A.G. v. Unum Life Insurance Company of America

Filing 23

OPINION AND ORDER: Defendants motion to compel 6 is granted. Plaintiff is directed to file an amended complaint with Plaintiff's full name within two weeks of the date of this opinion. Signed on 2/14/2018 by Judge Marco A. Hernandez. (joha)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

A.G., an individual,

No. 3:17-cv-01414-HZ
Plaintiff,

v.
UNUM LIFE INSURANCE COMPANY
OF AMERICA, a Maine corporation,
as administrator of the Dickstein Shapiro LLP
Group Long Term Disability Plan,
Defendant.

Arden J. Olson
Harrang Long Gary Rudnick, PC
360 E. 10th Avenue, Suite 300
Eugene, OR 97401-3273
Attorney for Plaintiff

Robert B. Miller
Kilmer Voorhees & Laurick, PC
732 NW 19th Avenue
Portland, OR 97209
Attorney for Defendant

1 – OPINION AND ORDER

OPINION & ORDER

HERNÁNDEZ, District Judge:
Plaintiff A.G. brings this Employee Retirement Income Security Act (“ERISA”) action
against Defendant Unum Life Insurance Company of America, contending that Defendant
improperly denied Plaintiff’s application for disability benefits. Defendant now moves to compel
Plaintiff to indicate Plaintiff’s full name, rather than Plaintiff’s initials, in compliance with
Federal Rule of Civil Procedure 10(a). I grant the motion.
BACKGROUND
Plaintiff was employed by Dickstein Shapiro LLP as an associate attorney, starting on
September 24, 2012. Compl. ¶6, ECF 1. By November 27, 2013, Plaintiff had become totally
disabled. Id. Plaintiff’s physician ordered Plaintiff to cease work. Id. On December 1, 2013,
Plaintiff stopped working as an attorney. Id. Since that time, Plaintiff has remained unemployed
and under medical treatment. Id.
In 2016, Plaintiff filed a claim for long-term-disability (“LTD”) benefits under Dickstein
Shapiro LLP’s Group Plan, which is administrated by Defendant. Id. at ¶¶2, 17. On February 22,
2017, Defendant paid Plaintiff one month’s benefit under the Plan while it completed its review
of Plaintiff’s claim. Id. at ¶21. The next day Defendant denied Plaintiff’s claim. Id. at ¶22.
Plaintiff pursued an administrative appeal, and on July 28, 2017, Defendant granted short-termdisability (“STD”) benefits but denied LTD benefits. Id. at ¶¶23–25. On September 8, 2017,
Plaintiff filed suit against Defendant, using only Plaintiff’s initials, seeking recovery of LTD
benefits, a declaration of continuing benefits, and fees and costs. See Compl. ¶¶30–62.
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2 – OPINION AND ORDER

DISCUSSION
I. Applicable Law
Rule 10(a) states that “[t]he title of the complaint must name all the parties[.]” However,
many courts, including the Ninth Circuit, permit parties to proceed anonymously or under
pseudonyms in special circumstances. See, e.g., Doe v. Madison Sch. Dist. No. 321, 147 F.3d
832, 833 n.1 (9th Cir. 1998), vacated on other grounds, 177 F.3d 789 (9th Cir. 1999) (en banc);
United States v. Doe, 655 F.2d 920, 922 n.1 (9th Cir. 1981) (“Doe II”) (using pseudonyms in
opinion because appellant, a prison inmate, “faced a serious risk of bodily harm” if his role as a
government witness were disclosed). The Ninth Circuit allows the use of pseudonyms only in the
“unusual case” when nondisclosure of the party’s identity “is necessary … to protect a person
from harassment, injury, ridicule or personal embarrassment.” Does I thru XII v. Advanced
Textile Corp., 214 F.3d 1058, 1067–68 (9th Cir. 2000) (citing Doe II at 922 n.1). Generally, the
question is whether the plaintiff’s need for anonymity outweighs the prejudice to the opposing
party and the public’s interest in knowing the party’s identity. Id. at 1068. The party seeking
anonymity has the burden of proving it should be allowed to proceed anonymously. United
States v. Stoterau, 524 F.3d 988, 1013 (9th Cir. 2008).
Several circuits have examined the issue of allowing parties to proceed anonymously, and
many have adopted some form of balancing test to determine under what circumstances the
practice is appropriate. See, e.g., Doe v. Megless, 654 F.3d 404, 408–10 (3rd Cir. 2011)
(adopting a nine-factor test, balancing six factors in favor of anonymity against three factors in
favor of disclosure); M.M. v. Zavaras 139 F.3d 798, 803 (10th Cir. 1998) (adopting a test
balancing the possible harm to the anonymous party against the public interest in favor of
disclosure); James v. Jacobsen, 6 F.3d 233, 238–39 (4th Cir. 1993) (adopting a non-exhaustive

3 – OPINION AND ORDER

list of five factors, balancing those in favor of anonymity against the risk of prejudice to the
defendant and the public interest); Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992) (listing
three factors for “consideration” when balancing disclosure as customary practice against
plaintiff’s privacy concerns); Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981) (using three
factors, later used by the Eleventh Circuit in Doe v. Frank, to balance a party’s privacy against
customary presumption of openness in judicial proceedings).
In Advanced Textile, the Ninth Circuit dictated its own factors for consideration by
district courts in balancing the relative interests of the parties: 1) the severity of the threatened
harm; 2) the reasonableness of the anonymous party’s fears; 3) the anonymous party’s
vulnerability to such retaliation; 4) the precise prejudice at each stage of the proceedings to the
opposing party, and whether the proceedings may be structured so as to mitigate that prejudice;
and 5) whether the public interest would be best served by requiring that the litigants reveal their
identities. 214 F.3d. at 1068.
The first two factors in Advanced Textile are the most important and should be considered
together. Doe v. Kamehameha Schs./Bernice Pauahi Bishop Estate, 596 F.3d 1036, 1043 (9th
Cir. 2010). The Ninth Circuit continues to use the Advanced Textile test. See Id. at 1042. The
district courts in the Ninth Circuit routinely apply the five-factor test to decide the issue of
whether a party may proceed anonymously. See, e.g., Doe v. UNUM Life Ins. Co. of Am., 164
F.Supp.3d 1140, 1143–47 (N.D.Cal. 2016); Doe v. Lake Oswego School District, No. 3:15–cv–
00385–ST, 2015 WL 5023093, at *2–4 (D.Or. 2015); Doe v. Amazon, No. C11-1709MJP, 2011
WL 13073281, at *2–4 (W.D.Wa. 2011); 4 Exotic Dancers v. Spearmint Rhino, No. CV 08-4038
ABC(SSx), 2009 WL 250054, at *1–3 (C.D.Cal. 2009).

4 – OPINION AND ORDER

Plaintiff urges the Court to adopt the nine-factor test used by the Third Circuit. Pl. Resp.
8–10, ECF 15 (explaining test in detail). The Court declines to do so. The Third Circuit opined
that “[w]hile the courts of appeals have agreed that district courts should apply a balancing test,
each case presents a slightly different list of factors for courts to consider.” Megless, 654 F.3d at
408–09 (further stating “each court agrees that the purpose of the balancing test is to allow a
district court to determine whether a litigant has a reasonable fear of severe harm that outweighs
the public's interest in open litigation.”). While the Third Circuit’s statement of the law is not
inconsistent with the Ninth Circuit’s approach to this issue, this Court is bound by Ninth Circuit
precedent. That precedent requires application of a five-factor test, not the nine-factor one used
in Megless. To the extent that any particular factor overlaps with any of the five used by the
Ninth Circuit, cases applying such a factor may be persuasive. However, this Court will apply
the five-factor test as established in Advanced Textile.
II. Applying the Factors
A. The Severity of the Threatened Harm
Plaintiff contends that should Plaintiff’s name be associated with the medical records that
will be filed to support Plaintiff’s claim, and should Plaintiff ever be able to return to work in the
legal field, there is a “clear and substantial risk” that potential legal employers would be
unwilling to hire Plaintiff. Pl. Resp. 2. Defendant argues that when a plaintiff faces economic
rather than physical harm, the harm must be extraordinary to justify granting anonymity, and that
the harm Plaintiff describes is not sufficiently severe when compared to the harm faced by the
plaintiffs in Advanced Textile.
The Advanced Textile plaintiffs were migrant workers who traveled from mainland China
to work on the island of Saipan, where they surrendered their passports and worked under strict

5 – OPINION AND ORDER

conditions. 214 F.3d at 1064–65. They filed a Fair Labor Standards Act collective action against
their employers. Id. at 1063. The court found that the plaintiffs were under severe threat of harm
because they could be deported back to China for violating any of the many conditions of their
work contracts, at which point they would be incarcerated. Id. at 1070–71. “While physical
harm presents the paradigmatic case for allowing anonymity, extreme non-physical retaliation
may also be sufficient.” Doe v. Amazon, 2011 WL 13073281, at *3 (citing Advanced Textile, 214
F.3d at 1069). In Doe v. Amazon, an actress brought suit against Amazon, as owner of the
database website IMDb.com, alleging it had misused her personal information and improperly
disclosed her age on the website. Id. The plaintiff sought to proceed anonymously, arguing that
should her name be associated with her age, she would be “blacklisted” in the industry, and
never be able to work again. Id. Amazon held that “while the harms that Plaintiff fears—
embarrassment, ridicule, and retaliation—may be serious, they do not rise to the level of severity
required by the Ninth Circuit to permit a party [to] bring a case anonymously in federal court.”
Id.
In Doe v. UNUM Life, a lawyer sought anonymity due to the likelihood of harm to his
reputation, arguing that because of his position in the legal community, other attorneys would be
following the case closely and, even though he did not intend to pursue a future legal career, he
might suffer harm. 164 F.Supp.3d at 1145. The court in UNUM Life found the plaintiff’s
argument unpersuasive, noting that there was no particular stigma associated with the plaintiff’s
work, and that he did not fear physical harm. Id. In another case where the plaintiffs seeking to
proceed under pseudonyms feared “blacklisting,” the plaintiffs argued that the nightclubs they
worked in would collectively blacklist them for bringing a Fair Labor Standards Act suit. 4
Exotic Dancers, 2009 WL 250054, at *2. The court held that the plaintiffs’ fears, while

6 – OPINION AND ORDER

reasonable and severe, were not sufficiently severe to warrant pseudonymity, because the result
was effectively that the dancers would “make less money than they would otherwise.” Id.
Plaintiff here suffers no threat of physical harm as a result of an association with any
particular medical condition, unlike the plaintiffs in Advanced Textile. Plaintiff’s fear is based
purely in the economic realm, where Plaintiff might not be able to get a job in the legal field if, at
some unspecific point in the future, Plaintiff’s past medical history becomes known to a
prospective employer. This is akin to an argument that Plaintiff might be “blacklisted” in the
legal industry. Thus, the facts here are more closely aligned to those in Amazon, UNUM Life, and
4 Exotic Dancers, than in Advanced Textile. Considering the above-referenced cases, this Court
finds that while this harm can be severe, it is not severe enough to weigh this factor in Plaintiff’s
favor.
B. The Reasonableness of the Fear of Harm
Plaintiff’s fears of future harm assume the occurrence of a specific series of events: 1)
Plaintiff sufficiently recovers to return to the practice of law; 2) Plaintiff actually seeks out legal
work; 3) a potential legal employer discovers the medical information in this case; and 4) the
potential employer refuses to hire Plaintiff based on this information. Plaintiff also argues that
Plaintiff’s mental disabilities will be “forever publicly associated with Plaintiff’s present
physical and cognitive limitation, in the very judicial databases that Plaintiff’s potential
employers and other professional connections use every day.” Pl. Resp. 14. Plaintiff contends,
and this Court has no reason to disbelieve, that Plaintiff’s condition is improving and that
Plaintiff wishes to return to the practice of law. Compl. ¶¶5, 6. However, the Court must still
examine the reasonableness of the fear that a possible future employer might decide not to hire
Plaintiff on the basis of Plaintiff’s past cognitive disabilities.

7 – OPINION AND ORDER

Advanced Textile indicates that the alleged harm must be objectively reasonable. 214
F.3d at 1063, 1072 (holding that the plaintiffs established they had an objectively reasonable fear
of extraordinarily severe retaliation; later discussing the relevant issue as whether a reasonable
person would believe the feared threat would actively be carried out.). To judge the
reasonableness of a plaintiff’s fears, a court must consider the surrounding context.
Kamehameha, 596 F.3d at 1044. In Amazon, the plaintiff’s fears were supported by threatening
and lewd messages she had received as a result of the lawsuit. 2011 WL 13073281, at *3.
However, the court held that even in the face of those threats, the plaintiff’s fears of future
retaliation and blacklisting were not objectively reasonable. Id. In Kamehameha, the court also
took note of the many threats the plaintiffs had been subject to, including online threats about
“kill haole day,”1 and the United States Attorney’s serious reaction to them. 596 F.3d at 1044–
45. Still, the court held they were not a sufficient basis for the plaintiffs’ fears. Id. Here,
examining the context of Plaintiff’s alleged future harm, there are no supporting threats. Plaintiff
fails to show that any prospective legal employer, or the community generally, is concerned
about past cognitive disabilities of applicants. Plaintiff points to no evidence suggesting that this
case is of particular note to the legal community. Plaintiff surmises that law firms are likely to
reject her job application because of her medical condition. Plaintiff has no evidence that legal
employers routinely search court docket sheets to obtain information about prospective hires.
Plaintiff’s fear of future harm is simply too speculative to be objectively reasonable.
C. The Anonymous Party’s Vulnerability to the Feared Harm
Plaintiff has not made any particular arguments as to Plaintiff’s increased vulnerability to
potential harms. Defendant argues that Plaintiff is no more vulnerable than the normal plaintiff,

1

Kamehameha dealt with the enrollment of non-native Hawaiians into a school that explicitly gave preferential
acceptance to native Hawaiians. “Kill haole day” is an unofficial school practice where native Hawaiian students
beat up non-native Hawaiians at the end of the school year. See Kamehameha, 596 F.3d at 1040 n.3, 1044–45.

8 – OPINION AND ORDER

especially when compared to the plaintiffs in a case such as Advanced Textile. The court in
Advanced Textile found that the plaintiffs were uniquely vulnerable because they were not only
employees of the defendants, but were also subject to the employers’ power to deport them, at
which point they might have been imprisoned in their home nation. 214 F.3d at 1073. In contrast
to Advanced Textile, the plaintiff in Amazon was not uniquely vulnerable because she did not
allege that the defendants intended to misuse her personal information, and because, despite the
high profile nature of the case, she was not especially subject to retaliation.
Plaintiff is not, as Defendant notes, an unsophisticated foreign garment worker, sexual
assault survivor, or a worker in a stigmatized field. This case is more analogous to Amazon than
to Advanced Textile. Plaintiff has not made any showing that Plaintiff is uniquely vulnerable to
suffer the alleged future harms.
D. The Prejudice Against the Opposing Party
Plaintiff argues that, if allowed to proceed anonymously, Defendant would not be
prejudiced because Defendant already has “extensive records about every aspect of Plaintiff’s
condition, has blanket authorizations from Plaintiff to access medical records, and has the ability
to update those authorizations at any time.” Pl. Resp. 19. Defendant argues that, despite knowing
the identity of Plaintiff, it would be harmed because it would not have the ability to publicly
refute certain allegations about Defendant’s business practices, and it may have difficulty during
the discovery process. Defendant does not make clear what discovery issue it may have, given
that it contends the only relevant evidence is the Administrative Record, which is in Defendant’s
possession. Def. Answer ¶¶10–29.
While Defendant accurately sums up the law when it states that merely showing the
absence of prejudice to a defendant is insufficient for a plaintiff to meet his or her burden, its

9 – OPINION AND ORDER

argument here is unpersuasive otherwise. Kamehameha, 596 F.3d at 1043. Defendant is free to
refute any allegations against it in this litigation. Plaintiff’s allegations are confined to litigation
documents, not broadcast publicly or online. There are no arguments Plaintiff is a public figure
such that Plaintiff’s allegations might reach a larger audience. Defendant makes no showing that
Plaintiff proceeding by initials impairs its ability to defend against the allegations. This factor
weighs in favor of Plaintiff.
E. Whether the Public Interest Would be Best Served by Requiring Identification
Plaintiff argues that this case bears out no particular public interest, while Defendant
contends that the “paramount importance of open courts” is sufficient to swing this factor in its
favor. Kamehameha, 596 F.3d at 1046. While Defendant is correct that there is a public interest
in open courts, the Ninth Circuit has recognized that the equally worthy public interest in cases
proceeding and being decided on the merits may be aided by anonymity. As there is both the
underlying presumption that parties should proceed under their true names, and the public
interest in having cases proceed on their merits rather than be dismissed by a fearful plaintiff, as
some plaintiffs have done, the public interest factor in this case is essentially balanced between
the parties.
F. Summary
Plaintiff fails to show that Plaintiff’s allegations of future harm are severe enough to
warrant proceeding anonymously, or that Plaintiff’s fears are anything more than speculative.
Despite the little or no prejudice that Defendant would suffer, after all the factors are considered,
the balance favors Defendant.
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10 – OPINION AND ORDER

III. Request to File the Administrative Record Under Seal
In Plaintiff's Response, Plaintiff requests that the Administrative Record be filed under
seal. Pl. Resp. 21-22. Although Plaintiff indicates that the parties agreed that no separate motion
on this issue is required, the Court declines to resolve the issue on the current briefing. If
Plaintiff still requests that the Administrative Record be filed under seal, Plaintiff shall file a
motion on this issue, limited to five pages or less, no later than one week from the date of this
Opinion & Order. Defendant shall have one week to file a response, also limited to five pages or
less. Plaintiff may file an optional reply one week from the filing of Defendant's response,
limited to five pages or less. Defendant shall refrain from filing the Administrative Record until
any motion to seal is resolved.
CONCLUSION
Defendant’s motion to compel [6] is granted. Plaintiff is directed to file an amended
complaint with Plaintiff’s full name within two weeks of the date of this opinion.
IT IS SO ORDERED.
Dated this

day of February, 2018.

MARCO A. HERNÁNDEZ
United States District Judge

11 – OPINION AND ORDER