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Burgess v. Fairport Central School Dist

June 20, 2008

SUSAN N. BURGESS AND CARMEN COLEMAN, PLAINTIFFS
v.
FAIRPORT CENTRAL SCHOOL DISTRICT, BOARD OF EDUCATION OF THE FAIRPORT CENTRAL SCHOOL DISTRICT, KEVIN RATCLIFFE, IN HIS PERSONAL AND OFFICIAL CAPACITIES, GOLDSTEIN ACKERHALT & PLETCHER, LLP AND JAY C. PLETCHER, DEFENDANTS



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

In this action Plaintiffs allege federal claims pursuant to 42 U.S.C. § 1983, Section 504 of the Rehabilitation Act, and 18 U.S.C. § 2520, as well as a New York State law claim entitled "interference with business." Now before the Court are the following motions: 1) a motion [#4] for summary judgment under Federal Rule of Civil Procedure ("FRCP") 56 and for sanctions under FRCP 11 by Defendants Goldstein, Ackerhalt and Pletcher, LLP and Jay C. Pletcher (collectively "the Pletcher Defendants"); and 2) a motion [#12] for summary judgment under FRCP 56 and for sanctions under FRCP 11 by Defendants Fairport Central School District, Board of Education of the Fairport Central School District, and Kevin Ratcliffe (collectively "the District Defendants"). For the reasons that follow, the applications for summary judgment are granted, and the applications for sanctions are denied.

BACKGROUND

Unless otherwise noted, the following are the undisputed facts of this case. At all relevant times, Plaintiff Carmen Coleman ("Coleman") was the mother of a child who attended the defendant Fairport Central School District ("the school"). At all relevant times, Defendant Kevin Ratcliffe ("Ratcliffe") was an administrator employed at the defendant school. At some time prior to August 4, 2006, Coleman demanded an impartial hearing concerning the provision of special education services to her child, pursuant to the Individuals with Disabilities in Education Act ("IDEA") and Section 504 of the Rehabilitation Act ("Section 504"). In connection with that demand, Coleman retained the services of an attorney, Plaintiff Susan N. Burgess, Esq. ("Burgess").

On August 4, 2006, Coleman and Burgess met with the school district's attorney, Defendant Jay Pletcher ("Pletcher"), in a conference room at the school district's administrative offices. The meeting began at approximately 11:30 a.m. and ended at approximately 1:30 p.m. During the meeting, Coleman, Burgess and Pletcher discussed a proposed settlement. In that regard, Burgess described the initial discussion that day as follows:

Initially, only Mr. Pletcher came into the conference room with Coleman and me. He also had a file that appeared to contain case materials. In relation to where Coleman and I were seated, this file was sitting on the far north corner of the west side of the square of tables.

Pletcher did not sit where his materials were located, however. Rather, he sat directly to the left of me, and Coleman to my right.

Before sitting down next to me, Pletcher placed a device that looked like a PDA [personal digital assistant] on the far south corner of the west side of the square of tables. This put the PDA or other device very near Pletcher's left arm and about two to three feet from me. (Burgess Affidavit ¶ ¶ 9-11). It is undisputed that Pletcher's PDA was a combination PDA/cell phone. After that discussion, Pletcher left the conference room, purportedly to discuss the proposed settlement with Ratcliffe in another office. Pletcher's PDA/cell phone remained on the table where he had placed it. Subsequently, Pletcher re-entered and exited the room several times. While Pletcher was out of the conference room, Plaintiffs discussed matters related to the case as well as personal matters. At one point, Plaintiffs began to discuss the fact that Pletcher had left his PDA/phone in the conference room. While they were doing so, Pletcher entered the room and recommended that, for the 2007-2008 school year, the year following the school year that was about to begin, Coleman enroll her child in a particular school specializing in students with learning disabilities, the Norman Howard School. According to Plaintiffs, Pletcher's suggestion in that regard was suspicious, since during the 2006-2007 school year, Coleman's child was in fourth grade, and would therefore not be old enough to attend the Norman Howard School until the following year. (Burgess Affidavit ¶ 14) ("Pletcher spoke of how Coleman's son needed that school and that it would be appropriate for him the following year (2007-2008)."). In any event, Burgess and Pletcher eventually reached a settlement agreement in principle, after which Pletcher left the conference room and returned a short time later with Ratcliffe and others, including the school's Special Education Director, Sheila McCarthy ("McCarthy."). After some additional discussion to finalize the terms of the settlement, the parties ended the meeting, at which time Pletcher retrieved his telephone/personal digital assistant from the conference table.

On or about November 2, 2006, Plaintiffs served a Notice of Claim pursuant to New York General Municipal Law § 50-e on the defendant school and the defendant school board, "setting forth various state law claims," including claims for "gross negligence" and "intentional infliction of emotional distress." (Complaint ¶ 32; Notice of Claim). In a letter to Pletcher of that date, Burgess specifically alleged that during the meeting on August 4, 2006, Pletcher, Ratcliffe and McCarthy eavesdropped on Plaintiffs:

My client Carmen Coleman and I have good faith bases to believe that you, Kevin Ratcliffe, and Sheila McCarthy eavesdropped on our conversations during the settlement conference at the District Office on August 4, 2006. We believe that you accomplished this by way of a PDA/cell phone that was dialed to Kevin Ratcliffe's office and that before leaving Ms. Coleman and me alone in the conference room, you placed on a table near where we were sitting. (Burgess Affidavit Exhibit C). In the same letter, Burgess demanded that Pletcher "produce the cell phone bill pages." (Id.). Pletcher did not respond to the demand.

On November 9, 2007, Plaintiffs commenced the subject action, and leveled the same serious accusation against Defendants, to wit: That on August 4, 2006, Pletcher and Ratcliffe used Pletcher's cell phone/PDA to eavesdrop on Coleman's and Burgess's private conversations in the conference room. In that regard, the Complaint states, in relevant part:

Upon information and belief, before leaving the conference room, Pletcher placed a recording device, to wit, a personal digital assistant (PDA) that included a telephone, or Burgess and Coleman were alone in the conference room for a least 25 minutes, during which time, upon information and belief, their communications were being intercepted by the PDA or similar device to Pletcher and Ratcliffe in Ratcliffe's office.

Upon information and belief, Pletcher dialed Ratcliffe's office telephone sometime before meeting with Burgess and Coleman alone, which allowed Pletcher and Ratcliffe to listen to Burgess's and Coleman's conversations.

Upon information and belief, Pletcher and Ratcliffe eavesdropped on Burgess's and Coleman's conversations while Burgess and Coleman were alone in the conference room.

During the time that Burgess and Coleman were alone in the conference room, they discussed personal matters and factual and legal matters pertaining to Coleman's special education impartial hearing request and possible federal court action. (Complaint ¶ ¶ 21-24) (paragraph numbering omitted). Plaintiffs' complaint purports to set forth five separate causes of action: 1) "Fourth Amendment"; 2) "18 U.S.C. § 2520"; 3) "Retaliation" under Section 504 of the Rehabilitation Act; 4) "Section 1983"; and 5) "Interference with Business." All of Plaintiffs' claims are based on the alleged eavesdropping by Pletcher and Ratcliffe. (See, Complaint, ¶ ¶ 39-57).

On December 11, 2007, Burgess wrote to the Court and requested a conference, stating: "At that conference, I will request that the Court ascertain all relevant phone numbers (including Mr. Pletcher's and Mr. Ratcliffe's cell phone numbers at the time [of the August 4, 2006 conference] and Mr. Ratcliffe's direct office number at the time). I will request that the Court ascertain who the providers for those numbers were and issue subpoenas for telephone records from August 4, 2006." (Burgess Affidavit Exhibit H). Pletcher's counsel responded by opposing the request for a conference and for discovery, stating that his client had not even been served with the complaint. Pletcher's attorney further stated: "It is my intention after [service of the complaint] to file with the Court an appropriate dismissal motion addressed at the Complaint, together with a motion for Rule 11 sanctions, seeking redress for what, I am sure, will be demonstrated as an ill-informed and ill-conceived pleading." (Id. Exhibit I). On December 13, 2007, Burgess responded by stating, inter alia: "I . . . protest the threat of a Rule 11 sanctions motion, which by the terms of that rule is not to be filed or disclosed to a court until after service of a specific motion on the party and the passage of 21 days." (Id. Exhibit J).

On January 2, 2008, the Pletcher Defendants filed a combined motion [#4] for summary judgment and for Rule 11 sanctions. In support of the application, Pletcher has submitted a sworn affidavit, in which he denies using his cell phone/PDA to eavesdrop on Plaintiffs. In that regard, Pletcher states that the cell phone/PDA that he left on the conference table on the date in question was his, and bore the telephone number 716-573-4782. Pletcher has submitted a redacted copy of the cell phone records for that telephone number, and states:

I did not place any phone calls from my PDA/cell phone during the time in which the August 4, 2006 settlement conference was taking place.

My cell phone provider is Sprint, and my telephone number for my PDA/cell phone is 716-573-4782.

After receiving notice of the serious allegations brought by Burgess against myself and the District, I secured records from Sprint for the relevant time period in question. The Sprint cell phone records for phone number 716-573-4782 are attached hereto as Exhibit C. These records show conclusively that no phone calls were placed from, or received to, my PDA/cell phone between the hours of 11:15 a.m. and 1:40 p.m. other than a single one-minute incoming call that was received at approximately 11:32 a.m. The only phone calls that I placed from my PDA/cell phone on the morning of the alleged incident occurred before the meeting commenced, were not placed to any District Office, and never exceeded four minutes in duration. (Pletcher Affidavit ¶ ¶ 14-17). The Court notes that, with regard to the application for Rule 11 sanctions, the Pletcher defendants did not serve the motion on Plaintiffs 21 days prior to filing the motion with the Court, as required by FRCP 11(c)(2). (Burgess Stmt. Of Facts ¶ 38).

On January 11, 2008, the District Defendants filed a combined motion [#12] for summary judgment and for Rule 11 sanctions. In support of that application, Ratcliffe has submitted an affidavit in which he categorically denies having eavesdropped on Plaintiffs, "using Mr. Pletcher's PDA device or through any other means." (Ratcliffe Affidavit at ¶ 7). Ratcliffe has also submitted telephone records, both for his office telephone and for his personal cell phone, for the date of August 4, 2006, which he maintains show conclusively that he was not in telephone contact with Pletcher's PDA/cell phone during the relevant time. With regard to the motion for Rule 11 sanctions, the District Defendants also did not comply with FRCP 11(c)'s requirement that the motion be served 21 days before filing with the Court.

On March 23, 2008, Plaintiff Susan Burgess filed her response [#17] to Defendants' motions. In an affidavit, Burgess offers essentially two main reasons why she believes that Pletcher eavesdropped on the conversation between herself and Coleman. First, she states that it appeared that Ratcliffe ...


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