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4 Exotic Dancers v. Rhino

January 29, 2009

4 EXOTIC DANCERS
v.
SPEARMINT RHINO, ET AL.



The opinion of the court was delivered by: Audrey B. Collins, Chief Judge

CIVIL MINUTES - GENERAL

Proceedings: ORDER DENYING MOTION FOR LEAVE TO PROCEED BY USE OF PSEUDONYMS (In Chambers)

Currently pending before the Court is Plaintiffs' Motion for Leave to Proceed by Use of Pseudonyms filed initially on December 19, 2008 and refiled on December 31, 2008. (Docket ## 114, 125). Defendants Olympic Avenue Venture, Inc. ("OAV") (which was sued and served as "Spearmint Rhino") and Maverick Tavern, Inc. ("Maverick Tavern") (which was sued and served as "the Wild Goose") opposed the motion. (Docket ## 133, 136). And Plaintiffs filed an untimely reply. (Docket # 141).*fn1

The Court finds the motion appropriate for resolution without oral argument and vacates the hearing set for February 2, 2009. Upon consideration of the materials submitted by the parties and the case file, the Court hereby DENIES the motion.

BACKGROUND

Plaintiffs are four unnamed exotic dancers who brought suit against several nightclubs located in the Los Angeles area. All of the clubs offer either "topless entertainment" or "totally nude entertainment." First Amended Compl. ("FAC") ¶¶ 9-15 (Docket # 115). Plaintiffs alleged that they worked for one or more of the Defendant clubs within the three years before the complaint was filed. FAC ¶ 3. Specifically, Exotic Dancer No. 1 is alleged to have worked at Spearmint Rhino, Rio, Rouge, and Silver Rein. FAC ¶ 4. Exotic Dancer No. 2 is alleged to have worked at Spearmint Rhino. FAC ¶ 5. Exotic Dancer No. 3 is alleged to have worked at Scores. FAC ¶ 6. Exotic Dancer No. 4 is alleged to have worked for at the Wild Goose. FAC ¶ 7. Plaintiffs purport to sue both on their own behalf, and on behalf of "all female exotic dancers who have worked at Defendants' clubs for the past two years." FAC ¶ 8. Plaintiffs allege that Defendants violated the Federal Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201, et seq., as well as state law, Cal. Labor Code §§ 1194, 98.3, 351, Cal. Bus. & Prof. Code §§ 17200, et seq.

On December 9, 2008, this Court granted Defendant OAV's motion to dismiss the initial complaint for inter alia failing to identify the individual exotic dancers by name. See Minute Order Re: Mot. to Dismiss Filed by Def. OAV, December 9, 2008 (Docket # 112).*fn2 The Court explained that Plaintiffs could proceed pseudonymously only by seeking leave to do so and meeting the criteria set forth in Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058 (9th Cir. 2000). The Court granted Plaintiffs leave to file an amended complaint using pseudonyms together with a concurrently filed motion for leave to proceed under those pseudonyms, which they did on December 19, 2008.

LEGAL STANDARD

Plaintiffs generally must identify themselves in their complaint pursuant to Fed. R. Civ. P. 10(a) and the public's common law right to access to judicial proceedings. See Advanced Textile, 214 F.3d at 1067. Nonetheless, courts allow pseudonymity when special circumstances justify secrecy. Id. "As a general rule, 'the identity of the parties in any action, civil or criminal, should not be concealed except in an unusual case, where there is a need for the cloak of anonymity.'" United States v. Stoterau, 524 F.3d 988, 1012 (9th Cir. 2008) (quoting United States v. Doe, 488 F.3d 1154, 1155 n.1 (9th Cir. 2007)). To receive such permission, a party must affirmatively show that "pseudonymity is 'necessary to protect a person from injury or harassment.'" Id. (quoting Doe, 488 F.3d at 1155 n.1).

The Ninth Circuit has identified three situations in which requests for pseudonymity have been granted: (1) when identification creates a risk of retaliatory physical or mental harm; (2) when anonymity is necessary to preserve privacy in a matter of a 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. Advanced Textile, 214 F.3d at 1068. When the party asserts that pseudonymity is necessary due to fears of retaliation, courts balance the severity of the threatened harm, the reasonableness of the fears, and the party's vulnerability to such retaliation. Id. The need for pseudonymity must then be balanced against any prejudice to the opposing party and the public's interest in knowing the party's identity. Id.

ANALYSIS

Plaintiffs purport to meet the Ninth Circuit's standard for pseudonymity based on the declaration of Patrick Manshardt, Plaintiffs' counsel in this matter. See Decl. of Patrick Manshardt, December 31, 2008 (Docket # 125). Mr. Manshardt asserts that his clients fear retaliation from Defendants in the form of harassment, termination and blacklisting. See id. at ¶ 4-6. He also asserts that Plaintiffs will be stigmatized if their identities are revealed publicly. Id. at ¶ 7.*fn3 Mr. Manshardt further asserts that Exotic Dancer 3 is no longer in the industry, while Exotic Dancers 2 and 4 continue to work at Spearmint Rhino and the Wild Goose, respectively. Reply Decl. of Patrick Manshardt, January 28, 2009, at ¶¶ 2-4 (Docket # 141).

A. Plaintiffs' Feared Injuries

Plaintiffs' feared injuries are insufficient to allow Plaintiffs to proceed pseudonymously. Plaintiffs' fear of retaliation from the nightclubs does not merit pseudonymity because it is not unusual. "[T]hreats of termination and blacklisting are [] typical methods by which employers retaliate against employees who assert their legal rights." Advanced Textile, 214 F.3d at 1071. Unlike the situation in Advanced Textile, where retaliation against the unnamed plaintiffs would have led to deportation, arrest and imprisonment in China, id., the consequence of termination and blacklisting here is that the Plaintiffs would make less money than they would otherwise, see Manshardt Decl. ΒΆ 5. That is precisely the scenario distinguished by the Ninth Circuit in allowing the plaintiffs to proceed pseudonymously in Advanced Textile. See 214 F.3d at ...


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