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2nd Circuit Sets Standard for Anonymous Suit Filings
New York Law Journal
August 14, 2008
The 2nd U.S. Circuit Court of Appeals has set its standard for when a plaintiff may file a lawsuit anonymously.
The circuit on Tuesday reinstated a case that had been dismissed by a judge because a woman plaintiff who claimed sexual assault refused to release her true identity. In so ruling, the circuit answered two questions of first impression as it detailed both the test a lower court must employ in weighing a request for anonymity and the standard of review the circuit itself would employ on such a decision.
Judges Roger Miner, Joseph McLaughlin and Jose Cabranes decided the appeal in Sealed Plaintiff v. Sealed Defendant #1, 06-1590-cv.
The plaintiff filed a pro se action on Oct. 5, 2005, under the name of Jane Doe against state and municipal entities and officers alleging physical and sexual assault. There were nine defendants.
Northern District of New York Judge Norman Mordue denied her motions for a preliminary injunction and an order granting discovery to ascertain the identity of some "John Doe" defendants.
Mordue then sua sponte instructed the plaintiff to file an amended complaint under her real name, saying New York's Rape Shield Law does not allow the use of pseudonyms and the Federal Rules of Civil Procedure require both that "all the parties" to a lawsuit be named [Rule 10 (a)] and that a "real party in interest" prosecute the action [Rule 17 (a)].
Mordue also required that any amended complaint allege the personal involvement of two defendants, specifically identify two defendants, state a claim against the municipal defendant, plead conspiracy with greater detail and specifically identify the alleged act of misconduct and where it occurred, the date on which it occurred, the names of everyone who participated, and "the nexus between such misconduct and plaintiff's civil and/or constitutional rights."
In a November 2005 letter, the plaintiff asked the court to assist her in learning the names of the defendants, but Magistrate Judge Gustave J. Di Bianco rejected the request as a motion for reconsideration, saying it was untimely and that the plaintiff had failed to comply with the local rules. A second submission also was "rejected and returned" by the magistrate judge.
Mordue dismissed the action in March 2006 and the plaintiff appealed to the 2nd Circuit.
While the appeal was pending, the plaintiff filed an application with the district court for a subpoena to identify the defendants and a restraining order protecting her from their alleged "terror campaign" in retaliation "for speaking out and filing a complaint." The applications were rejected.
BALANCING TEST
Writing for the circuit, Cabranes said courts that have considered the issue "have framed the relevant inquiry as a balancing test that weighs the plaintiff's need for anonymity against countervailing interests in full disclosure."
The 9th Circuit, in a test that has been adopted by some of the district courts within the 2nd Circuit, held in Does I through XXIII v. Advanced Textile Corp., 214 F.3d 1058 (2000), that "a party may preserve his or her anonymity in judicial proceedings in special circumstances when the party's need for anonymity outweighs (1) prejudice to the opposing party and (2) the public's interest in knowing the party's identity."
Cabranes said the 2nd Circuit was now adopting this formulation and he listed several factors to be considered in the balancing test.
Among those listed were: whether the litigation involves matters that are highly sensitive or personal; whether there is a risk of retaliation to a party or, worse, innocent non-parties; whether there are other harms caused by disclosure and the severity of those harms; whether a plaintiff is "particularly vulnerable"; whether the suit is challenging government or private action; the degree of prejudice against the defendant; and whether "the plaintiff's identity has thus far been kept confidential."
The panel then laid out the standard for reviewing a lower court's decision to grant or deny an application to litigate under a pseudonym -- abuse of discretion.
Here, Cabranes said, the lower court abused its discretion because the judge believed he was "strictly bound" by Rule 10(a) "and did not balance plaintiff's interest in proceeding anonymously against the interests of defendants and the public."
The court vacated the denial of the plaintiff's request to proceed under a pseudonym.
Cabranes said the lower court also failed to construe the pleadings of a pro se litigant liberally, something he said the circuit has reminded district courts "On occasions too numerous to count."
"In light of the nature of plaintiff's claims, including physical and sexual assault, the district court should have afforded plaintiff wider latitude in pressing her claims," he said. "Likewise, it was error for the district court to issue specific instructions mandating the content and format of the putative amended complaint."
And it was "equally inappropriate" for the magistrate judge to reject and return plaintiffs' two submissions in November 2005, he said.
The rejection of the first submission conflicted with the requirement to construe pro se pleadings liberally and the rejection of the second, while "intended, no doubt, to assist the plaintiff in the formulation of her claims and facilitate the progress of the action" left an incomplete record for the court to review, the panel said.
