LIFLAND, District Judge
Plaintiffs Lawrence Pascale and Kenneth Flaherty are former supervisors at defendant Carolina Freight Carrier Corporation's ("Carolina") Pine Brook, N.J. terminal. Plaintiffs Tracy Pascale and Afsaneh Flaherty are their wives. Individual defendant D.R. Smith is a Carolina manager. Both parties move for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons set forth below, the Court will grant plaintiffs' motion for summary judgment as to liability and deny defendants' motion.
In the spring of 1993, Carolina had a theft problem at the terminal. A supply of Victoria's Secret perfume worth $ 4,500 was stolen. Defendant Smith suspected a dock worker named Fernando Marrerro of taking the perfume. Marrerro had been receiving an unusual number of emergency calls at work. He took these calls on one of the three telephones in Carolina's dispatch office and operations room near the loading dock. These phones were generally off-limits to loading dock employees; Marrerro's calls were an exception. Ackerman Affidavit, Exhibit A at 15, 22-24, 28, 30. Smith suspected that Marrerro was using these calls to arrange the theft of goods. Smith's suspicions were not allayed when he saw Marrerro drive off one night with a flat tire, rather than open the trunk of his car in view of a supervisor. Id. at 51-53.
Smith hired a private investigator named Richard Steepy to attach voice-activated tape recorders to defendant Carolina's phone system. On June 6, 1993, three tape recorders were installed, one for each of the three phones near the loading dock. The recorders were connected to the busboard by means of a Radio Shack wire. In this way, the recorders were connected to the phones in the dispatch and operations room. All outgoing and incoming calls to these three extensions were recorded off the busboard. Defendant Smith kept the recording equipment in his office closet. Id., Exhibit B at 4, 5, 7, 9-11, 21, 23-26, 39-40; Esposito Certification, Exhibit B. A busboard is a personal distribution center for all the phone extensions for the system. It is supplied by the telephone company and distributes the calls throughout the building to each extension.
Defendants claim that on June 7, 1993, and on at least one other occasion, defendant Smith "spot checked" the tapes for Marrerro's voice. When Smith didn't hear Marrerro, he allegedly moved on to another portion of the tape. Defendants claim that a total of 61 conversations were intercepted and recorded, of which only six were employees' personal calls. Id., Exhibits E-I.
Plaintiffs dispute these numbers and assert that defendants recorded far more calls than was necessary to achieve their objective. The telephone bills for the recorded phones allegedly show a total of 293 intercepted calls, not 61. Plaintiffs claim that Marrerro did not work on June 6, the day defendants claim to have started the taping, and that Marrerro worked only a few hours over the next two days. Esposito Certification, Exhibit C. The parties further dispute when the taping system was installed and when it was removed. Esposito Supplemental Certification, Exhibit A at 39, 69.
The recording devices were discovered by plaintiffs in July, 1993. Pascale found them in Smith's closet while a workman was removing a carpet from Smith's office. Pascale Certification, P4. Pascale showed Flaherty the recorders; together they played back the tapes and heard themselves in conversation with their respective wives. Id. at PP5-6; Flaherty Certification, PP6, 8.
Pascale claims that his marriage became strained as a result of the recordings, as he and his wife often discussed personal matters over the telephone. He claims that he felt compelled to quit over this "breach of trust." Pascale Certification, PP 9-10. Flaherty eventually quit too. Flaherty Certification, PP9, 12.
On January 24, 1994, plaintiffs filed suit under Title III of the Federal Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2521, and the New Jersey Wiretapping and Electronic Surveillance Act, N.J.S.A. 2A:156A-24.
Summary judgment is appropriate when there is no genuine issue of material fact such that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. The burden of showing that no genuine issue of material fact exists rests initially on the moving party. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977). "This burden. . .may be discharged by 'showing' . . .that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). All evidence submitted must be viewed in the light most favorable to the nonmoving party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).
Once a properly supported motion for summary judgment has been made, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). No issue for trial exists unless the nonmoving party can demonstrate sufficient evidence favoring the nonmoving party such that a reasonable jury could return a verdict in that party's favor. Id. at 249.
Both 18 U.S.C. § 2520 and N.J.S.A. 2A:156A-24 provide that telephone calls may not be intercepted except pursuant to a court order. Victims may bring a civil action for damages against violators. There is an exception under federal and New Jersey law that allows for the monitoring of calls carried out with certain kinds of equipment in the ordinary course of business. This is known as the "telephone extension exception" or the "business extension exception."
Federal Law Claim
18 U.S.C. § 2511(1)(a) is a provision of the federal anti-wiretap statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2521. In conjunction with other statutory provisions, it creates civil and criminal liability for anyone who "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral or electronic communication."
18 U.S.C. § 2520 enables victims of violations of 18 U.S.C. § 2511(1)(a) to obtain appropriate equitable or declaratory relief, actual or statutory damages, punitive damages, litigation costs and reasonable attorney's fees.
The business extension exception covers monitoring by means of certain types of equipment, done in the ordinary course of business. 18 U.S.C. § 2510(4) defines the term "interception" as the "aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device." § 2510(5) defines "electronic, mechanical or other device" as any apparatus which can be used to intercept a wire, oral, or electronic communication other than
(a) any telephone or telegraph instrument, equipment or facility, or any component thereof,
(i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of business[.]
The defendant must establish two facts before this exception presents a viable defense: 1) either the phone company or the subscriber furnished the intercepting telephone or telegraph instrument, equipment, facility, or component; and 2) the equipment was used in the ordinary course of business. See Deal v. Spears, 980 F.2d 1153, 1157 (8th Cir. 1992).
The recording of a telephone conversation alone constitutes an "aural. . .acquisition" of that conversation. See Sanders v. Robert Bosch Corp., 38 F.3d 736, 740 (4th Cir. 1994). Thus, Carolina's recording of the plaintiffs' phone conversations constitutes an "interception" under the Act unless the recordings were not acquired "through the use of any electronic, mechanical, or other device." The defendants contend that they did not record conversations "through the use of any electronic, mechanical, or other device" (as defined in the statute), because their recording technique qualifies under § 2510(5)(a)(i)'s business extension exception. To resolve this question, the Court must consider two issues: first, what device intercepted the conversations, and second, is this device a "telephone or telegraph instrument, equipment or facility, or any component thereof," the statutory predicate to defendants' enjoyment of the safe harbor created by § 2510(5). Essentially, the Court must characterize the defendants' recording device, a question of law appropriate for summary judgment on this record.
What device intercepted the conversations?
The defendants argue that the intercepted conversations were recorded directly off the busboard (a component of Carolina's telephone facility), rendering the busboard the intercepting device. If the Court were to accept this contention, the interception occurred with equipment furnished by the telephone company, partially satisfying the requirements of § 2510(5)(a)(i). The plaintiffs respond that a busboard is not an acquiring mechanism, and that the interception occurred when the Radio Shack wire seized the call and transmitted it to the Radio Shack intercepting equipment. If so, the telephone company did not furnish the intercepting equipment, and the defendants cannot rely upon the "furnished. . .by a provider of wire. . .service" language of § 2510(5)(a)(i).
While characterization in the context of the business extension exception appears to be a question of first impression in the Third Circuit, a number of other courts have characterized electronic interception devices similar to that used by Carolina. In Epps v. St. Mary's Hospital, 802 F.2d 412, 415-416 (11th Cir. 1986), calls coming into or going out of a dispatch console were automatically recorded onto a double-reel tape recorder. The court held that the intercepting device was the dispatch console, rather than the recording equipment. Similarly, United States v. Harpel, 493 F.2d 346 (10th Cir. 1974), held that where a call is recorded by attaching a suction cup to a telephone receiver and connecting it to a tape recorder, the receiver is the intercepting device, not the recorder. The court explained:
A recording device placed next to, or connected with, a telephone receiver cannot itself be the 'acquiring' mechanism. It is the receiver which serves this function--the recorder is a mere accessory designed to preserve the contents of this communication. This interpretation comports squarely with the clear distinction drawn between "intercepting" and "recording" under 18 U.S.C. § 2518(8)(a), which deals with judicially authorized interceptions. . . .We therefore conclude that the tape recorder in question cannot constitute the intercepting mechanism when used, as it is argued here, connected to a telephone receiver.