Doe v. Megless

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______

No. 10-4110
______

JOHN DOE,
Appellant

v.

THOMAS MEGLESS; RONALD M. FONOCK;
UPPER MERION AREA SCHOOL DISTRICT;
UPPER MERION AREA SCHOOL DISTRICT
BOARD OF DIRECTORS;
UPPER MERION TOWNSHIP
______

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-10-cv-01008)
District Judge: Honorable Juan R. Sánchez
______

Submitted Pursuant to Third Circuit LAR 34.1(a)
May 24, 2011

Before: FUENTES, FISHER
and NYGAARD, Circuit Judges.
 (Filed: August 1, 2011)

Neil E. Botel
Gerard K. Schrom
Schrom & Shaffer
4 West Front Street
Media, PA 19063
Counsel for Appellant

Scott M. Badami
Fox Rothschild
10 Sentry Parkway, Suite 200
P.O. Box 3001
Blue Bell, PA 19422

Bonnie A. Young
Fox Rothschild
2000 Market Street, 20th Floor
Philadelphia, PA 19103
Counsel for Appellees, Thomas Megless,
Upper Merion Area School District, and
Upper Merion Area School District
Board of Directors

Andrew J. Bellwoar
Susan L. DiGiacomo
Siana, Bellwoar & McAndrew
941 Pottstown Pike, Suite 200
Chester Springs, PA 19425
Counsel for Appellees,Upper Merion
Township and Ronald F. Fonock

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 ______

OPINION OF THE COURT
______

FISHER, Circuit Judge.

John Doe appeals an order of the United States District
Court for the Eastern District of Pennsylvania dismissing his
claims against public officials and local government entities
pursuant to Federal Rule of Civil Procedure 41(b). He claims
the District Court abused its discretion by denying his motion
to proceed anonymously and, when he failed to proceed using
his real name, by dismissing his claims with prejudice. For
the reasons stated below, we will affirm.

I.

This case centers on whether the District Court‟s
decision to require Doe to litigate under his own name or face
dismissal constituted an abuse of the District Court‟s
discretion.

Doe‟s underlying claims are based on an email sent by
Thomas Megless, Security Director of Upper Merion School
District, and Ronald Fonock, Chief of Police of Upper Merion
Township, to a distribution list of public officials and private
citizens instructing them “if you see this person in or around
the district schools, please contact the police.” (App. at A72-
73.) The email allegedly included a flyer attachment, which
used Doe‟s real name and stated: “[Doe] has been known to
hang around schools in Upper Merion and other townships.

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He has not approached any kids at this point. [Doe]‟s mental
status is unknown. If seen stop and investigate.” (Id. at
A73.) The email contained his picture, his home address, the
make, model, and license plate number of his vehicle, and his
Pennsylvania driver‟s license number. He asserts that the
email was intended to (1) characterize him as a dangerous and
potentially mentally unstable pedophile,1 (2) authorize all
recipients to stop and detain Doe on sight, and (3) authorize
all recipients to investigate him.

Doe filed a complaint against Megless, Fonock, the
Upper Merion Area School District, the Upper Merion Area
School District Board of Directors, and Upper Merion
Township (collectively the “Township”). He asserted several
causes of action based on the sending and distribution of the
email and flyer pursuant to 42 U.S.C. § 1983. He alleged that
the Township (1) deprived him of his freedom of movement,
(2) illegally seized his personal records, (3) violated his right
to privacy, (4) conspired, and (5) failed to train, supervise and
discipline agents.

In addition to his complaint, Doe filed a motion to
proceed anonymously and an amended complaint. The
Township filed a motion in opposition. The District Court
denied his motion to proceed anonymously and directed him
to file a complaint under his real name no later than August
20, 2010. The District Court advised Doe that failure to
comply would result in dismissal of the action with prejudice.
Despite the District Court‟s warning, the deadline passed, and
1
Neither the email nor the flyer used the word
pedophile; the word was first used in Doe‟s complaint.

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Doe conveyed his intention not to file a complaint under his
real name. On September 22, 2010, the District Court granted
the Township‟s motion to dismiss Doe‟s amended complaint
pursuant to Fed. R. Civ. P. 41(b). Doe filed a timely notice of
appeal.

II.

The District Court had subject matter jurisdiction
pursuant to 18 U.S.C. §§ 1331 and 1343, and we have
jurisdiction pursuant to 28 U.S.C. § 1291. We review a
district court‟s decision to deny a plaintiff permission to
proceed anonymously for abuse of discretion. Doe v.
C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 371 n.2 (3d Cir.
2008). “An abuse of discretion arises when the district court's
decision „rests upon a clearly erroneous finding of fact, an
errant conclusion of law or an improper application of law to
fact.‟” Oddi v. Ford Motor Co., 234 F.3d 136, 146 (3d Cir.
2000) (quoting Hanover Potato Prods., Inc. v. Shalala, 989
F.2d 123, 127 (3d Cir.1993)).

“An abuse of discretion can also occur when no
reasonable person would adopt the district
court's view. We will not interfere with the
district court's exercise of discretion unless
there is a definite and firm conviction that the
court below committed a clear error of
judgment in the conclusion it reached upon a
weighing of the relevant factors.”

Id. (internal quotation marks and citations omitted).

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 Doe asserts that the District Court abused its discretion
by denying his motion to proceed anonymously and by
subsequently dismissing his claims. We address each issue in
turn.

III.

“[O]ne of the essential qualities of a Court of Justice
[is] that its proceedings should be public.” Daubney v.
Cooper, 109 Eng. Rep. 438, 441 (K.B. 1829); Nixon v.
Warner Cmmc’n, Inc., 435 U.S. 589, 598-99 (1978). Rule
10(a) requires parties to a lawsuit to identify themselves in
their respective pleadings. Fed. R. Civ. P. 10(a); Doe v.
Frank, 951 F.2d 320, 322 (11th Cir. 1992). Courts have
explained that Federal Rule of Civil Procedure 10(a)
illustrates “the principle that judicial proceedings, civil as
well as criminal, are to be conducted in public.” Doe v. Blue
Cross & Blue Shield United, 112 F.3d 869, 872 (7th Cir.
1997). “Identifying the parties to the proceeding is an
important dimension of publicness. The people have a right
to know who is using their courts.” Blue Cross, 112 F.3d at
872; Fed. R. Civ. P. 10(a). And, defendants have a right to
confront their accusers. See S. Methodist Univ. Ass’n of
Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 713
(5th Cir. 1979). A plaintiff‟s use of a pseudonym “runs afoul
of the public‟s common law right of access to judicial
proceedings.” Does I Thru XXIII v. Advanced Textile Corp.,
214 F.3d 1058, 1067 (9th Cir. 2000).

While not expressly permitted under Federal Rule of
Civil Procedure 10(a), in exceptional cases courts have
allowed a party to proceed anonymously. See, e.g., C.A.R.S.,

6
527 F.3d at 371 n.2. That a plaintiff may suffer
embarrassment or economic harm is not enough. Id. Instead,
a plaintiff must show “both (1) a fear of severe harm, and
(2) that the fear of severe harm is reasonable.” Doe v.
Kamehameha Sch./Bernice Pauahi Bishop Estate, 596 F.3d
1036, 1043 (9th Cir. 2010). Examples of areas where courts
have allowed pseudonyms include cases involving “abortion,
birth control, transexuality, mental illness, welfare rights of
illegitimate children, AIDS, and homosexuality.” Doe v.
Borough of Morrisville, 130 F.R.D. 612, 614 (E.D. Pa. 1990).

While we have affirmed district courts‟ decisions on
motions to proceed anonymously, we have never set out a test
for courts to apply to determine if a litigant‟s reasonable fear
of severe harm outweighs the public‟s interest in open judicial
proceedings. C.A.R.S., 527 F.3d at 371 n.2. Many of our
sister courts of appeals have provided such guidance. See,
e.g., Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 189-
90 (2d Cir. 2008); Doe v. Porter, 370 F.3d 558, 560 (6th Cir.
2004); Advanced Textile Corp., 214 F.3d at 1068; M.M. v.
Zavaras, 139 F.3d 798, 803 (10th Cir. 1998); James v.
Jacobson, 6 F.3d 233, 242 (4th Cir. 1993); Frank, 951 F.2d at
323; Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. Unit A
1981). When a litigant sufficiently alleges that he or she has
a reasonable fear of severe harm from litigating without a
pseudonym, courts of appeals are in agreement that district
courts should balance a plaintiff‟s interest and fear against the
public‟s strong interest in an open litigation process. Sealed
Plaintiff, 537 F.3d at 189-90; Porter, 370 F.3d at 560;
Advanced Textile Corp., 214 F.3d at 1068; Zavaras, 139 F.3d
at 803; Jacobson, 6 F.3d at 242; Frank, 951 F.2d at 323;

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Stegall, 653 F.2d at 186. While the courts of appeals have
agreed that district courts should apply a balancing test, each
case presents a slightly different list of factors for courts to
consider.2 While one could conclude that there is a conflict as

2
Compare Sealed Plaintiff, 537 F.3d at 190 (directing
courts to consider (1) whether the litigation involves matters
that are highly sensitive and of a personal nature; (2) whether
identification poses a risk of retaliatory physical harm or
mental harm to the party seeking to proceed anonymously or
even more critically, to innocent non-parties; (3) whether
identification presents other harms and the likely severity of
those harms, including whether the injury litigated against
would be incurred as a result of the disclosure of the
plaintiff‟s identity; (4) whether the plaintiff is particularly
vulnerable to the possible harms of disclosure; (5) whether
the suit is challenging the actions of the government or that of
private parties; (6) whether the defendant is prejudiced by
allowing the plaintiff to press his claims anonymously, and
whether any prejudice can be mitigated by the district court;
(7) whether the plaintiff‟s identity has thus far been kept
confidential; (8) whether the public‟s interest in the litigation
is furthered by requiring the plaintiff to disclose his identity;
(9) whether, because of the purely legal nature of the issues
presented or otherwise, there is an atypically weak public
interest in knowing the litigants‟ identities; and (10) whether
there are any alternative mechanisms for protecting the
confidentiality of the plaintiff) with Advanced Textile Corp.,
214 F.3d at 1068 (directing courts to consider (1) the severity
of the threatened harm; (2) the reasonableness of the
anonymous party‟s fears; (3) the anonymous party‟s

8
a result of the different factors, each court has agreed that
their list of factors is not exhaustive. See, e.g., id. Further,
each court agrees that the purpose of the balancing test is to
allow a district court to determine whether a litigant has a
reasonable fear of severe harm that outweighs the public‟s
interest in open litigation. Kamehameha Schools, 596 F.3d at
1043.

Courts within our circuit have been balancing these
competing interests for the last fifteen years without our
guidance. See, e.g., Doe v. Evans, 202 F.R.D. 173, 175 (E.D.
Pa. 2001). They have primarily relied on a test for the use of
pseudonyms set forth in Doe v. Provident Life and Acc. Ins.
Co., 176 F.R.D. 464, 467 (E.D. Pa. 1997). That case set forth
a non-exhaustive list of factors to be weighed both in favor of
anonymity and also factors that favor the traditional rule of
openness. Id. The factors in favor of anonymity included:

“(1) the extent to which the identity of the
litigant has been kept confidential; (2) the bases
upon which disclosure is feared or sought to be
avoided, and the substantiality of these bases;
(3) the magnitude of the public interest in
maintaining the confidentiality of the litigant‟s
identity; (4) whether, because of the purely
legal nature of the issues presented or

vulnerability to such retaliation; (4) the prejudice to the
opposing party; (5) whether the proceedings can be structured
to mitigate that prejudice; and (6) whether the public‟s
interest would be best served by requiring the litigants to
reveal their identities).

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 otherwise, there is an atypically weak public
interest in knowing the litigant‟s identities; (5)
the undesirability of an outcome adverse to the
pseudonymous party and attributable to his
refusal to pursue the case at the price of being
publicly identified; and (6) whether the party
seeking to sue pseudonymously has illegitimate
ulterior motives.”

Id. at 467-68. On the other side of the scale, factors
disfavoring anonymity included:

“(1) the universal level of public interest in
access to the identities of litigants; (2) whether,
because of the subject matter of this litigation,
the status of the litigant as a public figure, or
otherwise, there is a particularly strong interest
in knowing the litigant‟s identities, beyond the
public‟s interest which is normally obtained;
and (3) whether the opposition to pseudonym
by counsel, the public, or the press is
illegitimately motivated.”

Id. The Provident Life Court noted that its list of factors is
not comprehensive, and that trial courts “will always be
required to consider those [other] factors which the facts of
the particular case implicate.” Id. at 468. District courts have
applied these nine factors successfully and without further
guidance. See, e.g., Doe v. United Behavioral Health, No.
10-5192, -- F.R.D. ---, 2010 WL 5173206 at *2 (E.D. Pa.
Dec. 10, 2010); F.B. v. East Stroudsburg Univ., No.
3:09cv525, --F.R.D.---, 2009 WL 2003363 at *2 (M.D. Pa.

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July 7, 2009); Doe v. Hartford Life and Acc. Ins. Co., 237
F.R.D. 545, 548 (D.N.J. 2006); Evans, 202 F.R.D. at 175-76.
As district courts have been able to apply the Provident Life
test and it does not conflict with the tests that have been
adopted by our sister circuits, we see no value in upsetting its
application. Accordingly, we endorse it.

Here, the District Court did not abuse its discretion in
concluding that Doe would not suffer substantial harm that
might sufficiently outweigh the public interest in an open
trial. It correctly applied the Provident Life test. Doe v.
Megless, 2010 WL 3076246, at *2 (E.D. Pa. Aug. 5, 2010).
Because the flyer neither accused Doe of criminal behavior or
mental illness, nor disclosed highly sensitive personal
information, he did not demonstrate that disclosing his
identity would cause him substantial “irreparable harm.” Id.
at *3.

Addressing each factor in order, first, has the identity
of the litigant been kept confidential? At no point has Doe‟s
identity been confidential. As the District Court recognized,
“The flyer which forms the basis of Plaintiff‟s complaint [],
reveals his identity to the public. It was sent to many Upper
Merion residents, and countless people in the community
viewed it.” Id. at *5. We note that this is not a situation
where an opposing litigant publicized the identity of a party
that wished to remain confidential with the intention of
defeating a motion to proceed anonymously. Second, what
harm is the litigant seeking to avoid, and is the litigant‟s fear
reasonable? Doe fears that if others learn of his identity, they
will believe that he is a pedophile. As the District Court
noted, “[w]hile there are social stigmas attached to pedophilic

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behavior, whether Plaintiff is a pedophile is not at issue here.
Instead, the question is whether Defendants can be liable for
distributing a flyer stating Plaintiff was acting suspiciously in
the vicinity of schools.” Id. at 6. Further, to the extent that
the flyers publicly accused him of being a pedophile,
litigating publicly will afford Doe the opportunity to clear his
name in the community. Litigating publicly will not
contribute further to the harm that he alleges has already
occurred. Third, if this litigant is forced to reveal his or her
name, will other similarly situated litigants be deterred from
litigating claims that the public would like to have litigated?
There is no evidence that requiring Doe to disclose his name
will deter other similarly situated plaintiffs from suing in the
future. As the District Court recognized, there is no
allegation that falsely created suspicious persons alerts are a
widespread problem in Upper Merion. Id. Fourth, are the
facts not relevant to the outcome of the claim? Doe‟s claim is
not a purely legal claim. As the District Court recognized,
“[t]his case is fact-sensitive because Plaintiff alleges
Defendants illegally seized his department of motor vehicle
data and prevented his freedom of movement in the
community.” Id. Fifth, will the claim be resolved on its
merits if the litigant is denied the opportunity to proceed
using a pseudonym, or will the litigant potentially sacrifice a
potentially valid claim simply to preserve their anonymity?
The fifth factor weighs in Doe‟s favor. Doe argued that the
public is harmed when alleged abuses of power by public
officials go unchallenged because plaintiffs fear litigating
publicly. The District Court recognized that this position has
merit. Id. at 7. We too recognize that it has merit, however, a
plaintiff‟s stubborn refusal to litigate openly by itself cannot

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outweigh the public‟s interest in open trials. Sixth, is the
litigant seeking to use a pseudonym for nefarious reasons?
There is no allegation that Doe has an illegal or ulterior
motive in his desire to hide his name. Only the fifth factor
weighs in favor of allowing Doe to proceed anonymously.

Turning to the next grouping of factors, first, we must
acknowledge the thumb on the scale that is the universal
interest in favor of open judicial proceedings. There is
universal public interest in access to the identities of litigants.
This weighs in favor of disclosing Doe‟s identity. Second,
does the subject of the litigation heighten the public‟s
interest? Here, interest “is heightened because Defendants
are public officials and government bodies.” Id. This factor
supports disclosure of Doe‟s identity. Finally, is the party
opposing the use of a pseudonym doing so based on nefarious
reasons? Here, the District Court concluded that the
Township did not have illegitimate ulterior motives. Id.
There is nothing in the record to suggest otherwise.

Having reviewed the factors, we cannot conclude that
no reasonable person would agree with the District Court‟s
decision to deny Doe‟s motion to proceed anonymously.
Accordingly, the District Court did not abuse its discretion in
denying Doe‟s motion to proceed anonymously.

IV.

Doe further claims the District Court erred by granting
the Township‟s motion for dismissal. We review a District
Court‟s dismissal of a plaintiff‟s claim pursuant to R. Civ. P.

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41(b) for an abuse of discretion.3 Briscoe v. Klaus, 538 F.3d
252, 257 (3d Cir. 2008) (citing Emerson v. Thiel Coll., 296
F.3d 184, 190 (3d Cir. 2002)).

The District Court offered two bases for granting the
Township‟s motion for dismissal: failure to prosecute and a
balancing of the Poulis factors. Poulis v. State Farm Fire &
Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). Either basis was
sufficient.

First, Doe refused to proceed in accordance with the
District Court‟s orders. “A party disappointed with a court‟s
ruling may not refuse to proceed and then expect to obtain
relief on appeal from an order of dismissal or default.” Spain
v. Gallegos, 26 F.3d 439, 454 (3d Cir. 1994); see also Guyer
v. Beard, 907 F.2d 1424, 1430 (3d Cir. 1990) (“[Plaintiff‟s]
position made adjudication of the case impossible. Therefore,
any lesser sanction would not have furthered the interests of
justice.”). The District Court did not clearly err in
determining that “[b]ecause Doe‟s conduct makes
adjudication of the case impossible, dismissal pursuant to
Rule 41(b) is appropriate, even without consideration of the
Poulis factors.” (App. at A14.)

Additionally, district courts ordinarily balance six
factors prior to dismissing a case pursuant to Rule 41(b):
(1) the party‟s personal responsibility; (2) the prejudice to the
adversary; (3) a history of dilatoriness; (4) willfulness or bad

3
“Unless the dismissal order states otherwise, a
dismissal under this subdivision (b) . . . operates as an
adjudication on the merits.” Fed. R. Civ. P. 41(b).

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faith; (5) the availability of alternative sanctions; and (6) the
merit of the claim or defense. Poulis, 747 F.2d at 868.
“[N]ot all of the Poulis factors need be satisfied in order to
dismiss a complaint.” Mindek v. Rigatti, 964 F.2d 1369, 1373
(3d Cir. 1992). We recognize that dismissals with prejudice
are “drastic sanctions.” Poulis, 747 F.2d at 867. However,
the District Court did not clearly err in finding that five of the
six factors weighed in favor of dismissal--each factor except
history of dilatoriness. (App. at 14.) The District Court
found that Doe was personally responsible for willfully
obstructing the proceedings, thereby prejudicing the
defendants, leaving the District Court with no alternative, and
preventing the parties from reaching the merits of Doe‟s
claims. Moreover, the District Court provided ample warning
that failure to comply would likely result in dismissal.

In sum, the District Court provided two independently
sufficient reasons for dismissing Doe‟s claims: Doe refused to
prosecute in compliance with court orders and the relevant
factors favored dismissal. The District Court did not abuse its
discretion by dismissing Doe‟s claims pursuant to Federal
Rule of Civil Procedure 41(b).

V.

Accordingly, we will affirm the order of the District
Court.

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