Luken v. Edwards
Filing
10
MEMORANDUM OPINION AND ORDER granting in part and denying in part 5 Motion to Dismiss (See Order Text). Signed by Judge Mark W Bennett on 5/3/2011. (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
GENE C. LUKEN,
Plaintiff,
No. C10-4097-MWB
vs.
TINA MARIE EDWARDS, formerly
TINA MARIE LUKEN,
MEMORANDUM OPINION AND
ORDER REGARDING
DEFENDANT’S MOTION TO
DISMISS
Defendant.
____________________
TABLE OF CONTENTS
I. INTRODUCTION AND BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Procedural Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. Factual Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
II. LEGAL ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. Standards For A Motion To Dismiss . . . . . . . . . . . . . . . . . . . . . . . . 4
B. Analysis of Luken’s Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.
Title III claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.
Invasion of privacy claim . . . . . . . . . . . . . . . . . . . . . . . . 10
a.
Invasion of privacy under Iowa law . . . . . . . . . . . . . 11
b.
Intrusion upon seclusion theory . . . . . . . . . . . . . . . 12
3.
Iowa 808B claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.
Invasion of attorney-client privilege claim . . . . . . . . . . . . . 18
III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
This case represents the federal fallout from the marital dissolution proceeding
between plaintiff Gene C. Luken (“Luken”) and his former wife, defendant Tina Marie
Edwards, f.k.a. Tina Marie Luken (“Edwards”). Edwards seeks the dismissal of all
claims against her, pursuant to Federal Rule of Civil Procedure 12(b), for failure to state
a claim.
I. INTRODUCTION AND BACKGROUND
A. Procedural Background
On October 22, 2010, plaintiff Gene C. Luken filed his Complaint against defendant
Tina Marie Edwards alleging four causes of action. In Count I, Luken contends Edwards
violated Title III of the Omnibus Crime and Control and Safe Streets Act of 1968, as
amended by the Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 2510-2520
(“Title III” or “the Act”) by intercepting telephone calls between him and other
individuals, including his attorney. In Count II, Luken asserts an Iowa common law claim
for invasion of attorney-client privilege based on Edwards’s interception his telephone
calls. Count III contains an Iowa common law claim for invasion of privacy and Count
IV alleges a claim under Iowa’s wiretapping act, Iowa Code § 808B.8.
On December 1, 2010, Edwards moved to dismiss for failure to state a claim,
pursuant to Federal Rule of Civil Procedure 12(b)(6). Specifically, Edwards contends the
Complaint contains legal conclusions and the elements of the causes of action in conclusory
terms, and fails to provide the factual basis which would support such claims. Edwards
also argues Luken’s invasion of attorney-client privilege claim should be dismissed because
Iowa courts have never recognized such a claim. On December 3, 2010, Luken filed an
Amended Complaint in which he again alleges the same four causes of action against
Edwards. On December 7, 2010, Luken filed his resistance to Edwards’s motion. Luken
2
argues the Amended Complaint clearly states factual allegations supporting each of his
claims. He also argues that Iowa courts have recognized the attorney-client privilege as
a common law right and its breach by Edwards constitutes a viable cause of action. On
December 13, 2010, Edwards filed a reply brief in which she argues that the Amended
Complaint contains the same defects as the original Complaint and Luken’s claims against
her should be dismissed for failure to state a claim.
B. Factual Background
On a motion to dismiss, I assume all facts alleged in Luken’s Amended Complaint
are true, and liberally construe those allegations. See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (“When ruling on a defendant’s motion to dismiss, a judge must accept as true all
of the factual allegations contained in the complaint.”) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555–56 (2007)). I draw the following factual background in such
a manner.
Plaintiff Gene C. Luken is a resident of Spirit Lake, Iowa. Defendant Tina Marie
Edwards is a resident of Dickinson County, Iowa. Luken and Edwards were married. On
July 24, 2008, a petition to dissolve their marriage was filed. A divorce decree in their
case was filed on June 1, 2010. Luken and Edwards lived in the same residence while
their divorce was pending. After their divorce, they continued to live in the same
residence for sixty days.
Luken “had an expectation of privacy both while conversing with his counsel and
conversing with others.” Amended Compl. at ¶ 18. Edwards intercepted telephone calls
between Luken and other individuals, including his attorney, while Luken and Edwards’s
divorce was pending. Edwards listened to Luken and his attorney discussing pretrial, trial,
and post-trial strategy, and took notes of these conversations. Edwards used and disclosed
3
these conversations. Luken was disadvantaged throughout the divorce because Edwards
knew what Luken and his counsel were planning, frustrating his attempts to settle before
and after trial.
II. LEGAL ANALYSIS
Edwards seeks dismissal of all claims for failure to state a claim, pursuant to
Federal Rule of Civil Procedure 12(b)(6). After reviewing the standards for a motion to
dismiss, I will address the specific issues raised by Edwards’s motion seriatim.
1
A. Standards For A Motion To Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for a motion to
2
dismiss on the basis of “failure to state a claim upon which relief can be granted.” In its
decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court
revisited the standards for determining whether factual allegations are sufficient to survive
a Rule 12(b)(6) motion to dismiss:
1
The parties do not argue that anything other than Iowa law applies to the pendent
common law claims, and both Luken and Edwards utilize Iowa authorities in their briefs.
In the absence of a dispute between the parties, I assume Iowa law applies, and will
consider each of the pendent common law claims under Iowa law.
2
Effective December 1, 2007, Federal Rule of Civil Procedure 12 was “amended
as part of the general restyling of the Civil Rules to make them more easily understood and
to make style and terminology consistent throughout the rules.” FED. R. CIV. P. 12,
advisory committee’s note. The advisory committee notes make it clear that the “changes
are to be stylistic only.” Id. The stylistic changes to Rule 12(b)(6) are in fact minimal,
as Rule 12(b)(6) continues to authorize a motion to dismiss “for failure to state a claim
upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). Thus, the amendment did
not change the standards for a Rule 12(b)(6) motion.
4
Federal Rule of Civil Procedure 8(a)(2) requires only
“a short and plain statement of the claim showing that the
pleader is entitled to relief,” in order to “give the defendant
fair notice of what the . . . claim is and the grounds upon
which it rests,” Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct.
99, 2 L. Ed. 2d 80 (1957). While a complaint attacked by a
Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, ibid.; Sanjuan v. American Bd. of Psychiatry and
Neurology, Inc., 40 F.3d 247, 251 (C.A.7 1994), a plaintiff’s
obligation to provide the “grounds” of his “entitle[ment] to
relief” requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do, see Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct.
2932, 92 L. Ed. 2d 209 (1986) (on a motion to dismiss, courts
“are not bound to accept as true a legal conclusion couched as
a factual allegation”). Factual allegations must be enough to
raise a right to relief above the speculative level, see 5 C.
Wright & A. Miller, Federal Practice and Procedure § 1216,
pp. 235-236 (3d ed.2004) (hereinafter Wright & Miller) (“
[T]he pleading must contain something more . . . than . . . a
statement of facts that merely creates a suspicion [of] a legally
cognizable right of action”), on the ASSUMPTION THAT
ALL THE allegations in the complaint are true (even if
doubtful in fact), see, e.g., Swierkiewicz v. Sorema N.A., 534
U.S. 506, 508, n. 1, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002);
Neitzke v. Williams, 490 U.S. 319, 327, 109 S. Ct. 1827, 104
L. Ed. 2d 338 (1989) (“Rule 12(b)(6) does not
countenance . . . dismissals based on a judge’s disbelief of a
complaint’s factual allegations”); Scheuer v. Rhodes, 416 U.S.
232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974) (a wellpleaded complaint may proceed even if it appears “that a
recovery is very remote and unlikely”).
Bell Atlantic, 550 U.S. at 555-56 (footnote omitted); see Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009) (instructing that “short and plain statement” requirement “demands
more than an unadorned, the-defendant-unlawfully-harmed me accusation.”). Thus, the
5
Eighth Circuit Court of Appeals has recognized that, under Bell Atlantic, “To survive a
motion to dismiss, a complaint must contain factual allegations sufficient ‘to raise a right
to relief above the speculative level. . . .’” Parkhurst v. Tabor, 569 F.3d 861, 865 (8th
Cir. 2009) (quoting Bell Atlantic, 550 U.S. at 555). To put it another way, “the complaint
must allege ‘only enough facts to state a claim to relief that is plausible on its face.’” B&B
Hardware, Inc. v. Hargis Indus., Inc., 569 F.3d 383, 387 (8th Cir. 2009) (quoting Bell
Atlantic, 550 U.S. at 570); accord Iqbal, 129 S. Ct. at 1949 (“Where a complaint pleads
facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line
between possibility and plausibility of entitlement to relief.’”) (quoting Bell Atlantic, 550
U.S. at 557).
Nevertheless, the court must still “accept as true the plaintiff’s well pleaded
allegations.” Parkhurst, 569 F.3d at 865 (citing Neitzke v. Williams, 490 U.S. 319, 32627 (1989)); B&B Hardware, Inc., 569 F.3d at 387 (“[W]e ‘assume[ ] as true all factual
allegations of the complaint’” (quoting Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007)).
The court must also still “construe the complaint liberally in the light most favorable to the
plaintiff.” Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008) (post-Bell
Atlantic decision). On the other hand, “[w]here the allegations show on the face of the
complaint that there is some insuperable bar to relief, dismissal under Rule 12(b)(6) is
[still] appropriate.” Benton v. Merrill Lynch & Co., Inc., 524 F.3d 866, 870 (8th Cir.
2008) (citing Parnes v. Gateway 2000, Inc., 122 F.3d 539, 546 (8th Cir. 1997), for this
standard in a discussion of Rule 12(b)(6) standards in light of Bell Atlantic).
6
B. Analysis of Luken’s Claims
1.
Title III claim
Edwards seeks dismissal of Luken’s Title III claim. She argues Luken has failed
to allege sufficient facts to obtain relief under Title III because his allegations are almost
entirely legal conclusions which must be disregarded under Iqbal. Luken counters,
arguing his factual allegations in the Amended Complaint plausibly states a claim under
the Act. Luken specifically asserts Edwards violated 18 U.S.C. § 2511(1)(a) when she
intentionally intercepted telephone calls Luken was having with his attorney and others
about their pending divorce, and took notes of those conversations.
The United States Supreme Court has observed that “Title III has as its dual purpose
(1) protecting the privacy of wire and oral communications, and (2) delineating on a
uniform basis the circumstances and conditions under which the interception of wire and
oral communications may be authorized.” Gelbard v. United States, 408 U.S. 41, 48
(1972) (citing S. Rep. No. 1097, 90th Cong., 2d Sess., 66 (1968), reprinted in 1968
U.S.C.C.A.N. 2112, 2153). The Court also noted that: “[a]lthough Title III authorizes
invasions of individual privacy under certain circumstances, the protection of privacy was
an overriding congressional concern”. Id. In 1986, Congress amended Title III to include
electronic communications, updating the wiretap laws to account for new
3
telecommunication technologies. See United States v. Herring, 933 F.2d 932, 935 (11th
3
Under Title III, “electronic communications” is defined as:
any transfer of signs, signals, writing, images, sounds, data,
or intelligence of any nature transmitted in whole or in part by
a wire, radio, electromagnetic, photoelectronic or photooptical
system that affects interstate or foreign commerce, but does
not include-(continued...)
7
Cir. 1991). The Act’s civil damages provision affords a private right of action to “any
person whose wire, oral, or electronic communication is intercepted, disclosed, or
intentionally used in violation of this chapter[.]” 18 U.S.C. § 2520(a); see Deal v. Spears,
980 F.2d 1153, 1156 (8th Cir. 1992); see also DIRECTV, INC. v. Rawlins, 523 F.3d 318,
3
(...continued)
(A) any wire or oral communication;
(B) any communication made through a
tone-only paging device;
(C) any communication from a tracking device
(as defined in section 3117 of this title); or
(D) electronic funds transfer information stored
by a financial institution in a communications system
used for the electronic storage and transfer of funds;
18 U.S.C. § 2510(12). “Wire communications,” which are excluded from the definition
of electronic communications, is defined as:
any aural transfer made in whole or in part through the use of
facilities for the transmission of communications by the aid of
wire, cable, or other like connection between the point of
origin and the point of reception (including the use of such
connection in a switching station) furnished or operated by any
person engaged in providing or operating such facilities for the
transmission of interstate or foreign communications or
communications affecting interstate or foreign commerce and
such term includes any electronic storage of such
communication;
18 U.S.C. § 2510(1). “Oral communication” is defined as:
any oral communication uttered by a person exhibiting an
expectation that such communication is not subject to
interception under circumstances justifying such expectation,
but such term does not include any electronic communication;
18 U.S.C. § 2510(2).
8
326 (4th Cir. 2008); DIRECTV, Inc. v. Bennett, 470 F.3d 565, 567 (5th Cir. 2006);
DIRECTV, Inc. v. Pepe, 431 F.3d 162, 167 (3d Cir. 2005). The Act provides that any
person who “intentionally intercepts, endeavors to intercept, or procures any other person
to intercept or endeavor to intercept any wire, oral, or electronic communication,” 18
U.S.C. § 2511(1)(a), can be found civilly liable under § 2520(a). See Spears, 980 F.2d
at 1156; see also Rawlins, 523 F.3d at 326; Bennett, 470 F.3d at 567; Pepe, 431 F.3d at
167. To state a claim for civil damages under § 2520(a) and § 2511(1)(a), Luken must
allege Edwards intentionally intercepted or endeavored to intercept a wire, oral or
electronic communication of Luken’s.
interceptions.
5
4
Section 2511(1) pertains solely to intentional
See Thomas v. Seth, 317 Fed. App’x 279, 281 (3d Cir. 2009); Abraham
v. County of Greenville, S.C., 237 F.3d 386, 391 (4th Cir. 2001); Forsyth v. Barr, 19
F.3d 1527, 1538 n.21 (5th Cir. 1994); Tapley v. Collins, 41 F. Supp. 2d 1366, 1372 (S.D.
Ga. 1999); Peavy v. Harman, 37 F. Supp. 2d 495, 510 (N.D. Tex. 1999).
As discussed above, Rule 8 requires that a plaintiff provide a “short and plain
statement” of his claim. Luken has done this with respect to his Title III claim, alleging
specific facts that , if proven true, will sustain this claim.
Namely, Luken alleges
Edwards intentionally intercepted telephone calls Luken was having with his attorney or
others about Luken and Edwards’s pending divorce. Although Luken does not identify the
4
The term “intercept” is defined broadly as “the aural or other acquisition of the
contents of any wire, electronic, or oral communication through the use of any electronic,
mechanical, or other device.” Id. § 2510(4).
5
“[T]he Electronic Communications Privacy Act of 1986 changed the mens rea
required for violations from ‘willful’ to ‘intentional.’” Bess v. Bess, 929 F.2d 1332, 1334
(8th Cir. 1991).
9
manner or means Edwards used to intercept these telephone calls, the Eighth Circuit Court
of Appeals has instructed:
Rule 8 does not, however, require a plaintiff to plead “specific
facts” explaining precisely how the defendant’s conduct was
unlawful. Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct.
2197, 167 L. Ed. 2d 1081 (2007) (per curiam). Rather, it is
sufficient for a plaintiff to plead facts indirectly showing
unlawful behavior, so long as the facts pled “‘give the
defendant fair notice of what the claim is and the grounds upon
which it rests,’” id. ( quoting Twombly, 550 U.S. at 555, 127
S. Ct. 1955) (alteration omitted), and “allow [ ] the court to
draw the reasonable inference” that the plaintiff is entitled to
relief. Iqbal, 129 S. Ct. at 1949.
Braden v. Wal-Mart Stores, Inc., 598 F.3d 585, 595 (8th Cir. 2009). Luken satisfies these
requirements by alleging Edwards’s interception “involved listening” to and taking notes
about multiple telephone calls between Luken and his attorney.
6
Amended Compl. at
¶¶ 9-10. It is reasonable to infer from these allegations that Edwards’ intentionally
intercepted Luken’s telephone calls. The Eighth Circuit Court of Appeals has explicitly
recognized a Title III cause of action by one spouse against the other for intercepting
telephone conversations in the marital home. See Bess v. Bess, 929 F.2d 1332, 1334 (8th
Cir. 1991); Kempf v. Kempf, 868 F.2d 970, 973 (8th Cir. 1989). I find Luken has
presented factual allegations that plausibly state a Title III claim and this portion of
Edwards’s Motion to Dismiss is denied.
2.
Invasion of privacy claim
Edwards also seeks dismissal of Luken’s Iowa common law claim for invasion of
privacy. She argues the Amended Complaint contains nothing but legal conclusions and
6
Edwards’s notes of some of these conversations are attached to the Amended
Complaint.
10
the elements of this cause of action in conclusory terms, and fails to provide the factual
basis which would support this claim. Luken contends that the Amended Complaint
clearly states factual allegations supporting his claim of invasion of privacy.
a.
Invasion of privacy under Iowa law
The Iowa Supreme Court first recognized the tort of invasion of privacy in
Bremmer v. Journal-Tribune Publishing Co., 76 N.W.2d 762, 764-65 (1956). See In re
Marriage of Tigges, 758 N.W.2d 824, 828 (Iowa 2008); Stessman v. Am. Black Hawk
Broadcasting Co., 416 N.W.2d 685, 686 (Iowa 1987); Howard v. Des Moines Register &
Tribune Co., 283 N.W.2d 289, 291 (Iowa 1979); Winegard v. Larsen, 260 N.W.2d 816,
818 (Iowa 1977). In Bremmer, the tort was defined as invasion of “the right of an
individual to be let alone, to live a life of seclusion, to be free from unwarranted
publicity.” Bremmer, 76 N.W.2d at 764. Since the recognition of the tort in Bremmer, the
Iowa Supreme Court has adopted and applied the principles of invasion of privacy
articulated in the Restatement (Second) of Torts (1977). See In re Marriage of Tigges, 758
N.W.2d at 829; Stessman, 416 N.W.2d at 686; Lamberto v. Bown, 326 N.W.2d 305, 309
(Iowa 1982); Anderson v. Low Rent Housing Comm’n of Muscatine, 304 N.W.2d 239, 248
(Iowa 1981); Howard, 283 N.W.2d at 291; Winegard, 260 N.W.2d at 822 (first applying
those principles).
The Restatement principles the Iowa Supreme Court has adopted are found in §
652A and subsequent sections defining each form of the tort. Section 652A states as
follows:
(1) One who invades the right of privacy of another is subject
to liability for the resulting harm to the interests of the other.
(2) The right of privacy is invaded by
11
(a) unreasonable intrusion upon the seclusion of
another, as stated in § 652B; or
(b) appropriation of the other’s name, or likeness, as
stated in § 652C; or
(c) unreasonable publicity given to the other’s private
life, as stated in § 652D; or
(d) publicity that unreasonably places the other in a false
light before the public, as stated in § 652E.
RESTATEMENT (SECOND) OF TORTS § 652A; see In re Marriage of Tigges, 758 N.W.2d at
829; Stessman, 416 N.W.2d at 686; Winegard, 260 N.W.2d at 822. In Winegard, the
Iowa Supreme Court clarified the requirements of each of these forms of the tort. Id.
Here, Luken relies exclusively on the first form of the tort, the “intrusion upon seclusion”
theory.
b.
Intrusion upon seclusion theory
Under the intrusion upon seclusion theory,
One who intentionally intrudes, physically or otherwise, upon
the solitude or seclusion of another or his private affairs or
concerns, is subject to liability to the other for invasion of his
privacy, if the intrusion would be highly offensive to a
reasonable person.
RESTATEMENT (SECOND) OF TORTS § 652B. In Winegard, the Iowa Supreme Court
defined intrusion upon seclusion as requiring “an intentional intrusion upon the solitude
or seclusion of another which would be highly offensive to a reasonable person.”
7
Winegard, 260 N.W.2d at 822.
7
Unlike other forms of invasion of privacy, intrusion
Comments to the Restatement (Second) of Torts § 652B further clarify this
(continued...)
12
7
(...continued)
formulation of the tort:
a. The form of invasion of publicity covered by this Section
does not depend upon any publicity given to the person whose
interest is invaded or to his affairs. It consists solely of an
intentional interference with his interest in solitude or
seclusion, either as to his person or as to his private affairs or
concerns, of a kind that would be highly offensive to a
reasonable [person].
b. The invasion may be by physical intrusion into a place in
which the plaintiff has secluded himself, as when the defendant
forces his way into the plaintiff’s room in a hotel or insists
over the plaintiff’s objections in entering his home. It may also
be by use of the defendant’s senses, with or without
mechanical aids, to oversee or overhear the plaintiff’s private
affairs, as by looking into his upstairs windows with binoculars
or tapping telephone wires. It may be by some other form of
investigation or examination into his private concerns, as by
opening his private mail, searching his safe or his wallet,
examining his private bank account, or compelling him by a
forged court order to permit an inspection of his personal
documents. The intrusion itself makes the defendant subject to
liability, even though there is no publication or other use of
any kind of photograph or information outlined. . . .
c. The defendant is subject to liability under the rule stated in
this Section only when he has intruded into a private place, or
has otherwise invaded a private seclusion that plaintiff has
thrown about his person or affairs. Thus there is no liability
for the examination of a public record concerning the plaintiff,
or of documents that the plaintiff is required to keep and make
available for public inspection. Nor is there liability for
(continued...)
13
upon seclusion does not require publication.
See Lamberto, 326 N.W.2d at 309;
Winegard, 260 N.W.2d at 822; RESTATEMENT (SECOND) OF TORTS § 652B, cmt. a.
To recover under the intrusion upon seclusion theory,
a plaintiff must show, first, that the defendant intentionally
intruded upon the seclusion that the plaintiff “has thrown about
[his or her] person or affairs.” Restatement § 652B comment
c; accord Winegard, 260 N.W.2d at 822. Second, the intrusion
must be one that would be “highly offensive to a reasonable
person.” Winegard, 260 N.W.2d at 822; accord Restatement
§ 652B. The defendant is not liable, however, if the plaintiff
is already in public view. Restatement § 652B comment c.
7
(...continued)
observing him or even taking his photograph while he is
walking on the public highway, since he is not then in
seclusion, and his appearance is public and open to the public
eye. Even in a public place, however, there may be some
matters about the plaintiff, such as his underwear or lack of it,
that are not exhibited to the public gaze; and there may still be
invasion of privacy when there is intrusion upon these
matters. . . .
d. There is likewise no liability unless the interference with the
plaintiff’s seclusion is a substantial one, of a kind that would
be highly offensive to the ordinary reasonable man, as the
result of conduct to which the reasonable man would strongly
object. Thus there is no liability for knocking at the plaintiff’s
door, or calling him to the telephone on one occasion or even
two or three, to demand payment of a debt. It is only when the
telephone calls are repeated with such persistence and
frequency as to amount to a course of hounding the plaintiff,
that becomes a substantial burden to his existence, that his
privacy is invaded. . . .
RESTATEMENT (SECOND) OF TORTS § 652A cmts. a-d (emphasis added).
14
Stessman, 416 N.W.2d at 687; see In re Marriage of Tigges, 758 N.W.2d at 829 (quoting
Stessman, 416 N.W.2d at 687); see also Hill v. McKinley, 311 F.3d 899, 906 (8th Cir.
2002) (noting non-Iowa “courts that have confronted ‘intrusion upon seclusion’ cases have
emphasized that the conduct must be highly offensive to a reasonable person.”).
Turning to the first element of the tort, the defendant intentionally intruded upon
the seclusion plaintiff “‘ha[d] thrown about [his or her] person or affairs,’” In re Marriage
of Tigges, 758 N.W.2d at 829 (quoting Stessman, 416 N.W.2d at 687); see Winegard, 260
N.W.2d at 822; RESTATEMENT (SECOND) OF TORTS § 652B, cmt. c., the Amended
Complaint factually alleges Edwards repeatedly listened to private, confidential telephone
calls between Luken and his attorney about Luken’s divorce. A reasonable inference to
be drawn from these factual allegations is that Edwards’s actions were intentional. These
allegations, which I must assume to be true, establish the intrusion element. See Peavy v.
Harman, 37 F. Supp.2d 495, 521 (N.D. Tex. 1999) (noting where defendants’
eavesdropped on plaintiff’s telephone conversations with a police scanner that
“[e]avesdropping is the quintessential example of a highly offensive intrusion upon
seclusion.”), aff’d on other grounds and rev’d on other grounds, 221 F.3d 158 (5th Cir.
2000); Cozzolino v. Maricopa County, No. CV-04-2229-PHX-FJM, 2006 WL 1794761,
at *2 (D. Ariz. June 27, 2006) (holding plaintiffs stated a viable intrusion upon seclusion
claim where they alleged defendants wiretapped plaintiff’s home); Amati v. City of
Woodstock, Ill., 829 F. Supp. 998, 1010-11 (N.D. Ill. 1993) (holding plaintiffs pled a
viable intrusion upon seclusion claim under Illinois law where defendants were alleged to
have tapped telephone calls made on line maintained by police department for private,
personal calls); see also Fowler v. Southern Bell Tel. & Tel. Co., 343 F.2d 150, 156 (5th
Cir. 1965) (finding under Georgia law “that tapping a telephone amounts to an intrusion
15
upon plaintiff’s solitude. . .”); Binkley v. Loughran, 714 F. Supp. 776, 780 (M.D.N.C.
1989) (noting “[w]iretapping is generally sufficient to state a claim of intrusion into
seclusion.”); Cavallaro v. Rosado, No. CV054009939, 2006 WL 2949143, at *4 (Conn.
Super. Ct. Oct. 5, 2006) (noting allegations of wiretapping and eavesdropping have been
held sufficient to state a claim for intrusion upon seclusion); W. PAGE KEETON ET AL.,
PROSSER & KEETON ON THE LAW OF Torts § 117, at 884-85 (5th ed. 1984) (citing
eavesdropping on telephone calls by wiretapping as an example for the tort of intrusion
into the seclusion of another).
The second element requires the intrusion be “highly offensive to a reasonable
person.” In re Marriage of Tigges, 758 N.W.2d at 829; Stessman, 416 N.W.2d at 687;
Winegard, 260 N.W.2d at 822.
The Amended Complaint’s factual allegations about
Edwards’s intrusion upon Luken’s solitude are, from the perspective of a reasonable
person, “highly offensive” both because of Edwards’s repeated interceptions of Luken’s
telephone calls, but also because some of the calls involved attorney-client discussions.
An individual discussing his or her divorce case with counsel could reasonably expect that
their conversation would be private, and the intrusion on such calls would be “highly
offensive to a reasonable person.”
Thus, I find Luken has pleaded sufficient facts to
establish the second element of the tort and this portion of Edwards’s Motion to Dismiss
is denied.
3.
Iowa 808B claim
Edwards also seeks dismissal of Luken’s claim under Iowa Code Chapter 808B.
Title III and Chapter 808B are nearly identical. See Iowa Beta Chapter of Phi Delta Theta
Fraternity v. State, 763 N.W.2d 250, 260 (Iowa 2009); State v. Fox, 493 N.W.2d 829,
831 (Iowa 1992). Both statutes provide a civil remedy for those whose communications
16
8
are intercepted. Compare 18 U.S.C. § 2520 and Iowa Code § 808B.8. To prevail on his
Chapter 808B claim, Luken must show that Edwards willfully intercepted, used, or
disclosed his telephone conversations. See IOWA CODE § 802B.2. Although Chapter 808B
uses the term “willfully” rather than Title III’s term “intentional” to describe a defendant’s
required state of mind, there is no meaningful difference between the statutes because
“‘willfully’ as used in section 808B.2 means purposefully.” Iowa Beta Chapter of Phi
Delta Theta Fraternity, 763 N.W.2d at 262. Edwards’s arguments for dismissing Luken’s
Chapter 808B claim are identical to her Title III arguments, arguments I have previously
rejected. Luken has presented specific factual allegations that plausibly state a Chapter
808B claim. Specifically, he alleges Edwards intentionally intercepted Luken’s telephone
calls with his attorney and others about Luken and Edwards’s pending divorce. Such
8
Iowa Code § 808B.8 provides in relevant part:
1. A person whose wire, oral, or electronic
communication is intercepted, disclosed, or used in violation
of this chapter shall:
a. Have a civil cause of action against any person who
intercepts, discloses, or uses or procures any other person to
intercept, disclose, or use such communications.
b. Be entitled to recover from any such person all of the
following:
(1) Actual damages, but not less than liquidated
damages computed at the rate of one hundred dollars a day for
each day of violation, or one thousand dollars, whichever is higher.
(2) Punitive damages upon a finding of a willful,
malicious, or reckless violation of this chapter.
(3) A reasonable attorney’s fee and other litigation costs
reasonably incurred.
IOWA CODE § 808B.8(1).
17
allegations that plausibly state a Chapter 808B claim and this portion of Edwards’s Motion
to Dismiss is also denied.
4.
Invasion of attorney-client privilege claim
Edwards argues Luken’s invasion of attorney-client privilege claim should be
dismissed because it has never been recognized by an Iowa court. Alternatively, she
contends, even if Iowa courts were to recognize such a claim, the Amended Complaint
fails to provide the factual basis which would support any such a claim. Luken argues
Iowa courts have recognized the attorney-client privilege and Edwards’s alleged actions
should give rise to an intentional tort under Iowa law.
Under Iowa common law, “‘[a]ny confidential communication between an attorney
and the attorney’s client is absolutely privileged from disclosure against the will of the
client.’” Keefe v. Bernard, 774 N.W.2d 663, 669 (Iowa 2009) (quoting Shook v. City of
Davenport, 497 N.W.2d 883, 886 (Iowa 1993)). The privilege is “‘of ancient origin. It
is premised on a recognition of the inherent right of every person to consult with legal
counsel and secure the benefit of his advice free from any fear of disclosure.’” Keefe, 774
N.W.2d at 669 (quoting Bailey v. Chicago, Burlington & Quincy R.R., 179 N.W.2d 560,
563 (Iowa 1970)).
Iowa Code § 622.10 bars disclosure of such confidential
communications “in giving testimony.” McMaster v. Board of Psychology Examiners, 509
N.W.2d 754, 757 (Iowa 1993).
Luken has cited no Iowa authority recognizing, or even discussing, an independent
tort claim against a third-party for invasion of attorney-client privilege and my own
research has disclosed none.
9
A federal court is bound to apply the applicable state law
9
The only legal authorities to address whether a client can recover damages based
on a third-party’s intrusion on the attorney-client privilege have squarely rejected the
(continued...)
18
in conformity with the decisions of the highest state court. “It has limited discretion to
adopt untested legal theories brought under the rubric of state law.” Affiliated FM Ins. Co.
v. Trane Co., 831 F.2d 153, 155 (7th Cir. 1987); see A. W. Huss Co. v. Continental
Casualty Co., 735 F.2d 246, 253 (7th Cir. 1984). This is the concern presented by
Luken’s invasion of attorney-client privilege claim. He is attempting to introduce an
entirely new and novel theory of liability. Such a claim has never been presented to either
the Iowa Supreme Court or the Iowa Court of Appeals for decision. Thus, I am left
completely without guidance as to the direction the Iowa courts would likely take on the
issue.
10
Federal courts of appeals have indicated that parties wishing to press innovative
interpretations of state law should litigate those claims in state court rather than federal
court. See Afram Export Corp. v. Metallurgiki Halyps, S.A., 772 F.2d 1358, 1371 (7th
Cir. 1985); Shaw v. Republic Drill Corp., 810 F.2d 149, 150 (7th Cir. 1987); see also
Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1234 (7th Cir. 1993) (“The plaintiffs are
asking us to innovate boldly in the name of the Illinois courts, and such a request is better
addressed to those courts than to a federal court.”); Chang v. Michiana Telecasting Corp.,
900 F.2d 1085, 1087-88 (7th Cir. 1991) (“a litigant whose case depends on a change in
9
(...continued)
existence of such a cause of action. See Madden v. Creative Servs., Inc., 51 F.3d 11 (2d
Cir. 1995) (relying on answer to certified question in Madden v. Creative Servs., Inc., 84
N.Y.2d 738, 622 N.Y.S.2d 478, 646 N.E.2d 780 (1995), which held that New York does
not recognize a tort action by a client for an intruder’s violation of the attorney-client
privilege).
10
My preference here would be to certify this question to the Iowa Supreme Court.
See N.D. IA. L.R. 83; Iowa Code § 684A.1. However, because neither party has
requested that the court certify this question, I decline to certify the question sua sponte.
19
state law had best start in state court”). In Afram Export Corp., the plaintiff had sought
damages in a breach of contract action for opportunity costs incurred because of
defendant’s breach of contract. Afram Export Corp., 772 F.2d at 1370. In declining to
sustain this expansive claim, the court observed that:
A party who wants a court to adopt an innovative rule of state
law should litigate in state rather than federal court (if it can;
it cannot if the defendant removes the case to federal court).
Federal judges are disinclined to make bold departures in areas
of law that we have no responsibility for developing.
Id. at 1371; see In re C-T of Virginia, 958 F.2d 606, 612 (4th Cir. 1992) (quoting Afram);
Hinojosa v. City of Terrell, 834 F.2d 1223, 1231 n.12 (5th Cir. 1988) (same).
Similarly, in Shaw, 810 F.2d at 150, the plaintiff asked the federal court to
recognize a new exception to the general rule that a corporation which purchases the assets
of another corporation does not also assume its liabilities. In declining to create such an
exception, the Court of Appeals reiterated its “unwillingness to speculate on any trends in
state law.” Id. The court went on to point out that:
We write only to emphasize that our policy will continue to be
one that requires plaintiffs desirous of succeeding on novel
state law claims to present those claims initially in state court.
Id.
In the absence of any authority that Luken’s invasion of attorney-client privilege
claim comports with Iowa law, or that Iowa courts would adopt it if given the opportunity,
I decline to take such a bold departure from established Iowa law and will not adopt
Luken’s theory. Therefore, this portion of Edwards’s motion is granted.
20
III. CONCLUSION
For the reasons discussed above, Edwards’s Motion to Dismiss is denied as to
Luken’s Title III, Iowa common law invasion of privacy, and Iowa Code Chapter 808B
claims. Edwards’s motion is granted as to Luken’s invasion of attorney-client privilege
claim.
IT IS SO ORDERED.
DATED this 3rd day of May, 2011.
__________________________________
MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
21
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?