IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

RICK MENDELSSOHN AND AMY §

BIRNBAUM, Individually and as §

attorneys in fact for J.M., §

§

Plaintiffs, §

§

v. § Civil Action No. 1:20-cv-203

§ Jury Trial

AUSTIN INDEPENDENT §

SCHOOL DISTRICT AND §

VINCENT WRENCHER, SR., §

§

Defendants. §

AUSTIN INDEPENDENT SCHOOL DISTRICT AND VINCENT WRENCHER’S 

JOINT MOTION TO STRIKE RICK MENDELSSOHN AND AMY BIRNBAUM

AND JOINT OBJECTION TO J.M.’S USE OF A PSEUDONYM 

Austin Independent School District (AISD or the District) and Vincent Wrencher, 

Sr. move to strike Rick Mendelssohn and Amy Birnbaum, individually and as attorneys in 

fact for J.M., and remove them as parties to this suit. Additionally, AISD and Wrencher 

object to J.M.’s use of a pseudonym.

A. Rick Mendelssohn and Amy Birnbaum lack standing to assert claims on their 

own behalf.

Rick Mendelssohn and Amy Birnbaum filed this suit in both a representational 

capacity and individually. Dkt. No. 1 at ¶ 9. However, because the law is well-settled that 

parents cannot assert their own constitutional and statutory claims for injuries allegedly 

suffered by their children, they do not have a stake in this litigation and should be stricken 

from the case as individual parties. See generally, Polk v. City of Corsicana, 2006 WL 

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385127 at *5 (N.D. Tex. Jan. 24, 2006) (“Plaintiffs have no standing to sue for alleged acts 

or omissions that do not infringe upon a legally recognized right belonging to them. 

Furthermore, although parents certainly feel the injury to a tremendous extent when their 

child suffers injury, a parent has no right to pursue an action pursuant to § 1983 for injuries 

to their child.”) (internal citations and insertions omitted).

Even though Mendelssohn and Birnbaum assert a claim “for derivative losses” (for 

having to miss work in order to parent their own child and support him participating in

extra-curricular activities), Section 1983 and Title VI require that the litigant identify their 

own constitutional right that has been violated. See Moreno v. McAllen Indep. Sch. Dist., 

2016 WL 1258410 at *7 (S.D. Tex. March 31, 2016) (discussing Flores v. Cameron Cnty., 

92 F.3d 258 (5th Cir. 1996)). As Mendelssohn and Birnbaum do not bring a claim for 

violation of their own individual rights, they should be stricken from this lawsuit.

B. Mendelssohn and Birnbaum do not possess the legal authority to sue on behalf 

of J.M., irrespective of their alleged power of attorney, as J.M. is of the age of 

majority.

Whether an individual has the capacity to sue is determined by the law of the 

individual’s domicile. Fed. R. Civ. P. 17(b). Under Texas law, the age of majority is 

eighteen years. Tex. Civ. Prac. & Rem. Code § 129.001. A next friend’s authority to act in 

a representative capacity expires when the minor attains capacity by reaching the age of 

majority. Valadez v. United Ind. Sch. Dist., 2008 WL 4200092 at *1 (S.D. Tex. Sept. 10, 

2008); Gonzales v. U.S., 2007 WL 1729657 at *2 (S.D. Tex. June 13, 2007); Kaplan v. 

Kaplan, 373 S.W.2d 271, 275 (Tex. App.—Houston 1963, no writ); Spell v. William 

Cameron & Co., 62 Tex. Civ. App. 471, 131 S.W. 637, 638 (Tex. Civ. App. 1910).

Case 1:20-cv-00203-JRN Document 11 Filed 05/29/20 Page 2 of 9
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J.M. affirmatively pleads that he is above the age of eighteen (18). See Dkt. No. 1 

at ¶ 8. As J.M. is not a minor, Mendelssohn and Birnbaum do not have authority to 

prosecute this case on J.M.’s behalf. Whether J.M. gave Mendelssohn and Birnbaum power 

of attorney is immaterial. Power of attorney only provides Mendelssohn and Birnbaum the 

authority to initiate this lawsuit on J.M.’s behalf. It does not entitle them to become parties 

in the lawsuit itself. Accordingly, Mendelssohn and Birnbaum must be stricken from this 

case in their representative capacity.

C. Pursuant to appropriate procedure, this Court should direct J.M. to decide if 

he will substitute into this action or else explain why his claims should not be 

dismissed.

The case may only proceed at the former minor’s election. Kaplan, 373 S.W.2d at 

275. J.M. has the option of electing to prosecute on his behalf. Id.; Spell, 131 S.W. at 638; 

see also Gracia v. RC Cola-7-Up Bottling Co., 667 S.W.2d 517, 519 (Tex. 1984) (“In a 

suit by a ‘next friend,’ the real party plaintiff is the child and not the next friend.”).

Federal Rule of Civil Procedure 17(a)(3) states that the court “may not dismiss an 

action for failure to prosecute in the name of the real party in interest until, after an 

objection, a reasonable time has been allowed for the real party in interest to ratify, join, or 

be substituted into the action.” Therefore, procedurally, this Court should provide J.M. a 

specific date to declare if he will be substituted into this action or else explain why his 

claim should not be dismissed. See Valadez, 2008 WL 4200092 at *1 (“Plaintiff’s attorney 

is DIRECTED to confer forthwith with Salas an determine whether he wishes to continue 

this action, and whether he wishes to retain the same or a different attorney. On or before, 

Case 1:20-cv-00203-JRN Document 11 Filed 05/29/20 Page 3 of 9
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September 26, 2008, an amended complaint or a status shall be filed.”) (emphasis in 

original). 

Should J.M. decide to continue this case on his behalf, this Court must properly 

strike out the names of Mendelssohn and Birnbaum. See Kaplan, 373 S.W.2d at 275; Spell, 

131 S.W. at 638. If J.M. does not elect to continue the case, then there is no longer a plaintiff 

and the case should be dismissed.

D. As J.M. is of the age of majority, and this matter does not warrant the use of a 

pseudonym, this Court should order J.M. refile his complaint under his own 

name, or dismiss his lawsuit.

Only in the rarest of instances do courts allow a plaintiff to proceed in a lawsuit 

anonymously. Indeed, in order to commence a lawsuit, the Federal Rules of Civil 

Procedure require plaintiffs to disclose their names in the instrument. Fed. R. Civ. P. 10(a); 

see also Southern Methodist Univ. (SMU) Ass’n of Women Law Students v. Wynne & Jaffe, 

599 F.2d 707, 712 (5th Cir. 1979) (generally requiring parties to a lawsuit to identify 

themselves in their pleadings). This is primarily because “there remains a clear and strong 

First Amendment interest in ensuring that what transpires in the courtroom is public 

property.” Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981) (quoting Craig v. Harney, 331 

U.S. 367, 374 (1947)) (internal quotations omitted). “[L]awsuits are public events and the 

public has a legitimate interest in knowing the facts involved in them...[including] the 

identity of the parties.” Doe v. Compact Info. Sys., 2015 WL 11022761 at *8 (N.D. Tex. 

Jan. 26, 2015) (quoting Doe v. Shakur, 164 F.R.D. 359, 361 (S.D. NY Jan. 22, 1996)) 

(internal quotations and citations omitted). Thus, the presumptive norm is that lawsuits are 

not anonymous. 

Case 1:20-cv-00203-JRN Document 11 Filed 05/29/20 Page 4 of 9
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The Fifth Circuit has explained that there is no rigid, formulaic test courts should 

use to weigh the public’s interest and fairness to all parties against the plaintiff’s desire to 

proceed under a pseudonym. Stegall, 653 F.2d at 185. However, the Court determined the 

three factors it detailed in SMU “deserve considerable weight.” Id. at 185-86. Those three 

factors are: (1) whether the plaintiff seeking anonymity is suing to challenge governmental 

activity; (2) whether prosecution of the suit compels the plaintiff to disclose information 

of the utmost intimacy; and (3) whether the plaintiff is compelled to admit his intention to 

engage in illegal conduct, thereby risking criminal prosecution. Id. at 185. Not only did 

J.M. not seek leave of Court to file his lawsuit under his initials, his pleadings do not 

establish a valid reason to do so.

i. J.M. challenges governmental activity but also sues a governmental agent, 

weighing against anonymity.

Although J.M. does challenge governmental activity, this does not automatically 

grant him anonymity. The Fifth Circuit in Stegall stated “in only a very few cases 

challenging governmental activity can anonymity be justified.” 653 F.2d at 186. It is 

significant to courts whether a plaintiff is suing the government or an individual, “because 

governmental bodies do not share the concerns about reputation that private individuals 

have when they are publicly charged with wrongdoing.” Doe v. El Paso Cnty. Hosp. Dist., 

2015 WL 1507840 at *3 (W.D. Tex. April 1, 2015) (quoting Rose v. Beaumont Indep. Sch. 

Dist., 240 F.R.D. 264, 266-67 (E.D. Tex. Jan. 23. 2007)) (internal quotations omitted).

“Basic fairness dictates that those among the defendants’ accusers who wish to 

participate in [a lawsuit] as individual party plaintiffs must do so under their real names.” 

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SMU, 599 F.2d at 713. “When plaintiffs have chosen to bring private civil suits, primarily 

for damages, fairness requires that they be prepared to stand publicly behind the 

accusations and charges they bring.” Compact Info. Sys., 2015 WL 11022761 at *7 (citing 

numerous cases). Courts have found that “defendants can be at a real disadvantage if they 

are required to defend themselves publicly, while the plaintiff can accuse them behind a 

‘cloak of anonymity.’” Id. (quoting Doe v. Harris, 2014 WL 4207599 at *3 (W.D. La. Aug. 

25, 2014)).

In this case, J.M. has brought suit not only against AISD as an entity, but also 

Wrencher, a public educator, individually. See Dkt. No. 1. He brings serious allegations 

that Wrencher infringed upon his constitutional and statutory rights, as well as committed 

civil conspiracy – which, at their core, attack his credibility and professional performance 

– and seeks monetary compensation from him. See Rose, 240 F.R.D. at 268 (“The court 

finds that it is appropriate to require Plaintiff to stand publicly behind these accusations, 

especially in light of the fact that they are made in pursuit of monetary relief.”). With 

guidance from well-settled caselaw, J.M. should not be allowed to hurl accusations from 

behind his “cloak of anonymity.” Harris, 2014 WL 4207599 at *3.

ii. Prosecution of the lawsuit does not compel J.M. to disclose information of the 

utmost intimacy, weighing against anonymity.

Based on the face of his pleadings, J.M. will not be compelled to disclose 

information of the utmost intimacy by prosecuting this case under his given name. See

generally, Dkt. No. 1. 

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Further, “[e]ven in cases where plaintiffs have alleged psychological trauma due to 

sexual assault, courts have declined to allow the plaintiff to proceed anonymously.” 

Compact Info. Sys., 2015 WL 11022761 at *4; see also Rose v. Beaumont Indep. Sch. Dist., 

240 F.R.D. 264, 268 (E.D. Tex. Jan. 23, 2007) (“[F]undamental fairness demands Rose not 

be allowed to cast aspersions against the public school system and its educators while 

hiding behind a pseudonym. The allegations that Plaintiff lodges against the school district 

and its personnel attack the institution’s ability to educate and protect the children entrusted 

to its care.”). If courts deny the victims of sexual assault the ability to proceed under a 

pseudonym, J.M. in this case cannot be said to have a more compelling need to do so.

iii. Prosecution of the lawsuit does not compel J.M. to admit his intention to 

engage in illegal conduct, weighing against anonymity.

Based on the face of his pleadings, J.M. will not risk criminal prosecution of any 

kind by prosecuting this case under his given name. See generally, Dkt. No. 1. 

CONCLUSION & PRAYER

As J.M. is of the age of majority, and Rick Mendelssohn and Amy Birnbaum lack 

standing to assert claims on their own behalf, Austin Independent School District and 

Vincent Wrencher respectfully request that Rick Mendelssohn and Amy Birnbaum be 

stricken from the case. Further, the District and Wrencher request that J.M. be required to 

make an affirmative election to continue the case under his own behalf, and through his 

own name, and, if he elects not to continue the case, that all of his claims be dismissed, 

with prejudice.

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Respectfully submitted,

Rogers, Morris & Grover, L.L.P.

________________________________

Clay T. Grover

Attorney-in-Charge

State Bar No. 08550280

Fed. I.D. No. 15064

cgrover@rmgllp.com

Jonathan G. Brush

State Bar No. 24045576

Fed I.D. No. 619970

jbrush@rmgllp.com

Amy Demmler

State Bar No. 24092337

Fed. I.D. No. 3227731

ademmler@rmgllp.com

5718 Westheimer Rd., Suite 1200

Houston, Texas 77057

Telephone: (713) 960-6000

Facsimile: (713) 960-6025

Attorneys for Austin Independent

School District

Hansen Powell & Muñoz, PC

/s/ - Jennifer A. Powell

by permission – Clay T. Grover

________________________________

Jennifer A. Powell 

Texas Bar No. 00783554 

Eric E. Muñoz 

Texas Bar No. 24056021 

Tyler P. Ezell 

Texas Bar No. 24113651 

Eichelbaum Wardell 

Hansen Powell & Muñoz, PC 

4201 W. Parmer Lane, Suite A100 

Austin, Texas 78727 

(512) 476-9944 

jpowell@edlaw.com 

emunoz@edlaw.com 

tezell@edlaw.com 

Counsel for Vincent

Wrencher, Sr.

Case 1:20-cv-00203-JRN Document 11 Filed 05/29/20 Page 8 of 9
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CERTIFICATE OF SERVICE

I hereby certify that on May 29, 2020, I electronically filed the foregoing document 

with the Clerk of Court using the CM/ECF system which will send notification of such 

filing to the following: 

Martin J. Cirkiel, Esq.

marty@cirkielaw.com

(via electronic notification)

Jennifer A. Powell

jpowell@edlaw.com

(via electronic notification)

Attorney for Austin ISD

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