              Case: 18-10534     Date Filed: 08/09/2018   Page: 1 of 10


                                                               [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 18-10534
                              Non-Argument Calendar
                            ________________________

                       D.C. Docket No. 7:17-cv-01992-TMP

A.W.,

                                                                 Plaintiff - Appellee,

                                        versus

TUSCALOOSA CITY SCHOOLS BOARD OF EDUCATION,

                                                                          Defendant,

JENNIFER BOX,
in her individual and official capacities,
MARK CAPPS,
in his individual and official capacities,

                                                            Defendants - Appellants.

                            ________________________

                    Appeal from the United States District Court
                       for the Northern District of Alabama
                           ________________________

                                   (August 9, 2018)
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Before WILLIAM PRYOR, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:

      Defendants-appellants Jennifer Box and Mark Capps appeal the district

court’s order allowing the plaintiff to amend her complaint to remove her federal-

law claims and then remanding the case to Alabama state court. They contend

that, because the plaintiff filed suit anonymously without prior court approval, the

district court was powerless to do anything other than dismiss the action. We

disagree, and we affirm.

      The plaintiff, identified as A.W. in the complaint, alleges that in April 2011

she was raped at Eastwood Middle School (“Eastwood”) in Cottondale, Alabama,

by a male student when she was fourteen years old. An adult when she filed her

complaint in October 2017, she sued the defendants—the Tuscaloosa City Schools

Board of Education (the “Board”); Box, the principal of Eastwood; and Capps, the

assistant principal of Eastwood—alleging violations of her constitutional rights,

federal law, and state law. A.W. claimed that the defendants knew that male

students had sexually harassed her and other female students in the past but had

failed to take reasonable actions that could have prevented the assault.

      The Board promptly removed the complaint to federal district court with the

consent of Box and Capps. Box and Capps then moved to dismiss the complaint

for failure to properly name the plaintiff, asserting that a federal court lacks


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jurisdiction over an anonymous plaintiff who has not obtained the court’s prior

approval to proceed anonymously.

       Instead of responding directly to the motion to dismiss, A.W. asked the

district court to grant leave to amend the complaint to remove the federal-law

claims, and then to remand the case to state court so that she could proceed under

state law only. A.W. submitted an amended complaint that omitted any federal

cause of action. Box and Capps responded that amendment should be denied

because the complaint was a “nullity” that “never existed” and therefore “cannot

be amended.” While the Board joined in Box and Capps’s motion to dismiss, it

later added that it did not oppose going forward in state court on the state-law

claims, and it did not join this appeal.

       The district court1 entered an order granting the motion to amend and

remanding the case to state court. The court rejected Box and Capps’s argument

that A.W.’s use of her initials deprived it of jurisdiction, heeding the Supreme

Court’s admonition that rules—even important or mandatory ones—should not be

called jurisdictional unless they affect the “court’s adjudicatory capacity.”

Henderson v. Shinseki, 562 U.S. 428, 435 (2011). The court further determined

that it had subject-matter jurisdiction upon removal because A.W.’s original


       1
         For ease, we refer to the magistrate judge, who exercised full jurisdiction over the case
with the consent of the parties, as the “district court” or the “court.” See 28 U.S.C. § 636(c).

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complaint contained claims arising under federal law, 28 U.S.C. § 1331, so it also

had supplemental jurisdiction over the related state-law claims under 28 U.S.C.

§ 1367(a). After accepting A.W.’s amended complaint, which omitted any claims

under federal law, the court “decline[d] to exercise supplemental jurisdiction” over

the state-law claims and therefore remanded them under 28 U.S.C. § 1367(c). Box

and Capps now appeal the remand order. 2

       The appellants’ challenge is based on A.W.’s alleged failure to comply with

Rule 10 of the Federal Rules of Civil Procedure, which requires the complaint to

“name all the parties.” Fed. R. Civ. P. 10(a). This rule, we have said, “serves

more than administrative convenience. It protects the public’s legitimate interest

in knowing all of the facts involved, including the identities of the parties.” Doe v.

Frank, 951 F.2d 320, 322 (11th Cir. 1992). Despite Rule 10(a)’s “clear mandate,”

we have recognized that a court may permit a plaintiff to proceed anonymously in

an “exceptional case.” Id. at 323. “The ultimate test for permitting a plaintiff to

proceed anonymously is whether the plaintiff has a substantial privacy right which

outweighs the ‘customary and constitutionally-embedded presumption of openness




       2
         Notwithstanding the general statutory bar to appellate review of remand orders, see 28
U.S.C. § 1447(d), we retain jurisdiction to review remand orders, like the one here, that were
based on a discretionary decision to decline to exercise supplemental jurisdiction under 28
U.S.C. § 1367(c). Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 637–38, 640–41 (2008).

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in judicial proceedings.’” Id. (quoting Doe v. Stegall, 653 F.2d 180, 186 (5th Cir.

Aug. 1981) 3).

       Box and Capps assert that a court’s grant of a plaintiff’s request for

anonymity is an act of jurisdictional significance. In their view, a court lacks

jurisdiction over an unnamed plaintiff who has not requested or obtained a court’s

approval to proceed anonymously. And not only that, they maintain, no action is

even “commenced” unless and until the court grants approval to proceed

anonymously. So, their argument goes, any pleading filed before the court’s grant

of approval to proceed anonymously is a “nullity and, thus, void ab initio.” And

because A.W.’s complaint was a “nullity,” in their view, it was incapable of

amendment and could only have been dismissed, not remanded.

       No case from this Circuit has spoken to these specific issues. We have said

that party anonymity goes against the “presumption of disclosure mandated by

procedural custom” and the constitutionally embedded presumption of openness in

judicial proceedings. Stegall, 653 F.2d at 185; see Roe v. Aware Woman Ctr. for

Choice, Inc., 253 F.3d 678, 684–85 (11th Cir. 2001). And we have recognized that

“[d]efendants have the right to know who their accusers are, as they may be subject

to embarrassment or fundamental unfairness if they do not.” Plaintiff B v. Francis,


       3
        This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

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631 F.3d 1310, 1315 (11th Cir. 2011). But we have never suggested that plaintiff

anonymity affects the court’s jurisdiction over the case or the parties. Cf. Stegall,

653 F.2d at 185 (“Party anonymity does not obstruct the public’s view of the issues

joined or the court’s performance in resolving them.”).

      With no supporting case law from this Circuit, Box and Capps point instead

to the Tenth Circuit, which views a court’s grant of permission to proceed

anonymously as an act of jurisdictional significance. As that court explained in

W.N.J. v. Yocom,

      When a party wishes to file a case anonymously or under a
      pseudonym, it must first petition the district court for permission to do
      so. If a court grants permission, it is often with the requirement that
      the real names of the plaintiffs be disclosed to the defense and the
      court but kept under seal thereafter. Where no permission is granted,
      the federal courts lack jurisdiction over the unnamed parties, as a case
      has not been commenced with respect to them.

W.N.J. v. Yocom, 257 F.3d 1171, 1172 (10th Cir. 2001) (citations and quotation

mark omitted); see also Nat’l Commodity & Barter Ass’n v. Gibbs, 886 F.2d 1240,

1245 (10th Cir. 1989) (same).

      We need not and do not decide whether the Tenth Circuit’s general approach

is correct—that is, whether a plaintiff’s failure to seek court approval before filing

suit anonymously is a jurisdictional defect. For even if we assume that it is, the

district court in this case was not required to first determine that it had jurisdiction




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over the unnamed plaintiff or to resolve whether she could proceed anonymously

before declining to exercise jurisdiction and remanding her case to state court.

      The Supreme Court has explained that, while “jurisdictional questions

ordinarily must precede merits determinations in dispositional order, . . . there is no

mandatory ‘sequencing of jurisdictional issues.’”         Sinochem Int’l Co. Ltd. v.

Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (quoting Ruhrgas AG v.

Marathon Oil Co., 526 U.S. 574, 584 (1999)). In other words, “a federal court has

leeway ‘to choose among threshold grounds for denying audience to a case on the

merits.’” Id. (quoting Ruhrgas, 526 U.S. at 585). Thus, “a court may dismiss for

lack of personal jurisdiction without first establishing subject-matter jurisdiction,”

or vice-versa. Id. Likewise, a court’s “determination that the merits should be

adjudicated elsewhere,” such as a forum non conveniens dismissal, allows the court

to “bypass[] questions of subject-matter and personal jurisdiction.” Id. at 432. The

underlying principle is that “jurisdiction is vital only if the court proposes to issue

a judgment on the merits.” Id. at 431 (quotation marks omitted).

      As relevant here, a district court declining to exercise jurisdiction over state-

law claims need not first determine its jurisdiction over the parties. See id. Once

A.W. amended her complaint, removing any federal cause of action, “the original

complaint was superceded,” Pintando v. Miami-Dade Hous. Agency, 501 F.3d

1241, 1243 (11th Cir. 2007), and “[t]he court had discretion to retain jurisdiction


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over the state law claims.” Behlen v. Merrill Lynch, 311 F.3d 1087, 1095 (11th

Cir. 2002) (stating that “subsequent acts do not divest the court of its jurisdiction”

over a removed action). Because the claims over which the court had original

jurisdiction were removed from the action, § 1367(c) permitted the court to

“decline to exercise supplemental jurisdiction” over the state-law claims. See 28

U.S.C. § 1367(c)(3). And because that discretionary decision was “a determination

that the merits should be adjudicated elsewhere,” the court could bypass other

“questions of subject-matter and personal jurisdiction” on the way to remanding

the case. See Sinochem Int’l, 549 U.S. at 432.

      Box and Capps nonetheless maintain that the district court could not base its

decision on the amended complaint because the original complaint was a “nullity

and, thus, void ab initio,” and so could not have been amended. In other words,

they assert, there was actually nothing before the court on which to act, so the

action must be treated as if it never existed.

      We cannot agree with this approach.          After all, courts may authorize

amendment of a complaint under Rule 15 even in the absence of jurisdiction. See

Freeman v. First Union Nat’l, 329 F.3d 1231, 1234 (11th Cir. 2003) (analyzing

whether leave to amend should have been granted under Rule 15 even though the

defect at issue implicated Article III standing); see also In re Engle Cases, 767

F.3d 1082, 1108 n.30 (11th Cir. 2014) (“[T]he Rule 17 and Rule 15 issues


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presented are procedural and do not require us to pass judgment on the merits of

the underlying claims.”). And the appellants do not dispute that A.W., under the

terms of Rule 15, Fed. R. Civ. P., did not even need the court’s leave to file an

amended complaint because she submitted the amended pleading within 21 days of

Box and Capps’s motion to dismiss. See Fed. R. Civ. P. 15(a)(1)(B).

       To accept Box and Capps’s claim that A.W. could not amend her complaint,

we must also accept that the alleged error here is even more fundamental than a

jurisdictional error (and that there is such a category of error). But they identify no

basis for that position in the Constitution, a statute, a federal rule, or a legal

doctrine. 4 The public-policy concerns they cite are satisfied so long as a district

court refuses to proceed with a case until the plaintiff proves her entitlement to

proceed anonymously or identifies herself by name. And their proposed rule is

difficult if not impossible to reconcile with our precedent in this area, which allows

parties to proceed anonymously and describes Rule 10(a)’s disclosure requirement

       4
          Box and Capps cite one district-court decision holding that no civil action is
commenced by a complaint that does not name all the parties, and that without a complaint
naming all parties the “[c]ourt has nothing before it on which to act.” Roe v. State of N.Y., 49
F.R.D. 279, 282 (S.D.N.Y. 1970). That decision, however, is inconsistent with our precedent
permitting plaintiffs to proceed anonymously and without complying with Rule 10(a). E.g.,
Francis, 631 F.3d at 1315–16.

        To the extent the appellants claim that their position is compelled by the Tenth Circuit’s
approach to anonymous pleading, we disagree. Even if we adopted the Tenth Circuit’s view that
federal courts lack jurisdiction over unnamed parties absent court approval to proceed
anonymously—though, to be clear, we do not decide that jurisdictional question—it does not
logically follow that A.W.’s complaint was a nullity that could not be amended. And the Tenth
Circuit has never held as much.

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as a “procedural custom” that “is not absolute” and that is grounded in “the

public’s legitimate interest in knowing all of the facts involved,” not something

more fundamental. Francis, 631 F.3d at 1315 (quotation marks omitted); Stegall,

653 F.2d at 185. For these reasons, though we can think of others, we reject the

appellants’ assertion that A.W. could not amend her complaint or that the court

was prohibited from basing its remand decision on the amended complaint. 5

       In sum, even assuming without deciding that the district court lacked

jurisdiction over the case because A.W. filed her complaint anonymously without

requesting or receiving court approval, the court was not prohibited from ordering

a discretionary remand to state court.              Rule 15 allowed A.W. to amend her

complaint, and the court, based on an amended complaint that omitted any federal

cause of action, did not need to consider other jurisdictional issues before

remanding the action under § 1367(c). See Sinochem Int’l, 549 U.S. at 431–32.

       For all of these reasons, we affirm the district court’s order remanding

A.W.’s complaint to Alabama state court under 28 U.S.C. § 1367(c). See Carlsbad

Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 641 (2008).

       AFFIRMED.


       5
          One additional, though not insignificant, complication in this case is that of removal,
which the appellants largely fail to address. We do not see, as a practical matter, how A.W.
could have obtained the district court’s approval to proceed anonymously in federal court before
the case was removed there involuntarily. To the extent the appellants claim that A.W. was
required to obtain state-court approval, they have presented no authority on this issue.
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