Warrington v. Warrington

560 F.Supp.3d 551

Karen WARRINGTON, individually, and as m/n/f of J.W.

v.John Edward WARRINGTON

Civil No. 20-cv-1014-LM

United States District Court, D. New Hampshire.

Signed April 6, 2021

Nicholas D. Wright, Bouchard Kleinman & Wright PA, Manchester, NH, for Karen Warrington.

Gary M. Burt, Primmer Piper Eggleston & Cramer PC, Manchester, NH, for John Edward Warrington.

ORDER

Landya McCafferty, United States District Judge Karen Warrington brings this diversity action on her own behalf and as mother and next friend of her minor son, J.W., against John Edward Warrington—her ex-husband and J.W.’s father. Plaintiff alleges that defendant recorded a telephone conversation between himself and J.W. without J.W.’s knowledge or consent in violation of New Hampshire's Wiretapping and Eavesdropping Act. See RSA 570-A:2, :11. See generally RSA ch. 570-A. Defendant moves to dismiss. See doc. no. 7. For the reasons outlined below, the court grants the motion but dismisses the complaint without prejudice.

STANDARD OF REVIEW

Under Rule 12(b)(6), the court must accept the factual allegations in the complaint as true, construe reasonable inferences in plaintiff's favor, and "determine whether the factual allegations in the plaintiff's complaint set forth a plausible claim upon which relief may be granted." Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71, 75 (1st Cir. 2014) (citation and internal quotation marks omitted). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

BACKGROUND

At the time plaintiff filed this action, she resided in Minnesota and defendant resided in Tennessee. At all times relevant to this action, defendant resided in either Tennessee or Minnesota. J.W. attends boarding school in New Hampshire.

Plaintiff and defendant divorced in July 2017. A Minnesota court issued their divorce decree. The divorce decree requires defendant to contribute financially to J.W.’s participation in extracurricular activities, so long as plaintiff and defendant agree to J.W.’s participation in a given activity. Shortly after entry of the divorce decree, however, defendant refused to agree to J.W.’s participation in any extracurricular activities, even those that J.W. had previously participated in. As a result, plaintiff filed a motion to modify the divorce decree to require defendant to contribute to J.W.’s extracurriculars.

In October 2017, defendant called J.W. on his dorm room phone.¹ Defendant raised topics of conversation during this phone call that caused J.W. to become noticeably angry toward defendant. After J.W. became angry, defendant began recording their conversation. He did not notify J.W. or obtain his permission before doing so.

Following the October 2017 phone call, defendant refused to exercise any in-person parenting time with J.W. or make contributions toward J.W.’s tuition and extracurricular expenses. In addition, defendant submitted portions of the recorded phone call at a post-decree motion hearing in the parties’ divorce proceeding. Defendant used the contents of the recording—i.e., J.W.’s anger toward his father—to explain to the court why he had not been exercising parenting time or contributing to J.W.’s tuition and extracurriculars. In October 2018, the Minnesota court entered an order declining to require defendant to contribute to J.W.’s extracurricular activities.

Plaintiff thereafter filed this single-count complaint. Plaintiff alleges that defendant violated New Hampshire's Wiretapping and Eavesdropping Act by recording portions of his October 2017 phone call with J.W. without the latter's consent, and by subsequently submitting the recording as evidence in the parties’ divorce proceeding. See RSA 570-A:11. Plaintiff seeks damages—actual, statutory, and punitive—as well as attorney's fees. See id.

Defendant now moves to dismiss, arguing, inter alia, that plaintiff fails to allege that he intercepted a communication within New Hampshire as required by the Wiretapping and Eavesdropping Act.

DISCUSSION

The Wiretapping and Eavesdropping Act provides a private right of action for "[a]ny person whose telecommunication ... is intercepted, disclosed, or used in violation of this chapter." RSA 570-A:11. Under the Act, it is unlawful to "wilfully intercept[ ] ... any telecommunication" "without the consent of all parties to the communication." RSA 570-A:2, I(a). "Intercept" is defined, in pertinent part, as "the recording of ... the contents of any telecommunication ... through the use of any electronic, mechanical, or other device." RSA 570-A:1, III.

In State v. Ruggiero, 163 N.H. 129, 35 A.3d 616 (2011), the New Hampshire Supreme Court considered whether a recording which took place in South Carolina violated the Act. In that case, the defendant, Kristin Ruggiero, obtained a restraining order against her soon-to-be-ex-husband, Jeffrey Ruggiero, shortly before the commencement of their divorce proceedings. See Ruggiero, 163 N.H. at 131, 35 A.3d 616. Ms. Ruggiero relocated to California at or around the time she obtained the restraining order, and Mr. Ruggiero relocated to South Carolina around that same time. See id. After obtaining the restraining order, Ms. Ruggiero began contacting Mr. Ruggiero on the telephone. See id. Mr. Ruggiero's partner, Jean Backus, used a video camera to record Ms. Ruggiero's voice during these calls. See id. Ms. Ruggiero was later charged with numerous counts of falsifying physical evidence and one count of making a false report in relation to her attempts to jail Mr. Ruggiero for violating the restraining order. See id. at 130-32, 35 A.3d 616 ; see also RSA 641:4, :6. The State obtained Ms. Backus's recordings of Ms. Ruggiero's phone calls. See Ruggiero, 163 N.H. at 132, 35 A.3d 616. Prior to trial, Ms. Ruggiero filed a motion in limine to exclude the recordings pursuant to RSA 570-A:6. See id. at 132-33, 35 A.3d 616. RSA 570-A:6 provides in relevant part that, "[w]henever any telecommunication ... has been intercepted, no part of the contents of such communication ... may be received in evidence in any trial ... if the disclosure of that information would be in violation of this chapter." The superior court denied that motion. Ruggiero, 163 N.H. at 132-33, 35 A.3d 616.

On appeal, the New Hampshire Supreme Court upheld the trial court's denial of Ms. Ruggiero's motion. The court explained that RSA 570-A:6 mandates the exclusion of evidence only if "disclosure [of that evidence] would violate New Hampshire's wiretap statute." Id. at 134, 35 A.3d 616. The court noted that the Act prohibits the willful disclosure of the contents of a telecommunication if the person making the disclosure knows or has reason to know "that the information was obtained through the interception of a telecommunication ... in violation of [paragraph I of RSA 570-A:2 ]." Id. (emphasis omitted) (quoting RSA 570-A:2, I(c)-(d)). Thus, the court's analysis turned on whether the interception of Ms. Ruggiero's telecommunication was in violation of RSA 570-A:2, I. See id.

The court held that the interceptions did not violate RSA 570-A:2, I. Id. The court observed that "[n]one of the interceptions occurred in New Hampshire." Id. Rather, "the calls were ... intercepted in South Carolina" where Ms. Backus recorded them. Id. Citing the "general rule" that "restrictions in one state's consent surveillance statute will not be given extraterritorial effect," the court concluded that Ms. Backus did not violate New Hampshire's Wiretapping and Eavesdropping Act by recording Ms. Ruggiero's phone call in South Carolina. Id. (citing 2 James G. Carr & Patricia L. Bellia, The Law of Electronic Surveillance § 7:48, at 268 (2011)).

Ruggiero makes clear that an interception may violate RSA 570-A:2 only if it occurs in New Hampshire, and that an interception occurs in the place where the party intercepting the communication is located. See id. at 134-35, 35 A.3d 616. The Ruggiero court's holding accords with the weight of authority interpreting other states’ similar electronic surveillance statutes. See, e.g., State v. Fowler, 157 Wash.2d 387, 139 P.3d 342, 347 (2006) (en banc) ("[T]he test for whether a recording of a conversation or communication is lawful is determined under the laws of the place of recording."); MacNeill Eng'g Co., Inc. v. Trisport Ltd., 59 F. Supp. 2d 199, 202 (D. Mass. 1999) (concluding that "secretly recording a conversation outside Massachusetts does not give rise to liability under" Massachusetts’ electronic surveillance statute "even if the call originated within Massachusetts"); State v. Fleming, 91 Or.App. 394, 755 P.2d 725, 726-27 (1988) (concluding that, where phone call between Oregon and Washington speakers was recorded by the Oregon speaker, Oregon law determined whether recording was lawful); Pendell v. AMS/Oil, Inc., Civ. A. No. 84-4108-N, 1986 WL 5286, at *2-5 (D. Mass. Apr. 30, 1986) (concluding that secretly recording a telephone conversation from outside of Massachusetts does not give rise to liability under Massachusetts’ statute even if the call was placed to a party within Massachusetts); see also 2 James G. Carr et al., The Law of Electronic Surveillance § 7:47 & ns. 1-3, at 216 (2020).

Here, plaintiff has failed to plausibly allege that defendant intercepted J.W.’s telecommunication in New Hampshire. Although the complaint alleges that defendant called J.W., a New Hampshire boarding school student, on J.W.’s dorm room phone, it makes no allegation as to defendant's physical location when he called J.W. and recorded their conversation. And, while the court is obligated to construe reasonable inferences in the plaintiff's favor, see Foley, 772 F.3d at 75, the court cannot reasonably infer from the complaint's factual allegations that defendant was in New Hampshire when he...