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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

______

No. 10

- 4110

______

JOHN DOE, Appellant

v.

THOMAS MEGLESS; RONALD M. FONOCK;
UPP ER MERION AREA SCHOOL DISTRICT;
UP PER 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

.2 (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

And rew 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. Fonock3 ______

OPINION OF THE COURT

______

FISHER, Circuit Judge

.

John Doe a ppeals 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). H e claims
the District Court abuse d 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
d ecision 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 Ro nald 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 all egedly 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.4 He has not approached any kids at this point. [Doe]‟s mental status is unknown. If seen stop an d inv estigate.” ( 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. H e 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 pursuan t to 42 U.S.C. § 1983. He alleged that the Township ( 1) de prived him of his freedom of movement, ( 2) illegal ly seized his personal records, ( 3) violat ed his right to privacy, ( 4) conspir ed , and (5) fail e d 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. T he 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 D istrict 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 th e flyer used the word pedophile; the word was first used in Doe‟s complaint.5 Doe conveyed his intention not to file a complaint under his real name. On September 2 2, 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 su bject matter jurisdic tion pursuant to 18 U.S.C. §§ 133 1 and 1 343 , 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 Prod s

. , 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

we ighing of the relevant factors.”

Id. (internal quotation marks and citations omitted).6 Doe asserts that the District Cou rt 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 o f the essential qualities of a Court of J ustice [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 Shie ld United , 112 F.3d 869, 872 (7t h 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 anon ymously

. See

, e.g ., C.A.R.S.

,7 527 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 chi ldren, AIDS, and homosexuality.” Doe v. Borough of Morrisville , 130 F.R.D. 612, 614 (E.D. Pa. 1990).

While we have affirmed district court s ‟ decisions on motions to proceed anonymously, we have never set out a test for courts to apply to determine if a l itigant‟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) ; Fran k

, 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

co urts 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;8 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 defendan t 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) wh ether 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 par ty‟s fears; (3) the anonymous party‟s9 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 inter ests 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 include d:

“(1) the extent to which the iden tity of the litigant has been kept confidential; (2) the base s 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
ide ntity; (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 requir ing the litigants to reveal their identities).10 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 attrib utable 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 si de of the scale, factors disfavoring anonymity in cluded:

“(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 interes t 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 lis t 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 fu rther 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.11 July 7, 2009) ; Doe v. Hartf ord 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 corr ectly 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 demonstra te that disclosing his identity would cause him substantial “irreparable harm.” Id.
at *3

.
Addressing each factor in order, f irst, has the identity of the litigant been kept confidential? A t 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 situ ation 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
reasonab le? Doe fears that if oth ers 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 pedophilic12 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 publi cly 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 si tuated 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 Cou rt 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 l itigant 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 fif th factor weighs in Doe‟s favor. Doe argued that the public is harmed when all eged 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 li tigate openly by itself cannot13 outweigh the public‟s interest in open trials . Sixth, is the litigant seeking to use a pseudonym for nefarious reasons?
T here 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, f irst, we must acknowledge the thumb on the scale that is the universal interest in favor of open judicial proceedings. There is universal p ublic 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 tha t the Township did not have illegitimate ult erior 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, th e 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 pu rsuant to R. Civ. P.14 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 dismi ssal: 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 adjudicati on 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).15 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 Distri ct 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 proce edings, 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 favor ed dismissal. T he 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.