South Bend City of v. Holder et al

Filing 84

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART 75 Motion to Dismiss for Failure to State a Claim filed by Defendant Scott Duerring; DISMISSING state tort claims. Signed by Judge Joseph S Van Bokkelen on 10/31/2013. (lyb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

BRIAN YOUNG, et al.,
Plaintiffs,
Case No. 3:12-CV-532 JVB-CAN
v.
consolidated with
CITY OF SOUTH BEND, et al.,
Case No. 3:12-CV-475-JVB-CAN
Defendants.

OPINION AND ORDER
Former South Bend Police Department Chief Darryl Boykins was concerned that his
subordinate officers were not loyal to him and that they might seek to replace him as Chief of
Police. Therefore, he ordered Karen DePaepe—the South Bend Police Department telephone
system manager—to wiretap the office phone lines of several South Bend policemen, which she
did. DePaepe was fired once news broke about the wiretapping, which prompted her to hire
attorney Scott Duerring. At some point, she and Duerring gave several interviews in the local
media discussing the wiretaps and their supposedly tantalizing contents. These discussions,
however, prompted Plaintiffs to sue Duerring, alleging that by discussing the contents of the
recorded conversations, Duerring violated the Federal Wiretap Act, and committed several state
torts. Now before the Court is Defendant Scott Duerring’s Motion to Dismiss. (DE 75.) For the
reasons stated below, the Court GRANTS IN PART and DENIES IN PART Defendant’s
motion.

A. Procedural Background
On October 25, 2012, Plaintiffs filed an Amended Complaint1 against several defendants,
including Scott Duerring. Plaintiffs claim that Duerring violated the Federal Wiretap Act, 18
U.S.C. § 2510, by publicly disclosing the contents of Plaintiffs’ telephone conversations (DE 23,
¶ 50), and that he is also liable for the state-law torts of negligence, defamation, invasion of
privacy, and intentional infliction of emotional distress. (DE 23, ¶ 54.)

B. Factual Background
The city of South Bend maintained a telephone system for use by its police department.
(DE 23 ¶ 17.) Karen DePaepe was employed by the South Bend Police Department as the
telephone system manager. (Id. ¶ 18.) Due to her position, DePaepe had the ability to intercept
and record telephone conversations on the South Bend Police Department’s telephone lines. (DE
23, ¶ 19.) Police Chief Boykins ordered DePaepe to intercept and record the telephone line of
Plaintiff Richmond, who was a South Bend police officer. (Id. ¶ 22.) DePaepe attempted to tap
Richmond’s line, but accidently tapped the telephone line of Plaintiff Brian Young, also a South
Bend police officer. (Id. ¶¶ 23–24.) After his telephone line was tapped, Brian Young placed
calls to, and received calls from, Plaintiffs Wells, Corbett, and Richmond, and his wife, Plaintiff
Sandy Young. (Id. ¶¶ 25–26.) DePaepe later intercepted and recorded Richmond’s correct
telephone line at the police department. (Id. ¶ 27.) After his line was tapped, Richmond placed
calls to, and received calls from Plaintiffs Wells, Young, and Corbett. (Id. ¶ 28.) The interception
and recording of these telephone lines was not authorized by a court order, and was not part of

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On January 17, 2013, the Court issued an order consolidating the cases listed in the caption. The parties were
ordered to make all subsequent filings in the 3:12-CV-475 case only. The Amended Complaint referenced in this
Order, however, was filed before the consolidation order, and is listed as Docket Entry 23 in the 3:12-CV-532 case.
Therefore, when the Court references “DE 23,” it is citing to the docket entry for the 3:12-CV-532 case. The instant
Motion to Dismiss, however, was filed as Docket Entry 75 in the 3:12-CV-475 case.

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any law enforcement investigation, nor conducted in the ordinary course of the South Bend
Police Department’s business. (Id. ¶¶ 29–30.)
Plaintiffs Brian Young and Steve Richmond complained to the U.S. Attorney’s Office for
the Northern District of Indiana concerning the illegal wiretaps. (Id. ¶ 38.) The U.S. Attorney’s
Office investigated the claims. (Id. ¶ 39.) DePaepe was eventually fired from her job at the South
Bend Police Department. (Id. ¶42.) After she was fired, DePaepe retained an attorney, Defendant
Scott Duerring, and they gave several interviews in the media in which they stated that the
recordings of Plaintiffs’ telephone conversations capture Plaintiffs making racial slurs about
former Police Chief Boykins, who is African-American. (Id. ¶¶ 40, 43.) Later, however, Boykins
admitted to Richmond that he had never heard Richmond make any racial slurs in the recorded
phone conversations. (Id. ¶ 44.) Plaintiffs allege that as a result of the false accusations of racism,
they lost their privacy and sustained damage to their professional reputation. (Id. ¶ 48.)

C. Standard of Review
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint when it fails
to set forth a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In determining the
sufficiency of a claim, the Court construes the complaint in the light most favorable to the
nonmoving party, accepts all well-pleaded facts as true, and draws all inferences in the
nonmoving party’s favor. Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1146 (7th Cir. 2010)
(internal citations omitted). Pleadings consisting of no more than mere conclusions are not
entitled to the assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). This includes
legal conclusions couched as factual allegations, as well as “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements.” Id. at 678 (internal citations

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omitted). Second, if well-pleaded factual allegations are present in the complaint, courts should
“assume their veracity and then determine whether they plausibly give rise to an entitlement to
relief.” Id. at 679.

D. Analysis
(1) Federal Wiretap Act
Plaintiffs’ first claim that when Duerring disclosed the contents of the recordings, he
“violate[d] 18 U.S.C. § 2510 et seq.” (DE 23, ¶ 50.) The Amended Complaint does not specify
which part of the broad Wiretap Act Duerring allegedly violated. Presumably, Plaintiffs intended
to allege that Duerring violated 18 U.S.C. § 2511(1)(c), which creates liability for intentionally
disclosing illegally obtained information. Under this section, a defendant may be liable if he (1)
intentionally discloses, (2) to any other person, (3) the contents of any wire, oral, or electronic
communication, (4) knowing or having reason to know that the information was obtained
through the interceptions of a wire, oral, or electronic communication, which would itself be an
unlawful wiretapping. 18 U.S.C. § 2511(1)(c). Regarding liability, the Seventh Circuit stated:
[A] defendant must know or have reason to know sufficient facts concerning the
circumstances of the interception such that the defendant[] could, with presumed
knowledge of the law, determine that the interception was prohibited in light of
[the Wiretap Act]. It is not enough to know that the conversation was intercepted;
the defendant must also be able to tell that none of the statutory exceptions apply.
If the defendant does know the interception was illegal, then he is liable if he uses
or discloses to others the contents of the recorded conversations.
McCann v. Iroquois Mem’l. Hosp., 622 F.3d 745, 753 (7th Cir. 2010) (internal citations and
quotations omitted).
The Court finds that the factual allegations contained in the Amended Complaint are
sufficient to plausibly state an actionable claim against Duerring for violating 18 U.S.C. §

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2511(1)(c). In his Motion to Dismiss, Duerring emphasizes that the Amended Complaint does
not provide specific instances of when or where he allegedly talked about the contents of the
recorded conversations. In addition, he highlights use of the vague pronoun “they,” which the
Amended Complaint uses when describing who spoke about the conversations. Using the plain,
ordinary meaning of the word “they,” however, reveals that both DePaepe and Duerring
discussed the contents of the recorded conversations in media interviews. 2 Likewise, it is
reasonable to infer that Duerring knew the conversations were illegally recorded, especially since
DePaepe hired Duerring after she was fired for her role in the wiretapping. Although Duerring’s
concerns raised in his Motion to Dismiss are well-founded, the Court concludes that Duerring is
trying to set the standard too high, and that the Amended Complaint states a plausible claim for
relief.

(2) State Tort Claims
Plaintiffs next assert state tort claims for negligence, invasion of privacy by public
disclosure of private facts, defamation, and intentional infliction of emotional distress. A claim
for negligence in Indiana must show that the defendant owed a duty to the plaintiff, he breached
the duty, and that the breach proximately caused an injury to the plaintiff. Spangler v. Bechtel,
958 N.E.2d 458, 468 (Ind. 2011). “Negligence will not be inferred; rather, all of the elements of
a negligence action must be supported by specific facts . . . or reasonable inferences that might
be drawn from those facts. An inference is not reasonable when it rests on no more than
speculation or conjecture.” Kincade v. MAC Corp., 773 N.E.2d 909, 912 (Ind. Ct. App. 2002)
(internal citations omitted). Here, the Amended Complaint fails to provide sufficient facts to

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The dictionary defines “they” as “those ones—used as a nominative third person pronoun serving as the plural
of he, the plural of she, or the plural of it, or referring to a group of two or more individuals that are not all if the
same sex.” Webster’s Third New International Dictionary 2374 (2002).

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survive a motion to dismiss. Most importantly, the Amended Complaint does not allege that
Duerring had a duty to not disclose the contents of the wiretap. While Plaintiffs attempt to avoid
this issue and develop the elements of negligence in their brief opposing Defendant’s Motion,
this is insufficient. Since the Amended Complaint does not allege facts supporting the elements
of a negligence claim, this claim must be struck.
Likewise, Plaintiffs’ factual allegations fail to set forth a plausible claim for public
disclosure of private facts. A plaintiff claiming damages for the public disclosure of private facts
must show that (1) private information was publicly divulged, (2) to persons who had no
legitimate interest in the information, (3) in a manner that was coercive or oppressive, and (4)
such information would be highly offensive and objectionable to a reasonable person of ordinary
sensibilities. Brown v. Wabash Nat’l Corp., 293 F. Supp. 2d 903, 905 (N.D. Ind. 2003) (internal
citations omitted). This claim may be thwarted, however, if the facts disclosed are matters of
legitimate public interest. “Once a matter is found to be within the sphere of public interest,
otherwise private facts about a person may also be considered of legitimate public interest if
those particular facts are sufficiently related to the natter that is legitimate public concern.”
Nobles v. Cartwright, 659 N.E.2d 1064, 1075 (Ind. Ct. App. 1995) (internal citations omitted).
This applies “even when the information relates to a person who has neither sought nor
consented to the publicity, but nevertheless has become a person about whom there is public
interest because of his or her involvement in an occurrence or event that is of legitimate public
concern.” Id. at 1076 (internal citations omitted). Generally, the disclosed information must be
closely related to a matter that was “newsworthy” at the time of the disclosure. Id. If the
appropriate nexus exists between the information and an already newsworthy story, “the fact is
also of legitimate public interest, no matter how sensitive or how private.” Id. at 1077.

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In this case, the claim of public disclosure of private facts cannot survive. Arguably,
Duerring was invited to speak with the media solely because the underlying story about illegal
wiretaps was newsworthy. The disclosure of information concerning the wiretaps was
substantially and directly related to the newsworthy story about Plaintiffs, Chief Boykins, and
the operations and personnel at the South Bend Police Department. Moreover, allegations of
racial hostility and bias at the police department are undoubtedly matters of public concern.
Therefore, the information Duerring disclosed is both substantially relevant and closely related to
the general topic of illegal wiretaps ordered by Chief Boykins. Thus, a claim for public
disclosure of private facts cannot stand.
Similarly, the facts supporting the claim for intentional infliction of emotional distress are
insufficient. Intentional infliction of emotional distress requires that the defendant (1) engage in
extreme and outrageous conduct that (2) intentionally or recklessly (3) causes (4) severe
emotional distress to another. Creel v. I.C.E. & Assocs., Inc., 771 N.E.2d 1276, 1282 (Ind. Ct.
App. 2002). “The intent to harm emotionally constitutes the basis for this tort.” Id. (internal
citations omitted). Additionally, “the conduct at issue must exceed all bounds usually tolerated
by a decent society and cause mental distress of a very serious kind.” Id. Here, Plaintiffs have not
alleged facts supporting any of the elements of this cause of action, instead inserting a
conclusory statement that Duerring is liable for the tort. Mere conclusory allegations are
insufficient to state a claim for relief.
Finally, Plaintiffs allege Duerring is liable for defamation; however, they did not defend
their claim for defamation in their reply brief to Duerring’s Motion to Dismiss. “If a defendant
seeks a motion to dismiss the claims, the plaintiff must support in its response to the motion any
and all claims it seeks to advance at trial.” Reinke v. Cargill, Inc., No. 10-C-795, 2011 WL

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2471739, at *3 (E.D. Wis. June 21, 2011). Any claim not defended in the plaintiff’s response
motion is waived. Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041–43 (7th Cir.
1999). Accordingly, Plaintiffs have waived their claim for defamation because they did not
defend it following Duerring’s Motion to Dismiss.

E. Conclusion
The Amended Complaint (DE 23) provides sufficient facts that plausibly demonstrate
that Plaintiffs are entitled to relief on their Federal Wiretap Act claim. Their state tort claims,
however, fall short, and are dismissed. Therefore, Duerring’s Motion to Dismiss (DE 75) is
GRANTED IN PART and DENIED IN PART.

SO ORDERED on October 31, 2013.

s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE

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