Lewton v. Divingnzzo

772 F.Supp.2d 1046

William Duane LEWTON, personally, and as father and next friend of Ellenna M. Lewton, a minor child; Adrianne Stang, Jennifer Holtberg, Rob Formanek, Rita Watson and Tammy Jones, Plaintiffs,

v.Dianna DIVINGNZZO, Sam M. Divingnzzo, William Bianco, Christopher Perrone, and Bianco Perrone & Stroh, LLC, Defendants.

No. 8:09–cv–00002–FG3.

United States District Court, D. Nebraska.

Feb. 18, 2011.

Jill M. Mason, John A. Kinney, Kinney Law Firm, Omaha, NE, for Plaintiffs.Matthew S. Higgins, Matthew Higgins, Steven J. Lefler, Lefler, Kuehl Law Firm, Elizabeth A. Culhane, Rex A. Rezac, Fraser, Stryker Law Firm, Omaha, NE, for Defendants.

MEMORANDUM AND ORDER

F.A. GOSSETT, III, United States Magistrate Judge.

This matter is before the magistrate judge by consent of the parties, see 28 U.S.C. § 636(c), on the parties' cross-motions for summary judgment (Docs. 130, 133 and 135), discovery motions (Docs. 112 and 156) and plaintiffs' Motion in Limine (Doc. 115). The court has considered the parties' legal arguments, together with over 6,000 pages of their evidentiary submissions.

For the reasons discussed below, the court finds that defendants Dianna Divingnzzo, Sam M. Divingnzzo and William Bianco violated the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 2510 et seq. (the “Wiretap Act” or “Title III”). Dianna Divingnzzo and Sam M. Divingnzzo are liable to the plaintiffs for statutory damages on the Wiretap Act claims. The court declines to assess damages against William Bianco on the Wiretap Act claims.

Finally, the court declines to exercise supplemental jurisdiction over the plaintiff's state law claims.

I. BACKGROUND

The events giving rise to the plaintiffs' claims arose in conjunction with a dispute between William Duane (“Duke”) Lewton and his ex-wife, Dianna Divingnzzo, over the custody of their minor child, Ellenna Divingnzzo–Lewton. Shortly after the state court granted Duke the right to have unsupervised visits with Ellenna, Dianna inserted a recording device inside Ellenna's teddy bear and secretly intercepted communications between or among Ellenna and the plaintiffs, and/or between or among the plaintiffs themselves without Ellenna's participation. The recordings were made without the plaintiffs' knowledge or consent and occurred over a period of several months.

In May 2008, Dianna and her father, Sam Divingnzzo, presented the recordings to Dianna's attorney in a digital format, using CD–ROM data storage discs, for use as evidence in the custody dispute. Dianna's attorney had the recordings copied and transcribed, and supplied copies of the CDs and transcripts to Lewton's attorney and others involved in the state court case. The Sarpy County District Court held that the recordings were illegally obtained and were inadmissible. This federal lawsuit followed.

In the Amended Complaint, (Doc. 63), plaintiffs assert claims under the Federal Wiretap Act, see 18 U.S.C. §§ 2511 and 2520, together with state law claims for invasion of privacy, conspiracy to commit invasion of privacy, and violations of Neb.Rev.Stat. § 86–2,103.

All defendants deny liability. Defendants Bianco, Perrone and Bianco, Perrone & Stroh, LLC affirmatively allege they are immune from liability because they had a privilege to disclose or use the recordings in the context of their legal representation of Dianna Divingnzzo. Dianna Divingnzzo and her father, Sam Divingnzzo, affirmatively allege that they are immune from liability based on Dianna's legal responsibility to protect Ellenna.

II. JURISDICTION AND VENUE

Pursuant to 28 U.S.C. § 1331, this court has federal question jurisdiction over plaintiffs' Federal Wiretap Act claims. Venue in this district is proper under 28 U.S.C. § 1391. The court may exercise supplemental jurisdiction over plaintiffs' state law claims pursuant to 28 U.S.C. § 1367.

III. FINDINGS OF FACT

Plaintiff, William Duane (“Duke”) Lewton, and defendant, Dianna Divingnzzo, were married in 2001 and are the parents of Ellenna Divingnzzo–Lewton, born in September 2003. Duke and Dianna separated in December 2003. On May 12, 2004, the Sarpy County District Court entered a decree dissolving the marriage and awarding Dianna Divingnzzo the sole care, custody and control of the infant Ellenna, subject to Duke's rights of reasonable and liberal visitation.

In October 2007, Duke filed a proceeding (the “Custody Case”) in the Sarpy County District Court to modify the dissolution decree to award him custody of Ellenna. In response, Dianna alleged that Duke abused drugs and alcohol and was abusive toward Ellenna.

Defendants William Bianco and Christopher Perrone are attorneys and were principals of the defendant law firm, Bianco Perrone & Stroh, LLC. Mr. Bianco was retained in the fall of 2007 to represent Dianna Divingnzzo in the Custody Case. Mr. Perrone had a couple abstract discussions with Mr. Bianco in May 2008 concerning the Divingnzzos' activities, but he did not represent either of the Divingnzzos and did not ever give the Divingnzzos any legal advice about anything.

Defendant, Sam M. Divingnzzo, is the biological father of Dianna Divingnzzo. He paid for Bianco's fees, and was present during several meetings between Dianna and Bianco.

In the Custody Case, the state district court awarded Duke unsupervised parenting time with Ellenna, to commence in January 2008. In late December 2007 or early January 2008, prior to the first unsupervised visit, Dianna inserted a recording device in Ellenna's favorite toy, a teddy bear (“Little Bear”), so that Dianna could record Ellenna's time alone with Duke. She had purchased the device “online” in December 2007 with the intention of placing it in Little Bear. Dianna personally told Duke that Ellenna was insecure without her teddy bear and needed to take Little Bear everywhere she went. Dianna's attorney, Bianco, also informed Duke's attorney, C.G. Jolly, that Ellenna would need to take Little Bear everywhere she went.

During her deposition, Dianna admitted that she placed the recording device in Little Bear. She maintained that Duke was physically and verbally abusive ¹ to Ellenna and stated that Duke only wanted visitation rights to mess up her and Ellenna's lives. In December 2007, Dianna unstitched part of the bear, inserted the recording device, and never took it out except for when she washed the toy. The device was not voice activated, and “recorded from beginning to end.” (Depo. of Dianna Divingnzzo, 148:7–17). Dianna transferred the information from the recording device to her computer by undoing a few stitches and using a USB port.

From January 2008 through May 14, 2008, the eavesdropping device hidden in Little Bear recorded Duke's visits with Ellenna, and any other events that transpired in the toy's presence. After each visit between Ellenna and Duke, Dianna downloaded the data from the recording device to her home computer. In May 2008, in anticipation of a court hearing in the Custody Case, Dianna copied the recordings to compact discs (CDs) and gave the CDs to her father, Sam Divingnzzo, so he could transcribe them. Sam Divingnzzo listened to the CDs and transcribed the recordings.

Dianna disclosed the recordings to her attorney, William Bianco, in May 2008. On May 30, 2008, Sam Divingnzzo signed a sworn affidavit for use in the Custody Case stating that he, along with Dianna, had a digital recording device placed in Ellenna's toy without Ellenna's knowledge and without the knowledge and/or consent of Dianna's attorney. During his deposition taken March 11, 2010, however, Sam Divingnzzo denied knowing of the recording device until Dianna presented him with the CDs and asked him to transcribe the conversations. Divingnzzo later maintained that he signed the affidavit without reading it. The individual who notarized the affidavit, however, testified that she gave Sam Divingnzzo the entire document and asked him to read it before he signed it.

Dianna Divingnzzo selected the conversations that were transferred from her computer to CD ². Sam Divingnzzo testified at his deposition that he did not know why Dianna planted the eavesdropping device in Little Bear, did not know when it was planted or removed, and that he was not involved in the destruction of the device. It took almost 3 weeks for Sam to transcribe the recordings. He recognized some of the voices in the recordings, was able to otherwise identify the people who were recorded, and did not have any fears or concerns about the legality of his actions. He printed at least two copies of the transcriptions on his home computer and gave them to Mr. Bianco. Dianna made extra copies of the CDs at the request of Mr. Bianco, and Sam delivered them to Bianco's office.

Duke's attorney, Mr. Jolly, had served discovery requests in the state court Custody Case for the production of videotapes or other recordings of Duke's actions and conduct. After receiving the “Little Bear” recordings from Dianna Divingnzzo in May 2008, Bianco contacted Jolly by telephone and told him the recordings existed. At Jolly's request, Bianco had a copy of the recordings and transcripts delivered to Jolly. Bianco had generally discussed the existence of the recordings with his law partner, Christopher Perrone, who ultimately advised Bianco to let Judge Arterburn determine if the recordings were legal or illegal. Mr. Perrone never had possession of the recordings or any transcripts of the recordings.

On June 2, 2008, Mr. Jolly filed a motion in limine (Doc. 132 at p. 38/107) to exclude the recordings as illegally intercepted under Neb.Rev.Stat. § 86–290(a) ( see Doc. 137–16 at p. 14/42; Doc. 132–1 at p. 67/124). Prior to the hearing on the motion in limine, Mr. Bianco placed copies of the recordings in sealed envelopes and had the sealed envelopes delivered to guardian ad litem Karen Nelson and her attorney, ...