N.S. v. Rockett

Filing 12

OPINION and ORDER - Rockett's motion to compel N.S. to use her full name and motion to stay 5 are DENIED. The parties are ordered to refer to N.S. by her initials in all publically filed documents throughout the pendency of this lawsuit. IT IS SO ORDERED. DATED this 10th day of April, 2017, by United States Magistrate Judge John V. Acosta. (copy mailed to defendant) (peg)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION

N.S., by and through Timothy Marble,
her Conservator,

Case No. 3:16-cv-2171-AC
OPINION AND ORDER

Plaintiff,

v.
STEVEN DOUGLAS ROCKETT,
Defendant.
ACOSTA, Magistrate Judge:
PlaintiffN.S. initiated this lawsuit against defendant Steven Douglas Rockett ("Rockett"),
asserting a claim under 18 U.S.C. § 2255. Rockett answered the complaint, and included two
motions in his answer. (ECF No. 5.) First, Rockett moves to compel N.S. to proceed under her full
name. Second, Rockett moves to stay this lawsuit until his criminal appeals relating to the same
subject matter as this lawsuit are resolved. The cornt denies both motions. The court further orders
both parties to refer to N.S. only by her initials throughout this lawsuit.

Background
N.S. alleges the following facts in her complaint. N.S. is a minor. (Comp!. (ECFNo. 1) if 4.)
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Rockett raped and otherwise sexually abused N.S., including an incident where Rockett solicited
sexually explicit images from N.S. (Id
criminal charges. (Id

if 9.)

ifif 6-7.)

A federal jury convicted Rockett of multiple

One ofRockett's federal convictions arose from Rockett's solicitation

of sexually explicit images from N.S. (Id) A jury in state court also convicted Rockett of multiple
criminal charges, some of which arose from Rockett's sexual abuse ofN.S. (Id at if 8.)

Standards
I. Use oflnitials.

"The normal presumption in litigation is that parties must use their real names." Doe v.

Kamehameha Sch/Bernice Pauahi Bishop Estate, 596 F.3d 1036, 1042 (9th Cir. 2010). Some
exceptions allow parties to proceed anonymously, though. Under Federal Rule of Civil Procedure
("Rule") 5.2(a), court filings must refer to individuals known to be minors by the minor's initials,
unless the court orders otherwise. Ninth Circuit precedent also "allow[s] parties to use pseudonyms
in the 'unusual case' when nondisclosure of the party's identity 'is necessary ... to protect a person
from harassment, injury, ridicule or personal embanassment. '" Does I thru XXIII v. Advanced

Textile Corp., 214 F.3d 1058, 1067-68 (9th Cir. 2000) (quoting United States v. Doe, 655 F.2d 920,
922 n.1 (9th Cir. 1981)). Courts balance "the need for anonymity against the general presumption
that parties' identities are public information and the risk of unfairness to the opposing party." Id
at 1068 (citations omitted). Comis applying this balancing test have recognized three situations
allowing a plaintiff to proceed anonymously:
(1) when identification creates a risk of retaliatory physical or mental harm; (2) when
anonymity is necessary to preserve privacy in a matter of sensitive and highly
personal nature; and (3) when the anonymous party is compelled to admit his or her
intention to engage in illegal conduct, thereby risking criminal prosecution.

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Id. (internal quotation marks and citations omitted).
II. Motion to Stay.
Federal courts may, but are not constitutionally required to, stay civil lawsuits because of
parallel criminal proceedings. Fed'! Sav. & Loan Ins. Co. v. Molinaro, 889 F.2d 899, 902 (9th Cir.
1989). First, courts "consider the extent to which the defendant's fifth amendment rights are
implicated." Id. at 903. Courts also consider other case-specific factors, including:
(1) the interest of the plaintiffs in proceeding expeditiously with this litigation or any
particular aspect of it, and the potential prejudice to plaintiffs of a delay; (2) the
burden which any particular aspect of the proceedings may impose on defendants; (3)
the convenience of the court in the management of its cases, and the efficient use of
judicial resources; (4) the interests of persons not parties to the civil litigation; and
(5) the interest of the public in the pending civil and criminal litigation.

Id. (quoting Golden Quality Ice Cream Co. v. Deerfield Specialty Papers, Inc., 87 F.R.D. 53, 56
(E.D.Pa.1980)).

Analysis

I. Motion to Compel N.S. to Use Her Full Name.
Rockett moves to compel N.S. to use her full name, arguing N.S. does not fulfill any of the
criteria allowing use of initials or a pseudonym. The court disagrees. N.S. was unquestionably a
minor when this lawsuit commenced. Rule 5.2(a) required N.S. to proceed using her initials at the
time N.S. filed her complaint. Even ifN.S. attained the age of majority after filing her complaint,
as Rockett represents in his motion, Rule 5.2 still applied at the time of filing.
The court also concludes N.S. should be allowed to proceed under her initials throughout this
lawsuit, even after she is no longer a minor. A plaintiff generally may proceed under initials or a
pseudonym when asserting a claim based on sexual abuse or assault, especially where the plaintiff

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was a minor when the assault allegedly occurred. See Jordan v. Gardner, 986 F.2d 1521, 1525 (9th
Cir. 1993) ("In keeping with the tradition of not revealing names of the victims of sexual assault, we
use initials here to protect the privacy of the [plaintiffs]."). Such cases fall into the second category
of cases identified inAdvanced Textile: "when anonymity is necessary to preserve privacy in amatter
of sensitive and highly personal nature." Adv. Textile Corp., 214 F.3d at 1068. For example, a court
allowed an adult plaintiff to proceed using her initials when asserting claims arising from sexual
assault that occurred when she was a minor. R.P. v. Seattle Sch. Dist., No. Cl3-2218-MJP, 2014 WL
639408, at *1-2 (W.D. Wash. Feb. 18, 2014). The R.P. court held that "clear public policy
considerations" favor allowing victims of sexual assault to remain anonymous, both "to protect the
privacy of ... rape victims" and "protect[] the identities of sexual assault victims so that other
victims will not be deterred from reporting such crimes." Id at * 1-2 (citations omitted).
The cases Rockett cites in support ofrequiring N.S. to use her full name are not persuasive.
Generally, Rockett relies on cases from other circuits that have required plaintiffs who allege sexual
assault or abuse to proceed under their full names because they chose to file a lawsuit. See, e.g., Doe
v. Shakur, 164 F.R.D. 359, 361 (S.D.N.Y.1996). The cases Rockett cites are inconsistentwithNinth

Circuit precedent because they do not consider the public-policy and privacy concerns favoring
anonymity of victims of sexual assault. Cf R.P., 2014 WL 639408, at *1-2. Upon consideration
of the appropriate public-policy and privacy concerns, the district courts of this circuit uniformly
allow plaintiffs alleging sexual assault to proceed under pseudonyms. A. T. v. Everett Sch. Dist., No.
C16-1536-JLR, 2017 WL 784673, at *1 n.3 (W.D. Wash. Feb. 28, 2017) (allowing an adult plaintiff
alleging sexual assault to proceed using initials); JJ v. Olympia Sch. Dist., Case No. C16-5060BHS, 2016 WL 3597784, at *2 (W.D. Wash. July 5, 2016) (allowing an adult plaintiff alleging

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sexual assault as a minor to use initials); Doe v. W. Am. Province ofthe Capuchin Franciscan Friars,
No. 2:14-cv-01428-HZ, 2015 WL 8770017, at *1 n.1 (D. Or. Dec. 13, 2015) (same); Doe v. Penzato,
No. CVl0-5154-MEJ, 2011WL1833007, at *3-5 (N.D. Cal. May 13, 2011) (allowing an adult
plaintiff alleging sexual assault to proceed using initials).
Rockett also fails to identify any prejudice he would suffer from N.S.'s use of her initials.
Rockett does not contend he is unaware ofN.S.'s true identity. Instead, Rockett's motion and the
circumstances of the case strongly evidence that Rockett knows the identity of N.S. In her
complaint, N.S. identifies herself as the victim of specific criminal offenses of which Rockett was
convicted.
trials.

(Comp!.~

(Answer~

6-9.) Rockett represents that N.S. testified in his state and federal criminal

17.) He also implies knowledge ofN.S.'s birthdate. Id In totality, the court

concludes Rockett is aware ofN.S.'s identity. He does not identify any other prejudice to him due
to N.S. 's use of a pseudonym. Accordingly, the court should require the parties to refer to N.S. only
by her initials in all public filings, even after she is no longer a minor.
In sum, the court concludes Rule 5.2(a) requires N .S. be allowed to proceed under her initials
because she was a minor when this lawsuit commenced. Moreover, the highly sensitive nature of
N.S.'s allegations, public-policy and privacy concerns favoring anonymity for victims of sexual
assault and abuse, and lack of prejudice to Rockett would merit allowing N.S. to proceed under her
initials even if she were not a minor when the case began. The court thus denies Rockett' s motion
to compel N.S. to use her full name. The court also orders N.S. be allowed to proceed under her
initials during the pendency of this lawsuit, and bars any reference by either party to N.S. 's full name
in any publically filed documents.

II II I
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II. Motion to Stay.
Rockett also moves to stay this lawsuit until resolution of his state and federal criminal
appeals. Courts have discretion to stay a civil lawsuit because of related criminal proceedings.
Molinaro, 889 F.3d at 902. Where the related criminal proceeding is an appeal challenging a

criminal conviction, a stay is generally inappropriate. Doe v. City ofSan Diego, No. 12-CV-689MMA-DHB, 2012 WL 6115663, at *2 (S.D. Cal. Dec. 10, 2012) (citing Milton Pollack, Parallel
Civil and Criminal Proceedings, 129 F.R.D. 201, 204 (1989)).

The court first considers the extent to which this lawsuit implicates Rockett's Fifth
Amendment rights. Molinaro, 889 F .3d at 902. Rockett argues the potential for a retrial following
a successful appeal implicates his Fifth Amendment rights.

N.S. contends Rockett's Fifth

Amendment rights are not implicated at all because of his convictions for the conduct alleged in
N.S.'s complaint. Until Rockett exhausts his appellate remedies, however, he has some Fifth
Amendment interest based on the potential for a retrial. Doe, 2012 WL 6115663, at *2. Thus, this
lawsuit implicates Rockett's Fifth Amendment rights because N.S.'s allegations overlap with the
subject matter ofRockett's criminal conviction. See Keating v. Office ofThriji: Supervision, 45 F.3d
322, 325 (9th Cir. 1995) (defendant's Fifth Amendment rights were implicated when the subject
matter of the civil proceeding and criminal prosecution overlapped). But implication of Fifth
Amendment rights is not the end of the Molinaro inquity. Molinaro also requires examination of
the extent to which the civil proceeding implicates a party's Fifth Amendment rights.

Molinaro,

889 F.3d at 902. The court concludes that the remoteness of potential retrial implicates Rockett's
Fifth Amendment rights only to a minimal extent. Doe, 2012 WL 6115663, at *2.
The five remaining Molinaro factors outweigh the minimal implication ofRockett's Fifth
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Amendment rights. First, N.S. argues a stay in this case would harm her interest in timely resolution
of this matter and otherwise prejudice her ability to pursue this lawsuit. N.S. represents that she
intends to "promptly" move for summary judgment on her claim, and that a stay would harm her
interest in timely resolution of this lawsuit. N.S. also argues delay might result in dissipation of
Rockett' s assets and a loss of available evidence, resulting in prejudice to N .S. The first Molinaro
factor weighs against staying this lawsuit.
Second, Rockett argues he would be prejudiced ifthe court does not grant a stay. Rockett
contends defending himself in this case would require him to choose between defending against this
lawsuit and retaining his Fifth Amendment rights in the event of a retrial. But see Keating, 45 F.3d
at 326 ("A defendant has no absolute right not to be forced to choose between testifying in a civil
matter and asserting his Fifth Amendment privilege."). He also argues that defending himself in this
case would allow discovery beyond the scope allowed in criminal proceedings and require him to
disclose his criminal defense strategy. Finally, Rockett argues he would be prejudiced in the event
his criminal appeals are successful because N.S.'s complaint relies on his criminal convictions.
The court concludes that the prejudice Rockett asserts is substantially diminished because
it is contingent on an uncertain event - the success of one or both of his pending criminal appeals.
The contingency and remoteness of a future retrial or dismissal of the charges against Rockett
substantially diminish the potential prejudice to Rockett from proceeding with the case. See Sec. &
Exch. Comm'n v. Bras/au, No. 14-01290-0DW (AJWX), 2015 WL 9591482, at *4 (C.D. Cal. Dec.
29, 2015); Taylor v. Ron's Liquor Inc., No. C-10-00694-SI, 2011WL499944, at *2, 4 (N.D. Cal.
Feb. 8, 2011) ("[W]here trial in the parallel criminal proceeding has concluded, and a conviction is
being challenged on appeal, the analysis shifts against staying the civil proceedings."). Accordingly,

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the second Molinaro factor weighs slightly in favor of a stay.
Under the third Molinaro factor, staying the case would detrimentally affect the court's
interest in managing its caseload. See Molinaro, 889 F.2d at 903 ("the court has an interest in
clearing its docket"). The parties do not argue, nor does the court observe, any third-party or public
interests in staying or proceeding with this lawsuit.
The court finds that the factors identified by the parties outweigh the minimal extent to which
this case implicates Rockett's Fifth Amendment rights. Both Rockett's Fifth Amendment interest
in this lawsuit and the prejudice he identifies are contingent on the success of his criminal appeals.
In contrast, the prejudice to N.S. and the detriment to the court's case-management interest is
imminent and certain. While the court expresses no opinion on the merits ofRockett's appeals, the
potential for Rockett to prevail in his criminal appeals is an insufficient basis for staying this lawsuit.
Accordingly, the court should deny Rockett's motion to stay.

Conclusion
Rockett's motion to compel N.S. to use her full name and motion to stay (ECF No. 5) are
DENIED. The parties are ordered to refer to N.S. by her initials in all publically filed documents
throughout the pendency of this lawsuit.
IT IS SO ORDERED.
DATED this 10th day of April, 2017.

JOHN V. ACOSTA
Unit~§ States Magistrate Judge

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