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Doe v. Heritage Academy, Inc.

United States District Court, D. Arizona

October 31, 2017

John Doe, et al., Plaintiffs,
Heritage Academy, Inc., et al., Defendants.



         Before the Court is Defendants' Motion for Case Dismissal (Doc. 127). For the reasons that follow, the request will be granted.

         I. Background

         Plaintiffs John Doe and Reverend David Felten commenced the instant action on September 7, 2016, and filed a First Amended Complaint on November 11, 2016 (Doc. 39) against Heritage Academy, Inc., Heritage Academy Laveen, Inc., Heritage Academy Queen Creek, Inc. (collectively “Heritage”), the members of the governing bodies of Heritage, Heritage founder and director Earl Taylor Jr., the members of the Arizona State Board for Charter Schools, the Executive Director of the Arizona State Board for Charter Schools, the Superintendent of Public Instruction, and the Director of the Arizona Department of Administration. The First Amended Complaint alleges that Doe is “an Arizona taxpayer and the parent of at least one child currently attending Heritage Academy” (Doc. 39 ¶ 50) and Felten “is the head pastor of The Fountains, a United Methodist Church in Fountain Hills, Arizona, ” an Arizona taxpayer, and a “parent of a student who attends an Arizona charter school.” (Doc. 39 ¶ 51.) They bring a claim for violations of the Establishment Clause of the First Amendment of the U.S. Constitution and articles of the Arizona Constitution.

         On June 9, 2017, the Court dismissed Plaintiffs' First Amended Complaint with leave to amend on two grounds: (1) failure to set forth sufficient allegations of Article III standing - in part, [1] and (2) failure to comply with Rule 10(a). In doing so, the Court directed Plaintiffs to amend the complaint to include the first and last initials of Plaintiff Doe's true name. The Court also directed the parties to confer and prepare a proposed protective order to facilitate the exchange of discovery in a manner aimed at protecting against the disclosure and dissemination of the minor child's identity to the public. (Doc. 105.)

         On June 22, 2017, Plaintiffs moved concurrently for reconsideration of the Court's Orders and for leave to file an amended complaint consistent with their arguments on reconsideration (Docs. 107, 108). The Court denied the motions and provided Plaintiffs with an additional opportunity to file a second amended complaint consistent with the Court's Order. (Doc. 120.) On August 1, 2017, Plaintiffs filed a Notice of Intent Not to File a Second Amended Complaint stating in relevant part:

As plaintiffs explained in the motion for reconsideration, there is too great a risk that Doe's identity-and that of his child-will be discovered and that his child will suffer retaliation if Doe amends the complaint to add his true first and last initials. Because Doe is unwilling to take chances with his child's welfare, he hereby notifies the Court that he will not be filing a second amended complaint that includes his first and last initials.

(Doc. 122.)

         On August 18, 2017, Plaintiffs filed a Notice of Interlocutory Appeal of the Court's Orders. (Doc. 126; 9th Cir. No. 17-16703.) The same day, Defendants moved for dismissal based on Plaintiffs' failure to file a Second Amended Complaint. (Docs. 125, 127.) Plaintiffs filed a response opposing dismissal, stating that “[f]or the reasons stated in Doe's briefing (see Dkt. 3 at 3-12, Dkt. 53 at 3-9, Dkt. 107 at 13-17), Doe should have been permitted to proceed under a pseudonym and should not have been put to the untenable choice between surrendering his anonymity by disclosing his true initials and forgoing his lawsuit.” (Doc. 130.)

         In turn, the Court ordered Plaintiffs to show cause as to why it “should not dismiss this case for failure to comply with the Court's Orders, or in the alternative, take Plaintiffs' election not to amend the complaint at face value and enter a final judgment dismissing this case in its entirety with prejudice.” (Doc. 133.) In doing so, the Court stated:

While Plaintiffs' interlocutory appeal does not divest this Court of jurisdiction, Plaintiffs' express election not to file an amended complaint has left the Court without any operative action on which to proceed. Plaintiffs did not notice an intent to stand on their pleading with regard to their taxpayer allegations. And while Plaintiffs oppose dismissal, they have not moved to stay this proceeding pending appeal, nor have they expressed an intent to reserve the right to pursue their claims in Doe's true initials should they not prevail on appeal. See Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067 (9th Cir. 2000) (noting that “[r]equiring plaintiffs to obtain a final decision dismissing their case prior to appellate review of the anonymity question would place plaintiffs in a Catch-22... if they lose on appeal of the anonymity issue, they will have lost the option to pursue their [] claims under their real names because the district court will have already entered a final judgment dismissing the case”); but see Edwards v. Marin Park, Inc., 356 F.3d 1058, 1064 (9th Cir. 2004) (“The failure of the plaintiff eventually to respond to the court's ultimatum-either by amending the complaint or by indicating to the court that it will not do so- is properly met with the sanction of a Rule 41(b) dismissal. Where, however, the plaintiff makes an affirmative choice not to amend, and clearly communicates that choice to the court, there has been no disobedience to a court's order to amend”) (emphasis added).

(Doc. 133.) In response,

Plaintiffs John Doe and the Reverend David Felten confirm that their Notice of Intent Not to File a Second Amended Complaint (Dkt. 122), filed August 1, 2017, applies to all claims and is intended to communicate clear intent not to propose further amendments following the Court's denial of Plaintiffs' motion to file a Second Amended Complaint.
In addition, Plaintiffs respectfully submit that Doe's use of a pseudonym would not prejudice Defendants under an attorney-eyes-only protective order. But the injuries to Doe and his child or children are ongoing and any delay in these proceedings also increases the chances that Doe's child or children will graduate before the merits are heard, possibly rendering this case moot. Therefore, Doe requests that the Court allow the case to proceed on the merits while the collateral appeal is pending. Doe does not request a stay ...

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