Free Now Foundation, et al. v. Poway Unified School District, et al.

Opinion

1 2 3 4 5 6 7 8 11 12 FREE NOW FOUNDATION, et al., Case No.: 26-cv-02937-AJB-BJW

13 Plaintiffs, ORDER REQUIRING PLAINTIFFS 14 v. TO FILE AMENDED COMPLAINT DISTRICT, et al., 16 Defendants. 17

18 19 On May 14, 2026, the Court issued an order to show cause why Plaintiff P.H. should 20 be permitted to proceed by pseudonym. (Doc. No. 4.) Plaintiffs Free Now Foundation, 21 A.T., and P.H. (collectively “Plaintiffs”) timely filed a response. (Doc. No. 5.) On May 28, 22 2026, the Court held a Show Cause Hearing. (Doc. No. 6.) This Order follows. 23 I. Background 24 On May 13, 2026, Plaintiffs initiated this lawsuit, alleging violations of the 25 Americans with Disabilities Act and Rehabilitation Act against Defendant Poway Unified 26 School District (“PUSD”) related to P.H.’s request for A.T., a PUSD student, to be 27 exempted from all vaccination requirements if and when his individualized education plan 28 expires in November 2026. (Doc. No. 1, Complaint (“Compl.”).) 1 Plaintiffs initially filed a nearly identical complaint on December 5, 2025, against 2 the same Defendants, alleging the same claims. See Free Now Found. v. Poway Unified 3 Sch. Dist., 25-cv-03452-AJB-MSB (S.D. Cal. Dec. 5, 2025), Doc. No. 1. There, as here, 4 Plaintiffs’ complaint refers to both A.T., a minor, and P.H., the minor’s mother, by their 5 initials. See generally id. On April 6, the Court issued an order to show cause why P.H. 6 should be permitted to proceed under a pseudonym. Free Now Found. v. Poway Unified 7 Sch. Dist., 25-cv-03452-AJB-MSB S.D. Cal. Apr. 6, 2026), Doc. No. 9. Although the Court 8 gave Plaintiffs through April 13, 2026, to file a response, Plaintiffs failed to do so. On 9 April 29, 2026, the Court issued an order requiring Plaintiffs to file an amended complaint 10 no later than May 6, 2026, and warning Plaintiffs that failure to do so may result in 11 dismissal of the action. Free Now Found. v. Poway Unified Sch. Dist., 25-cv-03452-AJB- 12 MSB (S.D. Cal. Apr. 29, 2026), Doc. No. 11. Again, Plaintiffs failed to file anything. 13 Accordingly, on May 7, 2026, the Court dismissed the action without prejudice. Free Now 14 Found. v. Poway Unified Sch. Dist., 25-cv-03452-AJB-MSB (S.D. Cal. May 7, 2026), Doc. 15 No. 12. 16 On May 13, 2026, Plaintiffs refiled the complaint, which was randomly assigned to 17 the undersigned. (See generally Compl.) In the instant action, Plaintiffs have newly alleged 18 that “P.H. has requested to remain anonymous in this Case because revealing her identity 19 would lead to the identification of her minor child who should be protected from potential 20 retaliation and harassment.” (Compl. ¶ 15.) In response to the Order to Show Cause, 21 Plaintiffs filed a response adding that “naming P.H. would likely reveal A.T.’s identity as 22 well, because this action concerns a small local elementary school and a highly sensitive 23 issue—whether an unvaccinated child may avoid vaccination requirements.” (Doc. No. 5 24 at 2.) Plaintiffs further assert that P.H.’s fears are reasonable and not speculative because 25 “school communities are notorious for gossip,” “unvaccinated children may face scrutiny, 26 stigma, or social attention in school and community settings, and public disclosure would 27 increase the likelihood of that harm.” (Id.) 28 On May 28, 2026, the Court held a Show Cause Hearing. (Doc. No. 6.) Plaintiffs 1 failed to appear, file a request to appear remotely or to continue the hearing, or otherwise 2 contact the Court leading up to or during the hearing. (Id.) After the hearing concluded, an 3 assistant from Plaintiff Counsel’s firm sent an unauthorized email through the Court’s 4 general inquiry form stating “there was confusion in [their] office” because they “believed 5 it was a remote hearing[.]” 6 II. Legal Standard 7 “[T]he courts of this country recognize a general right to inspect and copy public 8 records and documents, including judicial records and documents.” Nixon v. Warner 9 Commc’ns, Inc., 435 U.S. 589, 597 (1978); see also Fed. R. Civ. P. 10(a) (“The title of the 10 complaint must name all the parties[.]”); Fed. R. Civ. P. 17(a)(1) (“An action must be 11 prosecuted in the name of the real party in interest.”). Generally, in federal court, a 12 “[p]laintiff[’s] use of [a] fictitious name[] runs afoul of the public’s common law right of 13 access to judicial proceedings and Rule 10(a)’s command that the title of every complaint 14 ‘include the names of all the parties.’” Does I thru XXIII v. Advanced Textile Corp., 214 15 F.3d 1058, 1067 (9th Cir. 2000) (first citing Nixon, 435 U.S. at 598–99 and EEOC v. 16 Erection Co., 900 F.2d 168, 169 (9th Cir. 1990); then quoting Fed. R. Civ. P. 10(a)). 17 However, there are “special circumstances justify[ing] secrecy” wherein “many 18 federal courts, including the Ninth Circuit, have permitted parties to proceed 19 anonymously[.]”Advanced Textile Corp., 214 F.3d at 1067. For example, federal courts 20 protect the privacy of minors by requiring that any filing containing “the name of an 21 individual known to be a minor” include only “the minor’s initials.” Fed. R. Civ. P. 22 5.2(a)(3). Additionally, “[i]n this circuit . . . parties [may] use pseudonyms in the ‘unusual 23 case’ when nondisclosure of the party’s identity ‘is necessary . . . to protect a person from 24 harassment, injury, ridicule or personal embarrassment.’” Advanced Textile Corp., 214 25 F.3d at 1067–68 (quoting United States v. Doe, 655 F.2d 920, 922 n.1 (9th Cir. 1981)). 26 “[A] district court must balance the need for anonymity against the general presumption 27 that parties’ identities are public information and the risk of unfairness to the opposing 28 party.” Id. at 1068. 1 III. Discussion 2 As a preliminary matter, the Court notes that this decision is based solely on the 3 merits of Plaintiffs’ response to the Order to Show Cause. Plaintiffs’ failure to appear and 4 unauthorized communication with the Court had no bearing on the decision.1 All agree 5 A.T., as a minor, must appear before the Court only by his initials. See 6 Fed. R. Civ. P. 5.2(a)(3). At issue is whether P.H. should be permitted to proceed by 7 pseudonym, not for her own privacy, but to further safeguard A.T.’s identity. (See 8 generally Doc. No. 5.) To that end, Plaintiffs’ arguments fall into two categories: 9 (1) blanket protection stemming from Rule 5.2 and (2) balancing of Ninth Circuit factors. 10 The Court addresses each in turn. 11 First, Plaintiffs argue that “naming P.H. would likely reveal A.T.’s identity as well” 12 because, with “this action concern[ing] a small local elementary school,” “the combination 13 of the child’s initials, the parent’s initials, and the specific facts alleged may be enough for 14 community members to identify the family[.]” (Doc. No. 5 at 2.) The privacy protection 15 afforded minors by Rule 5.2 does not go so far as to provide true anonymity. The Rule does 16 not require a true pseudonym for minors; nor does it contemplate similar redactions for 17 guardian ad litems or parental parties to suits involving minors. Logically, Plaintiffs’ 18 argument that requiring a parent to proceed under her own name would “defeat the privacy 19 protection Rule 5.2 is designed to preserve” would require all guardians ad litem to be 20 referred to by initials (see Doc. No. 5 at 2)—a broad proposition unmoored from precedent. 21 22 23 1 Plaintiffs Counsel’s assistant sending an email twenty-four minutes after the hearing was scheduled to commence (four minutes after the hearing concluded) stating that counsel thought the 24 appearance was remote is woefully inadequate in myriad ways. (See Doc. No 4 at 4 (“A Show Cause 25 hearing is hereby SET for May 28, 2026, at 10:00 AM in Courtroom 4A before the undersigned. See J. Battaglia Civ. Case Proc. § II.”) (emphasis in original).) J. Battaglia Civ. Case Proc. § II.A (“In-Person 26 Default: Unless otherwise ordered, all law and motion hearings will be conducted in person in Courtroom 4A of the Edward J. Schwartz U.S. Courthouse, located at 221 West Broadway San Diego, CA 92101.”) 27 (emphasis in original). See also J. Battaglia Civ. Case Proc. §§ I.A (“Letters or emails to chambers are prohibited unless specifically requested by the Court.”), I.C (“Only counsel of record with knowledge of 28 1 Beyond citing the legal standard for proceeding by pseudonym, Plaintiffs proffer no case 2 law to support their stance, nor is the Court independently aware of any. 3 Second, Plaintiffs argue the need for anonymity outweighs the presumption of public 4 access and risk of unfairness to PUSD. (Id.) Specifically, Plaintiffs argue that (1) A.T. 5 would be at “real risk” of facing “scrutiny, stigma, or social attention” in school and from 6 the community for being unvaccinated and (2) PUSD will not be meaningfully prejudiced 7 because they are aware of Plaintiffs’ identities. (Id.) 8 “To determine whether to allow a party to proceed anonymously when the opposing 9 party has objected, a district court must balance five factors: ‘(1) the severity of the 10 threatened harm, (2) the reasonableness of the anonymous party’s fears, . . . (3) the 11 anonymous party’s vulnerability to such retaliation,’ (4) the prejudice to the opposing 12 party, and (5) the public interest.” Doe v. Kamehameha Schs./Bernice Pauahi Bishop Est., 13 596 F.3d 1036, 1042 (9th Cir. 2010) (quoting Advanced Textile Corp., 214 F.3d at 1068). 14 “The most common instances [where courts permit parties to proceed anonymously] are 15 cases involving abortion, mental illness, personal safety, homosexuality, transsexuality and 16 illegitimate or abandoned children in welfare cases. The common thread running through 17 these cases is the presence of some social stigma or the threat of physical harm to the 18 plaintiffs attaching to disclosure of their identities to the public record.” Doe v. Rostker, 89 19 F.R.D. 158, 161 (N.D. Cal. 1981) (citations omitted). 20 Here, Plaintiffs do not allege a threat of physical harm. Instead, Plaintiffs assert that 21 A.T. would likely face “scrutiny, stigma, or social attention” due to his vaccination status. 22 The Court is unaware of any courts finding vaccination status to be a sensitive category for 23 which social stigma would be sufficiently intense to warrant the unusual protection of 24 proceeding by pseudonym. Moreover, Plaintiffs proffer no specifics, regarding severity of 25 the potential harm or even what that potential harm of scrutiny, stigma, and social attention 26 would be. The general possibility of a community’s social commentary or judgment on a 27 member, such as posited here, has been found insufficient in other courts throughout this 28 Circuit. See, e.g., Hindu Am. Found., Inc. v. Kish, No. 2:22-CV-01656-DAD-JDP, 2024 1 WL 3794056, at *3 (E.D. Cal. Aug. 13, 2024) (“[M]erely expressing fear of disagreement 2 or disapproval by community members is insufficient to support a pseudonymous 3 lawsuit.”); Roe v. San Jose Unified Sch. Dist. Bd., No. 20-CV-02798-LHK, 2021 WL 4 292035, at *9 (N.D. Cal. Jan. 28, 2021) (“Yet Doe and Roe do not aver any actual threat 5 or any specific people who would pose a threat. At most, Doe and Roe show that many in 6 their community disagree with their beliefs. Community disagreement and any resulting 7 ‘embarrassment or economic harm is not enough’ to support a pseudonymous lawsuit.”); 8 Am.’s Frontline Drs. v. Wilcox, No. EDCV211243JGBKKX, 2022 WL 1514044, at *3 9 (C.D. Cal. Jan. 7, 2022) (“Plaintiffs do not plausibly allege harm or any future harassment. 10 The allegations are vague, conclusory, and do not hint at potential repercussion, retaliation, 11 or intimidation. Plaintiffs allege only the desire to avoid perceived intimidation or 12 repercussion. Whether the on-campus community would disagree with their stance is not a 13 ‘risk of retaliatory physical or mental harm.’ Community disagreement which results in 14 ‘embarrassment . . . is not enough’ to support the use of pseudonyms.”); Day v. California 15 Lutheran Univ., No. 821CV01286JLSDFM, 2022 WL 2965769, at *4 (C.D. Cal. June 9, 16 2022) (“However, such evidence does not amount to threats of severe harm, as it at most 17 shows that Plaintiffs fear community disapproval of their actions or social ostracization.”). 18 Considering the remaining factors, the Court finds that there has been no showing 19 that PUSD would be prejudiced by Plaintiffs’ request. As such, prejudice does not weigh 20 against Plaintiffs’ request. Finally, although A.T. is a minor and thus a more vulnerable 21 litigant, this request is not to anonymize A.T.—an action this Court has already approved 22 of pursuant to Rule 5.2. Instead, Plaintiffs’ request is to protect P.H.’s identity for the 23 indirect benefit of A.T. Considering that P.H. is an adult and Plaintiffs proffer no argument 24 or analysis as to P.H.’s vulnerability, the Court finds this factor does not weigh in favor of 25 anonymity. 26 In balancing the Ninth Circuit factors, the Court finds that Plaintiffs’ general 27 allegations of potential “scrutiny, stigma, or social attention,” as an adult without any 28 particular vulnerability alleged is insufficient to outweigh the public’s right to access and | presumption that parties’ identities are public. However, the Court acknowledges that 2 ||the record will likely include certain private medical or health information as litigation 3 || progresses, which may warrant protection especially in light of A.T.’s age. With that in 4 mind, the parties should convene to draft a joint motion for entry of a protective order and 5 || consider filing motions to seal redactions of select information pursuant to the applicable 6 || Ninth Circuit standard in conjunction with future filings. 7 Conclusion 8 Having found Plaintiffs fail to meet their burden, the Court ORDERS Plaintiffs to 9 || file either (1) a first amended complaint, fully naming P.H.,” or (2) a notice of voluntary 10 || dismissal no later than June 15, 2026.° If this action is dismissed without prejudice for any 11 |/reason and Plaintiffs choose to file another complaint alleging the same claims asserted 12 herein, the Court ORDERS that Plaintiffs and their counsel must file a notice of related 13 connecting the newly initiated action to this action and its predecessor concurrently 14 || with the new complaint. See CivLR 40.1.f. Failure to comply with this order will lead to 15 imposition of sanctions. 17 Dated: June 1, 2026 © ¢ 18 Hon. Anthony J.Battaglia 19 United States District Judge 20 21 22 2 Plaintiffs are cautioned that their initial pleading also violated this district’s Civil Local Rules. See 23 || CivLR 5.1.a (“Each document filed, including exhibits where practicable, must be in English, plainly 24 written, or typed in double space on one side of the document, line numbered in the left margin with not more than 28 lines per page, and letter size.”) (emphasis added), 5.1.1 (listing all the information 25 || required on the title page of every filing). Any future non-compliant filings will be stricken. 3 Failure to timely comply with this Order will result in dismissal with prejudice pursuant to Rule 26 || 41(b) of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 41(b) (“Unless the dismissal order states otherwise, a dismissal under this subdivision (b) [for failure to prosecute or comply with a court order] 27 operates as an adjudication on the merits.”); Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992), as 28 amended (May 22, 1992) (“[A] district court’s warning to a party that his failure to obey the court’s order will result in dismissal can satisfy the ‘consideration of alternatives’ requirement.”).