United States District Court, S.D. Florida
ORDER DENYING PLAINTIFF'S MOTION TO PROCEED
L. ROSENBERG UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's Motion to
Proceed Anonymously. Mot., DE 23. The Motion is fully
briefed. See Resp., DE 26; Reply, DE 27.
class action complaint, filed pursuant to 42 U.S.C. §
1983, Plaintiff “John Doe” claims that the
Defendant City violated his Fourth Amendment rights by
installing video equipment in a massage parlor and recording
the activities within that massage parlor “on a 24/7
basis” for a period of 60 days. Am. Compl., DE 24
¶ 17. “Defendant, City of Vero Beach, through its
police department, violated John Doe's constitutional
rights by surreptitiously videotaping him while in a state of
undress in a licensed massage parlor.” Id.
¶ 6. As a result of the video recordings, Plaintiff was
“actually charged with crimes of solicitation of
prostitution…[and] subject[ed] to public
humiliation.” See Id. ¶¶ 20-21.
Through his Motion, Plaintiff seeks the Court's leave to
proceed anonymously, under the pseudonym John Doe.
Plaintiff's second attempt to seek the Court's leave
to proceed anonymously. Plaintiff previously sought anonymity
by incorporating a motion to proceed anonymously in his
Response to the Defendant's Motion to Dismiss.
See Mot. to Dismiss, DE 3; Resp. & Mot. to
Proceed Anonymously, DE 13, 3-4. In the Court's Order
Granting Defendant's Motion to Dismiss, DE 21, the Court
also denied Plaintiff's request to proceed anonymously.
However, Plaintiff was granted leave to amend his complaint
and to file a renewed motion to proceed anonymously:
Plaintiff may file his amended complaint pseudonymously,
provided that he contemporaneously files a motion for leave
to proceed anonymously. The basis for Plaintiff's request
to proceed anonymously must be set forth with specificity in
both the Amended Complaint and his Motion for Leave to
Proceed Anonymously, which must set forth specific details
about the risks this case poses to Plaintiff and relevant
legal support for his request.
Id. at 8.
Rule of Civil Procedure 10(a) requires that “every
pleading” in federal court “must name all the
parties.” Fed.R.Civ.P. 10(a). “This rule serves
more than administrative convenience. It protects the
public's legitimate interest in knowing all of the facts
involved, including the identities of the parties.”
Plaintiff B. v. Francis, 631 F.3d 1310, 1315 (11th
Cir. 2011) (quoting Doe v. Frank, 951 F.2d 320, 323
(11th Cir. 1992)). “This creates a strong presumption
in favor of parties' proceeding in their own names.
Defendants have the right to know who their accusers are, as
they may be subject to embarrassment or fundamental
unfairness if they do not.” Id. “The
ultimate test for permitting a plaintiff to proceed
anonymously is whether the plaintiff has a substantial
privacy right which outweighs the customary and
constitutionally-embedded presumption of openness in judicial
proceedings.” Roe v. Aware Woman Ctr. for Choice,
Inc., 253 F.3d 678, 685 (11th Cir. 2001).
rule is not absolute, and a party may proceed anonymously, by
showing that he “has a substantial privacy right which
outweighs the customary and constitutionally-embedded
presumption of openness in judicial proceedings.”
Id. at 1315-16 (quotation marks omitted). The
Eleventh Circuit has elucidated several factors to be
considered in this evaluation:
(1) whether plaintiffs seeking anonymity are challenging
governmental activity; (2) whether they will be required to
disclose information of the utmost intimacy; (3) whether
plaintiffs will be compelled to admit their intention to
engage in illegal conduct and thus risk criminal prosecution;
(4) whether the plaintiffs were minors; (5) whether they were
threatened with violence or physical harm by proceeding in
their own names and; (6) whether their anonymity posed a
unique threat of fundamental unfairness to the defendant.
Frank, 951 F.2d 320, 323 (per curium) (affirming the
District Court's denial of a plaintiff's anonymity in
an employment discrimination case in which the plaintiff
claimed he was discriminated against on the basis of a
physical handicap, his alcoholism). The factors receive
considerable weight but are not exclusive; a court should
review all circumstances in a given case and “then
decide whether the customary practice of disclosing the
plaintiff's identity should yield to the plaintiff's
privacy concerns.” Id. See also Doe v.
Swearingen, 2019 WL 95548 at *2 (S.D. Fla. Jan. 3, 2019)
(“Overall, proceeding anonymously is an exceptional
circumstance, as there is a heavy presumption favoring
openness and transparency in judicial proceedings.”)
the Frank factors to this case, the third and sixth
factors are not at issue here. Plaintiff is not a minor. And,
Plaintiff has not argued that there is a unique threat of
fundamental unfairness to him in this case.
relation to the first factor, challenging governmental
activity, Defendant concedes that this is a case challenging
governmental activity. Resp., DE 26, 5. However, the Eleventh
Circuit has indicated that this factor alone is not
particularly persuasive, let alone dispositive. See
Frank, 951 F.2d at 323-24 (“[O]ur prior case law] does
not stand, … for the proposition that there is more
reason to grant a plaintiff's request for anonymity if
the plaintiff is suing the government.”). Under the
circumstances of this case, the Court finds that this factor
does not weigh in favor of anonymity.
the second factor, disclosure of information of the utmost
intimacy, Plaintiff alleges that he must proceed anonymously
because of his “substantial” privacy rights at
issue in this case.
DE 23, 3. Doe goes on to quote Frank for the
proposition that “social stigma attached the
plaintiff's disclosure [of his identity] was …
enough to overcome the presumption of openness in court
proceedings.” See id.; see also
Frank, 951 F.2d at 324 (discussing disclosure of mental
illness, homosexuality in the 1970's, and transsexuality
in the 1980's). The Court acknowledges that the
circumstances of this case and Plaintiff's criminal
prosecution are likely embarrassing for Plaintiff, but that
is insufficient. The Frank court explicitly stated
that “some personal embarrassment, standing alone, does
not require the granting of his request to proceed under a
pseudonym.” 951 F.2d at 324 (denying plaintiff
permission to proceed under a pseudonym sought due to his
alcoholism). See also Raiser v. Brigham Young
University, 127 Fed.Appx. 409, 411 (10th Cir. 2005)
(denying a motion to proceed anonymously where plaintiff gave
no further basis for his request beyond “harmful and
prejudicial information might be made public and might harm
his reputation”); ...