United States District Court, E.D. Kentucky, Northern Division
For Bertha Mae Huff, James Harold Huff, Plaintiffs: J. Kent Wicker, LEAD ATTORNEY, Dressman Benzinger LaVelle PSC, Louisville, KY; Mark D. Guilfoyle, LEAD ATTORNEY, Dressman Benzinger LaVelle P.S.C. - KY, Crestview Hills, KY.
For Carol Spaw, Defendant, Counter Claimant: Jon B. Allison, LEAD ATTORNEY, PRO HAC VICE, Randolph Harry Freking, Freking & Betz, Cincinnati, OH.
For James Harold Huff, Counter Defendant: J. Kent Wicker, LEAD ATTORNEY, Dressman Benzinger LaVelle PSC, Louisville, KY; Mark D. Guilfoyle, LEAD ATTORNEY, Dressman Benzinger LaVelle P.S.C. - KY, Crestview Hills, KY.
MEMORANDUM OPINION AND ORDER
David L. Bunning, United States District Judge.
This case arises from an all-too-familiar and embarrassing situation that most individuals with cell phones have experienced at some point: the " pocket" or " butt" dial. James Huff inadvertently called--or " pocket dialed" --Carol Spaw while he was on a business trip in Italy. Unbeknownst to Mr. Huff, Ms. Spaw listened in for 91 minutes to face-to-face conversations that Mr. Huff had with a colleague and his wife. Ms. Spaw recorded and transcribed a portion of those conversations. James and Bertha Huff have now accused Carol Spaw of surreptitiously intercepting their private conversations in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968.
Title III of the Act creates a private right of action for those whose communications have been unlawfully intercepted. But the private right of action is only available to those who were engaged in " wire, oral, or electronic communications" as each term is defined by the statute. 18 U.S.C. § 2520(a). As fully explained below, the private right of action created by Title III is not available to Mr. and Mrs. Huff under the facts of this case because they were not engaged in any of the protected forms of communication. If anything, they were engaged in an " oral communication" as that term is generally understood. But Title III does not protect every oral communication; it only prohibits the interception of oral communications " that were uttered with an expectation that such communication is not subject to interception under circumstances justifying such expectation" 18 U.S.C. § 2510(2). As explained herein, Mr. and Mrs. Huff did not have a reasonable expectation of privacy that there face-to-face conversations would not be overheard by Ms. Spaw via Mr. Huff's pocket dial phone call. Therefore, Mr. and Mrs. Huff were not engaged in a type of communication protected by Title III.
This novel issue comes to the Court by way of Plaintiffs' Motion for Temporary Retraining Order and Preliminary Injunction (Doc. # 2), which has been fully briefed (Docs. # 13, 27). One of the factors the Court must consider in ruling on this motion is whether Plaintiffs are likely to succeed on the merits of their case. At oral argument, the parties agreed that if the Court concludes Plaintiffs are not likely to succeed on the merits--and, in fact, cannot prevail as a matter of law--then summary judgment pursuant to Rule 56(f), Federal Rules of Civil Procedure, would be appropriate. Because the Court finds that Plaintiffs do not have a viable cause of action against Defendant under Title III, the Court will deny Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction and grant Judgment in favor of Defendant on the federal claims.
II. Factual Background
In late October 2013, Plaintiffs James and Bertha Huff attended a conference in Bologna, Italy. They were accompanied by Larry Savage, a colleague of Mr. Huff, and Mr. Savage's wife. Mr. Huff and Mr. Savage attended the conference as representatives of the Kenton County Airport Board, which oversees the operations of the Cincinnati/Northern Kentucky International Airport (" CVG" ). Mr. Huff serves as Chairman of the Board; Mr. Savage serves as Vice-Chairman.
On the evening of October 23, 2013, Defendant Carol Spaw sent Mr. Huff an e-mail inquiring whether he planned to attend a dinner engagement in Italy the following evening. This was a typical task for Ms. Spaw, and in fact part of her job duties. Ms. Spaw is employed as Senior
Executive Assistant to the Chief Executive Officer of CVG, Ms. Candace McGraw, as well as liaison to the Kenton County Airport Board. In that role, one of her many tasks is to make travel arrangements for board members.
During a break in the conference the following day, Huff and Savage left the conference room and found a quiet, outdoor balcony so that they could discuss Airport personnel matters, including the continued employment of Ms. McGraw. However, before diving into their discussion, Huff made sure that nobody was around to overhear what they were saying. He ensured that the door to the balcony was closed, and that no one was standing in the courtyard below.
At the outset of the conversation, the two discussed whether they would attend the business event later that evening. Agreeing that they would both attend, Huff attempted to call Spaw via his iPhone. He was unsuccessful in reaching her though, apparently because he mis-dialed her number by one digit. Not knowing why the call failed to go through, Mr. Huff placed his cell phone back in the breast pocket of his suit. Savage then successfully reached Ms. Spaw . He had a short conversation with her and confirmed that he and his wife, along with Mr. and Mrs. Huff, planned to attend the dinner engagement later that evening. Savage and Spaw hung up their respective phones at the conclusion of their conversation.
Shortly thereafter, Huff placed the now infamous " pocket dial" to Spaw's office phone at the Airport. Spaw answered the phone and could immediately hear Huff and Savage talking in the background, although she could not make out what they were saying. Spaw said " hello" at least six times within the first minute of the call but neither Huff or Savage responded.
When neither Huff or Savage responded, Spaw placed the call on speaker phone to try to hear what they were saying. She said " hello" several more times, but again heard no response. Spaw then enlisted the help of Nancy Hill, another CVG employee, to help determine what Huff and Savage were discussing. Within the first minute and a half of the phone call, Spaw and Hill determined that Huff and Savage were discussing CEO Candace McGraw's employment. Spaw instructed Hill to take down notes of what she heard.
Approximately forty-one (41) minutes into the phone call, Spaw could tell that Huff and Savage's conversation had come to an end and that they had returned to the conference room. At her deposition, she all but agreed that she did not expect Huff or Savage to engage her in conversation at this point. Instead, she explained that she remained on the line because she felt she needed to document what she perceived as inappropriate behavior. Specifically, she felt that Huff and Savage were plotting to take discriminatory action against McGraw, and possibly violate the Board's code of conduct and criminal law. She intended to remain on the line to hear if Huff and Savage made any other potentially damning remarks.
The conference ended approximately one hour and ten minutes into the call. By this point, Spaw had acquired a recording device from the Airport's IT department so that she could record any conversations she deemed relevant. Spaw listened in as Huff and Savage left the conference room and walked back to their respective hotel rooms. Along the way, Spaw heard Huff and Savage talk about completely innocuous subjects such as gospel music, taking a nap and meeting in the lobby later in the evening. Spaw, however, remained on the line hoping to hear additional damning conversations.
Approximately one hour and fifteen minutes into the call, Huff returned to his
hotel room where his wife, Bertha, was waiting for him. Alone in their hotel room, the husband and wife talked about innocent things like all couples do. But Mr. Huff also shared with his wife many of the details about his conversation with Savage earlier in the day, including details about Airport personnel matters. Eight-seven minutes into the call, Spaw used the recording device provided by the IT department to record the final four minutes of the Huffs' conversation.
Resting up from a long day, the Huffs laid down on their hotel bed and continued their conversation. They continued to discuss airport personnel matters and McGraw, and Spaw continued to record what she overheard. While on the bed, Mr. Huff looked at his cell phone and realized that it had an open call with Spaw's office phone. He initially thought the call had been open for a minute and twenty-nine seconds, but later realized that the call had actually lasted one hour and twenty-nine minutes to this point. Mr. Huff testified that he immediately hung up the call. However, cell phone records indicate that the call lasted one hour and thirty-one minutes, suggesting that he left the call open for an additional two minutes after first noticing it.
Once the phone call had concluded, Spaw took the handwritten notes and converted them into a typewritten transcript of the conversation. The parties agree that the transcript is nothing close to a verbatim recitation of the conversations, but more akin to a summary with intermittent quotations. Spaw also uploaded the audio recording onto her office computer, and later uploaded the recording onto a thumb drive so that it could be transferred to a third-party company to enhance the audio. Both the transcript and audio recording were eventually shared with members of the Board.
On December 3, 2013, the Huffs filed a Verified Complaint (Doc. # 1) alleging, inter alia, that Spaw violated various provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Specifically, they assert that Spaw: (1) intentionally intercepted their private face-to-face conversations in violation of 18 U.S.C. § 2511(1)(a); (2) intentionally disclosed the contents of their private face-to-face conversations knowing that they had been unlawfully intercepted in violation of 18 U.S.C. § 2511(1)(c); and (3) intentionally used the contents of their private face-to-face conversations knowing that they had been unlawfully intercepted in violation of 18 U.S.C. § 2511(1)(d). They seek a declaratory judgment that Spaw violated each of these provisions of the Act, as well as monetary damages and attorney's fees as provided by 18 U.S.C. § 2520(b).
Before diving into the merits of the Huffs' claims an additional fact must be noted: the Huffs knew that pocket dials are relatively common in the age of smart phones. In fact, Mrs. Huff admitted during her deposition that she has pocket dialed people " many times." (Doc. # 20 at 10). Mr. Huff was not quite as forthcoming in his deposition about placing previous pocket dials, but he eventually admitted, " I'm certain I have [pocket dialed people] . . . " and that he " believed" he had placed previous pocket dials. (Doc. # 21 at 23 and 24). However, Mr. and Mrs. Huff testified that they expect the recipient of a pocket dial call to hang up once they discover they were inadvertently called.
III. Standard of Review
As previously stated, this matter is presently before the Court on Plaintiff's Motion for a Preliminary Injunction. It is purely within the discretion of this Court ...