United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
case currently stands in a pretrial posture. Plaintiff
Gennaro Mattiaccio II's remaining claims are brought
under the Fair Credit Reporting Act (“FCRA”)
against Defendants DHA Group (Count I), Amrote Getu (Count
II), and David Hale (Count IV). Mattiaccio v. DHA Grp.,
Inc., 87 F.Supp.3d 169, 178 (D.D.C. 2015)
(“Mattiaccio II”). The Court previously
discussed the factual background of this case in previous
opinions, to which it refers the reader. See Id. at
172- 78; Mattiaccio v. DHA Group, Inc., 21 F.Supp.3d
15, 16-18 (D.D.C. 2014) (“Mattiaccio
short, Mr. Mattiaccio alleges that each Defendant violated
Section 1681b(b)(2)(A) of the FCRA by “unlawfully
obtain[ing] plaintiff's credit report, criminal history,
civil history, prior employment information, and [by]
attempt[ing] to obtain information about drug use by the
plaintiff, all without proper authorization from the
plaintiff.” Second Am. Compl. ¶¶ 90, 111;
see also Id. ¶ 77 (“Defendant failed to
properly notify the plaintiff and/or secure his proper
authorization to conduct a pre and post-employment background
investigation as required by the FCRA[.]”). He further
alleges that Defendants violated Section
1681b(b)(3)(A) by failing “to comply with the
‘pre adverse action' and ‘adverse action'
notice requirements under the FCRA” once they learned
“derogatory information about the plaintiff” and
decided to terminate him. Id. ¶ 78; see
also Id. ¶ 92 (“[D]efendant Getu failed to
provide plaintiff a ‘Summary of Rights under the Fair
Credit Reporting Act'; and defendant failed to comply
with the provisions of the FCRA requiring ‘pre adverse
action' and ‘adverse action' notices upon
completion of the background check.”); id.
¶ 114 (alleging same as to Defendant Hale).
pending before the Court are four sets of issues raised by
the parties. First, the parties dispute whether certain
information from the Social Security Administration
(“SSA”) and the Department of Veterans Affairs
(“VA ”) should be excluded and, if they are not
excluded, to what extent the evidence should reduce Mr.
Mattiaccio's damages. See Defendants'
Supplemental Pretrial Memorandum (“Defs.' Suppl.
Pretrial Mem.”), ECF No. 185; Opposition to
Defendant's Supplemental Pre-Trial Memorandum, and Motion
for Leave to Supplement Plaintiff's Pretrial Memorandum
(“Pl.'s Opp'n to Suppl. Pretrial Mem.”),
ECF No. 187; Responses in Further Support of Defendants'
Supplemental Pretrial Memorandum, and in Opposition to
Plaintiff's Embedded Motion Regarding Reopening Discovery
(“Defs.' Reply in Supp. of Suppl. Pretrial
Mem.”), ECF No. 190. Upon consideration of the relevant
briefing, the relevant legal authorities, and the record, the
Court agrees with Defendants that Mr. Mattiaccio is estopped
from now claiming that the FCRA violations were the cause of
his lost income for the years that he claimed he was
Mr. Mattiaccio requests leave to reopen discovery to depose a
member of the jury pool from his criminal trial in 2017.
See Pl.'s Opp'n to Suppl. Pretrial Mem. at
4; Defs.' Reply in Supp. of Suppl. Pretrial Mem. at 2-3.
The Court denies this request.
Defendants seek to introduce certain of Mr. Mattiaccio's
prior convictions, which Mr. Mattiaccio opposes. See
Defendants' Renewed Motion for Leave to Introduce
Evidence of Certain of Plaintiff's Criminal Convictions
(“Defs.' Mot. to Introduce Convictions”), ECF
No. 182; Plaintiff's Opposition to Defendants Renewed
Motion to Introduce Evidence of Prior Convictions
(“Pl.'s Opp'n to Defs.' Mot. to Introduce
Convictions”), ECF No. 186; Reply Brief in Further
Support of Defendants' Renewed Motion for Leave to
Introduce Evidence of Certain of Plaintiff's Criminal
Convictions (“Defs.' Reply in Supp. of Mot. to
Introduce Convictions”), ECF No. 191. The Court grants
in part Defendants' Motion, as it allows Defendants to
introduce some evidence relating to four out of five of Mr.
Mattiaccio's convictions and to introduce more limited
evidence regarding the fifth conviction.
the parties disagree on certain jury instructions.
See Joint Revised Proposed Jury Instructions, ECF
No. 145. The Court agrees with Mr. Mattiaccio that if
Defendant DHA Group has been acquired by ASGN, Inc., the jury
instructions should reflect that fact. See Motion
for Leave to File Amended Voir Dire Questions, ECF No. 198.
However, the Court defers on the exact language of those
questions, and on the remaining jury instruction disputes
between the parties, until a trial date has been set.
light of the discussion below, previous decisions that
predated the stay in this case, and the significant lapse of
time since the last pretrial statement was submitted, the
Court shall require the parties to submit a revised Joint
Pretrial Statement as outlined in the accompanying Order. The
parties' objections to the Courts' rulings on these
issues are preserved for appeal through their pleadings and
need not be restated in the revised Joint Pretrial Statement.
Court now turns to three of the parties' disputes: (1)
whether Defendants may introduce documents produced by the
SSA and VA and whether, based on those documents, Mr.
Mattiaccio would be estopped from making some of his proposed
damages arguments or whether his damages would be reduced;
(2) whether discovery should be reopened to allow Mr.
Mattiaccio to depose a juror from his criminal case; and (3)
whether Defendants can introduce certain evidence regarding
Mr. Mattiaccio's prior criminal convictions for
Estoppel Based on Documents Received from the SSA and VA
Defendants seek leave to introduce eleven documents relating
to Mr. Mattiaccio's damages. As described by Defendants,
these documents are:
• Application Summaries for Disability Insurance
Benefits for Gennaro Mattiaccio (Feb. 1, 2013), ECF No. 181-1
at 192-94 and ECF No. 181-1 at 269 (“Document
• Amendments to Application for Disability Insurance
Benefits for Gennaro Mattiaccio (Mar. 19, 2013), ECF No.
181-1 at 271 (“Document 2”);*
• I561 Summary for Gennaro Mattiaccio (Sept. 15, 2013),
ECF No. 181-1 at 191 (“Document 3”);*
• Letter from Department of Veterans Affairs to Gennaro
Mattiaccio (Jan. 9, 2014), ECF No. 181-1 at 57-66
• Letter from Carolyn Colvin, Acting Commissioner,
Social Security Administration, to Gennaro Mattiaccio (Apr.
14, 2014), ECF No. 181-1 at 67-72 (“Document 5”);
• Letter from Department of Veterans Affairs to Gennaro
Mattiaccio (Apr. 18, 2011), ECF No. 181-1 at 202
• Disability Report - Adult - Form SSA-3368 by Gennaro
Mattiaccio (Undated), ECF No. 181-1 at 284-86
• Veteran's Application for Compensation and/or
Pension by Gennaro Mattiaccio (Aug. 30, 2006), ECF No. 185
Ex. A (“Document A”);*
• Letter from Gennaro Mattiaccio to Mr. D. Svirsky,
Department of Veterans Affairs (Mar. 27, 2007), ECF No. 185
Ex. B (“Document B”);
• Function Report (SSA) by Gennaro Mattiaccio (Oct. 21,
2013), ECF No. 185 Ex. C (“Document C”); and
• Claim Communications Log, Department of Veterans
Affairs and Gennaro Mattiaccio (Nov. 29, 2007 - Nov. 6,
2012), ECF No. 185 Ex. D (“Document D”).
first seven documents listed above were produced by either
the SSA or VA pursuant to this Court's Sealed October 10,
2017 Order, ECF No. 181. The last four were originally retrieved
from PACER in the criminal case United States v. Gennaro
Mattiaccio, 16-cr-215 (E.D. Va.).
advance two arguments related to these documents. First, they
argue that because Mr. Mattiaccio represented to the SSA and
the VA that he was unable to work due to a disabling
condition during the period for which he seeks lost income
damages, he is now estopped from seeking those lost income
damages. Second, they contend that even if he is not
estopped, he received significant benefits from the SSA and
the VA and that his damages should be accordingly reduced.
The Court agrees with Defendants' first argument and
therefore does not reach their second argument.
Applicable Legal Standard
supplemental briefing, submitted at this Court's request,
essentially argues that Mr. Mattiaccio is precluded as a
matter of law from introducing evidence regarding his lost
income damages for certain years, or arguing that he can
recover lost wages for those years, on judicial estoppel
grounds. Considering the content and timing of
Defendants' Motion, the Court treats it as a motion
neither the Federal Rules of Civil Procedure nor the Federal
Rules of Evidence explicitly authorize motions in
limine, “the practice has developed pursuant to
the district court's inherent authority to manage the
course of trials.” Luce v. United States, 469
U.S. 38, 41 n.4 (1984). In fact, under Federal Rule of
Evidence 103(d), the court must “conduct a jury trial
so that inadmissible evidence is not suggested to the jury by
any means” to the extent practicable. Fed.R.Evid. 103.
“Pretrial motions in limine are an important
mechanism to effectuate this goal of insulating the jury from
inadmissible evidence, ” United States v.
Bikundi, No. 14-CR-030 (BAH), 2015 WL 5915481, at *3
(D.D.C. Oct. 7, 2015), and are “designed to narrow the
evidentiary issues for trial and to eliminate unnecessary
trial interruptions, ” Bradley v. Pittsburgh Bd. of
Educ., 913 F.2d 1064, 1069 (3d Cir. 1990). See
United States v. Jackson, 627 F.2d 1198, 1209 (D.C. Cir.
1980) (“A pre-trial ruling, if possible, may generally
be the better practice, for it permits counsel to make the
necessary strategic determinations.”). Due to the trial
court's “familiarity with the details of the case
and its greater experience in evidentiary matters, ” it
is “‘accorded a wide discretion in determining
the admissibility of evidence under the Federal
Rules.'” Sprint/United Mgmt. Co. v.
Mendelsohn, 552 U.S. 379, 384 (2008) (quoting United
States v. Abel, 469 U.S. 45, 54 (1984)).
The Documents Themselves
the Court examines Defendants' substantive arguments, it
first discusses Defendants' concerns about the documents
marked above with asterisks: Documents 1, 2, 3, and A. As
Defendants note in their briefing, these documents as
produced to the parties “appear to be incomplete or
otherwise missing pages, ” including Mr.
Mattiaccio's “attestation or other indicia in which
he swore that his representations to the government were true
and correct.” Defs.' Suppl. Pretrial Mem. at 2 n.*.
Mr. Mattiaccio has not expressed concerns about these
documents along these lines.
considering that Mr. Mattiaccio is proceeding pro
se, the Court has considered these concerns noted by
Defendants. To address Defendants' concerns about
Document A, the Court does not consider or rely upon it in
rendering this decision. As for the other documents, the
Court has retained and reviewed in camera the
pre-redaction versions of Documents 1, 2, and 3 and will
share with the parties redacted versions of these documents
under seal as attachments to a simultaneously published Ord
er. For clarity purposes, the sealed versions of these
documents shall be referred to in citations as Sealed
Document 1, Sealed Document 2, and Sealed Document 3,
respectively. The redactions made shall generally align with
the original Consent Order concerning redactions to documents
produced by the SSA and VA in this matter. See
Consent Order, ECF No. 166, at 2 (explaining that Court would
“redact any sensitive medical information, including
but not limited to diagnoses, medications, and treatments;
any personal identifying information; and any other
information that the Court deems inappropriate for disclosure
rely upon Document 1 to the extent that it demonstrates that
Mr. Mattiaccio applied for social security disability
insurance benefits on February 5, 2013. They also explain
that Mr. Mattiaccio stated in Document 1 that he
“became unable to work” due to “a disabling
condition on May 31, 2012” and that he was “still
disabled” as of February 5, 2013. Defs.' Suppl.
Pretrial Mem. at 4. The complete version of Document 1 has
the below affirmation that addresses Defendants' and this
I know that anyone who makes or causes to be made a false
statement or representation of material fact in an
application or for use in determining a right to payment
under the Social Security Act commits a crime punishable
under federal law by fine, imprisonment or both. I affirm
that all information I have given in connection with this
claim is true.
Sealed Document 1 at 2.
also rely upon Document 2, in which Mr. Mattiaccio amended
his application to state that he “became unavailable to
work because of [his] disabling condition on May 16, 2012,
” rather than May 31. Defs.' Suppl. Pretrial Mem.
at 5. The complete version of Document 2 has the same
affirmation as included in Document 1, which again addresses
Defendants' and this Court's concerns. Sealed
Document 2 at 2.
Defendants cite to Document 3, in which Mr. Mattiaccio asked
the SSA to reconsider denying him disability insurance
benefits because the “SSA did not have all the info
needed, ” including “a decision of the VA”
that Mr. Mattiaccio was “[u]nemployable due to [his]
disabilities.” Defs.' Suppl. Pretrial Mem. at 5;
Sealed Document 3 at 1. This specific document, as produced
to this Court, does not appear to have any affirmation or
indicia that Mr. Mattiaccio swore that the information he
provided was correct. See Sealed Document 3 at 1. To
avoid any potential concerns with this document, the Court
shall not consider or rely upon it in rendering this
decision. For the foregoing reasons, the Court will not
consider or rely upon Document 3 or Document A in this
short, Defendants argue that Mr. Mattiaccio's statements
to the SSA and the VA that he could not work due to his
disabilities in 2012 through 2015, the years for which he
appears to be claiming lost wages, are inconsistent with his
current positions. Because they are inconsistent, they
contend, Mr. Mattiaccio is estopped under the doctrine of
judicial estoppel from now taking the position that he could
not find work due to the FCRA violations.
background is required to place Defendants' arguments in
context. In his most recent itemization of damages, Mr.
Mattiaccio has requested “[l]ost earnings in the amount
of $450, 000.00, salary from date of termination to the
present.” Joint Addendum to Joint Pretrial Statement
(“Joint Add. to Joint Pretrial Stmt.”), ECF No.
127 at 3. Mr. Mattiaccio was placed on administrative leave
as of May 16, 2012 and was terminated on May 30, 2012.
Mattiaccio II, 87 F.Supp.3d at 174-75. The parties
previously disputed, in a prior round of motion in
limine briefing, whether Mr. Mattiaccio can request such
damages relating to loss of employment. See Mattiaccio v.
DHA Group, Inc., 2016 WL 10733978 (D.D.C. Jan. 6, 2016)
(“Mattiaccio III”). This Court found
that under the FCRA, Mr. Mattiaccio could not obtain
“damages for events that merely occurred in temporal
proximity to the FCRA violations or that were caused by
other actions of Defendants, unless they were caused
by the specific FCRA violations that remain as claims in this
case.” Id. at *3. This is because the FCRA
allows recovery of “any actual damages sustained by the
consumer as a result of the” violation. 15 U.S.C.
§ 1681n(a)(1)(A). Consequently, the Court found the
Plaintiff may introduce evidence related to loss of
employment on the condition that he introduces evidence at
trial that would allow a jury to conclude that there is a
causal relationship between the alleged violation of section