Scutieri v. Estate of Revitz

• Decision Date: 12 April 1988
• Docket Number: No. 84-2303-CIV,83-2432-CIV.,84-2303-CIV
• Citation: 683 F. Supp. 795
• Parties: Philip J. SCUTIERI, Jr., et al., Plaintiffs, v. ESTATE OF Philip REVITZ, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

683 F. Supp. 795

Philip J. SCUTIERI, Jr., et al., Plaintiffs, v. ESTATE OF Philip REVITZ, et al., Defendants.

Nos. 84-2303-CIV, 83-2432-CIV.

United States District Court, S.D. Florida.

April 12, 1988.

COPYRIGHT MATERIAL OMITTED

James Gilbride, Gilbride, Heller & Brown, P.A., Miami, Fla., for plaintiffs.

Jay A. Hershoff, Hershoff and Levy, P.A., Alvin Davis, Steel, Hector & Davis, Robert C. Josefsberg, Andrew C. Hall, Hall, O'Brien & Anderson, Vance Salter, Coll, Davidson, Carter, Smith, Salter & Barkett, Miami, Fla., for defendants.

ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

HOEVELER, District Judge.

THIS CAUSE came for consideration upon two motions filed by the various Defendants in this case for summary judgment under Fed.R.Civ.P. 56. The first motion was filed by Defendants, Southeast Bank, N.A. ("Southeast"), D.R. Mead, Jr. ("Mead"), G.R. Bruce Walker, Jr. ("Walker"), William Hopkins ("Hopkins"), William McMillan ("McMillan"), and J.C. Heath ("Heath"; these six Defendants are referred to collectively as the "Southeast Defendants"). The second motion was filed by Defendants, Winifred Paige ("Paige"), Luis Fernandez ("Fernandez"), and Furns Electronic Security Contractors, Inc. ("Furns"). The court will consider these motions separately as they pertain to each count in Plaintiff's complaint.

Summary judgment is appropriate only where there is no genuine issue as to any material fact, and where the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). A party who moves for summary judgment bears the exacting burden of demonstrating that there are no genuine disputes as to any material fact in the case. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). In determining whether the movant has met this burden, the court must view the evidence and all factual inferences permissable in the light most favorable to the party opposing the motion Environmental Defense Fund v. Marsh, 651 F.2d 983, 991 (5th Cir.1981). However, the non-moving party cannot rest upon mere allegations, but must rebut any facts properly presented by the moving party through affidavits or other evidence demonstrating the existence of a genuine and material issue of fact for trial. Adickes, 398 U.S. at 155, 90 S.Ct. 1607. Moreover, summary judgment is mandated if, after adequate time for discovery, the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 321, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273 (1986).

Count I: Secrecy of Communications Claim (18 U.S.C. § 2511)

Southeast Defendants and Defendants Paige, Fernandez, and Furns both move for summary judgment as to this count on two grounds: (1) that there is no evidence whatsoever to support this charge; and (2) this claim is untimely under the statute of limitations. With respect to the first ground upon which these Defendants seek summary judgment, Plaintiffs raise the following facts supported by deposition testimony which they claim are sufficient to withstand summary judgment:

(A) Mead, who was Senior Vice-President of Southeast and head of its real estate banking department in November, 1979, told Scutieri in May, 1980 that the Bank was "going to foreclose" against Scutieri and that he was "going to crush him like a bug."

(B) Mead met privately with Phillip Revitz ("Revitz"), the receiver, before and after Revitz's appointment.

(C) In July or August of 1980, Revitz hired Alcides Marquez, Fernandez, and Furns to repair the communication system at the Sunrise Club ("Club") where Scutieri resided.

(D) Marquez and Fernandez asked Jorge Smith, an ex-bugging device manufacturer, how to bug a telephone and later admitted to Smith that they had found someone else to show them how to do it and wouldn't need Smith's assistance.

(E) Duriel Paige, who had the only control key to change the cylinders in the apartment locks of the Club, changed the lock in Apt. 101A and kept the only key.

(F) Duriel Paige told a Club guard that "we have a device on Simmons' telephone" in Apt. 401A, where Scutieri also resided.

(G) Revitz and Duriel Paige drove into the Sunrise Club in Revitz's car and Paige told a Club security guard "Me and Revitz just took the tapes and documents to the Bank."

(H) Winifred Paige told Daniel Feldman that she broke into Scutieri's office trailer and took some ledger sheets, which she was going to deliver to the Bank and Vance Salter.

(I) On April 3, 1981, a Southern Bell employee on a routine service call found an illegal cross-wire in building A's telephone block connecting apt. 401A with 101A, which effectively created in 101A an extension of the phones in 401A.

(J) In sworn answers to the Sunrise Club's 1985 interrogatories requesting Southeast to identify and describe all telephone and oral conversations between Southeast and Duriel and Winifred Paige, Southeast denied any contact. Yet, it is now undisputed that Southeast is paying for the defense of all co-defendants in this case.

Plaintiff's Consolidated Response, p. 1-16.

To rebut Plaintiffs' allegations, the Defendants offer affidavits of the individual defendants, each of which denies personal involvement in the alleged wiretapping. Defendants also offer a letter from the U.S. Attorney's office in which the Assistant U.S. Attorney, who considered the allegations made by Scutieri in deciding whether to initiate a criminal investigation, ultimately concluded that the alleged activities did not constitute extortion or fraud. However, the court notes that the Assistant U.S. Attorney specifically stated that the decision to decline to investigate was taken "because the evidence adduced to date is seen as not rising to the level of `proof beyond a reasonable doubt'." Southeast Defendants' Motion for Summary Judgment, Exhibit L. Given the lesser standard for recovery which applies in civil cases such as this one, the decision of U.S. Attorney's Office and the affidavits supplied by the individual Defendants, at most, create a genuine issue of material fact which precludes summary judgment on this count. Plaintiffs have presented sufficient evidence to preclude the conclusion that Plaintiff has not presented any material issues of fact on the points in question.

The second ground upon which both groups of Defendants move for summary judgment is based on a statute of limitations defense. Defendants argue that in 1986 the companion civil damage provision to 18 U.S.C. § 2511 (18 U.S.C. § 2520) was amended to require that a civil action be commenced within two years of the claimant's discovery of the alleged violation. 18 U.S.C. § 2520(e); Publ.L. 99-508, Section 103. Defendants further contend that this statute applies retrospectively to bar Plaintiffs' claim because Florida law holds that an amendment to a penal, procedural, or remedial statute is applied retrospectively. However, as a matter of Federal and Florida law, a statute is presumed to operate prospectively in the absence of a clear statement to the contrary by the legislature. Fordham v. Belcher Towing Co., 710 F.2d 709 (11th Cir.1983); State v. Lavazzoli, 434 So.2d 321, 323 (1983). In the present action, the wiretapping occurred in the summer of 1980, and this suit was filed within four years. The amendment imposing a two-year statute of limitations was not enacted until 1986. The court notes that not only does this act not purport to operate retrospectively, but, the act provides that "amendments by this act are effective 90 days after enactment." Publ.L. 99-508, Section 111. Without a clear statement indicating the legislature intended to apply the new two-year statute of limitations retrospectively, the court will not apply the 1986 amendment to 18 U.S.C. § 2511 retrospectively to bar Plaintiffs' claim, especially where this claim was timely filed under the then-existing statute of limitations.

Based on the aforesaid reasons, the Southeast Defendants' and Defendants Paige, Fernandez, and Furns' motions for summary judgment are DENIED with respect to Count I of Plaintiffs' complaint.

Count IV: Florida Privacy of Communications Claim (Fla.Stat. § 934.10)

The parties agree that this statute is modeled after 18 U.S.C. § 2511 and that a four-year statute of limitations applies. Because a four-year statute of limitations applies, Defendants raise no statute of limitation bar with respect to this count. The only ground for summary judgment presented is the same insufficiency of evidence argument which was raised and discussed above. Thus, based on the court's consideration of the evidence as to Count I of Plaintiffs' complaint, the Southeast Defendants' and Defendants Paige, Fernandez, and Furns' motions for summary judgment are DENIED with respect to Count IV of Plaintiffs' complaint.

Count III: Civil Rights Claim (42 U.S.C. § 1983)

Both groups of Defendants argue that summary judgment is proper with respect to Plaintiffs' claim under 42 U.S.C. § 1983 because this statute has a four year statute of limitations which precludes any consideration of matters that occurred before September 26, 1980. See, Schaefer v. Stack, 641 F.2d 227, 228 (5th Cir.1981). While the applicable statute of limitations in this case is four years, this period does not begin running until the Plaintiffs knew or had reason to know of the events and injury which are the bases for their action as well as who inflicted that injury. Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir.1987); Levellee v. Listi, 611 F.2d 1129, 1131 (5th Cir.1980); see, Schaefer, at 228. In opposition to summary judgment on this count, Plaintiffs claim that they did not discover their cause of action and/or the identity of the perpetrators until after years of investigation and then brought this action within four years of acquiring that knowledge. The...