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Martucci v. Gonzalez

United States District Court, D. New Jersey

March 22, 2017



          WILLIAM J. MARTINI, U.S.D.J.

         Plaintiff 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.

         I. BACKGROUND

         The key 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.

         In May 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.


         Federal 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. 2007).

         Initially, 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 256-57.


         A. Florida Wiretapping Statute Claim (Count 1)

         The 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.

         In this 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 GRANTED.

         B. “Additional illegal” Wiretapping (Count 2)

         Count Two alleges that in November 2014 in ...

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