United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE.
L.E.H. contends that in 2005, when she was seven years old,
she suffered physical abuse at the hands of her father in the
form of a spanking. That allegation wound its way through a
series of administrative and court proceedings in the State
of Kansas, culminating in a 2015 judgment of the Kansas Court
of Appeals that the allegation of abuse was unsubstantiated.
L.E.H. v. Kansas Dept. of Social and Rehab. Svcs.,
2015 WL 5036725 (Kan.Ct.App., Aug. 21, 2015), review
denied (Dec. 14, 2015).
First Amended Complaint (Dkt. 15) alleges claims under 42
U.S.C. §§ 1983 and 1985 against the State of Kansas
and several state officials involved in plaintiff's prior
administrative and court proceedings. It also asserts claims
for negligence and violation of the Kansas Consumer
Protection Act. There are several pending motions to dismiss
by defendants, including one motion which argues the court
lacks jurisdiction because plaintiff has not brought the
action in her real name, but rather under the pseudonym
L.E.H. (Dkt. 21).
federal rules do not sanction the use of a pseudonym to
conceal a plaintiff's real name. Doe 1 v. Unif.
School Dist. 331, No. 11-1351-KHV, 2013 WL 1624823, at
*1 (D. Kan. Apr. 15, 2013). The practice is contrary to
Fed.R.Civ.P. 10(a), which requires a complaint to “name
all the parties, ” and to Fed.R.Civ.P. 17(a), which
requires that an action “be prosecuted in the name of
the real party in interest.” In exceptional
circumstances courts have permitted a plaintiff to proceed
under a pseudonym where disclosure of the plaintiff's
name would implicate significant privacy interests or threats
of physical harm. Doe 1, 2013 WL 1624823 at *1
(citing Nat'l Commodity & Barter Ass'n,
Nat'l Commodity Exch. v. Gibbs, 886 F.2d 1240, 1245
(10th Cir. 1989)). Significantly, however, the Tenth Circuit
has held that “[a]bsent permission by the district
court to proceed anonymously, and under such conditions as
the court may impose (such as requiring disclosure of their
true identity under seal), the federal courts lack
jurisdiction over the unnamed parties, as a case has not been
commenced with respect to them.” Nat'l
Commodity, 886 F.2d at 1245.
proceed under a pseudonym, a plaintiff must typically show
that disclosure of her identity in the public record
‘would reveal highly sensitive and personal information
that would result in social stigma or the threat of real and
imminent physical harm.'” Id. (citing
Raiser v. BYU, No. 04-4025, 127 Fed.Appx. 409, 411
(10th Cir. 2005). Moreover, proceeding under a pseudonym
“is an unusual procedure which should be allowed only
where an important privacy interest must be
recognized.” Id. (citing M.M. v.
Zavaras, 139 F.3d 798, 802 (10th Cir. 1998)). In
exercising its discretion, the court must determine whether a
plaintiff's interest in privacy outweighs the public
interest in access to open court proceedings. As Judge Vratil
noted in Doe 1, most of the cases permitting a
pseudonym have involved matters such as abortion, birth
control, and welfare prosecutions involving abandoned
children, whereas plaintiffs alleging matters like sexual
harassment have generally not been allowed to proceed
anonymously. Id. In Doe 1, two plaintiffs
who alleged they were sexually harassed and battered by a
teacher when they were minors were not allowed to proceed
response to this argument (Dkt. 32 at 4-7) is difficult to
decipher and appears to be based on inapplicable Kansas
(rather than federal) provisions. Plaintiff has also
belatedly filed a motion to proceed pseudonymously, which
argues the Kansas courts have already determined that
plaintiff has a privacy interest that warrants proceeding
pseudonymously and that the public “has no interest in
knowing the identity of the party particularly where the
defendants are named.” (Dkt. 38 at 2).
privacy argument is unconvincing. Plaintiff had a legitimate
privacy interest in the state litigation involving
adjudication of a claim of abuse that occurred when she was a
minor. Even so, the allegations in that matter were not
particularly scandalous or likely to result in social stigma.
Nothing is cited to show that revelation of plaintiff's
identity would be particularly troubling or damaging to
plaintiff at this point, given that she is now an adult.
Moreover, this action alleges wrongdoing and seeks money
damages from a number of state officials. As noted in Doe
[l]awsuits are public events. A plaintiff should be permitted
to proceed anonymously only in those exceptional cases
involving matters of a highly sensitive and personal nature,
real danger of physical harm, or where the injury litigated
against would be incurred as a result of the disclosure of
the plaintiff's identity. The risk that a plaintiff may
suffer some embarrassment is not enough.
Doe 1, 2013 WL 1624823, at *2 (citing M.M. v.
Zavaras, 139 F.3d at 803). Plaintiff's privacy
interest in this action is significantly outweighed by the
public interest in knowing the details of the claims,
including plaintiff's identity. Her request to proceed
pseudonymously will therefore be denied.
Tenth Circuit case law indicates the failure to proceed in
plaintiff's true name, if not cured, is a jurisdiction
defect, the court will grant plaintiff leave until March 20,
2018, to file an amended complaint that substitutes plaintiff
in her real name as the party in interest.
IS THEREFORE ORDERED this 12th day of March, 2018,
that defendants' Motion to Dismiss (Dkt. 21) is TAKEN
UNDER ADVISEMENT. Plaintiff is granted until March 20, 2018,
to file an amended complaint that substitutes her real name
as the party in interest. If no such complaint ...