The opinion of the court was delivered by: Margolis, United States Magistrate Judge.
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 February 8, 2000, defendants filed a Motion for Summary
Judgment, which was denied on May 5, 2000, as to the claim that
plaintiffs failed to commence suit within two years after the
date they had
reasonable opportunity to discover the wiretap, was granted
against Diane Dreskinis Schmidt, Lillian Schmidt, and Eric
Schmidt on the basis that these plaintiffs had not presented
substantive evidence of wiretapping, and was denied with regard
to defendants' arguments concerning Donald Schmidt and Robert
Hanahan's statelaw claims. Schmidt v. Devino, 106 F. Supp.2d 345
(Conn. 2000).
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.
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).
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).
The following constitutes the court's conclusions of law,
pursuant to FED.R.CIV.P. 52(a):
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 ...