                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-0946-13T3

A.A.,

     Plaintiff-Appellant,                 APPROVED FOR PUBLICATION

                                            September 17, 2015
v.
                                            APPELLATE DIVISION
CHRISTOPHER J. GRAMICCIONI,
ESQ., CAREY J. HUFF, ESQ.,
and OFFICE OF THE COUNTY
PROSECUTOR OF MONMOUTH COUNTY,
NEW JERSEY,

     Defendants-Respondents.
_________________________________

         Argued December 15, 2014 – Decided September 17, 2015

         Before Judges Sabatino, Simonelli and Leone.

         On appeal from the Superior Court of New
         Jersey,   Law  Division, Monmouth County,
         Docket No. L-2568-13.

         Larry S. Loigman        argued    the   cause    for
         appellant.

         James H. Gorman         argued    the   cause    for
         respondents.

         Raymond     R.   Chance,   Assistant   Attorney
         General,   argued the cause for amicus curiae
         State of   New Jersey (John J. Hoffman, Acting
         Attorney     General,  attorney;   Melissa   H.
         Raksa,     Assistant   Attorney   General,   of
         counsel;     Lewis A. Scheindlin, Assistant
         Attorney   General, on the brief).
       The opinion of the court was delivered by

SIMONELLI, J.A.D.

       This   appeal     involves     an   anonymous      requestor    of   records

pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1

to -13, and alternatively under the common law right of access,

who seeks to remain anonymous when litigating in the Superior

Court.       We conclude there is no statutory authorization, rule

authorization or compelling reason permitting A.A. to prosecute

this matter anonymously.             We also conclude that the trial judge

properly dismissed the complaint for failure to comply with Rule

4:67.

                                           I.

       The     limited       facts     provided      in      the      record      are

straightforward.         Plaintiff A.A., through his attorney, made an

OPRA    request   to   the    Monmouth      County   Prosecutor's      Office     for

records relating to the investigation of a municipal employee

who allegedly stole an electric generator from the Township of

Middletown.       The attorney also requested a Vaughn1 index.                    The

Prosecutor denied both requests.                Within forty-five days of the

denials, A.A. filed a complaint in lieu of prerogative writs in




1
   Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert.
denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974).



                                           2                                A-0946-13T3
the Superior Court, anonymously, alleging a violation of OPRA

and also the common law right of access.

      A.A. filed a motion for an order requiring the Prosecutor

to   identify     and    preserve        the    requested        records.     Defendants

filed   a   cross-motion           for   an    order     dismissing     the    complaint

pursuant to Rule 4:26-1 for A.A.'s failure to prosecute in the

name of the real party in interest.

      The   motion       judge      denied      A.A.'s      motion    and    sua    sponte

dismissed the complaint for A.A.'s failure to file an order to

show cause (OTSC) and verified complaint, as required by Rule

4:67.   In a comprehensive written opinion, relying on N.J.S.A.

47:1A-6, MAG Entm't, LLC v. Div. of Alcoholic Beverage Control,

375 N.J. Super. 534 (App. Div. 2005), and Mason v. City of

Hoboken,    196    N.J.       51   (2008),         the   judge    reasoned    that     OPRA

actions must be brought in a summary manner, and that Rule 4:67

requires the filing of an OTSC and verified complaint.                                   The

judge noted that A.A. could submit a new OPRA request and then

file a new action in compliance with Rule 4:67, if necessary.

      Addressing        the    merits,        the   judge    assumed    that       N.J.S.A.

47:1A-5(i) permits a person to request records anonymously, and

that the Government Records Council (GRC) accepts and decides

OPRA appeals that are filed anonymously.                         The judge determined,

however, that neither N.J.S.A. 47:1A-5(i) nor any other OPRA




                                               3                                   A-0946-13T3
provision permits the filing of an anonymous complaint in the

Superior Court.           The judge also determined there is no court

rule   permitting      an    anonymous       filing      in    OPRA    cases,    and    our

Supreme    Court     has    not    adopted       such    a    rule    pursuant     to   the

authority       granted     by    N.J.S.A.       47:1A-12.       Rather,     the    judge

concluded that Rule 1:4-1(a) requires a complaint in a civil

action to include the names of all parties, and Rule 4:26-4 does

not    permit    a   plaintiff      to   file      a    complaint     with   fictitious

names.

       The judge explained, in detail, why this case presented no

compelling reason to permit an anonymous filing.                             The judge

determined that Rule 1:4-1 and Rule 1:36-3

            were designed to protect the identity of
            victims and not a party who merely refuses
            to identify itself without an asserted
            basis.    The technique of using initials
            instead   of   names  is   not   appropriate,
            however, for the sole purpose of concealing
            the identity of a well-known person who is a
            party to a type of proceeding in which
            participant's names are routinely used.

            [Citing Pressler & Verniero, Current N.J.
            Court Rules, comment on R. 1:4-1 and comment
            6 on R. 1:36-3 (2013).]

Relying on A.B.C. v. XYZ Corp., 282 N.J. Super. 494, 499-500

(App. Div. 1995), the judge concluded as follows:

            [A.A.'s] failure and outright refusal to
            identify itself is not permissible under the
            Court Rules and corresponding case law.
            Without an identifiable plaintiff, neither



                                             4                                   A-0946-13T3
             personal     jurisdiction   nor   potential
             conflicts can be assessed.   Even if [A.A.]
             had properly applied for the right to
             proceed anonymously, [A.A.] has offered no
             justification sufficient to persuade this
             [c]ourt that the present matter is one of
             "rare circumstance," outweighing the public
             policy in favor of disclosure and open
             proceedings.

       Finally, the judge observed that although N.J.S.A. 47:1A-

5(i) permits a person to make an anonymous OPRA request to the

GRC, that right is limited.          Citing N.J.S.A. 47:1A-2.2(c) and

-3, the judge noted that a custodian is not required to comply

with    an   anonymous   request     for     records   pertaining    to    an

investigation in progress by a public agency.2

                                     II.

       On appeal, A.A. challenges the sua sponte dismissal of his

complaint.      He   argues   that   Mason   does   not   permit   dismissal

merely because an OTSC was not filed.3         We disagree.


2
    See also N.J.S.A. 47:1A-1.1 (stating that "[a] government
record shall not include the following information which is
deemed to be confidential . . . criminal investigatory
records"). In addition, a custodian is not required to respond
to an anonymous OPRA request "until the requestor appears before
the custodian seeking a response to the original request."
N.J.S.A. 47:1A-5(i).
3
   We reject A.A.'s additional contention that he was denied an
opportunity to amend his complaint or identify himself in
camera.    At oral argument before the motion judge, A.A.'s
attorney declined the judge's offer to disclose A.A.'s identity.
In this appeal, A.A. states in his merits brief that even if the
judge had afforded him another opportunity to disclose his
                                                     (continued)


                                      5                             A-0946-13T3
    A     person     who    is     denied        access    to    government    records

requested under OPRA may challenge that denial in the Superior

Court.        N.J.S.A.     47:1A-6.4        OPRA    requires      that     "[a]ny    such

proceeding      shall    proceed    in   a       summary    or   expedited    manner."

Ibid.; see also R. 4:67-1(a) (applying the summary action rule

"to all actions in which the court is permitted by rule or

statute to proceed in a summary manner"); MAG Entm't, supra, 375

N.J. Super. at 550.              Accordingly, an OPRA complaint must be

filed    in   accordance     with    Rule        4:67-2(a),      which    requires    the

filing of an OTSC and verified complaint in a summary action.

    A.A.       did   not    file    an   OTSC      and     verified      complaint,   as

required by Rule 4:67-2(a).              The lack of a verified complaint

renders the complaint a nullity, and a non-verified complaint is



(continued)
identity "it is unlikely that he would have elected to do so."
In addition, the October 18, 2013 order dismissing the complaint
was not, and could not be, a dismissal with prejudice. A
dismissal based on the court's procedural inability to consider
a case is without prejudice. Watkins v. Resorts Intern. Hotel &
Casino, Inc., 124 N.J. 398, 416 (1991). Accordingly, A.A. could
have filed a motion to amend the complaint to identify himself.
He chose, instead, to file this appeal.
4
   In lieu of filing an action in Superior Court, the person may
file a complaint with the GRC. N.J.S.A. 47:1A-6. The GRC has
jurisdiction only over OPRA requests and not common-law claims
for public records.    See Ciesla v. N.J. Dept. of Health, 429
N.J. Super. 127, 146-49 (App. Div. 2012).    Common law right of
access claims must be brought in the Superior Court. Id. at 148
(citing Serrano v. So. Brunswick Twp., 358 N.J. Super. 352, 373
(App. Div. 2003)).



                                             6                                 A-0946-13T3
insufficient to invoke the court's jurisdiction in an action

requiring a verified complaint.                Pressler & Verniero, Current

N.J. Court Rules, comment to R. 1:4-7 (2015).                     Accordingly, the

judge properly dismissed the complaint on procedural grounds.

                                        III.

      A.A., the Prosecutor, and the amicus raise several policy

issues regarding a person's right to prosecute an action in the

Superior Court anonymously.             Ultimately, these issues are for

the Court to decide.          For the reasons that follow, we conclude

that A.A. may not proceed anonymously in this case.

      As A.A. points out, OPRA mentions the possibility of "an

anonymous request."          See N.J.S.A. 47:1A-2.2(c) (providing that

"a custodian shall not comply with an anonymous request for a

government    record    [containing       personal      information]         which    is

protected    under     the   provisions        of   this       section");      N.J.S.A.

47:1A-5(f)    (providing      that      "[t]he      custodian      may    require       a

deposit against costs for reproducing documents sought through

an anonymous request whenever the custodian anticipates that the

information     thus    requested       will     cost   in      excess    of    $5    to

reproduce.").      N.J.S.A. 47:1A-5(i) also states that "[i]f the

requestor    has   elected     not   to       provide      a    name,    address,     or

telephone number, or other means of contacting the requestor,

the   custodian    shall     not   be    required       to      respond     until    the




                                          7                                    A-0946-13T3
requestor reappears before the custodian seeking a response to

the    original      request."         Even     assuming      that    OPRA     permits       an

anonymous   request         to   a    custodian       or    the    GRC,    OPRA   does    not

authorize an anonymous filing in the Superior Court.                                Unlike

other statutes, where the Legislature has expressly permitted

litigants in certain types of matters to proceed anonymously,

the Legislature has not granted that right to OPRA requestors.

See,    e.g.,     N.J.S.A.       2A:61B-1(f)(1)            (civil    actions      involving

child victims of sexual abuse); N.J.S.A. 2A:82-46(a) (criminal

actions involving child victims of sexual assault or abuse).                                 In

addition, there is no court rule authorizing a person to proceed

anonymously in an OPRA action in the Superior Court.

       A complaint in a civil action must include the names of all

parties.     R. 1:4-1(a).             "In the absence of statutory or rule

authorization or some compelling reason, a party will not be

permitted       to   prosecute         a   civil      action        anonymously     or       by

pseudonym[.]"         Pressler & Verniero, Current N.J. Court Rules,

comment 2.3 on R. 1:2-1 (2015); see also A.B.C., supra, 282 N.J.

Super. at 500.          The requirement that a litigant provide his,

her, or its identity serves important systemic functions.                               Among

other    things,      the   identity       of     a   litigant       may   bear    on    such

important       matters     as       jurisdiction,         issue     preclusion,        claim

preclusion,       attorney       conflict       of    interest,      enforcement        or    a




                                              8                                    A-0946-13T3
compliance with court orders, and sanctions.                       With respect to

common    law   right    of    access   claims,         the    court   often   has    to

balance the plaintiff's claim of an overriding need for the

records against the government's interests opposing turnover.

Edu. Law Cntr. v. N.J. Dep't of Educ., 198 N.J. 274, 302-03

(2009).

       Absent a statute or court rule mandating anonymity in court

proceedings,     a     litigant      must       show    good    cause     to   proceed

anonymously or by pseudonym.                T.S.R. v. J.C., 288 N.J. Super.

48, 56 (App. Div. 1996); A.B.C., supra, 282 N.J. Super. at 505.

The litigant may file a non-anonymous complaint and move, on

notice to opposing counsel, to seek to seal all or parts of the

record    pursuant      to    Rule   1:38-11.           The    litigant    must    show

compelling circumstances why identification would be improper.

A.B.C., supra, 282 N.J. Super. at 505.                   Once the litigant shows

such     compelling     circumstances,           the    court     must    weigh      the

litigant's privacy interest against constitutional and public

interest in open judicial proceedings.                  Ibid.

       A.A. provides no persuasive reason to deem these concerns

inapplicable or unimportant in an OPRA case or a common law

right    of   access    case.        Although      we    are    mindful    that    some

requestors of government records may wish to remain anonymous

out of concern about possible retaliatory action or harm that




                                            9                                  A-0946-13T3
may ensue from public notoriety, those potential concerns do not

justify litigants deciding for themselves whether they wish to

withhold their identities when seeking relief in the Superior

Court.     In rare instances when such concerns about retaliatory

action     or        the     collateral       consequences          of    disclosure         are

significant and substantiated, the litigant can file a motion

pursuant    to       Rule       1:38-11.      A.A.    made     no    such    motion       here.

Instead, he improperly and unilaterally assumed he had a right

to remain anonymous from the inception of the lawsuit.

    A.A.        has        presented    no    reason,    let        alone    a     compelling

reason, why he should be permitted to proceed anonymously.                                    He

has not shown that his case falls within those rare instances

where the court permitted anonymous filing in a civil case.                                  See

G.D. v. Kenny, 205 N.J. 275 (2011) (defamation action arising

from an expungement); Application of X, 59 N.J. 533 (1971) (gun

permit   applications);              M.H.B.   v.     H.T.B.,    100      N.J.    567    (1985)

(matters involving children); Fireman's Fund Ins. Co. v. Imbesi,

361 N.J. Super. 539 (App. Div.), certif. denied, 178 N.J. 33

(2003) (sexual harassment where the victim contracted a venereal

disease);       In    re     A.I.,    303    N.J.    Super.    105       (App.   Div.     1997)

(Megan's    Law);          In   re   Return   of     Weapons    to       J.W.D.,    290    N.J.

Super. 451 (App. Div. 1996), aff'd in part, rev'd in part, 149

N.J. 108 (1997) (domestic violence); T.S.R., supra, 288 N.J.




                                               10                                      A-0946-13T3
Super. 48 (child victims of sexual abuse); J.W.P. v. W.W., 255

N.J. Super. 1 (App. Div. 1991) (paternity); C.J. v. Vuinovich,

252 N.J. Super. 122 (App. Div. 1991) (permitting use of initials

to protect the identity of an AIDS patient whose disease was

material   to   the    cause   of     action);   In   re   Adoption      of    Indian

Child, 219 N.J. Super. 28 (App. Div. 1987), aff'd, 111 N.J. 155

(1988) (juvenile actions and adoptions); and In re L.B., 369

N.J.   Super.   354    (Law    Div.   2004)    (expungement).        As    we     have

stated,

            [a] plaintiff should be permitted to proceed
            anonymously only in those exceptional cases
            involving matters of a highly sensitive and
            personal nature, real danger of physical
            harm, or where the injury litigated against
            would be incurred as a result of the
            disclosure of a plaintiff's identity.    The
            risk that a plaintiff may suffer some
            embarrassment is not enough.

            [A.B.C., supra, 282 N.J. Super. at                     502
            (quoting Doe v. Frank, 951 F.2d 320,                   324
            (11th Cir. 1992)).]

       A.A.'s   case     is    not     an     exceptional     case      compelling

anonymity.      A.A. has not demonstrated that this case involves

matters of a highly sensitive and personal nature or a real

danger of physical harm, and A.A. does not claim he would suffer

the injury litigated against if his identity were disclosed in

the    complaint.      Accordingly,         because   there   is   no     statutory




                                         11                                   A-0946-13T3
authorization, rule authorization, or compelling reason, A.A.

may not proceed anonymously in this matter.

    Having reached this conclusion, we need not address whether

the requested records are exempt from disclosure as criminal

investigatory records.

    Affirmed.




                               12                      A-0946-13T3
