Summary
affirming the denial of a request to proceed anonymously under Rule 10, as well as the grant of a related 12(b) motion to dismiss, based exclusively on federal case law
Summary of this case from Capers v. Nat'l R.R. Passenger Corp.Opinion
09-1071
Opinion Delivered April 1, 2010
Appeal from the Benton County Circuit Court, No. CIV-08-1287-1, Hon. Robin Froman Green, Judge, Affirmed.
Appellants, John, Jane, and Junior Doe, appeal the order of the Benton County Circuit Court dismissing their complaint against appellee Richard Weiss, in his capacity as Director of the Arkansas Department of Finance and Administration, after they failed to amend their complaint with their real names as the parties in interest. The Does argue on appeal that the circuit court erred by not allowing them to proceed anonymously by the use of pseudonyms. We conclude that the circuit court did not abuse its discretion by not allowing the appellants to proceed anonymously and dismissing their complaint.
The relevant facts are these. Jane Doe went to an Arkansas Revenue Office in Benton County to renew her driver's license. During the renewal process, an employee of the revenue office asked her to present evidence of her lawful immigration status. Jane Doe could not comply as she and her family are undocumented aliens. Therefore, the employee of the revenue office denied the renewal of her driver's license pursuant to Arkansas Code Annotated section 27-16-1105(a)(1)(D) (Repl. 2008).
The Does sought to file an action to recover Jane Doe's driver's license and to prevent the eventual driver's license forfeiture of her husband, John Doe, and others similarly situated, and the eventual driver's license denial to their son, Junior Doe. However, because of their status as undocumented aliens, they did not wish to reveal their identities. Therefore, on May 23, 2008, under the pseudonyms of Jane, John, and Junior Doe, they filed a petition in the Benton County Circuit Court, challenging the constitutionality of Ark. Code Ann. § 27-16-1105(a)(1), which requires, among other things, proof of an individual's social security number and lawful immigration status before issuing a driver's license or identification card to that person. The Does amended the petition and filed it as an amended complaint on June 17, 2008.
Weiss moved to dismiss the amended complaint, arguing that it should be dismissed pursuant to 12(b)(6) of the Arkansas Rules of Civil Procedure because they failed to prosecute the action in the name of the real parties in interest as required by Ark. R. Civ. P. 17(a) and failed to include their names in the pleadings as required by Ark. R. Civ. P. 8(a) and 10(a). The Does filed a second amended complaint, and Weiss responded again with a motion to dismiss on the same basis.
On May 11, 2009, the circuit court held a hearing on the motion to dismiss and ruled from the bench that it denied the Does request to proceed anonymously and that the Does had thirty days to amend their complaint to name themselves as the real parties in interest. However, the Does failed to do so, and the circuit court entered an order of dismissal on July 10, 2009. The Does filed a timely notice of appeal and now argue that the circuit court erred by not allowing them to proceed anonymously.
When reviewing a circuit court's order granting a motion to dismiss pursuant to Rule 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. See Biedenharn v. Thicksten, 361 Ark. 438, 206 S.W.3d 837 (2005). In viewing the facts in the light most favorable to the plaintiff, the facts should be liberally construed in the plaintiff's favor. See id. Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. See id. Our standard of review for the granting of a motion to dismiss is whether the circuit court abused its discretion. See Arkansas Dep't of Envtl. Quality v. Oil Producers of Arkansas, 2009 Ark. 297, ___ S.W.3d ___. Furthermore, an abuse-of-discretion standard has been applied by the federal courts when reviewing a decision on whether to allow a party to use a pseudonym. See James v. Jacobson, 6 F.3d 233 (4th Cir. 1993); Doe v. Frank, 951 F.2d 320 (11th Cir. 1992); Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118 (10th Cir. 1979).
While this court has never directly addressed the issue of permitting parties to proceed anonymously, the federal courts provide us with some guidance. Parties have been allowed to preserve their 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 the party's identity." Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000). However, as stated by the Fifth Circuit of the United States Court of Appeals, there is "no hard and fast formula for ascertaining whether a party may sue anonymously. The decision requires a balancing of considerations calling for maintenance of a party's privacy against the customary and constitutionally-embedded presumption of openness in judicial proceedings." Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981).
When evaluating the need for anonymity, the federal courts have considered the following factors: (1) whether the request for anonymity is merely to avoid the annoyance and criticism that may attend any litigation or is for the protection of information of the utmost intimacy and to preserve privacy in a sensitive and highly personal matter, see Jacobson, supra; Southern Methodist University Ass'n v. Wynne Jaffe, 599 F.2d 707 (5th Cir. 1979); (2) the risk of unfairness to the opposing party by allowing an action against it to proceed anonymously, see Jacobson, supra; Southern Methodist, supra; (3) the risk and severity of any retaliatory harm, see Jacobson, supra; Stegall, supra; Southern Methodist, supra; (4) the vulnerability to such retaliation of the party seeking anonymity, including their age, see Jacobson, supra; Stegall, supra, or other status, see, e.g., U.S. v. Doe, 655 F.2d 920 (9th Cir. 1981) (where the Ninth Circuit used a pseudonym for the protection of a prison inmate); (5) whether the action is against a governmental or private party, see Jacobson, supra; Southern Methodist, supra; and, (6) if the party seeking anonymity would be compelled to admit their intention to engage in illegal conduct, see Southern Methodist, supra.
This list is not meant to be exhaustive, nor is the presence of one or more factors that merit anonymity meant to be dispositive. See Doe v. Frank, 951 F.2d 320 (11th Cir. 1992). A judge, therefore, should carefully review all the circumstances of a given case and then decide whether the customary practice of disclosing the plaintiff's identity should yield to the plaintiff's privacy concerns. See id.
After considering the various cases from the federal courts, we feel certain that status as an undocumented immigrant alone is not enough to permit a party to proceed anonymously. This is because "unlawful or problematic immigration status is simply not the type of `personal information of the utmost intimacy' that warrants abandoning the presumption of openness in judicial proceedings." Doe v. Merten, 219 F.R.D. 387, 392 (E.D. Va. 2004).
In the instant case, the circuit court concluded that the appellants did not provide a sufficient reason to permit the use of pseudonyms to overcome the prejudice that the State would incur trying to defend an action against an anonymous party:
I've heard — heard your arguments, Mr. Balla, and I can see why people in this situation, illegal immigrants, might — if they had their druthers or their preferences might want to proceed under the radar without their names being known, but — but in a case such as this I fail to see why — why that should be done.
If their allegations [are true,] they're not able to get a driver's license and it goes to their qualifications to receive a driver's license, I think that the State is entitled to know if there is, in fact, a justiciable controversy. How are they — they going to defend an action when they don't know who it is and when they attempted to get a driver's license and what their qualifications were or were not at the time they sought to get a driver's license?
The record below does not contain any evidence of an actual, probable harm to the appellants from their mere identification, nor any other evidence that would warrant this court to find an abuse of discretion on the part of the circuit court.
In his brief and at oral argument, appellants' counsel urged this court to consider adopting rules to provide guidance on this issue in future litigation. We agree that some rules in this area are essential and, therefore, we refer this matter to the Civil Practice Committee. However, as for the merits of the instant case, based on the record before us, we cannot say that the circuit court abused its discretion by not permitting the appellants to proceed under pseudonyms and dismissing the case. For this reason, we affirm the order of the circuit court.
Affirmed.