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Doe v. Deja VU Consulting Inc.

United States District Court, M.D. Tennessee, Nashville Division

September 1, 2017

JANE DOE #1, Plaintiff,
v.
DEJA VU CONSULTING INC., et al. Defendants.

          MEMORANDUM

          ALETA A. TRAUGER, UNITED STATES DISTRICT JUDGE.

         Plaintiff Jane Doe #1 filed her initial Complaint in this court on January 11, 2017, against defendants Déjà Vu Consulting, Inc., Déjà Vu Services, Inc., Déjà Vu of Nashville, Inc., Harry Mohney, and Jason Mohney; she filed her First Amended Collective Action Complaint on January 23, 2017. (Coll. Action Compl., Doc. No. 1; First Am. Coll. Action Compl., Doc. No. 5.) The First Amended Collective Action Complaint asserts claims for violations of the hourly wage and overtime wage provisions of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 206 and 207, and purports to seek relief on behalf of the plaintiff and “on behalf of all other similarly situated individuals working as showgirls/entertainers classified as independent contractors by Defendants” (Doc. No. 5, at 1), under the collective action provision of the FLSA, 29 U.S.C. § 216(b).

         I. Introductory Summary

         Now before the court are the following six interrelated motions:

(1) Plaintiff's Motion for Expedited Court-Supervised Notice to Putative Class Members Pursuant to 29 U.S.C. § 216(b) (Doc. No. 6) (hereafter, “Motion for Notice”);
(2) Defendants' Motion to Reconsider (Doc. No. 43) the court's previous Order (Doc. No. 34);
(3) Defendants' Motion to Dismiss or to Stay in Favor of Arbitration (Doc. No. 40) (hereafter, “Motion to Compel Arbitration”);
(4) Plaintiff's Motion to Proceed Pseudonymously, to Permit Filing of All Unredacted Consents Under Seal, and for Entry of a Permanent Protective Order (Doc. No. 49);
(5) Defendants' Motion to Dismiss for Lack of Personal Jurisdiction (Doc. No. 59); and
(6) Plaintiff's Motion to Hold Defendants' Motion to Dismiss or to Stay in Favor of Arbitration in Abeyance (Doc. No. 67) (hereafter, “Motion to Hold in Abeyance”).

         All of these motions have been fully briefed and are ripe for review.

         Logically, the court should consider a motion addressing jurisdiction first. However, because the Motion to Dismiss for Lack of Personal Jurisdiction is based on the argument that the plaintiff has not revealed her identity as the real party in interest, the court must first address the plaintiff's Motion to Proceed Pseudonymously. The court finds, as set forth below, that the plaintiff should be permitted to proceed anonymously. However, the protective order she seeks goes too far, and the other relief she requests is unnecessary in light of the court's rulings on the other pending motions. Because the court will grant the plaintiff's Motion to Proceed Pseudonymously, the defendants' Motion to Dismiss for Lack of Jurisdiction will be denied as moot.

         The court must next consider the defendants' Motion to Reconsider, which addresses whether the court improperly concluded that the temporary stay and preliminary injunction entered in a related action pending in Michigan had expired and, therefore, that this action could proceed. (See Order, Doc. No. 34.) If the court improperly ignored an injunction staying this case, then any other further action taken by the court would be invalid. The court, however, 3 reaffirms its prior decision and will deny the Motion to Reconsider.

         The parties dispute whether the court should first consider the Motion for Notice or the Motion to Compel Arbitration. The plaintiff has formally requested that the court consider her Motion for Notice first. As set forth herein, the court finds that it must first consider the Motion to Compel Arbitration prior to addressing the Motion for Notice. The Motion to Hold in Abeyance will therefore be denied.

         Further, the court finds that none of the plaintiff's objections to arbitration has merit. The Motion to Compel Arbitration will be granted. Because all of the plaintiff's claims are subject to arbitration under the very broadly worded arbitration agreement, the court will dismiss this action without prejudice rather than stay it. The plaintiff's Motion for Notice will be denied as moot.

         II. Plaintiff's Motion to Proceed Pseudonymously and Defendants' Motion to Dismiss for Lack of Personal Jurisdiction

         A. Procedural and Factual Background

         The plaintiff requests authorization to proceed pseudonymously and to submit all unredacted collective action consent forms filed by other putative plaintiffs under seal; she also seeks entry of a permanent protective order. (Doc. No. 49.) In support of this motion, she has submitted her supporting Memorandum, two sealed unredacted Notices of Consent (her own and that of Jane Doe #2), and the Second Declaration of Jane Doe #1. (Doc. Nos. 50, 51, 52.) The defendants have filed their Response in opposition (Doc. No. 58), which also constitutes their Memorandum in support of the separately filed Motion to Dismiss for Lack of Personal Jurisdiction (Doc. No. 59). The plaintiff filed a Reply (Doc. No. 65) as well as a Response in opposition to the Motion to Dismiss (Doc. No. 66).

         The First Amended Collective Action Complaint (“Complaint”) is the operative pleading in this action. In it, the plaintiff asserts claims individually and on behalf of a putative FLSA class of similarly situated employees and former employees of the defendants, Déjà Vu Consulting, Inc., Déjà Vu Services, Inc., Déjà Vu of Nashville, Harry Mohney, and Jason Mohney (collectively, “defendants”). She alleges that she and similarly situated individuals worked at the defendants' various establishments as “showgirls/entertainers (also known as performers/dancers/strippers/exotic dancers . . .).” (Compl. ¶ 3.) She alleges generally that she and similarly situated performers were misclassified as independent contractors rather than as employees, in violation of the FLSA, and that they were improperly denied hourly wages and required to pay defendants mandatory illegal kickbacks.

         In her Complaint, the plaintiff specifically states that she seeks to proceed in this court pseudonymously and, at the time she filed the Complaint, anticipated the prompt filing of a motion requesting court permission to do so. She stipulates that, “[u]pon entry of a court[-]approved protective order, Named Plaintiff will disclose her identity to Defense counsel and certain agents of Defendants.” (Compl. ¶ 13.)[1] She also asserts that her privacy interests “substantially outweigh the presumption of open judicial proceedings, ” because (1) prosecution of this suit will involve disclosure of “information of the utmost intimacy”; (2) “the inherent danger of disclosing her true identity in connection with her history of performing nude or semi-nude . . . may invite opprobrium from her family, friends, community, current employer, and/or prospective employer”; and (3) disclosure of her true identity gives rise to a risk of stalking and assault by current and former patrons. (Id.) She posits that performers engaged in nude and semi-nude dancing frequently use fictitious stage names because of the acknowledged risk of disclosing their true identities and that the defendants will not be prejudiced by the court's permitting her to proceed pseudonymously, because her identity will be disclosed to the defendants. (Id.)

         In the Declaration submitted in support of her motion, the plaintiff attests that she would “have serious concerns for [her] privacy, safety, and personal well-being” if not permitted to proceed pseudonymously. (Doe 2d Decl., Doc. No. 52 ¶ 1.) She avers that she uses a stage name when performing to protect her identity from customers and that this is “common in the adult industry . . . to avoid customers who may seek to contact[] dancers outside of work, for fear that this could escalate to stalking or violence.” (Doc. No. 52 ¶ 10.) She also contends that her parents are “devout members of a Christian church” and that, given her “family's involvement with the church and their religious beliefs, [she] fear[s] that if [she] was publicly identified as an adult entertainer then it would invite criticism and negativity towards [her] and [her] family.” (Doc. No. 52 ¶ 7.) In addition, she fears that in this “day of social media, ” disclosure of her identity could be easily disseminated and used to harass her and her family. (Doc. No. 52 ¶ 11.) And finally, she fears that, without entry of a protective order, the defendants, who are “powerful people in the adult entertainment industry, ” could use knowledge of her true identity to hurt her career. (Doc. No. 52 ¶¶ 13-14.)

         On the basis of these allegations, the plaintiff seeks to pursue this case pseudonymously and requests that the court enter a permanent protective order requiring the defendants to maintain the confidentiality of her identity. In their Response in opposition to the motion, the defendants argue that the plaintiff has not carried her burden of showing that her privacy concerns substantially outweigh the presumption in favor of open judicial proceedings. Specifically, they contend that (1) an unspecified fear of retaliation does not weigh in her favor; (2) she has not provided evidence of a threat of stalking or physical violence; and (3) mere embarrassment about performing as a nude dancer does not outweigh the presumption of open proceedings. They also point out that numerous exotic dancers have brought suit in their own names. (See Doc. No. 58, at 11 n.2 (collecting cases).) The defendants request that, upon denial of the plaintiff's motion, her Complaint be dismissed unless she refiles promptly under her legal name. Their Motion to Dismiss for Lack of Personal Jurisdiction is premised on their argument that the plaintiff has not shown that she should be permitted to proceed pseudonymously.

         B. Standard of Review

         “As a general matter, ” Rule 10 of the Federal Rules of Civil Procedure requires that a complaint state the names of all parties. Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004); Fed.R.Civ.P. 10(a). It is, however, within a district court's discretion to excuse a plaintiff from the requirement that she identify herself if she shows that her “privacy interests substantially outweigh the presumption of open judicial proceedings.” Porter, 370 F.3d at 560. Considerations relevant to that inquiry include, but are not necessarily limited to:

(1) whether the plaintiffs seeking anonymity are suing to challenge governmental activity; (2) whether prosecution of the suit will compel the plaintiffs to disclose information “of the utmost intimacy”; (3) whether the litigation compels plaintiffs to disclose an intention to violate the law, thereby risking criminal prosecution; and (4) whether the plaintiffs are children.

Id. (quoting Doe v. Stegall, 653 F.2d 180, 185-86 (5th Cir. 1981)).

         C. Analysis

         Although the defendants are correct that numerous entertainers in the adult industry have chosen to pursue litigation in their own names, it nonetheless appears that courts presented with properly supported motions to proceed pseudonymously in this context have typically granted them. See, e.g., Balance Studio, Inc. v. Cybernet Entm't, LLC, 204 F.Supp.3d 1098, 1102 (N.D. Cal. 2016) (granting the plaintiff/counter-defendant's motion to proceed anonymously where she worked “in adult sexual education in the area of bondage and sadomasochism”); Jane Roes 1-2 v. SFBSC Mgmt., LLC, 77 F.Supp.3d 990 (N.D. Cal. 2015) (granting nude dancers' motion to proceed pseudonymously). But see 4 Exotic Dancers v. Spearmint Rhino, No. 08-4038, 2009 WL 250054 (C.D. Cal. Jan. 29, 2009) (denying nude dancers' motion to proceed pseudonymously). Here, the court finds that the balance of factors weighs in favor of permitting the plaintiff to file suit pseudonymously, to proceed pseudonymously through this stage in the proceedings, and to maintain the confidentiality of her identity even after dismissal of the suit.

         In support of her motion, the plaintiff testifies that she fears the risk of stalking and physical violence by customers. The defendants argue that such a threat of harm is largely attenuated and hypothetical, pointing out that the plaintiff has not worked for the defendants for more than a year, that only her legal name, and not her stage name, would be present on the pleadings and court filings, and that it is unlikely that any customer from over a year ago would still be interested in finding her and doing her harm and be able identify her by her real name.

         The defendants acknowledge, however, that it is customary in the industry for exotic dancers to use stage names in order to minimize the risk of harassment. (Doc. No. 58, at 7-8.) Moreover, the fact that the plaintiff has not worked for the defendant in over a year is largely immaterial. The plaintiff states in her Declaration: “In my profession, I use a stage name to protect my identity from customers.” (Doc. No. 52 ¶ 3.) This statement indicates that she continues to pursue a career in the world of adult entertainment, even though she does not work for the defendants. And, regardless of whether she continues to work in that field, she runs the risk of having past customers and other unsavory characters pose a threat to her. In light of the ease with which information and images are disseminated in this age of the internet and myriad platforms of social media, the court accepts as true, for purposes of the plaintiff's motion, that the mere fact that a plaintiff self-identifies as an exotic or nude dancer, per se, may place her at risk of harassment and stalking, including cyberstalking. The plaintiff is not required to prove a substantial risk of serious harm by pointing to some concrete or particularized threat. Accord Jane Roes 1-2 v. SFBSC Management, LLC, 77 F.Supp.3d 990, 995 (N.D. Cal. 2015) (rejecting similar argument and finding that this factor weighed in favor of the motion to proceed pseudonymously, noting that the defendants actually admitted that exotic dancers customarily used stage names for reasons of privacy and personal safety and that disclosure of an exotic dancer's true identity “presents a substantial risk of harm”). The court finds that this factor weighs in favor of granting the plaintiff's motion.

         The plaintiff also argues that she fears stigmatization and condemnation, not only for herself but also for her family, if it becomes known in her family's religious community that she works in the sex industry. The defendants, in response, argue that mere embarrassment is not sufficient to support a motion to proceed pseudonymously and that this case is “completely unlike the situation” in Doe v. Porter, where the court found that requiring the plaintiffs to reveal their personal religious beliefs could subject them to harassment. 370 F.3d at 560.

         To the contrary, issues of religion and sexuality, as a cultural matter, are tightly interwoven and are, perhaps, equally highly charged in our society, as the plaintiff's Declaration suggests. Moreover, the possibility of social stigma cannot necessarily be equated with mere embarrassment. See Doe v. Rostker, 89 F.R.D. 158, 161, 162 (N.D. Cal. 1981) (observing that the “common thread” uniting cases where the plaintiffs had been permitted to proceed pseudonymously “is the presence of some social stigma or the threat of physical harm to the plaintiffs attaching to [public] disclosure of their identities, ” and distinguishing such cases from 9 those involving the risk of “some embarrassment or economic harm”). Here, the plaintiff alleges that her parents are devoutly religious members of a Christian church and that, in light of their involvement in the Church and the public's tendency to equate nude dancing (which is legal) with prostitution (which is not), she fears that her public identification as an adult entertainer “would invite criticism and negativity” toward herself and her family, as well as the possibility of confrontation, harassment, and invasion of privacy. (Doc. No. 52 ¶¶ 7-8.) The social stigmatization that the plaintiff could face goes beyond allegations of mere embarrassment. This factor, too, weighs in favor of anonymity. Accord SFBSC Mgmt., 77 F.Supp.3d at 994 (noting that the case brought by exotic dancers fell “into what may be roughly called the area of human sexuality” and that “courts have often allowed parties to use pseudonyms when a case involves topics in this ‘sensitive and highly personal' area”); see Id. (“For purposes of the anonymity discussion, it is enough to observe that courts have regularly responded to the especially sensitive nature of this area and have been willing to grant parties anonymity. The same judicial instinct should apply here.”).

         The defendants here have not identified any possibility of prejudice that might arise from granting the plaintiff's motion, and the court can find none. It is clear from the Declaration of Edwin Culbert (Doc. No. 41-1), filed by the defendants, that the defendants are already aware of the plaintiff's true identity. (See also Stipulated Temporary Protective Order, Doc. No. 46 ¶ 11 (“Counsel for Plaintiffs shall provide to Counsel for Defendants the name, stage name, and approximate performance dates of Jane Does 1-2 as soon as possible upon entry of this Stipulated Order.”).) The fact that, as set forth below, the plaintiff will be required to pursue her claims through arbitration further minimizes any risk of prejudice to the defendants that might be caused by allowing her identity to remain sealed. Moreover, the vast bulk of the court record remains open to the public. The mere fact that the record will not disclose the plaintiff's true name will not impede “public scrutiny of this case's operative issues.” SFBSC Mgmt., 77 F.Supp.3d at 997.

         In light of the absence of prejudice to the defendants or to the public, the court finds that the plaintiff's “privacy interests substantially outweigh the presumption of open judicial proceedings.” Porter, 370 F.3d at 560. The court will therefore grant her motion to file suit pseudonymously and to maintain the confidentiality of her identity beyond the dismissal of this action. Having reached that conclusion, the court will deny as moot the defendants' Motion to Dismiss for Lack of Personal Jurisdiction.

         The plaintiff also seeks to submit all future unredacted collective action consent forms filed by other putative plaintiffs under seal. Because this case will be dismissed in favor of arbitration, the plaintiff's request to file future consent forms under seal will be denied as moot.

         The plaintiff also seeks entry of her proposed Permanent Protective Order (Doc. No. 49-1). This portion of the plaintiff's motion will be granted in part. While the court finds that the plaintiff is entitled to maintain her public anonymity in this action, the terms of the proposed Protective Order are overly broad, particularly given that this case will be referred to arbitration. The court will, however, enter an order directing the defendants to maintain the names and personally identifying information of Jane Doe #1 and #2 in complete confidence and not to disclose the information to any other person, party or entity except as strictly necessary to pursue their defense of this matter in arbitration.

         III. Motion to Reconsider

         The defendants seek an order vacating the court's previous Order (Doc. No. 34) granting the plaintiff's request to be permitted to proceed with this litigation in light of the entry of the Opinion and Order Granting Motion for Final Approval of Settlement in Doe v. Déjà Vu Services, Inc., No. 2:16-cv-10877 (E.D. Mich.) (the “Michigan Action”), by the Honorable Judge Stephen J. Murphy, III. The plaintiff has filed a Response in opposition (Doc. No. 64), and the defendants have filed a Reply (Doc. No. 68). Addressing this motion requires the court to summarize some of the procedural background in this case and in the Michigan Action.

         On January 23, 2017, the same day she filed her amended Complaint, the plaintiff filed her Motion for Notice (Doc. No. 6). Rather than responding to that motion in a timely fashion, the defendants submitted a Notice of Filing Preliminary Injunction Order Enjoining Case (Doc. No. 11) on March 9, 2017, to which were attached a copy of two orders entered in the Michigan Action-an Opinion and Order Granting the [Defendants'] Joint Motion for Preliminary Injunction and a subsequent Order amending the first. (Doc. Nos. 11-1, 11-2.) In the first Order, entered February 9, 2017, issued under the All Writs Act, 28 U.S.C. § 1651, Judge Murphy enjoined all related actions against any “Déjà Vu-Affiliated Nightclubs” from proceeding, pending approval of a nationwide collective-action settlement of the FLSA claims of current and former performers at those establishments. (Doc. No. 11-1, at 3-4.) The Amended Order lifted the injunction as to four cases that had already “either been resolved or ordered to private arbitration” prior to issuance of the original injunction. (Doc. No. 11-2, at 1.) The case now before the undersigned was specifically listed among the enjoined actions in both Orders. (Doc. Nos. 11-1, at 4, 11-2, at 2.) The court takes judicial notice that, of the three other federal cases listed in the Amended Order, two have now been voluntarily dismissed, [2] and the third was referred to arbitration.[3]

         This court conducted a case management conference on April 17, 2017 with counsel for both parties, including defense counsel in the Michigan Action. At that conference and later by written Order, the court directed plaintiff's counsel to file a motion for authorization to proceed with this action, in light of the injunction issued in the Michigan Action. Before the parties had finished briefing that issue, however, the plaintiff filed a Notice of Termination of Michigan All Writs Act Injunction and Plaintiff's Withdrawing Her Motion for Permission to File a Reply and for a Hearing. (Doc. No. 33.) To this Notice, the plaintiff attached a copy of Judge Murphy's June 19, 2017 Opinion and Order granting the parties' joint Motion for Final Approval of Settlement and dismissing the action with prejudice. (Doc. No. 33-2.) That Order does not mention the preliminary injunction or temporary stay at all and does not enter the permanent injunction anticipated by the parties' original Joint Motion for Preliminary Injunction. This court construed the language of both the original Order granting the motion for preliminary injunction and the Order granting final approval of the settlement to mean that the preliminary injunction expired with the court's granting of final approval. The undersigned therefore granted the plaintiff leave to proceed. (See June 22, 2017 Order, Doc. No. 34.)

         The defendants seek reconsideration of this court's determination that the preliminary injunction expired with the entry of the final approval of settlement. They argue that the preliminary injunction remains in effect until the judgment in the Michigan Action becomes final and that it did not expire merely because the Michigan court granted final approval of the settlement. They further point out that the judgment in the Michigan Action has not become final, since several notices of appeal were, in fact, filed by objectors to the settlement, and those appeals remain pending. This court now adheres to its prior decision, for several reasons.

         First, the Joint Motion for Preliminary Injunction, on its face, requested only a stay of other cases against the defendants “pending approval of proposed settlement” and anticipated the entry of a permanent injunction enjoining any FLSA plaintiffs who had opted into the Michigan Action from filing any lawsuits or claims relating to the settled matters. (See Joint Motion, Mich. Doc. No. 27, at 1, 4.[4]) The parties represented to the Michigan court that they believed “a preliminary injunction enjoining all Pending Proceedings against Defendants nationwide- pending approval of the proposed settlement-enjoining all FLSA opt-in plaintiffs . . . from filing new lawsuits or claims relating to the settled claims” was necessary to facilitate the pending nationwide settlement. (Id.) The relief they sought was basically consistent with that representation: they specifically moved the court to “issue a preliminary injunction enjoining all Pending Proceedings against Defendants nationwide pending approval of the proposed settlement and enjoin all FLSA opt-in plaintiffs . . . from filing new lawsuits relating to the settled claims.” (Id. (emphasis added).)

         It is widely accepted, as the defendants themselves have acknowledged, that settlements of the type they were putting together in the Michigan Action go through two stages of approval: a preliminary approval and a final approval. (See Doc. No. 68, at 2 (“Generally, as to the approval of a class action settlement agreement, ‘final' refers to the approval stage. There is a preliminary approval, which precedes notice to the class, and then a final approval, if appropriate, following notice and the opt-in/opt-out period.”).) At the time they filed their Joint Motion, their Motion for Preliminary Approval was still pending. The Michigan court granted that motion (Mich. Doc. No. 31) before addressing their Joint Motion for ...


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