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Colandrea v. Town of Orangetown

May 22, 2007

NICOLE COLANDREA PLAINTIFF,
v.
TOWN OF ORANGETOWN, KEVIN NULTY, ROBERT ZIMMERMAN AND "JOHN DOE", EACH IN BOTH OFFICIAL AND INDIVIDUAL CAPACITIES DEFENDANTS.



The opinion of the court was delivered by: Stephen C. Robinson, United States District Judge

MEMORANDUM DECISION AND ORDER

Plaintiff Nicole Colandrea brings claims under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20 (hereinafter "Wiretap Act"), the First Amendment, the Fourth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and various state law claims. Defendants filed a motion to dismiss the complaint under Rule 12(b)(6) on various grounds discussed individually below. In addition, both Defendants and Plaintiff have cross-moved to disqualify each other's counsel. Plaintiff also moves for sanctions. For the reasons below, Defendants' motions are granted in part and denied in part. Plaintiff's motion is denied.

I. Facts

This matter is related to several other matters currently pending before the Court, involving a police officer in the Town of Orangetown, Lorraine Wetzel (Docket Numbers 03 Civ. 9896, 06 Civ. 5144, 06 Civ. 6117, 06 Civ. 15190), alleging, among other things, gender discrimination. Ms. Wetzel also alleges that, in retaliation for bringing her claim for gender discrimination, she has been the subject of a disciplinary hearing conducted by Joseph E. Wooley, a hearing officer appointed by the Orangetown Town Board.

Unrelated to those events, Plaintiff here alleges that on the evening of July 7, 2004, Plaintiff's boyfriend, Frank Dowd, a recovering alcoholic, became intoxicated and arrived home. Plaintiff's mother contacted the Orangetown Police Department, who arrested Mr. Dowd for disorderly conduct. While in custody, Mr. Dowd made several phone calls to Plaintiff, which are alleged to be of a highly personal nature. These phone calls were recorded, allegedly without notice to Mr. Dowd or Plaintiff.

Subsequent to these events, the disciplinary charges against Lorraine Wetzel were brought. For reasons not entirely clear from the face of the complaint, the recordings in question were played at Wetzel's disciplinary hearing. Thereafter, plaintiff brought this suit against Defendants alleging that the recordings had been made illegally, and that the playing of the recordings at Wetzel's disciplinary hearing injured her.

II. Analysis

A. 12(b)(6) Standard

In evaluating a motion to dismiss, a court "must view all allegations raised in the complaint in the light most favorable to the non-moving party . . . and 'must accept as true all factual allegations in the complaint.'" Newman & Schwartz v. Asplundh Tree Expert Co., Inc., 102 F.3d 660, 662 (2d Cir. 1996) (quoting Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163 (1993)) (citation omitted). In doing so, a court is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). A court must deny a motion to dismiss "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Stewart v. Jackson & Nash, 976 F.2d 86, 87 (2d Cir. 1992) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Because the complaint must allege facts which confer a cognizable right of action, "'[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" York v. Ass'n of the Bar, 286 F.3d 122, 125 (2d Cir. 2002) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

B. Wiretap Act Claims

Defendants move to dismiss Plaintiff's claims on the grounds that the recordings in question cannot be subject to suit because they were made by "an investigative or law enforcement officer in the ordinary course of his duties". See 18 U.S.C. § 2510(5)(a)(ii). Defendants' motion on this basis is denied.

Defendants argue that the Town of Orangetown routinely records all phone calls in and out of its police station, and therefore it is not subject to suit under the Wiretap Act. Although some courts have indicated that a town which routinely recorded all phone calls made in and out of its police station would not be liable under the Wiretap Act, see, e.g., Amati v. City of Woodstock, 176 F.3d 952 (7th Cir. 1999), the Court notes that those courts have also indicated that the exception applied to "routine non-investigative" recordings. See e.g., id. at 955 ("ordinary" refers to"routine noninvestigative recording of telephone conversations." ); United States v. Hammond, 148 F. Supp.2d 589, 592 n.3 (D. Md. 2001)("[O]rdinary course of an investigative officer's duties refer[s] to routine noninvestigative recording of telephone conversations, as opposed to recordings made pursuant to a specific investigation.")(internal quotes omitted). While Defendants assert that the town did indeed record all phone calls in and out of its police station, it supports this assertion by pointing to only one reference -- testimony given at the Wetzel disciplinary hearing. See Declaration of Edward Phillips, Ex. H at 144-45. While the Court may take judicial notice of this record of this disciplinary hearing, see Thomas v. Westchester County Health Care Corp., 232 F. Supp.2d 273, 276 (S.D.N.Y. 2002), the Court finds the record inadequate at this point to rule in Defendants' favor absent discovery on this issue.

Additionally, there is an inadequate factual record with regards to how much notice was provided to plaintiff or her boyfriend. The Second Circuit has suggested, but has specifically not decided, that some notice is required to come under the "ordinary course" exception. See United States v. Friedman, 300 F.3d 111, 122 (2d Cir. 2003). However, given there are no facts properly before the court regarding what notice if any was provided, the Court need not decide this issue at this time.

C. Fourth Amendment Claims

Similarly, Defendants' motion to dismiss the Fourth Amendment claims is also denied. In analyzing plaintiffs' Fourth Amendment claims, the question before the court is whether Plaintiff had a reasonable expectation of privacy that her phone call would not be recorded. See United States v. Titemore, 437 F.3d 251, 259 (2d Cir. 2006). Defendants assert that Plaintiff had no reasonable expectation of privacy because the policy of police departments recording all phone calls in and out of police station is well known. However, as discussed already, the Court has an inadequate factual record before it to ...


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