Opinion
20-cv-06822-JD
04-19-2022
JOHN DOE, Plaintiff, v. BORDERLAND BEAT, et al., Defendants.
ORDER RE ATTORNEY'S FEES AND RECONSIDERATION REQUESTS RE: DKT. NOS. 37, 38
JAMES DONATO UNITED STATES DISTRICT JUDGE
Plaintiff John Doe, who was granted leave to proceed under a pseudonym, Dkt. No. 6, voluntarily dismissed all of the defendants in this action, including fictitious defendants Roes 150. See Dkt. Nos. 10, 36, 43. The case was active for only 10 months between the filing of the complaint in September 2020 and the last round of dismissals in July 2021. Very little happened in the way of litigation during that time. The Court terminated the case in July 2021.
While this would seem to have been the end of the matter, a defendant known as Roe 1 filed a motion for attorney's fees, and a motion “for leave to file a formal motion to reconsider” the pseudonym order. Dkt. Nos. 37 (attorney's fees), 38 (reconsideration). The parties' familiarity with the record is assumed, and the motions are denied.
Before reaching the motions, Roe 1's right to proceed under a pseudonym must be addressed. Roe 1 never requested or received the Court's permission to keep its identity secret. We have a strong tradition of transparent litigation in our federal courts. As our circuit court has recognized, the “use of fictitious names runs afoul of the public's common law right of access to judicial proceedings, and Rule 10(a)'s command that the title of every complaint ‘include the names of all the parties.'” Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067 (2000) (citations omitted). Roe 1 has not demonstrated any “special circumstances” that might justify hiding its identity, or shown that a disclosure would subject it to physical or mental harm, reveal highly sensitive personal information, or be tantamount to confessing to a crime. Id. at 1067-68. Roe 1 simply arrogated to itself an exception to the rule of party transparency in federal court. This will not do. Roe 1 is directed to file by May 2, 2022, a statement identifying itself, or a request to proceed pseudonymously that complies with governing standards.
The request to reconsider the termination of the motion to vacate the order granting Doe pseudonym status is denied. The Court terminated the motion after Doe dismissed all of the claims against defendants Borderline Beat and Roes 1-25, which put an end to the case against Roe 1. Dkt. No. 36. Roe 1 has not demonstrated that any circumstance warranting reconsideration is present. See Civil Local Rule 7-9(b). There is no good reason to revisit the motion to vacate.
The request for attorney's fees is also denied. As Roe 1 acknowledges, the only possible basis for an award of attorney's fees is in connection with the anti-SLAPP motion under California Code of Civil Procedure Section 425.16(c). See Dkt. No. 37 at 5-6. A good argument can be made that the Court need not decide the fees request on jurisdictional grounds. Doe dismissed the single federal claim in the complaint, which was the sole basis of the Court's subject matter jurisdiction, see Dkt. No. 1 ¶ 3, and the Court declines to exercise supplemental jurisdiction over the state law claims. This eliminates a need to take up Roe 1's fees request, as our circuit concluded in an instructive, albeit non-binding, unpublished decision. See McMillan v. Chaker, 791 Fed.Appx. 666, 667 (9th Cir. 2020) (unpublished); see also DeHoog v. Anheuser-Busch InBev, 899 F.3d 758, 764 n.7 (9th Cir. 2018) (unpublished circuit decisions instructive). A number of district courts have declined to consider fees motions for this reason. See Williams v. Kula, Case No. 20-cv-1120, 2020 WL 7770915, at *7 (S.D. Cal. Dec. 29, 2020) (collecting cases).
Even so, this case involves the slight wrinkle of a voluntary dismissal by the plaintiff, which benefits from further discussion. Under California law, the dismissal did not necessarily moot the question of attorney's fees. See Coltrain v. Shewalter, 66 Cal.App.4th 94, 107 (1998) (“where the plaintiff voluntarily dismisses an alleged SLAPP suit while a special motion to strike is pending, the trial court has discretion to determine whether the defendant is the prevailing party for purposes of attorney's fees under Code of Civil Procedure section 425.16, subdivision (c)”). Some district courts have construed California law to allow retention of jurisdiction for the limited purpose of determining a fees award after a voluntary dismissal. See, e.g., Gottesman v. Santana, 263 F.Supp.3d 1034, 1040 (S.D. Cal. 2017). In this situation, the court conducts a merits review solely with respect to whether the defendant who filed the anti-SLAPP motion is a “prevailing party” within the meaning of Code of Civil Procedure Section 425.16(c). Id.
For present purposes, the Court will assume without deciding that this approach is consonant with California law. The Court also assumes, without deciding, that Coltrain provides the guidance a California state court would consider to determine who the prevailing party is after a plaintiff's voluntary dismissal. See id. at 1043 (noting a split in California case law on this point). Roe 1 relied on Coltrain, see Dkt. No. 37 at 6, and Doe did not object.
Roe 1 cannot be deemed a prevailing defendant for attorney's fees purposes. Coltrain states that a voluntary dismissal while an anti-SLAPP motion is pending creates a rebuttal presumption in defendant's favor. Coltrain, 66 Cal.App.4th at 107. A plaintiff may rebut the presumption by demonstrating that the dismissal was based on a settlement or similar outcome, a defendant's insolvency, “or for other reasons unrelated to the probability of success on the merits.” Id.
That is the situation here. The record does not establish that Roe 1 achieved a dismissal on the basis of the anti-SLAPP motion. Doe's counsel filed a declaration stating that the dismissal was made purely in response to Roe 1's effort to force a public disclosure of Doe's identity by seeking to vacate the order permitting Doe to proceed under a pseudonym. See Dkt. No. 30; see also Dkt. No. 29 (motion to vacate). No other reason was given for the dismissal, and certainly none related to the merits of the anti-SLAPP motion. Roe 1 has not proffered a lick of evidence to the contrary, or demonstrated that the dismissal was the product of anything other than Doe's desire to protect his or her anonymity. This stands in stark contrast to cases where the presumption in defendant's favor was determinative because the plaintiff did not explain why the case was dismissed while the motion was pending. See, e.g., Gottesman, 263 F.Supp.3d at 1043.
In addition, Roe 1 was not likely to prevail on the anti-SLAPP motion. “California's anti-SLAPP statute is designed to discourage suits that ‘masquerade as ordinary lawsuits but are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so.'” Sarver v. Chartier, 813 F.3d 891, 901 (9th Cir. 2016) (quoting In re NCAA Student Athlete Name & Likeness Licensing Litig., 724 F.3d 1268, 1272 (9th Cir. 2013)). To succeed on the anti-SLAPP motion, Roe 1 was required to show that “‘the act or acts of which the plaintiff complains were taken in furtherance of [Roe 1's] right of petition or free speech under the United States or California Constitution in connection with a public issue.'” Id. (quoting Hilton v. Hallmark Cards, 599 F.3d 894, 903 (9th Cir. 2010). “Public issue” is broadly construed “in light of the statute's stated purpose to encourage participation in matters of public importance or consequence.” Hilton, 599 F.3d at 906 (quoting Cal. Civ. Proc. Code § 425.16(e)(4)). Our circuit has followed California courts to identify “three categories of public issues: (1) statements ‘concern[ing] a person or entity in the public eye'; (2) ‘conduct that could directly affect a large number of people beyond the direct participants'; (3) ‘or a topic of widespread, public interest.'” Sarver, 813 F.3d at 901 (citations omitted). Put more plainly, public interest is not a matter of “mere curiosity” but “something of concern to a substantial number of people.” Id. (quoting Weinberg v. Feisel, 110 Cal.App.4th 1122, 1132 (2003)). A “person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people.” Id. (citation omitted).
These principles cast substantial doubt on the merits of Roe 1's anti-SLAPP motion. Doe's complaint was based solely on the allegation that defendants unlawfully obtained and published a photo of his California driver's license, thereby revealing his personal information. In a sealed brief filed by Roe 1, Dkt. No. 31-5, this is said to have been done in connection with alleged international drug trafficking into the United States. Although the Court has no doubt that drug trafficking is a serious matter of public concern, the publication of a copy of Doe's driver's license is another matter altogether. That was not an item of public interest, and Congress said as much by creating a private right action for such a disclosure. See 18 U.S.C. § 2724(a). When a defendant fails to show that a lawsuit involves a matter of public concern, “California's anti- SLAPP provisions are inapplicable on their face.” Sarver, 813 F.3d. at 901.
Consequently, the fees request is denied. Doe's other objections to it need not be considered.
IT IS SO ORDERED.