Romano v. Terdik

• Decision Date: 16 August 1996
• Docket Number: Civil No. 5:92-cv-519 (WWE).
• Citation: 939 F. Supp. 144
• Parties: Joseph ROMANO, Eleanora Romano, Erika Terdik, and Andrea Terdik, v. Lesley TERDIK.
• Court: U.S. District Court — District of Connecticut

939 F. Supp. 144

Joseph ROMANO, Eleanora Romano, Erika Terdik, and Andrea Terdik, v. Lesley TERDIK.

Civil No. 5:92-cv-519 (WWE).

United States District Court, D. Connecticut.

August 16, 1996.

William J. Wenzel, Lori Ann Petruzzelli, Pullman & Comley, Bridgeport, CT, for Joseph Romano, Eleonora Romano, Erika Terdik, and Andrea Terdik.

John R. Williams, The Law Offices of John R. Williams, New Haven, CT, for Lesley Terdik.

RULING ON PLAINTIFFS' SECOND MOTION FOR PARTIAL SUMMARY JUDGMENT

EGINTON, Senior District Judge.

Plaintiffs brought this action pursuant to 18 U.S.C. § 2520 alleging unlawful interceptions of forty-nine wire and oral communications in violation of 18 U.S.C. § 2511. In a ruling dated November 17, 1995, plaintiffs' motion for partial summary judgment as to defendant's liability with respect to Counts One through Forty-Nine of the Amended Complaint was granted in plaintiffs' favor. Plaintiffs now move for partial summary judgment on damages pursuant to Fed. R.Civ.P. 56. They seek an award of statutory damages pursuant to 18 U.S.C. § 2520(c)(2)(B), and an award of attorney's fees and litigation costs pursuant to 18 U.S.C. § 2520(b)(3). For the following reasons, the motion will be granted in part and denied in part.

BACKGROUND

The pertinent undisputed facts as they were found in the ruling on plaintiffs' first motion for partial summary judgment follow. Defendant is the ex-husband of plaintiff Eleanora Romano, and the father of plaintiffs Andrea and Erika Terdik. Plaintiff Joseph Romano married Eleanora Romano in 1990. On November 1, 1991, two tape recorders were found in plaintiffs' basement by a telephone repairman. One recorder was connected to plaintiffs' telephone line. The other was connected to a microphone that ran from the recorder through a hole in the basement ceiling and into the bedroom of Erika and Andrea Terdik. Both recorders contained cassettes, and were self-activating and operational. Approximately 445 cassettes containing conversations between plaintiffs and other relatives, and other evidence were eventually seized from defendant's house.

On November 12, 1993, defendant was found guilty in this court of the unlawful interception of eleven conversations involving the Romanos pursuant to 18 U.S.C. § 2511(1)(a). U.S. v. Lesley Terdik, 5:92-cr-46 (EBB). This suit was filed on September 1, 1992. In a ruling dated November 17, 1995, this court granted plaintiffs' motion for summary judgment, and found defendant civilly liable pursuant to 18 U.S.C. § 2520 for the interception of ten of the conversations for which he was convicted as well as the interception of thirty nine additional conversations.

DISCUSSION

A motion for summary judgment may be granted where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The burden is on the moving party to demonstrate that no material facts are in dispute. Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir.1987). In determining whether a genuine factual issue exists, the court must resolve all ambiguities and draw all justifiable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-2514, 91 L.Ed.2d 202 (1986).

Damages Pursuant to 18 U.S.C. § 2520(c)(2)(B)

Section 2520 of Title 18 of the United States Code creates a cause of action for any person whose wire communications are intercepted in violation of the Omnibus Crime Control and Safe Streets Act of 1968 (the "Act"), 18 U.S.C. §§ 2510-2520. In 1986, the Act was amended by the Electronic Communications Privacy Act of 1986, Pub.L. 99-508, Title I, § 103, Oct. 21, 1986, 100 Stat. 1853. Prior to amendment, section 2520 provided, in pertinent part:

Any person whose wire or oral communication is intercepted ... in violation of this chapter shall ... (1) have a civil cause of action against any person who intercepts ... such communications, and (2) be entitled to recover from any such person —

(a) actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher....

18 U.S.C. § 2520 (1985) (emphasis added). Section 2520 now reads, in pertinent part:

(a) In general. — 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.

(b) Relief. — In an action under this section, appropriate relief includes —

(1) such preliminary and other equitable or declaratory relief as may be appropriate;

(2) damages under subsection (c) and punitive damages in appropriate cases; and

(3) a reasonable attorney's fee and other litigation costs reasonably incurred.

(c) Computation of damages. — (1) In any action under this section, if the conduct in violation of this chapter is the private viewing of a private satellite video communication ... the court shall assess damages as follows:

(A) If the person who engaged in that conduct has not been enjoined under section 2511(5) ... the court shall assess the greater of the sum of actual damages suffered by the plaintiff, or statutory damages of not less than $50 and not more than $100.

(B) If, on one prior occasion, the person who engaged in that conduct has been enjoined under section 2511(5) ... the court shall assess the greater of the sum of actual damages suffered by the plaintiff, or statutory damages of not less than $100 and not more than $1000.

(2) In any other action under this section, the court may assess as damages whichever is the greater of —

(A) the sum of the actual damages suffered by the plaintiff and any other profits made by the violator as a result of the violation; or

(B) statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000.

(d) Defense. — . . . .

(e) Limitation. — A civil action under this section may not be commenced later than two years after the date upon which the claimant first had a reasonable opportunity to discover the violation.

18 U.S.C. § 2520 (1996).

Plaintiffs contend that 18 U.S.C. § 2520(c)(2) mandates an award of statutory damages in the amount of $10,000 per intercepted conversation per plaintiff. In the alternative, they argue that even if the court has discretion in deciding whether a damage award is appropriate, damages should be awarded because defendant's violations were more than de minimis. Defendant argues that the question of whether damages should be awarded, and if so, the amount of those damages lies within the discretion of the jury.

The determination of whether 18 U.S.C. § 2520(c)(2) mandates an award of damages is a question of statutory interpretation and a legal issue that can be determined by summary judgment. Heublein, Inc. v. U.S., 996 F.2d 1455, 1461 (2d Cir. 1993). The Amended Complaint does not claim that defendant made a financial profit from the interceptions. Although it seeks an award for actual damages, plaintiffs move only for statutory damages. Actual damages pursuant to subsection 2520(c)(2)(A) are therefore presumably waived. Accordingly, the question before the court is whether statutory damages pursuant to subsection 2520(c)(2)(B) must be awarded, and if not, whether plaintiffs have met their burden to show a lack of genuine issue of material fact as to whether they should be awarded. This court finds in the negative as to the first question, and in the affirmative as to second question.

The only two federal circuit courts that have ruled on whether a district court must award damages pursuant to subsection 2520(c)(2) have reached opposite conclusions. The Seventh Circuit held that a court does not have the discretion to not award damages. Rodgers v. Wood, 910 F.2d 444, 448 (7th Cir.1990); see also Menda Biton v. Menda, 812 F.Supp. 283, 284 (D. Puerto Rico 1993). Its conclusion was based on the fact that the legislative history of the 1986 amendments to section 2520 do not explicitly explain why the word "may" was substituted for the former word "shall," and on the fact that Congress provided for a less severe penalty structure for certain violations in subsection 2520(c)(1). Rodgers v. Wood, 910 F.2d at 448.

The Fourth Circuit recently held that a district court has the discretion pursuant to 18 U.S.C. § 2520(c)(2) to not award any damages for a violation of the Act. Nalley v. Nalley, 53 F.3d 649, 653 (4th Cir.1995); see also Reynolds v. Spears, 857 F.Supp. 1341, 1348 (W.D.Ark.1994); Shaver v. Shaver, 799 F.Supp. 576, 580 (E.D.N.C.1992). The court found that Congressional intent to grant discretion to the courts was manifested by the fact that the statute itself uses the contrasting verbs "may" in subsection 2520(c)(2), and "shall" in subsection 2520(c)(1). It found further support in the fact that the 1986 amendments changed the verb from "shall" to "may" throughout most of section 2520, and found that the defendant had not demonstrated any Congressional intent that conflicted with that "clear" statutory language. Nalley v. Nalley, 53 F.3d at 651-52.

This court agrees with the approach of the Fourth Circuit and finds that the change in the statutory language wrought by the 1986 amendments, and the structure and language of section 2520 in its entirety demonstrates Congressional intent that the determination of whether to award damages pursuant to subsection 2520(c)(2) is within the court's discretion. To ascertain the meaning of statutory language, the inquiry begins with the language of the statute itself. U.S. v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989). The term "may" generally denotes a grant of...