A.B. v. C.D.

Filing 23

ORDER re 16 , 17 : Based on a review of both Parties' responses to this Court's January 24, 2018 Order to Show Cause, Plaintiff may not proceed pseudonymously but Defendant may. See attached Order. The Clerk of Court is directed to amend the caption to reflect Plaintiff's true name. Ordered by Judge Denis R. Hurley on 4/24/2018. (Bochner, Francesca)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------X
A.B.,
Plaintiff,

MEMORANDUM AND ORDER
2:17-cv-5840 (DRH)(AYS)

- against –
C.D.,
Defendant.
-------------------------------------------------------X
HURLEY, Senior District Judge:
INTRODUCTION
Plaintiff “A.B.” (“Plaintiff”) brought the instant action alleging defamation on June 1,
2017, in the Supreme Court of the State of New York. Defendant removed the action to Federal
Court on October 5, 2017. (Notice of Removal [DE 1] at 1.) Plaintiff filed the initial state court
action pseudonymously but he never moved to so proceed in this case. Accordingly, the Court
entered an Order directing Plaintiff to show cause why he should be allowed to proceed
pseudonymously. For the reasons discussed below, Plaintiff’s response is unpersuasive and he
may not proceed pseudonymously. Defendant may continue to proceed pseudonymously in
accordance with this Court’s prior decision in case No. 17-cv-179.
BACKGROUND
Pursuant to a decision of Magistrate Judge Ann Shields in case No. 17-cv-179, in which
Judge Shields denied the request by this Plaintiff to proceed pseudonymously as an interested
party in that case, the Court entered an order in this case directing Plaintiff to show cause why
this action should not also proceed under the parties’ true names. (Order to Show Cause (Jan.

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24, 2018).1 Both Plaintiff and Defendant replied to the Order to Show Cause on February 7,
2018, and both parties filed memoranda in opposition and replies in further support shortly
thereafter.
DISCUSSION
I.

Legal Standard
Fed. R. Civ. P. 10(a) provides that the “title of [a] complaint must name all the parties.”

However, the Second Circuit has carved out a narrowly crafted exception to this rule which
allows parties to maintain an action under a pseudonym under certain circumstances. See Sealed
Plaintiff v. Sealed Defendant, 537 F.3d 185, 189 (2d Cir. 2008). To guide courts in determining
whether a plaintiff may proceed under a pseudonym, the Second Circuit has provided a “nonexhaustive” list of factors to consider, including:
(1) [W]hether the litigation involves matters that are highly sensitive and [of a]
personal nature; (2) whether identification poses a risk of retaliatory physical or
mental harm to the . . . party [seeking to proceed anonymously] or even more
critically, to innocent non-parties; (3) whether identification presents other harms
and the likely severity of those harms, including whether the injury litigated against
would be incurred as a result of the disclosure of the plaintiff's identity; (4) whether
the plaintiff is particularly vulnerable to the possible harms of disclosure,
particularly in light of his age; (5) whether the suit is challenging the actions of the
government or that of private parties; (6) whether the defendant is prejudiced by
allowing the plaintiff to press his claims anonymously, whether the nature of that
prejudice (if any) differs at any particular stage of the litigation, and whether any
prejudice can be mitigated by the district court; (7) whether the plaintiff’s identity
has thus far been kept confidential; (8) whether the public’s interest in the litigation
is furthered by requiring the plaintiff to disclose his identity; (9) whether, because
of the purely legal nature of the issues presented or otherwise, there is an atypically
weak public interest in knowing the litigants’ identities; and (10) whether there are
any alternative mechanisms for protecting the confidentiality of the plaintiff.
Sealed Plaintiff, 537 F.3d at 187 (internal quotation marks and citations omitted).

1
Plaintiff in this case appealed Judge Shield’s decision in case No. 17-cv-179. This Court affirmed Judge
Shields’ decision on January 17, 2018. See Doe v. Hofstra Univ., No. 17-cv-179 (E.D.N.Y. Jan. 17,
2018).
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II.

The Parties’ Arguments
Plaintiff claims that “the majority of the factors in Sealed Plaintiff weigh in favor of

allowing [him] to proceed anonymously in this action” because: (1) the litigation involves
sensitive matters; (2) Plaintiff risks physical and mental retaliation if publicly identified;
(3) there is no prejudice to the Defendant in this action; (4) the public interest is minimal; and (5)
there are no alternative mechanisms for protecting Plaintiff’s confidentiality. (PL.’Ss Mem.
Showing Cause [DE 17] at 8–11.) Plaintiff also argues that because the Court has accorded
anonymity to C.D. in the other case, “fairness requires equal treatment” and that the “potential
for prejudice to [Plaintiff] is a mirror image of the problems referred to by [Defendant] in her
application to seal the record.” (Id. at 11–12.) Plaintiff insists again in his Opposition to
Defendant’s Response that Plaintiff’s reasons for anonymity are identical to Defendant’s. (Mem.
in Opp. [DE 19] at 2.)
Defendant argues that she should be allowed to proceed pseudonymously in this case for
the same reasons she was allowed to do so in case No. 17-cv-179 and because this case is “itself
highly unusual.” (Def.’s Response to the Order to Show Cause [DE 16] at 2.) Defendant also
asks the Court to require Plaintiff to use his true name because he has no compelling legal reason
to proceed pseudonymously. (Id.) Defendant avers that any effort by Plaintiff to proceed
pseudonymously is “a thinly veiled attempt to exact revenge on the student who made a
legitimate Title IX complaint against him[.]” (Id. at 2–3.) Defendant disputes Plaintiff’s
assertion that any of the Sealed Plaintiff factors weigh in favor of allowing Plaintiff to proceed
pseudonymously. (Def.’s Mem. in Opp. [DE 20] at 2–4.)
The Court will first analyze whether Plaintiff may proceed pseudonymously under Sealed
Plaintiff, and then will address the same issue with regards to Defendant.

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III.

Plaintiff May Not Proceed Pseudonymously
Looking at the first Sealed Plaintiff factor, the Court agrees that the litigation here

involves matters that are of a highly sensitive and personal nature, as the case relates—in part—
to allegations of sexual harassment and misconduct. Sealed Plaintiff, 537 F.3d at 187 (citing
M.M., 139 F.3d at 803).
Under the second factor, the Court is not convinced that identification poses a risk
of retaliatory physical or mental harm to Plaintiff. Sealed Plaintiff, 537 F.3d at 187
(citing Jacobsen, 6 F.3d at 238). Specifically, Plaintiff has already been identified by his
true name in the other case. While Plaintiff argues that he may suffer physical or mental
harm from Defendant’s father if he is identified here, Defendant’s father already knows
his name so this argument lacks merit. Moreover, Plaintiff states that he has already
suffered from the alleged defamation by losing his livelihood. (Pl.’s Mem. Showing
Cause at 14.) Therefore, identifying him here is unlikely to cause mental harm that has
not already been caused by the events that preceded this action. Accordingly, this factor
weighs against Plaintiff.
The third factor asks whether identification presents other harms and the likely
severity of those harms, including whether “the injury litigated against would be incurred
as a result of the disclosure of the plaintiff’s identity.” Sealed Plaintiff, 537 F.3d at 187
(citing Zavaras, 139 F.3d at 803.) Plaintiff himself does not argue that this factor weighs
in his favor, and the Court agrees that there is little risk of other harms or of incurring the
injury litigated against here. Therefore, this factor weighs against Plaintiff.

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The fourth factor also weighs against Plaintiff, as he is not a member of a
population that is particularly vulnerable to the possible harms of disclosure, such as
young children. See Sealed Plaintiff, 537 F.3d at 187 (citing Jacobson, 6 F.3d at 238).
The fifth factor seems to weigh against Plaintiff as this is a suit between private
parties. Sealed Plaintiff, 537 F.3d at 187 (citing Jacobson, 6 F.3d at 238 (citing Doe v.
Hallock, 119 F.R.D. 640 (S.D. Miss. 1987) (anonymity not warranted in sexual
discrimination and harassment suit against private parties where no privacy interest
beyond personal embarrassment identified)).
The sixth factor is effectively neutral, as there does not appear to be any direct
prejudice to Defendant from allowing Plaintiff to proceed pseudonymously at any stage
of the litigation. Sealed Plaintiff, 537 F.3d at 187 (citing Advanced Textile Corp., 214
F.3d at 1068.)
The seventh factor weighs strongly against Plaintiff because his identity has not
been kept confidential thus far, as discussed above. Sealed Plaintiff, 537 F.3d at 187
(citing Del Rio, 241 F.R.D. at 157).
The eighth factor relates to whether the public’s interest in the litigation is
furthered by requiring the plaintiff to disclose his identity. Sealed Plaintiff, 537 F.3d at
187 (citing Advanced Textile Corp., 214 F.3d at 1068). This factor relates to the “general
presumption that parties’ identities are public information[.]” Advanced Textile Corp.,
214 F.3d at 1068. Plaintiff has not presented any evidence to overcome this general
presumption. Therefore, the eighth factor weighs against Plaintiff.

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The ninth factor also weighs against Plaintiff because the issues here are not
purely legal in nature. Sealed Plaintiff 537 F.3d at 187 (citing Del Rio, 241 F.R.D. at
157). Accordingly, the public interest in knowing the litigants’ identities prevails.
The tenth and final factor is whether there are any alternative mechanisms for
protecting Plaintiff’s confidentiality. Sealed Plaintiff, 537 F.3d at 187 (citing Aware
Woman Ctr., 253 F.3d at 687.) The Court agrees with Plaintiff that “there are no
alternative mechanisms for protecting [his] confidentiality[.]” (PL.’Ss Mem. Showing
Cause at 11.) While the Court is unpersuaded at this time that Plaintiff’s confidentiality
needs to be protected, this factor does appear to weigh in Plaintiff’s favor.
Looking at the ten factors together, two weigh in favor, one is neutral, and seven weigh
against allowing Plaintiff to proceed pseudonymously. This is sufficient to require Plaintiff to
proceed in his true name in this action. Moreover, the Second Circuit has explained that district
courts must exercise “discretion in the course of weighing competing interests” and that the
factors are but a guide. Sealed Plaintiff, 537 F.3d at 190. Thus, even if the factors weighed
numerically in Plaintiff’s favor the Court would still require Plaintiff to proceed under his true
name given the Court’s prior decision denying Plaintiff’s request to proceed pseudonymously in
case No. 17-cv-179, which shares certain facts. Accordingly, Plaintiff must proceed under his
true name in this action.
IV.

Defendant May Proceed Pseudonymously
This Court has already determined that the Defendant in this case should be allowed to

proceed pseudonymously in case No. 17-cv-179. (See Electronic Order Granting Motion to
Proceed Pseudonymously (Apr. 6, 2017).) In that case, the Court found that “Plaintiff’s interest
in proceeding pseudonymously outweighs the public’s interest in disclosure and any prejudice to

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the Defendant” and that “the litigation involves matters of a personal nature and that
identification by name poses a risk of harm to the Plaintiff.” The other parties had also
consented to her pseudonymization. (Id.)
Given that this case concerns a related set of facts, and Plaintiff does not contest
Defendant’s pseudonymization, Defendant may proceed pseudonymously in this case as well.
Moreover, if the Court were to require Defendant to proceed under her true name in this case it
would effectively undermine the Court’s order in the other case and destroy efforts to protect
Defendant’s privacy. While Plaintiff insists that he and Defendant must be treated equally in the
name of fairness, the Court is unpersuaded by this argument. Plaintiff and Defendant are not
identically situated as they are alleging different injuries. Furthermore, the Court has found that
the Sealed Plaintiff factors weigh against Plaintiff proceeding pseudonymously but in favor of
Defendant doing so. As such, Defendant may proceed pseudonymously in this case.
CONCLUSION
For the foregoing reasons, Plaintiff may not proceed pseudonymously but Defendant
may. The Clerk of Court is directed to amend the caption to reflect Plaintiff’s true name.
SO ORDERED.
Dated: Central Islip, New York
April 24, 2018
/s/
_
Denis R. Hurley
Unites States District Judge

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