UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GENNARO MATTIACCIO II,
Plaintiff,
Civil Action No. 12-1249 (CKK)
v.
DHA GROUP, INC., et al.,
Defendants.
MEMORANDUM OPINION
(December 11, 2012)
Plaintiff Gennaro Mattiaccio filed suit against his former employer DHA Group, Inc.,
David Hale, and Ami Getu (collectively “Defendants”), alleging violations of the Fair Credit
Reporting Act, and accusing the Defendants of defamation. Compl., ECF No. [1], ¶¶ 31-64. The
claims purportedly arise out of the post-employment background check performed on the
Plaintiff and his subsequent termination. Presently before the Court is the Defendants’ [7]
Motion to Dismiss Count Three of the Complaint, seeking to dismiss the Plaintiff’s defamation
claim. Based on the pleadings1 and the relevant legal authorities, the Court agrees that Count
Three of the Complaint fails to state a claim for relief. Accordingly, the Defendants’ [7] Motion
to Dismiss Count Three of the Complaint is GRANTED. Count Three of the Complaint is
DISMISSED WITHOUT PREJUDICE and the Plaintiff will be granted leave to amend his
Complaint.
I. BACKGROUND
In relevant part, the Complaint alleges that the Plaintiff was hired as the Lead Proposal
1
See Defs.’ Mot. to Dismiss, ECF No. [7]; Pl.’s Opp’n, ECF No. [8]; Defs.’ Reply, ECF
No. [10].
Manager for DHA Group in July 2011. Compl. ¶¶ 10-11. On two occasions in May 2012, the
Plaintiff met with Defendant Ami Getu, the Manager of Human Resources for DHA Group, to
discuss “a complaint against personnel at the company.” Id. at ¶¶ 20-21. The afternoon
following the second meeting, the Plaintiff alleges he was placed on indefinite administrative
leave. Id. at ¶ 22. On May 30, 2012, DHA Group terminated the Plaintiff’s employment on the
grounds he was “far less than candid with DHA with respect to important and relevant aspects of
your background and experience.” Compl., Ex. E (5/30/12 Termination Ltr) at 1. Specifically,
the termination letter and associated report transmitted to the Plaintiff asserted that (1) the
Plaintiff failed to disclose three prior convictions, including one for assault and battery; (2) there
were inconsistencies between versions of the Plaintiff’s resume provided to DHA and stored on
the Plaintiff’s DHA Group-issued laptop; and (3) pornographic materials, some of which
involved children, were recovered from the Plaintiff’s DHA Group-issued laptop. Id.; Compl.,
Ex. F (Prelim. Invest. Report). The Plaintiff alleges that the Defendants knew the Plaintiff had
never been convicted of assault and battery and that the Plaintiff never maintained child
pornography on his computer, but intentionally “caus[ed] the report to be published.” Compl.
¶ 50. In terms of publication, the Plaintiff alleges only that “[on] personal knowledge, the letter
was published to numerous individuals within DHA Group.” Id. at ¶ 25.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides that a party may challenge the
sufficiency of a complaint on the grounds it “fail[s] to state a claim upon which relief can be
granted.” A complaint must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief,” Fed. R. Civ. P. (8)(a), “in order to give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
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544, 555 (2007) (citation omitted). Although “detailed factual allegations” are not necessary to
withstand a Rule 12(b)(6) motion to dismiss for failure to state a claim, a plaintiff must furnish
“more than labels and conclusions” or “a formulaic recitation of the elements of a cause of
action.” Id. “Nor does a complaint suffice if it tenders naked assertion[s] devoid of further
factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (citation
omitted). Rather, a complaint must contain sufficient factual allegations that, if accepted as true,
“state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at
1949.
When evaluating a motion to dismiss for failure to state a claim, the district court must
accept as true the well-pleaded factual allegations contained in the complaint. Atherton v. D.C.
Office of Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009). In deciding a Rule 12(b)(6) motion, a court
may consider “the facts alleged in the complaint, documents attached as exhibits or incorporated
by reference in the complaint,” or “documents upon which the plaintiff's complaint necessarily
relies even if the document is produced not by [the parties].” Ward v. D.C. Dep’t of Youth
Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C.2011) (citations omitted). “At the motion to
dismiss stage, counseled complaints, as well as pro se complaints, are to be construed with
sufficient liberality to afford all possible inferences favorable to the pleader on allegations of
fact.” Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1106 (D.C. Cir. 2005).
III. DISCUSSION
A defamation claim requires the Plaintiff to show:
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(1) that the defendant made a false and defamatory statement concerning the
plaintiff; (2) that the defendant published the statement without privilege to a third
party; (3) that the defendant’s fault in publishing the statement amounted to at
least negligence; and (4) either that the statement was actionable as a matter of
law irrespective of special harm or that its publication caused the plaintiff special
harm.
Jankovic v. Int’l Crisis Group, 494 F.3d 1080, 1088 (D.C. Cir. 2007). The Defendants’ motion
concerns only the second criterion: the sufficiency of the Plaintiff’s allegations regarding the
publication of the purportedly defamatory letter and report. Although the D.C. Circuit has not
adopted a heightened pleading standard for defamation claims generally, courts have routinely
held that a complaint alleging must plead “the time, place, content, speaker, and listener of the
alleged defamatory matter.” Stovell v. James, 810 F. Supp. 2d 237, 248 (D.D.C. 2011) (quoting
Caudle v. Thomason, 942 F. Supp. 635, 638 (D.D.C. 1996)); accord Tressler v. Nat’l R.R.
Passenger Corp., 819 F. Supp. 2d 1, 6 (D.D.C. 2011).
In reference to publication of the purportedly defamatory letter and report, the Complaint
alleges only that (1) the Defendants “caus[ed] the report to be published,” Compl. ¶ 50; and (2)
that “[on] personal knowledge, the letter was published to numerous individuals within DHA
Group,” id. at ¶ 25. The letter itself is dated May 30, 2012, but the Complaint provides no
details regarding when or how the letter was “published,”—even whether it was before or after
the Plaintiff’s termination—or which “DHA employees” received the letter. These vague
allegations do not provide the Defendants sufficient notice of the Plaintiff’s claim as necessary
for the Defendants to prepare responsive pleadings. Tressler, 819 F. Supp. 2d at 6.
As part of his opposition to the Defendants’ motion, the Plaintiff attaches a declaration
stating that “all members of the Management Council were required to review [termination
letters] prior to termination,” and that the same policy would apply to the letter at the center of
the Plaintiff’s defamation claim. Mattiaccio Decl., ECF No. [8], ¶ 4. The Plaintiff further
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alleges that the DHA Group Chief Operating Officer Bryan Lutz participated in the telephone
call on May 30, 2012, during which Defendant Getu terminated the Plaintiff’s employment. Id.
at ¶ 8.2 The Plaintiff’s declaration provides significantly more detail that is critical to the
Defendants in formulating their answers: (1) the approximate time of publication (prior to the
Plaintiff’s termination); (2) the means of publication (distribution by Ami Getu); and (3) the
recipients (the Management Council). However, the Plaintiff cannot amend his Complaint by
way of declaration or assertions in his pleadings. Arbitraje Casa de Cambio, S.A. de C.V. v. U.S.
Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C. 2003). Thus, the Defendants’ motion must be
granted, but the Plaintiff shall have the opportunity to properly amend his Complaint.
IV. CONCLUSION
For the reasons stated above, the Court finds the Plaintiff’s Complaint fails to state a
claim for defamation. The Complaint fails to allege the time and means of publication, or who
received the defamatory statement at issue, and thus does not provide the Defendants with
adequate notice and sufficient detail from which they can prepare responsive pleadings. The
Plaintiff cannot amend his Complaint to include additional detail by way of his opposition to the
Defendant’s motion. Accordingly, the Defendants’ [7] Motion to Dismiss Count Three of the
Complaint is GRANTED. Count Three of the Complaint is DISMISSED WITHOUT
PREJUDICE and the Plaintiff is granted leave to amend his Complaint. An appropriate Order
accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
2
The Complaint itself did not disclose the telephone call, much less the relevant
participants.
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