Court Allows Plaintiff to Proceed Pseudonymously, Without Disclosing Name to Defendant

The court stresses, though, that "The complaint includes no claims brought solely on behalf of Plaintiff Doe," and "Based on the description of the claims, including when and where the alleged vandalism took place and photographs of the vandalism, it appears defendants could adequately defend themselves against the claims without knowing Plaintiff Doe's identity."

From Magistrate Judge Alice Senechal's decision in N.D. Human Rights Coalition v. Patriot Front, which was handed down under seal early this year and was then released (with modest redactions) in response to my motion to unseal (I'm writing about this now to accompany my post on the recent decision denying the motion to dismiss in the case):

Plaintiffs move, ex parte, for leave for "Plaintiff Doe" to proceed under a pseudonym in order to protect [redacted] physical safety and personal privacy.

The North Dakota Human Rights Coalition, Immigrant Development Center, and Plaintiff Doe filed a complaint on September 1, 2023, against the group Patriot Front, Thomas Rousseau, Trevor Valescu, and ten John Does. Plaintiffs allege multiple claims under 42 U.S.C. §§ 1985, 1986 and 1981, and claims of conversion, trespass, trespass to chattel, and civil conspiracy. According to the complaint, on September 3 and September 5, 2022, persons affiliated with Patriot Front trespassed onto and vandalized the International Market Plaza in Fargo, North Dakota. The complaint describes the International Market Plaza as a large indoor community space filled with African, Middle Eastern, and Latin American immigrant-owned shops, restaurants, and grocery stores.

According to photos included in the complaint, the front of the market and multiple murals were defaced with spray-painted Patriot Front links in September of 2022….

Historically, courts have allowed the use of pseudonyms if identification of a party would pose a risk of retaliatory harm to them. Specific past incidents of violence or vandalism have been found to show a risk of retaliatory harm. Fear of retaliatory action can be sufficient to satisfy this factor. This factor also takes into consideration innocent non-parties' risk of retaliatory physical or mental harm.

Plaintiffs argue identification of Plaintiff Doe poses a risk of retaliatory physical or mental harm to [redacted] and [redacted] family and support this argument with various quotations from Patriot Front's website. Plaintiffs quote the website's statements arguing, "Patriot Front's mission is to force 'a hard reset on the nation we see today—a return to the traditions and virtues of our [European] forefathers' who 'left their European homes' … [and who] 'found a common cause and a common identity as Americans."' Plaintiffs also argue "Patriot Front believes that '[t]o be American is to be a descendant of conquerors…. This unique identity was given to us by our [European] ancestors, and this national spirit remains firmly rooted in our blood.'"

Additionally, Plaintiffs' complaint contains examples of Patriot Front's harassment and quotes from the group's website showing identification could pose a risk of retaliatory physical or mental harm to Plaintiff Doe. The complaint states, "According to Patriot Front's Manifesto, published on its website, the only people who are Americans are those 'of the founding stock of our [European] people,' and who 'share the common spirit that permeates throughout our [European] greater civilization, and the European diaspora.'"

Plaintiffs argue, "The Manifesto espouses white nationalist rhetoric and advocates for 'a generation of brave men to fearlessly rise to face all threats to their collective interests,' in order to 'urge our [European] people onward' as 'the true inheritors of America.'" The complaint also alleges, "The group's online propaganda includes phrases like 'Embrace violence,' 'Become war,' and 'Train with your friends. Fight your enemies.'" The complaint further alleges Patriot Front members have previously terrorized immigrant communities around the United States including in Fargo, with the most recent intimidation of the Fargo immigrant community taking place in July 2023, after "a man of unknown origin" killed a Fargo police officer.

According to the complaint, Plaintiff Doe is the Executive Director of the Immigrant Development Center, which owns the International Market Plaza building. Plaintiff Doe is a [redacted] Muslim, Somalian immigrant who came to the United States in 1997 and became a citizen in 2003. Plaintiff Doe alleges [redacted] is fearful of harassment and threats if [redacted] identity is disclosed to defendants. Also, according to the complaint, Plaintiff Doe is concerned retaliatory harm may be projected onto [redacted] who likely share [redacted] identities. The complaint alleges defendants have formally targeted individuals who share the same identities as Plaintiff Doe.

Based on the allegations and supporting evidence in plaintiffs' complaint and ex parte motion, plaintiffs have shown Plaintiff Doe's race, religion, and immigrant status demonstrate a likelihood that release of [redacted] identification would pose a risk of retaliatory physical or mental harm to Plaintiff Doe, [redacted] family, and [redacted] community….

Courts have considered whether a plaintiff is vulnerable based on their age. And, if a plaintiff is not a minor, courts generally weigh that against allowing the plaintiff proceeding pseudonymously. Although age is the most common consideration of vulnerability, it need not be the only consideration. In this case, the court looks to Plaintiff Doe's race, religion, and immigrant status as showing [redacted] particular vulnerability. Based on the plaintiffs' arguments and supporting evidence within the complaint and ex parte motion, and considering Plaintiff Doe's race, religion, and immigrant status, the court concludes plaintiffs have shown Plaintiff Doe is particularly vulnerable….

Most of the cases cited discuss a party's request to use a pseudonym in order to

protect the party's identity from the public. Here, Plaintiff Doe is requesting to use a pseudonym to protect [redacted] identity from the public but more importantly to protect [redacted] identity from defendants. Because defendants generally have a right to know who is bringing a case against them, this court must determine if Plaintiff Doe's request to use a pseudonym would unduly prejudice defendants. In determining if defendants would experience undue prejudice under these circumstances, this court looks to whether defendants would have difficulty pa1ticipating in the proceedings if Plaintiff Doe is allowed to continue to utilize a pseudonym.

The complaint includes no claims brought solely on behalf of Plaintiff Doe. The claims relate to the International Market Plaza and the community that utilizes that market space. Based on the description of the claims, including when and where the alleged vandalism took place and photographs of the vandalism, it appears defendants could adequately defend themselves against the claims without knowing Plaintiff Doe's identity. Further as plaintiffs suggest, if defendants later demonstrate their need to know Plaintiff Doe's identity, the court could consider entry of an appropriate protective order.

The court, however, required Doe to be identified to the court, because "[C]ourts tasked with resolving pseudonymity motions must be afforded the anonymous party's true name under seal" in order to properly check for any reasons to recuse.

Note that my motion sought to unseal the order allowing pseudonymity, and the plaintiff's motion seeking pseudonymity; I did not move to oppose the grant of pseudonymity itself.

Comments

[Gasman]

“[C]ourts tasked with resolving pseudonymity motions must be afforded the anonymous party’s true name under seal” in order to properly check for any reasons to recuse.”
Actually seems like a weak reason stated by the Court. If the plaintiff’s identity is indeed blinded to the Court, then no recusal would be necessary. Something about “blind justice” it would seem.
A standing argument might be better. If we cannot know who the plaintiff is, how do we know they have legal recourse in the first place.
But my error likely is that I am assuming the law to be an internally consistent thing.

[Bubba Jones]

What if it's the judge's brother? Even if truly anonymous, no one would ever believe it.

[Stupid Government Tricks]

I dunt unnertand.

According to the complaint, Plaintiff Doe is the Executive Director of the Immigrant Development Center, which owns the International Market Plaza building....The complaint alleges defendants have formally targeted individuals who share the same identities as Plaintiff Doe.

Seems like defendants already know who Plaintiff is, and the public won't have much problem learning.

[Bubba Jones]

This is so weird. How is plaintiff going to collect damages?

And aren’t the defendants being prosecuted in a criminal case?

Wouldn't the criminal case award damages?

[Krayt]

Right to confront your accuser?

Nah, civil stuff, the worst that can happen is lots of money flow into the pockets of the accuser and the accuser's lawyer?

[John F. Carr]

Literally within 10 seconds I was able to find a name, photograph, and email address from the description of Doe's job title. He/she is not hiding anything from anybody who is willing to go to the effort to cause him/her trouble.

A request for future parties and judicial officials writing such documents: Please use a pseudo-gender instead of blacking out each instance of a gendered pronoun. For example, use "John Doe" and "he", with a footnote at the first use explaining John might really be Jane and "he" might really be "she." The document will be easier on the eyes.

[Davy C]

That also has the benefit of someone not being able to tell "he" from "she" just from word length.

[Davy C]

In the ruling:

In this case, the court looks to Plaintiff Doe’s race, religion, and immigrant status as showing [redacted] particular vulnerability.

Is that how we do things in our courts? People of a certain race, religion, and immigrant status can proceed pseudonymously where people of a different race, religion, and immigrant status can not? Because people of certain races and religions are just inherently more vulnerable? (I admit that immigration status can sometimes make someone more vulnerable, in that they may be liable to deportation, but I'm not sure it's a federal court's job to protect them from that.)

[Purple Martin]

"Because people of certain race, religion, and immigrant status are just inherently more vulnerable?"

No, in a given environment, "Plaintiff Doe’s race, religion, and immigrant status" (among other things) may place Doe at greater risk than other plaintiffs without such characteristics. Vulnerability is just part of the equation.

The last 30 years of my information technology career profession was information security, specializing in risk management. Large part of that is knowing what risks to accept, what risks to mitigate, and what risks to avoid

My job was to quantitively and qualitatively identify and value information assets; threats to and vulnerabilities of those assets; likelihood and impact of threat/vulnerability pairs enabling bad things to happen to those assets; cost of either preventing or mitigating those impacts; and then recommend, design and implement preventative or mitigation measures at a cost corresponding to the client's risk acceptance profile.

So, the primary factor in differentiating Plaintiff Doe from other plaintiffs is the high number of validated threat agents paring to preexisting vulnerabilities. The Court's decision described the multiple validated threats presented primarily by Patriot Front...

Based on the plaintiffs' arguments and supporting evidence within the complaint and ex parte motion, and considering Plaintiff Doe's race, religion, and immigrant status, the court concludes plaintiffs have shown Plaintiff Doe is particularly vulnerable….[to the level of threat presented by Patriot Front]

I don't blame the court for not understanding risk management jargon and using particularly vulnerable instead of particularly at risk, but the principle shouldn't be particularly difficult to infer from context.

[Stephen Lathrop]

Helpful comment.

I came to this one extremely skeptical that the headline was in any way substantive. Got turned around, to my surprise.