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SCHMIDT v. DEVINO

March 30, 2001

DONALD SCHMIDT ET AL.
V.
KENNETH DEVINO ET AL.



The opinion of the court was delivered by: Margolis, United States Magistrate Judge.

MEMORANDUM OF DECISION

On March 25, 1999, plaintiff Donald Schmidt ["Schmidt"] commenced this action against defendants Kenneth Devino ["Devino"] and Devino Fuels, Inc. ["Devino Fuels"] for an alleged wiretapping of plaintiffs workplace telephone. The complaint asserts four claims: violation of the Omnibus Crime Control Act of 1968, 18 U.S.C. § 2510 et seq. (First Cause of Action), violation of CONN.GEN.STAT. § 54-41r (Second Cause of Action), fraudulent concealment (Fourth Cause of Action),*fn1 and invasion of privacy (Fifth Cause of Action). On August 23, 1999, defendants filed their Answer and Affirmative Defenses (Dkt.# 17), denying the allegations of wiretapping and asserting three affirmative defenses: a two-year statute of limitation as to the First Cause of Action, a three-year statute of limitation as to the Second Cause of Action, and a three-year statute of limitation as to the Fourth Cause of Action. Plaintiff filed an Amended Complaint (Dkt.# 18) on August 24, 1999, adding Diane Dreskinis Schmidt, Lillian Schmidt, Eric Schmidt, and Robert P. Hanahan as plaintiffs. The parties consented to trial before this Magistrate Judge on July 2, 1999. (Dkt.# 13).

On June 19, 2000, the parties filed their Joint Trial Memorandum (Dkt.# 40), which included a twenty-one paragraph Stipulation of Facts ["Stip."]. A bench trial was held on January 22-23, 2001, at which eight witnesses testified. (Dkts.## 44-47, 50-51). Both sides filed post-trial briefs on February 7, 2001. (Dkt.## 48-49). On February 21, 2001, plaintiffs filed their reply brief. (Dkt.# 52).*fn2

For the reasons stated below, judgment shall enter as follows: with regard to the First Cause of Action, for plaintiff Schmidt for punitive damages only and for defendants in all other respects; with regard to the Second Cause of Action, for both plaintiffs; and with regard to the Fourth and Fifth Causes of Action, for defendants.

I. FINDINGS OF FACT

The following constitutes the Court's findings of fact pursuant to FED.R.CIV.P. 52(a): Devino Fuels, Inc. is a Connecticut corporation located on Mattoon Road in Waterbury, Connecticut. (Stip. at ¶ 1; Exhs. 1-2A). Devino Fuels was owned by brothers Kenneth and Roger Devino. (Stip. at ¶ 2). Plaintiff Donald Schmidt, a close friend of Roger Devino, worked at Devino Fuels from November 1980 through April 19, 1996. (Id. at ¶¶ 3-4). During the 1980's, Roger Devino actively ran Devino Fuels. (Id. at ¶ 5). Defendant Devino became involved in Devino Fuels in 1992 and then attended weekly meeting with Schmidt and Roger Devino. (Id. at ¶ 6). Defendant Devino criticized Schmidt in a manner which plaintiff regarded as highly unprofessional and dictatorial. (Id. at ¶ 7). As far back as the 1980's, Devino testified that he "found issue" with Schmidt's involvement in other pursuits (i.e., politics) and watched these pursuits carefully. (Dkt. # 51, at 104). For medical reasons, Roger Devino stopped working at Devino Fuels on February 20, 1995. (Stip. at ¶¶ 8 & 12). Defendant Devino took over the active operation of Devino Fuels after February 20, 1995. (Id. at ¶ 13). From February 20, 1995, Schmidt's working relationship with Devino deteriorated until fourteen months later, in April 1996, Devino terminated Schmidt's employment at Devino Fuels. (Id. at ¶¶ 9 & 13). Schmidt acknowledged he had been actively involved in politics both before and during his employment at Devino Fuels. (Dkt. #51, at 164-66, 184-86). Schmidt also acknowledged his problem with alcohol abuse from the late 1980's through April or May 1995. (Id. at 176-77).

Glen Duplissie ["Duplissie"] began working for Industrial Development Group ["IDG"] in 1983 as an independent contractor. (Dkt. #50, at 25-26). In 1985 or 1986 Duplissie became an employee of IDG. (Id. at 26). While employed by IDG, Duplissie reported to Devino. (Id. at 28). Although at one time Duplissie held Devino in high regard, this is no longer true and there is now great animosity between the two men. (Id. at 161, 85-86).*fn3 D uplissie and Schmidt have known each other since 1983 when Duplissie began working for IDG. (Id. at 32). IDG, Devino Fuels and Building Structures were owned by the same principals and operated out of the same building on Mattoon Road in Waterbury. (Id. at 28-29; Dkt. # 51, at 90-93).

Sometime during the latter half of 1992, in an attempt to prove to his brother Roger that Schmidt was involved in many inappropriate activities on company time and not serving the needs of the company, Devino asked Duplissie to install a recording device on Schmidt's office telephone, which Duplissie eventually agreed to do.*fn4 (Stip. at I 10; Dkt. # 50, at 34-40, 101-04, 106-08, 111-13; Dkt. # 51, at 89-90, 10708, 109-13). Duplissie purchased the necessary materials in cash at Radio Shack, obtained a key to Schmidt's office from defendant, and installed the equipment after all other employees had left the building for the evening. (Dkt. # 50, at 40-61, 108). Duplissie installed the device in such a manner that Schmidt would not know that his telephone conversations were being recorded. (Id. at 52-53). Duplissie retrieved tapes from the machine a few times, listened to them, and then turned all of the tapes, except one, over to Devino.*fn5 (Id. at 62-65). Duplissie then showed Devino how to retrieve the tapes and Duplissie did not retrieve any more tapes from the machine. (Id. at 65-67).

After showing Devino how to retrieve the tapes himself, Duplissie never saw Devino retrieve any other tapes. (Id. at 6768). Although Duplissie never again saw Devino retrieve the tapes from the recording device, Duplissie believes that the recorder was used until late 1995 or early 1996, within six months of Schmidt's departure from Devino Fuels. (Id. at 70-74). Duplissie's memory of this time frame is based on a bet he made with Gigi,*fn6 the secretary/bookkeeper of IDG and Building Structures, that Schmidt would be terminated within six months. (Id. at 139-41). Gigi was not called to testify as a witness and, therefore, did not corroborate Duplissie's testimony.

To support the claim that the recording device was operational through 1995 or 1996, Schmidt offered many "coincidences" where defendant seemed to know what Schmidt was discussing on the telephone. These coincidences included a 1993 or 1994 telephone conversation between Schmidt and the executive director of the Independent Connecticut Petroleum Association ["ICPA"], where the parties discussed a legislative issue involving taxing of motor fuel. (Stip. at ¶ 17; Dkt. # 51, at 182-83). Shortly thereafter, Devino told Schmidt that he wanted Schmidt less involved with ICPA. (Stip. at ¶ 17; Dkt. # 51, at 182-83). Another "coincidence" occurred in 1995, when Schmidt had a telephone conversation with a loan officer from Chase Manhattan Bank; within one week Devino approached Schmidt questioning whether Schmidt was trying to get money to start a business. (Dkt. # 51, at 183-84).

Devino asserts that the recording device was removed within a few weeks of its installation. (Id. at 127). In any event, both parties agree that a secretary was stationed outside of Schmidt's open office door and this secretary kept track of Schmidt's incoming and outgoing telephone calls. (Stip. at ¶ 21).

Ed Chrzanowski, an IDG employee responsible for maintenance, found the electronic device up on a girder in the ceiling in the garage area of the Mattoon Road business. (Dkt. # 50, at 4-5, 17-19; Exh. 1). The device was not visible from the ground, it had nothing plugged into it when found, and Chrzanowski did not see a recording device connected to it. (Dkt. # 50, at 19-22). Chrzanowski was unable to recall exactly when he found the device but believed it was before Duplissie left his employment at IDG. (Id. at 22-23).

Duplissie left his employment with IDG in August 1997. (Dkt. # 50, at 25, 80). On January 28, 1998. Duplissie underwent rotator cuff surgery and for the next six months, until July 1998, he slipped in and out of consciousness. (Id. at 75-77, 144-45). It was during this period that Duplissie told Schmidt that a listening device had been installed on Schmidt's office telephone, although Duplissie has no recollection of this conversation with Schmidt. (Stip. at ¶ 14; Dkt. # 50, at 75, 77-78, 144; Dkt. # 51, at 179-80). Schmidt testified that he was taken back by Duplissie's disclosure, but did not doubt Duplissie; based on the "coincidences" discussed above, Schmidt had been suspicious during the 1990's that his conversations were being overheard. (Stip. at ¶¶ 15-16; Dkt. # 51, at 181-82). Based on these suspicions, Schmidt had suggested that his attorney and co-plaintiff in this action, Robert Hanahan, call him at home instead of at the office. (Stip. at ¶ 18). Schmidt also spoke on two occasions with a friend who owned a security firm in Waterbury to see if any equipment could detect whether his phone was "bugged." (Stip. at ¶ 15; Dkt. # 51, at 205). Schmidt decided not to pursue the matter at that time because his conviction was not strong enough to justify bringing in the equipment to "sweep" the office, nor did Schmidt still have a key to access the office after hours. (Dkt. # 51, at 205-07). Schmidt did, however, unscrew the mouthpiece of the telephone to see if there was a recording device. (Id. at 205). Schmidt and Hanahan have never heard a recording or seen a transcript of these recorded conversations. (Stip. at ¶ 19; Dkt. # 51, at 181, 190-91, 84, 199).

II. CONCLUSIONS OF LAW

The following constitutes the court's conclusions of law, pursuant to FED.R.CIV.P. 52(a):

A STATUTE OF LIMITATIONS

Plaintiffs' suit is not barred by the statute of limitations. A civil action under 18 U.S.C. § 2520 "may not be commenced later than two years after the date upon which the claimant first had reasonable opportunity to discover the violation." 18 U.S.C. § 2520(e). However, as in this case, where "the defendant took `some misleading, deceptive or otherwise contrived action' to conceal information material to the plaintiffs claim," the running of the statute of limitations is tolled. Sprint Communications Co., L.P. v. F.C.C., 76 F.3d 1221, 1226 (D.C.Cir. 1996) (citation omitted). Where there has been fraudulent concealment, "the defendant must show that the plaintiff had `something closer to actual ...


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