Lombardo v. Lombardo

• Decision Date: 21 March 2002
• Docket Number: No. 1:99-CV-95.,1:99-CV-95.
• Citation: 192 F.Supp.2d 885
• Parties: Connie LOMBARDO, and Steven R. Myron, M.D., Plaintiffs, v. John LOMBARDO, John Doe, and Jane Doe Defendants.
• Court: U.S. District Court — Northern District of Indiana

192 F.Supp.2d 885

Connie LOMBARDO, and Steven R. Myron, M.D., Plaintiffs, v. John LOMBARDO, John Doe, and Jane Doe Defendants.

No. 1:99-CV-95.

United States District Court, N.D. Indiana, Fort Wayne Division.

March 21, 2002.

David A Gunter, Dean Mead, Viera, FL, for Connie Lombardo, Steven R Myron, MD, plaintiffs.

Robert G Forbes, Forcum and Forbes, Hartford City, for John F Lombardo, John Doe, Jane Doe, defendants.

MEMORANDUM OF DECISION AND ORDER

WILLIAM C. LEE, Chief Judge.

On March 11, 1999, Plaintiffs Connie Lombardo nee Ragle¹ (hereinafter "Ragle") and Steven Myron (hereinafter "Myron") filed the present action against the defendants, John Lombardo (hereinafter "Lombardo"), John Doe, and Jane Doe,² alleging violations of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (hereinafter "Title III") and its Indiana equivalent, Ind.Code § 35-33.5-5-4. Ragle and Stevens allege that Lombardo illegally intercepted, disclosed, and used Plaintiffs' wire, oral, or electronic communications.

Presently before the Court is Plaintiffs' Motion for Summary Judgment filed on December 15, 1999. On January 7, 2000, Lombardo filed a Response and Statement of Genuine Issues of Material Fact, to which Plaintiffs replied on October 1, 2001.³ Defendants filed an additional reply brief on October 25, 2001.

At a hearing on the motion held on November 14, 2001, the Court granted the parties sixty days to perform additional discovery. On February 12, 2002, Plaintiffs filed a "Supplemental Brief in Support of Pending Motions for Summary Judgment" together with a motion to consolidate this case with a companion case, Lombardo, et al. v. Forbes, et al., No. 1:00-CV-14 (N.D. Ind. filed Jan. 7, 2000), now pending in this Court and arising from the same incidents. For the following reasons, Plaintiffs' Motion for Summary Judgment with respect to the federal claims will be GRANTED in part, and DENIED in part. Plaintiffs' state claims will be BIFURCATED and STAYED pending the outcome of the proceedings on the federal claims. Plaintiffs' motion to consolidate the two cases will be taken under advisement.

FACTUAL BACKGROUND

During the relevant time period in 1996 and 1997, Plaintiff Ragle was married to Defendant Lombardo. (Ragle Aff. ¶ 2⁴). In October 1996, Lombardo moved out of their marital home. (Id.). In approximately December 1996, unbeknownst to Ragle, Lombardo installed a tape-recording device in their marital home and recorded telephone calls between his wife and others, including Plaintiff Myron. (Id. at ¶ 6; Myron Aff. ¶ 4). The recorded telephone conversations revealed that Ragle and Myron were having an affair. (Trans. p. 223-24⁵).

On March 14, 1997, Lombardo personally served divorce papers on his wife at her place of employment. (Ragle Aff. at ¶ 3). The next day, Lombardo moved back into the marital home without Ragle's consent. At that time, Lombardo indicated that he knew Ragle's attorney's name, though she had never disclosed this information to him. Lombardo also indicated that he had evidence that he would use against Ragle in their divorce proceedings. (Id. at ¶ 4).

On March 16, 1997, while Lombardo was away from the house, Ragle discovered a cassette tape recorder in her basement. The recorder was connected to a phone jack. (Id. at ¶ 5). Shortly thereafter, Lombardo confronted Ragle because he discovered the tape recorder missing. During this confrontation, Lombardo asked for the recorder back and quoted conversations Ragle had had with others on the telephone. He told Ragle he had been taping her conversations for months and that he had several copies of the tapes. (Id. at ¶ 6). He also indicated that he intended to send copies of the tape recordings to Ragle's business associates, customers, and family members if Ragle did not accede to all of his demands in connection with the divorce. (Id. at ¶ 7). In response to Lombardo's threats, Ragle obtained an order from the Jay Circuit Court on March 20, 1997, enjoining Lombardo from disseminating or disclosing the contents of "any unlawfully recorded telephone conversations." (Id. at ¶ 8).

Lombardo did, in fact, disclose the contents of the tapes to Julie Myron, wife of Plaintiff Steven Myron. (Id. at ¶ 9; Myron Aff. ¶¶ 2, 4; Lombardo Dep. p. 18). Julie Myron testified that Lombardo had disclosed the contents of the tapes to her and testified as to the contents of the tapes during the Lombardo-Ragle divorce proceedings. (Ragle Aff. at ¶ 9; Trans. p. 221, ln. 2-4). Lombardo and Ragle were divorced in January 1998. Thereafter, Ragle and Myron brought this suit.

DISCUSSION

I. Standard of Review

"Summary judgment is proper only if `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 a judgment as a matter of law.'" Gonzalez v. Ingersoll Milling Machine Co., 133 F.3d 1025, 1031 (7th Cir.1998) (quoting Fed.R.Civ.P. 56(c)). While the moving party "always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record, if any, which it believes demonstrate the absence of a [genuine issue of] material fact, there is nothing in Rule 56 that requires a moving party to negate an essential element of an opponent's claim for which the opponent will bear the ultimate burden at trial." Bank of Ilinois v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1168 (7th Cir.1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Rather, the standard for granting summary judgment requires the district court to grant summary judgment if the record before us "could not lead a rational trier of fact to find for the nonmoving party." McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

The burden is therefore on the nonmovant to set forth "specific facts showing that there is a genuine issue for trial." Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir.1998) (quoting Fed.R.Civ.P. 56(e)). "In determining whether a genuine issue of material fact exists, courts must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party." Debs v. Northeastern Illinois Univ., 153 F.3d 390, 394 (7th Cir. 1998). Substantive law determines which facts are "material"; that is, those facts which might affect the outcome of the suit under the governing law. See McGinn v. Burlington Northern R.R. Co., 102 F.3d 295, 299 (7th Cir.1996). Consequently, a dispute over irrelevant or unnecessary facts does not preclude summary judgment. See Hardin v. S.C. Johnson & Son, Inc., 167 F.3d 340, 344 (7th Cir.1999).

The non-moving party may not rest on the pleadings in opposing a motion for summary judgment. See Crim v. Bd. of Educ. of Cairo Sch. Dist. No. 1, 147 F.3d 535, 540 (7th Cir.1998). Rather, the nonmoving party must produce some evidence sufficient to show that a genuine issue of material fact exists. "Furthermore, a `party needs more than a scintilla of evidence ... to defeat summary judgment.'" Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir.1998) (quoting Senner v. Northcentral Technical College, 113 F.3d 750, 757 (7th Cir.1997)). Thus, a summary judgment determination is essentially an inquiry as to whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.

II. Federal Claims

A. Title III Background

Section 2511 of Title III states 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;

...

(c) intentionally discloses or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing for having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this 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(1)(a),(c),(d).

Title III also includes an explicit private right of action:

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).

In this case, Plaintiffs allege that Lombardo committed three separate violations of Title III. First, Plaintiffs claim Lombardo intercepted the telephone communications in violation of 18 U.S.C. § 2511(1)(a). Second, Plaintiffs claim Lombardo intentionally disclosed the contents of the illegally intercepted communications in violation of 18 U.S.C. § 2511(1)(c). Finally, Plaintiffs contend Lombardo intentionally used the contents of the illegally intercepted communications in violation of 18 U.S.C. § 2511(1)(d).

B. Interspousal Immunity

Defendant argues that Title III does not apply to his actions because he taped the conversations of his wife in their marital home. Specifically, Defendant argues an interspousal immunity exception to Title III exists. Several courts have been called upon to...