Summary
denying plaintiff's motion to use a fictitious name in lawsuit alleging sexual abuse by her psychologist because “[t]his will be a case involving direct and personal attacks upon the reputation and integrity of the defendant and in which personal credibility will play a large role in the issues in the case”
Summary of this case from Jane Doe v. Archdiocese of AtlantaOpinion
No. 01-73907.
May 28, 2002.
This matter came before the court on defendant Howard Wolowitz's March 13, 2002 motion for summary judgment and plaintiff Jane Doe's April 8, 2002 motion for entry of order permitting pseudonym and filing of pleadings under seal, which was filed as a response to Defendant's motion. Oral argument was heard May 9, 2002, after which both parties filed supplemental briefs.
BACKGROUND FACTS
The court has diversity jurisdiction over this action which was removed from the Circuit Court for the County of Washtenaw. The four-count complaint alleged medical malpractice, negligence, intentional infliction of emotional distress, and misrepresentation.
Plaintiff, who claims she was sexually abused by Defendant, her treating psychologist, seeks to protect her identity from becoming publicly known during the course of this litigation. Plaintiff offers three concerns upon which she bases her motion. First, Plaintiff claims that "[g]iven her emotional fragility, Plaintiff believe [sic] that revealing her identity in this matter would cause Plaintiff to suffer an additional emotional trauma and will further jeopardize Plaintiffs ability to care for her family and to continue with her studies and employment." Plaintiff's br. at 2. "Second, Plaintiff is concerned about the impact of potential publicity on her two minor children." Id. "Finally, Plaintiff is legitimately concerned that she will suffer retribution from the University of Michigan, where she is a graduate student, if her identity is widely known at the University." Id.
Plaintiffs motion seeks leave of the court to proceed using a pseudonym and filing pleadings under seal. Defendant's motion seeks summary judgment based upon Plaintiffs failure to comply with Rules 10 and 17 of the Federal Rules of Civil Procedure.
LAW AND ANALYSIS
Rule 10 of the Federal Rules of Civil Procedure provides that the "title of the action shall include the names of all the parties . . . ." Rule 17(a) provides that "[e]very action shall be prosecuted in the name of the real party in interest." In limited circumstances, however, courts have allowed parties to bring suit under a fictitious name.
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 in judicial proceedings." It is the exceptional case in which a plaintiff may proceed under a fictitious name.Doe v. Bell Atlantic Bus. Sys. Servs., Inc., 162 F.R.D. 418, 420 (D. Mass. 1995) (quoting Doe v. Frank, 951 F.2d 320 (11th Cir. 1992)). "Basic fairness requires that where a plaintiff makes such accusations publicly, he should stand behind those accusations, and the defendants should be able to defend themselves publicly." Doe v. Indiana Black Expo., Inc., 923 F. Supp. 137, 141 (S.D. Ind. 1996).
Courts have identified a number of factors to consider to determine whether a plaintiffs interest in privacy outweighs the presumption in favor of public identification of litigants. In Doe v. Shakur, 164 F.R.D. 359, 364 (S.D.N.Y. 1996), for example, the court considered the following factors: 1) whether the plaintiff is challenging governmental activity; 2) whether the plaintiff would be required to disclose information of the utmost intimacy; 3) whether the plaintiff would be compelled to admit his or her intention to engage in illegal conduct, thereby risking criminal prosecution; 4) whether the plaintiff would risk suffering injury if identified; and 5) whether the party defending against a suit brought under a pseudonym would be prejudiced. Other factors may include whether the interests of a child are at stake. Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981).
In this case Plaintiff is challenging private, not governmental, activity. That factor weighs in favor of disclosure of Plaintiffs identity. However, she will most likely be required to disclose information of the utmost intimacy, a factor that weighs in favor of allowing a fictitious name. She would probably not be compelled to admit an intention to engage in illegal conduct, thereby risking criminal prosecution; that weighs in favor of disclosure. She asserts that she risks suffering retaliation by the University of Michigan, where she is still a student, as the University was Defendant's employer at the time of the alleged conduct; and it was the University that recommend Defendant's professional services to Plaintiff. However, there is no evidence to support the speculation that the University would retaliate against Plaintiff. Finally, Defendant complains that he would be prejudiced defending against a suit brought under a pseudonym because he would be unable to issue subpoenas using Plaintiffs name. The interests of a child are not at stake in this action.
In Doe v. Indiana Black Expo., Inc., supra, the court opined,
[M]any of the cases in which courts have allowed plaintiffs to proceed under fictitious names have involved claims that did not include direct and personal attacks upon the reputation and integrity of the defendants, and where personal credibility played little if any role in the issues in the case. In challenges to statutes and regulations affecting, for example, abortion or birth control, or the plaintiffs' challenge to school prayer practices in Doe v. Stegall, the anonymous plaintiffs were merely a few of many potential plaintiffs who could have challenged the constitutionality of the defendants' statutes or practices. There were no significant issues in which the plaintiffs' personal credibility played an important role. The constitutional claims asserted raised no personal challenge to the defendants' integrity or reputations.Id. at 142.
This will be a case involving direct and personal attacks upon the reputation and integrity of the defendant and in which personal credibility will play a large role in the issues in the case. The court finds that Plaintiff does not have a substantial privacy right which outweighs the "customary and constitutionally embedded presumption of openness in judicial proceedings." This case is simply not exceptional in that way.
ORDER
It is hereby ORDERED that Plaintiffs April 8, 2002 motion for entry of order permitting pseudonym and filing of pleadings under seal is DENIED; and Plaintiff is ORDERED to amend her pleadings appropriately.
It is further ORDERED that Defendant's March 13, 2002 motion for summary judgment is DENIED.