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Doe v. Fowler

United States District Court, W.D. North Carolina, Charlotte Division

July 16, 2018

JANE DOE, Plaintiff,
v.
CATHLEEN MARY FOWLER and JOHN M. FOWLER, Defendants.

          ORDER

          FRANK D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on Plaintiff's Motion for Leave to Proceed under Pseudonym. (Doc. No. 9). Plaintiff and Defendant Cathleen Fowler have fully briefed the motion and filed their respective Supplemental Memoranda as ordered by the Court. For the reasons discussed below, Plaintiff's Motion for Leave to Proceed under Pseudonym is GRANTED.

         I. PROCEDURAL BACKGROUND

         On December 20, 2017, Plaintiff filed this action against Cathleen Mary Fowler and John M. Fowler under the pseudonym Jane Doe. (Doc. No. 1). Plaintiff asserts a claim under 18 U.S.C. § 2255 against John Fowler and seeks recovery for “all personal injuries caused by [his] violation of 18 U.S.C. § 2423(c) with a minimum liability of $150, 000.” (Doc. No. 1 at 6). Plaintiff also seeks remedies provided under the North Carolina Voidable Transactions Act (“NCVTA”) against Cathleen Mary Fowler for the alleged liability of her ex-husband John Fowler pursuant to 18 U.S.C. § 2255. (Doc. No. 1 at 7-8).

         A few months later, Plaintiff filed a Motion for Leave to Proceed under Pseudonym (the “Motion”) (Doc. No. 9). Defendant Cathleen Fowler timely filed an answer to the Complaint (Doc. No. 10) and a Memorandum (Doc. No. 16) in opposition to Jane Doe's Motion. As John Fowler failed to file an answer after service, Plaintiff moved and obtained entry of default against John Fowler. (Doc. Nos. 13, 21). To date, John Fowler has not appeared in this case.

         II. STANDARD OF REVIEW

         Although Federal Rule of Civil Procedure 10(a) requires that the “title of the complaint must name all the parties[, ]” and “disclosing the parties' identities furthers openness of judicial proceedings[, ]” Co. Doe v. Pub. Citizen, 749 F.3d 246, 273 (4th Cir. 2014) (citations omitted), the Fourth Circuit has recognized that “under appropriate circumstances anonymity may, as a matter of discretion, be permitted[, ]” James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993). “[P]rivacy or confidentiality concerns are sometimes sufficiently critical that parties or witnesses should be allowed this rare dispensation.” Id. When presented with a request to proceed anonymously, courts have “a judicial duty to inquire into the circumstances of particular cases to determine whether the dispensation is warranted.” Id. Factors that courts consider in determining whether a litigant can proceed anonymously include:

whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of sensitive and highly personal nature; whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties; the ages of the persons whose privacy interests are sought to be protected; whether the action is against a governmental or private party; and, relatedly, the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously.

Id.; see also Co. Doe, 749 F.3d at 273.

         Courts analyze the James factors holistically and may consider factors and circumstances not enumerated in James. See Roe v. Wayne Cty. Bd. of Educ., No. 3:17-cv-0094, 2017 U.S. Dist. LEXIS 35979 (S.D. W.Va. Jan. 12, 2017); Yacovelli v. Moeser, No. 1:02CV596, 2004 WL 1144183, at *8 (M.D. N.C. May 20, 2004).

         III. ANALYSIS

         Plaintiff argues that Defendant John Fowler's repeated sexual violation and exploitation of her as a minor constitutes a sensitive and highly personal matter. (Doc. No. 9-3 at 3). Specifically, Plaintiff argues that disallowing her anonymity as to any claim could allow others to link the online pornographic images posted by John Fowler to her name, subjecting her to trauma and reputational harm. (Doc. No. 9-3 at 4; Doc. No. 23 at 2; see also Doc. No. 19-2). In addition to raising the non-sensitive nature of the claim against her and the options for bifurcation in this case, Defendant Cathleen Fowler argues Plaintiff's concern about the pornographic images and her identity are unfounded. (Doc. No. 24 at 5). Yet, Cathleen Fowler's sole basis for this is a lack of evidence that anyone will find out that Plaintiff is involved in this litigation. (Doc. No. 24 at 5). However, this rationale ignores that search engines will make the identity of all parties in this case known. Public Access to Court Electronic Records (“PACER”), WestLaw, Lexis, Google, etc. all provide means for dissemination of Plaintiff's name in connection with John Fowler and Cathleen Fowler's name and many other online tools can allow this information to go viral. Cf. Plaintiff B v. Francis, 631 F.3d 1310, 1318-19 (11th Cir. 2011) (finding court abused its discretion by discounting the harm of plaintiffs' association with pornographic videos using their images given the availability of the videos online and online search engines).

         Other courts have found the distribution of child pornography involving the plaintiff highly sensitive and personal and identification of the plaintiff to result in substantial mental suffering. Doe v. Clazmer, No. 10-C-0992, 2011 WL 5040604 at *2 (E.D. Wis. 2011); see also Francis, 631 F.3d at 1317 (finding allegations that Plaintiffs were filmed in various stages of nudity engaging in explicit sexual conduct while minors upon coercion of defendants, which was marketed by Defendants in films as pornography, as highly sensitive and personal). In addition to declaring that since John Fowler's abuse, she has “received and continue to receive counseling and therapy” and suffered “extreme anxiety, ” Plaintiff also believes public identification would cause her emotional, psychological, and reputational harm.[1] (Doc. No. 9-1). Although concerns of embarrassment and shame may be insufficient for the rare dispensation of anonymity, see Doe v. North Carolina Cent. Univ., 1:98CV01095, 1999 WL 1939248, at *3 (M.D. N.C. Apr. 15, 1999) (addressing civil rights action by plaintiff alleging sexual assault by supervisor when of majority), the association with pornographic images taken when of minority, coupled with sexual abuse, may elicit severe psychological harm in addition to embarrassment, cf. Francis, 631 F.3d at 1317-18; Doe v. St. John's Episcopal Parish Day Sch., Inc., 997 F.Supp.2d 1279, 1290 (M.D. Fla. 2014) (finding allegations of childhood sexual abuse while a minor sensitive and highly personal); John Doe 140 v. Archdiocese of Portland in Oregon, 249 F.R.D. 358, 361 (D. Or. 2008) (explaining that “the experience of sexual abuse can be deeply psychologically traumatic, and public knowledge of such abuse can trigger new trauma even years after the fact”); John Doe v. Kolko, 242 F.R.D. 193, 197 (E.D.N.Y 2006) (noting that none of the cases relied on by defendants addressed sexual assault of a child). Further, there are no procedural mechanisms besides allowing Plaintiff to proceed anonymously to prevent the association of her name with the Fowlers and the pictures distributed by John Fowler.[2] Even if default judgment resolves the claim against John Fowler before a trial on the NCVTA claim against Cathleen Fowler, he and his ex-wife, who shares his surname, are named parties in this case and will remain on the docket associated with this case.

         Cathleen Fowler also argues the “trial on Plaintiff's NCVTA claim will not reference those photographs or any of Defendant John Fowler's conduct” as “the Court and/or jury will only address factors raised in the NCVTA.” (Doc. No. 24 at 6). However, Plaintiff seeks to void a transfer made by John Fowler to Cathleen Fowler with an intent to hinder, delay, or defraud Plaintiff's recovery as a victim creditor. (Doc. No. 1); See ...


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