Free Proposed Order - District Court of California - California

Case 3:07-cv-05115-JSW

Document 27

Filed 12/14/2007

Page 1 of 3

1 GUTRIDE SAFIER REESE LLP Adam J. Gutride (Cal. State Bar No.181466) 2 Seth A. Safier (Cal. State Bar No. 197427) 835 Douglass Street 3 San Francisco, California 94114 Telephone: (415) 271-6469 4 Facsimile: (415) 449-6469 5 Counsel for Plaintiff 6 7 8 9 10 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 07-5115 JSW [PROPOSED] ORDER DENYING DEFENDANT'S MOTION TO DISMISS UNDER FRCP 12(B)(1) AND GRANTING PLAINTIFF'S CROSSMOTION FOR LEAVE TO FILE AS "DOE" AND TO SEAL OR STRIKE PORTIONS OF DECLARATIONS OF SHERI FLAME EISNER AND NATALIE STERLING JUDGE: Hon. Jeffery S. White DATE: Jan. 25, 2008 TIME: 9:00 am CTRM: 2

11 DOE, Individually And On Behalf Of All Others Similarly Situated, 12 Plaintiff, 13 vs. 14 NETWORK SOLUTIONS, LLC Defendant. 15 16 17 18 19 20 21 22 23 24 25 26 27

[PROPOSED] ORDER DENYING DEF'S MOT TO DISMISS UNDER FRCP 12(b)(1) AND GRANTING PLAINTIFF'S CROSS

28

MOTION FOR LEAVE TO FILE AS "DOE" AND TO SEAL EISNER DECLARATION- CASE NO. C 07-5115 JSW

Case 3:07-cv-05115-JSW

Document 27

Filed 12/14/2007

Page 2 of 3

1

Defendant has moved to dismiss for lack of subject matter jurisdiction under Federal

2 Rule of Civil Procedure Rule 12(b)(1) because Plaintiff filed his complaint anonymously without 3 previously securing leave of Court. Plaintiff opposes the motion and cross-moves for leave to 4 proceed as a "DOE" plaintiff and to seal or strike portions of the Declarations of Sheri Flame 5 Eisner (Dkt.# 17) and Natalie Sterling (Dkt.# 18) that personally name him. FOR GOOD 6 CAUSE SHOWN, the Court DENIES Defendant's Motion to Dismiss and GRANTS Plaintiff's 7 cross-motion. 8 According to the Complaint, Defendant published on the Internet, or made available to

9 search engines such as Google for publication, Plaintiff's private emails, including snap-shots of 10 his web based email in-box. When Plaintiff threatened suit, Defendant preemptively sued him 11 by name in Virginia state court, seeking a declaration that any claims that might be brought by 12 Plaintiff would need to be brought in Virginia under Virginia law. Plaintiff subsequently filed 13 this suit anonymously as a "Doe" plaintiff. Defendant's lawyer (Eisner) and employee (Sterling) 14 filed declarations here identifying both the Virginia state court action and Plaintiff's full name. 15 Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes a party to move to

16 dismiss a claim for lack of subject matter jurisdiction. The party seeking to invoke the court's 17 jurisdiction (here, Plaintiff) bears the burden of proving that subject matter jurisdiction exists. 18 See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). 19 Parties are permitted to sue by use fictitious names "when nondisclosure of the party's

20 identity `is necessary . . . to protect a person from harassment, injury, ridicule or personal 21 embarrassment.'" Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067-68 (9th 22 Cir. 2000) "[A] party may preserve his or her anonymity in judicial proceedings in special 23 circumstances when the party's need for anonymity outweighs the prejudice to the opposing 24 party and the public's interest in knowing the party's identity." Id. at 1068. In applying this 25 balancing test, the court must analyze the (1) severity of the threatened injury, (2) reasonableness 26 of plaintiffs' fears, (3) plaintiffs' vulnerability to retaliation, (4) prejudice to defendants, and (5) 27 public's interest in knowing the parties' names. Id.
[PROPOSED] ORDER DENYING DEF'S MOT TO DISMISS UNDER FRCP 12(b)(1) AND GRANTING PLAINTIFF'S CROSS MOTION FOR LEAVE TO FILE AS "DOE" AND TO SEAL EISNER DECLARATION- CASE NO. C 07-5115 JSW

1

Case 3:07-cv-05115-JSW

Document 27

Filed 12/14/2007

Page 3 of 3

1

Here, the balance of factors favors permitting this action to proceed anonymously. The

2 threatened injury is that Plaintiff's personal email, containing intimate information belonging to 3 him, and third parties with whom he corresponded, will be found by even more people if his 4 name is disclosed. There is no prejudice to Defendant by permitting this action to proceed 5 anonymously, at least not at this stage of litigation. See Advanced Textile Corp., 214 F.3d at 6 1067-68 (court should determine precise prejudice at each stage of the proceedings). The public 7 interest would appear to militate toward allowing Plaintiff to remain anonymous, as doing 8 otherwise would chill suits that seek to hold defendants responsible in similar circumstances. 9 The Ninth Circuit, in Advanced Textile, implicitly ratified Plaintiff's procedural course of

10 filing as a "Doe" before seeking leave, when it granted an application for leave after the 11 complaint had been filed by plaintiffs proceeding under a pseudonym. See Roe v. City of San 12 Diego, 2001 U.S. Dist. LEXIS 26137, 11-12 (S.D. Cal. 2001), rev'd (on other grounds) Roe v. 13 City of San Diego, 356 F.3d 1108 (9th Cir. 2004). 14 For the same reasons, there is good cause to seal the declarations of Sheri Eisner and

15 Natalie Sterling [or to strike from them references to Plaintiff's name]. At this point in the 16 litigation, having Plaintiff's name in the public files would have no purpose other than the 17 improper one of deterring him (and others) from proceeding with their claims for fear of further 18 aggravating the injury allegedly caused by the release of the emails. 19 20 21 22 23 24 25 26 27 28 [Alternatively] Plaintiff is granted leave to amend his Complaint, to plead his full name. IT IS SO ORDERED Dated: ____________________ Jeffrey S. White United States District Judge

[PROPOSED] ORDER DENYING DEF'S MOT TO DISMISS UNDER FRCP 12(b)(1) AND GRANTING PLAINTIFF'S CROSS MOTION FOR LEAVE TO FILE AS "DOE" AND TO SEAL EISNER DECLARATION- CASE NO. C 07-5115 JSW

2