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Doe v. Rutgers

United States District Court, D. New Jersey

April 30, 2019

JANE DOE Plaintiff,

          OPINION & ORDER

          CATHY L. WALDOR, United States Magistrate Judge


         This matter comes before the Court on Defendant Nabil Adam's Motion to Compel Plaintiff to File an Amended Complaint Using Her Legal Name. (ECF No. 23). Defendant Periklis Papakonstantinou joins in the Motion. (ECF No. 26). The Court declined to hear oral argument pursuant to Federal Rule of Civil Procedure 78, and, for the reasons set forth below, Defendants' Motions are DENIED.


         Plaintiff Jane Doe brings this action under Title IX of the Education Amendments Act of 1972, 20 U.S.C. §§ 1681 et seq. (“Title IX”) and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (“NJLAD”) against Defendants Nabil Adam, Periklis Papakonstantinou, and Rutgers University. Plaintiff has been a student in the Rutgers Business School Ph.D. program since the summer of 2015. (Compl. ¶ 8). Plaintiff alleges that Dr. Nabil Adam, a Rutgers Business School Professor and Plaintiff's dissertation advisor, sexually assaulted Plaintiff in January 2016 and November 2017 and coerced Plaintiff into a sexual relationship. (Id. ¶¶ 19, 31, 32-37, 57). According to Plaintiff, Rutgers failed to appropriately investigate Plaintiff's allegations, failed to take adequate corrective measures, and perpetuated the hostile work environment created by Dr. Adam. (Id. ¶¶ 71, 73-76, 95). Plaintiff further alleges that Rutgers, Dr. Adam, and Rutgers Business School Assistant Professor Papakonstantinou retaliated against Plaintiff for coming forward with her allegations against Dr. Adam. (Id. ¶¶ 67-72, 77-83).

         Throughout the litigation, Plaintiff has proceeded pseudonymously as Jane Doe. Adam now moves to compel Plaintiff to file an amended complaint under her real name in accordance with Federal Rule of Civil Procedure 10. (ECF No. 23). Papakonstantinou joins in Adam's Motion. (ECF No. 26). Rutgers has not opposed Plaintiff's use of a pseudonym.


         Federal Rule of Civil Procedure 10 requires plaintiffs to identify their real names in the Complaint. “[A] plaintiff's use of a pseudonym ‘runs afoul of the public's common law right of access to judicial proceedings.'” Doe v. Megless, 654 F.3d 404, 408 (3d Cir. 2011) (quoting Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067 (9th Cir.2000)). Although the Federal Rules do not explicitly sanction the use of pseudonyms, courts have allowed plaintiffs to proceed pseudonymously when the plaintiff can demonstrate (1) “a fear of severe harm” from the public disclosure of her name and (2) “that the fear of severe harm is reasonable.” Id. Crucially, a plaintiff's fear that she may “suffer embarrassment or economic harm is not enough.” Id. (quoting Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 371 n. 2 (3d Cir.2008)).

         In Megless, the Third Circuit adopted the nine-factor test for the use of pseudonyms that was first articulated in Doe v. Provident Life and Acc. Ins. Co., 176 F.R.D. 464, 467 (E.D.Pa. 1997). The Megless court noted that this “list of factors is not comprehensive” and directed courts to consider the particular circumstances of each case. Id. at 409-10.

         The factors that support a plaintiff's use of a pseudonym are: (1) “The extent to which the identity of the litigant has been kept confidential;” (2) “The bases upon which disclosure is feared….and the substantiality of these bases;” (3) “The magnitude of the public interest in maintaining the confidentiality of the litigant's identity;” (4) “Whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants identities;” (5) Whether the plaintiff would “refus[e] to pursue the case at the price of being publicly identified” and “the undesirability of an outcome adverse to the pseudonymous party;” and (6) “Whether the party seeking to sue pseudonymously has illegitimate ulterior motives.” Id. at 408. The factors that weigh against the use of pseudonyms are: (1) “The universal level of public interest in access to identities of litigants;” (2) “Whether, because of the subject matter of this litigation, the status of a litigant as a public figure, or otherwise, there is a particularly strong interest in knowing the litigants' identities;” and (3) “Whether the opposition to pseudonym by counsel, the public or press is illegitimately motivated.” Id.

         Under the Megless analysis, Plaintiff has successfully overcome the presumption that she should proceed using her real name. As discussed further below, out of the six Megless factors that support Plaintiff's use of a pseudonym, factors (1), (2), (3), and (6) apply here. The considerations that disfavor Plaintiff's anonymity do not outweigh these factors.

         Factor (1) weighs in favor plaintiffs who “make substantial efforts to maintain anonymity” and “limi[t] the disclosure of sensitive information to few other people.” Doe v. Rider Univ., No. CV 16-4882 (BRM), 2018 WL 3756950, at *3 (D.N.J. Aug. 7, 2018). Plaintiff has done so here. Plaintiff's name remained confidential throughout three Rutgers Office of Employment Equity (“OEE”) investigations related to the allegations in the Complaint. In total, it appears from the record that less than fifteen people know Plaintiff's identity, the vast majority of whom were involved either in the underlying facts or in the OEE investigations.[1] Although Plaintiff willingly spoke with members of the media, she did so under the condition of anonymity, and her name was not disclosed in the resulting news articles. (Def.'s Br., Ex. F, ECF No. 23-7).

         Defendant does not dispute this. Rather, Defendant makes an insupportable leap that because Plaintiff has revealed her identity to a limited circle of individuals, Plaintiff “has not taken any steps to maintain anonymity or keep her identity confidential.” (Def.'s Br., ECF No. 23-10, at p. 8). Contrary to Defendant's assertion, this case stands in sharp contrast to instances where courts have found that anonymity would be futile because the plaintiff's name was already widely known. See, e.g., Megless, 654 F.3d at 410 (plaintiff's name, picture and home address had been disclosed on a publicly circulated flyer); B.L. v. Zong, No. 3:15-CV-1327, 2017 WL 1036474, at *3-4 (M.D. Pa. Mar. 17, 2017) (alleged sexual assault victim had “engaged…in braggadocio” regarding the alleged assault, and his name had been publicly disclosed in another proceeding).

         Under Factor (2), the court looks to “the bases upon which” Plaintiff fears disclosure of her identity, and the “substantiality of these bases.” Plaintiff must demonstrate that she reasonably fears “severe harm” that exceeds mere “embarrassment.” Megless, 654 F.3d at 408 (3d Cir. 2011). For example, a plaintiff who wished to keep his bipolar disorder diagnosis private was permitted to proceed pseudonymously in an ERISA action, in order to shield him from “embarrassment, ” “anxiety, ” and “stigmatization, ” which may have “aggravate[d] his condition.” Doe v. Hartford Life & Acc. Ins. Co., 237 F.R.D. 545, 550 (D.N.J. 2006); see also Doe v. Provident Life & Acc. Ins. Co.,176 F.R.D. 464, 468 (E.D. Pa. 1997) (allowing plaintiff to proceed anonymously in his suit for benefits based on disability from mental illness). On the other end of the spectrum, routine fears of professional and social embarrassment are insufficiently compelling. For example, the court ordered the plaintiff in a Fair Debt Collection Practices Act action to disclose his real name, despite the plaintiff's fear that his professional standing as a lawyer would be damaged if the legal community believed he was financially irresponsible. Doe v. Law Offices of Robert A. Schuerger Co., No. CV1713105BRMDEA, 2018 WL 4258155, at *2 (D.N.J. Sept. 6, 2018). Similarly, the court denied Bucknell University students' motion to ...

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