Sunday, September 05, 2010

Filing Suit Under Fictitious Name

This post on filing suit under a fictitious name is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  In Colorado, it is possible though difficult to sue anonymously by filing suit under a pseudonym such as "John Doe" or "Jane Roe."  If such precautions are necessary under the unique circumstances of your case, consider the following.  Updated 9/5/2010:
- Ensure that you seek leave of the court to file anonymously.  This is the one clear requirement in Colorado from John Doe v. Heitler, 26 P.3d 539, 540 (Colo. App. 2001). 
- There is no defined procedure in Colorado for seeking leave of the court to file a lawsuit anonymously, so it is best to contact the Clerk of the applicable court prior to filing to see if the court has a preference.
- Option include:  
 -- simply filing anonymously and waiting for a court order or status conference to inform you of the correct procedure (NOT recommended, and seems to violate Doe . Heitler);
 -- file complaint under plaintiff's true name, and simultaneously file a protective order to seal the complaint and court record;
 -- file the complaint under a pseudonym and simultaneously file a motion for leave to file under the pseudonym as well as a letter filed under seal that sets forth plaintiff's true name and address and that he/she is a real person.  This is my preferred option;
 -- finally, the grounds for filing anonymously may be set forth in the attached letter, rather than in the motion seeking leave to file anonymously.  I think this is problematic because, in the event of an appeal of a grant or denial of the motion to proceed anonymously, the legal arguments are better separated from the plaintiff's true name and address.
- Traditionally the anonymous names are "Jane Roe" or "Jane Doe" for a female plaintiff, "John Doe" for a male plaintiff, and the use of colors (e.g. "Green Company") for legal entities, though it may be especially difficult to demonstrate the need for a company to file anonymously.
Thoughts & Best Practices:
- If the court does not find compelling reason to permit the plaintiff to file under a pseudonym, the complaint is usually dismissed with leave to file a new complaint under plaintiff's real name.  John Doe v. Heitler case, 26 P.3d at 545-46.  While Heitler is not crystal clear, it does appear that if you do not seek permission to file under a pseudonym, then dismissal may be with prejudice.
- A plaintiff seeking to proceed anonymously must show that he or she has a substantial privacy right that outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings:
 -- Factors that are presumptively sufficient include where refusal to proceed under fictitious name would reveal (1) use of birth control; (2) illegitimacy; (3) abortion; (4) transsexuality/homosexuality; (5) mental illness; (6) AIDS; (7) rape; (8) certain issues of religion; (9) and especially where one of the above is combined with the plaintiff being a minor.
 -- However, avoidance of embarrassment or stigma is insufficient privacy interest.  Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992).
 -- Use of fictitious name may also be permissible to prevent harassment, retaliation, or harm.  See, e.g., Doe v. Stegal, 653 F.2d 180, 186 (5th Cir. 1981); Does v. Advanced Textile Corp., 214 F.3d 1058, 1069 (9th Cir. 2000).
 -- While minor harm is not sufficient to warrant filing under a pseudonym, SMU Ass'n Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir. 1979), the threat of harm can be economic and not physical, Does v. Advanced Textile Corp., 214 F. 3d at 1069-71.
 -- Seeking injunctive relief, as opposed to purely legal causes of action, weighs in favor of proceeding anonymously.   John Doe v. Heitler, 26 P.3d at 546.
Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit for more information.
This post on filing suit under a fictitious name is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

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