Malibu Media, LLC v. John Does 1-22

Filing 56

MINUTE ORDER denying without prejudice 33 Motion for Leave, 34 Motion for Protective Order, 35 Motion to Quash, and 36 Motion to Sever and Dismiss. The court will allow defendant John Doe 19 to re-file the motions on or before 11/26/12 as stated in the order. See order for further details. By Magistrate Judge Michael E. Hegarty on 11/14/12. (kfinn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02598-REB-MEH
MALIBU MEDIA, LLC,
Plaintiff,
v.
JOHN DOES 1-22,
Defendants.

MINUTE ORDER
Entered by Michael E. Hegarty, United States Magistrate Judge, on November 14, 2012.
Before the Court are Defendant Doe 19's unopposed Motion for Leave to Proceed
Anonymously [filed November 9, 2012; docket #33], Motion for Protective Order [filed November
9, 2012; docket #34], Motion to Quash [filed November 9, 2012; docket #35] and Motion to Sever
[filed November 9, 2012; docket #36]. The motions were filed contemporaneously and signed by
“John Doe No. 19" purporting to proceed pro se in this matter. However, the Motion for Leave to
Proceed Anonymously contains a certificate required by D.C. Colo. LCivR 7.1A, which states in
pertinent part, “... counsel for Defendant has attempted to confer with Plaintiff’s counsel concerning
the relief Defendant seeks herein.” Further, it appears that the motions have been written by
someone with formal legal training.
To the extent that these motions have been prepared by an attorney for a pro se litigant, the
Tenth Circuit has concluded that such “ghost writing” is improper. Patton v. West, 276 F. App’x
756, 757 n. 1 (10th Cir. 2008) (“We note that an attorney who ‘ghost writes’ a brief for a pro se
litigant may be subject to discipline both for a violation of the rules of professional conduct and for
contempt of court.”) (citing Johnson v. Bd. of Cnty. Comm’rs, 868 F. Supp. 1226, 1231-32 (D. Colo.
1994), rev’d in part on other grounds, 85 F.3d 489 (10th Cir. 1996) (“[ ]ghost-writing has been
condemned as a deliberate evasion of the responsibilities imposed on counsel by Rule 11.” ).
Here, it is unclear whether the motions were prepared by an attorney; therefore, the Court
will deny the motions without prejudice, and allow Doe 19 to re-file the motions as follows: on
or before November 26, 2012, Doe 19's attorney may re-file the motions by properly signing the
motions in his or her name as a representative of Doe 19. See Barnett v. LeMaster, 12 F. App’x 774,
778 (10th Cir. 2001) (“any ghostwriting of an otherwise pro se brief must be acknowledged by the
signature of the attorney involved”) (quoting Duran v. Carris, 238 F.3d 1268, 1273 (10th Cir. 2001).
Or, to the extent that Doe 19 is truly proceeding pro se in this matter, Doe 19 may re-file the motions
by properly signing them as a pro se litigant and by filing with such motions a written supplement
explaining why his Rule 7.1A certification refers to “counsel for Defendant.”

The Court may strike any motion or other filing that deviates from the requirements of this
order or from those set forth in the applicable local or federal rules.
The Court notes that, to preserve the confidentiality of a pro se John Doe litigant who has
been granted leave to proceed anonymously in this case, the Court will not require compliance with
D.C. Colo. LCivR 7.1A by such pro se litigant. However, to the extent a John Doe litigant is
represented by counsel, such counsel must abide by Local Rule 7.1A and all other applicable rules.
Further, the Court directs the Clerk of the Court to maintain under Restriction Level 2 the
document located at docket #37 until further order of the Court.
Finally, the Court directs the Clerk of the Court to mail a copy of this order to the address
provided by Doe 19 in the filing at docket #37, without publicly disclosing the information provided
therein.

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