United States District Court, W.D. North Carolina, Charlotte Division
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE
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.
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).
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.
STANDARD OF REVIEW
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
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.
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).
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).
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. (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. 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.
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