2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-1-2011

John Doe v. Thomas Megless

Precedential or Non-Precedential: Precedential

Docket No. 10-4110

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Recommended Citation

"John Doe v. Thomas Megless" (2011). 2011 Decisions. Paper 611.

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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.
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

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
3

______

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. 
4

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.
5

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).
6

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., 
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 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;
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 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 
9

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).
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 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. 
11

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 
12

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 
13

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. 
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 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).
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 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.