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Mattiaccio v. DHA Group, Inc.

United States District Court, District of Columbia

February 26, 2014

DHA GROUP, INC., et al., Defendants.



Plaintiff Gennaro Mattiaccio filed suit on July 30, 2012, alleging defamation by Defendants Amerete Getu, David Hale, and DHA Group, Inc. See Compl. ECF No. [1]. 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, Plaintiff sought leave to bring in several new defendants and eleven new claims, including claims of tortious interference with employment, defamation, and civil conspiracy to defame against new defendant Karen Fischer-a Systems Analyst and Test Engineer at DHA Group. Pl.’s Mot. for Enlargement of Time to File Am. Compl., ECF No. [46]. In a September 16, 2013, Order, the Court granted in part and denied in part Plaintiff’s Motion. See Order (Sept. 16, 2013), ECF No. [53]. Plaintiff was allowed to amend his Complaint to include the three claims against Defendant Fischer 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 Fischer’s Motion to Dismiss the claims against her for lack of personal jurisdiction and for failure to state a claim. See Def.’s Mot. to Dismiss, ECF No. [62]. Upon consideration of the pleadings, [1] the relevant legal authorities, and the record for purposes of a motion to dismiss, the Court finds that Plaintiff has failed to properly serve Defendant Fischer and failed to state a claim of tortious interference and civil conspiracy to defame against Defendant Fischer. Accordingly, for the reasons stated below, Defendant Fischer’s Motion to Dismiss is GRANTED.


A. Factual Allegations

For the purposes of Defendant’s Motion to Dismiss, the Court presumes the following facts pled in the Second Amended Complaint to be true as the Court must 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. [55], ¶ 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, the Manager of Human Resources for DHA Group, to discuss “a complaint against personnel at the company.” Id. ¶ 33. A few weeks later, on or about May 15, 2012, [2] Defendant Fischer provided Ms. Getu information “in the form of a computer search of records that [Plaintiff] was convicted of perjury in the Fredericksburg Circuit Court, Virginia.” Id. ¶ 34; Pl.’s Ex. E (5/17/12 Fischer Email to Getu).

In addition, Defendant Fischer communicated the conviction for perjury to her husband, David Fischer. Id. ¶ 47. Plaintiff alleges that this information was false, id ¶ 34, and that “the defendants knew that the . . . Perjury conviction [was] incorrect; yet it was published to numerous individuals within DHA Group, ” id ¶ 47. 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 Nelson Blitz to conduct a post-employment background check on the Plaintiff Id ¶ 38; 144. On May 30, 2012, DHA Group terminated Plaintiffs 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). Specifically, the termination letter, which included a copy of the background investigation report prepared by Mr. Blitz, asserted that Plaintiff failed to disclose prior convictions. Pl.’s Ex. H (5/30/12 Termination Ltr); Pl.’s Ex. I (Prelim. Invest. Report). Plaintiff alleges that this letter and report were “published to numerous members of the DHA Management Council.” Id ¶ 46. 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.

In his Second Amended Complaint, Plaintiff brings three counts against Defendant Fischer. Specifically, Plaintiff raises one count of defamation alleging that Defendant Fischer “defamed Plaintiff by falsely alleging that Plaintiff had been convicted of perjury” (Count Six), id ¶ 129; one count of civil conspiracy to defame on the basis that Defendant Fischer “entered into an agreement [with David Fischer and other defendants] to commit an illegal act of defamation against Plaintiff (Count Five), id ¶¶ 120, 121, 123; and one count of tortious interference with employment alleging that Defendant Fischer “acting with malice and deliberate intent to injure the Plaintiff, ” “caused DHA Group to breach” their “ongoing employment agreement” with Plaintiff (Count Seven), id. ¶¶ 137, 138.

B. Procedural History

In the Order granting Plaintiff leave to file a Second Amended Complaint and include the counts outlined above, the Court set forth a schedule for the filing of the Second Amended Complaint, and stated that Plaintiff “shall serve . . . Karen Fischer by no later than October 8, 2013.” Order (Sept. 16, 2013), ECF No. [53]. Defendant Fischer alleges that on September 30, 2013, Plaintiff, through a process server, served Nelson Blitz with a summons and a copy of the Second Amended Complaint directed to Defendant Fischer, even though Mr. Blitz was not authorized to accept service on her behalf. Def.’s Mot. at 5. On October 21, 2013, Defendant Fischer filed the present Motion to Dismiss for failure to properly serve and for failure to state a claim of tortious interference, defamation, or civil conspiracy to defame.


A. Federal Rule of Civil Procedure 12(b)(5)

A court ordinarily may not exercise personal jurisdiction over a party named as a defendant in the absence of service of process (or waiver of service by the defendant). See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (citing Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987) (“Before a . . . court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.”); Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444–45 (1946) (“[S]ervice of summons is the procedure by which a court . . . asserts jurisdiction over the person of the party served.”)). Pursuant to Federal Rule of Civil Procedure 12(b)(5), “if the plaintiff does not properly effect service on a defendant, then the defendant may move to dismiss the complaint” without prejudice. Hilska v. Jones, 217 F.R.D. 16, 20 (D.D.C. 2003); see also Simpkins v. District of Columbia, 108 F.3d 366, 369 (D.C. Cir. 1997). “The party on whose behalf service is made has the burden of establishing its validity when ...

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