WARREN W. EGINTON, District Judge.
Plaintiff Arlene Villamia Drimal filed this action against defendants, all FBI agents, alleging that her communications were intercepted in violation of Title 18 Section 2520 of the United States Code and Section 52-570d of the Connecticut General Statutes. All sixteen defendants have filed motions to dismiss [Docs. #19 and 21]. For the following reasons, defendants' motions will be denied.
In deciding a motion to dismiss, the Court accepts all well-pleaded allegations as true and draws all reasonable inferences in favor of the plaintiff.
During all times mentioned in this action, all defendants were employees of the Federal Bureau of Investigation working at the Queens, New York, office. The agents were investigating plaintiff's husband for conspiracy to commit securities fraud.
In that criminal case,
Between November 16, 2007, and January 15, 2008, defendants participated in the unlawful interception and monitoring of more than 180 confidential and privileged marital telephonic communications to which plaintiff was a party. All of these communications took place over plaintiff's telephones located in Connecticut.
Defendants David Makol and Jan Trigg were Supervising Agents who directly and personally supervised all of the actions of the other defendants. They were aware of the unlawful actions of the other defendants and tolerated or encouraged such unlawful actions. Moreover, during the course of the events described below, defendant Makol was explicitly warned by Assistant United States Attorney Andrew Fish that privileged marital communications of plaintiff were being intercepted and monitored by defendants under his supervision and that Makol should take actions to prevent such unlawful conduct.
On March 18, 2011, the United States Attorney for the Southern District of New York admitted in a written submission to the district court that "several calls between Drimal and his wife were improperly monitored" and that in at least one instance the conduct of one of the defendants in listening to plaintiff's confidential telephone communications was "indefensible."
On March 9, 2011, in sworn testimony before the Honorable Richard J. Sullivan, United States District Judge for the Southern District of New York, defendant Lomonaco admitted that he had intentionally listened to confidential and privileged marital communication involving plaintiff which he had no right to overhear.
The same day, defendant Ford testified that he remembered "kicking [him]self" because he knowingly had listened to confidential and privileged marital communication involving plaintiff which he had no right to overhear.
Plaintiff has alleged that all of the other defendants at various times unlawfully intercepted her communications.
Despite a legal obligation to make timely disclosure of the foregoing illegal telephone interceptions to plaintiff, defendants fraudulently concealed them from plaintiff, for the purpose of evading legal responsibility for their wrongful actions, until notice thereof was disclosed to plaintiff by the United States Attorney for the Southern District of New York on August 6, 2010.
As a proximate consequence of the foregoing unlawful actions of defendants, plaintiff has suffered great humiliation, embarrassment and emotional distress. Plaintiff claims judgment against defendants jointly and severally for compensatory damages, punitive damages, attorney fees and costs as provided by Section 2520 of Title 18 of the United States Code and by Section 52-570d(c) of the Connecticut General Statutes.
The function of a motion to dismiss is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof."
Defendants point to Judge Sullivan's ruling in the underlying criminal case to demonstrate that the monitoring was, on the whole, "professional, thorough, and reasonable."
All defendants contend that plaintiff has failed to state a claim upon which relief can be granted. They argue that interception of privileged communications is not a violation of Title III and that Title III is not violated unless the person authorized to intercept any wire, oral, or electronic communication fails to minimize the interception of communications not otherwise subject to interception pursuant to 18 U.S.C. § 2518(5). Finally, the federal defendants assert that plaintiff has failed to allege any facts to support her claims.
Plaintiff's complaint alleges specific facts to support her claims, including the acknowledgment of improper behavior by multiple defendants during federal court testimony. Moreover, on March 18, 2011, the United States Attorney for the Southern District of New York admitted in a written submission to the district court that "several calls between Drimal and his wife were improperly monitored" and the conduct of one of the defendants in listening to plaintiff's confidential telephone communications was "indefensible."
Under Title III, criminal wiretap orders must be specific as to the type of communications to be intercepted, and the government must "minimize the interception of communications not otherwise subject to interception." 18 U.S.C. §§ 2518(4), (5). Furthermore, "any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate." 18 U.S.C. § 2520.
Here, plaintiff has alleged that defendants unlawfully intercepted and listened to more than 180 confidential and privileged marital communications. That these telephone conversations were not subject to interception and that the FBI failed to minimize such interceptions is implied by the adverb "unlawfully."
In the underlying criminal case, the order authorizing the wiretap contained a "minimization provision" that provided in relevant part: "Monitoring of conversations must immediately terminate when it is determined that the conversation is unrelated to communications subject to interception."
Plaintiff's complaint has adequately alleged violation of 18 U.S.C. § 2510 et seq. Her complaint will not be dismissed for failure to state a claim.
Government officials are immune from civil liability when their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."
Defendants argue:
As discussed above, plaintiff has alleged facts to support a finding that defendants did not properly comply with the minimization requirement of 18 U.S.C. § 2718. These facts are supported by plaintiff's responsive papers, which cite to the underlying criminal case. There, the district court held:
For the foregoing reasons, defendants' motions to dismiss [Docs. #19 and #21] are DENIED.