United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
Plaintiff Gennaro Mattiaccio filed suit on July 30, 2012, alleging defamation by Defendants Ami Getu, David Hale, and DHA Group, Inc. See Compl. ECF No. . The Plaintiff also asserted three claims under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., one count against each Defendant, arising out of a post-employment background check of the Plaintiff. On August 9, 2013, the Plaintiff sought leave to bring in several new defendants and eleven new claims, including a Fair Credit Reporting Act claim against new defendant Nelson Blitz, the attorney who had performed the background check on Plaintiff. Pl.’s Mot. for Enlargement of Time to File Am. Compl., ECF No. . In a September 16, 2013  Order, the Court granted in part and denied in part Plaintiff’s Motion. Plaintiff was allowed to amend his Complaint to include a Fair Credit Reporting Act (“FCRA”) claim against Nelson Blitz because he had learned information relevant to these claims in depositions during discovery after the date for amending pleadings had passed. Presently before the Court is Defendant Blitz’s Motion to Dismiss the FCRA claim for failure to state a claim, or alternatively, for summary judgment. See Def.’s Mot. to Dismiss, ECF No. . Upon consideration of the pleadings,  the relevant legal authorities, and the record for purposes of a motion to dismiss, the Court finds that Defendant Blitz cannot be held independently liable under the FCRA for his actions in conducting Plaintiff’s background investigation because he was acting as the attorney-agent of Plaintiff’s employer, DHA Group. Accordingly, for the reasons stated below, Defendant Blitz’s Motion is GRANTED.
A. Factual Allegations
For the purposes of Defendant’s Motion to Dismiss for failure to state a claim, the Court presumes the following facts pled in the Second Amended Complaint to be true, as required when considering a motion to dismiss. In relevant part, Plaintiff alleges that he was hired as the Lead Proposal Manager for DHA Group in July 2011. Second Am. Compl., ECF No. , ¶ 17. Prior to Plaintiff’s employment with DHA Group, Plaintiff completed a document authorizing DHA Group to conduct a pre-employment background check, which he passed. Id. ¶ 27.
On or about May 3, 2012, Plaintiff met with Amerete Getu, Manager of Human Resources for DHA Group, to discuss “a complaint against personnel at the company.” Id. ¶¶ 33. On May 16, 2012, Plaintiff was placed on “Administrative Leave until further notice” because of “information coming to light that requires additional review and investigation.” Id. ¶ 37; Pl.’s Ex. G (5/16/12 Admin. Leave Ltr.). From May 16, 2012, to May 30, 2012, DHA Group engaged Defendant Blitz, outside counsel for DHA Group to conduct a post-employment background check on Plaintiff. Id. ¶¶ 6, 38, 144. On May 17, 2012, Karen Fisher, a DHA Group employee, provided Ms. Getu information that Plaintiff was convicted of perjury. Id. ¶ 34; Pl.’s Ex. E (5/17/12 Fischer Email to Getu).
Defendant Blitz is a licensed attorney who “performed background checks and employee investigations, among other things for DHA Group Inc.” Id. ¶ 6. Plaintiff alleges that Defendant Blitz “regularly and routinely conducts employment screening and addresses employment investigations and FCRA matters.” Id. ¶ 38. As part of his background investigation of Plaintiff, Defendant Blitz obtained a printout from a computer database known as U.S. Search, which Plaintiff alleges contained numerous inaccuracies. Id. ¶ 42. On May 30, 2012, DHA Group terminated Plaintiff’s employment on the grounds that he was “far less than candid with DHA with respect to important and relevant aspects of [his] background and experience.” Id. ¶ 41; Pl.’s Ex. H (5/30/12 Termination Ltr), at 1. Specifically, the termination letter, which included a copy of the background investigation report prepared by Defendant Blitz, asserted that Plaintiff failed to disclose prior convictions. Pl.’s Ex. H (5/30/12 Termination Ltr), at 1; Pl.’s Ex. I (Prelim. Invest. Report). Plaintiff alleges that this report contained numerous inaccuracies, including that he was convicted of Assault and Battery, which Plaintiff contends was “false and misleading.” Id. ¶¶ 42; 47.
B. Fair Credit Reporting Act Claim
In his Second Amended Complaint, Plaintiff alleges that Defendant Blitz violated FCRA provisions 15 U.S.C. § 1681b(b)(2)(A) and (b)(3)(A), which state:
(b) Conditions for furnishing and using consumer reports for employment purposes
(2) Disclosure to consumer
(A) In general Except as provided in subparagraph (B), a person may not procure a consumer report, or cause a consumer report to be procured, for employment purposes with respect to any consumer, unless--
(i) a disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and
(ii) the consumer has authorized in writing (which authorization may be made on the document referred to in clause (i)) the ...