ORDER DENYING SUMMARY JUDGMENT
An estranged husband, his business partner and their closelyheld Maine corporation claim that his wife violated federal andstate wiretapping statutes and committed the tort of invasion ofprivacy by recording telephone calls to and from the corporateentity. Presently before the Court is Defendant wife's motion todismiss or, in the alternative, requesting thatthe Court abstain from accepting jurisdiction (Docket # 5). Forthe following reasons, the Court DENIES Defendant's motion.
I. SUMMARY JUDGMENT STANDARD
The Court treats Defendant's motion to dismiss as a motion forsummary judgment pursuant to Fed.R.Civ.P. 12(b). Whiting v.Maiolini, 921 F.2d 5, 6 (1st Cir. 1990) (noting that districtcourts have discretion to convert 12(b)(6) motions toRule 56 motions without prior notice to the parties provided nonmovanthas had the opportunity to respond to movant's affidavits andfactual allegations). In her motion, Defendant presented mattersoutside the pleadings, to which Plaintiffs have responded atlength. See Collier v. City of Chicopee, 158 F.3d 601, 603(1st Cir. 1998) (finding constructive notice of impendingconversion where a movant attaches outside materials to itspleadings and requiring that a nonmovant have an opportunity topresent its own factual material).
Summary judgment is appropriate where the record developed bythe parties shows "that there is no genuine issue as to anymaterial fact and that the moving party is entitled to ajudgment as a matter of law." Fed.R.Civ.P. 56(c), As the movingparty, Defendant must make "a preliminary showing that nogenuine issue of material fact exists." Blackie v. Maine,75 F.3d 716, 721 (1st Cir. 1996) (quoting Nat'l Amusements, Inc.v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995)). If shesucceeds in doing so, Plaintiffs must "contradict the showing bypointing to specific facts demonstrating that there is, indeed,a trialworthy issue." Id.
A factual dispute is "genuine" or "trialworthy" "only if areasonable jury could resolve it in favor of either party".Basic Controlex Corp. v. Klockner Moeller Corp., 202 F.3d 450,453 (1st Cir. 2000). A material fact is one that has thepotential to change the outcome under governing law if thedispute is resolved favorably to the nonmoving party. Steinkev. Sungard Fin. Sys., Inc., 121 F.3d 763, 768 (1st Cir. 1997).The Court views the record in the light most favorable to thenon-moving party and gives that party the benefit of allreasonable inferences in its favor. Cadle Co. v. Hayes,116 F.3d 957, 959 (1st Cir. 1997).
II. FACTS
The following facts are undisputed except as otherwisenoted.1 DefendantDorothy Britton ("Ms.Britton") and Plaintiff David Britton("Mr.Britton") shared a marital residence in Houlton, Maine,from 1993 to the summer of 2000. On March 27, 2000, Ms. Brittonfiled for divorce from Mr. Britton in Maine District Court,alleging adultery. The divorce action is still pending.
Plaintiffs operate a trucking business, Double D, Inc., fromthe garage of the Britton's residence in Houlton. A significantissue in the divorce is the valuation of Plaintiff Double D,Inc. ("Double D"), a Maine corporation owned entirely by Mr.Britton and Plaintiff Dennis London ("London") as equalshareholders. The corporation owns and maintains at least onetelephone line that also has an extension located in theresidential portion of the home. The line is used almostexclusively for business purposes and the majority of calls onthe line are interstate or international. With rare exceptions,Mr. Britton, London or other Double D employees initiate andreceive calls on the Double D line.
In the summer of 2000, Mr. Britton discovered a recordingdevice in the basement of the Houlton residence connected to thetelephone line owned by Double D. He also discovered an audiotape that appeared to be labeled in Ms. Britton's handwriting inthe bedroom of the Houlton residence. On playing the tape, Mr.Britton recognized his own voice engaged in telephoneconversations that had been communicated through the Double Dline. Neither Mr. Britton, London nor Double D authorized therecording. Ms. Britton does not admit that she made therecordings.2
During the divorce proceedings, Ms. Britton invoked her FifthAmendment privilege against self-incrimination when ordered toproduce any such additional recordings. Mr. Britton then movedin state court to find Ms. Britton in contempt and compelproduction of the recordings. The Maine Court denied Mr.Britton's motion and issued a protective order on September 21,2000, prohibiting the use of any recording or informationderived from a recording in the divorce proceeding. Theprotective order also prohibited Mr. Britton from seeking tocompel production of the recordings at any future point in theproceedings.
On March 18, 2002, Mr. Britton, London and Double D filed afour count complaint against Ms. Britton in this Court. Count Iseeks damages under the civil remedy portion of Title III of theOmnibus Crime Control and Safe Streets Act of 1968 forintentional interception of Plaintiffs' telephonecommunications. See 18 U.S.C § 2510 et seq. (2000). Count IIseeks damages under the civil remedy portion of the Mainewiretapping statute for willfulinterception of Plaintiff's telephone communication. See 15M.S.R.A. § 709 at seq. (Supp. 2001). Counts III and IV seekpunitive damages in tort resulting from Ms. Britton's allegedintentional invasion of Plaintiffs' privacy. On May 16, 2002,Ms. Britton moved to dismiss Count I or, in the alternative, torequest that the Court abstain from accepting jurisdiction overthe entire matter.3
III. FEDERAL WIRETAPPING CLAIM
Defendant asserts that federal law does not provide a cause ofaction for Plaintiffs' wiretapping claim because the allegedsurveillance occurred between spouses in anticipation ofdivorce. As Defendant limits her challenge to the federalquestion underlying Plaintiffs' state wiretapping and invasionof privacy claims, the Court similarly limits its discussion tothe federal wiretapping statute.
A. Federal Wiretapping Statute
Plaintiffs' allege a violation of Title III of the OmnibusCrime Control and Safe Streets Act of 1968 ("Title III"), 18U.S.C § 2510 et seq. (2000). The Act subjects to civil damagesany person who "intentionally uses, endeavors to use, orprocures any other person to use or endeavor to use anyelectronic, mechanical or other device to intercept, any oralcommunication when . . . such device is affixed to . . . a wire,cable, or other like connection used in wirecommunication. . . ." 18 U.S.C. § 2511(1)(b)(i); 2520(a)."Intercept" is defined as the "aural or other acquisition of thecontents of any wire, electronic, or oral communication throughthe use of any electronic, mechanical or other device," §2510(4).
B. Inter-spousal Communication Exception
Defendant argues that Title III does not provide a cause ofaction for inter-spousal eavesdropping in the context of adomestic dispute. She points to precedent from the Second andFifth Circuit Courts of Appeal and notes that the Circuits arecurrently split on the existence of an inter-spousalcommunication exception to the statute. Compare Anonymous v.Anonymous, 558 F.2d 677, 679 (2d Cir. 1977) (recognizing anexception to Title III where defendant recorded his spouse'stelephone conversations with their child in anticipation of acustody dispute), and Simpson v. Simpson, 490 F.2d 803, 810(5th Cir. 1974) (recognizing an exception to Title III wheredefendant recorded his spouse's telephone conversations withanother man in anticipation of divorce), with Heggy v. Heggy,944 F.2d 1537, 1540 (10th Cir. 1991) (finding that Title IIIapplies to the interception of inter-spousal communications),Kempf v. Kempf; 868 F.2d 970, 973 (8th Cir. 1989) (same),Pritchard v. Pritchard, 732 F.2d 372, 374 (4th Cir. 1984)(same) and United States v. Jones, 542 F.2d 661, 672-73 (6thCir. 1976) (same). The First Circuit has not ruled on the issue.
The Circuits that recognize the interspousal communicationexception, however, impose two limitations on the availabilityof that exception. Anonymous and Simpson exempt interceptionof spousal communications from Title III provided that thosecommunications occur primarily between the parties to a domesticdispute,such as between a spouse and her children or her paramour.Anonymous, 558 F.2d at 679 (contrasting "purely domestic"disputes with cases where defendants had "invaded the privacy ofinnumerable persons, known and unknown"); Simpson, 490 F.2d at805 (questioning a federal remedy for the "personal acts" ofone's spouse within the marital home). These Courts furtherrequire that the spousal eavesdropping, absent surreptitiousrecording, fall within the legislatively created extensiontelephone exception to Title III. 18 U.S.C. § 2510(5)(a)(i);Anonymous, 558 F.2d at 678-79; Simpson, 490 F.2d at 809.
1. Communications Between Parties to a Domestic Dispute
The Court need not address the availability of theinter-spousal communication exception in this Circuit. Thepresent case does not meet the exception even as applied in theSecond and Fifth Circuits because it involves primarilynon-domestic communications. The parties agree that theintercepted communications were largely business related.4Thus traffic on the recorded line necessarily involvedconversations between many more individuals than Mr. Britton andhis immediate family.5 For the purposes of completeness,however, the Court moves on to consider the second requirementof the inter-spousal communication exception.
2. Extension Telephone Exception
Anonymous and Simpson also require that the interceptedcommunications, absent a recording device, otherwise qualify forthe statutory exception to Title III. Electronic surveillance isnot actionable under the statute when accomplished through "anytelephone or telegraph instrument, equipment or facility . . .furnished by such subscriber or user [of a wire or electroniccommunication service] for connection to the facilities of suchservice and used in the ordinary course of its business. . . ."§ 510(5)(a)(i). This non-actionable eavesdropping is commonlyreferred to as the extension telephone exception to Title III.See Williams v. Poulos, 11 F.3d 271, 279 (1st Cir. 1993).Application of the exception turns both on the type of equipmentused to eavesdrop and on the use of that equipment in theordinary course of business, See id, (addressing the"telephone or telegraph" equipment requirement); Campiti v.Walonis, 611 F.2d 387, 392 (1st Cir. 1979) (discussing themeaning of "in the ordinary course of its business").
In addition to encompassing third-party communications,however, the present case also fails to meet the extensiontelephone requirement of the inter-spousal communicationsexception. The parties dispute whether the Double D extensionline was "separate" from the Britton residence and whether theline rang within the marital home. (See Pls.' Opp'n Statementof Material Facts at ¶ 6 (Docket # 11).) Conflicting evidenceexists from which a trier of fact could either characterize theDouble D line as part of the Britton's marital home or as partof the trucking business. The parties have thus raised atrialworthy issue regarding the characterization of theextension line. Basic Controlex Corp. v. Klockner MoellerCorp., 202 F.3d 450, 453 (1st Cir. 2000). Consequently, theCourt cannot determine the applicability of the extensiontelephone exception to the Double D line from the summaryjudgment record. Because the inter-spousal communicationexception is inapplicable on these facts, the Court does notaddress the availability of the exception more generally andPlaintiffs' Title III claim remains viable.
IV. ABSTENTION
A. Colorado River Abstention
Defendant alternatively requests that the Court abstain fromexercising jurisdiction in this matter and instead defer to theMaine Court adjudging her divorce. Federal courts havediscretion to abstain from exercising concurrent jurisdictionover a matter pending in a parallel state court proceeding ifnecessary to avoid duplicative litigation. Col. River WaterConservation Dist. v. United States, 424 U.S. 800, 817, 96S.Ct. 1236, 47 L.Ed.2d 483 (1976), The decision to defer to astate court proceeding is left to the discretion of the districtcourt. Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp.,460 U.S. 1, 19, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). The federalcourt may abstain provided "the parallel state-court litigationwill be an adequate vehicle for the complete and promptresolution of the issues between the parties." Moses H. Cone,460 U.S. at 28, 103 S.Ct. 927. The mere pendency of a parallelstate court action does not bar the federal court from acceptingjurisdiction over the matter. Col. River, 424 U.S. at 817, 96S.Ct. 1236; Burns v. Watler, 931 F.2d 140, 145 (1st Cir.1991). In actions for damages, such as the present case, afederal court may only choose to stay the federal proceeding andcannot dismiss the action. See Quackenbush v. Allstate Ins.Co., 517 U.S. 706, 730, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996);DeMauro v. DeMauro, 115 F.3d 94, 98 (1st Cir. 1997).
Defendant contends that if the Court finds a cause of actionunder Title III, it should stay the matter pending the outcomeof the Maine divorce proceeding, which Defendant alleges is"parallel" to the instant action. Abstention to avoidduplicative litigation is grounded in concerns of "wise judicialadministration." Col. River, 424 U.S. at 817, 96 S.Ct. 1236(quoting Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co.,342 U.S. 180, 183, 72 S.Ct. 219, 96 L.Ed. 200 (1952)). A federaldamages suit is stayed due to the existence of a concurrentstate proceeding only in "exceptional" circumstances given the"virtually unflagging obligation" of the federal courts toexercise their jurisdiction. Currie v. Group Ins. Comm'n,290 F.3d 1, 910 (1st Cir. 2002) (quoting Col. River, 424 U.S. at817-18, 96 S.Ct. 1236).
B. Colorado River Factors
To determine whether such "exceptional" circumstances exist,courts considersix factors: (1) whether either court has assumed jurisdictionover a res; (2) the inconvenience of the federal forum to theparties; (3) the desirability of avoiding piecemeal litigation;(4) the order in which the forums obtained jurisdiction; (5)whether federal or state law controls; and (6) whether state lawwill adequately protect the interests of the parties. Burns,931 F.2d at 146 (citing Moses H. Cone, 460 U.S. at 25-26, 103S.Ct. 927 and Col. River, 424 U.S. at 813, 96 S.Ct. 1236).Courts also consider the "vexatious and contrived" nature of thefederal claim. Villa Marina Yacht Sales, Inc. v. HatterasYachts, 915 F.2d 7, 12 (1st Cir. 1990) ("Villa Marina I").When balancing these factors, the Court's analysis must be"heavily weighted in favor of the exercise of jurisdiction."Moses H. Cone, 460 U.S. at 16, 103 S.Ct. 927. The individualweight accorded to each factor varies from case to case and nosingle factor is outcome determinative. Id.; Col. River, 424U.S. at 818, 96 S.Ct. 1236.
1. Existence of a Parallel State Proceeding
Before addressing these factors, the Court must determinewhether the divorce proceeding represents a sufficiently"parallel" proceeding to trigger Colorado River abstention.Villa Marina Yacht Sales, Inc. v. Hatteras Yachts,947 F.2d 529, 533 (1st Cir. 1991) ("Villa Marina II"). Suits areparallel where substantially the same parties litigatesubstantially the same issues in the state and federal forums.McLaughlin v. United Va. Bank, 955 F.2d 930, 935 (4th Cir.1992); Ambrose v. New England Ass'n of Schs. and Colls.,100 F. Supp.2d 48, 50 (Me. 2000). On the one hand, state and federalsuits are not sufficiently parallel to trigger Colorado Riverwhere each case is based on different underlying facts anddifferent legal theories. Ambrose, 100 F. Supp.2d at 50. On theother hand, exact similarity of the issues is not a prerequisiteof abstention. Villa Marina II, 947 F.2d at 533.
Defendant maintains that a resolution of the underlyingdivorce will likely resolve all issues among the parties in thiscase. While the parties to the two proceedings are similar, thecases are based on different underlying facts and legaltheories. The success of Plaintiffs' Title III claim, as well astheir state law claims, turns on the ability to establish thatDefendant intercepted communications on the Double D line. Incontrast, the protective order issued by the Maine Courtprecludes any consideration of Defendant's alleged recordings inthe divorce. The legal theories employed in the divorce insteadturn on the valuation of the trucking business and its impact onthe distribution of marital assets. The present action and thepending divorce proceeding are not sufficiently parallel toimplicate the Colorado River doctrine. Nonetheless, the Courtproceeds to consider the applicability of the Colorado Riverfactors to the present case in the interest of thoroughness.
2. Jurisdiction Over a Res
Defendant relies most heavily on the first of the ColoradoRiver factors. She argues that the Maine Court assertedjurisdiction over the res of any recordings in its September 21,2000 protective order. A federal court must decline jurisdictionover an in rem action involving a res already subject to statecourt in rem jurisdiction. Princess Lida of Thurn & Taxis v.Thompson, 305 U.S. 456, 466, 59 S.Ct. 275, 83 L.Ed. 285 (1939);United States v. One 1986 Chevrolet Vanu 927 F.2d 39, 44 (1stCir. 1991). The Princess Lida doctrine applies "where, to giveeffect to its jurisdiction, the court must control theproperty." Id.; of. Bergeron v. Estate of Loeb, 777 F.2d 792,797 (1st Cir. 1985) (upholding federal jurisdiction despitestatecourt exercise of statutory in rem jurisdiction where federalplaintiff merely sought adjudication of his rights in trust).The doctrine is "abstention-related" and implicates the sameprudential concerns for judicial economy as the Colorado Riverdoctrine. See Carvel v. Thomas and Agnes Carvel Found.,188 F.3d 83, 86 (2d Cir. 1999).
The state court protective order reads in pertinent part: "ThePlaintiff [Defendant Britton] is prohibited from using any typeof recordings of telephone conversations of the Defendant, orinformation derived therefrom, in these proceedings. ThePlaintiff may not be compelled to produce such tapes afterhaving invoked her privilege against self-incrimination." (SeeDef.'s Aff. at Ex. A(I) (Docket # 6)) (emphasis added). UnderMaine domestic relations law the District Court has originaljurisdiction in the divorce matter. 4 M.R.S.A. § 152(11) (Supp.2001). In exercising this power, it may assert jurisdiction overa res, namely marital property, by issuing an order pending afinal divorce decree. 19-A M.R.S.A. § 904(5) (1998). The Court'sprotective order, however, was not issued pending a final decreeand does not assert in rem jurisdiction. Instead, the stateCourt issued the order for the limited purpose of protectingDefendant's asserted privilege against self-incrimination duringthe discovery process. See Me. R. Civ. Proc. 26(c).6Rather than asserting control over any recordings, theprotective order merely prevents their discovery and use in thedivorce proceeding.
Moreover, even assuming that the Maine Court has exercisedjurisdiction over the recordings, the proceedings before thisCourt are not in rem. A proceeding is in rem where a court basesits jurisdiction upon control of real or personal propertywithin its territorial reach. See United States v. 51 Pieces ofReal Property, 17 F.3d 1306, 1309 (10th Cir. 1994); see alsoFleetBoston Fin. Corp. v. FleetBostonFinancial.com,138 F. Supp.2d 121, 129 (Mass. 2001). Under the instant facts, thisCourt has federal question jurisdiction pursuant to28 U.S.C. § 1331, and need not exercise any control over the recordings toproceed. Because the Maine Court has not asserted jurisdictionover the recordings and this Court has not instituted an in remaction such that it "must have control over" the recordings, thefirst Colorado River factor is not implicated under thesefacts.
3. Remaining Colorado River Factors
Defendant argues that the Federal Court sitting in Bangor,Maine is inconvenient, as both parties reside in Houlton, Maine.The Court notes that two forums are separated by approximately120 miles along Interstate 95 and does not consider this directcommute so inconvenient as to warrant weighing any resultingtravel difficulties in Defendant's favor. See Burns, 931 F.2dat 147 ("[A] two-hour drive does not denote a degree ofinconvenience that should significantly influence the questionof whether the proceedings in the federal court should bestayed.").
As to the third factor, desirability of avoiding piecemeallitigation, Defendant maintains that this Court's failure toabstain poses the risk of inconsistent courtorders regarding the recordings. Piecemeal litigation resultswhere the potential may exist for harmful inconsistentdeterminations in the state and federal forums. Gonzalez v.Cruz, 926 F.2d 1, 4 (1st Cir. 1991); Ambrose, 100 F. Supp.2dat 51-52. As discussed above, however, there is no potential forconflicting determinations because the Maine Court's protectiveorder merely prevents the recordings from being considered inthe divorce proceeding. The order does not reach beyonddiscovery in the divorce and thus weighs against abstention.
The sequence in which the forums obtained jurisdiction needonly be briefly addressed. Although the divorce court obtainedjurisdiction prior to this Court, the factor is a flexible one,requiring a court to look beyond the date of filing and toexamine which suit is more advanced. Moses H. Cone, 460 U.S.at 21, 103 S.Ct. 927; Elmendorf Grafica, Inc. v. D.S. Am.(East), Inc., 48 F.3d 46, 52 (1st Cir. 1995). Because the suitsdo not significantly overlap and the Title II claim has not beendeveloped in the divorce proceeding, the order of jurisdictiondoes not weigh in Defendant's favor.
The fifth factor militates strongly in favor of this Courtretaining jurisdiction. Though the presence of state law issuesmay in "rare circumstances" weigh in favor of abstention, "thepresence of federal-law issues must always be a majorconsideration weighing against surrender [of jurisdiction]."Moses H. Cone, 460 U.S. at 26, 103 S.Ct. 927. Such rarecircumstances exist only when a case raises novel or complexquestions of state law. Villa Marina I, 915 F.2d at 15.Section 2520 of Title III creates independent federal questionjurisdiction, providing an exclusively federal source of law forPlaintiffs' claim. See id. at 26 n. 32; Shaver v. Shaver,799 F. Supp. 576, 577 (E.D.N.C. 1992) (weighing exclusivelyfederal source of Title III action brought under section 2520 infavor of federal jurisdiction). Given the federal source ofPlaintiffs' Title III claim and the absence of complex or novelquestions of state law better decided by the divorce proceeding,the source-of-law factor weighs decidedly against abstention.
Regarding the ability of state law to protect the parties'interests, Defendant argues that resolution of the pendingdivorce will "effect a resolution of all issues between Mr. andMs. Britton, Mr. Britton's business, and his businesspartner. . . ." (See Def.'s Mot. to Dismiss at 10 (Docket #5).) The Court fails to recognize how a distribution of assetspursuant to a divorce decree can redress any alleged injuriesarising from Defendant's electronic surveillance. The divorceproceeding is wholly inadequate to protect against the harms toPlaintiffs' privacy alleged in this matter.
Plaintiffs' suit may be of a vexatious or reactive nature.Plaintiffs' brought their action after the divorce had becomecontentious and when the dispute regarding the valuation of thetrucking company was particularly heated. However, because thepotentially reactive nature of the federal action is the onlyfactor weighing in favor of abstention, even assuming the suitis vexatious, the Court finds that, on balance, abstention isnot warranted under these facts. Col. River, 424 U.S. at 819,96 S.Ct. 1236 (finding that no one factor is determinative andurging a consideration of the "combination of factors").
V. CONCLUSION
For the foregoing reasons, the Court DENIES Defendant'sMotion.
SO ORDERED.
1. The non-moving party to a motion for summary judgmentshall submit an opposing statement of material facts"admit[ting], deny[ing] or qualify[ing] the facts by referenceto each numbered paragraph of the moving party's statement ofmaterial facts. . . ." D. Me. L.R. 56(c). The opposing statement"may contain in a separate section additional facts. . . ."Id. Facts contained in either party's statement of materialfacts are deemed admitted "unless properly controverted." D. Me.L.R. 56(e). Here, Plaintiffs' opposing statement of materialfacts failed to admit, deny or qualify Defendant's statement ofmaterial facts (Docket # 11). As such, the Court treatsPlaintiffs' responsive statement as "additional facts" andDefendant's statement of material facts is deemed admitted inits entirety to the extent that the statement is supported byappropriate record citations. See O'Donnell v. Earle W. Noyes &Sons, 98 F. Supp.2d 60, 61 n. 1 (Me. 2000).
Defendant objects generally to Plaintiffs' entire opposingstatement of material facts on the grounds that the statement isdesigned to force her to either assert or waive her FifthAmendment privilege against self-incrimination (Docket # 15).Because Ms. Britton has not asserted her privilege againstself-incrimination in this matter, the privilege has noevidentiary effect and she may not object on those grounds. SeeN. River Ins. Co. v. Stefanou, 831 F.2d 484, 487 (4th Cir.1987) (invoking Fifth Amendment privilege in response to a civilpleading requires a sufficiently particular affirmativeassertion); see also United States v. Stein, 233 F.3d 6, 14(1st Cir. 2000) cert. denied, 532 U.S. 943, 121 S.Ct. 1406,149 L.Ed.2d 348 (2001) (noting that the Fifth Amendmentprivilege applies in any proceeding where answers given mighttend to incriminate the witness in a future criminalproceeding).
2. Defendant objects to all references in Plaintiffs'opposing statement of material facts that would require her toadmit the fact of the recordings. She objects to the secondsentence of ¶ 1, regarding the "criminal" nature of her conductand the third sentence of ¶ 6, regarding her decision not to tapthe residential telephone lines (See Def.'s Resp. to Pls.'Opp'n Statement of Material Facts at ¶¶ 1, 6 (Docket # 15).) TheCourt finds that the statements are inadmissible in evidence aslay opinion without sufficient personal knowledge and aretherefore excluded from the summary judgment record. SeeFed.R.Civ.P. 56(e); Fed.R.Evid. 602, 701.
Defendant's own statement of material facts avers only that"David Britton claimed that Dorothy Britton had taped some ofhis telephone conversations" in the divorce proceeding. (SeeDef.'s Statement of Material Facts at ¶ 2 (Docket # 7).)
3. Defendant limits to Count I her contention thatPlaintiffs' fail to state a viable claim and does not otherwiseaddress the state law counts. The Court recognizes that afailure to find a federal cause of action for Count I couldprevent the exercise of supplement jurisdiction over the tworemaining state law counts. 28 U.S.C. § 1331 (1993);28 U.S.C. § 1367(a) (1993).
4. Defendant does not deny Plaintiffs' statement that thetelephone is "almost exclusively used for business purposes."(See Pls.' Opp'n Statement of Material Facts at 117 (Docket #11).) As discussed above, she instead makes only an ineffectualgeneral objection to the statement. (See Del.'s Resp. to Pls.'Opp'n Statement of Material Facts at ¶ 7 (Docket # 15).)Moreover, Defendant makes a qualified admission to thesignificant percentages of interstate and international callingon the Double D line (See id.). Because the qualifiedadmission is not accompanied by a citation to the record, theCourt disregards the qualification pursuant to local rule 56.See D. Me. Loc. R. 56(e). Thus, both statements are includedas part of the summary judgment record and inform the Court'sreasoning.
5. Defendant points to Lizza v. Lizza, 631 F. Supp. 529(E.D.N.Y. 1986) to minimize the significance of third-partyparticipation in the recorded conversations. Although theLizza Court does appear to extend the reach of Anonymous tospousal recording of conversations encompassing third parties,id. at 533, the decision imposes a significant limitation onthis holding. Lizza emphasizes that the defendant wiretappedhis own telephone within the family home. See id. at 533.
Defendant maintains that Lizza is implicated in the instantcase because Double D "had an extension within what was clearlythe residential area of the Brittons' home." (See Def.'s Mot.to Dismiss at 6 (Docket # 5).) However, the parties dispute thecharacterization of the Double D line as part of the maritalhome. Because the Court must view the record in the light mostfavorable to Plaintiffs, it does not consider Lizza applicableunder these controverted facts. Cadle Co. v. Haves,116 F.3d 957, 959 (1st Cir. 1997).
6. Under Rule 56(c) "Protective Orders," the Maine DistrictCourt Judge may make:
any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including without limitation one or more of the following: (1) that discovery not be had; . . . (3) that discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters. . . .
Me. R. Civ. Proc. 26(c).