MARTUCCI v. GONZALEZ et al
OPINION. Signed by Judge William J. Martini on 3/22/17. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 2:14-cv-03267 (WJM)
WILLIAM C. MARTUCCI,
GERARDO GONZALEZ and YAMEL
GONZALEZ, a.k.a. YAMEL MARTUCCI
WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff William Martucci brings this action pro se against his daughter, Yamel
Gonzalez, and her husband, Gerardo Gonzalez (together, “Defendants”). Plaintiff alleges
that Defendants surreptitiously recorded phone calls in violation of federal and state
wiretapping statutes. Defendants now move for summary judgment under Federal Rule of
Civil Procedure 56. Plaintiff opposes the motion, and cross-moves for summary judgment.
There was no oral argument. Fed. R. Civ. P. 78(b). For the reasons set forth below,
Defendants’ motion for summary judgment is GRANTED and Plaintiff’s motion for
summary judgment is DENIED.
The key facts are largely undisputed. During late 2011 and into 2012, Defendants,
Florida residents, recorded four telephone conversations with New Jersey resident William
Martucci, the plaintiff in this case. The parties were physically located in their respective
home states when the calls were made. The purpose of Defendants’ surreptitious recordings
was to generate evidence exculpating Defendants from civil liability and advancing the
criminal prosecution of Plaintiff in state court. Since March 2011, the parties have been
co-defendants in a civil action pending in this district relating to alleged fraudulent business
practices. See Pricaspian Dev. Corp v. Martucci, et al., 2:11-cv-01459, ECF No. 421. In
addition, Defendants filed criminal complaints against Plaintiff in 2012 and 2013 in Essex
County, New Jersey, initiating two criminal proceedings that both ended with a guilty plea
In May 2014, Plaintiff filed a pro se Complaint alleging the following
claims: violation of Florida’s wiretapping statutes, Fla. Stat. Ann. §§ 934.03, 934.09, and
934.10 (Count 1); “additional illegal wire taps” occurring in New Jersey (Count 2); a
Fourth Amendment violation (Count 3); violations of federal wiretapping laws 18 U.S.C.
§§ 2511, §§ 2516-18 (Counts 4-7); and violations of Florida Statute 94.11(4)(g) and 18
U.S.C. § 2520(b), (Count 8). ECF No. 1 at 4-11. Plaintiff seeks more than $12 million in
damages. Id. at 13-14. The Court has both federal question and diversity jurisdiction. 28
U.S.C. §§ 1331, 1332. Defendants now move for summary judgment, and seek attorney’s
fees and sanctions. ECF No. 26. Plaintiff opposes Defendants’ motion and moves for
summary judgment on all counts. ECF No. 33.
Federal Rule of Civil Procedure 56 provides for summary judgment “if the
pleadings, the discovery [including, depositions, answers to interrogatories, and
admissions on file] and disclosure materials on file, and any affidavits show that there is
no genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 32223 (1986); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). A factual
dispute is genuine if a reasonable jury could find for the non-moving party, and is material
if it will affect the outcome of the trial under governing substantive law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court considers all evidence and
inferences drawn therefrom in the light most favorable to the non-moving party. Andreoli
v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).
Initially, the moving party has the burden of demonstrating the absence of a genuine
issue of material fact. Celotex Corp., 477 U.S. at 323. Once the moving party has met this
burden, the nonmoving party must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial. Id. The opposing party must do more than
just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart
Corp., 260 F.3d 228, 232 (3d Cir. 2001). Rather, to withstand a proper motion for summary
judgment, the nonmoving party must identify specific facts and affirmative evidence that
contradict those offered by the moving party. Anderson, 477 U.S. at 256-57.
A. Florida Wiretapping Statute Claim (Count 1)
The Florida Security of Communications Act (the “FSCA”) creates a private cause
of action for “[a]ny person whose wire, oral or electronic communication is intercepted,
disclosed, or used,” unless all parties to the communication have consented. Fla. Stat. Ann.
§§ 934.03(1)-(2); 934.10. To state a claim under the FSCA, one of two conditions must be
met: “persons bringing suit must be Florida residents or the improper ‘interception’ must
have occurred in Florida.” Cohen Bros., L.L.C. v. ME Corp., S.A., 872 So.2d 321, 324 (Fla
Dist. Ct. App. 2004). “[Florida] law is clear that an ‘interception’ occurs ‘where the words
or the communication is uttered, not where it is recorded or heard.’” Leff v. First Horizon
Home Loan Corp., 2007 WL 1557977 (D.N.J. May 24, 2007), citing Cohen Bros., LLC,
872 So.2d at 324.
In this case, Plaintiff, a New Jersey resident, alleges he was in his Springfield, New
Jersey home when the calls took place. ECF No. 33, at p. 145. That is where his
communications were “intercepted” within the meaning of the FSCA. Because Plaintiff is
not a Florida resident, and the calls were “intercepted” outside of Florida, Plaintiff has not
adequately stated a claim under Fla. Sta. § 934. See Leff 2007 WL 1557977. (holding that
a plaintiff failed to state a claim under Fla Sta. § 934 because he was a New Jersey resident
communicating by phone from New Jersey). Because no “interception” occurred under the
FSCA, Defendants’ motion for summary judgment is GRANTED.
B. “Additional illegal” Wiretapping (Count 2)
Count Two alleges that in November 2014 in New Jersey, Defendants:
“arrived to Plaintiff at 3 Dundar Road, Springfield, NJ 07081. Plaintiff
approached the car that the Defendants were in. On the front seat was a
recording device. The Defendant tried to coerce and bribe the Plaintiff . . .
Upon information and belief the Defendants may have additional illegal
It is unclear what legal claim Plaintiff attempts to assert in Count II. Plaintiff
has not produced any evidence of recordings made in November of 2014 or of “any
additional recordings.” The motion papers focus entirely on the recordings made
by Defendants in Florida in 2011 and 2012. Count Two fails as a matter of law.
Defendants’ motion for summary judgment is GRANTED as to Count Two.
C. Fourth Amendment Claim (Count 3)
Count Three alleges that Defendants violated the Fourth Amendment of the United
States Constitution. The Fourth Amendment protects “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const. Amend. IV. The Fourth Amendment only protects against searches
and seizures by government officials or by individuals acting as “an instrument or agent
of the Government.” See Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 614
(1989) (citations omitted). Plaintiff fails to argue or provide evidence that Defendants
were acting as “instrument[s] or agent[s]” of Essex County prosecutors when the
recordings were made. See Skinner, 489 U.S. at 614. See id.; Groman v. Twp. of
Manalapan, 47 F.3d 628, 638 (3d Cir. 1995) (“The issue is not whether the state was
involved in some way in the relevant events, but whether the action taken can be fairly
attributed to the state itself.”). Instead, the record makes clear that Defendants initiated
and conducted the recordings on their own accord. Defendants’ motion for summary
judgment as to Count Three must be GRANTED.
D. Federal Wiretapping Claims (Counts 4-7)
Plaintiff claims that Defendants violated the Electronic Communications and
Privacy Act (“ECPA”) by recording their conversations without Plaintiff’s consent.
Section 2520 provides a private cause of action for “any person who intentionally intercepts
. . . any wire, oral, or electronic communication. Id. at §1(a).1 Unlike Florida law, however,
ECPA only forbids interceptions to which neither party has consented, “unless such
communication is intercepted for the purpose of committing any criminal or tortious act in
violation of the Constitution or the laws of the United States or of any State.” Id. at (2)(d).
Because Defendants obviously consented to their own recordings, Plaintiff must prove that
the recordings were made “for the purpose of committing [a] crime or tortious act.” Id.
The Court finds that there is no “genuine issue of material fact” supporting the claim
that Defendants used the recordings for unlawful purposes. See By-Prod Corp. v. ArmenBerry Co., 668 F.2d 956, 959 (7th Cir. 1982) (affirming summary judgment because the
“[d]esire to make an accurate record of a conversation to which you are a party is a lawful
purpose under the statute even if you want to use the recording in evidence.”).
Notwithstanding conclusory allegations of “defamation,” “blackmail” and “criminal
entrapment,” Compl. ¶ 37., Plaintiff concedes that Defendants’ primary purpose was to
use the recordings as evidence in civil and criminal litigation. See, e.g., ECF No. 33, p.
133. This conduct does not, without more, amount to a “criminal or tortious act.” See
United States v. Dale, 991 F.2d 819, 841 (D.C. Cir. 1993) (holding that a single-party
consent recording is not rendered “tortious” under § 2511 merely because “the recording
is made in the hopes of producing evidence of an illegal conspiracy.”); By-Prod Corp. v.
Armen-Berry Co., 668 F.2d 956, 959 (7th Cir. 1982) (citation omitted); United States v.
Kappler, 2014 WL 6949614, at *2-3 (D. Neb. Dec. 8, 2014). Defendants are entitled to
judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986) (“If
the moving party will bear the burden of persuasion at trial, that party must support its
motion with credible evidence . . . that would entitle it to a directed verdict if not
controverted at trial.”). Defendants’ motion for summary judgment is GRANTED as to
Count Five alleges that Defendants violated ECPA by “us[ing] emails to advance
their illegal wire tap information in the Federal Court.” As explained above, ECPA permits
the interception and disclosure of recordings created by a consenting party unless the
disclosure was made “for the purpose of committing [a] crime or tortious act.” 18 U.S.C.
§ 2511 (2)(d). Plaintiff has failed to produce evidence that the recordings were made for
an unlawful purpose. Plaintiff cannot point to an outstanding issue of material fact that
could lead a reasonable jury to a different conclusion. Defendants’ motion for summary
judgment on Count Five is GRANTED.
Section 2520 provides for a private right of action for violations of ECPA. 18 U.S.C.A. § 2520.
Count Six merely restates the claim made in Count Four, that Defendants violated
ECPA by surreptitiously recording their conversations with Plaintiff without his consent.
This claim is duplicative and fails as a matter of law. Defendants’ motion for summary
judgment of Count Six is GRANTED.
Count Seven alleges a violation of 28 U.S.C. §§ 2216-2218, but does not specify
any particular provision of these sections. In fact, these provisions are not relevant to
Plaintiff’s action. Section 2516 principally authorizes judges to issue wiretap warrants in
certain circumstances. Section 2217 dictates when and in what manner information
obtained by executing a wiretap warrant may be disclosed or used. Section 2218 governs
the procedure for applying for wiretap warrants. Plaintiff has not alleged that any warrant
was sought or that Defendants acted in coordination with law enforcement officials.
Defendants’ motion for summary judgment of Count Seven is GRANTED.
E. Count Eight
Count Eight attempts to state claims under Florida Statute § 95.11(g) and 18 U.S.C.
§ 2520(b). Florida’s Section 95.11(g) establishes a limitations period on claims asserted in
Count I of this Complaint, which have been denied. Section 2520 of the Federal statute
addresses forms of relief for federal wiretapping claims asserted in Counts 4-7, which have
also been denied. In neither case does Count Eight properly assert a freestanding claim.
Accordingly, Count Eight fails as a matter of law, and summary judgment is GRANTED.
F. Defendants’ Request for Sanctions
The Court does not find that Plaintiff’s conduct warrants sanctions.
Defendants’ motion for sanctions and attorney fees is DENIED
For the reasons stated above, Defendants’ motion for summary judgment is
GRANTED. Plaintiff’s motion for summary judgment is DENIED. All counts are
dismissed pursuant to the accompanying Order.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
March 22, 2017
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