IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEBRASKAWILLIAM DUANE LEWTON,personally, and as father and next friendof ELLENNA M. LEWTON, a minorchild; ADRIANNE STANG, JENNIFER HOLTBERG, ROB FORMANEK, RITAWATSON and TAMMY JONES,Plaintiffs,v.DIANNA DIVINGNZZO, SAM M.DIVINGNZZO, WILLIAM BIANCO,CHRISTOPHER PERRONE, andBIANCO PERRONE & STROH, LLC,Defendants.8:09-cv-00002-FG3MEMORANDUM AND ORDER
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 summary judgment (Docs. 130, 133 and 135), discoverymotions (Docs. 112 and 156) and plaintiffs' Motion in Limine (Doc. 115). The court hasconsidered the parties' legal arguments, together with over 6,000 pages of their evidentiarysubmissions.For the reasons discussed below, the court finds that defendants Dianna Divingnzzo, SamM. Divingnzzo and William Bianco violated the provisions of Title III of the Omnibus CrimeControl and Safe Streets Act of 1968, as amended by the Electronic Communications PrivacyAct of 1986, 18 U.S.C. §§ 2510 et seq. (the "Wiretap Act" or "Title III"). Dianna Divingnzzoand Sam M. Divingnzzo are liable to the plaintiffs for statutory damages on the Wiretap Act
8:09-cv-00002-FG3 Doc # 166 Filed: 02/18/11 Page 1 of 27 - Page ID # 7131
-2-claims. The court declines to assess damages against William Bianco on the Wiretap Actclaims.Finally, the court declines to exercise supplemental jurisdiction over the plaintiff's statelaw claims.
I. BACKGROUND
The events giving rise to the plaintiffs' claims arose in conjunction with a dispute betweenWilliam 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 rightto have unsupervised visits with Ellenna, Dianna inserted a recording device inside Ellenna'steddy bear and secretly intercepted communications between or among Ellenna and the plaintiffs,and/or between or among the plaintiffs themselves without Ellenna's participation. Therecordings were made without the plaintiffs' knowledge or consent and occurred over a periodof several months.In May 2008, Dianna and her father, Sam Divingnzzo, presented the recordings toDianna's attorney in a digital format, using CD-ROM data storage discs, for use as evidence inthe custody dispute. Dianna's attorney had the recordings copied and transcribed, and suppliedcopies 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 wereinadmissible. This federal lawsuit followed.
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-3-In the Amended Complaint, (Doc. 63), plaintiffs assert claims under the Federal WiretapAct,
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 discloseor use the recordings in the context of their legal representation of Dianna Divingnzzo. DiannaDivingnzzo and her father, Sam Divingnzzo, affirmatively allege that they are immune fromliability based on Dianna's legal responsibility to protect Ellenna.
II. JURISDICTION AND VENUE
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 courtmay exercise supplemental jurisdiction over plaintiffs' state law claims pursuant to 28 U.S.C. §1367.
III. FINDINGS OF FACT
Plaintiff, William Duane ("Duke") Lewton, and defendant, Dianna Divingnzzo, weremarried 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 DistrictCourt entered a decree dissolving the marriage and awarding Dianna Divingnzzo the sole care,custody and control of the infant Ellenna, subject to Duke's rights of reasonable and liberalvisitation.
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8:09-cv-00002-FG3 Doc # 166
Filed: 02/18/11 Page 1 of 27 - Page ID # 7131
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA WILLIAM DUANE LEWTON, personally, and as father and next friend… (More)
Filed: 02/18/11 Page 1 of 27 - Page ID # 7131
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA WILLIAM DUANE LEWTON, personally, and as father and next friend… (More)
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