United States District Court, N.D. California, San Francisco Division
JANE ROES 1-2, on behalf of themselves and all others similarly situated, Plaintiffs,
SFBSC MANAGEMENT, LLC and DOES 1-200, Defendants
For Jane Roe, Plaintiff: Steven Gregory Tidrick, LEAD ATTORNEY, Joel Benjamin Young, The Tidrick Law Firm, Berley, CA.
For Jane Roe No. 2, Jane Roe No. 3, Plaintiffs: Steven Gregory Tidrick, LEAD ATTORNEY, The Tidrick Law Firm, Berley, CA.
For SFBSC Management, LLC, Defendant: Douglas J. Melton, LEAD ATTORNEY, Long & Levit LLP, Shane Michael Cahill, Long & Levit LLP, San Francisco, CA.
ORDER ON ANONYMITY & SEALING [ECF No. 17]
Laurel Beeler, United States Magistrate Judge.
This is a dispute under the Fair Labor Standards Act (" FLSA" ), 29 U.S.C. § § 201-219, and various California labor laws. (Am. Compl. -- ECF No. 11 at 1-2, ¶ 1.) It is a putative collective action under the FLSA and a putative class action under Rule 23. ( Id. at 18-19, ¶ ¶ 60, 63-64.) The plaintiffs formerly worked for defendant SFBSC Management, LLC as " exotic dancers" -- which is to say, " nude
and semi-nude" dancers -- at various nightclubs. (ECF No. 11 at 1-3, ¶ ¶ 1, 7.) They claim that SFBSC wrongfully classified them as independent contractors and thus denied them the minimum wage and other benefits to which the FLSA entitled them. ( Id. at 1-2, ¶ 1.) They also claim that SFBSC violated other federal and state labor laws. ( Id.). They seek to represent themselves and anyone who, during a stated period, worked for SFBSC as exotic dancers in California. ( Id. at 1-2 (¶ 1), 18-19 (¶ ¶ 60, 63-64).)
The plaintiffs ask the court to do two things: First, to allow them to proceed under " Jane Roe" pseudonyms; and, second, to allow future plaintiffs to join this suit by filing their FLSA consents under seal. (ECF No. 17 at 1.) (Plaintiffs in FLSA collective suits must affirmatively " opt in" by filing consent forms. 29 U.S.C. § 216(b).) For the reasons stated below, the court grants the motion to proceed pseudonymously. Because that decision should largely answer the concerns that drive the sealing motion, and because sealing requests should be made with respect to particular documents as the case progresses, the court denies the sealing motion, subject to the qualifications at the end of this order.
The court finds this matter suitable for determination without oral argument. See Civil L.R. 7-1(b).
The plaintiffs contend that they and any future plaintiffs need to proceed anonymously because this suit will involve details about them of a " highly sensitive and personal nature." (ECF No. 17 at 3.) Exotic dancing, they write, carries a " significant social stigma." Moreover, " there are risks inherent in working as an exotic dancer, including risk of injury" by nightclub patrons if their names or addresses are publicly disclosed. ( Id.) Disclosure could also " affect their future employment prospects outside the adult nightclub industry." ( Id. at 4.) For such reasons, the plaintiffs explain, at SFBSC's nightclubs, " it is customary for exotic dancers to use pseudonyms or stage names for privacy and personal[-]safety reasons." ( Id. at 3.) The plaintiffs thus " wish to protect their rights to privacy" and argue that other potential plaintiffs will be " hesitant" to join this suit if they cannot proceed anonymously. ( Id.)
SFBSC responds that the plaintiffs are not legally entitled to anonymity. (ECF No. 19.) In sum, SFBSC argues: " The desire to keep a personal matter secret or avoid embarrassment and social stigma does not justify the unusual cloak of anonymity . . . ." ( Id. at 3.) It argues that the plaintiffs have not shown a severe or even reasonable threat of harm from being made to proceed under their own names; that their " alleged privacy concerns" do not justify anonymity; and that SFBSC will be prejudiced if the plaintiffs use pseudonyms -- because anonymity will both impede discovery in this case and deny SFBSC effective res judicata defenses in the future. ( Id. at 4-6.) In a letter to plaintiffs' counsel, though, SFBSC's attorney wrote: " We are mindful of the privacy rights and concerns that underlie Jane Roe's decision to sue under a fictitious name and we agree that the public disclosure of an exotic dancer's true identity presents substantial risk of harm." (ECF No. 26 at 12 (emphasis added).) The plaintiffs have given SFBSC their real names under the confidentiality terms of the protective order entered in this case. (ECF No. 17 at 5, ¶ 2; see ECF No. 14 (protective order).)
I. GOVERNING LAW
The parties do not disagree on the overarching aspects of the governing
law. The decision to allow pseudonyms is " discretionary" but is cabined by the Ninth Circuit's express guidance. See Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067-68 (9th Cir. 2000). " 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. (citing United States v. Doe, 655 F.2d 920 (9th Cir. 1981) (using pseudonyms in opinion because appellant, a prison inmate, " faced a serious risk of bodily harm" if his role as a government witness were disclosed) and Doe v. Madison School Dist. No. 321, ...