F.A. GOSSETT, III, United States Magistrate Judge.
This matter is before the magistrate judge by consent of the parties, see 28 U.S.C. § 636(c), on the parties' cross-motions
For the reasons discussed below, the court finds that defendants Dianna Divingnzzo, Sam M. Divingnzzo and William Bianco violated the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 2510 et seq. (the "Wiretap Act" or "Title III"). Dianna Divingnzzo and Sam M. Divingnzzo are liable to the plaintiffs for statutory damages on the Wiretap Act claims. The court declines to assess damages against William Bianco on the Wiretap Act claims.
Finally, the court declines to exercise supplemental jurisdiction over the plaintiff's state law claims.
The events giving rise to the plaintiffs' claims arose in conjunction with a dispute between William Duane ("Duke") Lewton and his ex-wife, Dianna Divingnzzo, over the custody of their minor child, Ellenna Divingnzzo-Lewton. Shortly after the state court granted Duke the right to have unsupervised visits with Ellenna, Dianna inserted a recording device inside Ellenna's teddy bear and secretly intercepted communications between or among Ellenna and the plaintiffs, and/or between or among the plaintiffs themselves without Ellenna's participation. The recordings were made without the plaintiffs' knowledge or consent and occurred over a period of several months.
In May 2008, Dianna and her father, Sam Divingnzzo, presented the recordings to Dianna's attorney in a digital format, using CD-ROM data storage discs, for use as evidence in the custody dispute. Dianna's attorney had the recordings copied and transcribed, and supplied copies of the CDs and transcripts to Lewton's attorney and others involved in the state court case. The Sarpy County District Court held that the recordings were illegally obtained and were inadmissible. This federal lawsuit followed.
In the Amended Complaint, (Doc. 63), plaintiffs assert claims under the Federal Wiretap Act, see 18 U.S.C. §§ 2511 and 2520, together with state law claims for invasion of privacy, conspiracy to commit invasion of privacy, and violations of Neb. Rev.Stat. § 86-2,103.
All defendants deny liability. Defendants Bianco, Perrone and Bianco, Perrone & Stroh, LLC affirmatively allege they are immune from liability because they had a privilege to disclose or use the recordings in the context of their legal representation of Dianna Divingnzzo. Dianna Divingnzzo and her father, Sam Divingnzzo, affirmatively allege that they are immune from liability based on Dianna's legal responsibility to protect Ellenna.
Pursuant to 28 U.S.C. § 1331, this court has federal question jurisdiction over plaintiffs' Federal Wiretap Act claims. Venue in this district is proper under 28 U.S.C. § 1391. The court may exercise supplemental jurisdiction over plaintiffs' state law claims pursuant to 28 U.S.C. § 1367.
Plaintiff, William Duane ("Duke") Lewton, and defendant, Dianna Divingnzzo, were married in 2001 and are the parents of Ellenna Divingnzzo-Lewton, born in September 2003. Duke and Dianna separated in December 2003. On May 12, 2004, the Sarpy County District Court entered a decree dissolving the marriage and
In October 2007, Duke filed a proceeding (the "Custody Case") in the Sarpy County District Court to modify the dissolution decree to award him custody of Ellenna. In response, Dianna alleged that Duke abused drugs and alcohol and was abusive toward Ellenna.
Defendants William Bianco and Christopher Perrone are attorneys and were principals of the defendant law firm, Bianco Perrone & Stroh, LLC. Mr. Bianco was retained in the fall of 2007 to represent Dianna Divingnzzo in the Custody Case. Mr. Perrone had a couple abstract discussions with Mr. Bianco in May 2008 concerning the Divingnzzos' activities, but he did not represent either of the Divingnzzos and did not ever give the Divingnzzos any legal advice about anything.
Defendant, Sam M. Divingnzzo, is the biological father of Dianna Divingnzzo. He paid for Bianco's fees, and was present during several meetings between Dianna and Bianco.
In the Custody Case, the state district court awarded Duke unsupervised parenting time with Ellenna, to commence in January 2008. In late December 2007 or early January 2008, prior to the first unsupervised visit, Dianna inserted a recording device in Ellenna's favorite toy, a teddy bear ("Little Bear"), so that Dianna could record Ellenna's time alone with Duke. She had purchased the device "online" in December 2007 with the intention of placing it in Little Bear. Dianna personally told Duke that Ellenna was insecure without her teddy bear and needed to take Little Bear everywhere she went. Dianna's attorney, Bianco, also informed Duke's attorney, C.G. Jolly, that Ellenna would need to take Little Bear everywhere she went.
During her deposition, Dianna admitted that she placed the recording device in Little Bear. She maintained that Duke was physically and verbally abusive
From January 2008 through May 14, 2008, the eavesdropping device hidden in Little Bear recorded Duke's visits with Ellenna, and any other events that transpired in the toy's presence. After each visit between Ellenna and Duke, Dianna downloaded the data from the recording device to her home computer. In May 2008, in anticipation of a court hearing in the Custody Case, Dianna copied the recordings to compact discs (CDs) and gave the CDs to her father, Sam Divingnzzo, so he could transcribe them. Sam Divingnzzo listened to the CDs and transcribed the recordings.
Dianna disclosed the recordings to her attorney, William Bianco, in May 2008. On May 30, 2008, Sam Divingnzzo signed a sworn affidavit for use in the Custody Case stating that he, along with Dianna, had a digital recording device placed in Ellenna's toy without Ellenna's knowledge and without the knowledge and/or consent of Dianna's attorney. During his deposition taken March 11, 2010, however, Sam Divingnzzo denied knowing of the recording device until Dianna presented him with the CDs and asked him to transcribe the conversations. Divingnzzo later maintained that he signed the affidavit without reading it. The individual who notarized the affidavit, however, testified that she gave Sam Divingnzzo the entire document and asked him to read it before he signed it.
Dianna Divingnzzo selected the conversations that were transferred from her computer to CD
Duke's attorney, Mr. Jolly, had served discovery requests in the state court Custody Case for the production of videotapes or other recordings of Duke's actions and conduct. After receiving the "Little Bear" recordings from Dianna Divingnzzo in May 2008, Bianco contacted Jolly by telephone and told him the recordings existed. At Jolly's request, Bianco had a copy of the recordings and transcripts delivered to Jolly. Bianco had generally discussed the existence of the recordings with his law
On June 2, 2008, Mr. Jolly filed a motion in limine (Doc. 132 at p. 38/107) to exclude the recordings as illegally intercepted under Neb.Rev.Stat. § 86-290(a) (see Doc. 137-16 at p. 14/42; Doc. 132-1 at p. 67/124). Prior to the hearing on the motion in limine, Mr. Bianco placed copies of the recordings in sealed envelopes and had the sealed envelopes delivered to guardian ad litem Karen Nelson and her attorney, Ann Davis; Dr. Patricia Wicks; and Dr. Glenda Cottam. Wicks and Cottam were mental health professionals who had been appointed by the court to provide opinions regarding the child and parents for the benefit of the court. Bianco also delivered copies of the recordings and the transcripts to the court, so the court could rule on the motion in limine. According to Bianco, the guardian ad litem's attorney, Ann Davis, had previously instructed him to produce all materials that would be of interest to the guardian ad litem. It was Bianco's understanding that Nelson, Wicks and Cottam were supposed to receive copies of any evidence bearing on the child custody issues.
The motion in limine was heard on June 3, 2008. Mr. Bianco argued that the recordings were admissible and urged the court to listen to the recordings. Judge Arterburn, however, determined that the recordings were not admissible; there were no applicable exceptions to the Nebraska Telecommunications Consumer Privacy Protection Act, see Neb.Rev.Stat. § 86-2,103 et seq.; no consent was given; and the recordings were illegally obtained.
Dianna testified that she destroyed the recording device with a sledgehammer in her driveway on the day Judge Arterburn said she could not listen to or have the recordings. She testified that she deleted the recordings from her home computer within a few days because she was told she was not supposed to have them. The recording device was destroyed before this lawsuit was filed. She no longer has the computer she was using to store the recordings; her home computer was "killed" by a power surge, so she replaced it with a new one. She recycled the old computer at Best Buy.
Sam Divingnzzo testified that he deleted the Word version of the transcript from his home computer after Judge Arterburn determined that the recordings were not admissible. He stated that he gave this computer to Goodwill, but removed the drives. He was not present when Dianna destroyed the recording device with a sledgehammer.
Judge Arterburn entered a written order on June 9, 2008 (Doc. 132-1 at p. 75/124) providing that custody of Ellenna would remain with the court, entering a summer parenting plan, and ordering Duke and Dianna to continue to participate in counseling. The June 9, 2008 order further provides, at paragraph 4:
Sam and Marilyn Divingnzzo were also forbidden to pick up or deliver Ellenna to
After the June 3, 2008 hearing, Mr. Bianco immediately retrieved the sealed envelope containing the recordings that had been delivered to Dr. Wicks. He was unable to retrieve the recordings given to Dr. Cottam, but did advise Dr. Cottam that the court had found the recordings to be inadmissible, and she should not listen to them.
On October 21, 2008, Judge Arterburn entered an Order of Modification (Doc. 124-7) approving a written settlement agreement submitted by Duke and Dianna and finding, inter alia, that Duke and Dianna were both fit and proper persons to be awarded the joint legal custody of their minor child. Dianna was granted primary possession of the child during the school year, subject to Duke's rights to reasonable visitation.
In addition to recording oral communications between Duke and Ellenna, the device implanted in Little Bear intercepted oral communications involving the other plaintiffs in this action.
Plaintiff Adrianne Stang was a neighbor of Duke Lewton and socialized occasionally with Duke and Duke's girlfriend, Jennifer Holtberg. Duke sometimes brought Ellenna over to play with Stang's 7-year-old
Plaintiff, Jennifer Holtberg, testified that she met Duke Lewton through Holtberg's cousin, Brandon Krivanek. Holtberg is employed full-time, has been with Duke for approximately 6 years, and lives with Duke Lewton. She testified at her deposition that she and Duke intended to go through with a religious ceremony, but would never be legally married due to the continuing conduct of Dianna Divingnzzo and the Divingnzzo family. When they first met, Duke told her that he was married and had a baby, Dianna had asked him to leave, and he left. Holtberg testified that Dianna and Sam Divingnzzo had attacked her personally by following her, taking pictures of her, recording her, asking a detective to do certain things, and generally invading her privacy. She first became aware that her conversations were recorded when Duke called her at work one day and told her they had been recorded for months in their own home. Holtberg started crying; she felt embarrassed, humiliated and violated. She did not personally listen to all of the recordings or read all the transcripts of the recordings. Holtberg noted that Ellenna owned several Little Bears; she and Duke would find more than one in the house at a time, and Ellenna would leave a Little Bear at Duke's house when she left. Holtberg observed that "censored" and "uncensored" versions of the CDs had been distributed to various people. Due to the presence of "Little Bear" in the house when Ellenna was not there, Holtberg suspected that she and Duke were being recorded when Ellenna was not present, and the Divingnzzos had not disclosed all of the recordings that they actually made.
Plaintiff, Rob Formanek, is Duke Lewton's cousin and has known Duke since childhood. Formanek met Dianna Divingnzzo while she was dating Duke. He had met Sam Divingnzzo, possibly at the wedding. Formanek, a divorced father with three children, perceived Duke to be a normal father who kept his patience with his daughter. At some point, Duke informed Formanek that Dianna Divingnzzo had been recording conversations with the device planted in Little Bear. Specifically, Ellenna brought Little Bear to Formanek's house when she and Duke attended a family dinner in April or May 2008. Afterwards, the toy was left in Formanek's van for at least 4-5 days, during which time he had many conversations. Duke then retrieved the Little Bear at Formanek's place of business. Formanek was upset that the recording was allowed to occur; he felt violated. He was going through a divorce at the time and did discuss the matter with Duke, but not in Ellenna's physical presence. Formanek said he felt somewhat vulnerable and absolutely frustrated, knowing that the recordings of his conversations with Duke had been distributed to various participants in the Custody Case.
Plaintiff, Tammy Jones, is the office manager of Cottam Psychological Service. She was in contact with Duke and Ellenna when they came into the office for their appointments with Dr. Cottam. Dr. Cottam's policy was to talk to the parents, then spend time with the child, and then talk to the parents again. When the parents were with Dr. Cottam, Jones was with the children making sure that they were taken care of out front or in the play room. During these times, Jones and Ellenna would talk about school, when she would go to her grandparents, what she had for lunch, and the like. Ms. Jones observed the interactions between Ellenna and each of her parents and saw nothing of concern. She testified that Ellenna always had Little Bear with her and took Little Bear into Dr. Cottam's office. Sam Divingnzzo sometimes brought Ellenna to the sessions and also made a couple of unscheduled appearances to talk to Dr. Cottam without
Summary judgment may be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "`An issue of fact is genuine when "a reasonable jury could return a verdict for the nonmoving party" on the question.'" United States v. $256,235.97, 691 F.Supp.2d 932, 935 (N.D.Iowa 2010) (quoting Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir.2005), and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A fact is material when it "might affect the outcome of the suit under the governing law." Id. at 936 (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505).
The civil damages provision of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 2510 et seq. (the "Wiretap Act" or "Title III") affords a private right of action to "any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter[.]" 18 U.S.C. § 2520(a). The activities constituting violations of the Wiretap Act are described in 18 U.S.C. § 2511.
Subject to certain exceptions not relevant in this case, § 2511(1) imposes liability for any person who—
18 U.S.C. § 2511(1)
In interpreting the federal Wiretap Act, this court is bound by the legal precedent set by the Eighth Circuit Court of Appeals. More than 20 years ago, the Eighth Circuit adopted the position that the Wiretap Act "`prohibits all wiretapping activities unless specifically excepted'" by the Wiretap Act. Kempf v. Kempf, 868 F.2d 970, 973 (8th Cir.1989) (quoting Pritchard v. Pritchard, 732 F.2d 372, 374 (4th Cir.1984); accord Milke v. Milke, 2004 WL 2801585, Case No. 03-6203 (D.Minn. June 14, 2004)).
A respected commentator has observed that "[m]any courts have been reluctant to accept the straightforward prohibition in Title III of all surveillance that the statute does not authorize." 2 Hon. James Carr & Patricia L. Bellia, Law of Electronic Surveillance § 8:29 (Westlaw Feb. 2011). This court agrees with the authors' assessment that, "[w]hile the notion that a parent or guardian should be able to listen to a child's conversations to protect the child from harm may have merit as a matter of policy, it is for Congress, not the courts, to alter the provisions of the statute." Id. This position is consistent with the Eighth Circuit's binding decision in Kempf v. Kempf acknowledging that the Wiretap Act prohibits all wiretapping unless specifically excepted.
Nor does the "consent exception" included 18 U.S.C. § 2511(2)(d) absolve the defendants of liability under the circumstances presented here. Section 2511(2)(d) provides:
Even assuming (without deciding) that Dianna Divingnzzo could legally give "vicarious consent"
The evidence demonstrates conclusively that the device recorded many oral communications made by each of the plaintiffs, to which Ellenna was not a party.
Turning to the attorney defendants' invocation of common-law "immunity" and "litigation privilege" defenses, the court was unable to find any binding authority holding that an attorney who uses a communication intercepted in violation of the federal Wiretap Act is entitled to blanket immunity from Title III liability.
Courts have recognized a "defense exception" to Title III's strict prohibition on disclosure, but only when the client discloses the intercepted communications to an attorney for the purpose of investigating or defending a Title III claim. See Nix v. O'Malley, 160 F.3d at 351; Smoot v. United Transp. Union, 246 F.3d 633, 646 (6th Cir.2001) (the defense and adjudication exceptions did not apply to client's distribution of a transcript to his lawyer or the attachment of the transcript to a pleading because the client was not then defending against charges brought under the Wiretap Act); Williams v. Poulos, 11 F.3d 271, 291 n. 44 (1st Cir.1993), citing McQuade v. Michael Gassner Mech. & Elec. Contractors, Inc., 587 F.Supp. 1183, 1188-89 (D.Conn.1984) (disclosure of the contents of intercepted recordings to counsel,
Presenting the intercepted communications to Judge Arterburn for a determination of admissibility was consistent with the procedure set out in 18 U.S.C. § 2518(10)(a), which provides:
See McQuade v. Michael Gassner Mech. & Elec. Contractors, Inc., 587 F.Supp. at 1189 n. 12.
In this context, the court agrees that Mr. Bianco had a professional obligation to tell Mr. Jolly of the existence of the "Little Bear" recordings and transcripts, and the circumstances under which they were obtained, once the Divingnzzos disclosed that information to him. With that rudimentary information, Mr. Jolly would have had a basis for filing the appropriate motion in the Custody Case, challenging the legality of the interception without actually listening to the recordings or reviewing the transcripts prepared by Sam Divingnzzo.
The court finds that Mr. Bianco did not act improperly in presenting the materials to Judge Arterburn for a ruling on admissibility. It does not follow, however, that Mr. Bianco was obligated or entitled to distribute the materials to anyone else. Considering the basis for Mr. Jolly's motion in limine (that the communications were unlawfully intercepted), together with the provisions of the Wiretap Act and the case law interpreting the Wiretap Act, this court is unable to articulate any justification for Mr. Bianco's distributing copies of the recordings and transcripts to Mr. Jolly, the guardian ad litem, counsel for the guardian ad litem, Dr. Wicks, and Dr. Cottam in advance of Judge Arterburn's ruling, without the express permission of Judge Arterburn.
To recover civil damages under § 2520(a), the plaintiffs must prove by a preponderance of the evidence that (1) their oral communications; (2) were disclosed or intentionally used in violation of 18 U.S.C. § 2511(1); (3) by the defendants they wish to hold accountable for engaging in that violation. See, e.g., Zinna v. Cook, 2010 WL 3604170 at *7 (Report & Recommendation of June 2, 2010), adopted, 2010 WL 3604386, Case No. 06-1733 (D.Colo. Sept. 7, 2010).
An "oral communication" is defined in the Wiretap Act as "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." 18 U.S.C. § 2510(2). The court finds that all
To prove an "interception" violation of the Wiretap Act, see 18 U.S.C. §§ 2511(1)(a) & (b), a plaintiff need only show that the defendant intentionally, rather than inadvertently, intercepted the plaintiff's oral communication. See, e.g., Bess v. Bess, 929 F.2d 1332, 1334-35 (8th Cir.1991); Lombardo v. Lombardo, 192 F.Supp.2d 885, 892 (N.D.Ind.2002); Thompson v. Dulaney, 970 F.2d 744, 748 (10th Cir.1992) (noting that there is no liability for inadvertent interceptions, and the proper focus is on the volitional nature of the act of intercepting the communication).
To establish liability for use or disclosure of the communications, see 18 U.S.C. §§ 2511(1)(c) & (d), the plaintiffs must show that the defendants were aware of the factual circumstances that would violate the statute. See Thompson v. Dulaney, 970 F.2d 744, 749 (10th Cir.1992).
The record conclusively demonstrates that all of the defendants were fully aware of the facts of their conduct. There is no evidence whatsoever that either of the Divingnzzos sought the advice of counsel
Based on the evidence of record, the court finds that there are no issues of material fact remaining on the plaintiff's federal Wiretap Act claims, and that the plaintiffs' federal Wiretap Act claims should be resolved as follows:
(a) Dianna Divingnzzo and Sam Divingnzzo are each liable to William Duane Lewton (individually), Adrianne Stang, Jennifer Holtberg, Rob Formanek, Rita Watson and Tammy Jones, under §§ 2511(1)(a) and (b) for intercepting the oral communications of all plaintiffs using the device planted in Little Bear, and under §§ 2511(1)(c) & (d) for intentionally using and disclosing the plaintiffs' oral communications in conjunction with the state court Custody Case.
(c) Christopher Perrone, and the law firm of Bianco Perrone & Stroh, LLC, did not violate the Wiretap Act in any respect.
Pursuant to 18 U.S.C. § 2520(c)(2), the court may assess as damages whichever is the greater of—
"The $10,000 liquidated damages amount under § 2520(c)(2)(B) is designed to compensate a claimant for all of a transgressor's misdeeds under the Act, unless that transgressor has violated the Act on more than one hundred separate days, in which case compensation is $100 for each such day." Smoot v. United Transp. Union, 246 F.3d 633, 646 (6th Cir.2001); see also Bess v. Bess, 929 F.2d 1332 (8th Cir. 1991). The decision to award statutory damages lies within the court's discretion. See Morford v. City of Omaha, 98 F.3d 398, 400-401 (8th Cir.1996); Reynolds v. Spears, 93 F.3d 428, 435-36 (8th Cir.1996).
The evidence shows that the recording device remained in the teddy bear from at least January 1, 2008 through June 3, 2008. Upon learning of Judge Arterburn's ruling, Dianna Divingnzzo destroyed the recording device with a sledge-hammer. She and her father have also discarded or destroyed the computers they were using to store and transcribe the illegally intercepted communications. Dianna Divingnzzo chose the specific conversations she wished to disclose, and there may have been even more illegally intercepted oral communications that the Divingnzzos chose not to disclose to Mr. Bianco. While it would seem that the Divingnzzos violated the Act on more than 100 separate days, there is no proof that they did so as to each plaintiff separately. Under the circumstances, and considering the totality of the Divingnzzos' conduct as reflected in the evidentiary record, the court finds that Dianna Divingnzzo and Sam Divingnzzo should each be held liable to each of the plaintiffs for statutory damages in the amount of $10,000 under the federal Wiretap Act.
The court has carefully considered Mr. Bianco's role in this matter and finds that damages should not be awarded against Mr. Bianco. Bianco did not solicit or advise the Divingnzzos to intercept the plaintiffs' oral communications. While he disclosed the illegally-obtained materials to advance his client's position in the Custody Case, the court did not consider the materials. The other recipients returned the materials unread or maintained the confidentiality of the communications.
Pursuant to 28 U.S.C. § 1331, this court has original federal question jurisdiction over plaintiffs' federal Wiretap Act claims. The court may exercise "supplemental jurisdiction" over claims that are "so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a). The court may decline to exercise supplemental jurisdiction
The events of this incident occurred in the context of a hotly contested child custody dispute. The federal courts customarily decline to intervene in the realm of domestic relations. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). Resolving the plaintiffs' state law tort claims, the corresponding common law defenses, and interpreting the Nebraska Telecommunications Consumer Privacy Protection Act would require the resolution of novel and complex issues of state law. This court declines to exercise jurisdiction over the state law claims.
For the reasons discussed herein,
1. Divingnzzos' Amended Motion for Summary Judgment (Doc. 133) is denied.
2. The attorney defendants' motion for summary judgment (Doc. 130) is granted as to Christopher Perrone and Bianco, Perrone & Stroh, LLC.
3. Plaintiffs' Motion for partial summary judgment (Doc. 135) is granted as to the plaintiffs' claims under 18 U.S.C. § 2520(a).
The court declines to award punitive damages under 18 U.S.C. § 2520(b)(2).
4. Pursuant to 28 U.S.C. § 1367(c), this court declines to exercise Supplemental Jurisdiction over the plaintiffs' state law claims. Plaintiffs' claims for violations of Neb.Rev.Stat. § 86-2,103 et seq., invasion of privacy, and mental suffering, are dismissed without prejudice to the plaintiffs seeking relief in state court.
5. Plaintiffs' motion in limine (Doc. 115), Divingnzzos' Motion to Overrule Plaintiff's Objections to Subpoenas (Doc. 112) and plaintiffs' Motion to Compel and for Discovery Order (Doc. 156) are denied as moot.
6. Pursuant to 18 U.S.C. § 2520(b)(3), the plaintiffs may recover "a reasonable attorney's fee and other litigation costs reasonably incurred" in the prosecution of their claims under the Federal Wiretap Act. Accordingly, the plaintiffs are granted leave to file a Motion for Attorney Fees. Said motion shall be filed no later than
7. A separate judgment will be entered after the matter of attorney's fees is decided.
Ellenna told me she was scared. Ellenna told me she hated him. Ellenna told me she didn't want to go with him. Ellenna did not want to go on the visits and was screaming and crying every time Rita picked her up or every time Rita drove her away from me when she left my side. She told me he was mean to her. She told me Rita was mean to her. She told me that he hurt her. She told me that he wouldn't let her have water. He wouldn't let her have her drink. That he threw away her lunch. She told me that she wanted the visits to stop. She told me that she didn't want to spend time with him. She told me that she did not want to get to know him. Continually used the word mean. He hurt me. He argued with me. He calls me a liar. He tells me I'm stupid. 134:6-21. Ellenna was about 4 years old during this time period.
Ms. Nelson expressed great concern that Dianna Divingnzzo had attended the June 3, 2008 court hearing knowing that the court retained custody of Ellenna, she no longer had licensed daycare for Ellenna as ordered by the court, and yet said nothing about this development. Nelson noted that the court was concerned about Ellenna's exposure to Marilyn and Sam Divingnzzo due to their continued sabotaging of the child's relationship with Duke, yet Dianna continued to rely on her parents to provide care for Ellenna, thereby continuing the child's exposure to these individuals.
