complaint if Mr. Nedimyer ever conveyed the contents of this consumer report to anyone at any time.
Allegations of defamation pertaining to the employment performance reports likewise fail; plaintiff makes no allegations as to the content of the defamatory statements placed in his personnel file. See Compl. PP 26, 30, 38.
Even if plaintiff's allegations were not wholly inadequate on their face, plaintiff's defamation claim would be barred for another reason, the District of Columbia's one-year statute of limitations. D.C. Code § 12-301(4).
Plaintiff alleges that between 1988 and 1990, defendants published the allegedly defamatory remarks. But this civil action was not filed until February 27, 1992. These claims are clearly outside the one-year bar. See supra note 3.
Given the heightened pleading standard in defamation actions and the applicable statute of limitations, any claim by plaintiff averring defamation is dismissed.
C. Wire Fraud and Mail Fraud
The claims for federal wire and mail fraud must be dismissed because they are criminal offenses that have no corresponding private right of action. See. e.g., Official Publications, Inc. v. Kable News Co., 884 F.2d 664, 667 (2d Cir. 1989) (" 18 U.S.C. §§ 1341 and 1343 (1982) . . . do not provide a private right of action."); Ryan v. Ohio Edison Co., 611 F.2d 1170, 1179 (6th Cir. 1979) (Section 1341); Napper v. Anderson, 500 F.2d 634, 636 (5th Cir. 1974), cert. denied 423 U.S. 837, 46 L. Ed. 2d 56, 96 S. Ct. 65 (1975) (Section 1343).
D. Title 1-2530 of the District of Columbia Code
Plaintiff provides no allegations whatsoever that support a finding of a violation of section 1-2530 by defendant Nedimyer.
E. Conspiracy under 42 U.S.C. § 1985(3)
In order to plead a viable cause of action under 42 U.S.C. § 1985(3),
a plaintiff must specifically allege (1) an act in furtherance of (2) a conspiracy (3) to deprive any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws. Great American Fed. Savings & Loan Ass'n v. Novotny, 442 U.S. 366, 372, 60 L. Ed. 2d 957, 99 S. Ct. 2345 (1979). In this case, plaintiff fails to allege an underlying violation of federal law.
"Section 1985(3) provides no substantive rights itself; it merely provides a remedy for violation of the rights it designates." Novotny, 442 U.S. at 372. Thus, the question is whether violations of the federal laws asserted in this case equate to a deprivation of "'the equal protection of the laws, or of equal privileges and immunities under the laws' within the meaning of § 1985(3)." Id. As one court has stated, "absent the violation of a substantive federal right that prohibits purely private conduct there can be no cause of action under 42 U.S.C. § 1985(3)." Nieto v. United Auto Workers Local 598, 672 F. Supp. 987, 992 (E.D. Mich. 1987); see also Holmes v. Finney, 631 F.2d 150, 154 (10th Cir. 1980); Cohen v. Illinois Inst. of Tech., 524 F.2d 818, 828 (7th Cir. 1975), cert. denied 425 U.S. 943, 48 L. Ed. 2d 187, 96 S. Ct. 1683 (1976).
The Novotny court concluded that Title VII cannot be the basis for a cause of action under section 1985(3). Novotny, 442 U.S. at 378 ("Unimpaired effectiveness can be given to the plan put together by Congress in Title VII only by holding that deprivation of a right created by Title VII cannot be the basis for a cause of action under § 1985(3).").
Likewise, this court has concluded that the Fair Credit Reporting Act cannot be the basis for a cause of action under section 1985(3). See Wiggins v. Philip Morris, C.A. No. 92-493, § VI(E)(3) (D.D.C. May 13, 1994) (denying and granting in part defendant Philip Morris, Inc.'s motion to dismiss). Moreover, there are no allegations in the complaint which support Mr. Nedimyer's participation in a conspiracy to violate the Fair Credit Reporting Act. See infra § 111(F).
Plaintiff also maintains that 42 U.S.C. § 1981 should be used as a basis for a cause of action under 1985(3). This court has recognized that federal statutory rights such as those protected under section 1981 may provide a substantive basis for a section 1985(3) claim. See Alder v. Columbia Historical Soc., 690 F. Supp. 9, 15 (D.D.C. 1988) (Bryant, J.); Nieto, 672 F. Supp. at 992; Thompson v. International Assoc. of Machinists and Aerospace Workers, 580 F. Supp. 662, 668 (D.D.C. 1984) (Green, Joyce Hens, J.) ("(Section) 1981 is clearly a federal source of rights and unlike Title VII, § 1981 is not derived from a statutory scheme whose policies would be frustrated by the relitigation under another remedial statute.'" (quoting Hudson v. Teamsters Local Union No. 957, 536 F. Supp. 1138, 1147 (S.D. Ohio 1982)) (footnote omitted)). However, plaintiff fails to allege a substantive violation of section 1981 by Nedimyer. See supra § II. The complaint is also devoid of allegations of the requisite elements supporting a finding of a conspiracy to violate section 1981. Thus, plaintiff's claim under section 1985(3) must fail.
F. The Fair Credit Reporting Act
Plaintiff also mentions the Fair Credit Reporting Act ("FCRA") throughout the complaint. To the extent that Mr. Wiggins attempts to allege that defendant Nedimyer violated any provision of the FCRA, the complaint is dismissed for failure to state a claim upon which relief can be granted.
The FCRA creates civil liability for consumer reporting agencies and users of consumer reports that fail to comply with its requirements.
This court concludes that there are no allegations within the complaint evidencing that defendant Nedimyer saw, used, or disseminated a consumer report.
G. Civil Conspiracy
Plaintiff charges defendants with two alleged conspiracies. Plaintiff claims that defendants worked with Equifax, Inc. and Philip Morris in a conspiracy to tortiously interfere with plaintiff's contract and to violate the FCRA. Plaintiff's allegations as to defendants' acts in furtherance of the alleged conspiracies are numerous.
It is well established that "there is no recognized independent tort action for civil conspiracy in the District of Columbia," Waldon v. Covington, 415 A.2d 1070, 1074 n.14 (D.C. 1980); however, District of Columbia law "acknowledges the concept of civil conspiracy." Halberstam v. Welch, 227 U.S. App. D.C. 167, 705 F.2d 472, 479 (D.C. Cir. 1983). "Since liability for civil conspiracy depends on performance of some underlying tortious act, the conspiracy is not independently actionable; rather it is a means for establishing vicarious liability for the underlying tort." Id.
Under District of Columbia law, the elements of a claim for civil conspiracy are "an agreement to do an unlawful act or a lawful act in an unlawful manner; an overt act in furtherance of the agreement by someone participating in it; and injury caused by the act." Okusami v. Psychiatric Institute of Washington, Inc., 295 U.S. App. D.C. 58, 959 F.2d 1062, 1066 (D.C. Cir. 1992) (citing Halberstam, 705 F.2d at 487).
Moreover, "to establish liability, the plaintiff also must prove that an unlawful overt act produced an injury and damages." Id. An agreement may be inferred from the underlying facts.
1. Conspiracy to Violate the FCRA.
To the extent that plaintiff attempts to include defendant Nedimyer in a group that deliberately and willfully conspired to violate the Fair Credit Reporting Act, the claim is dismissed. As previously stated, there are no allegations in the complaint which support a finding of defendant Nedimyer's participation in a conspiracy to violate the Fair Credit Reporting Act.
2. Conspiracy to Tortiously Interfere with Employment Contract
Plaintiff also alleges that defendants conspired together to tortiously interfere with plaintiff's rights in his employment. Compl. PP 49, 73(1). There is an underlying tort under D.C. law for tortiously interfering with an employment contract. See supra § III(A). Again, plaintiff has alleged facts that support at least an inference of an agreement to participate in a scheme to tortiously interfere with Mr. Wiggins' employment contract.
Defendants motion to dismiss with respect to count two as it relates to a conspiracy to tortiously interfere with plaintiff's employment is denied.
IV. Dismissal of State Law Claims
The only causes of action surviving defendant Nedimyer's motion to dismiss are tortious interference with contract and conspiracy to tortiously interfere with plaintiff's employment, both state-law claims. No federal claims remain against defendant Nedimyer; the court sua sponte considers whether it should entertain these state-law causes of action.
The remaining state-law claims against defendant Nedimyer fall under what was formerly called "pendent party jurisdiction." Before the Judicial Improvements Act of 1990, federal courts frowned upon the use of pendent party jurisdiction to hear claims that lacked an independent basis for federal jurisdiction. Now, however, courts must employ "supplemental jurisdiction":
In any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.
28 U.S.C.A. § 1367(a) (1993). As David D. Siegel notes in the Practice Commentary accompanying the 1990 adoption of supplemental jurisdiction:
The conferral [of supplemental jurisdiction] is in mandatory terms-the court "shall" have the supplemental jurisdiction-but subdivision (c), treated below, gives the court discretion to "decline to exercise" the supplemental jurisdiction in various circumstances.
A court may decline to exercise supplemental jurisdiction if:
"(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction." 28 U.S.C.A. § 1367(c) (1993) (emphasis added).
In the present case, federal claims under Title VII remain against Philip Morris, Inc. Plaintiff's state conspiracy and tortious interference with contract claims against defendant Nedimyer arise from essentially the same conduct alleged in the discrimination count against Philip Morris and is "so related" to the other federal claims in the complaint that they "form part of the same case or controversy." Although this court has the discretion to decline jurisdiction, the court retains jurisdiction over the state-law counts enduring defendant Nedimyer's motion to dismiss.
Plaintiff fails to make any allegations indicating an infringement of his right to make or enforce his contract. Even if Mr. Wiggins was discharged or suffered disparate treatment during his employment with Philip Morris because of racial harassment, his claim under section 1981 must be dismissed as a matter of law. Plaintiff's only cognizable allegations are for tortious interference with contract and conspiracy to tortiously interfere with plaintiff's employment; the remainder of plaintiff's complaint against defendant Nedimyer is dismissed.
A separate order shall issue this date.
Royce C. Lamberth
United States District Judge
This case comes before the court on defendant Nedimyer's motion to dismiss. It is hereby ORDERED that defendant Nedimyer's motion to dismiss the complaint for failure to state a claim upon which relief can be granted is GRANTED in part and DENIED in part in accordance with the accompanying memorandum opinion. Plaintiff's only surviving claims against defendant Nedimyer are his tortious interference with contract and conspiracy to tortiously interfere with contract claims. All other claims against defendant Nedimyer are hereby DISMISSED.
Royce C. Lamberth
United States District Judge