Doyle v. County of Suffolk

EASTERN DISTRICT OF NEW YORK

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ROBERT DOYLE, Individually and on Behalf of a Class

of All Others Similarly Situated,

Plaintiff, ORDER

23-CV-8871 (JMA) (SIL)

-against-

FILED

COUNTY OF SUFFOLK, JAMES BURKE, CLERK

Former Police Chief, THOMAS SPOTA, Former District

3/28/2025 4:15 pm

Attorney, CHRISTOPHER MCPARTLAND,

Former Chief of the Government Corruption Bureau, U.S. DISTRICT COURT

and THOMAS IACOPELLI, EASTERN DISTRICT OF NEW YORK

LONG ISLAND OFFICE

Defendants.

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AZRACK, United States District Judge:

Plaintiff Robert Doyle brings this putative class action alleging that the wiretapping of a

police officer’s phone by the Suffolk County District Attorney’s Office (the “SCDAO”)—which

intercepted the officer’s communications with Plaintiff and others—violated the Federal Wiretap

Act (“FWA”), 18 U.S.C. §§ 2510–2522. In addition to naming Suffolk County as a defendant,

Plaintiff also brings suit against James Burke, the former Suffolk County Police Chief, Thomas

Spota, the former Suffolk County District Attorney, Christopher McPartland, the former head of

the SCDAO’s Government Corruption Bureau, and Thomas Iacopelli, a detective in the SCDAO

(collectively, the “Individual Defendants”). Defendants have all filed motions to dismiss. For the

reasons stated below, the Court grants Suffolk County’s motion to dismiss and denies the motions

to dismiss filed by the Individual Defendants.

I. BACKGROUND

In January 2012, Burke became the Chief of the Suffolk County Police Department.

(Compl. ¶ 12.) With District Attorney Spota and the high-ranking McPartland “by his side, Burke

viewed himself as untouchable and above the law.” (Id. ¶ 13.) Spota, McPartland, and Burke

nicknamed themselves the “Administration.” (Id. ¶ 14.) The “Administration” maintained an

corrupt practices culminated in Burke’s assault of a handcuffed suspect, Christopher Loeb. (Id. ¶

20.) Burke, Spota, and McPartland then covered up the assault and pressured witnesses not to

testify. (Id.) This cover-up eventually resulted in federal charges being brought against Burke,

Spota, and McPartland. The undersigned presided over the well-publicized trial of Spota and

McPartland in November and December 2019. Spota and McPartland were both convicted of

conspiring with Burke to obstruct justice in connection with the cover-up of Burke’s assault. Prior

to their trial, Burke pled guilty, in 2016, to violating Loeb’s civil rights and to conspiring to

obstruct justice.

Plaintiff was a decorated Suffolk County police officer. (Compl. ¶ 18.) The officer whose

phone was wiretapped is identified in the Complaint only as “Person 1.” While the Complaint

artfully avoids identifying “Person 1,” his identity is apparent. Person 1 is John Oliva. The

SCDAO’s wiretapping of Oliva’s phone and prosecution of Oliva was discussed during testimony

at the Spota trial and in filings on the docket.

Plaintiff and Oliva were “friends.” (Id. ¶¶ 28.) They were also both avowed enemies of

Burke, Spota, and McPartland. (Id. ¶¶ 17, 28.) Doyle was viewed as an enemy because he was

unwilling to follow their “illegal propensities and practices.” (Id. ¶ 19.)

Oliva was part of a joint task force with the FBI that targeted gang members. (Id. ¶ 23.)

In an attempt to “limit oversight of the federal government” and to “plug potential holes in the

cover-up” of Burke’s assault of Loeb, the Administration removed Oliva from the FBI task force.

(Id. ¶ 24.)

It “was believed that,” in response to his removal, Oliva “leaked information to Newsday

delineating the resulting spike in crime.” (Id. ¶ 25.) Burke, Spota, and McPartland used this as an

opportunity “to create a cover story.” (Id. ¶ 26.) They agreed to “feed false information” to a

“claimed” that Oliva’s conduct had threatened officer safety. (Id. ¶ 27.) “In reality, the wiretap

campaign had nothing to do with officer safety, which was simply a cover story to deceive the

court into issuing a wiretap warrant.” (Id. ¶ 28.) According to the complaint, there was no

“probable cause” for the wiretap. (Id. ¶ 41.)

The “co-conspirators had one goal among others: they wanted to discover if [Oliva] or any

of his friends, including Detective Doyle, were leaking information to the press and to dig up

information they could then use to discredit and/or blackmail them into silence.” (Id.) Oliva’s

phone was tapped for “months” and Defendants listened to, and recorded, many hundreds, if not

thousands, of communications, including calls between Oliva and Plaintiff. (Id.)

Spota signed the wiretap applications and he, along with Burke and McPartland, used

information from the wiretap in order to gain leverage over their enemies, enforce loyalty, and

further their goal of covering up Burke’s assault. (Id. ¶ 30.) Iacopelli signed the affidavits in

support of the wiretap application, eavesdropped on the phone calls, and relayed the content of the

calls to the other defendants. (Id.) The Complaint alleges that Iacopelli “violated a variety of

laws, including the obligation to minimize the scope of the eavesdropping, as well as the federal

laws arising under the Wiretap Act.” (Id.)

At the conclusion of the wiretapping campaign, Defendants pressured Oliva into pleading

guilty to Official Misconduct under Penal Law § 195.00. (Id. ¶ 31.) Because Oliva pled guilty,

the prosecution avoided “the discovery process” and was able to bury the “perjurious wiretap

application that led to the criminal charges.” (Id. ¶ 32.)

In 2021—after Burke’s guilty plea and Spota’s and McPartland’s convictions at their

federal trial—the SCDAO’s Conviction Integrity Bureau agreed to review Oliva’s convictions.

(Id. ¶ 34.) In December 2021, the SCDAO consented to the vacatur of Oliva’s conviction because

not identify a valid basis for the wiretap.’” (Id.) In December 2021, a state court judge vacated

Olivia’s conviction and “acknowledge[d] that although he had heard details about the federal trial,

he. . . could not fully grasp the extent of the defendants’ misconduct until the motion practice he

decided in December 2021.” (Id. ¶ 39.)

On December 1, 2023, Plaintiff filed the instant Complaint. (Compl.) Currently pending

before the Court are motions to dismiss filed by all defendants. (See ECF No. 35; ECF No. 36;

ECF No. 39; ECF No. 43; ECF No. 47; ECF No. 48.)

II. DISCUSSION

A. Standard for Motions to Dismiss Pursuant Rule 12(b)(6)

To survive a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff must allege sufficient

facts “to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570 (2007). A claim is facially plausible only “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) (citing Twombly, 550 U.S. at 556). Mere

labels and legal conclusions will not suffice. Twombly, 550 U.S. at 555. In reviewing a motion to

dismiss, the Court must accept the factual allegations set forth in the complaint as true and draw

all reasonable inferences in favor of the plaintiff. Cleveland v. Caplaw Enters., 448 F.3d 518, 521

(2d Cir. 2006).

In addition to the complaint itself, courts can also consider, on a motion to dismiss,

“documents appended to the complaint or incorporated in the complaint by reference . . . matters

of which judicial notice may be taken,” as well as “document[s] not expressly incorporated by

reference in the complaint [that are] nevertheless ‘integral’ to the complaint.” Clark v. Hanley, 89

F.4th 78, 93 (2d Cir. 2023).

Suffolk County argues that, as a matter of law, municipalities cannot be held under the

FWA for the type of violations alleged here. The Court agrees.

1. Relevant Provisions of the Federal Wiretapping Act

The FWA provides a private right of action. Section 2520 states that “any person whose

wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation

of this chapter may in a civil action recover from the person or entity, other than the United States,

which engaged in that violation.” 18 U.S.C. § 2520.

When the FWA was first enacted, § 2520 only authorized recovery against “the person”

who violated the FWA. Seitz v. City of Elgin, 719 F.3d 654, 656 (7th Cir. 2013) (setting out the

history of the FWA). In 1986, however, Congress extended the cause of action from against any

“person” to against any “person or entity which engaged in” the violation. Electronic

Communications Privacy Act of 1986, Pub. L. No. 99–508, § 103, 100 Stat. 1848, 1853–54; see

Seitz, 719 F.3d at 656.

In 2001, the PATRIOT Act amended the statute again, adding the current language that

extends liability to a “person or entity, other than the United States.” USA PATRIOT Act of 2001,

Pub. L. No. 107–56, § 223(a)(1), 115 Stat. 272, 293.

Section 2511(1)(a)–(d) sets out various ways in which the FWA can be violated, stating:

(1) Except as otherwise specifically provided in this chapter any person who--

(a) intentionally intercepts, endeavors to intercept, or procures any other person to

intercept or endeavor to intercept, any wire, oral, or electronic communication;

(b) intentionally uses, endeavors to use, or procures any other person to use or

endeavor to use any electronic, mechanical, or other device to intercept any oral

communication when . . . such device transmits communications by radio, or

interferes with the transmission of such communication . . . .

* * * *

of any wire, oral, or electronic communication, knowing or having reason to know

that the information was obtained through the interception of a wire, oral, or

electronic communication in violation of this subsection;

(d) intentionally uses, or endeavors to use, the contents of any wire, oral, or

electronic communication, knowing or having reason to know that the information

was obtained through the interception of a wire, oral, or electronic communication

in violation of this subsection.

18 U.S.C. § 2511(1)(a)–(d) (emphasis added).

Section 2511(3)(a), which was added as part of the amendments made in 1986, states that

“a person or entity providing an electronic communication service to the public shall not

intentionally divulge the contents of any communication . . . while in transmission on that service

to any person or entity other than an addressee or intended recipient of such communication or an

agent of such addressee or intended recipient.” 18 U.S.C. § 2511(3)(a) (emphasis added).

Plaintiff’s complaint appears to allege violations of Section 2511(a)–(d). Plaintiff’s

complaint, however, does not allege any facts that would constitute a violation of Section

2511(3)(a), the only substantive provision cited above that explicitly prohibits an “entity” from

engaging in prohibited conduct.

2. Suffolk County is Not Liable as an “Entity”

Suffolk County argues that, as a matter of statutory interpretation, a municipality is not

liable as an “entity” under the FWA for the violations of Section 2511(1)(a)–(d) alleged here. The

Court agrees.

While the Second Circuit has not addressed this issue, the Sixth and Seventh Circuits are

divided on municipal liability for such claims. Compare Seitz v. City of Elgin, 719 F.3d 654, 657

(7th Cir. 2013) (no municipal liability) with Adams v. City of Battle Creek, 250 F.3d 980, 985–86

(6th Cir. 2001). In a recent decision, one district court in the Second Circuit followed Seitz. See

Ryder v. Czajka, No. 23-CV-1102, 2025 WL 391179, at *11 (N.D.N.Y. Feb. 4, 2025), appeal filed

decision, have more often than not followed Seitz. Compare Adams v. Luzerne Cnty., 36 F. Supp.

3d 511, 524 (M.D. Pa. 2014); Federated Univ. Police Officers’ Ass’n v. Regents of Univ. of

California, No. SACV1500137, 2015 WL 13273308, at *8 (C.D. Cal. July 29, 2015) with

Kemeness v. Worth Cnty., Georgia, 449 F. Supp. 3d 1318, 1325 (M.D. Ga. 2020).

The Court is persuaded by the Seventh Circuit’s more robust analysis of the FWA in Seitz

and accordingly finds that Suffolk County cannot be held liable as an “entity” for these alleged

violations.1

The Court acknowledges that in Organizacion JD Ltda. v. U.S. Dep’t of Just., 18 F.3d 91,

94 (2d Cir. 1994), the Second Circuit held that a governmental “entity” is subject to liability under

Section 2707(a) of the Stored Communications Act (“SCA”). The SCA was enacted in 1986 as

part of the Electronic Communications Act of 1986, which also included the 1986 amendments to

the FWA noted above. See Seitz, 719 F.3d at 656, 659 (citing Pub. L. No. 99–508, §§ 103, 201,

100 Stat. at 1848, 1853–54, 1860–68). In Seitz, however, the Seventh Circuit persuasively

explained why the relevant substantive provisions of the SCA and the FWA are materially

different. Id. at 659 (noting that the substantive provision of the SCA—which uses the term

“whoever,” 18 U.S.C. § 2701—“speaks in much broader terms” than the relevant substantive

provisions of the FWA, which refer to a “person”). The Court agrees and concludes that the

Second Circuit’s decision in Organizacion JD Ltda. is not controlling here.

Suffolk County cannot be held liable as an “entity” for the alleged violations of the FWA

here. Plaintiff also advances other arguments, none of which are persuasive.

1 While the Sixth Circuit has not overruled or explicitly limited Adams, the Sixth Circuit recently acknowledged that

its decision in Adams “did not expressly consider whether an ‘entity’ could be liable under the substantive provisions

of § 2511(1), which attach only to ‘any person.’” B & G Towing, LLC v. City of Detroit, MI, 828 F. App’x 263, 266

n.4 (6th Cir. 2020).

Plaintiff insists that, even if the Court were follow Seitz’s analysis of “entity” liability, he

still has a viable claim because, according to Plaintiff, Suffolk County also qualifies as a “person”

under the FWA.

The FWA defines a “person” as “any employee, or agent of the United States or any State

or political subdivision thereof, and any individual, partnership, association, joint stock company,

trust, or corporation.” 18 U.S.C. § 2510(6).

Plaintiff contends that Suffolk County qualifies as a “person” under the FWA because the

term “person” in 28 U.S.C. § 1983 was interpreted in Monell v. Dep’t of Soc. Servs. of City of

New York, 436 U.S. 658 (1978), to include municipalities. However, unlike Section 1983, the

Wiretap Act specifically defines “person.” Accordingly, the Court must focus on the particulars

of this specific definition of “person.” Monell, and its interpretation of “person” in Section 1983,

does not answer that question.

Plaintiff also advances an argument based on the specific actual language of § 2510(6),

asserting that Suffolk County qualifies as a “person” because the FWA’s definition of “person”

includes “corporation[s]” and Suffolk County is technically a “municipal corporation.” While the

Court assumes that Suffolk County is technically a municipal corporation, see Suffolk Cnty.

Charter § C23-11, the Court does not agree that “corporation” in § 2510(6) includes municipal

corporations.

One court that was presented with an argument that public corporations qualify as

“corporations” under the FWA summarily rejected that argument. See Federated Univ. Police

Officers’ Ass’n v. Regents of Univ. of California, No. SACV1500137, 2015 WL 13273308, at *7

(C.D. Cal. July 29, 2015) (rejecting argument that the Regents of the University of California could

be liable under the FWA because it is a “corporation”).

this question, it is appropriate to look to canons of statutory construction. See Cmty. Bank, N.A.

v. Riffle, 617 F.3d 171, 176 (2d Cir. 2010).

One relevant canon is the “principle of noscitur a sociis—a word is known by the company

it keeps,” which courts rely on to “‘avoid ascribing to one word a meaning so broad that it is

inconsistent with its accompanying words, thus giving unintended breadth to the Acts of

Congress.’” Yates v. United States, 574 U.S. 528, 543 (2015) (quoting Gustafson v. Alloyd Co.,

513 U.S. 561, 575 (1995)). Here, § 2510(6) lists “corporation” along with “partnership,

association, joint stock company, [and] trust”—all of which are private entities. The noscitur a

sociis canon indicates that, in § 2510(6), “corporation” does not include “municipal corporations.”

See Clinton, Ark. v. Pilgrim’s Pride Corp., 653 F. Supp. 2d 669, 674 (N.D. Tex. 2009) (relying on

noscitur a sociis canon in concluding that municipal corporations were excluded from the

definition of “person” in the Packers & Stockyards Act, 7 U.S.C. § 181, et seq. (“PSA”), which

grouped “corporations with individuals, associations, and partnerships,” as those are all “private

entities”) aff’d, 632 F.3d 148 (5th Cir. 2010).

This interpretation is bolstered by the references to “any State or political subdivision

thereof” earlier in the definition of “person” in § 2510(6), which further indicate that, in enacting

this provision, Congress viewed “political subdivisions” as different than the private entities that

are grouped together later in the definition of “person.”

Plaintiff relies on City of Lincoln, Neb. v. Ricketts, 297 U.S. 373, 374 (1936), which

interpreted the term “corporation” in the Bankruptcy Act to include “municipal corporations.” In

Ricketts, the Supreme Court stated that “[a] municipal corporation is a corporation in the usual

sense of the term,” but also indicated that courts must focus on the specific statute at issue in order

determine if the statute uses that “term in a more limited sense.” Id. The Supreme Court ultimately

“corporation”—covered municipal corporations. Ricketts, however, is ultimately distinguishable

and does not answer the question of how the FWA should be interpreted here.

The court in City of Clinton—which also distinguished Ricketts—summarized the

particulars of the statute at issue in Ricketts, explaining that:

In Ricketts, the Supreme Court was tasked with deciding whether a municipal

corporation is a person entitled to priority payment of its debt under then section

64b of the Bankruptcy Act. Section 64b defined “person” to include corporations,

and section 1a(6) of the Bankruptcy Act defined “corporation” as “all bodies having

any of the powers and privileges of private corporations not possessed by

individuals or partnerships.” The Supreme Court concluded that, taking the term

in context, “corporation” included municipal corporations. The Bankruptcy Act’s

broad definition of “corporation” extended to “all bodies” that have the powers and

privileges of private corporations, not solely private corporations. Municipal

corporations have such powers and privileges. And in other portions of the

Bankruptcy Act, Congress had specifically excluded municipal corporations from

the meaning of “corporation” or “person.”

City of Clinton, 653 F. Supp. 2d at 673 (citations omitted).

The FWA does not define “corporation” in such broad terms. Ricketts is distinguishable,

and the Court concludes that the specific language used in § 2510(6) indicates that “corporation”

does not include municipal corporations.2

Finally, the Complaint alleges that Suffolk County is liable for violations committed by the

Individual Defendants under the doctrine of respondeat superior. (Compl. ¶ 56.) Suffolk County

argues that, factually, the Complaint fails to plausibly allege respondeat superior liability because

the individual defendants were acting outside the scope of their employment. However, there is a

more fundamental flaw with Plaintiff’s theory concerning respondeat superior liability. There is

no textual basis in the FWA to conclude that a municipal entity such as Suffolk County is liable,

2 The court in City of Clinton similarly found Ricketts distinguishable, stressing that, unlike the Bankruptcy Act at

issue Ricketts, the “PSA’s use of the term ‘person’ does not extend to any entity with the powers or privileges of

private corporations.” City of Clinton, 653 F. Supp. 2d at 673.

No court that has followed Seitz’s interpretation of municipal “entity” liability has found that

respondeat superior principles provide an alternative basis to hold municipalities liable for

violations of Section 2511(1)(a)–(d). In fact, both Seitz itself and a subsequent district court

decision applying Seitz explicitly rejected arguments that governmental entities could be liable

based on vicarious liability. Seitz, 719 F.3d at 656 n 4; Doe v. Fed. Democratic Republic of

Ethiopia, 189 F. Supp. 3d 6, 15 (D.D.C. 2016) (rejecting vicarious liability theory for alleged

violation of Section 2511(1)), aff’d on other grounds, 851 F.3d 7 (D.C. Cir. 2017). Plaintiff’s

respondeat superior theory fails as a matter of law.3

In sum, none of Plaintiff’s interpretative arguments are persuasive and Plaintiff’s FWA

claim against Suffolk County must be dismissed.

C. The Individual Defendants’ Motions to Dismiss

The Individual Defendants have all moved to dismiss on various grounds. Those motions

are denied.

Contrary to the Individual Defendants’ arguments. the Complaint alleges plausible FWA

claims against them and are sufficient under Federal Rule of Civil Procedure 8. The Court also

finds that Plaintiff’s FWA claim is not subject to the heightened pleading standards of Federal

Rule of Civil Procedure 9.

Sovereign immunity does not apply to Spota and McPartland here because they are being

sued in their individual capacities.4 See Bonaffini v. City Univ. of New York, No. 20-CV-5118,

2021 WL 2895688, at *2 (E.D.N.Y. July 9, 2021) (citing Hafer v. Melo, 502 U.S. 21, 27 (1991)).

3 If a plaintiff alleges that a municipal “entity” violated Section 2511(3)(a)—which prohibits certain conduct by an

“entity”—then a court would have to consider to what extent the conduct of the municipality’s employees and officials

can be imputed to the municipality. However, that question is irrelevant with respect to alleged violations of Section

2511(1)(a)–(d) where there is no “entity” liability.

4 The Complaint does not specify whether Spota and McPartland are being sued in their official capacity, individual

capacity, or both. Plaintiff’s opposition brief, however, clarifies that they are being sued in their individual capacities.

Courts “draw a line between the investigative and administrative functions of prosecutors,

which are not protected by absolute immunity, and the advocacy functions of prosecutors, which

are so protected.” Parkinson v. Cozzolino, 238 F.3d 145, 150 (2d Cir. 2001). This line “might

sometimes be difficult to draw.” Zahrey v. Coffey, 221 F.3d 342, 347 (2d Cir. 2000). The

Supreme Court has suggested that “a prosecutor’s conduct prior to the establishment of probable

cause should be considered investigative,” but has also recognized that certain conduct “even after

probable cause exists might” still be considered “investigative.” Id. at 347 n. 2 (citing Buckley v.

Fitzsimmons, 509 U.S. 259 (1993)).

Procurement and use of a wiretap may qualify as an investigative function that falls outside

the scope of absolute immunity. See Lawson v. Abrams, 863 F.2d 260, 263 (2d Cir. 1988) (stating

that Powers v. Coe, 728 F.2d 97, 104 (2d Cir. 1984)—which “held that only the qualified immunity

defense may be asserted against . . . a claim that he authorized or directed an investigative

wiretap”—“reflect[s] the settled law of this circuit”); Liffiton v. Keuker, 850 F.2d 73, 77 (2d Cir.

1988) (“We do not agree that applying to the court for a wiretap warrant is clearly a prosecutorial

function. Further factual inquiry is necessary to determine whether the functions [defendants]

performed entitle them to absolute immunity.”); see Peters v. City of Buffalo, 848 F. Supp. 2d 378,

385 (W.D.N.Y. 2012) (“[O]rchestrating sting operations, authorizing or directing the use of

wiretaps, or coercing confidential informant into consenting to a wire are acts that do not enjoy

absolute immunity.”); see also Price v. Montgomery Cnty., Kentucky, 72 F.4th 711, 719–20 (6th

------------------------------

Cir. 2023) (“Conduct that falls outside the cloak of absolute immunity includes instances where

the prosecutor’s actions are not intimately associated with the judicial process. That could include,

police.” (citation omitted)), cert. denied, 144 S. Ct. 2499, 219 L. Ed. 2d 1319 (2024).5

Here, the claim of absolute immunity fails because the Court cannot determine, based on

the factual allegations in the Complaint, that Spota and McPartland were engaged in a prosecutorial

advocacy function, rather than an investigative function, in connection with their procurement and

use of the wiretap.6 Cf. Anilao v. Spota, 27 F.4th 855, 870 (2d Cir. 2022) (stating that district

court correctly determined, based on the pleadings, that Spota and subordinate prosecutor “were

not entitled to absolute immunity for their conduct during the investigative stage of the

prosecution”).

The Individual Defendants’ qualified immunity claims must also be rejected. The Court

cannot—based on the factual allegations in the Complaint concerning the defendants’ procurement

of a court-approved wiretap based on an alleged false statement—conclude that defendants are

entitled to qualified immunity.7 For similar reasons, the Court cannot conclude, based on the

Complaint, that Defendants are entitled to the FWA’s statutory “good faith” defense, which applies

if the Defendants were relying in “good faith” on a court order approving the wiretap. 18 U.S.C.

§ 2520(d)(1).

The Individual Defendants also assert that Plaintiff’s FWA claim is barred by collateral

estoppel based on a jury instruction that this Court gave at Spota’s and McPartland’s criminal trial

5 Lawson, Liffiton, and Powers were all decided prior to Buckley, 509 U.S. 259. However, the Second Circuit has

not questioned the continuing validity of these cases and, even after Buckley, the Ninth Circuit, in Broam v. Bogan,

320 F.3d 1023, 1033 (9th Cir. 2003), approvingly cited Powers and other older wiretap cases suggesting that absolute

immunity will not necessarily bar all such claims.

6 Iacopelli argues that he is also entitled to absolute immunity because he was acting under the directions of the

prosecutors. At the present stage of the litigation, this argument necessarily fails because even the prosecutors

themselves are not entitled to absolute immunity.

7 Plaintiff argues that qualified immunity cannot be invoked as a defense to FWA claims. It is unnecessary for the

Court to reach this legal question because, even if qualified immunity is potentially available, as a factual matter, the

Individual Defendants are not entitled to qualified immunity based on the current record.

criminal trial and, as such, would not be collaterally estopped by any of the Court’s rulings in that

trial.

Finally, all Defendants also moved to dismiss based on the statute of limitations.

Defendants assert that the two-year statute of limitations for Plaintiff’s claims had elapsed long

before December 1, 2023 when the Complaint was filed.

A plaintiff is not required to “affirmatively plead facts” in order to overcome an affirmative

defense such as the statute of limitations. Clark, 89 F.4th at 93–94. “Nevertheless, a defendant

may raise an affirmative defense in a pre-answer Rule 12(b)(6) motion if the defense appears on

the face of the complaint.” Id. (citation omitted).

The FWA provides that “[a] civil action under this section may not be commenced later

than two years after the date upon which the claimant first has a reasonable opportunity to discover

the violation.” 18 U.S.C. § 2520(e).

Defendants ask the Court to consider newspaper articles from 2016 discussing the wiretap

of Oliva and a federal grand jury’s investigation into the legality of the wiretap. Plaintiff is even

quoted in some of these articles. Even assuming that the Court can consider these articles on this

motion dismiss, the Court cannot definitively conclude, based on those articles and the complaint,

that Plaintiff had a “reasonable opportunity to discover the [alleged] violation” prior to December

2, 2021 when the state court vacated Oliva’s conviction.8 The current record does not even include

the state court filings from 2021 that led to the vacatur of Oliva’s conviction or the state court’s

December 2021 ruling on the vacatur motion. While the Court denies the instant motion to dismiss,

8 Some defendants also generally reference, without any specific citations, filings and trial testimony from Spota’s

and McPartland’s criminal trial.

filing of an early summary judgment motion on the statute of limitations.9

III. CONCLUSION

For the reasons stated above, the Court grants Suffolk County’s motion to dismiss and

denies the Individual Defendants’ motions to dismiss. Plaintiff’s counsel is directed to: (1) mail

a copy of this Order to McPartland, who is proceeding pro se; and (2) file proof of service on ECF.

SO ORDERED.

Dated: March 28, 2025

Central Islip, New York

/s/ (JMA)

JOAN M. AZRACK

UNITED STATES DISTRICT JUDGE

9 Spota and Iacopelli request that Plaintiff be required to disclose the filings from Oliva’s state court proceeding and

that the instant motion be held in abeyance pending that disclosure. The Court believes that targeted discovery and

an early summary judgment motion on the statute of limitations is the more appropriate course.