayed later on an indiscriminate basis.

Defendant A&P bases its argument that plaintiffs' case is insufficiently specific on the following passage from Broadway v. City of Montgomery, 530 F.2d 657, 659 (5th Cir. 1976):

In order to prevail under 18 U.S.C. § 2520 the remaining appellants must show that the oral communications were in fact intercepted, disclosed or used by defendants.

Defendant argues that the words "in fact," coupled with the Broadway plaintiffs' lack of first hand knowledge that defendants were involved in the wiretapping, mean that "the absence of direct, admissible evidence of the interception, disclosure, or usage of plaintiffs' personal conversations mandates the entry of summary judgment," Defendant's Brief at page 8.¹

This argument cannot prevail for two reasons. First, the facts in Broadway are entirely distinguishable from those in the instant case. The grant of summary judgment to defendants in Broadway was based on the absence of any proof that defendants in that case were involved in the wiretapping. The depositions of the plaintiffs in Broadway "conclusively and affirmatively show that they had no factual knowledge to substantiate the charge that defendants heard or listened to the tapes," Broadway, supra, 530 F.2d at 660. While most of the plaintiffs here have little or no personal knowledge of the wiretapping incidents complained of, others have so testified.

Second, defendant's argument that plaintiffs' lack of specificity in their allegations warrants the granting of defendant's motion for summary judgment flies in the face of both the statute and the nature of the tort. 18 U.S.C. § 2520 provides:

Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter shall (1) have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use such communications, and (2) be entitled to recover from any such person —

(a) actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher:

(b) punitive damages; and

(c) a reasonable attorney's fee and other litigation costs reasonably incurred.

A good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under this chapter or under any other law.

That the statute provides for liquidated damages "at the rate of $100 a day for each day of violation" clearly contemplates the sort of continued, indiscriminate wiretapping of private telephone conversations plaintiffs have alleged here.

Moreover, the fact that most of the plaintiffs have no personal, first-hand knowledge that any particular phone call was tapped is not remarkable. Indeed, it would be unusual if anyone other than defendant, and its employees involved in the wiretapping, had knowledge of the specific incidents of wiretapping. The intentional tort of wiretapping created by 18 U.S.C. § 2520 is obviously one which by its very nature is unknown to the plaintiff. The usual way a wiretap victim could acquire personal, first-hand knowledge of a particular act of wiretapping would either be (1) by listening at some later time to a recorded telephone conversation or (2) by somehow seeing the tapping done, through carelessness of the tortfeasor or otherwise. Neither occurrence is likely if the tort is successful. Indeed, the more successful the tortfeasor is, the less likely it is that plaintiff will know of it.

In sum, though it is conflicting, the evidence in the record tends to show that telephones the plaintiffs used were tortiously tapped by defendant's personnel. If no valid defenses are available to defendant and if the jury concludes by a preponderance of the evidence that defendant has "intercepted, disclosed or used" plaintiffs' "wire or oral communications," then plaintiffs may be entitled to judgment and damages as specified in the statute.

B. Second Ground.

Defendant also argues that the applicable statute of limitations bars the actions of eleven of the sixteen named plaintiffs. Defendant argues that the applicable limitations period is two years, measured from "the last possible date of any alleged wiretapping activities at a store in which plaintiffs were employed," Defendant's Motion for Summary Judgment, page 2.

18 U.S.C. § 2520 provides no statute of limitations. Accordingly, this Court must look to the applicable state limitations period and its tolling provisions. See Moore v. Tangipahoa Parish School Board, 594 F.2d 489, 495 (5th Cir. 1979). But in determining when the cause of action accrued for this federal cause of action, this Court must look to federal law. See Cole v. Kelley, 438 F.Supp. 129, 138 (C.D.Cal.1977); and Clark v. United States, 481 F.Supp. 1086, 1094 (S.D.N.Y.1979).

Defendant A&P contends, and plaintiffs apparently do not dispute, that the limitations period for the most nearly analogous state cause of action, the tort of invasion of privacy, is the general two-year limitations period for torts. Ga.Code Ann. § 3-1004. The parties disagree as to (1) when the cause of action accrued and (2) whether the running of the limitations period was tolled by any action or inaction of defendant. No Georgia cases have addressed these questions.

Defendant argues that the following principles governing the statute of limitations apply to this case and to the question of when plaintiffs' causes of action accrued and the statute began to run.

"When the question is raised as to whether an action is barred by a statute of limitations, the true test to determine when the cause of action accrued is `to ascertain the time when the plaintiff could first have maintained his action to a successful result' ... A right of action has its inception from the time there has been a breach of duty; and this would entitle the party to file a suit for the breach, without regard to whether any actual damage had in fact resulted." Mobley v. Murray County, 178 Ga. 388(1), 173 S.E. 680. (Emphasis supplied.)

"The test to be generally applied in determining when the statute of limitations begins to run against an action sounding in tort is whether the act causing the damage is in and of itself an invasion of some right of the plaintiff, and thus constitutes a legal injury and gives rise to a cause of action. If the act complained of does not in and of itself constitute an invasion of some legal right, but a recovery is sought only on account of damage subsequently accruing from and consequent upon an act not in itself tortious, the cause of action will be taken to accrue and the statute to begin to run only when the resultant damage is sustained. But if the act causing such subsequent damage in this case, failure to disclose that the lot was on a landfill is of itself unlawful in the sense that it constitutes a legal injury to the plaintiff, and is thus a completed wrong, the cause of action accrues and the statute begins to run from the time such an act is committed, however slight the damage then may be." Silvertooth v. Shallenberger, 49 Ga.App. 133(2), 174 S.E. 365; Trammell v. Ga. Power Co., 52 Ga.App. 514(1), 183 S.E. 825.

"Contrary to the contention of the plaintiff, its right of action against the defendants accrued when the defendants committed the negligent acts

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