                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 GENNARO MATTIACCIO II,

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

 DHA GROUP, INC., et al.,

    Defendants.


                                  MEMORANDUM OPINION
                                     (March 12, 2013)

        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 in connection with the Plaintiff’s

termination. Compl., ECF No. [1], ¶¶ 31-64. The Court granted the Defendants’ motion to

dismiss the Plaintiff’s claim for defamation without prejudice, and the Plaintiff filed an Amended

Complaint. Am. Compl., ECF No. [16]. Presently before the Court is the Plaintiff’s [20] Motion

for Temporary Restraining Order. In essence, the Plaintiff seeks an order barring the Defendants

from responding to a subpoena issued by a Virginia state court in connection with a custody

dispute involving the Plaintiff, or otherwise disclosing information regarding certain video files

purportedly recovered from the Plaintiff’s work laptop. Upon consideration of the pleadings,1

the relevant legal authorities, and the record as a whole, the Court finds temporary or preliminary

injunctive relief is not warranted on the present record. Accordingly, the Plaintiff’s motion is

DENIED.

        1
             Pl.’s Mot., ECF No. [20]; Defs.’ Opp’n, ECF No. [22]; Pl.’s Suppl. Mem., ECF No.
[23].
                                          I. BACKGROUND

       A.       Plaintiff’s Termination

       In relevant part, the Amended Complaint alleges that the Plaintiff was hired as the Lead

Proposal Manager for DHA Group in July 2011. Am. 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

Plaintiff took issue with, among other things, “[b]eing called at home after hours,” “[b]eing

called a liar routinely,” and “[b]eing told that despite the fact we are winning proposals it is not

because of me.” Am. Compl. Ex. D (5/3/12 Ltr Pl. to Def. Getu). The afternoon following the

second meeting, the Plaintiff alleges he was placed on indefinite administrative leave. Am.

Compl. ¶ 22.

       On May 30, 2012, DHA Group terminated the Plaintiff’s employment. Am. Compl. Ex.

E (5/30/12 Termination Ltr). The termination letter, signed by Defendant Getu, indicated that

although DHA asserted the right to terminate the Plaintiff without cause, “there [we]re several

motiving factors that contributed to this decision, in addition performance issues.” Id. at 1.

Specifically,

       In the attached Preliminary Investigation, and through basic research, it was
       revealed that you had and have been far less than candid with DHA with respect
       to important and relevant aspects of your background and experience. Given
       DHA’s client base, the nature of the information, the expectations of candor from
       you and your legal duties to DHA, it should be obvious to someone of your
       background why your lack of candor is extraordinarily troubling.

       In addition, there are certain inconsistencies with your resume and other data that
       you created that should have been revealed to DHA. Finally, and importantly,
       certain files and data found on the DHA laptop that you possessed is inappropriate
       and contrary to Company policy.

Id. The Plaintiff attached both the termination letter and the preliminary investigation report

                                                 2
referenced in the letter to both his original and amended complaints.

       The preliminary investigation report referenced in the termination letter (and attached as

an exhibit to the Amended Complaint) was addressed to Defendant Getu and dated May 29,

2012. Am. Compl. Ex. F (Preliminary Investigation Report).2 Though the report itself does not

identify its author(s), the Plaintiff implicitly alleges report was provided by a “third party”

engaged by DHA Group to conduct a post-employment background check on the Plaintiff. Am.

Compl. ¶ 23. Neither the Amended Complaint nor the Plaintiff’s pleadings in connection with

the present motion offer any additional information regarding the creation of the report, or what

additional information or materials were conveyed to human resources.

       The report discussed the results of public records searches, which revealed a total of three

misdemeanor convictions for (1) disorderly conduct; (2) assault and battery; and (3) misuse of

FBI seals. Am. Compl. Ex. F at 1-2. According to the report, the searches also revealed that the

Plaintiff had been “arrested/charged with criminal (non-traffic) offenses 11 times” in the state of

Virginia in the last ten years, and once by federal authorities. Id. at 1. Of the eleven charges,

three involved felonies, including two charges of perjury and one charge of embezzlement. Id.

       In terms of the Plaintiff’s resume, the report indicated that the resume submitted to DHA

during the application process indicated the Plaintiff was a “proposal manager” with the

Richmond Group International from 1992-2005.           Am. Compl. Ex. F at 2.         However, the

investigators recovered four different versions of the Plaintiff’s resume from his DHA-issued

laptop, each of which listed the Plaintiff “as Founder and CEO” of Richmond Group

International, but never “as ‘Proposal Manager’ or having a role consistent with being a proposal
       2
          Although not labeled as a separate exhibit in connection with the Amended Complaint,
for the sake of clarity the Court shall refer to the Preliminary Investigation Report as Exhibit F to
the Amended Complaint.

                                                 3
manager.” Id. Furthermore, although the resume submitted to DHA represented the Plaintiff

was the “director of business development and proposal manager” for Medical Credit Services,

Inc. from 2007-2010, none of the resumes recovered from the Plaintiff’s work laptop indicated

that “his title (or role) at that company was as a ‘proposal manager.’” Id. at 3.

        With respect to certain “inappropriate” files recovered from the Plaintiff’s DHA laptop,

the report stated that “there were numerous e-mails containing pornographic photos and videos”

recovered from the laptop. Am. Compl. Ex. F at 3. The report explained that many of the emails

were from an individual not employed by DHA Group, and that a number of the emails were

forwarded to an address within the domain registered to Richmond International Group, the

company owned by the Plaintiff. Id. Finally, the report noted that “[i]t is reported that at least

one of the videos depicted mid-teenage children inappropriately touching one another.” 3 Id.

        B.     Amended Complaint

        Following his termination, the Plaintiff filed suit alleging that the Defendants (1) violated

various provisions of the Fair Credit Reporting Act in conducting a post-employment

background check on the Plaintiff; and (2) defamed the Plaintiff. With respect to the defamation

claim, the Plaintiff alleges that two statements in the preliminary investigative report were false,

namely that the Plaintiff was convicted of assault and battery, and that the Plaintiff had a video

of mid-teenaged children inappropriately touching one another on his work laptop. Am. Compl.

¶ 49.   The Plaintiff asserts that the Defendants published the false statements insofar as

Defendant Getu distributed the termination letter and the report to the DHA Group management
        3
          The parties quibble regarding whether the video in question should be characterized as
child pornography. Regardless of whether the video can be legally classified as child
pornography, the relevant question is whether the statement in the preliminary investigative
report was defamatory. Therefore, the Court utilizes the language included in the report itself to
describe the video.

                                                 4
council “on or before May 30, 2012.” Id. The Plaintiff further alleges that the Defendants

“knew the statements to be false and acted intentionally in causing the report to be published,”

and that DHA Group “was negligent or acted recklessly in failing to determine whether the

statements contained in the report were true before publishing it.” Id. at ¶¶ 50-51. In the

Amended Complaint the Plaintiff does not identify why the statement regarding the video of

teenaged children was false, but in his Supplemental Memorandum the Plaintiff explains that the

characterization of the video in the report was false because “the images are not of children.”

Pl.’s Suppl. Mem. at 3. The Plaintiff does not dispute the statement that other pornographic files

were recovered from his DHA laptop.

       B.      State Court Litigation

       The impetus for the Plaintiff’s motion can be traced to a custody dispute involving the

Plaintiff’s son, currently pending in Orange County (Virginia) Juvenile and Domestic Relations

Court. See Pl.’s Ex. A (Subpoena Duces Tecum issued to DHA Grp.) at 1 (identifying case as In

re William Giovanni Waugh, No. JJ000833-03-00). On January 30, 2013, counsel for the mother

of the Plaintiff’s son issued a subpoena duces tecum to DHA Group requesting

       Any and all employment records of [the Plaintiff], including, but not limited to,
       any and all documentation regarding his dismissal/termination, all investigative
       reports concerning [the Plaintiff] and all documents and tangible things upon
       which such report is based, and any and all documents pertaining to the
       Complaint filed [in this case].

Id. at 1. The subpoena instructed DHA Group to respond by February 28, 2013. Id. The

Plaintiff moved to quash the subpoena in state court, and DHA Group moved to stay the deadline

to respond to the subpoena (or in the alternative, for a protective order) pending the court’s

ruling on the Plaintiff’s motion to quash. See Pl.’s Ex. C (3/4/13 Email B. Miller to Pl.). A

hearing on both motions is set for June 18, 2013. Id.

                                                5
       C.      Plaintiff’s Motion

       The Plaintiff filed his motion for a temporary restraining order on March 4, 2013, though

the Court did not receive notice of the motion until the evening of March 5, 2013. The Plaintiff’s

motion was ambiguous to say the least, and failed to sufficiently articulate what relief the

Plaintiff was seeking. The Court ordered the Defendants to file an opposition, which was timely

filed on March 6, 2013. See generally Defs.’ Opp’n, ECF No. [22]. The Court further ordered

the Plaintiff to file a supplement to his motion, identifying the basis for the Court’s jurisdiction

to bar the Defendants from responding to the state court subpoena, and clearly articulating the

scope of the requested injunction. See generally Pl.’s Suppl. Mem., ECF No. [23]. It now

appears that the Plaintiff is seeking an injunction to bar the Defendants from turning over the

investigative report and the video recovered from his DHA laptop in response to the state court

subpoena or to any other third party. Id. at 3.

                                    II. LEGAL STANDARD

       “The standard for issuance of the extraordinary and drastic remedy of a temporary

restraining order or a preliminary injunction is very high.” Tolson v. Stanton, 844 F. Supp. 2d

53, 56 (D.D.C. 2012) (citation omitted); see also Winter v. Natural Res. Def. Council, Inc., 555

U.S. 7, 21 (2008) (noting that a preliminary injunction is “an extraordinary remedy that may only

be awarded upon a clear showing that the plaintiff is entitled to such relief). “To prevail,” the

plaintiff must demonstrate “(1) a substantial likelihood of success on the merits, (2) that [he]

would suffer irreparable injury if the injunction is not granted, (3) that an injunction would not

substantially injure other interested parties, and (4) that the public interest would be furthered by

the injunction.” CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir.

1995) (citation omitted).

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       Historically, these four factors have been evaluated on a “sliding scale” in this Circuit,

such that a stronger showing on one factor could make up for a weaker showing on another. See

Davenport v. Int'l Bhd. of Teamsters, AFL–CIO, 166 F.3d 356, 360–61 (D.C. Cir. 1999).

Recently, the continued viability of that approach has been called into some doubt, as the United

States Court of Appeals for the District of Columbia Circuit has suggested, without holding, that

a likelihood of success on the merits is an independent, free-standing requirement for a

preliminary injunction. See Sherley v. Sebelius, 644 F.3d 388, 392–93 (D.C. Cir. 2011); Davis v.

PBGC, 571 F.3d 1288, 1292 (D.C. Cir. 2009). However, absent binding authority or clear

guidance from the Court of Appeals, the Court considers the most prudent course to bypass this

unresolved issue and proceed to explain why a temporary injunction is not appropriate under the

“sliding scale” framework.     If a plaintiff cannot meet the less demanding “sliding scale”

standard, then he cannot satisfy the more stringent standard alluded to by the Court of Appeals.

                                       III. DISCUSSION

       A.      Likelihood of Success on the Merits

       In order to succeed on his defamation claim, the Plaintiff must show:

       (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 Grp., 494 F.3d 1080, 1088 (D.C. Cir. 2007). The Plaintiff’s Motion and

Supplemental Memorandum only address the first element—whether the statement was false.

The Plaintiff contends that the statement in the report—that a video depicting mid-teenaged

children inappropriately touching one another was recovered from the Plaintiff’s work laptop—

was false because “the images are not of children.” Pl.’s Suppl. Mem. at 3. The Plaintiff urges
                                               7
the Court to conduct an in camera review of the video in question. Review of the video may

indicate whether or not the characterization of the content of the video in the report was accurate.

Nevertheless, the Court declines to conduct an in camera review because the Plaintiff failed to

set forth sufficient evidence to show he is likely to successfully prove the second and third

elements of a defamation claim: that the statement was published and that the Defendants acted

at least negligently in publishing the statement. The Plaintiff asserts in his Amended Complaint

that Defendant Getu published the report to the management council of DHA Group, but the

Plaintiff offers nothing more than this mere allegation in support of the present motion.

Furthermore, the Plaintiff fails to proffer any evidence regarding the creation of the report or the

circumstances under which it was transmitted to Defendant Getu.               Absent such contextual

evidence, the Court cannot find that the Plaintiff is likely to succeed in proving any publication

of the report was negligent. On this record, the Court cannot say that the Plaintiff is likely to

succeed on his defamation claim, therefore the first factor weighs against granting the Plaintiff

temporary injunctive relief.

        B.      Irreparable Injury

        In addition to a likelihood of success on the merits, the Plaintiff bears the burden of

“demonstrat[ing] that irreparable injury is likely in the absence of an injunction,” and not a mere

possibility. Winter, 555 U.S. at 22 (emphasis in original). The injury identified must “be both

certain and great; it must be actual and not theoretical.” Wisconsin Gas Co. v. FERC, 758 F.2d

669, 674 (D.C. Cir. 1985). The Plaintiff’s claim of irreparable injury in this case fails because

the Plaintiff failed to show that (1) he will suffer irreparable injury if the report or video at issue

are disclosed to third parties; or (2) that such injury is likely to occur.



                                                    8
               1.      Injury to the Plaintiff4

        First, it far from certain that the Plaintiff would suffer any injury if the Defendants were

to disclose the report to a third party, be it in response to the state court subpoena or otherwise.

The report containing the allegedly defamatory statement is now a matter of public record

because the Plaintiff attached the report to his Complaint and Amended Complaint. The report

is available for any member of the public to view and download. Moreover, it is not as if the

report is on the Internet but not readily accessible to a person seeking information regarding the

Plaintiff. Through its inclusion on the docket in this case, the report is specifically associated

with the Plaintiff and his employment with DHA Group, and easily accessed through the Court’s

electronic docket. The Plaintiff cannot claim that disclosing the report to a third party will cause

irreparable damage at the point any person with access to the Internet can review the report at

will.

        Second, the Plaintiff failed to show he is likely to suffer irreparable injury if the

Defendants disclose the video file at issue to third parties. The Plaintiff contends that “[t]here

can be no doubt of the irreparable harm to the plaintiff in a state court custody/visitation hearing

if false allegations of this nature are released.” Pl.’s Suppl. Mem. at 3. However, if, as the

Plaintiff alleges, the video does not depict children, then there is no risk of harm to the Plaintiff.

If the video does depict mid-teenaged children inappropriately touching one another as the report

suggests, then the statement was not defamatory and the Plaintiff cannot satisfy the requirements

for injunctive relief. Moreover, the state court judge is certainly capable of conducting his/her
        4
           The Plaintiff notes in his Supplemental Memorandum that “[t]he Supreme Court has
long held that injuries involving the deprivation of First Amendment rights are per se
irreparable.” Pl.’s Suppl. Mem. at 4. The Plaintiff utterly fails to articulate how his First
Amendment interests are harmed by the Defendants’ disclosure of the report and/or video to
third parties.

                                                  9
own review of the video in order to determine what relevance, if any, the video has to the state

court proceedings.

               2.      Likelihood of Injury

       Assuming the Plaintiff could identify some injury that might arise if the Defendants were

to disclose the report or video to a third party, at this point in time that risk of injury is entirely

theoretical, both in terms of the state court proceedings and any disclosure to other third parties.

The state court set a hearing on the Plaintiff’s motion to quash for June 18, 2013. Until the court

rules on that motion, or otherwise orders the Defendants to comply with the subpoena, any risk

of injury to the Plaintiff that might arise from the Defendants’ compliance with the subpoena is

entirely speculative. Moreover, this Court does not have jurisdiction to quash the subpoena

issued in connection with the Virginia state case. See Houston Business Journal, Inc. v. Office of

Comptroller of Currency, U.S. Dep’t of Treasury, 86 F.3d 1208, 1212-1213 (D.C. Cir. 1996).

       Apart from the subpoena, the Plaintiff argues that “irreparable harm would result not only

in the state court action but in other unrelated matters such as employment reference checks, and

security clearances to name a few.” Pl.’s Suppl. Mem. at 3. However, the Plaintiff fails to allege

that he is applying for employment, seeking a security clearance, or engaged in any other

conduct that would require the Defendants to disclose the report or video at issue. Moreover, the

Defendants have not indicated any intent to disclose the report or video to any third party at this

time. Ultimately, the Plaintiff has failed to identify any irreparable injury that might occur, and

the risk of any such injury remains theoretical rather than certain. Therefore, the second factor

weighs against granting the Plaintiff’s motion.

       C.      Substantial Injury to Interested Parties and Public Interest

       With limited (at best) evidence of any risk of irreparable injury to the Plaintiff, the

                                                  10
balance of the private interests is in equipoise. The Plaintiff contends that the public interest is

best served by granting an injunction because “[a]n injunction will serve the public interest by

eliminating false statements against employees who formally complain to company management

and government agencies about their misconduct.” This argument is entirely dependent on the

Plaintiff’s likelihood of success on the merits. As set forth above, on the present sparse record,

the Court finds the Plaintiff failed to show he is likely to succeed on the merits of his claim that

the Defendants defamed him. Accordingly, the Court finds the remaining factors relevant to

temporary injunctive relief, namely injury to interested parties and the public interest weigh

neither in favor of nor against granting the requested relief.

                                       IV. CONCLUSION

       Considering the record as a whole, the Court finds that the Plaintiff has failed to make a

clear showing that he is entitled to the extraordinary relief of a temporary restraining order. The

Plaintiff failed to show he is likely to succeed on his claim for defamation. Moreover, the

Plaintiff has neither identified any irreparable injury that may arise from the disclosure of report

or video at issue, nor shown that such injury is certain to occur. Both of these factors weigh

heavily against granting the Plaintiff injunctive relief. Finally, the risk of substantial injury to

private parties and public interest are at best in equipoise. Accordingly, the Plaintiff’s [20]

Motion for Temporary Restraining Order is DENIED on the present record.

       An appropriate Order accompanies this Memorandum Opinion.



                                                            /s/
                                                       COLLEEN KOLLAR-KOTELLY
                                                       UNITED STATES DISTRICT JUDGE



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