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Doe v. Purdue University

United States District Court, N.D. Indiana, LaFayette Division

April 30, 2019

JANE DOE, Plaintiff,
v.
PURDUE UNIVERSITY and LANCE DUERFAHRD, Defendants.

          OPINION AND ORDER

          JOHN E. MARTIN, MAGISTRATE JUDGE UNITED STATES DISTRICT COURT.

         This matter is before the Court on Plaintiff Jane Doe's Notice of Ex Parte Motion to Proceed Under Psuedonym [DE 1], filed September 20, 2018. Plaintiff seeks to proceed in this action using a pseudonym because of the “sensitive and exceptional” nature of her allegations. Defendant Purdue University responded on March 6, 2019, indicating that it did not object to the request. Defendant Lance Duerfahrd responded on March 18, 2019, objecting to the request. Plaintiff replied to Duerfahrd's response on March 25, 2019.

         I. Background

         Plaintiff Doe, who was a student at Purdue University, alleges that she was repeatedly sexually assaulted by Defendant Duerfahrd, a professor at Purdue. The Complaint alleges, in brief: Plaintiff was a student in two of Duerfahrd's classes in 2006. Duerfahrd began a relationship with Plaintiff wherein he induced her to spend time with him, purportedly for necessary academic reasons. The interactions quickly became personal and intrusive and had no academic purpose. Plaintiff alleges that Duerfahrd violently sexually assaulted her on multiple occasions, and the Complaint includes lengthy and graphic descriptions of the alleged assaults. Plaintiff sued Duerfahrd for sexual assault, sexual battery, and international infliction of emotional distress, and sued Purdue for negligent retention and supervision and violation of Title IX of the Educational Amendments of 1972.

         Plaintiff seeks to proceed in this action using a pseudonym because of the privacy concerns implicated by her allegations. Defendant Purdue does not object to the request. Defendant Duerfahrd argues that these are not “exceptional circumstances” that merit a pseudonym, that Plaintiff intentionally used overly graphic details in the Complaint to attack his reputation, and that fairness requires that she “stand behind” her claims publicly.

         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. Ind. Black Expo, Inc., 923 F.Supp. 137, 140 (S.D. Ind. 1996)); see also Doe v. Trustees of Ind. 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 Ind. 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 is whether the plaintiff is 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)).

         Although Purdue is a government entity, Duerfahrd argues that the first factor should not apply, because there is no concern of Purdue retaliating against Plaintiff, and because Duerfahrd has a similar interest in protecting his reputation to that of an ordinary individual defendant. Duerfahrd cites no authority for the proposition that the first factor relies on the threat of government reprisal, and Plaintiff does argue a risk of reprisal - specifically, related to her potential need to secure recommendations from Purdue or its employees to continue her academic career. Duerfahrd is an individual defendant who no longer works at Purdue, and at this point has no less significant interest than an ordinary defendant in protecting his reputation. Nonetheless, Plaintiff is challenging governmental activity within her lawsuit, including activity by Purdue itself and activity by Duerfahrd while he was a government employee. Those circumstances support Plaintiff's request to use a pseudonym.

         The second factor is whether the plaintiff would be required to disclose “information of the utmost intimacy.” Plaintiff argues that the use of a pseudonym has been used to protect alleged victims of sexual assault, while Duerfahrd points to cases in which alleged sexual assault victims were not permitted a pseudonym. In addition, Duerfahrd says that the Complaint includes detail that was “well beyond” what was necessary to state a claim, which he says weighs against the “intimacy” of the information.

         Although the mere revelation of a plaintiff's sexual history does not justify anonymity, the Seventh Circuit Court of Appeals has frequently listed sexual assault as an exceptional circumstance that can justify a pseudonym. See, e.g., Doe v. Vill. of Deerfield, 819 F.3d 372, 377 (7th Cir. 2016) (stating that fictitious names can be warranted in protecting the identities of “rape victims”); Doe v. Chicago, 360 F.3d at 669 (suggesting that anonymity can be appropriate where the plaintiff is “a rape or torture victim”); 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.”); see also Doe v. St. Clair Cty., No. 18-CV-380-SMY-SCW, 2018 WL 1071744, at *1 (S.D. Ill. Feb. 26, 2018) (holding that “the highly sensitive, personal nature” of the alleged sexual assault justified a pseudonym); Doe v. Purdue Univ., 321 F.R.D. at 342 (permitting a pseudonym in a sexual assault case and listing similar cases in the university context).

         Duerfahrd relies heavily on Doe v. Butler University, in which the court denied the plaintiff's request to use a pseudonym and noted that the intimate facts in the complaint went “well beyond what is necessary” to state a claim, including the names of women with whom he claimed to have had consensual sex. No. 1:16-cv-1266-TWP-DML, [DE 108], (S.D. Ind. Jan. 8, 2018). In that case, the plaintiff sued Butler University after Butler adjudged that he had sexually assaulted a woman and therefore expelled him. Id. at 1. The party seeking anonymity did not allege that he was a victim of sexual assault, which is a crucial distinction is assessing the intimacy of the information. Id. at 5-6; see also Doe v. Vill. of Deerfield, 819 F.3d at 377 (stating that ...


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