Opinion
CIVIL ACTION NO: 00-3795 SECTION: "J"(1)
June 21, 2001
The following motions are before the Court:
Defendant Charles B. Plattsmier's Motion to Dismiss (Rec. Dcc. 9)
Defendants Donald L. Hyatt and Lawanda Becnel's Motion for Summary Judgment (Rec. Doc. 12)
Defendants Hyatt and Becnel's Motion to Dismiss (Rec. Doc. 14)
Defendant Spyridon, Koch, Wallace Palermo, L.L.C.'s ("Spyridon") Motion for Summary Judgment (Rec. Doc. 15)
Defendant Spyridon's Motion to Dismiss (Rec. Doc. 16)
The motions were originally set for hearing on April 18, 2001, on the briefs without oral argument. Because defendants Hyatt, Becnel, and Plattamier asserted that they were entield to qualified immunity, Plaintiff was ordered to file a reply pursuant to Rule 7(a). Shortly after Plaintiff filed her 7(a) reply, her counsel filed a motion to withdraw citing a conflict of interest. On May 17, 2001, the Court granted that motion and informed Plaintiff that it would withhold ruling on the pending motions until June 15, 2001, in order to give her time to enroll new counsel should she choose to do so. Plaintiff elected to proceed pro se and on June 15, 2001, she filed a supplemental reply and opposition to Defendants' motions to dismiss and for summary judgment. Accordingly, on June 15, 2001, the Court took the matter under advisement.
See Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995).
Having now considered the memoranda and applicable law, and finding that Defendants' arguments have merit, the Court concludes, for the reasons stated below, that Plaintiff's suit should be DISMISSED.
Background
This suit is based on alleged violations of federal wiretap law, 18 U.S.C. § 2510, et seq. (Title III of the Omnibus Crime Control and Safe Streets Act) and 42 U.S.C. § 1981, 1983, 1985. Plaintiff, Ermence Debose-Parent ("Plaintiff"), alleges that defendants taped her telephone conversations in violation of federal law and did so because she is black.
The events that gave rise to this suit transpired in September 1999. At that time, defendant Lawanda Becnel ("Becnel") had a whistleblower suit pending in state court against her former employer. In that suit, Becnel was represented by attorney, and defendant herein, Donald Hyatt, II ("Hyatt"). Defendant Spyridon was Hyatt's employer at the time. Ermence Debose-Parent, a licensed attorney and plaintiff herein, represented Becnel's former employer in the whistleblower suit.
On or about, September 20, 1999, Becnel told her attorney, Hyatt, that Plaintiff had attempted to engage in an ex parte communication regarding Becnel's whistleblower claim. Hyatt then contacted defendant Charles Plattsmier, Chief Disciplinary Counsel of the Louisiana Attorney Disciplinary Board ("Plattsmier") to discuss how Hyatt should handle the situation. During that discussion, Hyatt claims that Plattsmier told him that it would not be unethical to tape future ex parte conversations if Becnel, a party to the conversations, consented. On September 21, 1999, Hyatt and Becnel taped at least one telephone conversation between Plaintiff and Becnel. On September 22, 1999, Hyatt filed a formal bar complaint against Plaintiff. On December 2, 1999, Plaintiff filed a response and counter bar complaint against Hyatt.
On December 28, 2000, more than one year after the events that gave rise to this suit transpired, Plaintiff filed the instant lawsuit against Becnel, Hyatt, Plattsmier, and Spyridon (collectively "Defendants"), alleging that Defendants had taped her conversations in violation of the federal wiretapping statute, 18 U.S.C. § 2510, et seq., and had done so because she is black. In addition to the wiretap violations, she alleges civil rights violations pursuant to 42 U.S.C. § 1981, 1983, 1985. All defendants have moved to dismiss the case and/or for summary judgment arguing that the consensual recording(s) at issue did not violate federal wiretap law. They assert affirmative defenses of qualified immunity and untimeliness with respect to the civil rights claims.
Defendants Hyatt and Plattsmier are white. Defendant Becnel is black.
Discussion
When considering a motion to dismiss under Rule 12(b)(6), the court accepts plaintiff's factual allegations as true.Spiv v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999) (citing Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993); Blackburn v. City of Marshall, 42 F.3d 925 (5th Cir. 1995)). The court looks only to the face of the pleadings to determine whether plaintiff is entitled to relief based upon the facts alleged. Id. (citing St. Paul Ins. Co. v. AFIA Worldwide Ins. Co., 937 F.2d 274 (5th Cir. 1995)). While all factual allegations will be construed in the light most favorable to plaintiff, id. (citing Rubinstein v. Collins, 20 F.3d 160 (5th Cir. 1994), mere "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Southern Christian Leadership Conf. v. Supreme Court of La., 2001 WL 575601, at *4 (5th Cir. 2001) (quoting Fernandez- Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993)). In order to avoid dismissal for failure to state a claim, plaintiff must plead specific facts rather than conclusory allegations or unwarranted deductions of fact. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (quoting Tuchman v. DSC Commun. Corp., 14 F.3d 1061 (5th Cir. 1994)).
Summary judgment is proper when, taking the evidence in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Proctor Gamble Co. v. Amway Corp., 232 F.3d 539, 560 (5th Cir. 2001) (citing Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). After the nonmovant has been given an opportunity to raise a genuine factual issue, if no reasonable fact-finder could find for the nonmovant, summary judgment will be grant. Spiv, 197 F.3d at 775 (citing Celotex, 477 U.S. at 332, 106 S.Ct. 2548; Fed.R.Civ.P. 56(c)).
1. Wiretap Violations
Defendants argue that Plaintiff has failed to state a claim for a Title III violation. Section 2511 of Title III of the Omnibus Crime Control and Safe Streets Act ("Title III") precludes interception of any wire, oral, or electronic communication except in certain enumerated circumstances. 18 U.S.C. § 2511(1)(a). Any person who intercepts communications in violation of Title III is subject to a civil suit and faces potential liability for damages and attorney fees. See 18 U.S.C. § 2520 (a)-(b)
Where one party to the intercepted communication consents to the interception, two exceptions to Title III liability may apply. Pursuant to section 2511(2)(c),
It shall not be unlawful . . . for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.18 U.S.C. § 2511(2)(c) (emphasis added).
Pursuant to section 2511(2)(d),
It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.18 U.S.C. § 2511(2)(d) (emphasis added).
Accordingly, where one party to the communication consents to the interception and defendant acts "under color of law," no Title III violation has occurred and Plaintiff fails to state a claim. See Obron Atlantic Corp. v. Barr, 990 F.2d 861, 863-64 (6th Cir. 1993) (citing 18 U.S.C. § 2511(2)(c)). Where one party consents to the interception but defendant does not act "under color of law," Plaintiff must allege that the communications were intercepted for the purpose of committing a tortious or criminal act. In re Intuit Privacy Litigation, 2001 WL 370081, 138 F. Supp.2d 1272, ___ (C.D. Cal. 2001); see id. § 2511(2)(d). As both exceptions make readily clear, interception of telephone conversations does not render defendant's conduct per se unlawful.
In the instant case, it is undisputed that Becnel, a party to the intercepted communications, consented to having Hyatt record the conversations. It is also undisputed that Plattsmier, as Chief Disciplinary Counsel of the Louisiana Attorney Disciplinary Board, was acting under color of law when he advised Hyatt that there would be no professional ethics violation if Hyatt, with Becnel's consent, recorded the telephone conversations at issue. See Bishop v. State Bar of Texas, 791 F.2d 435, 438 (5th Cir. 1986) (recognizing that state bar employees and their investigators are state actors). Accordingly, Plaintiff's Title III claim against Plattsmier falls squarely within the ambit of section 2511(2)(c) — an enumerated exception to Title III liability. Accordingly, Plaintiff has failed to state a claim against Plattsmier for illegal wiretapping.
Hyatt and Becnel argue that they too acted under color of law because they undertook to record the conversations only after consultation with Plattsmier, an undisputed state actor. Although the color of law exception is readily applied to private citizens who act in concert with state actors, see. e.g., Obron, 990 F.2d at 864; United States v. Andreas, 216 F.3d 645, 660 (7th Cir. 2000), and while governmental participation in the interception need not be extensive, Obron, 990 F.2d at 864, typically the private party must at least act at the behest of the state actors involved. Andreas, 216 F.3d at 660 ("[T]he question is whether the (citizen] was acting under the government's direction when making the recording.").
In his affidavit in support of summary judgment, Hyatt states that he contacted Plattamier who told him that the conversations "should be taped." (Rec. Doc. 12, Exh. B, at 2). Aside from this comment, which Plattemier does not dispute, there is no evidence to show any other involvement by Plattsmier. In contrast, the cases cited by Hyatt and Becnel involve far more governmental participation than what seems to be present in this case. See, e.g., Obron, 990 F.2d at 865 ("The [government] attorneys asked for [defendant's] cooperation . . . sought assistance from the FBI . . ., and instructed [defendant] repeatedly on how to conduct himself during the conversations."). Nor has the Court's own research revealed any case where the "color of law" exception was applied where so little government involvement was present. Based on the evidence in the record at this time, the Court cannot conclude that Hyatt and Becnel acted "under color of law" when they recorded Plaintiff's conversations.
Assuming then that Hyatt and Becnel were not acting under color of law when they recorded the conversations, their conduct is still protected under the consensual interception exception found in section 2511(2)(d) unless they recorded the conversations for the purpose of committing a criminal or tortious act. In her complaint, Plaintiff asserts that Defendants taped her conversations solely because she is black. However, the complaint is devoid of any factual allegations that would tend to support such an assertion. Likewise, Plaintiff's Rule 7(a) reply merely repeats the bald unsupported allegations made in the complaint. In short, Plaintiff's attempt to state a Title III violation against Hyatt and Becnel are based solely on conclusory allegations or unwarranted deductions of fact rather than specific facts that would tend to show that the actions Defendants took were based upon her race. Collins, 224 F.3d at 498 (quoting Tuchman v. DSC Commun. Corp., 14 F.3d 1061 (5th Cir. 1994). Furthermore, considering that defendant Becnel is also black, Plaintiff does not even allege a prima facie case of racial animus. Accordingly, the Court concludes that Plaintiff has failed to allege a crucial element of her claim, i.e., that Hyatt and Becnel recorded her conversations for a criminal or tortious purpose. Consequently, she has failed to state a claim against Hyatt and Becnel for wiretap violations and those claims, like those against Plattsmier, must be dismissed. Given that any liability on the part of Spyridon's was based upon the acts of its employee Hyatt, the claims against Spyridon are likewise dismissed.
2. Civil Rights Violations
Defendants argue inter alia that Plaintiff's claims pursuant to 42 U.S.C. § 1981, 1983, and 1985 are barred by the applicable statute of limitations. The statute of limitations governing civil rights actions brought under sections 1981, 1983, and 1985 is borrowed from state law. Helton v. Clements, 832 F.2d 332, 334 (5th Cir. 1988). Accordingly, alleged wrongs committed by Louisiana state officials are governed by the one year prescriptive period set out in Louisiana Civil Code article 3492. Joseph v. City of New Orleans, 1996 WL 204433 (E.D. La. Apr. 25, 1996) (citing Watts v. Graves, 720 F.2d 1416 (5th Cir. 1983))
For purposes of the following analysis, the Court will assume, without deciding, that Plaintiff has stated a claim against defendants Hyatt and Becnel, two private persons. See Thomas v. Pearl, 998 F.2d 447, 451 (7th Cir. 1993) (holding that "under color of law" in the Title III context should be interpreted far more narrowly than state action in the civil rights context).
Although state law controls which statute of limitations period applies to claims under sections 1981, 1983, and 1985, federal law determines when a cause of action accrues, i.e., when the applicable statute of limitations begins to run. Helton, 832 F.3d at 334 (citing Rubin v. O'Koren, 621 F.32d 114 (5th Cir. 1980, on reh'g, 644 F.2d 1023 (5th Cir. 1981)). Pursuant to federal law, a cause of action accrues the moment the plaintiff knows or has reason to know of the injury that is the basis of her complaint. Id. at 335 (citing Rubin, 621 F.2d at 116; Drayden v. Needville Indep. Sch. Dist., 642 F.2d 129 (5th Cir. 1981)). In other words, the statute of limitations begins to run from the moment plaintiff becomes aware that she has suffered an injury or has sufficient information to know that she has been injured. Id. (citing Rubin, 621 F.2d at 116; Singleton v. City of New York, 632 F.2d 185 (2d Cir. 1980)).
In support of their motion for summary judgment, Hyatt and Becnel attached the September 22, 1999 bar complaint that Hyatt filed against Plaintiff. (Rec. Doc. 12; Hyatt Affidavit Attach. #2). The bar complaint recounts in detail how and when Hyatt and Becnel taped telephone conversations between Plaintiff and Becnel. It also states that Hyatt taped the telephone conversations only after consultation with Plattsmier. Plaintiff had this bar complaint, replete with the information just noted, in her possession no later than December 2, 1999. On December 2, 1999, Plaintiff authored a response to the complaint to James Daly, Deputy Disciplinary Counsel, in which she herself refers to the fact that Hyatt had taped her phone conversations after he "obtained permission" from Plattsmier. (Rec. Doc. 12; Hyatt Affidavit Attach. #4). Further, in her own affidavit, Plaintiff acknowledges that she knew as early as October 1999, that Hyatt and Becnel had made the recordings after consultation with Plattsmier. (Rec. Doc. 28). Notwithstanding the knowledge she possessed as early as October 1999 but no later than December 2, 2001, Plaintiff did not file the instant suit until December 28, 2000 — well outside of the one year statute of limitations. Consequently, Plaintiff's civil rights claims are untimely.
According to Plaintiff's Rule 7(a) reply, she actually received a copy of the Hyatt bar complaint in October 1999. Rec. Doc. 29, ¶ 2.
In an attempt to avoid the statute of limitations bar, Plaintiff argues that her cause of action did not accrue until January 2000. She states that it was not until January 2000 that she learned that Hyatt, Becnel, and Plattsmier had conspired to file untrue disciplinary charges against her because she is black. In support of this assertion, she submitted a copy of a motion to disqualify filed by Hyatt in the whistleblower suit on January 13, 2001. She asserts that it was not until she read footnote 1 of the memorandum in support that she discovered the conspiracy because at that time she discovered that Plattsmier had given Hyatt "permission" to tape her conversations. (Rec. Doc. 29; Rec. Doc. 28 (Plaintiff's affidavit dated April 24, 2001)); Plaintiff's supplemental reply, at 19.
The Court is unpersuaded by Plaintiff's argument for several reasons. First of all, the footnote at issue adds nothing substantive in addition to what Plaintiff already knew by December 2, 1999. Rather, the footnote merely states that the Office of Disciplinary Counsel indicated that the taping was "appropriate." (Rec. Doc. 28, Exh. #2). By Plaintiff's own admission, she knew by December 2, 1999, that Hyatt had consulted Plattsmier before recording the conversations, and that Plattsmier had sanctioned that conduct. (Rec. Doc. 29, ¶ 2; Rec. Doc. 28; Rec. Doc. 12, Hyatt Affidavit Attach. #2).
Furthermore, even if Plaintiff had discovered in January 2000, that Defendants' were engaged in a conspiracy, her claims would still be time-barred. In Helton v. Clements, the Fifth Circuit held that the statute of limitations under section 1981, 1983, and 1985 begins to run when plaintiff has knowledge of the overt acts involved in the alleged conspiracy, not when plaintiff recognized those acts to be part of a conspiracy. 832 F.2d at 335. As noted above, Plaintiff knew by December 2, 1999, of all the overt acts involved in the alleged conspiracy. She knew that Becnel and Hyatt had taped her conversations, and that they had done so after consultation with Plattsmier. Because she did not file suit within one year of having discovered these events, her claims pursuant to 42 U.S.C. § 1981, 1983, and 1985 are barred by the applicable statute of limitations, and therefore, are dismissed.
Accordingly;
IT IS ORDERED that the Motion to Dismiss (Rec. Doc. 9) filed by Charles B. Plattsmier should be and is hereby GRANTED. Plaintiff claims against Plattsmier are DISMISSED WITH PREJUDICE; IT IS FURTHER ORDERED that the Motion for Summary Judgment (Rec. Doc. 12) and Motion to Dismiss (Rec. Doc. 14) filed by Donald L. Hyatt and Lawanda Becnel should be and are hereby GRANTED. Plaintiff's claims against Donald L. Hyatt and Lawanda Becnel are DISMISSED WITH PREJUDICE; IT IS FURTHER ORDERED that the Motion for Summary Judgment (Rec. Doc. 15) and Motion to Dismiss (Rec. Doc. 16) filed by Spyridon, Koch, Wallace Palermo, L.L.C.'s should be and is hereby GRANTED. plaintiff's claims against Spyridon, Koch, Wallace Palermo, L.L.C. are DISMISSED WITH PREJUDICE.