United States District Court, D. Nevada
GEORGE FOLEY, Jr., Magistrate Judge.
This matter is before the Court on Plaintiff's Motion to Proceed Anonymously (#31), filed on July 23, 2014. Defendants filed their Opposition to the Motion to Proceed Anonymously (#32) on July 30, 2014. Plaintiff's Reply (#47) was filed July 30, 2014. Also before the Court is the Plaintiff's Motion to Unseal Complaint (#52), filed on August 25, 2014. Defendants filed their Opposition to Plaintiff's Motion to Unseal Complaint (#55) on September 3, 2014. Plaintiff's Reply (#57) was filed on September 10, 2014.
The Court incorporates the background set forth in Order (#30), filed on July 18, 2014. As set forth in that order, the Court partially granted Defendants' motion to seal the complaint subject to reconsideration by the Court. At the time the order was entered, Plaintiff had not yet served the complaint on Defendants and it appeared possible that the complaint might never be served. The Court stated that the complaint would remain sealed until "this action proceeds further in the litigation process, " at which time "the balance will shift in favor of full public access to the factual details of the complaint." Order (#30), pg. 13: 2-3. The complaint has since been served, or arguably served, on the Defendants. On August 15, 2014, Defendants JBF RAK, LLC and Cheerag B. Arya filed a motion to dismiss and to strike improper pleadings. Defendants argue that the complaint should be dismissed on the following grounds: (1) lack of personal jurisdiction over the Defendants in this forum, (2) dismissal pursuant to the doctrine of forum non conveniens, (3) lack of proper service on Defendants under federal and United Arab Emirates (UAE) law, and (4) failure to state a claim on which relief can be granted under U.S. or foreign law. Motion to Dismiss and Strike Improper Pleadings (#50, #51). Defendants' motion has been fully briefed and is awaiting decision by the District Judge.
The complaint alleges that Plaintiff and the principal individual Defendant entered into a personal relationship by telephone, text messages and email in November 2012 which continued in that manner until late January 2013 when they met in person in Las Vegas for the first time. Plaintiff alleges that during a meeting on January 25, 2013, Defendant became intoxicated and conducted himself in an inappropriate manner. Plaintiff does not allege that Defendant committed any physical or sexual assault against her during that encounter. Complaint, ¶¶ 11-12. Defendant thereafter provided Plaintiff with expensive gifts, including expensive jewelry, watches and handbags. He also allegedly promised to purchase luxury automobiles for the Plaintiff. ¶¶ 14, 17-19. During a subsequent meeting with Plaintiff in Switzerland in March 2013, the Defendant again became intoxicated, was verbally abusive to the Plaintiff and demanded and obtained the return of expensive items he had given her. ¶ 20. Defendant thereafter apologized for his conduct and gave additional expensive gifts to Plaintiff. ¶ 23-25. Plaintiff alleges that during a private airplane trip with Defendant in April 2013, he again became intoxicated and behaved in an inappropriate manner. Plaintiff does not allege that Defendant was verbally or physically abusive to her during this trip. ¶ 27.
Plaintiff alleges that on or about July 11, 2013 while she was in India with the Defendant, he physically attacked her and caused bruising and injury to her. ¶ 40. Plaintiff alleges that she subsequently engaged in communications with Defendant's relatives and associates who advised her that Defendant was attempting to control his behavior and asked her to give him another chance. ¶¶ 41-46. Plaintiff alleges that on August 2, 2013, Defendant again became intoxicated, physically forced Plaintiff to leave their joint hotel room and stated that he wanted "20 men to rape" her. ¶ 47. After further communications with Defendant and receiving additional gifts from him, Plaintiff alleges that she traveled to Dubai to meet with Defendant in September 2013. ¶¶ 48-50. During this visit, she signed a contract of employment with Defendant. ¶ 52. Defendant, however, again engaged in excessive alcohol consumption and Plaintiff was forced to leave. ¶ 54. This incident was also followed by further apologies from the Defendant, promises to correct his behavior and additional expensive gifts or promises of expensive gifts. ¶¶ 56-62.
Plaintiff alleges that she traveled to Dubai in November 2013 to meet with Defendant. Plaintiff alleges that while riding in the backseat of a Bentley automobile with Defendant in Dubai, he strangled and choked her. ¶ 65. The pattern of apologies, gifts and promises to reform was again repeated. ¶¶ 67-71. Plaintiff returned to Dubai in late January 2014. Plaintiff alleges that on January 30, 2014, Defendant entered her separate bedroom without warning and physically attacked and attempted to sexually assault her. ¶ 73. Plaintiff alleges that as a result of Defendant's conduct, she suffered physical pain and mental anguish, including a diagnosis of P.T.S.D. (posttraumatic stress disorder). ¶¶ 93-94. Plaintiff seeks to recover damages for her allegedly physical and mental injuries. She also seeks to recover the gifts or value of the gifts that Defendant either promised her or which he forced her to return.
The parties' positions on Plaintiff's motions to proceed anonymously and to unseal the complaint are mirror opposites. Plaintiff wants to unseal the complaint in its entirety on the grounds that the public is entitled know the full nature and extent of her allegations against Defendants. She desires to proceed anonymously, however, to avoid the humiliation and trauma that she will allegedly suffer if her true identity is publicly disclosed. Defendants argue that Plaintiff should be required to litigate under her true name. They argue that it is unfair and prejudicial that they are publicly subjected to infamy while Plaintiff is protected from such consequences by the cloak of anonymity. Defendants also request that the previously sealed allegations of the complaint remain under seal. Defendants argue that it is uncertain whether this case will ever be adjudicated on the merits, and it is therefore still premature to unseal the complaint in its entirety..
1. Plaintiff's Motion to Proceed Anonymously.
Rule 10(a) of the Federal Rules of Civil Procedure states that the "complaint must name all the parties." The Ninth Circuit has interpreted this provision, in conjunction with the common law right of public access to judicial proceedings, to generally require the plaintiff to state his or her true name in the complaint. Does I through XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067 (9th Cir. 2000). The court noted, however, that "many federal courts, including the Ninth Circuit, have permitted parties to proceed anonymously when special circumstances justify secrecy." Id. "In this circuit we allow parties to use pseudonyms in the unusual case' when nondisclosure of the party's identity is necessary... to protect a person from harassment, injury, ridicule or personal embarrassment.'" Id., quoting United States v. Doe, 655 F.2d 920, 922 n. 1 (9th Cir. 1981). The court held that "a party may preserve his or her anonymity in judicial proceedings in special circumstances when the party's need for anonymity outweighs prejudice to the opposing party and the public's interest in knowing that party's identity. Id. 214 F.3d at 1068. The court noted that other circuit courts have permitted plaintiffs to use pseudonyms in three situations: (1) when identification creates a risk of retaliatory physical or mental harm, (2) when anonymity is necessary to privacy in a matter of sensitive and highly personal nature, and (3) when the anonymous party is compelled to admit his or her intention to engage in illegal conduct thereby risking criminal prosecution. Id.
In Does I through XXIII v. Advanced Textile Corp ., the plaintiffs' motion to proceed anonymously was based on their fear of retaliation by their employers and others if their identities were disclosed. The court stated that the following factors should be evaluated in such cases: (1) the severity of the threatened harm, (2) the reasonableness of the anonymous party's fears, and (3) the anonymous party's vulnerability to such retaliation. 214 F.3d at 1068. In Doe v. Kamehameha Schools/Pauahi Bishop Estate, 596 F.3d 1036, 1042 (9th Cir. 2010), which also involved the alleged fear of retaliation, the court reformulated the balancing test as follows: "[A] district court must balance five factors: (1) the severity of the threatened harm, (2) the reasonableness of the anonymous party's fears, ... (3) the anonymous party's vulnerability to such retaliation, ' (4) the prejudice to the opposing party, and (5) the public interest." In Doe v. Kamehameha Schools/Pauahi Bishop Estate , the threat of retaliation was not posed by the defendants, but rather by some members of the community who were outraged by the plaintiff's lawsuit. Based on a balancing of the foregoing factors, the court affirmed the district court's decision that plaintiffs' fear of retaliation was not reasonable and therefore did not outweigh the prejudice to defendant or the public interest.
This case does not involve an alleged fear of retaliation if Plaintiff's identity is publicly disclosed. Plaintiff's identity is known to the Defendants. There is no evidence that Defendants have attempted to retaliate against her because of this lawsuit, but even if they did, "the retaliation would not be prevented by allowing Plaintiff to proceed anonymously at this point." CTH 1 Caregiver v. Owens, 2012 WL 2572044, *4 (D.S.C. 2012). District courts in the Ninth Circuit have held that the five factor test in Doe v. Kamehameha Schools/Pauahi Bishop Estate does not apply in cases that do not involve a reasonable fear of retaliation if plaintiff's identity is disclosed. Doe v. County of Eldorado, 2013 WL 6230342, *2 (E.D.Cal. 2013); Doe v. Penzato, 2011 WL 1833007, *3 (N.D.Cal. 2011).
The Ninth Circuit has not adopted any specific set of factors that courts must consider when a plaintiff requests anonymity based on the alleged humiliation, embarrassment or mental distress that she will suffer by public disclosure of her identity. In general, federal courts balance the severity of emotional distress or mental injury the plaintiff appears likely to suffer against the unfairness or prejudice that defendant will suffer if ...