Hackett v. St. Jude Medical S.C., Inc.

MOTION for Summary Judgment as to Defendant's Counterclaim and Incorporated Memorandum of Law

D. Minn.March 17, 2017

IN THE UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA ANDREW HACKETT, Plaintiff, v. CASE NO: 0:15-CV-03854-WMW/TNL ST. JUDE MEDICAL S.C., INC., Defendant. ______________________________________ PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AS TO DEFENDANT’S COUNTERCLAIM AND INCORPORATED MEMORANDUM OF LAW Plaintiff, ANDREW HACKETT, by and through his undersigned attorneys, hereby files this Motion for Summary Judgment as to Defendant’s Counterclaim and Incorporated Memorandum of Law, and in support thereof states as follows: 1. On or about August 1, 2016, Defendant, St. Jude Medical S.C., Inc. (SJMSC) filed its Amended Answer, which included a newly asserted counterclaim against Plaintiff, Andrew Hackett (Hackett), for alleged violation of Florida’s Security of Communications Act, Fla. Stat. ch. 934. 2. This Court should grant summary judgment as to Defendant’s counterclaim because not only is there no genuine issue of material fact, but even if all facts are assumed as true, the claim still fails as a matter of law. CASE 0:15-cv-03854-WMW-TNL Document 75 Filed 03/17/17 Page 1 of 8 2 FACTS/BACKGROUND 1. It is undisputed that on or about March 10, 2014, Shayne Macherowski (Macherowski), Hackett’s then-supervisor, met with Hackett at a Starbucks inside Tampa International Airport and told Hackett he had been terminated. 2. It is also undisputed that Hackett recorded their conversation. 3. The only dispute lies in the legality of the recording under Florida law, which requires both a subjective and objective expectation of privacy before oral communications come within the purview of Florida’s Security of Communications Act. 4. This question can be resolved using Hackett’s deposition testimony, Macherowski’s deposition testimony, and Macherowski’s Declaration, attached hereto as Exhibit “A.” 5. Macherowski’s deposition testimony reads as follows: Q: You didn’t expect this termination meeting to be a private one, did you?1 A: I didn’t. (232). However, Macherowski’s Declaration reads as follows: In my deposition, I was asked the question (p. 232): “You didn’t expect this termination to be a private one, did you?” My answer was, “I didn’t,” by which I meant that I was not acting “privately”, in my own capacity, by myself, and without consulting anyone else . . . this was not a “private” action by me acting alone, but instead was an action by the company . . . . It was my expectation that my meeting with Mr. Hackett would be private . . . . 1 In order for the Florida Security of Communications Act to apply to the interception of oral communication, the speaker must exhibit a reasonable expectation of privacy. § 934.02(2), see also Brugmann v. State, 117 So.2d 39, 47 (Fla. 3d DCA 2013) (emphasis added). CASE 0:15-cv-03854-WMW-TNL Document 75 Filed 03/17/17 Page 2 of 8 3 ¶8, emphasis added. Defendant omitted the operative word meeting from the deposition testimony quoted in the Declaration. 6. Although, under the circumstances as discussed below, Macherowski did not exhibit a subjective expectation of privacy, even if this Court finds his alleged subjective expectation to be sound, the claim must fail the objective reasonableness analysis, and summary judgment is appropriate as a matter of law. ARGUMENTS AND AUTHORITIES I. Standard of Review Summary judgment is proper if, the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. The movant bears the initial responsibility of informing the district court of the basis for its motion, and must identify those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial. On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. The nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts, and must come forward with specific facts showing that there is a genuine issue for trial. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir.2011) (en banc) (internal quotation marks and citation omitted). To clarify, “[a]lthough the burden of demonstrating the absence of any genuine issue of material fact rests on the movant, a nonmovant may not rest upon mere denials or CASE 0:15-cv-03854-WMW-TNL Document 75 Filed 03/17/17 Page 3 of 8 4 allegations, but must instead set forth specific facts sufficient to raise a genuine issue for trial.” Wingate v. Gage Cnty. Sch. Dist., No. 34, 528 F.3d 1074, 1078–79 (8th Cir.2008). “The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). II. The Recording and Florida’s Security of Communications Act Florida’s Security of Communications Act, Fla. Stat. ch. 934, does not apply to the recording at issue because the speaker testified – under oath – that he did not have an expectation of privacy during the conversation, and because it is not objectively reasonable to have an expectation of privacy during a business meeting at a crowded airport Starbucks. It is well-settled that “the statute protects only those ‘oral communications’ uttered by a person exhibiting an expectation of privacy under circumstances reasonably justifying such an expectation.” State v. Inciarrano, 473 So.2d 1272, 1275 (Fla. 1985). Courts apply a two- part test in determining whether the intercepted oral communication is protected by Fla. Stat. ch. 934: 1) Did the non-consenting party have a subjective expectation of privacy?; and 2) Was the expectation of privacy one that society is prepared to recognize as reasonable? Brugmann v. State, 117 So.3d 39, 47 (Fla. 3d DCA 2013). Here, the communication at issue fails both parts of the test. Macherowski testified unequivocally that he did not expect the termination meeting to be a private one. Furthermore, Macherowski testified that he intentionally selected a CASE 0:15-cv-03854-WMW-TNL Document 75 Filed 03/17/17 Page 4 of 8 5 Starbucks at the Tampa Airport as the meeting place to communicate Hackett’s termination to him, rather than a place where no one was around or in a non-public establishment, which he acknowledged he could have done. [Macherowski: 233]. When communications take place in place of business, a speaker’s expectation of privacy is less than if the conversation had taken place in a home. Brugmann, 117 So.3d at 47 citing Avrich v. State, 936 So.2d 739, 742 (Fla. 3d DCA 2006) (“Florida courts have consistently held that the constitutional protections of a reasonable expectation of privacy do not extend to an individual’s place of business.”)2, see also Def’s Ex. P, Molodecki v. Robertson Display, Inc., Case No.: 8:00-cv- 2469-T-17F (MD Fla. Sept. 10, 2002) (holding that there was “no reasonable expectation of privacy as to the conversation that took place between the four men at their place of employment,” and that the “tape-recorded conversation did not violate Florida law.”). No amount of back-tracking, posturing, gamesmanship or self-serving Declarations can breathe new life into Macherowski’s subjective expectation. Although the analysis dies at step one, should the Court find that Macherowski had a subjective expectation to privacy, an expectation of privacy under the given circumstances is objectively unreasonable. Although location or place is an important consideration when analyzing the reasonableness of one’s expectation to privacy, it is not the only consideration. Brugmann, 117 So.3d at 48. Other factors include the manner in which the communication was made, the nature of the communication, the intent of the speaker asserting chapter 934 2 In determining whether a communication comes within the purview of Fla. Stat. ch. 934, courts apply Fourth Amendment jurisprudence and right to privacy analysis. Stevenson v. State, 667 So.2d 410, 412 (Fla. 1st DCA 1996). CASE 0:15-cv-03854-WMW-TNL Document 75 Filed 03/17/17 Page 5 of 8 6 protection at the time the communication was made, the purpose of the communication, the conduct of the speaker, the number of people present, and the contents of the communication. Id. at 49. Society does not recognize an absolute right of privacy in a party’s office or place of business, especially where the speaker is conducting the business of the company. Cohen Brothers, LLC v. ME Corp., SA, 872 So.2d 321, 324-25 (Fla. 3d DCA 2004). Not only was Macherowski not conducting business in an office building or a conference room, he was conducting business at a table in a Starbucks in the airport. To afford this this communication a reasonable expectation of privacy flies in the face of established Florida law and Fourth Amendment jurisprudence. In Department of Agriculture & Consumer Services v. Edwards, the court held that chapter 934 did not apply where an employee secretly recorded communications he had with his supervisors, in a supervisor’s office, regarding a grievance he had filed. 654 So.2d 628 (Fla. 1st DCA 1995). In so holding, the court stated that “any subjective expectation of privacy held by Edwards’ supervisors was not reasonable under the circumstances of this case. We reach this conclusion . . . because of the number of persons present when the statements were made, the place chosen for the interview, and the very nature of that interview.” Id at 632-33. If the protections of chapter 934 do not apply to a meeting regarding a grievance between supervisors and a subordinate in a private office, they cannot be extended to a meeting regarding termination of employment between a supervisor and a subordinate in a busy airport Starbucks. CASE 0:15-cv-03854-WMW-TNL Document 75 Filed 03/17/17 Page 6 of 8 7 CONCLUSION Based on the foregoing lack of genuine issue of material fact, as well as application of the operative law, summary judgment of Defendant’s counterclaim is appropriate. Respectfully Submitted, FLORIN ROEBIG, P.A. /s/Wolfgang M. Florin WOLFGANG M. FLORIN Florida Bar No.: 907804 Primary: WMF@FlorinRoebig.com LINDSEY C. KOFOED FL Bar No.: 63956 Primary: LCK@florinroebig.com 777 Alderman Road Palm Harbor, Florida 34683 Telephone No.: (727) 786-5000 Facsimile No.: (727) 772-9833 Attorneys for Plaintiff CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this memorandum of law is set in double-spaced, size thirteen (13) font and complies with the word-count limitations set forth in Local Rule 7.1(f)(1)(A). Specifically, this motion and memorandum contain 1,593 words, inclusive of footnotes. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 17th day of March 2017, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to the following: Joseph W. Hammell, Scott A. Selix and Marilyn Clark, DORSEY & WHITNEY, LLP, Suite 1500, 50 South Sixth Street, Minneapolis, MN 55402 CASE 0:15-cv-03854-WMW-TNL Document 75 Filed 03/17/17 Page 7 of 8 8 and Andrew M. Leone, FLORIN ROEBIG, P.A., 7760 Frances Ave. South, Suite 111, Minneapolis, MN 55435. FLORIN ROEBIG, P.A. /s/Wolfgang M. Florin WOLFGANG M. FLORIN Florida Bar No.: 907804 Primary: WMF@FlorinRoebig.com LINDSEY C. KOFOED FL Bar No.: 63956 Primary: LCK@florinroebig.com 777 Alderman Road Palm Harbor, Florida 34683 Telephone No.: (727) 786-5000 Facsimile No.: (727) 772-9833 Attorneys for Plaintiff CASE 0:15-cv-03854-WMW-TNL Document 75 Filed 03/17/17 Page 8 of 8