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Caro v. Weintraub

August 13, 2010

MARSHALL CARO, PLAINTIFF-APPELLANT,
v.
ERIC WEINTRAUB, DAVID H. WEINTRAUB, GLENNWILLIAM DOWD, AND DAY PITNEY LLP, DEFENDANTS-APPELLEES.



SYLLABUS BY THE COURT

Appeal from an order of the United States District Court for the District of Connecticut (Dorsey, J.), entered on August 4, 2009, dismissing appellant Marshall Caro's complaint.

AFFIRMED.

The opinion of the court was delivered by: Wesley, Circuit Judge

Argued: April 19, 2010

Before: CABRANES, WESLEY, LIVINGSTON, Circuit Judges.

Plaintiff-Appellant Marshall Caro filed a complaint in the United States District Court for the District of Connecticut (Dorsey, J.) alleging, inter alia, a civil cause of action under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, codified at 18 U.S.C. §§ 2510-21 ("Title III" or the "Wiretap Act"). The district court dismissed Caro's complaint. We affirm, and, in so doing, hold that the exception to the one-party consent provision of 18 U.S.C. § 2511(2)(d) requires that a communication be intercepted for the purpose of a tortious or criminal act that is independent of the intentional act of recording.

I. BACKGROUND

In early February 2008, Elizabeth Caro, who was in the final days of a painful battle with lung cancer, was visited by her sons Eric and David Weintraub, along with their families, and her brother and sister-in-law Thomas and Lynn Corrigan. During the visit, Elizabeth spoke with her sister-in-law, Lynn, in the kitchen about Lynn's desire to have Elizabeth sign a draft of a will that Thomas had prepared. The draft named Thomas as the executor of Elizabeth's estate and contained provisions to which Elizabeth allegedly objected. Elizabeth's husband, Marshall Caro - the plaintiff-appellant here - informed Lynn that he had already hired an attorney to prepare their wills and that in their meeting with their attorney, Elizabeth had expressed different intentions than those set out in Thomas's draft.

At some point during this conversation, David and Eric Weintraub entered the kitchen. David placed his iPhone on the kitchen table and, unbeknownst to Marshall, used the device to record the conversation.*fn1 After the recording began, Thomas also entered the kitchen. It appears from Caro's complaint that the conversation at times included Thomas Corrigan and David Weintraub and, in the end, became quite heated between those involved.

Four days later, on February 6, 2008, Elizabeth died without completing a will. Marshall filed Elizabeth's death certificate with the Connecticut Probate Court and filed a Petition for Letters of Administration for Elizabeth's estate. Eric and David Weintraub, represented by attorneys from Day Pitney LLP, filed an Opposition to Marshall Caro's petition.

The Probate Court held a hearing on April 21, 2008. David testified that he had recordings of the kitchen conversation between Marshall and Elizabeth, and his attorney submitted a CD of the recordings.*fn2

On February 27, 2009, Marshall Caro filed a complaint in the United States District Court for the District of Connecticut (Dorsey, J.), alleging violations of Title III, along with various Connecticut state law claims.*fn3 In addition to David and Eric Weintraub, Caro named as defendants Day Pitney LLP and one of its lawyers, Glenn William Dowd. Upon Day Pitney's motion and over Caro's objection, the district court relieved Day Pitney from Connecticut's Local Civil Rule 83.13 and allowed a firm attorney to represent Day Pitney for the purpose of filing a motion to dismiss the complaint.*fn4

Defendants moved to dismiss, arguing, inter alia, that the recorded conversations did not qualify as "oral communications" within the scope of Title III because David Weintraub was a party to the conversation and Caro had no reasonable expectation of privacy in the conversation. Caro opposed the motion, arguing that he did not reasonably expect to be recorded and that David was not a party to the conversation. He also requested leave to amend his complaint.

The district court granted the motion to dismiss and denied Caro's motion to amend his complaint. Caro v. Weintraub, No. 3:09 CV 00335, 2009 WL 2358919, at *1 (D. Conn. July 31, 2009). The district court agreed that the recordings were not "oral communications" under the Wiretap Act because David Weintraub was a party to the conversation and Caro did not have a reasonable expectation that his conversation was private. Id. at ...


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