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Doe v. Ocean Reef Community Association

United States District Court, S.D. Florida, Miami Division

October 10, 2019

JANE DOE, Plaintiff,



         THIS CAUSE came before the Court upon the Plaintiffs Cross-Motion to Proceed Anonymously (D.E. 28), filed on September 13, 2019.

         THE COURT has considered the Cross-Motion, the Response, oral argument, the pertinent portions of the record, and is otherwise fully advised in the premises.


         In this lawsuit, Plaintiff Jane Doe asserts three causes of action against Defendant David Ritz for sexual assault, battery, and intentional infliction of emotional distress. The thrust of Jane Doe's Complaint is that Ritz sexually harassed her by demanding that she engage in certain sexual acts with him, by retaining electronic copies of certain sexually explicit photos and videos that Ritz took of her, and by making unwelcome and public sexual advances on her during work hours. Ritz filed a Motion to Dismiss the Complaint on grounds that Jane Doe is improperly litigating anonymously, and without leave from the Court to do so. Buried in her Opposition to the Motion to Dismiss, Jane Doe filed a Cross-Motion (D.E. 28) for permission to proceed anonymously. For the reasons below, Jane Doe's Cross-Motion is DENIED. Accordingly, the Complaint is DISMISSED WITHOUT PREJUDICE for failure to comply with Federal Rule of Civil Procedure 10(a). Jane Doe may, however, file an Amended Complaint no later than Tuesday, November 12, 2019, which complies with Rule 10(a).[1]


         Federal Rule of Civil Procedure 10(a) provides that "[e]very 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." Doe v. Frank, 951 F.2d 320, 322 (11th Cir. 1992) (per curiam) (citations omitted). "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.'" Id. at 323 (citing Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981)). While the rule is not absolute, "[i]t is the exceptional case in which a plaintiff may proceed under a fictitious name." 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.") (citing Frank, 951 F.2d at 324).

         Jane Doe invites the Court to follow the Eleventh Circuit's decision in Plaintiff B v. Francis, 631 F.3d 1310 (11th Cir. 2011). There, the Eleventh Circuit explained that the first step in analyzing a plaintiffs claim of a substantial privacy right is to look at the three factors analyzed in S. Methodist Univ. Ass 'n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir. 1979): "First, are the plaintiffs seeking anonymity challenging governmental activity? Second, will they be required to disclose information of the utmost intimacy? Third, will the plaintiffs be compelled to admit their intention to engage in illegal conduct and thus risk criminal prosecution?" See 631 F.3d at 1316. As in Francis, the only relevant consideration of the three-part SMU test here is the second question: would denying the Plaintiff anonymity at trial require her to disclose information of utmost intimacy? Id.

         The Eleventh Circuit went on to recognize that the "information of utmost intimacy" standard applies to cases with issues involving abortion, prayer, and personal religious beliefs. Id. (citing Roe v. Aware Woman Center for Choice, Inc. , 253 F.3d 678, 685 (11th Cir. 2001); Stegall, 653 F.2d at 186). None of these issues are implicated in this case, and as the Eleventh Circuit further explained, "[o]n the other hand, courts have often denied the protection of anonymity in cases where plaintiffs allege sexual assault, even when revealing the plaintiffs identity may cause her to 'suffer some personal embarrassment.'" Id. (citing Frank, 951 F.2d at 324; Doe v. Del Rio, 241 F.R.D. 154, 159-62 (S.D.N.Y. 2006) (holding that plaintiffs alleging sexual abuse by police officer could not proceed anonymously); Doe v. Shakur, 164 F.R.D. 359, 360-62 (S.D.N.Y. 1996) (denying motion by plaintiff suing hip-hop artist for brutal sexual assault requesting to remain anonymous)).

         Here, Jane Doe asserts sexual assault, battery, and intentional infliction of emotional distress claims against Ritz. Furthermore, as set forth in the Complaint, Jane Doe asks to proceed anonymously "to protect her privacy because she is a child victim of sexual abuse and because she fears further psychological injury to herself and her family if her name were publicly disclosed, as this lawsuit deals with the most intimate, painful, and humiliating events in her life." (D.E. 1 at ¶ 1.) While the Court is sympathetic to Jane Doe's concerns and privacy interests, the potential of suffering "some personal embarrassment" alone is not sufficient to warrant an exception to "the 'customary and constitutionally-embedded presumption of openness in judicial proceedings.'" Frank, 951 F.2d at 323-24.

         Furthermore, factually, this case is not like A. W. v. Tuscaloosa City Sch. Bd. of Educ, 744 Fed.Appx. 668 (11th Cir. 2018), which Jane Doe provided to the Court in a Notice of Supplemental Authority on the morning of the October 10 hearing regarding this issue. (See D.E. 43, 43-1.) There, the plaintiff (identified as A.W. in the complaint) alleged violations of her constitutional rights, and violations of federal and state law, for a rape she suffered at a middle school by a male student when she was fourteen years old. A. W., 744 Fed.Appx. at 669.[2] While the facts of A. W. might have raised a closer question on the permissibility of proceeding anonymously, here, none of Jane Doe's causes of action are inextricably linked to a rape, let alone involving a minor.[3]

         Now, the Eleventh Circuit in Francis also explained that the three-part SMU test is only the first step in evaluating whether to let a plaintiff proceed to trial anonymously. Francis, 631 F.3d at 1316. Indeed, courts have considered other contexts when analyzing all the circumstances of a given case, including factors such as whether the plaintiff is a minor, whether they were threatened with violence or physical harm by proceeding in their own names, and whether their anonymity posed a unique threat of fundamental unfairness to the defendant. See Id. (citing Stegall, 653 F.2d at 186; SMU, 599 F.2d at 713).

         Here, the first additional factor is irrelevant because, as counsel for Jane Doe made clear during the hearing, Jane Doe was not a minor at the time of the alleged incidents giving rise to her legal claims; nor was she a minor when the Complaint was filed. Furthermore, the Court finds that the second and third additional factors cut against one another. As to the third factor, any claim by the Defendants that Jane Doe's "anonymity pose[s] a unique threat of fundamental unfairness" is significantly diminished because, as counsel for Jane Doe also acknowledged at the hearing, "[o]bviously, the defendant knows who the plaintiff is. They know who the plaintiff is." But at the same time, this fact also cuts against Jane Doe's additional claim that she was threatened with violence or physical harm. Notwithstanding that this assertion was raised in a supplemental declaration by John Doe[4] that was filed only a few hours before the hearing, and only after the issue was fully briefed in writing, the Court will take the declaration into consideration.

         John Doe's declaration asserts that an employee of the Ocean Reef entities made a phone call to him and his wife, stating that Jane Doe "was in grave danger for going after powerful, influential people" and that "this business with the ex-boyfriend was going to end badly." (D.E. 44-1 at ¶ 5.) The declaration further asserts that the caller stated he knew that Jane Doe "was all alone in her trailer in Key Largo," and concluded the call by telling John Doe that "whatever happens from now on, remember this call." Id. at ΒΆΒΆ 5-6. Notably, the declaration asserts this call was made on June 8, ...

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