Doe v. Colgate University et al

Filing 4

DECISION AND ORDER. Plaintiff's motion for leave to proceed in this action anonymously, under the pseudonym "John Doe" is DENIED;and within thirty days plaintiff shall file with the court an amended complaint revealing his identity an d substituting his name for that of John Doe; and in the event that the amended complaint is not filed within thirty days, it will be recommended to the assigned district judge that this action be dismissed. Signed by Magistrate Judge David E. Peebles on 9/4/2015. (lah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK

JOHN DOE,
Plaintiff,

Civil Action No.
5:15-CV-1069 (LEK/DEP)

v.
COLGATE UNIVERSITY, et al.,
Defendants.

APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF:
NESENOFF & MILTENBERG, LLP
363 Seventh Avenue, Fifth Floor
New York, NY 10001

ANDREW MILTENBERG, ESQ.

FOR DEFENDANTS:
[NONE]

DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE
DECISION AND ORDER
The plaintiff in this action, who is represented by counsel, has
commenced this action against defendant Colgate University
("University"), the University's Board of Trustees, and six individuals
asserting eight claims, all of which are based upon his expulsion from the

institution for disciplinary reasons. In a one-sentence footnote in his
complaint, plaintiff requests permission to proceed in the action
anonymously under the pseudonym "John Doe." For the reasons set forth
below, I conclude that plaintiff has not satisfied the stringent requirements
for proceeding in this action anonymously and therefore direct that an
amended complaint be filed identifying him by name.
I.

BACKGROUND
Plaintiff commenced this action on August 31, 2015. Dkt. No. 1.

Plaintiff's complaint challenges a disciplinary proceeding conducted by the
University's Equity Grievance Panel based upon allegations by three
unidentified female University students that plaintiff engaged in nonconsensual sexual activity with them in 2011 and 2012. See generally id.
As a result of the hearing, plaintiff was found to have violated University
rules and expelled from the University shortly before he was scheduled to
graduate. Id. Plaintiff claims that the investigation conducted by the
University was flawed, arbitrary and capricious, and discriminatory based
upon his gender. 1 Id. at 4.

1

Plaintiff's complaint asserts a variety of federal and pendent state law claims
arising out of the incidents with the unidentified females and the ensuing investigation.
Dkt. No. 1 at 43-65.

As it specifically pertains to this order, in a footnote on page one of
his complaint, plaintiff states that he "herewith files a Motion to proceed
pseudonymously." Dkt. No. 1 at 1 n.1.
II.

DISCUSSION
Rule 10(a) of the Federal Rules of Civil Procedure requires that

"[t]he title of [a] complaint must name all the parties." Fed. R. Civ. P. 10(a).
"This requirement, though seemingly pedestrian, serves the vital purposes
of facilitating public scrutiny of judicial proceedings and therefore cannot
be set aside lightly." Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185,
188-89 (2d Cir. 2008). The courts, including the Second Circuit, have
created a limited exception to this rule when private interests outweigh the
public's right of access to court proceedings. Sealed Plaintiff, 537 F.3d at
189; Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 685 (11th
Cir. 2001). As one court has noted, however,
[t]he privilege of suing . . . under a fictitious name
should not be granted automatically even if the
opposing party does not object. The use of
fictitious names is disfavored, and the judge has an
independent duty to determine whether exceptional
circumstances justify such a departure from the
normal method of proceeding in federal courts . . . .
[S]uch situations are rare, and the fact that a case
involves a . . . situation which the plaintiff finds
embarrassing, without more, are not sufficient
reasons for allowing the use of a fictitious name.

Roe v. City of Milwaukee, 37 F. Supp. 2d 1127, 1129 (E.D. Wis. 1999)
(quotation marks omitted).
A request to file an action anonymously is a matter addressed to the
sound discretion of the court. Sealed Plaintiff, 537 F.3d at 190. In this
circuit, the exercise of that discretion is informed by a balancing of 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 innocent nonparties; (3) whether identification presents other
harms and the likely severity of those harms . . . ;
(4) whether the plaintiff is particularly vulnerable to
the possible harms of disclosure; (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.
Id. (quotation marks and citations omitted); see also Doe v. Univ. of Conn.,

No. 09-CV-1071, 2013 WL 4504299, at *26-27 (D. Conn. Aug. 22, 2013).
In this case, plaintiff's request neither discusses these relevant
factors nor provides any basis for extending the rare privilege of
proceeding in the action using a pseudonym. Dkt. No. 1 at 1 n.1. Although
the litigation involves accusations against plaintiff that are sensitive and
personal in nature, he has not identified any real or specific risk of harm,
including any risk of retaliation, that he may encounter if his identity is
revealed. Id.
Having considered plaintiff's complaint, I do not find that plaintiff's
privacy interests outweigh the public's interest in full disclosure of these
judicial proceedings. Plaintiff has voluntarily opted to commence this
litigation and air his grievances in a quintessentially public forum.
Presumably, by doing so, he believes his case to be meritorious. In the
event plaintiff prevails, his reputation will be cleared while the University's
unlawful conduct remains public. In the interest of facilitating public
scrutiny of judicial proceedings, and in the interest of basic fairness, I find
plaintiff should be required to proceed in this action using his true identity.
See Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992) ("The ultimate test
for permitting a plaintiff to proceed anonymously is whether [he] 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." (quotation marks, footnote, citation omitted)); Doe
v. Shakur, 164 F.R.D. 359, 361 (S.D.N.Y. 1996) ("Fairness requires that
[the plaintiff] be prepared to stand behind her charges publicly.").
III.

SUMMARY AND ORDER
Having carefully considered the controlling factors and the

competing relevant interests, I conclude that plaintiff has not established a
basis to invoke the limited right to proceed in this action anonymously.
Accordingly, it is hereby
ORDERED as follows:
(1)

Plaintiff's motion for leave to proceed in this action

anonymously, under the pseudonym "John Doe" (Dkt. No. 1 at 1 n.1) is
DENIED.
(2)

Within thirty days of the date of this order, plaintiff shall file with

the court an amended complaint revealing his identity and substituting his
name for that of John Doe as the plaintiff in this action.
(3)

In the event that an amended complaint is not filed by the

plaintiff within thirty days, I will recommend to the assigned district judge
that this action be dismissed.

(4)

The clerk is respectfully directed to forward copies of this order

to plaintiff's counsel by electronic means.
Dated:

September 4, 2015
Syracuse, New York