IN THE UNITED STATES DISTRICT COURT by ck4p0w

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									                      IN THE UNITED STATES DISTRICT COURT
                     FOR THE WESTERN DISTRICT OF LOUISIANA
                         LAFAYETTE/OPELOUSAS DIVISION


JANE DOE,                        :
                                 :                             Civil Action No. 03-1093
        Plaintiff,               :
                                 :                             Judge Pierson
                                 :
ROMAN CATHOLIC DIOCESE OF        :
LAFAYETTE, LOUISIANA;            :
FATHER VINCENT M. O’CONNELL of :
OUR LADY QUEEN OF SAINTS         :
CHURCH; BISHOP JOHN SHEPARD      :
of the ROMAN CATHOLIC DIOCESE OF :
LAFAYETTE, LOUISIANA; OUR LADY :
QUEEN OF SAINTS CHURCH           :
CORPORATION,                     :
                                 :
        Defendants.              :


                               BRIEF IN SUPPORT OF
                     DEFENDANT FATHER VINCENT M. O'CONNELL'S
                                MOTION TO DISMISS


                                         INTRODUCTION

       Plaintiff filed a complaint against Father O’Connell using a fictitious name. The

Plaintiff, a college student at an out-of-state university, seeks monetary relief for alleged acts by

Father O’Connell. The complaint, filed on January 3, 2003, violates Rule 10(a) of the Federal

Rules of Civil Procedure. This brief is filed in support of Father O’Connell’s motion to dismiss

for failure to comply with Rule 10(a).




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                                          STATEMENT OF FACTS

       Father O’Connell is the pastor at Our Lady Queen of Saints Church. (Compl. ¶ 5 (Jan. 3,

2003).) Father O’Connell was ordained as Roman Catholic Priest in 1984 and became the Parish

Priest of Our Lady Queen of Saints Church in 1995. (Id.) Our Lady Queen of Saints Church is a

member of the Roman Catholic Diocese of Lafayette, Louisiana. (Id. ¶ 7.)

       Father O’Connell served as counselor of the youth group at Our Lady Queen of Saints

Church. (Id. ¶ 9.) He contributed to the community as a mentor, advisor and spiritual counselor

to the members of the youth group. (Id.) The youth group met at least twice per month and went

on retreats twice per year. (Id. ¶ 10.)

       Plaintiff spent her childhood as a resident of Opelousas, Louisiana. (Id. ¶ 3.) When she

was a child, plaintiff lived with her parents and five younger siblings in Opelousas. (Id.) The

family was Roman Catholic and plaintiff was baptized, confirmed, and attended weekly mass at

Our Lady Queen of Saints Church in Opelousas. (Id. ¶¶ 7-8.)

       Father O’Connell interacted with the plaintiff while she was a member of the youth

group. (Id.) Plaintiff alleges she participated in intimate acts with defendant between December

1995 and March 1997. (Id. ¶¶ 11-12.) Plaintiff alleges similar incidents may have occurred with

four other members of the youth group. (Id. ¶ 15.) Plaintiff alleges Bishop Shepard and the

Roman Catholic Diocese of Lafayette knew of prior incidents at other churches in the Diocese

and that Father O’Connell left a previous church as a result. (Id. ¶¶ 16-17.)

       Plaintiff is seeking monetary damages. (Id. [¶ 29].) In addition, Plaintiff is filing under a

fictitious name. (Id. ¶ 3.) Plaintiff advised defendant of true identity by letter (Sealed Exhibit A)

and is referred to as Jane Doe. Plaintiff is a seventeen year old woman. (Id. ¶ 3.) She is

currently attending college out of state at University of Saint Thomas in Houston, Texas. (Id.)




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                                           ARGUMENT

I.      THE MOTION TO DISMISS SHOULD BE GRANTED BECAUSE THE PLAINTIFF
        SUPPLIED A FICTITIOUS NAME ON THE COMPLAINT.


        Plaintiff has failed to state a claim by violation of Federal Rules of Civil Procedure Rule

10(a). Rule 10 requires that a Complaint "shall include the names of the parties." Fed. R. Civ. P.

10(a) (2002). Only under exceptional circumstances is a fictitious name allowed. Doe v. Stegall,

653 F.2d 180, 186 (5th Cir. 1981). The presumption of openness in civil proceedings and the

public’s right to know can only be outweighed by a substantial privacy interest. Id. Plaintiff’s

circumstances do not outweigh the presumption of openness.


        A. The Presumption of Openness in Judicial Proceedings Is Consistent With Public
           Interest And Fairness Toward The Defendant, And Should Not Be Restricted.


        Public interest dictates parties in a lawsuit must openly identify themselves. The

presumption of openness in American judicial proceedings has its roots in the First Amendment.

To allow restrictions on that presumption, there must be an exceptional set of circumstances.

Stegall, 653 F.2d at 186. In addition, a defendant is unfairly prejudiced when the plaintiff is

allowed to hide behind a false name. Therefore, the plaintiff should be required to list her real

name.


        1. Public Interest Is Served When The Public Has Access To All Information In Judicial
           Proceedings.


        The public’s right to know the facts of a judicial proceeding is paramount. There is a

presumption of openness in American judicial proceedings that must be balanced against a

plaintiff’s desire for privacy. Id. Only in the rare case where the “interest of justice so requires”




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should a court allow use of a fictitious name. Doe v. Hallock, 119 F.R.D. 640, 644 (S.D. Miss.

1987). The use of fictitious names is “fraught with constitutional overtones” and First

Amendment issues stand against discarding the “almost universal practice” of disclosing the

plaintiff’s true identity. Stegall, 653 F.2d at 185. Although anonymity may not directly affect

public access to the issues, or their access to the court functions; “[w]hat transpires in the

courtroom is public property.” Id.

        In cases where there is strong public interest in the accuracy of the facts and the validity

of the claims, the presumption of openness becomes even stronger. Doe v. Hartz, 52 F. Supp. 2d

1027, 1048 (N.D. Iowa 1999). In Hartz, the plaintiff brought a civil action against her priest for

sexual abuse. Id. The court refused to allow the plaintiff to proceed under a fictitious name

because the public had strong interest in knowing if the accusations against a religious figure in

the community were fabricated, or if the allegations were true. Id. In addition, courts exist to

serve the public good, they are supported by public tax dollars, and the public should know the

real names of parties bringing civil actions into the courts. Id. at 1045 n. 2.

        In the present situation, there is a high public interest in this trial because a prominent

religious member of the community faces allegations affecting the community as a whole. As in

Hartz, Father O’Connell has been accused of behavior that the public, and his parish in

particular, have a legitimate interest in.


        2. Defendant Would Be Unfairly Prejudiced If A Plaintiff Seeking Monetary Damages
           Is Allowed To Conceal Their Identity.


        When a plaintiff decides to bring a lawsuit and level a serious charge, fairness dictates

she stand behind her charges publicly. Doe v. Shakur, 164 F.R.D. 359, 361 (S.D.N.Y. 1996).

The simple action of filing a civil suit against an individual could cause serious damage to their



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name and reputation; “basic fairness” requires a party causing this public damage do so using

their real name. Hallock, 119 F.R.D. at 644. It is unfair to let the defendant be the target of

public ridicule while the plaintiff hides from the public embarrassment she herself focused on the

situation. Hartz, 52 F. Supp. 2d at 1047. Although, some courts have held the assurance of

fairness is not lost by use of a fictitious name, see Id., in most of these instances the court was

deciding on a criminal case, not a civil action. Stegall, 653 F.2d at 185. In criminal cases,

anonymity may be allowed where parties did not choose to bring action and the purpose of the

trial is served by bringing law breakers to justice. Shakur, 164 F.R.D. at 361. In civil cases,

however, the plaintiff is often concerned with their own self-interest; and the public interest may

be as concerned with the information or parties of the trial as the final outcome. Id.

       Fictitious names should not be allowed in civil cases where the plaintiff seeks monetary

gain at the defendant’s expense. In Shakur, the plaintiff sought $60 million damages from the

defendants, who had been convicted in criminal court of sexually abusing the plaintiff. 164

F.R.D. at 360. Since the plaintiff chose to bring the lawsuit for her own monetary gain, the court

held it was unfair to expose the defendant to the public scrutiny while allowing the plaintiff to

proceed anonymously. Id at 361. In Stegall, the plaintiffs sought an injunction against a public

school regarding religious practices. 653 F.2d at 182. The children (and the parent who brought

the action) were allowed to use pseudonyms. Id at 186. However, the children did not choose to

bring a lawsuit – their parent did. Id at 182. In addition, the plaintiffs were not seeking

monetary gain. The injunctive relief sought was for the public good, and not for personal,

private gain. The defendants in Stegall were not the target of public ridicule; the opposite is true:

the community supported the defendants’ position so strongly that threats of violence were




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issued against the plaintiffs. Id at 184. It was reasonable and fair to allow the children to remain

anonymous when they did not choose to be in the middle of a controversial lawsuit.

       In the present situation, Father O’Connell must now defend his name publicly after it has

been tarnished by accusations, while the Plaintiff hides behind a fictitious name. Although

plaintiffs were allowed to use a pseudonym in Stegall, there are several significant differences.

Father O’Connell is aware of plaintiff’s true identity. (Compl. ¶ 3.) However, just as in Shakur,

Father O’Connell’s knowledge does not give the plaintiff the right to proceed anonymously. As

in Shakur, she is seeking personal, monetary gain; and, like Shakur, she chose to bring this

lawsuit to a public forum. Father O’Connell’s reputation is vital to his work as a pastor and the

plaintiff has put that reputation in jeopardy. Therefore, the Plaintiff’s desire to use a fictitious

name would be unfair to Father O’Connell.


       B. The Fundamental Right of Public Access to Court Proceedings Cannot be Cast Aside
          by an Individual’s Wish to Hide Their Identity.

       The Plaintiff’s desire to remain anonymous is not so overwhelming as to discard the

public’s “right to know” in a civil trial. This is a balance test between the public’s interest in the

proceedings, and the plaintiff’s desire for privacy. When weighing the privacy concerns of a

plaintiff desiring to use a fictitious name, courts look to several factors; including: 1) issues

involving children, 2) issues involving a threat of harm, and 3) issues of utmost intimacy.

Stegall, 653 F.2d at 185. (In addition, other factors irrelevant to the case at bar may be if the

plaintiff must admit to participating in criminal activity, or if it is an action against a government

entity. Id.). There is no “hard and fast rule” governing when a party is allowed to withhold their

real name. Id. Although not all the factors need to be present, the factors must be weighed

together. Id. at 186 (balancing all factors), Hallock, 119 F.R.D. at 643 (not all factors need be




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present) There must be a compelling reason to disregard the public policy of access to

information in the court system, and no such compelling reason exists in the present situation.


       1.     A Grown College Student Does Not Suffer From the Same Frailties as a Young
       and Tender Child and Does Not Need the Same Level of Protection.


A grown college student should disclose her true identity. A court may consider a child plaintiff

as one of the exceptional circumstances where a fictitious name may be used. Stegall, 653 F.2d

at 186. Courts have consistently stated the guiding principle behind this factor is the

“vulnerability and tender age” of young children. Stegall, 653 F.2d at 186; John Does 1,2,3,4 v.

Covington County Sch. Bd., 884 F. Supp. 462, 464 (M.D. Ala. 1995). In Stegall, a suit was

brought on behalf of two middle school children against the State of Mississippi and the public

school system they were currently attending. Stegall, 653 F.2d at 182. Although the court

confirmed that not all child-litigants may remain anonymous, the young age of the children was

considered a factor. Id at 186. In Covington, children sued their public school and school

officials alleging severe sexual abuse, including sodomy. 884 F. Supp. at 463. The children

ranged in age from eight to eleven years old at the time of the lawsuit. Id. The court allowed the

children to remain anonymous. Id at 468.

       In the present situation, the Plaintiff is a grown college student, not currently of

“vulnerable and tender age.” (Compl. ¶ 3.) In both Stegall and Covington, the young children

were still in the schools and community where harassment was likely. The Plaintiff, however, is

living in Texas, leading an adult life, and filed this lawsuit on her own. (Compl. ¶ 3.) If policy

were to allow plaintiffs to proceed anonymously because they were at one time a young child,

then no plaintiff would ever be required to disclose their true names. The Plaintiff should be

required to disclose her true identity.



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       2.      Vague Concerns about Harassment or Harm Do Not Justify Hiding One’s
       Identity.


       A plaintiff’s nonspecific worries about harassment or social stigma are insufficient to

allow the use of a fictitious name. The threat of harm must be real and substantial in order to

justify concealing a plaintiff’s true name. Hartz, 52 F. Supp. 2d at 1047. Even in cases where

the threat of harm is documented, there must be other factors. Stegall, 653 F.2d at 186. In

Stegall, the plaintiff introduced evidence of a local newspaper documenting threats of violence

toward the plaintiff during a school board meeting. Id at 183. The court reasoned that hostile

threat alone would only in “great rarity” be enough to allow use of a fictitious name. Id at 186.

The court then concluded that anonymity was allowed because the plaintiffs were young children

in combination with the documented risk of harm. Id at 188.

       Speculative harm is insufficient. Hartz, 52 F. Supp. 2d at 1047. In Hartz, the plaintiff

was bringing an action against a priest for sexual abuse and sought to proceed anonymously. Id

at 1035. The plaintiff lived in a different state from the defendant, but claimed fear of harm if

identified. Because the plaintiff did not produce any evidence of risk of harm, the court held that

any potential harm was too speculative and did not weigh in favor of anonymity. Id at 1047. In

Shakur, where the plaintiff contended she was subject to death threats, the court did not allow

anonymity because she provided no details regarding why or how she may have been at risk.

Shakur, 164 F.R.D. at 362.

       In the present situation, any threat of harm would be conjecture. The complaint does not

state any evidence of harassment, or threats. As in both Shakur and Hartz, the Plaintiff can only

speculate about any perceived risk of harm. The Plaintiff lives in Texas, far from anyone with a

vested interest in the case, and is not exposed to harassment. (Compl. ¶ 3.) In the event the



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Plaintiff visits Opelousas, she would be socializing with family and friends and then returning to

college; therefore even her exposure to a speculative harm is minimal. Because the Plaintiff is

only exposed to speculative harm, if any at all, she lives out of state and that exposure is

minimal, and there are no other exceptional factors, the Plaintiff should have disclosed her true

identity.


        3.     There Must be More Than Embarrassment at Stake to Warrant Anonymity.


        Although a plaintiff may be uncomfortable with the nature of her allegations, her

embarrassment does not warrant using a fictitious name. Issues of utmost intimacy may allow

anonymity. Stegall, 653 F.2d at 185. However, humiliation is insufficient. Shakur, 164 F.R.D.

at 362. Sexual nature alone is insufficient. Hartz, 52 F. Supp. 2d at 1047. In Shakur, the

plaintiff in a civil suit was seeking anonymity after a brutal sexual assault and sodomy by two

men. 164 F.R.D. at 360. However, absent any other extenuating circumstances, the court did

not allow anonymity over the sexual, intimate details of the case. Id at 362. The plaintiff could

not hide her true name to avoid public embarrassment. In Hartz, the plaintiff brought suit against

the priest of her church alleging he “fondled and kissed [her] for the purpose of arousing and/or

satisfying his sexual desires.” 52 F. Supp. 2d at 1045. These sexual acts were found to be

“uncomfortable” but not “brutal”. Id at 1047. In addition, the court noted that the interests of a

child were not at stake. Id. Therefore, the sexual acts did not warrant anonymity.

        A plaintiff cannot voluntarily file a civil suit against a private individual, and then ask to

proceed under a fictitious name because they must divulge embarrassing details. Hallock, 119

F.R.D. at 644. There must be an issue of “highly sensitive and highly personal” nature. Id at

643. In Hallock, the plaintiff brought action against her employer for sexual harassment and




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discrimination. Id. Although the plaintiff claimed the matters were intimate and personal, the

court held there was not a “substantial” privacy issue. Id at 644. The court emphatically stated

“[t]here must be a strong social interest in concealing the identity of the plaintiff.” Id. The court

also noted that this was a claim toward private individuals, not government activity. Id at 645.

In Covington, the case against a government entity involved small boys forced to engage in acts

of sodomy. 884 F. Supp. at 463. The children were still in the community and the court allowed

them to proceed anonymously. Id at 467.

        In the present situation, the Plaintiff’s complaint offers no evidence or allegations that the

incidents were anything more than “uncomfortable.” As in Hartz, the Plaintiff may feel

embarrassed, or humiliated, if the community knows her true identity; but that is insufficient to

outweigh the presumption of openness. Even if the allegations were of a highly sensitive nature,

similar to Shakur, there must be other factors present to justify allowing the use of a fictitious

name. Since the Plaintiff is a grown college student with no immediate threat of harm, there are

no other extenuating circumstances. (Compl. ¶ 3.) Therefore, the Plaintiff should have disclosed

her true identity.




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                                    PRAYER FOR RELIEF

Defendant, Father O’Connell, respectfully requests the Court grant the motion to dismiss

Plaintiff’s complaint filed under a fictitious name for failure to comply with Rule 10(a) of the

Federal Rules of Civil Procedure.




DATED: February 12, 2003                                             ________________________
                                                                      Attorney for the Defendant




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                                CERTIFICATE OF SERVICE

I,   Christopher Neahring       , attorney for the Defendant, do hereby certify that I have served

upon the Plaintiff a complete and accurate copy of this Brief in Support of the Defendant’s

Motion to Dismiss, by placing the copy in the United States Mail, sufficient postage affixed and

addressed as follows:

                                             Susan C. Wawrose
                                             Wawrose & Associates, L.L.P.
                                             416 Hermitage Way
                                             Lafayette, Louisiana 70503


DATED: February 12, 2003                                           ________________________
                                                                    Attorney for the Defendant




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