1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 12-1249 (CKK) 

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 

GENNARO MATTIACCIO II

 Plaintiff, 

 v. 

DHA GROUP, INC., et al., 

 Defendants. 
2 

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). 

 1

 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. 
3 

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 postemployment 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 
4 

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 
5 

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 
6 

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 
8 

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 
9 

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. 
10 

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))). 
11 

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 
12 

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. 
13 

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). 
14 

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, 
15 

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. 
16 

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