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Doe v. Virginia Polytechnic Institute and State University

United States District Court, W.D. Virginia, Roanoke Division

November 13, 2018

JOHN DOE, Plaintiff,


          Elizabeth K. Dillon, United States District Judge.

         Plaintiff moves for leave to proceed under the pseudonym “John Doe.” For the following reasons, the court holds that his privacy interest outweighs the presumption of openness in judicial proceedings. It will thus grant the motion.

         I. BACKGROUND

         Plaintiff filed his complaint, under the pseudonym John Doe, against defendants Virginia Polytechnic Institute and State University, Timothy Sands, Frank Shushok, Jr., Ennis McCrery, Caroline Green, and Kyle Rose. All of the individual defendants were or are employed by the University.[1] (Compl. 1-2, Dkt. No. 1.)

         Doe alleges that he was falsely accused of sexually assaulting “Jane Roe” while enrolled as an undergraduate at the University. According to Roe, on or about January 23, 2016, Doe sexually assaulted her in Doe's campus apartment unit. After an investigation by the Blacksburg Police Department, Doe was charged with a misdemeanor that was later dismissed. Then, the University's Office of Equality and Accessibility (OEA) began an investigation, led by McCrery, into the incident. (Id. at 3-4.) After a conduct hearing was held, in which Green and Rose participated, Doe was found responsible for “verbal/non-verbal assault, sexual assault, battery, and an alcohol beverage violation.” (Id. at 7.)

         Doe thereafter appealed the finding, “challenging the sufficiency of the evidence against him and the improper investigation.” His appeal was denied, and he was expelled from the University as a sanction. (Id.)

         Doe alleges violations of his due process rights under the United States and Virginia Constitutions, violation of Title IX, negligence, and breach of contract. (Id. at 7-14.) Plaintiff filed his complaint under the pseudonym “John Doe, ” but he did not seek permission to proceed under a pseudonym. Defendants moved to dismiss the complaint under Rule 10(a) of the Federal Rules of Civil Procedure, seeking either “an order staying the time to respond to the Complaint unless and until Plaintiff obtains leave to file under a pseudonym, ” or dismissal of the complaint for failure to obtain leave before filing under a pseudonym. (Mot. Dismiss 1, Dkt. No. 7.) In response, Doe filed an opposition to defendants' motion to dismiss and seeks leave to proceed under a pseudonym. (Pl.'s Opp'n to Mot. Dismiss, Dkt. No. 14; Pl.'s Mot. Leave, Dkt. No. 15.) He seeks to “proceed under a pseudonym to protect his and his accuser's identities.” (Pl.'s Mem. Supp. Mot. Leave 2, Dkt. No. 16.) Defendants filed a brief reply to Doe's opposition. (Defs.' Reply, Dkt. No. 22.) Defendants also filed a response to Doe's motion for leave, in which they state that they neither support nor oppose the motion. (Defs.' Resp., Dkt. No. 23.)


         Federal Rule of Civil Procedure 10(a) states: “[t]he title of the complaint must name all parties.” The purpose of this rule “is to ‘apprise the parties of their opponents and to protect the public's legitimate interest in knowing all the facts and events surrounding court proceedings.'” Doe v. Pittsylvania Cty., No. 4:11-cv-43, 2012 U.S. Dist. LEXIS 13618, at *3 (W.D. Va. Feb. 3, 2012) (quoting Doe v. Hallock, 119 F.R.D. 640, 643 n.1 (S.D.Miss. 1987)). However, parties may proceed anonymously based on a number of exceptions to this requirement that have been articulated by courts. Roe v. Aware Woman Ctr. for Choice, 253 F.3d 678, 685 (11th Cir. 2001).

         “The ultimate test for deciding if a plaintiff should proceed anonymously is whether plaintiff ‘has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings.'” Pittsylvania Cty., 2012 U.S. Dist. LEXIS 13618, at *2-3 (some internal quotation marks omitted) (quoting Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992)). This presumption of openness is well grounded in our nation's laws. Id. at *3. “Courts have long held that the First Amendment protections of freedom of speech and press safeguard the public's right to attend trials, which must be ‘open to the public absent an overriding and clearly articulated interest to the contrary.'” Id. (quoting Doe 1 v. Merten, 219 F.R.D. 387, 390-91 (E.D. Va. 2004)).

         But the presumption of openness is not absolute; anonymity may be appropriate in some cases. “The crucial interests served by open judicial proceedings are not compromised by allowing a party to proceed anonymously.” Id. at *4. If a plaintiff is granted leave to proceed under a pseudonym, the public is not denied its right to attend the proceedings or inspect the court's opinions and orders on the underlying constitutional issue. Id. “[T]he only thing potentially being shielded from the public is plaintiff's name and any court proceedings or opinions that might be necessary to determine standing.” Id. (quoting Doe v. Barrow Co., 219 F.R.D. 189, 193 (N.D.Ga. 2003)). Still, “it is the exceptional case in which a court allows a party to proceed anonymously.” Id.

         Whether a plaintiff is allowed to proceed anonymously is a decision committed to the sound discretion of the district court. Id. at *6. To guide this decision, the Fourth Circuit has provided the following five factors:

[1] whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of sensitive and highly personal nature; [2] whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties; [3] the ages of the persons whose privacy interests are sought to be protected; [4] whether the action is against a governmental or private party; and, relatedly, [5] the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously.

James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993). Not all of these factors may be relevant to a given case, and there may be others that are. Id. Consequently, the trial court must “carefully review all the circumstances of [the] case and then decide whether the customary practice of disclosing the plaintiff's identity should yield to the plaintiff's privacy concerns.” ...

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