UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Karen Warrington, individually, and as m/n/f of J.W.
v. Civil No. 20-cv-1014-LM Opinion No. 2021 DNH 070 P John Edward Warrington
ORDER
Karen Warrington brings this diversity action on her own behalf and as
mother and next friend of her minor son, J.W., against John Edward Warrington—
her ex-husband and J.W.’s father. Plaintiff alleges that defendant recorded a
telephone conversation between himself and J.W. without J.W.’s knowledge or
consent in violation of New Hampshire’s Wiretapping and Eavesdropping Act. See
RSA 570-A:2, :11. See generally RSA ch. 570-A. Defendant moves to dismiss. See
doc. no. 7. For the reasons outlined below, the court grants the motion but
dismisses the complaint without prejudice.
STANDARD OF REVIEW
Under Rule 12(b)(6), the court must accept the factual allegations in the
complaint as true, construe reasonable inferences in plaintiff’s favor, and
“determine whether the factual allegations in the plaintiff’s complaint set forth a
plausible claim upon which relief may be granted.” Foley v. Wells Fargo Bank,
N.A., 772 F.3d 63, 71, 75 (1st Cir. 2014) (citation and internal quotation marks omitted). A claim is facially plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
BACKGROUND
At the time plaintiff filed this action, she resided in Minnesota and defendant
resided in Tennessee. At all times relevant to this action, defendant resided in
either Tennessee or Minnesota. J.W. attends boarding school in New Hampshire.
Plaintiff and defendant divorced in July 2017. A Minnesota court issued
their divorce decree. The divorce decree requires defendant to contribute financially
to J.W.’s participation in extracurricular activities, so long as plaintiff and
defendant agree to J.W.’s participation in a given activity. Shortly after entry of the
divorce decree, however, defendant refused to agree to J.W.’s participation in any
extracurricular activities, even those that J.W. had previously participated in. As a
result, plaintiff filed a motion to modify the divorce decree to require defendant to
contribute to J.W.’s extracurriculars.
In October 2017, defendant called J.W. on his dorm room phone.1 Defendant
raised topics of conversation during this phone call that caused J.W. to become
noticeably angry toward defendant. After J.W. became angry, defendant began
1 Plaintiff makes no allegation in her complaint as to where defendant was
physically located (i.e., in Tennessee or somewhere else) when he called J.W.
2 recording their conversation. He did not notify J.W. or obtain his permission before
doing so.
Following the October 2017 phone call, defendant refused to exercise any in-
person parenting time with J.W. or make contributions toward J.W.’s tuition and
extracurricular expenses. In addition, defendant submitted portions of the recorded
phone call at a post-decree motion hearing in the parties’ divorce proceeding.
Defendant used the contents of the recording—i.e., J.W.’s anger toward his father—
to explain to the court why he had not been exercising parenting time or
contributing to J.W.’s tuition and extracurriculars. In October 2018, the Minnesota
court entered an order declining to require defendant to contribute to J.W.’s
extracurricular activities.
Plaintiff thereafter filed this single-count complaint. Plaintiff alleges that
defendant violated New Hampshire’s Wiretapping and Eavesdropping Act by
recording portions of his October 2017 phone call with J.W. without the latter’s
consent, and by subsequently submitting the recording as evidence in the parties’
divorce proceeding. See RSA 570-A:11. Plaintiff seeks damages—actual, statutory,
and punitive—as well as attorney’s fees. See id.
Defendant now moves to dismiss, arguing, inter alia, that plaintiff fails to
allege that he intercepted a communication within New Hampshire as required by
the Wiretapping and Eavesdropping Act.
3 DISCUSSION
The Wiretapping and Eavesdropping Act provides a private right of action for
“[a]ny person whose telecommunication . . . is intercepted, disclosed, or used in
violation of this chapter.” RSA 570-A:11. Under the Act, it is unlawful to “wilfully
intercept[ ] . . . any telecommunication” “without the consent of all parties to the
communication.” RSA 570-A:2, I(a). “Intercept” is defined, in pertinent part, as
“the recording of . . . the contents of any telecommunication . . . through the use of
any electronic, mechanical, or other device.” RSA 570-A:1, III.
In State v. Ruggiero, 163 N.H. 129 (2011), the New Hampshire Supreme
Court considered whether a recording which took place in South Carolina violated
the Act. In that case, the defendant, Kristin Ruggiero, obtained a restraining order
against her soon-to-be-ex-husband, Jeffrey Ruggiero, shortly before the
commencement of their divorce proceedings. See Ruggiero, 163 N.H. at 131. Ms.
Ruggiero relocated to California at or around the time she obtained the restraining
order, and Mr. Ruggiero relocated to South Carolina around that same time. See id.
After obtaining the restraining order, Ms. Ruggiero began contacting Mr. Ruggiero
on the telephone. See id. Mr. Ruggiero’s partner, Jean Backus, used a video
camera to record Ms. Ruggiero’s voice during these calls. See id. Ms. Ruggiero was
later charged with numerous counts of falsifying physical evidence and one count of
making a false report in relation to her attempts to jail Mr. Ruggiero for violating
the restraining order. See id. at 130-32; see also RSA 641:4, :6. The State obtained
Ms. Backus’s recordings of Ms. Ruggiero’s phone calls. See Ruggiero, 163 N.H. at
4 132. Prior to trial, Ms. Ruggiero filed a motion in limine to exclude the recordings
pursuant to RSA 570-A:6. See id. at 132-33. RSA 570-A:6 provides in relevant part
that, “[w]henever any telecommunication . . . has been intercepted, no part of the
contents of such communication . . . may be received in evidence in any trial . . . if
the disclosure of that information would be in violation of this chapter.” The
superior court denied that motion. Ruggiero, 163 N.H. at 132-33.
On appeal, the New Hampshire Supreme Court upheld the trial court’s
denial of Ms. Ruggiero’s motion. The court explained that RSA 570-A:6 mandates
the exclusion of evidence only if “disclosure [of that evidence] would violate New
Hampshire’s wiretap statute.” Id. at 134. The court noted that the Act prohibits
the willful disclosure of the contents of a telecommunication if the person making
the disclosure knows or has reason to know “that the information was obtained
through the interception of a telecommunication . . . in violation of [paragraph I of
RSA 570-A:2].” Id. (emphasis omitted) (quoting RSA 570-A:2, I(c)-(d)). Thus, the
court’s analysis turned on whether the interception of Ms. Ruggiero’s
telecommunication was in violation of RSA 570-A:2, I. See id.
The court held that the interceptions did not violate RSA 570-A:2, I. Id. The
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Karen Warrington, individually, and as m/n/f of J.W.
v. Civil No. 20-cv-1014-LM Opinion No. 2021 DNH 070 P John Edward Warrington
ORDER
Karen Warrington brings this diversity action on her own behalf and as
mother and next friend of her minor son, J.W., against John Edward Warrington—
her ex-husband and J.W.’s father. Plaintiff alleges that defendant recorded a
telephone conversation between himself and J.W. without J.W.’s knowledge or
consent in violation of New Hampshire’s Wiretapping and Eavesdropping Act. See
RSA 570-A:2, :11. See generally RSA ch. 570-A. Defendant moves to dismiss. See
doc. no. 7. For the reasons outlined below, the court grants the motion but
dismisses the complaint without prejudice.
STANDARD OF REVIEW
Under Rule 12(b)(6), the court must accept the factual allegations in the
complaint as true, construe reasonable inferences in plaintiff’s favor, and
“determine whether the factual allegations in the plaintiff’s complaint set forth a
plausible claim upon which relief may be granted.” Foley v. Wells Fargo Bank,
N.A., 772 F.3d 63, 71, 75 (1st Cir. 2014) (citation and internal quotation marks omitted). A claim is facially plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
BACKGROUND
At the time plaintiff filed this action, she resided in Minnesota and defendant
resided in Tennessee. At all times relevant to this action, defendant resided in
either Tennessee or Minnesota. J.W. attends boarding school in New Hampshire.
Plaintiff and defendant divorced in July 2017. A Minnesota court issued
their divorce decree. The divorce decree requires defendant to contribute financially
to J.W.’s participation in extracurricular activities, so long as plaintiff and
defendant agree to J.W.’s participation in a given activity. Shortly after entry of the
divorce decree, however, defendant refused to agree to J.W.’s participation in any
extracurricular activities, even those that J.W. had previously participated in. As a
result, plaintiff filed a motion to modify the divorce decree to require defendant to
contribute to J.W.’s extracurriculars.
In October 2017, defendant called J.W. on his dorm room phone.1 Defendant
raised topics of conversation during this phone call that caused J.W. to become
noticeably angry toward defendant. After J.W. became angry, defendant began
1 Plaintiff makes no allegation in her complaint as to where defendant was
physically located (i.e., in Tennessee or somewhere else) when he called J.W.
2 recording their conversation. He did not notify J.W. or obtain his permission before
doing so.
Following the October 2017 phone call, defendant refused to exercise any in-
person parenting time with J.W. or make contributions toward J.W.’s tuition and
extracurricular expenses. In addition, defendant submitted portions of the recorded
phone call at a post-decree motion hearing in the parties’ divorce proceeding.
Defendant used the contents of the recording—i.e., J.W.’s anger toward his father—
to explain to the court why he had not been exercising parenting time or
contributing to J.W.’s tuition and extracurriculars. In October 2018, the Minnesota
court entered an order declining to require defendant to contribute to J.W.’s
extracurricular activities.
Plaintiff thereafter filed this single-count complaint. Plaintiff alleges that
defendant violated New Hampshire’s Wiretapping and Eavesdropping Act by
recording portions of his October 2017 phone call with J.W. without the latter’s
consent, and by subsequently submitting the recording as evidence in the parties’
divorce proceeding. See RSA 570-A:11. Plaintiff seeks damages—actual, statutory,
and punitive—as well as attorney’s fees. See id.
Defendant now moves to dismiss, arguing, inter alia, that plaintiff fails to
allege that he intercepted a communication within New Hampshire as required by
the Wiretapping and Eavesdropping Act.
3 DISCUSSION
The Wiretapping and Eavesdropping Act provides a private right of action for
“[a]ny person whose telecommunication . . . is intercepted, disclosed, or used in
violation of this chapter.” RSA 570-A:11. Under the Act, it is unlawful to “wilfully
intercept[ ] . . . any telecommunication” “without the consent of all parties to the
communication.” RSA 570-A:2, I(a). “Intercept” is defined, in pertinent part, as
“the recording of . . . the contents of any telecommunication . . . through the use of
any electronic, mechanical, or other device.” RSA 570-A:1, III.
In State v. Ruggiero, 163 N.H. 129 (2011), the New Hampshire Supreme
Court considered whether a recording which took place in South Carolina violated
the Act. In that case, the defendant, Kristin Ruggiero, obtained a restraining order
against her soon-to-be-ex-husband, Jeffrey Ruggiero, shortly before the
commencement of their divorce proceedings. See Ruggiero, 163 N.H. at 131. Ms.
Ruggiero relocated to California at or around the time she obtained the restraining
order, and Mr. Ruggiero relocated to South Carolina around that same time. See id.
After obtaining the restraining order, Ms. Ruggiero began contacting Mr. Ruggiero
on the telephone. See id. Mr. Ruggiero’s partner, Jean Backus, used a video
camera to record Ms. Ruggiero’s voice during these calls. See id. Ms. Ruggiero was
later charged with numerous counts of falsifying physical evidence and one count of
making a false report in relation to her attempts to jail Mr. Ruggiero for violating
the restraining order. See id. at 130-32; see also RSA 641:4, :6. The State obtained
Ms. Backus’s recordings of Ms. Ruggiero’s phone calls. See Ruggiero, 163 N.H. at
4 132. Prior to trial, Ms. Ruggiero filed a motion in limine to exclude the recordings
pursuant to RSA 570-A:6. See id. at 132-33. RSA 570-A:6 provides in relevant part
that, “[w]henever any telecommunication . . . has been intercepted, no part of the
contents of such communication . . . may be received in evidence in any trial . . . if
the disclosure of that information would be in violation of this chapter.” The
superior court denied that motion. Ruggiero, 163 N.H. at 132-33.
On appeal, the New Hampshire Supreme Court upheld the trial court’s
denial of Ms. Ruggiero’s motion. The court explained that RSA 570-A:6 mandates
the exclusion of evidence only if “disclosure [of that evidence] would violate New
Hampshire’s wiretap statute.” Id. at 134. The court noted that the Act prohibits
the willful disclosure of the contents of a telecommunication if the person making
the disclosure knows or has reason to know “that the information was obtained
through the interception of a telecommunication . . . in violation of [paragraph I of
RSA 570-A:2].” Id. (emphasis omitted) (quoting RSA 570-A:2, I(c)-(d)). Thus, the
court’s analysis turned on whether the interception of Ms. Ruggiero’s
telecommunication was in violation of RSA 570-A:2, I. See id.
The court held that the interceptions did not violate RSA 570-A:2, I. Id. The
court observed that “[n]one of the interceptions occurred in New Hampshire.” Id.
Rather, “the calls were . . . intercepted in South Carolina” where Ms. Backus
recorded them. Id. Citing the “general rule” that “restrictions in one state’s consent
surveillance statute will not be given extraterritorial effect,” the court concluded
that Ms. Backus did not violate New Hampshire’s Wiretapping and Eavesdropping
5 Act by recording Ms. Ruggiero’s phone call in South Carolina. Id. (citing 2 James G.
Carr & Patricia L. Bellia, The Law of Electronic Surveillance § 7:48, at 268 (2011)).
Ruggiero makes clear that an interception may violate RSA 570-A:2 only if it
occurs in New Hampshire, and that an interception occurs in the place where the
party intercepting the communication is located. See id. at 134-35. The Ruggiero
court’s holding accords with the weight of authority interpreting other states’
similar electronic surveillance statutes. See, e.g., State v. Fowler, 139 P.3d 342, 347
(Wash. 2006) (en banc) (“[T]he test for whether a recording of a conversation or
communication is lawful is determined under the laws of the place of recording.”);
MacNeill Eng’g Co., Inc. v. Trisport Ltd., 59 F. Supp. 2d 199, 202 (D. Mass. 1999)
(concluding that “secretly recording a conversation outside Massachusetts does not
give rise to liability under” Massachusetts’ electronic surveillance statute “even if
the call originated within Massachusetts”); State v. Fleming, 755 P.2d 725, 726-27
(Or. Ct. App. 1988) (concluding that, where phone call between Oregon and
Washington speakers was recorded by the Oregon speaker, Oregon law determined
whether recording was lawful); Pendell v. AMS/Oil, Inc., Civ. A. No. 84-4108-N,
1986 WL 5286, at *2-5 (D. Mass. Apr. 30, 1986) (concluding that secretly recording a
telephone conversation from outside of Massachusetts does not give rise to liability
under Massachusetts’ statute even if the call was placed to a party within
Massachusetts); see also 2 James G. Carr et al., The Law of Electronic Surveillance
§ 7:47 & ns. 1-3, at 216 (2020).
6 Here, plaintiff has failed to plausibly allege that defendant intercepted J.W.’s
telecommunication in New Hampshire. Although the complaint alleges that
defendant called J.W., a New Hampshire boarding school student, on J.W.’s dorm
room phone, it makes no allegation as to defendant’s physical location when he
called J.W. and recorded their conversation. And, while the court is obligated to
construe reasonable inferences in the plaintiff’s favor, see Foley, 772 F.3d at 75, the
court cannot reasonably infer from the complaint’s factual allegations that
defendant was in New Hampshire when he intercepted his phone call with J.W.
The only allegations in the complaint as to defendant’s physical location are that he
currently has a residential address in Tennessee and that he was a “resident” of
Tennessee or Minnesota “[a]t all relevant times to this suit.” Doc. no. 1 ¶ 2.
Plaintiff’s reliance upon RSA 625:4 is unavailing. A subparagraph of that
statute provides that a person may be convicted under New Hampshire’s criminal
laws if his “conduct which is an element of the offense or the result which is such an
element occurs within” New Hampshire. RSA 625:4, I(a). Even assuming that the
New Hampshire Supreme Court would apply this statute to civil proceedings under
RSA chapter 570-A, this subparagraph does not demonstrate that the Act applies to
out-of-state interceptions because such interceptions do not “occur[ ] within” New
Hampshire. Id.
Another subparagraph of RSA 625:4 states that subparagraph I(a) “does not
apply” when “[c]ausing a particular result is an element of an offense and the result
is caused by conduct occurring outside the state which would not constitute an
7 offense if the result had occurred there.” RSA 625:4, II(b). Subparagraph II(b) is
intended to prevent a person’s out-of-state conduct from giving rise to a prosecution
alleging a violation of New Hampshire law “when the conduct is legal [under] the
law . . . where it takes place.” State v. Luv Pharmacy, Inc., 118 N.H. 398, 406
(1978) (quotation omitted); see also Carr et al., supra p.7 (“State restrictions on
consent surveillance by private parties . . . will not be given extra-territorial effect.
Thus, whether a resident of a prohibitory state places or receives the call, it may be
recorded lawfully by the other speaker if that speaker’s state permits such
recording.” (footnotes omitted)) (prior edition cited with approval in Ruggiero, 163
N.H. at 134-35).
Although the court cannot discern from the face of the complaint the state in
which defendant was physically present when he intercepted J.W.’s
telecommunication, plaintiff argues that defendant’s interception contravened
Tennessee’s wiretapping law. Even assuming Tennessee law is relevant, however,
the court concludes that defendant’s interception was permissible under Tennessee
law. Unlike New Hampshire, which generally requires all parties to a
communication to consent to the communication’s recording, Tennessee is a one-
party consent state. See Tenn. Code Ann. § 39-13-601(b)(5) (providing that it is
lawful under Tennessee’s wiretapping act for a private party to intercept a wire,
oral, or electronic communication “where the person is a party to the
communication”); Tenn. Code Ann. § 39-13-604(b)(1) (“A person commits an offense
who, without the consent of at least one (1) party to a communication, intentionally
8 records or disseminates a communication transmitted between . . . a cellular radio
telephone and a landline telephone . . . .” (emphasis added)); Ledford v. Sneed, No.
E2018-00904-COA-R3-CV, 2020 WL 2299770, at *3 (Tenn. Ct. App. May 8, 2020)
(“Tennessee law provides that it is lawful for a person to intercept an oral
communication if . . . the person intercepting the communication is a party to the
communication . . . .” (citing Tenn. Code Ann. § 39-13-601(b)(5))). Thus, as a party
to the October 2017 phone call, Tennessee law permitted defendant to intercept that
call without first obtaining J.W.’s consent.
Although plaintiff points out that Tennessee law does not permit a party to a
communication to intercept that communication “for the purpose of committing any
criminal or tortious act in violation of the constitution or laws of” Tennessee, § 39-
13-601(b)(5), the court cannot infer from the complaint’s factual allegations that
defendant intercepted his call with J.W. for the purpose of committing a criminal or
tortious act in violation of Tennessee law. Rather, the thrust of the complaint is
that defendant’s purpose in recording his phone call with J.W. was to use the
recording to limit his financial obligations under the Minnesota court’s divorce
decree. Plaintiff cites scant authority in asserting that this intended use
contravenes Tennessee law, and her assertion is rebutted by the fact that Tennessee
law permits telecommunications intercepted by a party to the communication to be
used as evidence in Tennessee judicial proceedings. See Tenn. Code Ann. § 40-6-
307; Tenn. Code Ann. § 39-13-601(a)(1)(C), (b)(5).
9 In sum, because plaintiff does not allege that defendant’s interception
occurred in New Hampshire and there is no indication that defendant’s conduct was
unlawful under another relevant state’s law, plaintiff has failed to state a claim
under the New Hampshire Wiretapping and Eavesdropping Act.2 The court
therefore dismisses plaintiff’s complaint without prejudice to her filing an amended
complaint within thirty days alleging facts sufficient to state a claim under that
Act.3 If no amended complaint is filed within thirty days, this court will direct the
clerk to enter judgment and close the case.
CONCLUSION
Defendant’s motion to dismiss (doc. no. 7) is granted. The complaint is
dismissed without prejudice to plaintiff filing an amended complaint within thirty
days asserting a plausible wiretapping claim. If plaintiff does not file an amended
2 Because the court concludes that plaintiff fails to state a claim, it need not
consider defendant’s alternative arguments for dismissal.
3 In light of plaintiff’s argument that the recording was impermissible under
Tennessee law, which suggests that plaintiff believes defendant was in Tennessee when he intercepted his call with J.W., the court suspects that plaintiff may be unable to file an amended complaint plausibly alleging that plaintiff intercepted a communication in New Hampshire as required by the Wiretapping and Eavesdropping Act. See doc. no. 7 at 5; doc. no. 9 at 4-9. However, because it is not a “certainty” from the face of the complaint that plaintiff could not state a claim under the Act in an amended pleading, the court affords her an opportunity to attempt do so—if she believes she can. 5B Arthur R. Miller et al., Fed. Prac. & Proc. Civ. § 1357 (3d ed.).
10 complaint within thirty days, the court will direct the clerk to enter judgment and
close the case.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
April 6, 2021
cc: Counsel of Record