COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.
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
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,
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 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.
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.
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, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999) (citing Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (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, 66 S.Ct. 242, 90 L.Ed. 185 (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 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).
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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 127 S.Ct. 1955. "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, 129 S.Ct. 1937. 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).
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 of Defendants DHA Group, Amerete
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 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
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.
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, 61 S.Ct. 1020, 85 L.Ed. 1477 (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 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.
Here, Plaintiff argues that Virginia law should apply to all of his claims against Defendant Fischer because Defendant
To state a claim for tortious interference with employment rights in the District of Columbia, a plaintiff must allege that:
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 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
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.
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,
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, 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.
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.