United States District Court, D. New Jersey
WILLIAM C. MARTUCCI, Plaintiff,
GERARDO GONZALEZ and YAMEL GONZALEZ, a.k.a. YAMEL MARTUCCI Defendants.
WILLIAM J. MARTINI, U.S.D.J.
William Martucci brings this action pro se against
his daughter, Yamel Gonzalez, and her husband, Gerardo
Gonzalez (together, “Defendants”). Plaintiff
alleges that Defendants surreptitiously recorded phone calls
in violation of federal and state wiretapping statutes.
Defendants now move for summary judgment under Federal Rule
of Civil Procedure 56. Plaintiff opposes the motion, and
cross-moves for summary judgment. There was no oral argument.
Fed.R.Civ.P. 78(b). For the reasons set forth below,
Defendants' motion for summary judgment is GRANTED and
Plaintiff's motion for summary judgment is DENIED.
facts are largely undisputed. During late 2011 and into 2012,
Defendants, Florida residents, recorded four telephone
conversations with New Jersey resident William Martucci, the
plaintiff in this case. The parties were physically located
in their respective home states when the calls were made. The
purpose of Defendants' surreptitious recordings was to
generate evidence exculpating Defendants from civil liability
and advancing the criminal prosecution of Plaintiff in state
court. Since March 2011, the parties have been co-defendants
in a civil action pending in this district relating to
alleged fraudulent business practices. See Pricaspian
Dev. Corp v. Martucci, et al., 2:11-cv-01459, ECF No.
421. In addition, Defendants filed criminal complaints
against Plaintiff in 2012 and 2013 in Essex County, New
Jersey, initiating two criminal proceedings that both ended
with a guilty plea by Plaintiff.
2014, Plaintiff filed a pro se Complaint alleging
the following claims: violation of Florida's wiretapping
statutes, Fla. Stat. Ann. §§ 934.03, 934.09, and
934.10 (Count 1); “additional illegal wire taps”
occurring in New Jersey (Count 2); a Fourth Amendment
violation (Count 3); violations of federal wiretapping laws
18 U.S.C. §§ 2511, §§ 2516-18 (Counts
4-7); and violations of Florida Statute 94.11(4)(g) and 18
U.S.C. § 2520(b), (Count 8). ECF No. 1 at 4-11.
Plaintiff seeks more than $12 million in damages.
Id. at 13-14. The Court has both federal question
and diversity jurisdiction. 28 U.S.C. §§ 1331,
1332. Defendants now move for summary judgment, and seek
attorney's fees and sanctions. ECF No. 26. Plaintiff
opposes Defendants' motion and moves for summary judgment
on all counts. ECF No. 33.
Rule of Civil Procedure 56 provides for summary judgment
“if the pleadings, the discovery [including,
depositions, answers to interrogatories, and admissions on
file] 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; see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Turner v.
Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990).
A factual dispute is genuine if a reasonable jury could find
for the non-moving party, and is material if it will affect
the outcome of the trial under governing substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The Court considers all evidence and inferences drawn
therefrom in the light most favorable to the non-moving
party. Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir.
the moving party has the burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp.,
477 U.S. at 323. Once the moving party has met this burden,
the nonmoving party must identify, by affidavits or
otherwise, specific facts showing that there is a genuine
issue for trial. Id. The opposing party must do more
than just rest upon mere allegations, general denials, or
vague statements. Saldana v. Kmart Corp., 260 F.3d
228, 232 (3d Cir. 2001). Rather, to withstand a proper motion
for summary judgment, the nonmoving party must identify
specific facts and affirmative evidence that contradict those
offered by the moving party. Anderson, 477 U.S. at
Florida Wiretapping Statute Claim (Count 1)
Florida Security of Communications Act (the
“FSCA”) creates a private cause of action for
“[a]ny person whose wire, oral or electronic
communication is intercepted, disclosed, or used, ”
unless all parties to the communication have consented. Fla.
Stat. Ann. §§ 934.03(1)-(2); 934.10. To state a
claim under the FSCA, one of two conditions must be met:
“persons bringing suit must be Florida residents or the
improper ‘interception' must have occurred in
Florida.” Cohen Bros., L.L.C. v. ME Corp.,
S.A., 872 So.2d 321, 324 (Fla Dist. Ct. App. 2004).
“[Florida] law is clear that an
‘interception' occurs ‘where the words or the
communication is uttered, not where it is recorded or
heard.'” Leff v. First Horizon Home
Loan Corp., 2007 WL 1557977 (D.N.J. May 24, 2007),
citing Cohen Bros., LLC, 872 So.2d at 324.
case, Plaintiff, a New Jersey resident, alleges he was in his
Springfield, New Jersey home when the calls took place. ECF
No. 33, at p. 145. That is where his communications were
“intercepted” within the meaning of the FSCA.
Because Plaintiff is not a Florida resident, and the calls
were “intercepted” outside of Florida, Plaintiff
has not adequately stated a claim under Fla. Sta. § 934.
See Leff 2007 WL 1557977. (holding that a plaintiff
failed to state a claim under Fla Sta. § 934 because he
was a New Jersey resident communicating by phone from New
Jersey). Because no “interception” occurred under
the FSCA, Defendants' motion for summary judgment is
“Additional illegal” Wiretapping (Count 2)
Two alleges that in November 2014 in ...