Defendants argue that absent court permission to proceed using pseudonyms, "the federal court lacks 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) (quoting National Commodity Barter Ass'n v. Gibbs, 886 F.2d 1240, 1245 (10th Cir. 1989)). Defendants further argue that plaintiffs' failure to receive leave to proceed pseudonymously cannot be cured retroactively.

GEICO's position that the issue is not jurisdictional because the parties' identities are known is contrary to binding Tenth Circuit precedent. As the court stated in its show-cause order, the Tenth Circuit has held that “[a]bsent permission . . . and under such other conditions as the court may impose (such as requiring disclosure of their true identity under seal), the federal courts lack jurisdiction over the unnamed parties, as a case has not been commenced with respect to them.” Nat'l Commodity & Barter Ass'n v. Gibbs, 886 F.2d 1240, 1245 (10th Cir. 1989) (hereinafter “NCBA”) (emphasis added); accord W.N.J. v. Yocom, 257 F.3d 1171, 1172-73 (10th Cir. 2001) (citing NCBA and finding no jurisdiction where plaintiffs did not obtain district court's permission to proceed using initials); see also M.A.C. v. Gildner, 853 Fed.Appx. 207, 2021 WL 1016422, at *3 (10th Cir. Mar. 17, 2021) (explaining that this holding from NCBA “is still the law of the circuit” and affirming the district court's sua sponte dismissal for lack of subject-matter jurisdiction where a plaintiff did not seek leave to proceed anonymously).

GEICO's position that the issue is not jurisdictional because the parties' identities are known is contrary to binding Tenth Circuit precedent. As the court stated in its show-cause order, the Tenth Circuit has held that “[a]bsent permission . . . and under such other conditions as the court may impose (such as requiring disclosure of their true identity under seal), the federal courts lack jurisdiction over the unnamed parties, as a case has not been commenced with respect to them.” Nat'l Commodity & Barter Ass'n v. Gibbs, 886 F.2d 1240, 1245 (10th Cir. 1989) (hereinafter “NCBA”) (emphasis added); accord W.N.J. v. Yocom, 257 F.3d 1171, 1172-73 (10th Cir. 2001) (citing NCBA and finding no jurisdiction where plaintiffs did not obtain district court's permission to proceed using initials); see also M.A.C. v. Gildner, 853 Fed.Appx. 207, 2021 WL 1016422, at *3 (10th Cir. Mar. 17, 2021) (explaining that this holding from NCBA “is still the law of the circuit” and affirming the district court's sua sponte dismissal for lack of subject-matter jurisdiction where a plaintiff did not seek leave to proceed anonymously).

A party seeking to litigate anonymously or pseudonymously must petition the Court for permission to do so. W.N.J. v. Yocom, 257 F.3d 1171, 1172 (10th Cir. 2001).

In W.N.J. v. Yocom, several unmarried residents of Utah challenged the state's laws forbidding fornication and sodomy by unmarried, heterosexual adults. 257 F.3d 1171, 1172 (10th Cir. 2001). The plaintiffs in that case, as in the instant case, filed their action under pseudonym without asking for or receiving the permission of the district court.

A party seeking to litigate anonymously or pseudonymously must petition the Court for permission to do so. W.N.J. v. Yocom, 257 F.3d 1171, 1172 (10th Cir. 2001).

As a preliminary matter, the Court must address whether it has jurisdiction to rule on Plaintiff's Motion even though she did not seek leave to proceed anonymously before filing her complaint. In W.N.J. v. Yocom, 257 F.3d 1171 (10th Cir. 2001), the plaintiffs filed suit under pseudonyms without seeking the district court's leave. Id. at 1172.

Generally, a party who wishes to file anonymously or proceed under a pseudonym must first petition the district court for permission. W.N.J. v. Yocom, 257 F.3d 1171, 1172 (10th Cir. 2001). If the court does not grant permission, the federal court lacks jurisdiction over the unnamed parties.

See Tr. at 50:6-21 (Court, MacDowell). The Defendant stated that the law precludes the Court from entering such an order nunc pro tunc, and pointed to the Tenth Circuit's decision in W.N.J. v. Yocom, 257 F.3d 1171 (10th Cir. 2001), in which the Tenth Circuit stated: A lack of jurisdiction cannot be corrected by an order nunc pro tunc.

Defendants insist that “[u]ntil Plaintiff obtains approval to litigate using a pseudonym, the Court lacks jurisdiction.” (ECF No. 21 at 7 (citing W.N.J. v. Yocom, 257 F.3d 1171, 1172 (10th Cir. 2001).) The Court disagrees.