Jane Doe v. Tremaine Aldon Neverson

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 30, 2020
• Docket: 20-10265
• Status: Unpublished

Opinion

Case: 20-10265 Date Filed: 07/30/2020 Page: 1 of 12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10265 Non-Argument Calendar ________________________

D.C. Docket No. 1:20-cv-20016-UU

JANE DOE,

Plaintiff-Appellant,

versus

TREMAINE ALDON NEVERSON,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(July 30, 2020)

Before WILSON, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 20-10265 Date Filed: 07/30/2020 Page: 2 of 12

The plaintiff, proceeding as “Jane Doe,” appeals the district court’s denial of

her motion to proceed under a pseudonym in her sexual assault and battery action

against Tremaine Aldon Neverson. Ms. Doe claims that proceeding under her real

name would bring great shame to her and her family due to their religious beliefs, as

well as subject her to online bullying and harassment. After careful review of Ms.

Doe’s brief and the record, we reverse and remand for further proceedings.

I

Ms. Doe alleges that Mr. Neverson, an internationally acclaimed musical

recording artist, sexually assaulted her while the two were partying at a nightclub in

Miami on January 1, 2018. Specifically, Ms. Doe alleges that Mr. Neverson invited

her to a nightclub after they spent New Year’s Eve celebrating together at the house

of hip-hop mogul Sean “P. Diddy” Combs on Star Island. Upon arriving at the

nightclub, Ms. Doe accompanied Mr. Neverson to a VIP table, where he forcefully

placed his hand under her dress and attempted to insert his fingers into her vagina

without her consent.

About two years later, Ms. Doe sued Mr. Neverson in federal court for sexual

assault, battery, and negligent and intentional infliction of emotional distress. She

filed her complaint using the pseudonym of “Jane Doe.” Before Mr. Neverson was

served with a summons, the district court sua sponte ordered Ms. Doe to show cause

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as to why the complaint should not be dismissed because it was impermissibly filed

under a fictitious name.

On January 10, 2020, Ms. Doe responded to the order to show cause and

moved for leave to proceed pseudonymously. In the motion, Ms. Doe argued that

she should be permitted to proceed under a pseudonym because she will be required

to disclose matters of the “utmost intimacy,” including Mr. Neverson’s sexual

assault. She further asserted that she comes from a devout Muslim family from

Trinidad, and the nature of the allegations would bring shame to her and her family

because of their cultural and religious traditions.

In addition, Ms. Doe argued that if her identity were publicized, she and her

family would be subject to online bullying, harassment, and threats. She claimed

that because Mr. Neverson is a well-known music artist, this lawsuit “has made

national news and has been picked up by multiple blogs and websites including The

Shade Room,” and that “The Shade Room’s Instagram post of the story garnered

nearly 80,000 likes and received over 7,000 comments.” D.E. 7-1 at 6. She further

asserted that using a pseudonym would not prejudice Mr. Neverson because she

would provide him with her real name under a protective order so that he could

conduct discovery and build a defense.

To substantiate these claims, Ms. Doe attached her own declaration attesting

that she grew up in Trinidad and “come[s] from a strict Muslim household where

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under [their] cultural beliefs and traditions such a sexual assault would have the

tendency to bring shame and humiliation upon [her] family.” D.E. 7-1, Exhibit A,

at ¶¶ 4, 7. She further declared that she “not only fear[s] the reprisals affiliated with

[her] religion,” but that she “will be subject to online and harassment and bullying”

and that Mr. Neverson’s “fans will leak [her] telephone number, address, and

perhaps even [her] job information.” Id. at ¶¶ 9–10. Ms. Doe attached The Shade

Room’s post about the lawsuit—titled “Trey Songz Reportedly Hit With $10 Million

Lawsuit In Damages For Alleged Sexual Battery”—which reflects that it has 77,755

“likes.” D.E. 7-1, Exhibit B. She also attached examples of comments made by

readers of The Shade Room’s post, such as:

• “THESE H0’s GOTTA STOP WITH THIS BS”;

• “Just another female tryna get some money from a celebrity”;

• “Man get tf outta here . . . where she at #LeaveTreyAlone #ThirstTraps”;

• “I know someone can pull up Diddys 2017 New Year’s Eve photos let’s find out who this chick is roomies”;

• “how much would it have been if he killed the same person . . .”;

• “Y’all Gon stop lying on my man, I’m ready to fight!”; and

• “She lying. Idc who it is. She lying.”

D.E. 7-1, Exhibit C.

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The district court denied the motion and dismissed the complaint without

prejudice, giving Ms. Doe one week to file an amended complaint under her own

name. The district court rejected Ms. Doe’s argument that the nature of the

allegations would bring harm and shame to her family due to their cultural/religious

traditions because “‘personal embarrassment’ alone is not enough for leave to

proceed anonymously.” D.E. 13 at 3. The district court also concluded that the

contention that Ms. Doe will suffer online bullying, harassment, and threats

“lack[ed] evidentiary support,” because she did not “identify anyone who might

harm her.” Id. at 4. Finally, although the district court acknowledged that

proceeding pseudonymously would “not pose that great of a risk of unfairness to

[Mr. Neverson],” it nevertheless concluded that Ms. Doe should be required to

proceed under her real name because she might have to testify publicly at trial

eventually, so “the protective order . . . would only serve to postpone the inevitable.”

Id. at 6.

Ms. Doe did not file an amended complaint, and appealed.

II

We review a district court order denying a party’s motion to proceed

anonymously for abuse of discretion. See Plaintiff B v. Francis, 631 F.3d 1310,

1315 (11th Cir. 2011). A district court abuses its discretion if its ruling is based on

an error of law or “if it fails to actually consider the circumstances of the case and

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to weigh the relevant factors and instead follows a blanket rule in making its final

decision.” Id.

Federal Rule of Civil Procedure 10(a) requires that “every pleading” in federal

court “must name all the parties.” Fed. R. Civ. P. 10(a). Although this creates a

“strong presumption in favor of parties proceeding in their own names . . . the rule

is not absolute.” Francis, 631 F.3d at 1315. A party may proceed anonymously by

establishing “a substantial privacy right which outweighs the ‘customary and

constitutionally-embedded presumption of openness in judicial proceedings.’” Doe

v. Frank, 951 F.2d 320, 323 (11th Cir. 1992) (quoting Doe v. Stegall, 653 F.2d 180,

186 (5th Cir. Unit A Aug. 10, 1981)).

Whether a party’s right to privacy outweighs the presumption of openness is

a “totality-of-the-circumstances question.” In re Chiquita Brands Int’l Inc., -- F.3d

--, 2020 WL 4013070, at *5 n.5 (11th Cir. July 16, 2020). We have said that the

“first step” is to consider whether the party seeking anonymity “(1) is challenging

government activity; (2) would be compelled, absent anonymity, to disclose

information of the utmost intimacy; or (3) would be compelled, absent anonymity,

to admit an intent to engage in illegal conduct and thus risk criminal prosecution.”

Id. at *5. Along with these factors, a court “should carefully review all the

circumstances of a given case and then decide whether the customary practice of

disclosing the plaintiff’s identity should yield to the plaintiff’s privacy concerns.”

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Id. (quoting Francis, 631 F.3d at 1316). For example, we have also considered

“whether the plaintiffs were minors, whether they were threatened with violence or

physical harm by proceeding in their own names, and whether their anonymity posed

a unique threat of fundamental unfairness to the defendant.” Francis, 631 F.3d at

1316 (citations omitted).

III

The district court abused its discretion in denying Ms. Doe’s motion for two

reasons. First, it erroneously concluded that Ms. Doe would be required to disclose

her identity at trial, contrary to cases showing that is not necessarily so. Second, it

failed to properly consider Ms. Doe’s allegations about the stigma she claimed she

would face as a result of her family’s religious beliefs. See id. at 1316–17 (holding

that the district court abused its discretion in denying the plaintiffs’ motion to remain

anonymous by “fail[ing] to take into account the actual allegations made by the

Plaintiffs” and by “giving short shrift” to certain evidence).

First, in denying Ms. Doe’s motion, the district court reasoned that “by filing

the lawsuit, [Ms. Doe] should have appreciated that the case could result in a public

trial in which she would have to appear, her identity would be made public and she

would have to be questioned. Consequently, the protective order [Ms. Doe]

proposes would only serve to postpone the inevitable.” D.E. 13 at 6.

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It is true that the analysis of whether a plaintiff may proceed anonymously

may change at different stages of the litigation. See Lawson v. Rubin, No. 17-cv-

6404, 2019 WL 5291205, at *2 (E.D.N.Y. Oct. 18, 2019) (vacating order that

initially allowed the plaintiffs to proceed under pseudonyms before trial because a

different balance of interests comes into play at the trial phase when the jury will

have to resolve critical issues of credibility). See also Does I thru XXIII v. Advanced

Textile Corp., 214 F.3d 1058, 1069 (9th Cir. 2000) (“We recognize that the balance

between a party’s need for anonymity and the interests weighing in favor of open

judicial proceedings may change as the litigation progresses.”). But it is incorrect

to assume that Ms. Doe cannot proceed at trial under a pseudonym. For instance, in

Francis we held that, subject to First Amendment concerns, women who were

videotaped engaging in sexual conduct when they were minors were entitled to

proceed anonymously at trial. See 631 F.3d at 1319. The district court therefore

erred in concluding that proceeding under a pseudonym is only “postpon[ing] the

inevitable.”1

Second, the district court concluded that Ms. Doe failed to show that the

allegations involve matters of the utmost intimacy. In doing so, it rejected Ms. Doe’s

1 As Ms. Doe notes, the vast majority of civil cases are settled or dismissed before trial. See Initial Br. at 15. One option available to the district court is to allow Ms. Doe to proceed under a pseudonym for now, subject to review at future stages in the litigation upon a motion from Mr. Neverson. See Lawson, 2019 WL 5291205, at *1–2. 8 Case: 20-10265 Date Filed: 07/30/2020 Page: 9 of 12

argument regarding the shame the allegations would bring to her and her family due

to their religious beliefs, relying on cases that hold that “personal embarrassment” is

not enough to warrant proceeding anonymously in sexual assault cases. The district

court is correct that “personal embarrassment” alone does not justify proceeding

under a pseudonym. See Doe v. Sheely, 781 F. App’x 972, 974 (11th Cir. 2019)

(“This Court has said that ‘personal embarrassment’ alone is not enough for leave to

proceed anonymously.”). See also Francis, 631 F.3d at 1316 (noting that “courts

have often denied the protection of anonymity where plaintiffs allege sexual assault,

even when revealing the plaintiff’s identity may cause her to suffer some personal

embarrassment”) (citations and internal quotation marks omitted).

But the district court failed to consider that, in other cases, we have held that

“social stigma” is sufficient to warrant proceeding anonymously. As we have

explained, “[c]ourts have permitted plaintiffs to proceed anonymously in cases

involving mental illness, homosexuality, and transsexuality” because “the social

stigma attached to the plaintiff’s disclosure was found to be enough to overcome the

presumption of openness in court proceedings.” Frank, 951 F.2d at 324 (citations

omitted). See also Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 687

(11th Cir. 2001) (reversing the denial of the plaintiff’s motion to proceed

anonymously in a case involving abortion in part because of the social stigma

associated with the decision to obtain an abortion); Stegall, 653 F.2d at 186

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(requiring the district court to allow a mother and her children to proceed under a

fictious name in their suit challenging the constitutionality of prayer in school in part

because of the “infamy” associated with their beliefs).

Here Ms. Doe does not just allege that the sexual assault allegations in this

case might result in “personal embarrassment.” Instead, she asserts that because she

is from a “devout Muslim family,” the “very nature of her allegations would be

sufficient to bring harm to [herself] and shame to her family under the

cultural/religious traditions that her family practices.” D.E. 7-1 at 4. She supported

this claim with her declaration, in which she attests that she seeks to proceed under

a pseudonym in part because she “come[s] from a strict Muslim household where

under [their] cultural beliefs and traditions such a sexual assault would have the

tendency to bring shame and humiliation upon [her] family.” D.E. 7-1, Exhibit A,

at ¶ 7. The district court erred by treating Ms. Doe’s motion as merely alleging

personal embarrassment, without accounting for what she actually alleged or

considering our social stigma cases.

We also note that, under our precedent, the district court may have too easily

discounted evidence that Ms. Doe would be subject to threats and harassment if she

were required to proceed under her real name. In Stegall, we held that the district

court had to allow the plaintiffs to proceed under a pseudonym in their suit

challenging prayer in school, explaining that there was evidence that the plaintiffs

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“may expect extensive harassment and perhaps even violent reprisals if their

identities [were] disclosed[.]” 653 F.2d at 186. That evidence consisted of local

newspaper reports of public reaction to the lawsuit voiced at a school board meeting,

which included threats such as “Christians must beat the evil out of these people.”

Id. at 182, n.6. As noted earlier, here Ms. Doe submitted an example of a website

post about this lawsuit and eight threatening or harassing comments made by Mr.

Neverson’s fans. In today’s digital age, Ms. Doe’s evidence seems similar to the

news report we relied on in Stegall.

We recently affirmed a district court’s mid-litigation denial of leave to

proceed pseudonymously in Chiquita Brands International. There hundreds of

plaintiffs had litigated the same case under their true names for over a decade, yet

nothing in the record suggested they had faced any harm. See 2020 WL 4013070,

at *6. Moreover, the plaintiffs in that case had initially proceeded under

pseudonyms, and the defendant moved to preclude the use of pseudonyms only later

in the litigation. See id. at *2. Here, the district court denied Ms. Doe leave to

proceed anonymously before Mr. Neverson even appeared in the case, despite

acknowledging that it “will not pose that great of a risk of unfairness” to him.

IV

For the foregoing reasons, we reverse the district court’s dismissal of Ms.

Doe’s suit and remand for further proceedings.

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REVERSED AND REMANDED.