Campbell v. Price, LR-C-97-850.

• Decision Date: 20 May 1998
• Docket Number: No. LR-C-97-850.,LR-C-97-850.
• Citation: 2 F.Supp.2d 1186
• Parties: Judy CAMPBELL, Plaintiff, v. Ricky E. PRICE, Amy L. Bradley, and Helen Rice Grinder, Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

2 F.Supp.2d 1186

Judy CAMPBELL, Plaintiff, v. Ricky E. PRICE, Amy L. Bradley, and Helen Rice Grinder, Defendants.

No. LR-C-97-850.

United States District Court, E.D. Arkansas, Western Division.

May 20, 1998.

Robert A. Newcomb, Little Rock, AR, for Plaintiffs.

Patty W. Lueken, Little Rock, AR, for Defendants.

MEMORANDUM OPINION AND ORDER GRANTING SUMMARY JUDGMENT

EISELE, District Judge.

Before the Court are Judy Campbell's and Ricky Price's Motions for Summary Judgment. The Court has reviewed the parties' submissions and is ready to rule on the pending motions. For the reasons stated herein, the Court will deny plaintiff's motion for summary judgment and will grant defendant's motion for summary judgment.

I. Background

This case follows a custody dispute between the plaintiff, Judy Campbell, and the defendant, Ricky Price, over the custody of their minor daughter, Megan. In 1993, Megan was living with her mother. (Price Aff. ¶ 1). Mr. Price asserts that Judy Campbell was not providing a suitable environment for Megan. At that time, James Campbell, plaintiff's brother, corroborated Price's contention, stating he had firsthand knowledge that Judy Campbell was verbally abusive, and that she otherwise was failing to provide her a "healthy rearing." Megan was nine years old at the time. (Id. ¶ 5).

On October 22, 1993, Mr. Price filed for change of custody in Pulaski County Chancery Court, and James Campbell provided an affidavit attesting to the poor conditions Megan was enduring with her mother. After Judy Campbell failed to appear for both a temporary and final custody hearing, Mr. Price was granted permanent custody of his daughter in an Order signed January 3, 1994, by Chancellor Annabelle Clinton Imber. (See Chancery Court documents attached to Def.'s Motion for Summary Judgment).

Megan and her mother resumed talking on the phone in 1996. (Def. Stmt. of Facts. ¶ 1). Mr. Price says he observed that his daughter would cry and become upset after talking with her mother on the telephone, that she would "mope around" and "go into her room and just sit there," and that she was "not willing to talk about what was wrong with her." (Price Aff. ¶ 9). In January of 1997, Ricky Price recorded several telephone conversations between Megan and her mother without first obtaining either's consent. (Def. Stmt. of Facts ¶ 2). He also enrolled Megan in counseling sessions. (Price Aff. at ¶ 9). Mr. Price recorded the conversations between Megan and her mother seeking to find out why his daughter was upset after speaking to her mother. (Pl. Stmt. of Facts ¶ 3).

Mr. Price disclosed the contents of some of the recorded conversations to Megan's counselor, defendant Amy Bradley. (Def. Stmt. of Facts ¶ 4). In April of 1997, Judy Campbell filed for change of custody, seeking to regain custody of Megan, and Mr. Price retained defendant Helen Rice Grinder as his attorney. (Price Aff. at ¶ 10). Mr. Price told Ms. Grinder that he had recorded the conversations, and she suggested that he cease doing so. (Id.). Ms. Bradley provides an uncontroverted affidavit in which she denies having disclosed the contents of the taped conversations to Ms. Grinder. (Bradley Aff. ¶ 3). Ms. Grinder denies listening to the tapes, and plaintiff advances no proof to the contrary. (Grinder Aff. ¶ 2). Plaintiff contends that Ms. Grinder solicited information from Amy Bradley in Chancery Court "of such a nature that it was learned from the secretly recorded conversation." (Pl. Motion for Summary Judgment). Plaintiff further contends that Bradley knowingly disclosed the contents of the phone conversations she knew were recorded without consent. (Id.). After plaintiff put on evidence in the second change of custody proceeding, a verdict was directed in Mr. Price's favor, and he retained permanent custody of Megan. (See Chancery Court Order, filed Oct. 1, 1997).

In her Complaint, plaintiff seeks damages under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 ("Title III"), alleging that Ricky Price violated 18 U.S.C. § 2511 by intentionally intercepting and recording phone conversations between plaintiff and her daughter. She further alleges violations against Price for providing copies of the intercepted conversations to defendant Amy Bradley. Finally, plaintiff seeks damages from Bradley¹ and Grinder for the "knowing disclosure of intercepted wire communications in violation of 18 U.S.C. § 2511."

Plaintiff claims that the undisputed facts entitle her to summary judgment against all three defendants. On the other hand, defendant Ricky Price asserts that there exists no genuine issue of material fact with respect to his actions and that he is entitled to judgment as a matter of law. Therefore, he contends, "if there is no liability in [sic] the actions of Ricky Price, this lawsuit must also be dismissed against Defendants Amy Bradley and Helen Rice Grinder."

II. Analysis

A. Summary Judgment Standard

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, the Court may grant summary judgment only when "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 judgment as a matter of law." Fed.R.Civ.P. 56, quoted in Anderson v. Liberty Lobby, 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695, (1990), the United States Supreme Court stated that regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the District Court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied. Id. (quoting Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

In Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the Supreme Court stated that at the summary judgment stage, the role of the district court is not to weigh the evidence and determine its truth, but rather to determine whether there is any genuine issue of fact for trial. In making this determination, the Court must view the evidence in the light most favorable to the nonmovant, affording that party the benefit of all reasonable inferences that can be drawn therefrom. Reich v. Hoy Shoe Co., Inc., 32 F.3d 361, 364 (8th Cir.1994). If, under such a view of the evidence, it is clear that no more than a "metaphysical doubt" exists as to the material facts of the case and that the movant is entitled to judgment under such facts, summary judgment is appropriate. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

B. Discussion

1. Applicability of Title III in Domestic Relations

The interception and disclosure of wire communications is forbidden by the Federal Wiretapping Statute, also known as Title III. Title III provides in relevant part:

(1) Except as otherwise specifically provided in this chapter 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 this subsection; or

(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.

"The Supreme Court has stated, `[t]he purpose of the legislation * * * was effectively to prohibit * * * all interceptions of oral and wire communications, except those specifically provided for in the Act * * *.'" Kempf v. Kempf, 868 F.2d 970, 972 (8th Cir.1989) (quoting United States v. Giordano, 416 U.S. 505, 514, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974)). Furthermore, the plain language and legislative history of the statute evince no Congressional intent to exempt domestic relations. Id. at 973; Thompson v. Dulaney, 970 F.2d 744, 748 (10th Cir.1992); Heggy v. Heggy, 944 F.2d 1537, 1540-41(10th Cir.1991).

Although defendant correctly observes that a minority of circuits (the Second and Fifth) do not apply Title III to domestic disputes, the Eighth, Fourth, Sixth, and Tenth Circuits constitute the majority and apply Title III to domestic situations. See Platt v. Platt, 951 F.2d 159 (8th Cir.1989); Kempf, 868 F.2d at 973. However, courts have recognized the difference in a spouse surveying an adult spouse, as opposed to surveying a custodial minor child. See Newcomb v. Ingle, 944 F.2d 1534 (10th Cir.1991). While the Court is of the opinion that precedent does not carve out an absolute exception which would allow parents to intercept their minor children's telephone conversations, the parent-child relationship impacts the analysis of two statutory exceptions to Title III:(1) the extension phone exception, and (2) the consent exception.

a. Consent Exception

The consent exception states that:

it shall not be unlawful under this chapter for a...