United States District Court, N.D. Indiana, LaFayette Division
OPINION AND ORDER
E. MARTIN MAGISTRATE JUDGE
matter is before the Court on Plaintiffs' Motion to
Proceed Using Pseudonyms [DE 22], filed March 14, 2019.
Plaintiffs seek to proceed in this action using pseudonyms,
arguing that disclosure of their identities would invade
their privacy and potentially subject them to harassment.
Defendants responded on March 25, 2019, indicating that they
objected to Plaintiff Mary Doe proceeding pseudonymously, but
did not object as to Plaintiff Nancy Roe. Plaintiffs replied
on April 1, 2019.
who were female students at Purdue University, allege that
they were assaulted in unrelated incidents by male students
at Purdue. Plaintiff Doe alleges that she was physically
assaulted by a former sexual partner. According to a
declaration by Doe attached to the instant Motion, the
alleged assailant provided Purdue with “a series of
sexually explicit text messages” that Doe sent to him.
The Complaint alleges that Purdue found that Doe
“fabricated the account of the assault, ” and
expelled her. Plaintiff Roe alleges that she was sexually
assaulted in her dorm room while intoxicated, and that the
male student made audio recordings of the incident. According
to the Complaint, Purdue investigated and found that Roe had
“reported the assault maliciously, ” and expelled
her. After both Plaintiffs appealed, the expulsions were
converted to two-year suspensions.
allege that Purdue erred in the process and findings of each
investigation, and seek reinstatement to Purdue and removal
of the discipline from their records, among other relief.
They seek to proceed pseudonymously because of the sensitive
nature of the facts underlying their claims and the risk of
harassment from the alleged assailants and others. Defendants
do not object to Roe proceeding by pseudonym, but do object
to Doe using a pseudonym in this case, because Doe does not
allege sexual assault.
Rule of Civil Procedure 17 requires that civil actions be
prosecuted in the name of the real party in interest.
See Fed. R. Civ. P. 17. The Seventh Circuit Court of
Appeals has explained that “[t]he 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.” Doe v. Blue Cross and Blue Shield United
of Wis., 112 F.3d 869, 872 (7th Cir. 1997); see also
Doe v. City of Chicago, 360 F.3d 667, 669 (7th Cir.
2004) (“The presumption that parties' identities
are public information . . . can be rebutted by showing that
the harm to the [movant] . . . exceeds the likely harm from
concealment.”). Although there is no single test to
define those circumstances, district courts in the Seventh
Circuit have considered the following nonexclusive list of
(1) whether the plaintiff is challenging governmental
activity; (2) whether the plaintiff would be required to
disclose information of the utmost intimacy; (3) whether the
plaintiff would be compelled to admit his or her intention to
engage in illegal conduct, thereby risking criminal
prosecution; (4) whether the plaintiff would risk suffering
injury if identified; and (5) whether the party defending
against a suit brought under a pseudonym would be prejudiced.
Doe v. Purdue Univ., 321 F.R.D. 339, 341 (N.D. Ind.
2017) (citing Doe v. Indiana Black Expo,
Inc., 923 F.Supp. 137, 140 (S.D. Ind. 1996));
see also Doe v. Trustees of Indiana Univ., No.
1:12-CV-1593-JMS-DKL, 2013 WL 3353944, at *3 (S.D. Ind. July
3, 2013); Noe v. Carlos, No. 2:08 CV 227, 2008 WL
5070463, at *2-3 (N.D. Ind. Nov. 26, 2008) (considering the
same factors). The Court should also consider whether a less
restrictive alternative could protect the parties'
legitimate interests. Doe v. Purdue Univ., 321
F.R.D. at 341 (citing Indiana Black Expo, Inc., 923
F.Supp. at 140). Factors 1, 2, 4 and 5 are relevant to this
case, and the Court considers each in turn.
first factor weighs in favor of Plaintiffs; Defendants do not
dispute that Plaintiffs are challenging governmental
activity. See Does v. City of Indianapolis, Ind.,
No. 1:06-CV-865-RLY-WTL, 2006 WL 2289187, at *2 (S.D. Ind.
Aug. 7, 2006) (reasoning that when suing the government, a
plaintiff “presumably represents a minority interest .
. . and there is arguably a public interest in a vindication
of his rights. In addition, the government is viewed as
having a less significant interest in protecting its
reputation from damaging allegations than the ordinary
individual defendant.”) (quoting EW v. New York
Blood Ctr., 213 F.R.D. 108, 111 (E.D.N.Y. 2003)).
second factor is whether the plaintiff would be required to
disclose “information of the utmost intimacy.”
Plaintiff Doe states that evidence and testimony in the
litigation would reveal “intimate sexually explicit
texts” that Doe sent to the alleged assailant and other
details of their sexual relationship. Defendants state that
because no sexual assault is alleged, Doe's situation is
analogous to a battery lawsuit between domestic partners.
Defendants argue that Doe would simply be revealing the
intimate details of a sexual relationship, which is not
sufficiently “exceptional” to entitle Doe to
proceed with a pseudonym.
Seventh Circuit Court of Appeals has frequently stated that
the mere revelation of a plaintiff's sexual history does
not justify anonymity unless the plaintiff is particularly
vulnerable to the lack of privacy in some way. See,
e.g., Univ. of Notre Dame v. Sebelius, 743
F.3d 547, 558 (7th Cir. 2014) (stating that intervening
plaintiffs' use of pseudonyms was justified in part
“because of the privacy interest involved in
contraceptive use”); Doe v. Chicago, 360 F.3d
at 669 (“[S]exual harassment cases are not brought
anonymously even when the facts are gamier than they are
here. The plaintiff is not a minor, a rape or torture victim,
a closeted homosexual, [or a likely target of
retaliation].”); Doe v. Blue Cross, 112 F.3d
at 872 (“[F]ictitious names are allowed when necessary
to protect the privacy of children, rape victims, and other
particularly vulnerable parties.”).
claim that Doe is particularly vulnerable in part because she
was “just eighteen at the time of the battery, ”
and risks stigmatization and harassment at Purdue. Anonymity
has been granted in cases where plaintiffs are challenging
universities regarding discipline for sexual assault.
See, e.g., Doe v. Purdue, 321 F.R.D. at 342 (listing
cases). In Doe v. Purdue, a plaintiff sought
anonymity when he alleged Purdue suspended him after he was
wrongly accused of sexual misconduct. Id. at 340. He
was permitted to proceed under a pseudonym because the case
involved “information regarding [the] sexual
relationship, [the accuser's] allegations of sexual
misconduct, and the details of the University's
findings.” Id. at 342. The type of information
revealed here would be similar as that in Doe v.
Purdue, although Defendants argue this case is different
because this D o e does not allege sexual assault. The case
will clearly reveal private and intimate information about
Doe, but because it is not clear that her allegation places
her within one of the categories recognized by the Seventh
Circuit as justifying a pseudonym, the Court finds that the
second factor does not substantially weigh in Doe's or
Defendants' favor. Because Plaintiff Roe alleges sexual
assault in graphic terms “of the utmost intimacy,
” including the existence of a recording of the
incident, this factor strongly favors permitting Roe to
proceed with a pseudonym.
fourth factor is whether the plaintiff would risk suffering
injury if identified. Doe essentially alleges two risks of
injury - retaliation from her alleged assailant, and
stigmatization and harassment from the public. Defendants
point out that the alleged assailant will likely be a witness
in Doe's case, so he will likely be aware of Doe's
suit if he is not already. Although Doe's allegations
would suggest a risk of retaliation by ...