Doe v. Purdue University

          OPINION AND ORDER

          JOHN E. MARTIN MAGISTRATE JUDGE

         This 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.

         I. Background

         Plaintiffs, 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.

         Plaintiffs 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.

         II. Analysis

         Federal 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 factors:

(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.

         The 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)).

         The 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.

         The 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.”).

         Plaintiffs 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.

         The 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 ...