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Mattiaccio v. DHA Group, Inc.

United States District Court, District of Columbia

December 3, 2019

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



         This 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 I”).

         In short, Mr. Mattiaccio alleges that each Defendant violated Section 1681b(b)(2)(A)[1] 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)[2] 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).

         Currently 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 disabled.

         Second, 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.

         Third, 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.

         Lastly, 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.

         In 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.


         The 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 impeachment purposes.

         A. Estoppel Based on Documents Received from the SSA and VA

         First, 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 1”);*
• 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 (“Document 4”);
• 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 (“Document 6”);
• Disability Report - Adult - Form SSA-3368 by Gennaro Mattiaccio (Undated), ECF No. 181-1 at 284-86 (“Document 7”);
• Veteran's Application for Compensation and/or Pension by Gennaro Mattiaccio (Aug. 30, 2006), ECF No. 185 Ex. A (“Document A”);*[3]
• 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”).

         The 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.[4] The last four were originally retrieved from PACER in the criminal case United States v. Gennaro Mattiaccio, 16-cr-215 (E.D. Va.).

         Defendants 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.

         1. Applicable Legal Standard

         Defendants' 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 in limine.

         Although 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)).

         2. The Documents Themselves

         Before 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.

         However, 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 or irrelevant”).

         Defendants 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 Court's concerns:

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.

         Defendants 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.

         Lastly, 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 decision.

         3. Judicial Estoppel

         In 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.

         Some 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 following:

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 ...

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