NOT FOR PUBLICATION WITHOUT THE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,

v.

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

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).

APPROVED FOR PUBLICATION

September 17, 2015

APPELLATE DIVISION

September 17, 2015
2 A-0946-13T3

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).
3 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 
4 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 
5 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. 47:1A5(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)
6 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)). 
7 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 
8 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
9 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 
10 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. 
11 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
12 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.