PBA Local No. 38 v. Woodbridge Police Dept.

• Decision Date: 09 September 1993
• Docket Number: Civ. A. No. 89-3314 (MTB).
• Citation: 832 F. Supp. 808
• Parties: PBA LOCAL NO. 38, et al., Plaintiffs, v. The WOODBRIDGE POLICE DEPARTMENT, The Township of Woodbridge, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

832 F. Supp. 808

PBA LOCAL NO. 38, et al., Plaintiffs, v. The WOODBRIDGE POLICE DEPARTMENT, The Township of Woodbridge, et al., Defendants.

Civ. A. No. 89-3314 (MTB).

United States District Court, D. New Jersey.

September 9, 1993.

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Smith, Mullin & Kiernan by Nancy Erika Smith, Kyle M. Francis, West Orange, NJ, for plaintiffs.

Weiner Lesniak by Richard L. Rudin, Roseland, NJ, for defendants Tp. of Woodbridge Police Dept. and Tp. of Woodbridge.

Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl by Anthony M. Campisano, Rosalind Westlake, North Brunswick, NJ, for defendant Joseph Galassi.

Dwyer Connell & Lisbona by William T. Connell, Thomas R. Walters, Montclair, NJ, for defendant Walter Zirpolo.

Mary B. Rogers, Newark, NJ, for defendant New Jersey Bell.

Palmisano & Goodman by Joseph Ricigliano, Jr., Woodbridge, NJ, for defendant Anthony O'Brien.

OPINION

BARRY, District Judge.

I. Introduction

Plaintiffs, PBA Local No. 38 and certain current and former police officers of the Township of Woodbridge, bring this action against the Woodbridge Police Department and the Township of Woodbridge (together "the Woodbridge defendants"), the former and current Police Directors, the former Mayor of the Township of Woodbridge, and New Jersey Bell Telephone Company ("NJB"). Plaintiffs allege that electronic listening and taping devices were surreptitiously placed in certain areas of police headquarters and on the building's phone lines. As a result, they allege, their private conversations were unlawfully intercepted. Specifically, plaintiffs bring six separate claims: (1) violation of 42 U.S.C. § 1983 in that the surveillance was under color of state law and in violation of their constitutional right to privacy under the Fourth, Fourteenth, First, and Ninth Amendments (First Count); (2) violation of the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 et seq. ("New Jersey Wiretap Act") (Second Count); violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986, Pub.L. No. 99-508, 100 Stat. 1848 (1986), 18 U.S.C. §§ 2510-20 ("Federal Wiretap Act") (Third Count); conspiracy to violate federal statutory and constitutional rights pursuant to 42 U.S.C. §§ 1983 and 1985 (Fourth Count);¹ violation of their right to privacy under the New Jersey Constitution and New Jersey common law (Fifth Count); and "intrusion upon seclusion" (Sixth Count). Now before the court are numerous motions for summary judgment by defendants on various grounds and plaintiffs' motion for leave to file a fourth amended complaint. For the reasons which follow, defendants' motions will be granted in part and denied in part and plaintiffs' motion will be denied.

II. Procedural History and Factual Background

Much of the relevant factual background is set forth in the court's opinion denying plaintiffs' motion for class certification and defendants' motion to dismiss. See PBA Local No. 38 v. Woodbridge Police Department, 134 F.R.D. 96, 97-99 (D.N.J.1991). Because certain aspects of the case have changed since that opinion was issued, however, the court will briefly set forth the parties and the facts relevant to these motions.

A. The Parties

Plaintiff PBA Local No. 38 is the collective bargaining representative of the officers employed at the Woodbridge Police Department. The remaining plaintiffs are sixteen current or former officers employed by the Department — Joseph Festa, William Matelski, Thomas Polhamus, Richard Bernat, George Conklin, Thomas Barajas, Robert Barajas, David Whitaker, Patrick Donnelly, John Trainor, John Schreck, James Kirby, Robert Hodes, Ronald Nier, and Joseph Covino.² See October 16, 1991 Order of the Hon. Stanley R. Chesler, U.S.M.J. (permitting amendment of the complaint to add these plaintiffs).

Defendant Joseph Galassi served as Director of the Woodbridge Police Department from 1963 to 1984. Final Pretrial Order Stipulation of Facts (hereinafter "Stip.") ¶ 1. Defendant Anthony O'Brien became a Woodbridge Police Officer in 1957 and worked his way up through the ranks, eventually succeeding Galassi as Director of Police in 1984. Id. ¶¶ 8-15. Defendant Walter Zirpolo, now deceased, served as Mayor of Woodbridge from 1962 to 1967. Zirpolo hired Galassi as Director of Police during his tenure as Mayor. Id. ¶ 7. Defendant NJB is a regulated public utility and a communication common carrier. Id. ¶ 6. NJB installed certain equipment in the Woodbridge Police Department station house.³

B. Procedural History

Plaintiffs filed a complaint in the Superior Court of New Jersey on May 3, 1988. The Hon. Robert A. Longhi, J.S.C., initially denied class certification but later vacated that ruling and certified a class action. The state court action was, nonetheless, subsequently dismissed without prejudice. Plaintiffs filed a complaint in this court in August, 1989 on behalf of a class comprised of all persons who worked as police officers for the Woodbridge Police Department from 1964 to 1985 and their families and associates who visited or telephoned the station house during that time. In its previous opinion, the court denied plaintiffs' motion to certify the class. PBA Local No. 38, 134 F.R.D. at 102. Moreover, the court made clear at that time what was required for an individual plaintiff to have standing: "At a minimum, a named plaintiff must demonstrate the actual interception of at least one of his or her conversations before there can be a justiciable controversy within the meaning of Article III. Where there has been no interception, there can have been no injury." Id. at 100-01.

Subsequent to the denial of class certification, plaintiffs moved to amend the complaint to join 233 other individuals as plaintiffs in the action. Consistent with this court's prior ruling, Magistrate Judge Chesler granted the motion in part and denied it in part, permitting the complaint to be amended to include as plaintiffs the sixteen individuals who were able to demonstrate that they had at least one conversation intercepted. See Order dated October 16, 1991. Discovery has been completed and, defendants' dispositive motions and plaintiffs' motion for leave to file a fourth amended complaint aside, the case is ready for trial. The court notes, however, that although trial there will be, it has grave doubts that even if some or all of the plaintiffs who go to trial prevail on the merits, other than the most minimal damages can be proven.

C. Factual Background

The general factual background of this litigation is set forth in the court's previous opinion. Specific factual arguments and evidence relating to specific claims or specific defendants will be discussed in the context of the court's legal analysis of these motions.

III. Defendants' Motions

The motions for summary judgment present a complex web of legal arguments and factual references. There are five separate defendants moving for summary judgment on some or all of the six counts of the third amended complaint. While some arguments are made by more than one defendant or are joined post hoc by other defendants, there are numerous arguments which apply to one defendant alone, one or a few plaintiffs, or only one or a few of the counts of the complaint.

A. Statute of Limitations

In its previous opinion, the court noted that because the accrual of the statute of limitations as to each plaintiff will depend on an individualized determination as to when he became aware of both the fact of injury and the causal connection to one or more of the defendants, statute of limitations issues could not be resolved on class-wide basis. PBA Local No. 38, 134 F.R.D. at 106. Finding defendants' evidence regarding the statute of limitations inconclusive at that juncture, the court invited a renewed motion on statute of limitations grounds "should additional discovery clarify what is now unclear." Id.

NJB, joined by Galassi, O'Brien, and Zirpolo, now argues that plaintiffs' claims are barred on statute of limitations grounds. The Woodbridge defendants renew the statute of limitations argument only with respect to plaintiff PBA Local No. 38. All defendants' arguments must fail. Plaintiffs do not dispute that all their claims are subject to a two-year statute of limitations, whether under federal law or state law. See Wilson v. Garcia, 471 U.S. 261, 280, 105 S.Ct. 1938, 1949, 85 L.Ed.2d 254 (1985) (state personal injury statute of limitations should be applied to § 1983 claims); 18 U.S.C. § 2520(e) (amendment to federal anti-wiretapping statute, effective January, 1987, setting a statutory two-year limitation period); Awbrey v. Great Atlantic & Pacific Tea Co., 505 F.Supp. 604, 607 (N.D.Ga.1980) (prior to amendment of Federal Wiretap Act, applying the state's two-year statute of limitations applicable to the tort of invasion of privacy); N.J.S.A. 2A:14-2 (general personal injury statute of limitations of two years). Plaintiffs filed their federal complaint on August 2, 1989. The question, then, is whether the court can determine as a matter of law that any or all of the plaintiffs' claims against defendants accrued prior to August 2, 1987.

NJB argues that the attorney for PBA Local No. 38, Raymond Gill, Esq., knew of the existence of a State Police report in December, 1986, that report put him on notice of plaintiffs' cause of action, and, thus, the cause of action should be deemed to have accrued as of that date and certainly no later than February 2, 1987, as evidenced by counsel's letter of that date to the New Jersey Attorney General's Office. Pl.Opp.Br., Exh.F. NJB suggests, moreover, that plaintiffs' cause of action could well have accrued on June 21, 1985, the date on which the State Police did a "sweep" of police headquarters. But NJB's statute...