United States District Court, N.D. Indiana, LaFayette Division
OPINION AND ORDER
E. MARTIN, MAGISTRATE JUDGE UNITED STATES DISTRICT COURT.
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,
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.
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.
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. 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
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)).
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.
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
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).
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 ...