Category Archives: Commercial Litigation

Court Defines Test for Filing Anonymous Lawsuit

Whereas many Internet defamation cases involve anonymous defendants, there are many situations in which a plaintiff wants to remain anonymous. For example, a victim of defamatory comments of a sexual nature may wish to remain anonymous to avoid public humiliation.

In general, a plaintiff must place his name on a pleading in order to sue in federal court because courts have held that the public has a right to know in such instances. However, a court may allow a litigant to bring suit anonymously under certain, limited circumstances. In determining whether to make this allowance, the court will conduct a balancing test, weighing the plaintiff’s need for anonymity against the interests of public disclosure.

In a recent case before the United States Court of Appeals for the Second Circuit, the Court reversed a lower court’s decision which dismissed a plaintiff’s claim merely because she had filed the suit without using her name. Sealed Plaintiff v. Sealed Defendant #1, 06-1590-cv (2nd Cir. 2008). In that case, a female plaintiff who claimed to have been the victim of a sexual assault sought to file a lawsuit against the alleged perpetrator without disclosing her name. In support of its decision, the Court cited the Ninth Circuit case Does I through XXIII v. Advanced Textile Corp., 214 F.3d 1058 (9th Cir. 2000), which outlined a standard for determining whether a litigant may file suit anonymously. There, the Court found that a plaintiff may only sue anonymously if his need for anonymity outweighs both the prejudice to the opposing party and the public’s interest in knowing the plaintiff’s identity.

Applying that same standard, the Second Circuit Court in Sealed Plaintiff outlined a series of factors to be considered in conducting the balancing test, which are: (a) whether the litigation involves matters that are highly personal or sensitive, or a plaintiff that is particularly vulnerable; (b) whether there is a risk of retaliation against the party filing suit or any innocent non-parties; (c) whether the identification presents other harms and the severity of those harms; (d) whether plaintiff is particularly vulnerable to possible harms of disclosure; (e) whether the suit is challenging actions of government or that of private parties; (f) whether defendant is prejudiced by allowing plaintiff to press claims anonymously; (g) whether plaintiff’s identity has thus far been kept confidential; (h) whether public’s interest in litigation is furthered by requiring plaintiff to disclose his identity; (i) whether because of the purely legal nature of issues presented or otherwise there is atypically weak public interest in knowing the litigants identities; and (j) whether there are any alternative mechanisms for protecting confidentiality of plaintiff. Ultimately, the Court determined that given the nature of the claim, the plaintiff’s interest in keeping her name anonymous was more important than the public interest in knowing her identity.

In light of this decision, potential plaintiffs should note that a court may allow them to file suit anonymously in certain instances. However, they should also be wary that courts are likely to allow them to do so only under narrow circumstances, such as where the facts or allegations surrounding a claim are of a particularly sensitive or personal nature.

Comments/Questions: ljm@gdnlaw.com

© 2008 Nissenbaum Law Group, LLC

Serving Defendants in Anonymous Internet Defamation Lawsuits

As the Internet continues to change the way we communicate, courts have struggled to determine the appropriate application of due process to those accused of defaming others online. Clearly, defamation claims involving comments made by an anonymous Internet poster are unique. Often the speaker is anonymous or his contact information is otherwise unavailable. Furthermore, because of the speed and widespread use of the Internet, the author may often reside in a different state or country than the reader or then the defamation victim. For these reasons, serving a summons and complaint, necessary to commence the lawsuit on such an individual can be especially challenging.

For instance, when a defendant is sued via a “John Doe” complaint, the plaintiff will generally have to demonstrate the efforts that he undertook to serve the defendant. For example, the plaintiff could show that he gave notice of the lawsuit by posting a message on the same website where the allegedly defamatory statements were made by the defendant. While this is usually not sufficient service in and of itself, this technique can be added to other forms of notice in a manner that some Courts might determine was sufficient service.

Typically, where an allegedly defamatory comment is made online, the only identifier that can be used to link the defamer to the comment is his email and I.P. address. In such a scenario, a plaintiff may try to serve the legal documents via email. However, where comments are made in online forums and message boards, the email address of the speaker may also be unknown. In such instances, a litigant will often sue the unknown individual using a “John Doe” complaint, or a complaint which names the defendant under the fictitious name “John Doe.”

If the plaintiff can demonstrate that he undertook sufficient efforts to serve the defendant, courts will usually permit him to bring an inquest to find out the identity of the anonymous poster. Once the defendant’s identity is discovered, the plaintiff may be required to amend the complaint to reflect the actual name of the party. He may also have to notify that party of the impending lawsuit. Some plaintiffs have gotten creative lately. For example, one plaintiff posted a message on an internet message board. That message contained a copy of the summons and notice asking the defendants to contact the attorney for the plaintiff in order to deliver a copy of the summons and complaint.

As the Internet grows and scope and complexity, both Courts and Legislatures will need to address in more detail the important issue of service of process on line.

Comments/Questions: ljm@gdnlaw.com

© 2008 Nissenbaum Law Group, LLC

Enforcing A Foreign Judgment In New York: Application of the Hague Convention

Commercial Litigation: Let’s assume that you obtain a judgment for monetary damages in another country and you now want to satisfy that judgment by levying on assets that are in the State of New York. Before doing so, you generally have to institute an action in New York so that the State will recognize the foreign judgment. The Courts will recognize a foreign judgment only where

(i) the court that issued the foreign judgment had personal jurisdiction over the debtor;
(ii) the court that issued the foreign judgment had subject matter jurisdiction over the case;
(iii) the court that issued the foreign judgment engaged in procedures in accordance with due process of law; and
(iv) enforcing the judgment will not be unfair or in direct contravention to the public policies of the State of New York.

In determining whether a foreign country had personal jurisdiction over the debtor, the Court will often look to see if the foreign county complied with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, assuming that the foreign country is a signatory of this convention. Under the Hague Convention, service is proper where the document is served in accordance with the internal laws of the participating country. For instance, if a creditor is seeking to enforce a French judgment in the United States, service would be proper if made in accordance with United States law.

In addition, a participating country may require a document to be translated into the official language of the country in which an individual or entity is seeking to enforce the judgment. However, this obligation is not automatic. The United States Department of Justice, for instance, does not require that documents be translated in English when serving a defendant in the United States. Thus, where a debtor in the United States is served with a legal document that he cannot understand, it nonetheless constitutes sufficient notice for jurisdictional purposes.

In light of the various rules and requirements applicable to the enforcement of foreign judgments in New York, it is important to consult an attorney before seeking to enforce such a judgment. Moreover, it is generally recommended that you consult with an attorney where you are looking to enforce the judgment, regardless of where the lawsuit is being brought, at the outset of the litigation process. This can help to ensure that the service and general proceeding of the litigation are conducted in a manner so as to conform with the rules of the jurisdiction where the judgment will be enforced.

Comments/Questions: ljm@gdnlaw.com

© 2008 Nissenbaum Law Group, LLC