Thursday, June 4, 2020

Pseudonymous Litigation Requires Court Permission

By Eugene Volokh - June 04, 2020 at 08:03AM

A reminder yesterday from Judge James S. Gwin (N.D. Ohio) in Doe v. Doe, a slander lawsuit stemming from allegations of sexual abuse at Oberlin College—the plaintiff is seeking to litigate the case under a pseudonym, but that requires court permission, and requires the plaintiff to clear a fairly high bar:

On March 12, 2020, Plaintiff John Doe sued Defendant Jane Doe in the Lorain
County Court of Common Pleas. On May 8, 2020, Defendant removed the case to this

Federal Rule of Civil Procedure 10 requires complaints to state the parties' names. {Fed. R. Civ. P. 10(a); see Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004) ("As a general matter, a complaint must state the names of all parties.").}

Only in limited circumstances may a court permit the parties to proceed pseudonymously. Id.

Unless the parties seek this permission, however, federal courts lack jurisdiction over the unnamed parties. Nat'l Commodity & Barter Ass'n, Nat'l Commodity Exch. v. Gibbs, 886 F.2d 1240, 1245 (10th Cir. 1989); see also Citizens for a Strong Ohio v. Marsh, 123 F. App'x 630, 637 (6th Cir. 2005) (citing Nat'l Commodity, 866 F.2d at 1245). Here, neither party has requested permission to proceed under pseudonyms.

The Court hereby ORDERS both parties to file briefing on whether they can proceed
anonymously. Both parties' briefs are due within seven calendar days.

Whether the plaintiff can succeed in litigating the case pseudonymously is an interesting question: Courts have generally been open to allowing sealing by plaintiffs who allege sexual assault, and by plaintiffs who sue universities alleging wrongful expulsion based on third parties' allegations of sexual assault; but I haven't seen much discussion of whether libel plaintiffs could sue their accusers pseudonymously, whether over accusations of sexual assault or of other serious misconduct. In any event, though, the court is right that this can't be done as a matter of course, but requires the court's permission.

There are often anonymous Doe defendants, simply because the plaintiff doesn't know their identities (but is often busily trying to discover them).  That, though, raises a separate set of questions.

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