Scheib v. Grant

• Decision Date: 11 February 1993
• Docket Number: No. 92 C 0513.,92 C 0513.
• Citation: 814 F. Supp. 736
• Parties: Lynn Ann SCHEIB, Benjamin Grosse, a minor, by Lynn Ann Scheib, his next friend, and Carl Scheib Plaintiffs, v. Joan C. GRANT, Burton F. Grant, and Dorothy B. Johnson, Defendants.
• Court: U.S. District Court — Northern District of Illinois

814 F. Supp. 736

Lynn Ann SCHEIB, Benjamin Grosse, a minor, by Lynn Ann Scheib, his next friend, and Carl Scheib Plaintiffs, v. Joan C. GRANT, Burton F. Grant, and Dorothy B. Johnson, Defendants.

No. 92 C 0513.

United States District Court, N.D. Illinois, E.D.

February 11, 1993.

Aaron S. Wolff, Chicago, IL, for plaintiffs.

George B. Collins, Collins & Bargione, Dorothy Bertram Johnson, Johnson and Associates, Chicago, IL, for defendants.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Plaintiffs Lynn Ann Scheib, Benjamin Grosse (a minor) and Carl Scheib bring this two-count complaint against Joan C. Grant, Burton F. Grant and Dorothy B. Johnson, alleging violations of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2521, and of the Illinois Eavesdropping Statute, Ill.Rev.Stat. ch. 38, ¶¶ 14-1 et seq. Presently before the court is Joan and Burton Grant's motion for summary judgment. For the reasons set forth below, we grant the Grants' motion for summary judgment. Additionally, we sua sponte grant summary judgment on behalf of defendant Dorothy B. Johnson.¹

I. Summary Judgment Standard

Under the Federal Rules of Civil Procedure, summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). This standard places the initial burden on the moving party to identify "those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (quoting Rule 56(c)). Once the moving party has done this, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(c). In deciding a motion for summary judgment, the court must read all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir.1991).

II. Background

This action stems from a removal and custody proceeding before Judge Moshe Jacobius of the Circuit Court of Cook County. After her divorce from James Grosse in 1982, plaintiff Lynn Scheib was granted sole custody of their son, Benjamin Grosse. In January of 1991, Lynn Scheib informed her former husband, James Grosse, that she intended to remarry and, consequently, planned to move their son Benjamin from Illinois to Pennsylvania. Recognizing the need to modify the existing visitation schedule, and hoping to avoid filing a formal removal petition, Lynn proposed to James terms for a new visitation schedule. However, neither James Grosse nor his attorneys, defendants Joan and Burton Grant, responded to Lynn's proffered resolution. Rather, on February 11, 1991, James Grosse filed in the Circuit Court of Cook County an emergency motion for injunctive relief, seeking to prohibit removal of Benjamin pending a proper removal proceeding. Subsequent to James Grosse's request for injunctive relief, Lynn filed a petition for removal. James countered with a motion to strike the petition and a cross petition for custody. Defendant Dorothy Johnson was appointed as Benjamin's guardian ad litem ("GAL") in connection with the custody and removal proceeding.

After lengthy negotiation, the parties reached a global settlement, such agreement reduced to writing and signed by all parties on June 19, 1991. However, rather than immediately entering judgment based on the settlement agreement, Judge Jacobius scheduled a prove-up hearing. In the interim and pursuant to the settlement agreement, Lynn Scheib left Illinois for Pennsylvania. Benjamin remained in Illinois with James Grosse, with whom Benjamin was scheduled to reside until approximately August 5, 1991.

During his residence with his father, Benjamin received calls from, and placed calls to, his mother, Lynn Scheib. In at least 60 to 75% of these conversations, Benjamin used a cordless phone in James Grosse's house. At the time, James Grosse had three telephones in his home. According to James, Benjamin became very upset after several conversations with his mother. Thus, using a telephone answering machine attached to an extension phone, James Grosse recorded at least two conversations between Benjamin and Lynn. James Grosse did not overhear these conversations at the time they occurred, but subsequently heard their content by listening to the recordings after the fact. Claiming that the tapes prove that Lynn Scheib was the cause of Benjamin's emotional distress, James Grosse took the tapes to Joan Grant for legal advice. After listening to the tapes, Joan Grant purportedly formed the opinion that Benjamin's welfare was in jeopardy. As such, she promptly informed Benjamin's GAL, Dorothy Johnson, of the tapes' content.

On July 24, 1991, Lynn Scheib filed a motion in limine in the Circuit Court of Cook County to prevent James Grosse, his attorneys and the GAL from introducing the tape recordings at the prove-up hearing. The Grants, as attorneys for James Grosse and the GAL opposed the motion and vigorously sought to have the tapes allowed into evidence. Prior to, and in connection with, the motion in limine, the Grants and Dorothy Johnson disclosed alleged portions of the tape recordings to each other, to other persons and to Judge Moshe Jacobius. On August 2, 1991, Judge Jacobius granted the motion in limine, seemingly on the basis that the recordings violated the Illinois Eavesdropping Statute. However, the ruling was never incorporated into a formal written order, as the parties had reached settlement regarding the underlying case. On August 5, 1991, Judge Jacobius entered an agreed order, retroactive to June 19, 1991, resolving all underlying issues in the custody and removal action. Before entering this order, Judge Jacobius conducted a prove-up hearing, at which Lynn Scheib was asked and answered:

Q. One more just to make it crystal clear. You have no intention of today or in the future doing anything or having anyone on your behalf do anything to criminally or civilly prosecute Mr. Grosse for any alleged matters in connection with any tape recordings that may have been made as a result of these proceedings?

A. No. I'm not going to prosecute Jim.

Q. And you don't intend to have anyone else prosecute him. Is that your intention?

A. Nobody is going to prosecute Jim.

True to her word, Lynn Scheib did not "prosecute" James Grosse in connection with the tape-recorded conversations. Rather, she, Benjamin Grosse and Carl Scheib filed this civil action against James Grosse's attorneys, Joan and Burton Grant, and Dorothy Johnson, alleging violations of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"), 18 U.S.C. §§ 2510-2521, and of the Illinois Eavesdropping Statute, Ill.Rev.Stat. ch. 38, ¶¶ 14-1 et seq.

III. Discussion

A. Title III

Title III prohibits any person from "intentionally disclosinging, or endeavoring to disclose, to any other person 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." 18 U.S.C. § 2511(1)(c) (Supp.1992). A civil cause of action is provided under 18 U.S.C. § 2520, which states in part: "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."

Portraying the recorded conversations as "interspousal wiretaps," plaintiffs contend that Title III provides them with a federal remedy against the Grants and Johnson. Indeed, the majority of courts addressing the issue have held that, in the absence of an explicit exception for electronic surveillance by one spouse directed against another, Title III reaches interspousal wiretapping. See Heggy v. Heggy, 944 F.2d 1537, 1538-41 (10th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1514, 117 L.Ed.2d 651 (1992); Kempf v. Kempf, 868 F.2d 970, 973 (8th Cir.1989); Pritchard v. Pritchard, 732 F.2d 372, 374 (4th Cir.1984); United States v. Jones, 542 F.2d 661, 673 (6th Cir.1976); Heyman v. Heyman, 548 F.Supp. 1041, 1044-47 (N.D.Ill.1982). But see Simpson v. Simpson, 490 F.2d 803, 810 (5th Cir.), cert. denied, 419 U.S. 897, 95 S.Ct. 176, 42 L.Ed.2d 141 (1974). However, the undisputed facts set forth in the instant case portray a situation distinguishable from the typical case of interspousal wiretapping. Rather than electronic surveillance directed by one spouse at another, we are confronted with a parent who recorded the conversations of a minor child while that child resided in the parent's home. Benjamin, of course, was not talking to himself on the telephone. Nonetheless, the mere fact that the taped conversations were between Benjamin and his mother, James Grosse's former spouse, does not alter the complexion of James Grosse's actions.

We have been able to locate, and the parties have cited, only two cases in which the present situation was confronted. See Newcomb v. Ingle, 944 F.2d 1534 (10th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 903, 116 L.Ed.2d 804 (1992); Anonymous v. Anonymous, 558 F.2d 677, 679 (2d Cir.1977). The courts in both Newcomb and Anonymous addressed the following issue: Does Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, apply to situations where a parent intercepts a minor child's telephone conversation via an extension phone within the family home. Newcomb, 944 F.2d at 1535; Anonymous, 558 F.2d at...