The opinion of the court was delivered by: William W. Caldwell United States District Judge
I. Introduction and Procedural
History Plaintiff is Timothy M. Thomas, a trooper with the Pennsylvania State Police. The pro se defendants are Diana M. Thomas, Plaintiff's wife, and Ronald Weagley, defendant Thomas's father. The case arises from the marital difficulties of plaintiff Thomas and his defendant wife. By way of a memorandum and order of June 15, 2012, we dismissed Plaintiff's original complaint and granted him leave to amend only his federal and state wiretapping claims against defendant Thomas. Thomas v. Thomas, 2012 WL 2238028, at *9. Plaintiff complied with that order and filed an amended complaint, which added Weagley as a defendant and alleged that these defendants violated federal and state wiretapping laws concerning five of Plaintiff's oral communications. We are considering Defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted.
In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), "[w]e 'accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d Cir. 2010)(quoted case omitted).
A complaint need only contain "a short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007). Nonetheless, a complaint has to plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955 at 1974. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)(quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965). "[L]abels and conclusions" are not enough, Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65, and a court "'is not bound to accept as true a legal conclusion couched as a factual allegation.'" Id., 127 S.Ct. at 1965 (quoted case omitted).
With this standard in mind, we set forth the background to this litigation, as Plaintiff alleges it.
Plaintiff's amended complaint alleges five instances when Defendants supposedly violated federal and state wiretapping laws in connection with Plaintiff's oral communications. First, on December 1, 2010, defendants Thomas and Weagley "endeavored to unlawfully wiretap" Plaintiff by "sew[ing] a recording device into the lining of Chloe Thomas' jacket for the purpose of recording the conversations of plaintiff Timothy Thomas while he was conducting a lawful child visitation." (Am. Compl. ¶¶ 8, 9 and 11). Chloe is the natural daughter of Plaintiff and defendant Thomas. (Id. ¶ 11). Such an "endeavor[ ]" is unlawful under federal and state law. (Id. ¶ 10). "Diana Thomas admitted in a written statement given to Upper Uwchlan police officer Joseph Katz that she purchased the device, turned it on and placed it in her daughter's jacket . . . before she left with her father Timothy Thomas." (Id. ¶ 12)(internal quotation marks omitted).
Second, on December 4, 2011, defendant Weagley "began filming the plaintiff as he walked back to his father's minivan as he was engaged in efforts to drop off his daughter Chloe. Based upon what plaintiff could observe defendant Weagley was not only filming his activities but was audio recording as well." (Id. ¶ 15).
Third, on September 22, 2010, "plaintiff's brother Kelly L. Thomas observed Ethan, the son of Diana and plaintiff Timothy Thomas[,] holding an electronic phone device over his right shoulder pointed in the direction of the backseat where Tim and Chloe were seated together having a conversation." (Id. ¶ 16). "Upon information and belief, Ethan was endeavoring to record the conversation" at the request of Defendant Thomas. (Id.). "Upon further information and belief, plaintiff alleges this unlawful behavior was orchestrated by Diana Thomas." (Id.).
Fourth, on December 1, 2011, Plaintiff alleges that, while at a child custody hearing, defendant Thomas "produced a DVD which she asserted was produced by her father Ronald Weagley who had purportedly taped Mr. Timothy Thomas and his brother Kelly Thomas." (Id. ¶¶ 17, 18). Plaintiff asked the master at the child custody proceedings to seize the DVD as possible evidence of wiretapping violations but nothing was done. (Id. ¶¶ 19-20).
Finally, on September 19, 2010, defendant Weagley sent a letter to attorney Michael E. McHale containing "certain quotes attributed to both Chloe and Timothy Thomas" that "had to have been taken from a recording device" because they were "exact quotes." (Id. ¶ 21).
Plaintiff's federal claims are made under the federal wiretapping act, 18 U.S.C. §§ 2510-2522, and his state claims are made under the Pennsylvania "Wiretapping and Electronic Surveillance Control Act." 18 Pa. Con. Stat. Ann. §§ 5701-5781.
The statutes use nearly identical language. Under the federal act, a person commits a crime if she "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication . . . ." 18 U.S.C. § 2511(1)(a). "[I]ntercept" is defined as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical or other device." Id. § 2510(4). In pertinent part, an "oral communication" is defined as "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation . . ." Id. § 2510(2). In addition to making certain conduct criminal, the federal act also authorizes a civil cause of action. In pertinent part, "any person" may recover compensatory damages, and seek other relief, from the offending party when his "wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter . . . ." Id. §§ 2520(a) and (c).
The Pennsylvania wiretapping act contains substantively identical provisions set forth in identical language except for some minor variations. In pertinent part, under state law, "a person" commits a crime "if [s]he: (1) intentionally intercepts, endeavors to intercept, or procures any other person to intercept, or endeavor to intercept any wire, electronic or oral communication . . . ." 18 Pa. Con. Stat. Ann. § 5703(1). In pertinent part, "Intercept" is defined as the "[a]ural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device." Id. § 5702. In pertinent part, an "Oral communication" is defined as "[a]ny oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation . . ." Id. In addition to its criminal provisions, the Pennsylvania act also authorizes a civil cause of action. In pertinent part, "[a]ny person" may recover compensatory damages, and seek other relief, when his "wire, electronic or oral communication is intercepted, disclosed or used in violation of this chapter" from "any person who intercepts, discloses or uses or procures any other person to intercept, disclose or use, such communication . . . ." Id. § 5725(a).
In moving to dismiss, the pro se defendants Thomas and Weagley argue the following. First, a civil-rights complaint requires action under color of state law, and they are not state actors. Second, the federal and state wiretapping statutes do not confer a private cause of action. Third, even if these statutes created private causes of action, Plaintiff has failed to allege any actual interception of his oral communications. ...