Doe v. Colgate University et al
MEMORANDUM-DECISION AND ORDER granting 7 Plaintiff's Motion to proceed under pseudonym: It is hereby ORDERED, that Plaintiffs Motion (Dkt. No. 7) to proceed under pseudonym is GRANTED; and it is further ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local Rules. Signed by Senior Judge Lawrence E. Kahn on 4/12/2016. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
COLGATE UNIVERSITY, et al.,
MEMORANDUM-DECISION and ORDER
Plaintiff “John Doe” (“Plaintiff”) commenced this action on August 31, 2015 against
Defendants Colgate University, the Colgate University Board of Trustees, Suzy Nelson, Kimberly
Taylor, Marilyn Rugg, Valerie Brogan, and Tamala Flack (collectively, “Defendants”). Dkt. No. 1
(“Complaint”). Plaintiff challenges Defendants’ conduct in investigating allegations that Plaintiff
sexually assaulted three students while he was a student at Colgate University as well as
Defendants’ decision to suspend Plaintiff in the weeks prior to his graduation. Id. Presently before
the Court is Plaintiff’s Motion to proceed under the pseudonym “John Doe,” which was filed in
response to United States Magistrate Judge David E. Peebles’ September 2015 Decision and Order
denying Plaintiff’s request to proceed under pseudonym and instructing Plaintiff to file an Amended
Complaint within thirty days of Judge Peebles’ Decision and Order. Dkt. Nos. 4 (“September
Order”); 7 (“Motion”); 7-2 (“Memorandum”). Defendants have filed a Response in opposition.
Dkt. No. 14 (“Response”). For the following reasons, Plaintiff’s Motion to proceed under
pseudonym is granted.
In a footnote in the Complaint, Plaintiff stated that he intended to file a motion to proceed
under pseudonym concurrently with the Complaint; however, Plaintiff failed to file such a motion
until after Judge Peebles issued the September Order. Compl. at 1 n.1. In the September Order,
Judge Peebles evaluated Plaintiff’s request to proceed under pseudonym in accordance with the
balancing test set forth by the Second Circuit in Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185,
188-89 (2d Cir. 2008). Sept. Order at 4-5.1 At the time Judge Peebles issued the September Order,
neither party had submitted arguments on the issue of whether Plaintiff could proceed under
pseudonym. Judge Peebles noted that Plaintiff had not identified any real or specific risk of harm or
retaliation that he might encounter if his identity was revealed, and found that Plaintiff’s privacy
interests did not outweigh the public’s interest in full disclosure. Id. at 5. Accordingly, Judge
Peebles denied Plaintiff’s request to proceed under the pseudonym “John Doe” and instructed
Plaintiff to file an amended complaint revealing his identity within thirty days of the issuance of the
September Order. Id. at 6.
Plaintiff has not filed an amended complaint in this action. Rather, in response to the
September Order, Plaintiff’s counsel filed a Letter Motion requesting an extension of time to Judge
Peebles. Dkt. No. 5 (“Letter Motion”). In the Letter Motion, Plaintiff’s counsel acknowledged
their error in not filing a motion to proceed under pseudonym concurrently with the Complaint and
indicated that they intended to file such a motion. Id. Judge Peebles granted Plaintiff’s request to
stay the deadline to file an amended complaint while Plaintiff filed his Motion to proceed under
Citations to the September Order correspond to the pagination assigned by the Court’s
Electronic Filing System.
pseudonym. Dkt. No. 6. Plaintiff subsequently filed the Motion to proceed under pseudonym,
which was referred to this Court, and Defendants filed a Response. Mot.; Resp.
The Court finds that the present Motion should be reviewed de novo rather than treated as
an appeal of the September Order.2 Neither party had submitted any arguments to Judge Peebles
prior to the issuance of the September Order. If the Court were to treat the pending Motion as an
appeal of the September Order, the Court would be precluded from considering any new factual
evidence submitted by the parties. See Thai Lao Lignite Co. v. Gov’t of Lao People’s Democratic
Republic, 924 F. Supp. 2d 508, 511 (S.D.N.Y. 2013) (“Rule 72(a) precludes the district court from
considering factual evidence that was not presented to the magistrate judge.”). This would
effectively deprive the parties of submitting any evidence in favor of their positions, as neither party
had the opportunity to be heard prior to the issuance of the September Order. In addition, Judge
Peebles granted a stay of the September Order’s instruction, requiring the filing of an amended
complaint, pending the Court’s decision on the present Motion. Dkt. No. 6. Therefore, the Court
will consider the parties’ arguments de novo.
Rule 10(a) of the Federal Rules of Civil Procedure provides that “[t]he title of the complaint
must name all the parties. . . .” FED. R. CIV. P. 10(a). A party seeking to proceed under pseudonym
bears a heavy burden, and will only be allowed to do so if private interests outweigh the
countervailing public interest in full disclosure. Sealed Plaintiff, 537 F.3d at 188-89. When
evaluating a request to file an action anonymously, courts in the Second Circuit are instructed to
In their submissions, the parties do not address the standard of review, nor do they make
specific objections to the September Order.
balance the following non-exhaustive list of factors: (1) whether 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 to other innocent nonparties; (3) whether identification poses other harms and the likely severity of those harms; (4)
whether the plaintiff is particularly vulnerable to the harms resulting from disclosure; (5) whether
the suit is challenging the actions of the government or that of private parties; (6) whether the
defendant would be prejudiced by allowing the plaintiff to proceed anonymously, whether the
nature of any prejudice differs at any stage of 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) the relative strength of the public interest in knowing the litigants’ identities based on
the purely legal nature of the issues presented; and (10) whether there are any alternative
mechanisms for protecting the confidentiality of the plaintiff. Id. at 190.
Recently, cases stemming from investigations of sexual abuse on college and university
campuses have garnered significant media attention, posing the risk of further reputational harm to
both the plaintiffs in these cases and their accusers. See, e.g., Doe v. Brown University, No. 15144, 2016 WL 715794, at *1 (D.R.I. Feb. 22, 2016) (“This case concerns an issue that has been the
subject of increasing attention and controversy, particularly in academia, and which has garnered
much recent media and scholarly commentary.”). As the Doe v. Brown court explained, “[t]his
wave of litigation arises in the wake of the 2011 ‘Dear Colleague Letter,’ promulgated by the U.S.
Department of Education’s Office for Civil Rights,” which requires universities investigating
allegations of sexual assault to employ a ‘preponderance of the evidence’ standard rather than a
‘clear and convincing’ standard. Id. (citing Russlynn Ali, Dear Colleague Letter, U.S. Dep’t of
Educ. at 4 (Apr. 4, 2011), available at http://www.ed.gov/about/offices/list/ocr/letters/colleague201104.pdf (last accessed April 7, 2015)). The Doe v. Brown court found that “[m]any of the
recent cases, including this one, allege that the pressure on universities from the OCR has caused a
backlash against male students accused of sexual assault.” Id. Accordingly, the Court finds that
protecting the anonymity of sexual assault victims and those accused of committing sexual assault
can be an important safeguard to ensure that the due process rights of all parties are protected.
Nevertheless, the Court recognizes that each situation must be evaluated on a case-by-case basis,
and the factors set forth by the Second Circuit offer necessary guidance for courts grappling with
Plaintiff argues that the first two factors weigh strongly in his favor and that he should be
permitted to proceed under a pseudonym given the highly sensitive and personal nature of the
litigation and the fact that revealing his identity makes him vulnerable to retaliation. Mem. at 9.3
While the Court is mindful of the high burden a plaintiff must meet to show that anonymity is
warranted, the Court takes note that courts across the country have allowed plaintiffs alleging
similar claims against colleges and universities stemming from investigations of sexual assault to
proceed anonymously. See, e.g., Doe v. Univ. of Massachusetts-Amherst, No. 14-30143, 2015 WL
4306521 (D. Mass. Jul. 28, 2015) (parties consented to allow plaintiff to proceed anonymously
given the highly personal and sensitive nature of the issues and the age of the parties involved);
John Doe v. Columbia Univ. and Trs. of Columbia Univ., 101 F. Supp. 3d 356 (S.D.N.Y. 2015)
(same); see also Doe v. Washington & Lee Univ., No. 14-CV-00052, 2015 WL 4647996 (W.D. Va.
Citations to the parties’ briefs correspond to the page numbers used by the parties.
Aug. 5, 2015) (allowing plaintiff to proceed under pseudonym, with no indication on the docket of
opposition to pseudonym); Doe v. Salisbury Univ., 107 F. Supp. 3d 481 (D. Md. 2015) (same); Doe
v. Univ. of S. Fla. Bd. of Trs., No. 8:15-cv-682, 2015 WL 3453753 (M.D. Fla. May 29, 2015)
(same); c.f. Doe v. Univ. of the S., 687 F. Supp. 2d 744 (E.D. Tenn. 2009) (affirming magistrate
judge’s ruling that plaintiff should be allowed to proceed against university anonymously given
highly personal and sensitive nature of the issues). Defendants argue that cases where the parties
consented to allow a plaintiff to proceed under pseudonym are somehow unpersuasive. Resp. at 6.
However, the Court finds that these cases indicate that the accused colleges and universities
recognize the highly personal and sensitive nature of these cases as well as the limited value of
forcing plaintiffs to reveal their identities when seeking to vindicate their federal rights. See, e.g.,
Doe v. Columbia, 101 F. Supp. 3d at 360 n.1 (“Columbia consented to Plaintiff’s request to proceed
pseudonymously in light of the ‘sensitive subject matter and the age of the students involved.’”).
Plaintiff further argues that disclosure of his identity would result in significant harm to him
and would undermine his purpose in bringing this action, which is to seek redress for reputational
harm he alleges he incurred as a result of Defendants’ actions. Mem. at 10. The Court finds this
argument persuasive. Should Plaintiff prevail in proving that the charges against him were
unfounded and the procedures Defendants followed in their investigation were unfair, forcing
Plaintiff to reveal his identity would further exacerbate the emotional and reputational injuries he
alleges. Moreover, revealing Plaintiff’s identity at this stage risks undermining the fairness and
impartiality of the proceedings. The rise of sexual assaults on college campuses is a troubling
epidemic, however, in addressing this epidemic, courts have a duty to ensure that “[e]ach case must
be decided on its own merits, according to its own facts. If a college student is to be marked for life
as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend
himself and an impartial arbiter to make that decision.” John Doe v. Brandeis Univ., No. 15-11557,
2016 WL 1274533, at *6 (D. Mass. Mar. 31, 2016). The Court finds that forcing Plaintiff to reveal
his identity would not advance any aspect of the litigation but instead poses a risk that Plaintiff
would be subject to unnecessary ridicule and attention. The Court is also mindful of the potential
chilling effect that forcing Plaintiff to reveal his identity would have on future plaintiffs facing
The Court further finds that Defendants will not be prejudiced by allowing Plaintiff to
proceed anonymously. Defendants argue that they will be prejudiced if Plaintiff is allowed to
proceed under pseudonym because historically, parties facing accusations made by anonymous
opponents are at a disadvantage. Resp. at 10. None of the cases Defendants cite in support of this
argument involve investigations of sexual misconduct on college campuses, and the Court finds that
the recent increase in media attention focused on the epidemic of sexual assaults on college
campuses negates any resulting prejudice Defendants would incur if Plaintiff were allowed to
proceed anonymously. Furthermore, Defendants are aware of Plaintiff’s true identity and will have
an uninhibited opportunity to litigate this matter regardless of whether Plaintiff’s identity is
disclosed publicly. See Doe No. 2 v. Kolko, 242 F.R.D. 193, 198 (E.D.N.Y. 2006) (“Other than the
need to make redactions and take measures not to disclose plaintiff’s identity, defendants will not
be hampered or inconvenienced merely by Plaintiff’s anonymity in court papers.”).
Defendants argue that contrary to Plaintiff’s arguments in favor of proceeding under a
pseudonym, Plaintiff has actually sought publicity initiating contact with a Thomson Reuters
reporter to create publicity around the filing of the Complaint. Resp. at 11. The resulting news
story named Colgate as a Defendant but did not identify Plaintiff, although it did include quotes
from Plaintiff and his attorney. Id. While this fact weighs against Plaintiff’s argument that he
wishes to avoid publicity in pursuing this action, it is not enough to persuade the Court that the
public’s interest in learning Plaintiff’s identity outweighs Plaintiff’s significant interest in
Balancing all of these factors, the Court finds that Plaintiff’s interest in anonymity
outweighs “both the public interest in disclosure and any prejudice” to Defendants. Sealed
Plaintiff, 537 F.3d at 189. Accordingly, Plaintiff will be allowed to proceed in this action under the
pseudonym “John Doe.” The Court finds that particularly in the context of investigating allegations
of sexual assault on college campuses, it is imperative that the rights of all parties involved be
thoroughly protected in order to properly adjudicate these claims.
Accordingly, it is hereby:
ORDERED, that Plaintiff’s Motion (Dkt. No. 7) to proceed under pseudonym is
GRANTED; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
April 12, 2016
Albany, New York
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