Rosenfeld v. Lenich

Decision Date01 March 2019
Docket Number17-CV-7299 (NGG) (PK)
Citation370 F.Supp.3d 335
Parties Stephanie ROSENFELD, Plaintiff, v. Tara LENICH; City of New York; Lu-Shawn M. Thompson, as Administrator of Estate of Kenneth P. Thompson; Eric Gonzalez ; William Schaefer; Brian Donahue; and John/Jane Does 1-10, Defendants.
CourtU.S. District Court — Eastern District of New York

Jessica Clarke, Samuel Shapiro, Richard D. Emery, Emery Celli Brinckerhoff & Abady LLP, New York, NY, for Plaintiff.

Eric M. Creizman, Jonathan A. Sorkowitz, Pierce Bainbridge Beck Price & Hecht LLP, Morris J. Fodeman, Wilson Sonsini Goodrich & Rosati PC, Jeffrey Oliver Newton, Kobre & Kim, Ashley Rebecca Garman, New York City Law Department Office of Corporation Counsel Office of Corporation Counsel, Glenn A. Jacobson, James Edward Kimmel, Leonard G. Kamlet, Thomas Robert Maeglin, Abrams, Gorelick, Friedman & Jacobson, P.C., Joshua J. Lax, N.Y.C. Law Department, New York, NY, for Defendants.


NICHOLAS G. GARAUFIS, United States District Judge

Plaintiff Stephanie Rosenfeld brings this action under the Electronic Communications Privacy Act ("ECPA"), 18 U.S.C. §§ 2510 et seq. and 2701 et seq., 42 U.S.C. § 1983, and certain state tort laws against Defendants Tara Lenich, the City of New York ("the City"), Lu-Shawn M. Thompson (as administrator of the estate of Kenneth P. Thompson), Eric Gonzalez, William Schaefer, Brian Donohue,1 and John/Jane Does 1-10. (Am. Compl. ("FAC") (Dkt. 11) ¶¶ 98-133.)

Defendants the City, Thompson, Gonzalez, Schaeffer, and Donohue (the "City Defendants") now move to dismiss the complaint2 pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Mot. to Dismiss (Dkt. 62); Mem. in Supp. of Mot. to Dismiss ("Mem.") (Dkt. 64).) For the reasons that follow, the City Defendants' motion is GRANTED in part and DENIED in part.

A. Facts

The following facts are drawn from Plaintiff's complaint and are assumed to be true for purposes of the motion to dismiss.

Plaintiff joined the Kings County District Attorney's Office ("KCDA") as an Assistant District Attorney ("ADA") in January 2006. (FAC ¶ 20.) She worked with Lenich in KCDA's "Red Zone Trial Bureau," a general practice bureau, from approximately 2007 until 2012, when Lenich transferred to the Special Investigations Bureau. (Id. ¶ 23.) Plaintiff was transferred to the KCDA School Advocacy Bureau in July 2016, where she remained until she left KCDA in May 2017. (Id. ¶ 24.)

From 2014 until his death on October 9, 2016, Thompson served as the District Attorney for Kings County, and Gonzalez served as the Deputy District Attorney. (Id. ¶¶ 8-9.) Since October 9, 2016, Gonzalez has served as the District Attorney. (Id. ¶ 9.) At all relevant times, Schaeffer was an Executive Bureau Chief and Donohue was an Assistant Deputy Chief Investigator, both within KCDA. (Id. ¶¶ 10-11.) John/Jane Does 1-5 are alleged to have been employees of KCDA with responsibility for setting and implementing KCDA policy with respect to overseeing wiretap operations. (Id. ¶ 12.) John/Jane Does 6-10 are alleged to have been employees of KCDA who used and/or disclosed Plaintiff's private communications knowing that they were unlawfully obtained. (Id. ¶ 13.)

From May 2015 through November 28, 2016, Lenich was the Deputy Bureau Chief in charge of Special Investigations at KCDA. (Id. ¶ 25.) Plaintiff alleges the following upon information and belief: Lenich reported to Schaeffer, but had the authority to report and make requests directly to the District Attorney (id. ¶¶ 26-27); Schaeffer, Thompson, and later Gonzalez were responsible for supervising Lenich and overseeing the investigations she was conducting and overseeing (id. ¶ 28); Lenich supervised between two and six ADAs as well as the KCDA wire room staff, which included KCDA employees and members of the New York City Police Department (id. ¶¶ 29-30); Lenich had the authority to set KCDA policy with respect to the operation of a wiretap, the oversight of wiretaps, the documentation required when conducting wiretaps, and reporting requirements of individuals working in the wire room (id. ¶ 32); and Lenich had final decision-making authority within KCDA over whether to seek a wiretap, how a wiretap was set up, and the operation of a wiretap (id. ¶ 33).

Plaintiff alleges that in order to conduct a wiretap, ADAs at KCDA were required to file a wiretap application with a court, along with an affidavit demonstrating the requisite probable cause. (Id. ¶ 34.) Pursuant to KCDA policy, a supervisor, such as Lenich, was required to approve these wiretap applications. (Id. ¶ 35.) Plaintiff alleges upon information and belief that once an order authorizing a wiretap is signed and sealed by a court, it is given to Donohue, who is responsible for ensuring that the order has all necessary signatures and a raised judicial seal and for setting up the wiretap in the KCDA wire room. (Id. ¶¶ 36-37.) She also alleges upon information and belief that all KCDA wiretaps must be conducted out of the KCDA wire room (id. ¶ 38), and that KCDA policy did not permit wiretaps to be conducted using personal laptops (id. ¶ 39). Finally, she alleges upon information and belief that a wiretap order typically authorizes a minimum of two ADAs, as well as all supervisors above them, to review the intercepted communications. (Id. ¶ 40.) Only the individuals named in an authorizing order are permitted to review the communications intercepted pursuant to that order. (Id. )

Plaintiff further alleges upon information and belief that Lenich used KCDA equipment and facilities to intercept, record, and review the oral and electronic communications sent to and/or from Plaintiff's cell phone. (Id. ¶ 58.) Specifically, between approximately June 2015 and December 2015, Lenich intercepted and recorded communications sent to and from Plaintiff's private cell phone. (Id. ¶ 41.) To do so, Lenich forged the signature of New York State Supreme Court Justices on documents purporting to be judicial wiretap orders. (Id. ¶ 42.) Plaintiff alleges upon information and belief that Lenich showed these forged orders, none of which had raised judicial seals, to Donohue, who reviewed and accepted them. (Id. ¶¶ 43-44.) Plaintiff also alleges upon information and belief that Lenich and/or Donohue sent seven forged orders (or caused them to be sent) to Plaintiff's cell phone provider to allow for the interception and recording of the communications transmitted to and from Plaintiff's private cell phone. (Id. ¶¶ 45-46.) Lenich recorded and reviewed Plaintiff's private conversations with friends and family, none of whom consented to having those communications intercepted or recorded. (Id. ¶¶ 47-50.) In or about and between May 2015 and November 2016, Lenich also forged multiple search warrants authorizing the seizure of text messages sent to and from Plaintiff's cell phone. (Id. ¶ 51.) Plaintiff alleges upon information and belief that Lenich used the forged search warrants to obtain and review text messages sent to and from Plaintiff's cell phone. (Id. ¶ 52.)

Plaintiff also alleges upon information and belief that Lenich used information contained in Plaintiff's communications to harass and/or direct others to harass Plaintiff and her family and "alienate affections." (Id. ¶ 53.)

From August 2015 through November 2016, Lenich also used forged court orders and other documents to intercept and record oral and electronic communications from another cell phone not belonging to Plaintiff. (Id. ¶ 54.) The communications intercepted from this other phone included communications sent to and/or from Plaintiff. (Id. ¶ 55.) Plaintiff did not authorize the interception of such communications. (Id. ¶ 56.)

Upon information and belief, Plaintiff alleges that Defendants Thompson, Gonzalez, Schaeffer, and John/Jane Does 1-5 knew or should have known that Lenich was conducting an unlawful wiretapping scheme because Lenich submitted forged judicial orders to Donohue, these forged orders were stored in KCDA, she used KCDA equipment and facilities to conduct her operation, she claimed she was conducting a confidential law enforcement investigation that did not exist, and she needed the assistance of other KCDA employees to conduct this wiretapping operation. (Id. ¶ 63.) Plaintiff alleges upon information and belief that Lenich told other KCDA employees that the wiretapping operation against Plaintiff was part of a confidential law enforcement investigation, which was not true. (Id. ¶¶ 59-60.) Plaintiff alleges that Schaeffer, Thompson, and Gonzalez knew that Lenich was not conducting any law enforcement operation against Plaintiff and that they were responsible for knowing what investigations Lenich was conducting at all times. (Id. ¶¶ 61-62.)

Plaintiff also alleges upon information and belief that Lenich was the subject of multiple EEOC complaints concerning her allegedly erratic and aggressive behavior from fellow ADAs during this period, and that Lenich was ordered to undergo sensitivity training. (Id. ¶ 64.) Plaintiff alleges that these complaints and training alerted or should have alerted the Supervisory Defendants to monitor Lenich more closely. (Id. ¶ 65.) Plaintiff further alleges that the Supervisory Defendants' "deliberate indifference" to Lenich's misconduct violated Section 3-1.3 of the National Prosecution Standards, Third Edition, issued by the National District Attorneys Organization, which requires prosecutors who become aware that "evidence has been illegally obtained" to "take affirmative steps to investigate and remediate such problems." (Id. ¶ 67.) Plaintiff also alleges that their behavior violated Section 2.12(f) of the American Bar Association's Standards on Prosecutorial Investigations, which states that prosecutors need to stay informed about the activities of personnel using electronic surveillance and ensure that required procedures are being followed. (Id. )

On or around November 28, 2016, KCDA filed a criminal complaint in Kings County...

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