United States District Court, D. Nevada
GEORGE FOLEY, Jr., Magistrate Judge.
This matter is before the Court on Defendants' Motion for Leave to File Notice of Removal Exhibit A Under Seal (#3), filed on June 18, 2014. Plaintiff filed her Opposition to Defendants' Motion (#8) on June 19, 2014. Defendants filed their Reply (#19) on June 30, 2014. The Court conducted a hearing in this matter on July 7, 2014.
Plaintiff, using the fictitious name "Jane Doe, " filed her civil complaint against Defendants in the District Court, Clark County, Nevada on May 19, 2014. The complaint is 51 pages long. The "Factual Allegations" consist of 75 separate paragraphs. In addition, 25 exhibits (totaling 84 pages) are attached to the complaint. These exhibits consist of printed emails, text messages and photographs. The complaint alleges causes of action for sexual battery, battery, assault, false imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress, violation of a foreign state's law prohibiting premarital co-habitation, negligence per se, fraudulent misrepresentation, conversion, and breach of contract. These claims arise out of an allegedly abusive personal/romantic relationship between Plaintiff who is resident of Clark County, Nevada and the principal individual defendant who is a citizen of a foreign nation. The "Factual Allegations, " together with the attached exhibits, set forth in detail the allegedly abusive and, in some instances, allegedly criminal conduct of the principle defendant. Many of the alleged acts or incidents occurred in countries other than the United States.
Defendants, who have not yet been served with the complaint, removed this action to the United States District Court for the District of Nevada on June 18, 2014. Removal is based on federal jurisdiction pursuant to diversity of citizenship between Plaintiff and Defendants. See Notice of Removal (#1). In their instant motion, Defendants seek leave to file a copy of Plaintiff's complaint under seal as an exhibit to their notice of removal and request that the complaint remain sealed pending further order of the Court. Defendants state that if and when they are served with the summons and complaint, they will move for dismissal of the complaint based on lack of personal jurisdiction over them in the District of Nevada, or in any other jurisdiction in the United States.
The first issue before the Court is the legal standard to be applied in determining whether the complaint should be sealed. As stated in Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006), "[h]istorically, courts have recognized a general right to inspect and copy public records and documents, including judicial records and documents.' Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 & n. 7, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). This right is justified by the interest of citizens in keep[ing] a watchful eye on the workings of public agencies.' Id. at 598, 98 S.Ct. 1306." Only a narrow range of judicial records have been held to be not subject to the presumptive right of public access at all because the records have traditionally been kept secret for important policy reasons. The only recognized categories of documents falling within this narrow range are grand jury transcripts and warrant materials in the midst of a pre-indictment investigation. Kamakana, 447 F.3d at 1178. The court further stated:
Unless a particular court record is one "traditionally kept secret, " a "strong presumption in favor of access" is the starting point. Foltz, 331 F.3d at 1135 (citing Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir.1995)). A party seeking to seal a judicial record then bears the burden of overcoming this strong presumption by meeting the "compelling reasons" standard. Foltz, 331 F.3d at 1135. That is, the party must "articulate compelling reasons supported by specific factual findings, " id. (citing San Jose Mercury News, Inc. v. U.S. Dist. Ct., 187 F.3d 1096, 1102-03 (9th Cir.1999)), that outweigh the general history of access and the public policies favoring disclosure, such as the "public interest in understanding the judicial process.'" Hagestad, 49 F.3d at 1434 (quoting EEOC v. Erection Co., 900 F.2d 168, 170 (9th Cir.1990)). In turn, the court must "conscientiously balance  the competing interests" of the public and the party who seeks to keep certain judicial records secret. Foltz, 331 F.3d at 1135. After considering these interests, if the court decides to seal certain judicial records, it must "base its decision on a compelling reason and articulate the factual basis for its ruling, without relying on hypothesis or conjecture." Hagestad, 49 F.3d at 1434 (citing Valley Broadcasting Co. v. U.S. Dist. Ct., 798 F.2d 1289, 1295 (9th Cir.1986)).
In general, "compelling reasons" sufficient to outweigh the public's interest in disclosure and justify sealing court records exist when such "court files might have become a vehicle for improper purposes, " such as the use of records to gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets. Nixon, 435 U.S. at 598, 98 S.Ct. 1306; accord Valley Broadcasting Co., 798 F.2d at 1294. The mere fact that the production of records may lead to a litigant's embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records. Foltz, 331 F.3d at 1136.
Kamakana, 447 F.3d 1178-79.
The "compelling reasons" standard "applies fully to dispositive pleadings, including motions for summary judgment and related attachments." Kamakana, 447 F.3d at 1179. The court has, however, carved out an exception to the compelling reasons standard for documents attached as exhibits to a non-dispositive motion. The party seeking to seal documents attached to a nondispositive motion must satisfy a lower "good cause" standard. Id., at 1179-80. The same good cause standard applies to requests to seal those portions of a non-dispositive motion that contain information that is confidential or otherwise privileged.
The decision in Kamakana was based on the common law right of public access to judicial records. The Ninth Circuit has also recently held that the news media and the public have a qualified First Amendment right of access to judicial records in civil actions. Courthouse News Service v. Planet, 756 F.3d 776 (9th Cir. 2014). The plaintiff in Courthouse News Service published daily reports for its subscribers about civil litigation, including summaries of newly filed civil complaints. The plaintiff sued a California Superior Court clerk for allegedly violating the First Amendment by denying plaintiff same day access to newly filed civil complaints. The district court abstained from hearing the suit pursuant to Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, (1941) and O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669 (1941). In reversing, the Ninth Circuit noted that abstention under Pullman and O'Shea is rarely granted in cases raising First Amendment issues. The court stated that although the Supreme Court originally recognized the First Amendment right of public access in the context of criminal trials, "federal courts of appeal have widely agreed that it extends to civil proceedings and associated records and documents." Courthouse News Service, 750 F.3d at 786, citing N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 305 (2d Cir. 2011); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1061 (3d Cir. 1984); In re Cont'l Ill. Sec. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984); and Brown & Williamson Tobacco Corp. v. Fed. Trade Comm'n, 710 F.2d 1165, 1177 (6th Cir. 1983). In holding that plaintiff had asserted a viable claim for violation of the First Amendment, the court stated;
CNS's First Amendment right of access claim falls within the general rule against abstaining under Pullman in First Amendment cases. CNS's right of access claim implicates the same fundamental First Amendment interests as a free expression claim, and it equally commands the respect and attention of the federal courts.
We join the Second Circuit in reaching this conclusion. In Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 100 (2d Cir. 2004), Connecticut newspapers challenged the state court system's longstanding practice of sealing docket sheets in certain civil cases, sometimes in the absence of any court order so requiring. Id. at 86-89. The Second Circuit held that the press and the public had a qualified First Amendment right of access to the docket sheets, reasoning that "docket sheets provide a kind of index to judicial proceedings ...