Florida Action Committee, Inc. v. Seminole County et al
ORDER overruling 58 Plaintiff's Objections to the Magistrate's Order Denying Plaintiff's Motion for Protective Order; affirming 57 the Magistrate Judge's April 29, 2016 Order denying Plaintiff's Motion for Protective Order. Signed by Judge Paul G. Byron on 10/18/2016. (SEN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FLORIDA ACTION COMMITTEE, INC.,
Case No: 6:15-cv-1525-Orl-40GJK
SEMINOLE COUNTY and DONALD F.
ESLINGER in his official capacity,
This cause comes before the Court on Plaintiff’s Objections to the Magistrate’s
Order Denying Plaintiff’s Motion for Protective Order (Doc. 58), filed May 16, 2016. On
June 2, 2016, Defendants responded. Upon consideration, Plaintiff’s objections will be
overruled and the Magistrate Judge’s Order will be affirmed.
Plaintiff, Florida Action Committee, Inc. (“FAC”), is a voluntary membership
organization which seeks to reform Florida’s sexual offender laws and registry. On behalf
of its members, FAC initiated this lawsuit against Seminole County and Sheriff Donald F.
Eslinger (collectively, “Seminole County”) to assert a number of constitutional challenges
against Seminole County Ordinance 2005-41 (the “Ordinance”). Relevant to this case,
the Ordinance establishes a 1,000-foot exclusion zone around every school, daycare
center, park, and playground within Seminole County’s jurisdictional limits and proscribes
sexual offenders and predators from traveling through or remaining in these exclusion
zones. Violation of the Ordinance is a misdemeanor punishable by a fine of up to $500
and/or sixty days in jail. FAC contends that the Ordinance is impermissibly vague,
violates procedural due process, acts as an unconstitutional ex post facto law, infringes
on the first amendment right to freedom of association, and violates the Florida
Constitution’s guarantee to freedom of intrastate travel. In support of its claims, FAC has
identified Does #1–4 (collectively, the “Does”) as some of its members who are registered
sexual offenders or predators and who have been adversely affected by the Ordinance.
In its operative complaint, FAC details the Does’ unique experiences regarding the
Ordinance and how the Ordinance has impacted their lives.
The parties are currently engaged in discovery. On December 21, 2015, FAC filed
a Motion for Protective Order under Federal Rule of Civil Procedure 26(c) to prohibit the
public disclosure of the Does’ identities. On April 29, 2016, Magistrate Judge Gregory J.
Kelly entered an Order denying FAC’s motion.
Magistrate Judge Kelly
determined that, after weighing the relevant factors, FAC failed to demonstrate good
cause to warrant the issuance of a protective order. FAC now appeals Magistrate Judge
Kelly’s decision to the undersigned. Seminole County has responded and this matter is
ripe for review.
STANDARD OF REVIEW
A district judge may designate a magistrate judge to hear and determine both
dispositive and non-dispositive matters. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(a),
(b). Regardless of whether a magistrate judge rules on a dispositive or a non-dispositive
matter, any party who disagrees with the magistrate judge’s decision has fourteen days
from the date of the decision to object to those specific portions of the decision disagreed
with. Fed. R. Civ. P. 72(a), (b)(2). When objection is made to the decision of a non-
dispositive matter, as is the case here, the district judge must review the magistrate
judge’s decision for clear error. Fed. R. Civ. P. 72(a). In reviewing the decision, the
district judge affords the magistrate judge considerable deference and will only set aside
those portions of the decision that are contrary to law or that, upon review of the entire
record, leave the district judge “with the definite and firm conviction that a mistake has
been committed.” Malibu Media, LLC v. Doe, 923 F. Supp. 2d 1339, 1346–47 (M.D. Fla.
2013) (quoting Holton v. City of Thomasville Sch. Dist., 425 F.3d 1325, 1350 (11th Cir.
2005)). Importantly, the question for the district judge is not whether the magistrate
judge’s decision is “the best or only conclusion that can be drawn from the evidence, or
whether it is the one which the [district judge] would draw,” but rather whether the
magistrate judge’s decision is reasonable and supported by the record. Heights Cmty.
Cong. v. Hilltop Realty, Inc., 774 F.2d 135, 140 (6th Cir. 1985).
Federal Rule of Civil Procedure 26 permits a district court to “issue an order to
protect a party or person from annoyance, embarrassment, oppression, or undue burden
or expense.” Fed. R. Civ. P. 26(c)(1). The party or person moving for a protective order
must demonstrate “good cause” for the relief requested. Id.; In re Alexander Grant & Co.
Litig., 820 F.2d 352, 356 (11th Cir. 1987) (per curiam). Good cause requires the movant
to articulate specific facts, as opposed to “stereotyped and conclusory statements,” which
justify the protection sought. United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir.
1978). 1 Additionally, the Eleventh Circuit “has superimposed a ‘balancing of interests’
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all of the decisions of the former Fifth
Circuit that were handed down prior to October 1, 1981.
approach” to aid district courts in determining whether good causes exists. In re
Alexander Grant, 820 F.2d at 356 (quoting Farnsworth v. Procter & Gamble Co., 758 F.2d
1545, 1547 (11th Cir. 1985)). “This standard requires the district court to balance the
party’s interest in obtaining access against the other party’s interest in keeping the
information confidential.” Chi. Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304,
1313 (11th Cir. 2001) (per curiam).
In this case, FAC moved for a protective order to prohibit the public disclosure of
the Does’ identities. As a preliminary matter, different standards apply when a party seeks
to proceed anonymously versus when a non-party witness seeks to shield their identity
from the record. As the Magistrate Judge aptly observed in his Order, the Does are not
parties to this lawsuit, but are members of FAC who hold knowledge of the disputed
issues in this case and have allegedly been affected by the Ordinance. However, although
the Magistrate Judge found that the Does are best characterized as witnesses, he
determined that the rules governing party anonymity are more instructive than the rules
governing non-party witness anonymity in this particular case. The undersigned agrees
with the Magistrate Judge’s analysis on this point, especially in a case where FAC’s
associational standing is necessarily predicated on at least one of the Does having
individual standing to bring FAC’s claims. (See Doc. 61, pp. 5–7). 2
To that end, the Eleventh Circuit has identified several factors for district courts to
consider in determining whether a party should be permitted to proceed anonymously,
including: (1) whether the party challenges government activity, (2) whether the party will
The Court additionally notes that neither party objects to the Magistrate Judge’s
application of the law governing party anonymity to FAC’s motion for protective order.
be “required to disclose information of the utmost intimacy,” (3) whether the party will be
coerced into admitting illegal conduct or the intent to commit illegal conduct, thereby
risking criminal prosecution, (4) whether the party is a minor, (5) whether the party will be
exposed to physical violence should he or she proceed in their own name, and (6) whether
proceeding anonymously “pose[s] a unique threat of fundamental unfairness to the
defendant.” Plaintiff B v. Francis, 631 F.3d 1310, 1316 (11th Cir. 2011). Courts may
consider other factors as well based on the particularities of each case, and no single
factor is necessarily dispositive. Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992) (per
curiam). Overall, proceeding anonymously is an exceptional circumstance, as there is a
heavy presumption favoring openness and transparency in judicial proceedings. See id.
In his Order, the Magistrate Judge examined all six of the factors listed above.
First, the Magistrate Judge found that the Does themselves are not challenging
government activity because they are not parties to this case. Second, the Magistrate
Judge found that revealing the Does’ identities does not constitute the disclosure of
intimate information since the Does’ identities and the crimes leading to their registration
as sexual offenders or predators are already matters of public record. Third, the
Magistrate Judge noted that none of the Does appear to be minors. Fourth, the Magistrate
Judge found that, although the Does hold sincere fears of facing physical violence for
their participation in this litigation, they failed to sufficiently demonstrate that their fears
were more than conjectural. Fifth, the Magistrate Judge determined that the Does failed
to substantiate that they would be subject to criminal prosecution under the Ordinance
were their identities revealed. The Magistrate Judge concluded that these five factors
weighed against a protective order. Regarding the sixth factor, the Magistrate Judge
observed that Defendants did not contend that they would be prejudiced by a protective
order; consequently, the Magistrate Judge found that this factor weighed in favor of the
The Magistrate Judge considered two additional factors as well. First, FAC raised
the issue of whether denying the protective order would chill this litigation. In its motion,
FAC represented that the Does would no longer cooperate as witnesses were they not
permitted to proceed anonymously and that this case would fail as a result. The
Magistrate Judge found this factor unavailing, however, observing that the Does are not
the only witnesses who could aid FAC in pursuing its claims. Second, the Magistrate
Judge considered whether the public interest would be served by granting the protective
order. The Magistrate Judge ultimately determined that it would not, as the constitutional
claims raised by FAC in this case are of great public importance and demand open judicial
proceedings. After weighing these eight factors, the Magistrate Judge concluded that
FAC failed to demonstrate good cause for the protective order it sought.
FAC now raises three specific objections to the Magistrate Judge’s analysis. First,
FAC submits that the Magistrate Judge departed from legal authority supporting the need
to protect the Does’ identities. Second, FAC states that the Magistrate Judge failed to
give sufficient weight to evidence demonstrating that the Does are likely to face physical
violence should their identities not be protected. Third, FAC asserts that the Magistrate
Judge overemphasized the public’s interest in open judicial proceedings. FAC reasons
that, had the Magistrate Judge correctly weighed the pertinent factors, he would have
concluded that a protective order was justified.
On FAC’s first objection, the undersigned finds that the Magistrate Judge did not
clearly err in applying the law governing party anonymity. It is FAC’s position that the
Magistrate Judge departed from a line of cases in which plaintiffs proceeded
anonymously when challenging the constitutionality of sex offender laws. See Smith v.
Doe, 584 U.S. 84 (2003); Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1 (2003); Doe v.
Moore, 410 F.3d 1337 (11th Cir. 2005); Doe v. Baker, No. 05-cv-2265, 2006 WL 905368
(N.D. Ga. Apr. 5, 2006); Doe v. Pryor, 61 F. Supp. 2d 1224 (M.D. Ala. 1999). 3 However,
as Defendants rightly point out, none of these cases address the issue of anonymity, and
FAC provided no further insight in its motion as to why these cases are relevant. The
mere fact that a person proceeded anonymously in one case is not helpful in determining
whether a person should be permitted to proceed anonymously in another case. Indeed,
proceeding anonymously is a rare exception which requires justification. See Frank, 951
F.2d at 323. Without any information illuminating why those individuals proceeded
anonymously, the Magistrate Judge was not wrong to find the cases cited by FAC
On FAC’s second objection, the undersigned finds that the Magistrate Judge did
not clearly err when considering FAC’s evidence in support of its argument that the Does
might be subjected to physical violence should their identities not be protected. In its
The Court notes that FAC cites myriad other cases in its objection which it contends
support its position that the Does should be allowed to proceed anonymously.
However, FAC never presented these cases for the Magistrate Judge’s review. It of
course defies logic to claim that the Magistrate Judge erred by failing to consider legal
authority which was never offered for his consideration, and the undersigned will
decline to entertain new arguments which should have been raised to the Magistrate
Judge. See Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009) (holding that a
district judge has discretion not to consider arguments never raised to the magistrate
motion, FAC offered a study examining public retaliation against registered sex offenders
and a number of news articles reporting on incidents of violence against registered sex
offenders in Central Florida. However, FAC produced no evidence indicating that the
Does themselves faced a threat of violence, leading the Magistrate Judge to conclude
that FAC’s position was unsupported and conclusory. To be sure, the good cause
required to grant a protective order must be based on more than generalities and
speculation. See Garrett, 571 F.2d at 1326 n.3. As the Magistrate Judge explained in
his Order, those courts which have allowed parties to proceed anonymously did so
because the party produced particularized evidence demonstrating that he or she would
be subjected to violence. See, e.g., Doe v. Tandeske, No. A03-231 CV (JWS), 2003 WL
24085314, at *2 (D. Alaska Dec. 5, 2003) (granting party’s request to proceed
anonymously where party’s attorney submitted affidavit describing experiences with
former clients who proceeded with cases in their own names and faced retaliation as a
result); cf. Femedeer v. Haun, 227 F.3d 1244, 1246 (10th Cir. 2000) (denying party’s
request to proceed anonymously where the party did not demonstrate “real, imminent
personal danger”). Because FAC did not produce evidence indicating that the Does
themselves would be subjected to retaliation, the Magistrate Judge reasonably found that
this factor did not weigh in favor of the protective order.
Finally, on FAC’s third objection, the undersigned finds that the Magistrate Judge
did not clearly err in considering the public’s interest in maintaining open judicial
proceedings. FAC contends that the Magistrate Judge overemphasized this factor since
the vast majority of this case would remain available to the public if the Does were allowed
to proceed anonymously; all that would be hidden is the Does’ identities. However, there
can be no doubt that “[l]awsuits are public events.” Frank, 951 F.2d at 324. Allowing a
person to proceed anonymously simply because all other aspects of the case remain
open to public view would contravene the transparency and openness we must demand
of our legal system. The Magistrate Judge therefore did not overemphasize the public’s
interest in open judicial proceedings and did not err in finding that this interest outweighed
the Does’ desire to proceed anonymously, especially in light of FAC’s deficient showing
with respect to the other factors considered.
For these reasons, it is ORDERED AND ADJUDGED as follows:
1. Plaintiff’s Objections to the Magistrate’s Order Denying Plaintiff’s Motion for
Protective Order (Doc. 58) are OVERRULED.
2. Magistrate Judge Kelly’s April 29, 2016 Order denying Plaintiff’s Motion for
Protective Order (Doc. 57) is AFFIRMED.
DONE AND ORDERED in Orlando, Florida on October 18, 2016.
Copies furnished to:
The Honorable Magistrate Judge
Counsel of Record
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