Doe v. DéJà Vu Consulting Inc.

Decision Date01 September 2017
Docket NumberCase No. 3:17-cv-00040
PartiesJANE DOE #1, Plaintiff, v. DÉJÀ VU CONSULTING INC. et al., Defendants.
CourtU.S. District Court — Middle District of Tennessee

Judge Aleta A. Trauger


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, 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 ofdisclosing 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...

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