The OpenAI Lawsuit: The Company Claims the Plaintiffs Should Not Be Anonymous

MEMORANDUM OF POINTS AND AUTHORITIES

IV. ARGUMENT

A. The Complaint Fails for Reasons Applicable to All Causes of Action.

2. Plaintiffs Have Failed to Obtain Leave to Proceed Anonymously.

The complaint must be dismissed under Rule 12(b)(1) because Plaintiffs failed to comply with Federal Rule of Civil Procedure 10(a), which requires that a “complaint name all the parties.” This rule reflects the “paramount importance of open courts.” Doe v. Kamehameha Schs./Bernice Pauahi Bishop Est., 596 F.3d 1036, 1046 (9th Cir. 2010) (affirming dismissal of complaint based on plaintiffs’ failure to disclose identities).

Plaintiffs have not identified themselves. And while, in the Ninth Circuit, they may seek leave to proceed anonymously after filing the complaint, they have not done so and could not succeed were they to try. See, e.g., Doe v. UNUM, 164 F. Supp. 3d 1140, 1144 (N.D. Cal. 2016) (dismissing complaint). A party may proceed anonymously only where “special circumstances justify secrecy.” Does 1 Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067 (9th Cir. 2000).

Courts “must balance the need for anonymity against the general presumption that parties’ identities are public information and the risk of unfairness to the opposing party.” Id. at 1068.

Under this balancing test, the Ninth Circuit has identified three situations in which parties may proceed anonymously: (1) “when identification creates a risk of retaliatory physical or mental harm;” (2) “when anonymity is necessary to ‘preserve privacy in a matter of a sensitive and highly personal nature;” or (3) “when the anonymous party is ‘compelled to admit [his or her] intention to engage in illegal conduct, thereby risking criminal prosecution.’” Id. at 1068 (citations omitted).

Plaintiffs provide no facts at all justifying their request to keep their identities hidden and provide no examples of Plaintiffs’ code they claim to be at issue, and thus make it impossible for OpenAI to respond to their allegations. Accordingly, unless and until Plaintiffs are willing to put their names and their code on the allegations they have made, dismissal is appropriate.[5]

[5] The Defendants notified Plaintiffs that their complaint was procedurally deficient under Rule 10(a) on January 11, 2023. (See Declaration of Michael Jacobs, filed herewith, Ex. 1). Plaintiffs responded that they would seek approval to proceed anonymously but have yet to file the requisite motion. (See id. Ex. 2.)