Mattiaccio v. Dha Group, Inc.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

GENNARO MATTIACCIO II

Plaintiff,

v. Civil Action No. 12-1249 (CKK)

DHA GROUP, INC., et al.,

Defendants.

MEMORANDUM OPINION

(February 26, 2014)

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

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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.

I. BACKGROUND

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).

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Defendant’s Motion to Dismiss (“Def.’s Mot.”), ECF No. [62]; Plaintiff’s Opposition to

Defendant’s Motion to Dismiss (“Pl.’s Opp’n”), ECF No. [75]; Defendant’s Reply in Support of

Defendant’s Motion to Dismiss (“Def.’s Reply), ECF No. [76].

2

Plaintiff alleges later in his Complaint that Defendant Fischer communicated this

information to Ms. Getu on or about May 17, 2012. See Second Am. Compl. ¶¶ 47, 49. The

email correspondence between Defendant Fischer and Ms. Getu, which Plaintiff attaches to his

Complaint, also shows a date of May 17, 2012. See Pl.’s Ex. E (5/17/12 Fischer Email to Getu).

For the purposes of Plaintiff’s claims against Defendant Fischer, however, these dates are

irrelevant.

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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 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). 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

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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.

II. LEGAL STANDARD

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

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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 challenged; to do so, he

must demonstrate that the procedure employed satisfied the requirements of the relevant portions

of [Federal Rule of Civil Procedure 4] and any other applicable provision of law.” Light v. Wolf,

816 F.2d 746, 751 (D.C. Cir. 1987) (internal quotation omitted).

B. Federal Rule of Civil Procedure 12(b)(6)

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.” Fed. R. Civ. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). 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, 556 U.S. at 678. 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).

III. DISCUSSION

A. Failure to Serve Defendant Fischer

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Defendant Fischer contends that Plaintiff’s three counts against her must be dismissed

because Plaintiff failed to properly serve her with the Second Amended Complaint. Def.’s Mot.

at 4. Federal Rule of Civil Procedure 4(e) mandates that a plaintiff serve an individual defendant

in the United States by one of four means: (1) “following state law for serving a summons in an

action brought in courts of general jurisdiction in the state where the district court is located or

where service is made;” (2) by “delivering a copy of the summons and of the complaint to the

individual personally;” (3) by “leaving a copy of each at the individual’s dwelling or usual place

of abode with someone of suitable age and discretion who resides there;” or (4) by “delivering a

copy of each to an agent authorized by appointment or by law to receive services of process.”

Defendant Fischer contends that even though Plaintiff was required by the Court’s Order to serve

her in her individual capacity by no later than October 8, 2013, Plaintiff did not serve her or

anyone authorized to accept service on her behalf by that date, but instead served Mr. Blitz with

a summons and a copy of the Second Amended Complaint directed to Defendant Fischer. Def.’s

Mot. at 5 (citing Blitz Decl., Def.’s Exs. A & B). Although Mr. Blitz is the registered agent for

DHA Group, he is not the registered agent for Defendant Fischer and Defendant Fischer has

never authorized him to accept service on her behalf. Blitz Decl. ¶ 2; Fischer Decl. ¶ 3. Plaintiff

concedes that he did not properly serve Defendant Fischer. See Pl.’s Opp’n. at 2. However,

Plaintiff argues that Defendant Fischer waived Plaintiff’s deficient service when her attorney

entered a full appearance in court on behalf of all Defendants. Id. But Plaintiff misstates the

procedural facts of this case. Attorney Emily C. Harlan entered a limited appearance on behalf

of Defendant Fischer on October 21, 2013, for the purpose of filing a motion to dismiss the

claims against Defendant Fischer pursuant to Federal Rule of Civil Procedure 12(b)(5). See ECF

No. [61]. On November 1, 2013, Attorney Kenneth Nichols entered a full appearance on behalf

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of Defendants DHA Group, Amerete Getu, David Hale, and Karen Fischer, but three days later

he filed a notice with the Court on the public docket clarifying his appearance on behalf of Karen

Fischer and specifying that he was entering only a “limited appearance” on her behalf. See ECF

No. [69], [70]. Consequently, contrary to Plaintiff’s characterization of the record, Defendant

Fischer never effectively entered a full appearance in court. In any event, “federal courts have

firmly established that a court appearance alone can never waive an otherwise valid Rule

12(b)(5) defense.” Candido v. District of Columbia, 242 F.R.D. 151, 162 (D.D.C. 2007).

Plaintiff also appears to argue that Defendant Fischer’s decision to simultaneously move the

Court to dismiss Plaintiff’s Complaint on its merits for failure to state a claim also waived

Plaintiff’s deficient service. However, the Federal Rules of Civil Procedure clearly allow a party

to make multiple Rule 12 defenses at the same time. See Fed. R. Civ. P. 12(g); see also Wilson

v. Prudential Financial, 332 F.Supp.2d 83, 89 (D.D.C. 2004) (rejecting plaintiff’s argument that

defendant waived its service-of-process defense by addressing both sufficiency of service and the

merits of the plaintiff’s claims within the same motion); Simpkins, 108 F.3d at 368 (stating that,

“a party choosing to file a Rule 12(b) motion must include all defenses and objections then

available to him that Rule 12 permits to be made by motion”) (quotations omitted).

In the alternative, Plaintiff asks the Court for ten days to re-serve Defendant Fischer in

the event that the Court finds, as it has, that Defendant Fischer did not waive Plaintiff’s defective

service of process. The Court is not inclined to grant Plaintiff this substantial extension of time

to serve Defendant Fischer. Plaintiff amended his Complaint to include Defendant Fischer three

months after the deadline for amending pleadings had passed. Plaintiff was given specific orders

by the Court to serve Defendant Fischer by October 8, 2013. Plaintiff has shown that he knows

how to effectuate process by successfully serving other defendants in this case in their individual

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capacity. Moreover, Mr. Blitz declares that he told the process server who served Mr. Blitz with

the Complaint directed at Defendant Fischer that he was not an agent for Defendant Fischer. See

Blitz Decl. ¶ 4. Plaintiff does not contradict this statement and thus was on notice as early as

September 30, 2013, that there was a defect in his service on Defendant Fischer yet did not make

an effort to correct this defect. Plaintiff was again put on notice when Defendant Fischer filed

her Motion to Dismiss for failure to serve on October 21, 2013, but Plaintiff still made no effort

to properly serve Defendant Fischer at that time. Now Plaintiff requests in his Opposition

pleading that the Court grant him an extension to serve Defendant Fischer, but Plaintiff has not

filed a separate motion requesting to reserve Defendant Fischer. This case has been pending

since July 2012 and discovery was to be completed by December 31, 2013. The original parties

in this case have complained of undue prejudice due to the additional time that would be required

to conduct discovery related to Plaintiff’s recently added allegations against Defendants Fischer

and Blitz. See Motion to Strike, ECF No. [59], at 5-6. The Court finds that granting Plaintiff an

additional extension at this late stage when Plaintiff previously had multiple opportunities to

correctly serve Defendant Fischer would prejudice the defendants by delaying this case even

further. Accordingly, the Court GRANTS Defendant Fischer’s Motion to Dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(5). However, as the Court finds that Plaintiff has also

failed to state a claim with regards to his tortious interference and civil conspiracy counts against

Defendant Fischer, the Court only dismisses without prejudice Plaintiff’s defamation claim

pursuant to Federal Rule of Civil Procedure 12(b)(5). For the reasons explained below, the

Court dismisses with prejudice Plaintiff’s tortious interference and civil conspiracy claims

pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.

B. Failure to State a Claim

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In the alternative, Defendant Fischer argues that Plaintiff’s three counts against her

should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a

claim upon which relief can be granted. At the outset, the Court notes that in his Opposition to

Defendant’s Motion to Dismiss, Plaintiff argues that Virginia law should govern the claims he

alleges against Defendant Fischer.3 Accordingly, the Court shall first consider the appropriate

law to apply in this case before turning to the viability of each of Plaintiff’s claims against

Defendant Fischer.

i. Choice of Law

When determining the applicable law in a diversity case, a federal court applies the

choice of law rules of the forum state. Bledsoe v. Crowley, 849 F.2d 639, 641 (D.C. Cir. 1988)

(citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). The District of

Columbia employs a “governmental interest analysis.” Id. In a torts case, “[t]his inquiry

includes consideration of the following factors from the Restatement (Second) of Conflict of

Laws § 145: (1) the place where the injury occurred, (2) the place where the conduct causing the

injury occurred, (3) the domicile, residence, nationality, place of incorporation and place of

business of the parties, and (4) the place where the relationship is centered.” Hartley v.

Dombrowski, 744 F.Supp.2d 328, 336 (D.D.C. 2010) (citing Jaffe v. Pallotta TeamWorks, 374

F.3d 1223, 1227 (D.C. Cir. 2004)). Generally, for tort claims the jurisdiction in which the injury

occurred has the most significant relationship. Restatement (Second) of Conflict of Laws § 156

3

The Court notes that this is the first time in this lengthy litigation, which has already

resulted in the publication of several opinions, that Plaintiff has argued that Virginia law should

apply in addressing Plaintiff’s claims. The parties have otherwise relied on District of Columbia

law and, in fact, Plaintiff continues to rely substantially on District of Columbia law in his

Opposition to Defendant Fischer’s Motion to Dismiss despite his argument for the applicability

of Virginia law.

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comment b (1971). The ultimate goal of a governmental interest analysis is to determine the

jurisdiction with “the most significant relationship” to the issue in dispute. Long v. Sears

Roebuck & Co., 877 F.Supp. 8, 11 (D.D.C. 1995). Finally, choice of law analysis is performed

for each issue adjudicated, therefore a different law can apply to different issues.4 Id.

Here, Plaintiff argues that Virginia law should apply to all of his claims against

Defendant Fischer because Defendant Fischer is employed by DHA Group in Virginia and,

therefore, “the events complained of must have occurred in Virginia.” Pl.’s Opp’n. at 5. The

Court finds, however, that the District of Columbia has the more significant relationship to the

allegedly unlawful conduct at issue and that the District’s policies would be most advanced by

having its laws applied to the facts of this case. Hartley, 744 F.Supp.2d at 336. Most

importantly, the injury caused by the alleged tortious interference with employment took place in

the District of Columbia. Plaintiff’s employment contract with which Defendant Fischer

allegedly interfered was with DHA Group whose principal place of business is in the District of

Columbia. See Second Am. Compl. ¶¶ 2, 11. Plaintiff was also employed at DHA Group’s

District of Columbia office and was employed at this location when his contract was terminated.

See Pl.’s Ex. C (Plaintiff Email to Getu). Although one could infer from Plaintiff’s Complaint

that the allegedly unlawful conduct—i.e. the sending of the defamatory email—took place in

Virginia since Defendant Fischer was employed at DHA Group’s Virginia office, Defendant

Fischer sent her email to Ms. Getu who was employed at DHA Group in the District of Columbia

4

As the law for defamation and civil conspiracy is effectively the same in Virginia and

the District of Columbia for the purposes of Plaintiff’s claims, the Court need not conduct a

choice of law analysis as to those specific claims. Owens v. Republic of Sudan, 826 F.Supp.2d

128, 154 (D.D.C. 2011) (under District of Columbia choice-of-law rules, “the court must first

determine whether a conflict exists between the law of the forum and the law of the alternative

jurisdiction” because “[i]f there is no true conflict, the court should apply the law of the forum.”

(citing USA Waste of Md., Inc. v. Love, 954 A.2d 1027, 1032 (D.C. 2008))).

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and thus Defendant Fischer’s allegedly tortious conduct extended into and was completed in the

District of Columbia. See Pl.’s Ex. E (5/17/12 Fischer Email to Getu). Given that the majority

of the relevant contacts in this case were with the District of Columbia, the Court finds that the

District of Columbia has a greater interest in applying the tort laws it has created to protect those

employed in the District. See Long, 877 F.Supp. at 12 (“The District of Columbia has an interest

in deterring tortious behavior occurring in the District, and that policy is advanced by applying

D.C. law.”).

ii. Tortious interference

To state a claim for tortious interference with employment rights in the District of

Columbia, a plaintiff must allege that:

(1) a legal contract existed; (2) the defendant had knowledge of the contract;

(3) the defendant intentionally procured the contract’s breach; and (4)

damages resulted from the defendant’s actions.

Terrell v. District of Columbia, 703 F.Supp.2d 17, 22-23 (D.D.C. 2010) (citing Cooke v.

Griffiths–Garcia Corp., 612 A.2d 1251, 1256 (D.C. 1992)). While Plaintiff had a legal contract

with DHA Group, Plaintiff attaches to his Complaint and “incorporates into [his] complaint as if

quoted verbatim” his offer letter from DHA Group which clearly states that Plaintiff was

employed “at-will” by DHA Group and that his employment relationship with DHA “shall at all

times be terminable at any time by you or DHA, with or without advance notice, and with or

without cause.” Second Am. Compl. ¶ 17; Ex. A. The law in the District of Columbia is that a

tortious interference claim cannot be predicated on an at-will employment relationship. See

Riggs v. Home Builders Institute, 203 F.Supp.2d 1, 23 (D.D.C. 2002) (“the highest court of the

District of Columbia decided authoritatively [in Bible Way Church v. Beards, 680 A.2d 419,

432-33 (D.C. 1996)] that under an at-will arrangement the prerequisite does not exist for the tort

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of interference with an employment relationship. A third party who interferes with such a

tenuous relationship is not liable to the employee since no wrongful breach of contract can result

from his interference.” (quoting Dale v. Thomason, 962 F.Supp. 181, 184 (D.D.C.1997))).

Accordingly, Plaintiff cannot, by law, sustain a claim of tortious interference with employment

against Defendant Fischer and the Court GRANTS Defendant’s Motion to Dismiss Count Seven.

iii. Civil Conspiracy to Defame

In order to survive a motion to dismiss for failure to state a claim of civil conspiracy

under District of Columbia law, a complaint must allege with some factual support: “ ‘(1) an

agreement between two or more persons; (2) to participate in an unlawful act, or in a lawful act

in an unlawful manner; and (3) an injury caused by an unlawful overt act performed by one of

the parties to the agreement (4) pursuant to, and in furtherance of, the common scheme.’ ”

Executive Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724, 738 (D.C. 2000) (citation

omitted). The question of whether a conspiracy theory has been adequately pled often turns

upon the existence of an agreement, which is the “essential element of a conspiracy claim,”

Graves v. United States, 961 F.Supp. 314, 320 (D.D.C. 1997). In pleading that a defendant

entered into an agreement the “plaintiff must set forth more than just conclusory allegations of

[the] agreement to sustain a claim of conspiracy against a motion to dismiss.” Brady v.

Livingood, 360 F.Supp.2d 94, 104 (D.D.C. 2004) (citing Graves, 961 F.Supp. at 321). In her

Motion to Dismiss, Defendant Fischer argues that Plaintiff has failed to sufficiently plead the

existence of an agreement between two or more persons and failed to sufficiently allege that the

underlying unlawful act—defamation—was committed. The Court agrees with Defendant

Fischer that Plaintiff’s civil conspiracy claim should be dismissed for failure to sufficiently plead

the existence of an agreement.

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Plaintiff’s Complaint, which is not a model of clarity, appears to allege that Defendant

Fischer was involved in two conspiracies, the first with her husband, David Fischer, for which

Plaintiff alleges that “Defendant Karen Fischer and David Fischer entered into an agreement to

commit an illegal act of defamation against Plaintiff,” Second Am. Compl. ¶ 120, and a second

or related conspiracy which “Defendant Karen and David Fischer,5 authorized, instigated,

condoned and/or participated in the conspiracy to commit the defamation of Plaintiff by

Defendants and Defendant Getu,” id. ¶ 123. In neither scenario has Plaintiff sufficiently alleged

that Defendant Fischer entered into an agreement to defame Plaintiff as Plaintiff’s “allegations

are “purely conclusory and devoid of any factual support.” Acosta Orellana v. CropLife Intern.,

711 F.Supp.2d 81, 113 (D.D.C. 2010) (finding plaintiff failed to sufficiently plead civil

conspiracy where plaintiff made conclusory allegations that defendants “acted in concert to

promote heavy usage of [a fungicide],” and “conspired to provide false and misleading

information . . . regarding the dangers of the chemical.”). In the first conspiracy scenario

Plaintiff alleges defendant entered into an agreement, but provides no “indication of when or

how such an agreement was brokered” to buttress this allegation. Id.; see also Bush v. Butler,

521 F.Supp.2d 63, 68-69 (D.D.C. 2007) (dismissing conspiracy claim where plaintiff’s allegation

of an agreement provided no description of the nature of the agreement, or what particular acts

were taken to form the conspiracy); McCreary v. Heath, 2005 WL 3276257, at *5 (D.D.C. Sept.

26, 2005) (dismissing conspiracy claim when plaintiff’s complaint failed “to allege the existence

of any events, conversations, or documents indicating that there was ever an agreement or

‘meeting of the minds’ between any of the defendants”).

5

David Fischer is not a Defendant in this matter. See Mem. Op. (Sept. 16, 2013), at 7-8

(denying Plaintiff leave to amend complaint to add claims against David Fischer).

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In the second conspiracy scenario Plaintiff appears to propose, it is unclear from

Plaintiff’s language if Plaintiff is even alleging that Defendant Fischer entered into an agreement

with “Defendants and Defendant Getu” to defame Plaintiff. See Second Am. Compl. ¶ 123

(“Defendant . . . authorized, instigated, condoned and/or participated in the conspiracy to commit

the defamation of Plaintiff by Defendants and Defendant Getu.”). Plaintiff’s only related factual

allegation is that “[o]n or about May 15, 2012, Defendant Amarete [sic] Getu coordinated with

defendant Karen Fisher [sic] at which time Defendant Fisher [sic] provided information . . . that

the [Plaintiff] was convicted of perjury.” Id. ¶ 34. But this vague allegation does not support a

reasonable inference that there was an agreement or even a “meeting of the minds” between the

parties to defame Plaintiff. As Plaintiff has failed to clearly allege that Defendant Fischer

entered an agreement to defame Plaintiff with any of the Defendants in the second conspiracy

scenario, and failed to sufficiently allege the facts of a conspiratorial agreement in the first

scenario, the Court GRANTS Defendant’s Motion to Dismiss Count Five, Plaintiff’s civil

conspiracy claim.

iv. Defamation

Finally, Defendant Fischer moves this Court to dismiss Plaintiff’s claim that Defendant

defamed Plaintiff by falsely alleging that Plaintiff had been convicted of perjury. Def.’s Mot. at

8-10. Defendant argues that Plaintiff’s defamation claim must fail because Plaintiff does not

allege “that the defendant’s fault in publishing the statement amounted to at least negligence,”

nor does Plaintiff allege sufficient facts to show that Defendant Fischer published the statement

to Ms. Getu “without privilege.” Id. The Court finds that both of Defendant’s arguments must

fail because Plaintiff’s Complaint alleges that Defendant Fischer published the defamatory

statement knowing that the statement was false. Specifically, in paragraph 47 of his Complaint,

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Plaintiff states: “On personal knowledge, the defendants knew that the Assault and Battery, and

Perjury conviction were incorrect; yet it was published to numerous individuals within DHA

Group.” Second Am. Compl. ¶ 47 (emphasis added). Later in the same paragraph, Plaintiff

explains to whom the allegations of assault and battery were published and then states: “Karen

Fisher [sic] communicated the false conviction for perjury to her husband David Fischer and then

to Amerete Getu, verbally, and in the form of an email on or about May 17, 2012.” Id.

Although Plaintiff’s reference to “the defendants’” is vague, the Court reads this allegation as

directly implicating Defendant Fischer’s knowledge because Defendant Fischer is the only

Defendant alleged to have published information about Plaintiff’s perjury conviction. In other

words, by saying the “defendants knew that the Assault and Battery, and Perjury conviction were

incorrect,” Plaintiff is necessarily talking about Defendant Fischer because she is the only

Defendant to have published anything regarding an alleged perjury conviction.6 This reading is

supported by the fact that Plaintiff talks specifically about Defendant Fischer in the same

paragraph after referencing “the defendants.” Accordingly, the Court finds that Plaintiff has

alleged that “defendant’s fault in publishing the statement amounted to at least negligence.”

Moreover, any qualified privilege defense that Defendant Fischer might be able to claim at this

stage is overcome by the fact that Plaintiff has alleged that Defendant Fischer published the

defamatory statement knowing it was false. See Hargrow v. Long, 760 F.Supp. 1, 2 (D.D.C.

1989) (“Once a communication is deemed privileged, the burden of proof to demonstrate malice

rests with the plaintiff . . . . To show malice, the plaintiff must show either that the statements

were made with knowing falsity, in bad faith, or with reckless disregard of the truth.” (citing

Alfred A. Altimont, Inc. v. Chatelain, Smaperton & Nolan, 374 A.2d 284, 290 (D.C. 1977))).

6

The report prepared by Mr. Blitz and attached to the termination letter prepared by Ms.

Getu only discusses perjury “charges.” See Pl.’s Exs. H & I.

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The Court thus DENIES Defendant’s Motion to Dismiss Count Six on the merits. However, as

explained supra, Plaintiff’s defamation claim is dismissed without prejudice pursuant to

Federal Rule of Civil Procedure 12(b)(5) in light of Plaintiff’s failure to properly serve

Defendant Fischer.

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s Tortious Interference (Count Seven) and Civil

Conspiracy (Count Five) claims against Defendant Fischer are DISMISSED WITH PREJUDICE

for failure to state a claim upon which relief may be granted. Plaintiff’s Defamation claim

(Count Six) against Defendant Fischer is DISMISSED WITHOUT PREJUDICE in light of

Plaintiff’s failure to properly serve Defendant Fischer. An appropriate Order accompanies this

Memorandum Opinion.

/s/

COLLEEN KOLLAR-KOTELLY

UNITED STATES DISTRICT JUDGE

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