Francis, West Orange, NJ, for plaintiffs.
Weiner Lesniak by Richard L. Rudin, Roseland, NJ, for defendants Tp. Plaintiffs allege that electronic listening and taping devices were surreptitiously placed in certain areas of police headquarters and on the building's phone lines. As a result, they allege, their private conversations were unlawfully intercepted. Specifically, plaintiffs bring six separate claims: Now before the court are numerous motions for summary judgment by defendants on various grounds and plaintiffs' motion for leave to file a fourth amended complaint.
For the reasons which follow, defendants' motions will be granted in part and denied in part and plaintiffs' motion will be denied. Much of the relevant factual background is set forth in the court's opinion denying plaintiffs' motion for class certification and defendants' motion to dismiss. Woodbridge Police Department, F. Because certain aspects of the case have changed since that opinion was issued, however, the court will briefly set forth the parties and the facts relevant to these motions.
Defendant Anthony O'Brien became a Woodbridge Police Officer in and worked his way up through the ranks, eventually succeeding Galassi as Director of Police in Defendant Walter Zirpolo, now deceased, served as Mayor of Woodbridge from to Zirpolo hired Galassi as Director of Police during his tenure as Mayor. Defendant NJB is a regulated public utility and a communication common carrier. The state court action was, nonetheless, subsequently dismissed without prejudice.
Plaintiffs filed a complaint in this court in August, on behalf of a class comprised of all persons who worked as police officers for the Woodbridge Police Department from to and their families and associates who visited or telephoned the station house during that time.
In its previous opinion, the court denied plaintiffs' motion to certify the class. Moreover, the court made clear at that time what was required for an individual plaintiff to have standing: Where there has been no interception, there can have been no injury. Subsequent to the denial of class certification, plaintiffs moved to amend the complaint to join other individuals as plaintiffs in the action.
Consistent with this court's prior ruling, Magistrate Judge Chesler granted the motion in part and denied it in part, permitting the complaint to be amended to include as plaintiffs the sixteen individuals who were able to demonstrate that they had at least one conversation intercepted. See Order dated October 16, Discovery has been completed and, defendants' dispositive motions and plaintiffs' motion for leave to file a fourth amended complaint aside, the case is ready for trial.
The general factual background of this litigation is set forth in the court's previous opinion. Specific factual arguments and evidence relating to specific claims or specific defendants will be discussed in the context of the court's legal analysis of these motions.
The motions for summary judgment present a complex web of legal arguments and factual references. There are five separate defendants moving for summary judgment on some or all of the six counts of the third amended complaint.
While "Two of us hookup service bridgewater nj police blotter" arguments are made by more than one defendant or are joined post hoc by other defendants, there are numerous arguments which apply to one defendant alone, one or a few plaintiffs, or only one or a few of the counts of the complaint. In its previous opinion, the court noted that because the accrual of the statute of limitations as to each plaintiff will depend on an individualized determination as to when he became aware of both the fact of injury and the causal connection to one or more of the defendants, statute of limitations issues could not be resolved on class-wide basis.
Finding defendants' evidence regarding the statute of limitations inconclusive at that juncture, the court invited a renewed motion on statute of limitations grounds "should Two of us hookup service bridgewater nj police blotter discovery clarify what is now unclear. NJB, joined by Galassi, O'Brien, and Zirpolo, now argues that plaintiffs' claims are barred on statute of limitations grounds. All defendants' arguments must fail.
Plaintiffs do not dispute that all their claims are subject to a two-year statute of limitations, whether under federal law or state law. Plaintiffs filed their federal complaint on August 2, The question, then, is whether the court can determine as a matter of law that any or all of the plaintiffs' claims against defendants accrued prior to August 2, NJB suggests, moreover, that plaintiffs' cause of action could well have accrued on June 21,the date on which the State Police did a "sweep" of police headquarters.
But NJB's statute of limitations argument makes utterly no reference to the knowledge or awareness of any individual plaintiff, rather treating all plaintiffs as one. NJB apparently fails to appreciate the court's previous statement that the accrual of the statute of limitations requires an inquiry which is "specific to each plaintiff and Parenthetically, this point was not lost on the Woodbridge defendants, who concede in their brief that "the questions as to the accrual of the causes of action by individually-named plaintiffs may still need to be clarified at this time Additionally, while plaintiffs apparently knew of the existence of the State Police report prior to August,knowledge of the existence of that report and knowledge of the report's contents are far different matters.
Although defendants maintain that plaintiffs could have known the contents of Two of us hookup service bridgewater nj police blotter report prior to August, with the exercise of reasonable diligence and therefore should have knownthe court cannot say as a matter of law that this is so.
The Woodbridge defendants rest their argument on another piece of evidence.
This argument, too, must fail. Although the minutes of this meeting certain portions of which were ordered redacted during discovery on the basis of attorney-client privilege clearly mention the "bugging" of police headquarters, the statements therein do not establish that the PBA or any other plaintiff knew or should have known of their purported injury and the causal connection to defendants.
In short, although defendants may ultimately prevail on the statute of limitations issue, that issue must be addressed to the jury. The threshold issue of statute of limitations aside, one of the primary themes of defendants' motions for summary judgment as they relate to intercepted telephone conversations is that plaintiffs cannot produce evidence to show that any conversations in which plaintiffs enjoyed a reasonable expectation of privacy were intercepted.
Defendants move for summary judgment on plaintiffs' claims insofar as they relate to the interception of conversations on the station Two of us hookup service bridgewater nj police blotter "beeped" phone lines. Defendants concede for purposes of the motions that all telephone calls going into or coming out of the station house were taped on the Dictaphone machine in the basement.
All but two of the phone lines in the station house were trunk lines subject to recording. Recording was signified by a beep every five seconds which was audible to the telephone's user. The deposition testimony of each and every individual plaintiff indicates that all were aware that the beeped lines were recorded. Arguing that plaintiffs could not have had a reasonable expectation of privacy in talking on these beeped lines, defendants move for summary judgment on all claims as they relate to conversations over beeped telephone lines.
While this argument is persuasive as to certain of plaintiffs' claims, it is not as to others. Because the standards governing plaintiffs' various claims differ, they will be considered seriatim. See Letter Opinion, dated May 10, denying plaintiffs' motion for reconsideration of denial of class certification hereinafter "Letter Opinion". As the court's previous overview of the development of the constitutional law of privacy made clear, the law most favorable to plaintiffs is Katz v.
Thus, for purposes of the summary judgment motions, the court will apply the Katz "reasonable expectation of privacy" formulation to determine "Two of us hookup service bridgewater nj police blotter" plaintiffs' constitutional claims regarding conversations which occurred over beeped telephone lines are legally viable. It is clear that plaintiffs did not have a reasonable expectation of privacy in conversations which took place over the beeped telephone lines. The Supreme Court has described the "reasonable expectation of privacy" test endorsed in Katz as follows:.
The first prong of this inquiry relates to the person's subjective intent, i. The second prong is an objective component, i. It is clear beyond any doubt that because all the police officer plaintiffs knew that the beeped phone lines were recorded, they had no subjective expectation that conversations on those lines would be private, and there certainly is no evidence on this score. Moreover, even were the evidence not so conclusive on the subjective prong of Katz, ample evidence supports the conclusion that the significance of the beeps was common knowledge among the Woodbridge police officers and, thus, that any subjective expectation of privacy could not be reasonable.
As will become clear, however, defendants apparent assumption that the "reasonable expectation of privacy" standard governs these claims is incorrect.
Both the federal and the state wiretap statutes cover the interception of two kinds of communications, "wire" and "oral. Both statutes define "oral communication" to include "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation News ; United States v.
But see Walker v. Of critical importance here, however, is that defendants have moved for summary judgment only as to the telephone conversations of plaintiffs.
Telephone conversations fall under the definition of "wire communication" in both the federal and state acts. American Air Filter Co. As a comparison between the definitions of "oral communication" and "wire communication" elucidates, wire communications, unlike oral communications, are generally protected regardless of whether the person making or receiving such communications has an expectation of privacy. See Briggs, F. Plaintiffs' reasonable expectation of privacy being irrelevant to statutory liability for the alleged interception of wire communications, defendants' motion for summary judgment on these claims as they relate to conversations on beeped or for that matter any telephone lines on the basis that plaintiffs had no expectation of privacy in such conversations must be denied.
Rather, defendants attack these claims only as to certain plaintiffs on the basis that the claims lack factual support. Defendants argue that the evidence indicates that some plaintiffs never used the unbeeped phone lines and that, therefore, they could not have had any conversations on these lines intercepted.
Certain plaintiffs have testified that they never had occasion to use such phone lines. R, at 89, 95; Trainor Dep. S, at 89; Hodes Dep. B, at 41; Festa Dep. F, at Two of us hookup service bridgewater nj police blotter Schreck Dep. Accordingly, defendants' motion for summary judgment will be granted as to the claims of plaintiffs Polhamus, Trainor, Hodes, Festa, and Schreck which rely on such conversations. The Fifth Count of the complaint alleges that defendants violated plaintiffs' right to privacy as guaranteed by the Constitution of the State of New Jersey.
The Sixth Count alleges the tort of "intrusion upon seclusion. None of the parties disputes that the strictures of the NJTCA apply to plaintiffs' state constitutional and common law claims against the public entity and public employee defendants, i. Under the NJTCA, damages may be recovered from a public entity or employee for pain and suffering only under certain circumstances.
New Jersey courts have characterized the symptoms accompanying emotional distress as within the definition of pain and suffering.
There is no dispute that plaintiffs have failed to meet both of these requirements. Recognizing this failure, plaintiffs do not oppose defendants' motion for summary judgment as to emotional distress, emotional anguish, and pain and suffering under state and common law.
Lest there be any confusion concerning the effect of this concession and, even without concession, the undeniable failure to comply with N.