Conner v. Tate

Decision Date09 February 2001
Docket NumberNo. CIV.A.1:00-CV-1723-TWT.,CIV.A.1:00-CV-1723-TWT.
Citation130 F.Supp.2d 1370
PartiesChrystel M. CONNER, Plaintiff, v. Teresa TATE, individually, et al., Defendants.
CourtU.S. District Court — Northern District of Georgia

James Brian Sullivan, Office of Jim Sullivan, Jonesboro, for Chrystel M. Conner, plaintiffs.

James R. Argo, Jr., Office of James R. Argo Jr., Lawrenceville, Michael Allen O'Quinn, Gary Kevin Morris, O'Quinn & Cronin, McDonough, for Teresa Tate, individually, James R. Risher, Jimmy W. Mercer, Gary Freedman, David Crumpler, Mark Miller, individually and as employees of Henry County, Georgia, Henry County, Georgia, defendants.


THRASH, District Judge.

This is a civil action seeking damages for alleged violations of Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510 et seq. ("Wiretap Act"); the Electronics Communications Privacy Act, 18 U.S.C. § 2701 et seq., governing access to certain stored electronic records; the Georgia Wiretap Act, O.C.G.A. § 16-11-60 et seq.; and O.C.G.A. § 16-10-1. It is before the Court on Defendant Henry County's Motion to Dismiss [Doc. 9], Defendant James R. Risher, Jimmy W. Mercer, Gary Freedman, David Crumpler and Mark Miller's Motion for Partial Judgment on the Pleadings [Doc. 10], and Plaintiff's Motion to Amend her Complaint [Doc. 15].


On July 10, 2000, Plaintiff filed this action against Defendants Teresa Tate, James R. Risher, Jimmy W. Mercer, Gary Freedman, David Crumpler, Mark Miller, and Henry County, Georgia. Plaintiffs lawsuit alleges that the Defendants violated 18 U.S.C. § 2510, et seq, 18 U.S.C. § 2701, et seq, O.C.G.A. § 61-11-60 et seq, and O.C.G.A. § 16-10-1 et seq. In support of her suit, Plaintiff alleges that Defendant Tate unlawfully accessed and taped private telephone and voice mail communications between Plaintiff and Michael Tate, Defendant Tate's former husband. She further contends that Defendant Tate gave the recorded communications to the other individual Defendants ("Henry County Defendants") who disseminated the illegally obtained information throughout the Henry County police department. Defendant Henry County has filed a Motion to Dismiss and the Henry County Defendants have filed a Motion for Partial Judgment on the Pleadings.


A complaint should be dismissed under Rule 12(b)(6) only where it appears beyond doubt that no set of facts could support the plaintiffs claims for relief. Fed.R.Civ.P. 12(b)(6); see Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Linder v. Portocarrero, 963 F.2d 332 (11th Cir.1992). In ruling on a motion to dismiss, the court must accept the facts pleaded in the complaint as true and construes them in the light most favorable to the plaintiff. See Quality Foods de Centro America, S.A. v. Latin American Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir.1983). Generally, notice pleading is all that is required for a valid complaint. See Lombard's, Inc. v. Prince Mfg., Inc., 753 F.2d 974, 975 (11th Cir.1985), cert. denied, 474 U.S. 1082, 106 S.Ct. 851, 88 L.Ed.2d 892 (1986). Under notice pleading, plaintiff need only give the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. Id.


A party may file a motion for judgment on the pleadings after the pleadings are closed but within such time as not to delay trial. Fed.R.Civ.P. 12(c). Judgment on the pleadings is appropriate when no issues of material fact exist and the movant is entitled to judgment as a matter of law. Ortega v. Christian, 85 F.3d 1521, 1524 (11th Cir.1996). In rendering a judgment on the pleadings, a court considers only the substance of the pleadings and any judicially noticed facts. Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir.1998). The court accepts the facts in the complaint as true and views them in the light most favorable to the nonmoving party. Id. The complaint may not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Slagle v. ITT Hartford, 102 F.3d 494, 497 (11th Cir.1996) (quotingConley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

1. 18 U.S.C. § 2510

The Wiretap Act prohibits any "person" from intentionally intercepting wire communications or intentionally using or disclosing information obtained from illegal wiretaps. 18 U.S.C. § 2511(1)(a)-(e). Defendant Henry County asserts that it is not amenable to suit under the Wiretap Act because the definition of "person" in 18 U.S.C. § 2510(6) does not expressly include governmental entities. The Wiretap Act defines "`person' [as] any employee, or agent of the United States or any State or political subdivision thereof, and any individual, partnership, association, joint stock company, trust or corporation." 18 U.S.C. § 2510(6). The Eleventh Circuit has not addressed this issue. Nevertheless, it appears clear from the statutory language, its legislative history, and decisions by other courts, that the term "person" as defined by 18 U.S.C. 2510(6) does not include governmental entities. PBA Local No. 38 v. Woodbridge Police Dept., 832 F.Supp. 808, 823 (D.N.J.1993); S.Rep. No. 1097, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2179 ("The definition [of person] explicitly includes any officer or employee of the United States or any State or political subdivision of a State .... Only the governmental units themselves are excluded."); Spock v. United States, 464 F.Supp. 510, 514 n. 4 (S.D.N.Y.1978) ("person does not include the United States"). Therefore, a governmental entity such as Henry County could not be prosecuted criminally for a violation of the Wiretap Act.

The inquiry, however, does not stop there. The section of the Wiretap Act which authorizes civil damages leads to a different conclusion. This section provides:

Except as provided in section 2511(2)(a)(ii), any person, whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity which engaged in that violation such relief as may be appropriate.

18 U.S.C. § 2520(a) (emphasis added). Because the definition of "person" already includes business entities, courts have generally held that the word "entity" as used in § 2520(a) must be a reference to governmental bodies. Bodunde v. Parizek 1993 WL 189941 (N.D.Ill.1993); Smith v. City of Hartford, 2000 WL 1058877 (Conn.Super.2000); Dorris v. Absher, 959 F.Supp. 813 (M.D.Tenn.1997). If "entity" in this part of the statute was meant only to refer to business entities, then it would be "redundant or superfluous." Bodunde, 1993 WL 189941, at *3. Additionally, although the legislative history for this particular section is silent as to its application to governmental units, other relevant legislative history supports the conclusion that governmental entities are subject to civil liability for violation of the Wiretap Statute. "The statutory language is the starting point for interpreting the meaning of a statute." United States v. McLemore, 28 F.3d 1160, 1162 (11th Cir.1994). If the statutory language is ambiguous, the Court may look to the legislative history and the overall statutory scheme. Id., at 1162-63. See also Continental Can Co., Inc. v. Mellon, 825 F.2d 308, 310 (11th Cir.1987); Jones v. Metropolitan Atlanta Rapid Transit Authority, 681 F.2d 1376, 1378-79 (11th Cir.1982).

The Wiretap Act was amended by the Electronic Communications Privacy Act of 1986, Pub.L. No. 99-508, 100 Stat. 848 (1986) to add the word "entity" to the section authorizing a private cause of action for violation of the statute. 18 U.S.C. § 2520(a). The amendment added the same language to the civil liability provision for interception of stored wire and electronic communications pursuant to 18 U.S.C. § 2707(a). The Senate Committee Report summarizing § 2707 specifically states that the word "entity" includes governmental entities. S.Rep. No. 541, 99th Cong., 2d Sess. 43 (1986), reprinted in, 1986 U.S.C.C.A.N. 3555, 3597. The Bodunde court, and others, have held that this was sufficient legislative history to conclude that governmental entities may be liable under the Wiretap Act.

Other courts examining the issue have reached the opposite conclusion, holding that governmental entities are exempt from liability under the Wiretap Act. See, Amati v. City of Woodstock, Ill., 829 F.Supp. 998, 1002-03 (N.D.Ill.1993) (holding that "a municipality is not a `person' subject to the [Wiretap Act] and, thus, the municipality could not be held liable for its intentional interception of telephone communications on police department telephone line"); Abbott v. Village of Winthrop Harbor, 205 F.3d 976, 980 (7th Cir.2000) (holding that federal wiretap statute did not apply to municipalities and, therefore, village could not be held liable for police chiefs secret recording of calls made on police department telephone line). These courts, however, did not examine the legislative history of the statute and its amendments because they held that the statute was not ambiguous. This Court finds the reasoning of Bodunde, and the other cases which agree with its conclusion, more persuasive. There is sufficient ambiguity in the statute to warrant examination of the legislative history. Given the reference in the legislative history of § 2707 to including governmental entities in the group of potential defendants, the similar language placed in § 2520 at the same time, and the number of other courts that have reached a similar conclusion, this Court holds that governmental entities, such as Henry County, are amenable to suit under the Wiretap Act. Defendant Henry County's Motion to Dismiss...

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