Payne v. Norwest Corp.

• Decision Date: 29 November 1995
• Docket Number: No. CV 95-035-BLG-RWA.,CV 95-035-BLG-RWA.
• Citation: 911 F. Supp. 1299
• Parties: Radlee F. PAYNE, Plaintiff, v. NORWEST CORPORATION, a Delaware corporation, Norwest Bank Billings, N.A., a Montana corporation, and Norwest Bank Great Falls, N.A., a Montana corporation, Defendants.
• Court: U.S. District Court — District of Montana

911 F. Supp. 1299

Radlee F. PAYNE, Plaintiff, v. NORWEST CORPORATION, a Delaware corporation, Norwest Bank Billings, N.A., a Montana corporation, and Norwest Bank Great Falls, N.A., a Montana corporation, Defendants.

No. CV 95-035-BLG-RWA.

United States District Court, D. Montana, Billings Division.

November 29, 1995.

COPYRIGHT MATERIAL OMITTED

David A. Veeder, Veeder Law Firm, Billings, MT, for Plaintiff Payne.

Robin M. Maher, Norwest Corporation, Counsel Law Division, Minneapolis, MN, W. Scott Mitchell, Holland & Hart, Billings, MT, Lorenz F. Fett, Jr., Linda L. Holstein, Schatz, Paquin, Lockridge Grindal & Holstein, Minneapolis, MN, for Norwest.

MEMORANDUM AND ORDER

ANDERSON, United States Magistrate Judge.

Pending before the Court are 1) Plaintiff's Motion for Summary Judgment on the counterclaims brought by Defendant Norwest Bank Billings, N.A. (Norwest Bank Billings) and Defendant Norwest Bank Great Falls, N.A. (Norwest Bank Great Falls) and 2) Defendants' Motion for Summary Judgment, brought by Norwest Corporation (Norwest Corp.), Norwest Bank Billings, and Norwest Bank Great Falls on all the claims asserted by Plaintiff. After reviewing the briefs and supporting documents, and hearing oral argument on the motions on September 18, 1995, the Court rules as follows.¹

BACKGROUND

This is a wrongful discharge and discrimination action that arises out of Plaintiff Radlee F. Payne's termination from employment. Payne is a white male who was 44 years old at the time of his termination. He was hired in 1985 and worked as a collection manager at Norwest Bank Billings until his termination on February 9, 1994.

Payne originally filed a complaint in Montana State District Court on April 12, 1994, asserting various claims under Montana law. Payne subsequently filed a complaint in the United States District Court for the District of Montana on February 28, 1995, asserting federal claims for discrimination and retaliation, as well as several pendant state claims. See Plaintiff's federal Amended Complaint. Defendants Norwest Bank Billings and Norwest Bank Great Falls filed counterclaims in the state and federal actions alleging that Payne's actions in taping telephone conversations of bank customers and employees violated Montana and federal wiretapping laws. The state court action was consolidated with this federal action by order of the Court on May 30, 1995. Defendants have moved for summary judgment on all counts alleged by Plaintiff and Plaintiff has moved for summary judgment on the counterclaims.

DISCUSSION

The present case is before this Court by way of federal question jurisdiction. 28 U.S.C. § 1331. Additionally, this Court may exercise pendent jurisdiction over related state law claims. Brady v. Brown, 51 F.3d 810, 816 (9th Cir.1995) (citations omitted).

Rule 56(c), Fed.R.Civ.P., provides that summary judgment shall be rendered "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."

The burden of proof initially falls upon the moving party to identify those portions of the documents on file which it believes establish the absence of material facts. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). If the moving party makes this requisite showing, the burden then shifts to the party opposing summary judgment to "set forth specific facts showing that there is a genuine issue for trial." Rule 56(e), Fed. R.Civ.P.; see also Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 923 (9th Cir. 1987).

All reasonable doubt as to the existence of genuine issues of material fact must be resolved against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Nevertheless, "disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Service, 809 F.2d at 630 (citing Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510). "A `material' fact is one that is relevant to an element of a claim or defense and whose existence might affect the outcome of the suit. The materiality of a fact is thus determined by the substantive law governing the claim or defense." Id.

If a rational trier of fact might resolve disputes raised during summary judgment proceedings in favor of the nonmoving party, summary judgment must be denied. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Thus, the Court's ultimate inquiry is to determine whether the "specific facts" set forth by the nonmoving party, coupled with the undisputed background or contextual facts, are such that a rational or reasonable jury might return a verdict in its favor based on that evidence. T.W. Elec. Serv., 809 F.2d at 631.

I. Plaintiff's Motion for Summary Judgment

The parties agree that Payne recorded some of his telephone conversations with bank customers and with Frank Shaw, the President of Norwest Bank Great Falls, without the knowledge or consent of the parties to the conversations. The parties also agree that Payne recorded voice mail messages left on his Norwest voice mail. What the parties dispute is whether the recording of these conversations was illegal under federal or state law. Defendants Norwest Bank Billings and Norwest Bank Great Falls assert in their counterclaims that Payne violated both Mont.Code Ann. § 45-8-213 and the federal act entitled "Wire Interception and Interception of Oral Communications", 18 U.S.C. § 2510 et. seq. Defendants do not seek civil damages for Plaintiff's violation of the terms of Mont.Code Ann. § 45-8-213, a criminal statute.² Because Defendants have not pleaded a separate tort claim under Montana law, this Court need only determine whether Defendants have a valid counterclaim against Plaintiff under the federal statute.³

To recover civil damages under 18 U.S.C. § 2520, the Defendants must prove that Plaintiff violated 18 U.S.C. § 2511. One of the requirements of section 2511 is that an interception must have occurred.⁴ Interception is defined in 18 U.S.C. § 2510(4) as "the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device."

A. Voicemail messages

Initially, the Court will address the distinction between Payne's recording of messages left on his voice mail at Norwest Bank Billings versus the recording of telephone conversations with customers and Frank Shaw. Although neither the Court nor the parties has found any authority directly on point with respect to voicemail messages, the Court finds United States v. Turk, 526 F.2d 654 (5th Cir.1976), cert. denied, 429 U.S. 823, 97 S.Ct. 74, 50 L.Ed.2d 84 (1976), instructive. In Turk, the Fifth Circuit Court of Appeals determined that "an `interception' requires, at the least, involvement in the initial use of the device contemporaneous with the communication to transmit or preserve the communication." 526 F.2d at 658 n. 3. Payne's use of a handheld recorder to record voice mail messages did not occur contemporaneously with the leaving of the messages. Moreover, the persons leaving a message consented to the recording of their message by the fact they left a message. Therefore, the Court concludes that an "interception" did not occur, within the meaning of the federal wiretapping statute, 18 U.S.C. § 2510 et. seq. See also Steve Jackson Games, Inc. v. U.S. Secret Service, 36 F.3d 457, 463-64 n. 8 (5th Cir.1994) (affirming, in dicta, the validity of Turk's "contemporaneous acquisition" requirement). Plaintiff's motion to dismiss the counterclaims based on his duplication of voice mail messages must therefore be granted.

B. Recording of Telephone Conversations

Section 2511(2)(d) "makes an explicit exception to the general rule prohibiting the interception of telephone conversations where ... one of the parties to the conversation consents to the interception and the purpose of the interception is not to commit any criminal or tortious ... act." Park v. El Paso Board of Realtors, 764 F.2d 1053, 1066 (5th Cir.1985).⁵ Because Payne was a party to the recorded conversations, no violation of the federal wiretapping act can be found unless he intercepted the conversations "for the purpose of committing any criminal or tortious act."

Defendants argue that because Payne did not have the consent of the other parties to the conversations, his recording of the conversations violated § 45-8-213, M.C.A., and he cannot avail himself of the exception contained in § 2511(2)(d). However, the Court disagrees. Section 2511 is intended to prohibit the use of an intercepted conversation "in a manner in which the offending party had no right to proceed." Meredith v. Gavin, 446 F.2d 794, 799 (8th Cir.1971). "`It is the use of the interception with intent to harm rather than the fact of interception that is critical to liability . . . .'" Boddie v. American Broadcasting Companies, Inc., 881 F.2d 267, 270 (6th Cir.1989) (quoting By-Prod Corp. v. Armen-Berry Company, 668 F.2d 956, 960 (7th Cir.1982)); see also Park, 764 F.2d at 1066 (where Plaintiff's purpose for taping the telephone conversations was to preserve evidence for trial, he fell within the exception of § 2511(2)(d)); Moore v. Telfon Communications Corp., 589 F.2d 959, 966 (9th Cir.1978) ("Congress, we believe, intended to permit one party to record a conversation with another when the recorder is acting `out of a legitimate desire to protect himself.'"). Thus, the focus is not upon whether the interception itself violated another law; it is upon whether the purpose for the interception — its intended use — was criminal or tortious. To hold otherwise would result in the imposition of liability under the federal statute for something that is not...