United States District Court, S.D. New York
Robert J. Tolch, Esq. ROBERT JOSEPH TOLCHIN, New York, NY, Attorneys for the Plaintiff.
Matthew Blitt, Esq., LEVINE & BLIT, PLLC New York, NY, Attorneys for the Defendant.
ROBERT W. SWEET, District Judge.
Defendant Arnold Simon ("Defendant" or "Simon") has moved via letter to restore for consideration Defendant's motion to compel Plaintiff Anonymous ("Plaintiff" or "Anonymous") to file an amended complaint containing her name as required by the Fed.R.Civ.P. 10. Defendant has also moved to dismiss the First Amended Complaint ("FAC") pursuant to Fed.R.Civ.P. 12(b) (6). For the reasons set forth below, Defendant's motions to restore for consideration is granted, and Defendant's motions to compel and dismiss are granted.
This action was initiated by the Plaintiff in the Supreme Court, County of New York, in the State of New York, in March 2013 alleging that Defendant engaged in unprotected sexual intercourse with Plaintiff despite knowing that he was infected with Herpes Simplex II ("HSV-II"), and that Plaintiff contracted HSV-II as a result of her sexual encounter with Defendant. Defendant removed the action to federal court on May 1, 2013 on the basis of diversity.
On May 6, 2013, Defendant moved to compel Plaintiff to file an amended complaint containing her actual name pursuant to Fed.R.Civ.P. 10. Two days later, on May 8, 2013, Defendant filed a motion to dismiss pursuant to Fed R. Civ. P. 12(b)(6). On September 18, 2013, Defendant's motion to dismiss was granted and Defendant's motion to compel was denied as moot in an opinion (the "September 2013 Opinion"). The September 2013 Opinion granted Plaintiff leave to replead, and on September 23, 2013, the Plaintiff filed the First Amended Complaint ("FAC").
Defendant submitted a letter on September 24, 2013, moving the court to reconsider its motion to compel Plaintiff to file an amended complaint. The parties submitted briefing on this motion, and oral arguments were held on October 9, 2013. The motion was marked fully submitted on the same day.
Defendant moved to dismiss the FAC pursuant to Fed.R.Civ.P. 12(b)(6) on November 14, 2103. This notion was heard and marked fully submitted on January 22, 2014.
a. The FAC Violates Rule 10
Fed. R. Civ. P. 10(a) requires that "[t]he title of the complaint must name all the parties." Courts have permitted parties to appear under pseudonyms or with their names filed under seal. See Sealed Plaintiff v. Sealed Defendant , 537 F.3d 185 (2d Cir. 2008). When determining whether a plaintiff may be allowed to maintain an action under a pseudonym, the plaintiff's interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant. Id . at 189. Sealed Plaintiff identified ten factors to consider when determining whether a plaintiff can proceed anonymously:
(1) whether the litigation involves matters that are highly sensitive and [of a] personal nature; (2) whether identification poses a risk of retaliatory physical or mental harm to the... party [seeking to proceed anonymously] or even more critically, to innocent non-parties; (3) whether identification presents other harms and the likely severity of those harms, including whether the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity; (4) whether the plaintiff is particularly vulnerable to the possible harms of disclosure... particularly in light of his age; (5) whether the suit is challenging the actions of the government or that of private parties; (6) whether the defendant is prejudiced by allowing the plaintiff to press his claims anonymously, whether the nature of that prejudice (if any) differs at any particular stage of the litigation, and whether any prejudice can be mitigated by the district court; (7) whether the plaintiff's identity has thus far been kept confidential; (8) whether the public's interest in the litigation is furthered by requiring the plaintiff to disclose ...