UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 12-1249 (CKK) 

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]. 

GENNARO MATTIACCIO II, 

 Plaintiff, 

 v. 

DHA GROUP, INC., et al., 

 Defendants. 
2 

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. 
3 

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 
5 

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.