Treon v. Treon

Filing 24

ORDER granting in part 19 Plaintiff's Motion for Summary Judgment as to Section 2511(1)(a) liability. Damages will be addressed at the hearing scheduled for 1/14/2016 at 1:00 p.m. in Courtroom 5A before Judge DuBose. Signed by Judge Kristi K. DuBose on 11/9/2015. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KRISTINA LEIGH TREON,
Plaintiff,
v.
DAVID WILLIAM TREON,
Defendant.

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CIVIL ACTION 15-00212-KD-N

ORDER
This matter is before the Court on Plaintiff’s motion for summary judgment (Doc. 19),
Defendant’s Response (Docs. 21, 22), and Plaintiff’s Reply (Doc. 23).
I.

Findings of Fact1
This case stems from the September 28, 1996-April 2, 2015 marriage (and divorce)

between Plaintiff Kristina Leigh Treon (Plaintiff) and Defendant David William Treon
(Defendant). Specifically, on April 17, 2015, Plaintiff initiated this action under the Federal
Wiretap Act, 18 U.S.C. § 2510 et seq., alleging that the Defendant, without her knowledge or
consent, secretly and surreptitiously recorded her oral communications with third parties and
intentionally intercepted, disclosed, or used the communications to bolster his position in the
divorce proceedings (which commenced in August 2014). (Doc. 1).
II.

Conclusions of Law

A.

Standard of Review
“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED.
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On summary judgment, the Court must “resolve all issues of material fact in favor of the [non-movant],
and then determine the legal question of whether the [movant] is entitled to judgment as a matter of law under that
version of the facts.” McDowell v. Brown, 392 F.3d 1283, 1288 (11th Cir. 2004).

R. CIV. P. 56(a) (Dec. 2010). The recently amended Rule 56(c) provides as follows:
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party
may object that the material cited to support or dispute a fact cannot be presented
in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it
may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.
FED.R.CIV.P. Rule 56(c) (Dec. 2010).
The party seeking summary judgment bears the “initial responsibility of informing the
district court of the basis for its motion, and identifying 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.” Clark v.
Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). If the nonmoving party fails to make “a sufficient showing on an
essential element of her case with respect to which she has the burden of proof,” the moving
party is entitled to summary judgment. Celotex, 477 U.S. at 323. “In reviewing whether the
nonmoving party has met its burden, the court must stop short of weighing the evidence and

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making credibility determinations of the truth of the matter. Instead, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v.
Bergrohr GMBH-Siegen, 965 F.2d 994, 998-999 (11th Cir. 1992).
B.

Discussion
1.

Liability

Section 2511 of the Act provides, in relevant part, as follows:
(1) Except as otherwise specifically provided in this chapter any person who—
(a) intentionally intercepts, endeavors to intercept, or procures any other person
to intercept or endeavor to intercept, any wire, oral, or electronic communication;
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(c) intentionally discloses, or endeavors 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;
(d) intentionally uses, or endeavors to use, 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)(a), (c-d) (emphasis added). Thus, the Act provides that a person who
“intentionally intercepts” a communication is subject to civil liability. 18 U.S.C. § 2511(1)(a).
The Act also subjects to civil liability anyone who: discloses the contents of an illegally
intercepted communication or uses the contents of a intercepted communication -- knowing or
having reason to know that it was illegally obtained, 18 U.S.C. § 2511(1)(c-d).
Plaintiff seeks summary judgment on the basis that Defendant has admitted, in his
Answer and in his deposition, to violating the Act. In his deposition, Defendant testified that
during August 2014, he placed a voice activated electronic recording device under the driver’s
seat of the car that Plaintiff regularly drove, which stayed in the car for a “couple days[]” and
that he also recorded at least three (3) people. (Doc. 19-2 (Dep. D.Treon at 9, 11-12, 40-41)). In

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his Amended Answer, Defendant admitted he “placed an [sic] electronic recording device in the
car driven by Plaintiff for the purpose of recording Plaintiff’s communications without Plaintiff’s
knowledge[]” and “intentionally intercepted Plaintiff’s oral communications without her
knowledge[.]” (Doc. 12 at 2 at ¶¶7-8). See also Doc. 19-2 (Dep. D.Treon at 20).
Nevertheless, on summary judgment, Defendant contends that there is a genuine issue of
material fact because he relied on the advice of counsel who incorrectly informed him that the
unauthorized recording of Plaintiff was not illegal in the State of Alabama. (Doc. 22). From
this, Defendant asserts that he did not intentionally violate the Act because if he had known that
recording Plaintiff in the manner he did was illegal, he would never have done it, and thus,
summary judgment should be denied. (Id.)
Regardless of Defendant’s motive or advice of counsel, he has has repeatedly admitted
that he intended to intercept the Plaintiff’s communications. Intentional means that the acts were
not inadvertent or by accident, but that the violator knew of the factual circumstances (i.e.,
neither party consented to be recorded). See generally Wadkins v. Werner, 2015 WL 3795968
(N.D. Miss. Jun. 17, 2015); Anderson v. City of Columbus, Ga., 374 F.Supp.2d 1240, 1246-1247
(M.D. Ga. 2005). “To prove an ‘interception’ violation of the Wiretap Act…a plaintiff need only
show that the defendant intentionally, rather than inadvertently, intercepted the plaintiff's oral
communication.” United States v. Divingnzzo, 772 F.Supp.2d 1046, 1059 (D. Neb. 2011).2

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See also Jayne v. Bosenko, 2014 WL 2801198, *25-26 (E.D. Cal. Jun. 19, 2014) (“The FWA prohibits
only intentional interceptions…if Defendants unintentionally recorded the calls, they did not violate the law….In
Pharmatrak, the First Circuit looked to the legislative history of Congress's 1986 amendment to the Act changing the
state of mind requirement from “willful” to “intentional.”…Noting that the legislative history indicated that as used
in the amendment “the term ‘intentional’ is narrower than the dictionary definition” of the term, see S. Rep. 99–541,
26 (1986), the court concluded “the purpose of the amendment was to underscore that inadvertent interceptions are
not a basis for …civil liability” under the Act…Thus, under the Act, “[a]n act is not intentional if it is the product of
inadvertence or mistake[]…”); Hayes v. SpectorSoft Corp., 2009 WL 3713284, *6 (E.D. Tenn. Nov. 3, 2009)
(emphasis in original) (discussing inadvertent versus intentional interception under Section 2511: “the term
‘intentional’ is narrower than the dictionary definition of ‘intentional.’ ‘Intentional’ means more than that one

(Continued)
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Given Defendant’s testimony and admissions, he violated the Act such that Plaintiff’s
motion for summary judgment (Doc. 19) is GRANTED in part as to Defendant’s liability for
the intentional interception of her communications, 18 U.S.C. § 2511(1)(a).
2.

Damages3

Civil damages are authorized under the Act as follows:
(a) In general.--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, other than the United
States, which engaged in that violation such relief as may be appropriate.
(b) Relief.--In an action under this section, appropriate relief includes—
(1) such preliminary and other equitable or declaratory relief as may be
appropriate;
(2) damages under subsection (c) and punitive damages in appropriate cases; and
(3) a reasonable attorney's fee and other litigation costs reasonably incurred.
(c) Computation of damages.—
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(2) In any other action under this section, the court may assess as damages
whichever is the greater of—
(A) the sum of the actual damages suffered by the plaintiff and any profits

voluntarily engaged in conduct or caused a result. Such conduct or the causing of the result must have been the
person's conscious objective. An ‘intentional’ state of mind means that one's state of mind is intentional as to one's
conduct or the result of one's conduct if such conduct or result is one's conscious objective. The intentional state of
mind is applicable only to conduct and results. Since one has no control over the existence of circumstances, one
cannot ‘intend’ them[]”); Thompson v. Dulaney, 838 F. Supp. 1535, 1544 (D. Utah. 1993) (“In United States v.
Townsend, 987 F.2d 927 (2d Cir.1993), …[t]he Court stated that the defendant must be shown to have acted
‘deliberately and purposefully; that is, defendant's act must have been the product of defendant's conscious objective
rather than the product of a mistake or an accident.’…this Court is convinced that this definition of intent is
consistent with the view taken by the Tenth Circuit in Thompson. In Thompson, the court stated that the wording of
the statute ‘requires that interceptions be intentional before liability attaches, thereby excluding liability for
inadvertent interceptions.’…Thus, the focus of the Tenth Circuit, like the Second Circuit, is on the issue of the
deliberateness of the act, or, stated another way, whether the actor intended to intercept the communication or
whether it happened inadvertently. Thus, Dulaney's motive, whether she acted with a bad purpose or in disregard of
the law, is not the issue. See S.REP. No. 99–541, 99th Cong., 2d Sess. 23 (Oct. 17, 1986), reprinted in 1986
U.S.C.C.A.N. 3555, 3577–79 (‘The term ‘intentional’ is not meant to connote the existence of a motive.’). As a
result, this Court concludes that the proper focus is on the volitional nature of the act of intercepting the
communication. Since Denise Dulaney does not contest the fact that she did voluntarily tape record these
conversations, the Court concludes that she had the requisite intent as a matter of law[]”).
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Plaintiff does not seek punitive damages.

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made by the violator as a result of the violation; or
(B) statutory damages of whichever is the greater of $100 a day for each
day of violation or $10,000.
18 U.S.C. § 2520(a-c).
With liability established, the only remaining issue before the Court is the matter of
damages under the Act, 18 U.S.C. § 2520, for which Plaintiff has also moved for summary
judgment. Specifically, Plaintiff seeks $10,000 in statutory damages (Doc. 21) plus $1,000 in
attorneys’ fees (Doc. 19-3 (Aff. J.Boone)). Defendant disputes the damages requested, asserting
that he did not intentionally disclose or use the recordings in the divorce proceedings and thus,
civil damages and attorneys’ fees are not appropriate.
Upon consideration, it is ORDERED that this matter is set for a hearing, to address the
issue of damages, on January 14, 2016 at 1:00 p.m., in Courtroom 5A of the United States
Courthouse, 113 St. Joseph St., Mobile, Alabama 36602.
III.

Conclusion
Based on the foregoing, it is ORDERED that Plaintiff’s Motion for Summary Judgment

(Doc. 19) is GRANTED in part as to Section 2511(1)(a) liability. Damages will be addressed
at the January 14, 2016 hearing and that portion of Plaintiff’s motion resolved thereafter.
DONE and ORDERED this the 9th day of November 2015.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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