Jane Doe v. Nat'l Conference of Bar Examiners

• Decision Date: 06 January 2017
• Docket Number: 1:16-CV-264 (PKC)
• Parties: JANE DOE, Plaintiff, v. NATIONAL CONFERENCE OF BAR EXAMINERS, PENNY GESSLER, and ERICA MOESER, Defendants.
• Court: U.S. District Court — Eastern District of New York

JANE DOE, Plaintiff, v. NATIONAL CONFERENCE OF BAR EXAMINERS, PENNY GESSLER, and ERICA MOESER, Defendants.

1:16-CV-264 (PKC)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

January 6, 2017

MEMORANDUM & ORDER

PAMELA K. CHEN, United States District Judge:

Plaintiff Jane Doe, proceeding pro se¹ and by pseudonym, brings this action against Penny Gessler and Erica Moeser (the "Individual Defendants"), and the National Conference of Bar Examiners ("NCBE"), alleging that Defendants refused to complete Plaintiff's character and fitness investigatory report for her admission to the District of Columbia bar. Defendants move to dismiss. For the reasons that follow, the Court grants Defendant's motion to dismiss the First Amended Complaint for lack of personal jurisdiction, and dismisses this action in its entirety.

BACKGROUND²

I. FACTUAL BACKGROUND

This case concerns Defendants' alleged refusal to process Plaintiff's character and fitness application—a requirement for admission to practice law in the District of Columbia—because of an improperly executed signature page. According to Plaintiff's Amended Complaint, the District of Columbia required her to use the NCBE's services for a character and fitness investigation in connection with her bar admission petition.³ (Dkt. 11 ("Am. Compl.") ¶ 6.) On December 16, 2010, presumably after reviewing Plaintiff's character and fitness application, NCBE contacted Plaintiff to inform her that she had improperly executed the application's signature page, and requested that she "reply immediately and submit a newly signed signature page" or else "her request for an investigatory report would not be honored[.]" (Id. ¶ 7.)⁴ After Plaintiff and theNCBE exchanged various emails, the NCBE "refused to proceed" with Plaintiff's application. (Id.) On June 3, 2014, the District of Columbia's Committee on Admissions wrote to Plaintiff "indicating that the District of Columbia would complete the processing of [her] application for admission . . . if the NCBE completed and submitted" her character and fitness report. (Id. ¶ 9.) The NCBE then refused to cooperate with Plaintiff, and never provided the character and fitness report to the District of Columbia Committee on Admissions. (Id. ¶ 10.)

Based on these allegations, Plaintiff claims that Defendants are liable under common law for: abuse of power and ultra vires actions; breach of contract between Plaintiff and NCBE; fraud and misrepresentation; negligence; and breach of contract between NCBE and the District of Columbia, of which Plaintiff asserts she was a third-party beneficiary. (Id. ¶¶ 14-18.) Plaintiff alleges that in addition to the NCBE, the Individual Defendants are liable because "Defendant Gessler is responsible for assembling all Character and Fitness Reports at the NCBE" and "Defendant Moeser is Defendant Gessler's supervisor." (Id. ¶ 6.) She seeks damages "in the sum of $1,000,000.00, plus interest calculated from February 8, 2011 through the date on which this dispute is finally resolved." (Id. at ECF 8.)

II. RELEVANT PROCEDURAL HISTORY

Plaintiff filed the instant action on November 27, 2015 in Kings County Supreme Court. (Dkt. 1-2 at ECF 2.) On January 19, 2016, Defendants removed the action to this Court based on diversity jurisdiction because Defendants are residents of Wisconsin, Plaintiff is a resident of NewYork, and Plaintiff seeks damages in excess of $75,000. (Dkt. 1.) On February 18, 2016, the Court held a pre-motion conference to discuss Defendants' anticipated motion to dismiss. Plaintiff failed to appear, informing the Court that she had not received notice of the conference. (Dkt. 7.) At the February 18th conference, the Court dismissed Plaintiff's Complaint for lack of personal jurisdiction with leave to amend. On March 17, 2016, Plaintiff filed an Amended Complaint, which is the subject of the present motion. (Dkt. 11.)

DISCUSSION

I. PLAINTIFF'S USE OF A PSEUDONYM

As an initial matter, the Court addresses Plaintiff's request to proceed under the guise of a pseudonym. Federal Rule of Civil Procedure 10(a), which governs pleadings in civil actions, provides that "[t]he title of [a plaintiff's] complaint must name all the parties." F.R.C.P. 10(a) (emphasis added). Courts have "carved out a limited number of exceptions to the general requirement of disclosure [of the names of parties], which permit plaintiffs to proceed anonymously. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 189 (2d Cir. 2008) (internal quotation marks and citation omitted) (alteration in original). In this Circuit, "when determining whether a plaintiff may be allowed to maintain an action under a pseudonym, the plaintiff's interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant." Id. The Second Circuit has identified a "non-exhaustive" list of factors to consider when determining whether a plaintiff may proceed under a pseudonym including:

(1) whether the litigation involves matters that are highly sensitive and [of a] personal nature; (2) whether identification poses a risk of retaliatory physical 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, particularly in light of his age; (5) whether the suit is challenging the actions of thegovernment or that of private parties; (6) whether the defendant is prejudiced by allowing the plaintiff to press his claims anonymously, whether the nature of that prejudice (if any) differs at any particular stage of the litigation, 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; (10) whether there are any alternative mechanisms for protecting the confidentiality of the plaintiff.

Id. at 190 (internal quotation marks and citations omitted) (alterations in original).

Here, the Court denies Plaintiff's request to proceed anonymously because she fails to demonstrate any valid interest in preserving her anonymity, let alone that the balancing of the parties' and public's interests tilts in her favor. Rather, her argument boils down to an unsupported accusation that if her name is made public, then it is "more likely than not that . . . the lawsuit could cause the plaintiff to be blackballed nationally and internationally" because the "NCBE is currently the only independent organization responsible for the Character and Fitness portion of many jurisdictions' bar applications[.]" (Dkt. 25 at ECF 4 n.2.) Even accepting the rationality of this fear, Plaintiff's interest in not being "blackballed nationally and internationally" in the legal profession does not compare with the serious interests that courts have found to justify permitting a plaintiff to proceed anonymously, such as risks of physical harm or unjustified invasions of privacy or public embarrassment. See, e.g., Grottano v. The City of N.Y., 15-CIV-9242, 2016 WL 2604803, at *2 (S.D.N.Y. Mar. 30, 2016) (permitting plaintiffs to proceed under pseudonyms where they brought suit against City of New York alleging prison guards conducted inappropriate body cavity searches when they visited inmates at State prison); Malibu Media, LLC v. Doe, 15-CIV-2624, 2015 WL 6116620, at *5 (S.D.N.Y. Oct. 16, 2015) (permitting defendant to proceed under pseudonym where defendant was accused of illegally downloading adult videos); Michael v. Bloomberg L.P., 14-CV-2657, 2015 WL 585592, at *3 (S.D.N.Y. Feb. 11, 2015) ("There is noissue here of physical retaliation or mental harm against plaintiff. Nor is this the type of unusual case involving matters of a highly sensitive or personal nature—i.e., claims involving sexual orientation, pregnancy, or minor children—in which courts have justified anonymous plaintiffs proceeding pseudonymously.").

Moreover, Plaintiff's argument that she must maintain anonymity because Defendants could retaliate against her is belied by the fact that she has already publicly disclosed her identity during the course of this litigation. "[F]iguratively speaking, the cat is already out of the bag." Corley v. Vance, 15 CIV. 1800, 2015 WL 4164377, at *9 (S.D.N.Y. June 22, 2015). Based on the parties' submissions before the Court, it is clear that Defendants are fully aware of Plaintiff's identity and her status as the plaintiff in this action. Specifically, Plaintiff publicly identified herself in a myriad of State and federal court documents relating to this matter, which have not been filed under seal and are currently accessible to the public. (See NYSCEF Doc. No. 1 at 1, 2, 7; NYSCEF Doc. No. 2 at 2; NYSCEF Doc. No. 3 at 1, 2; NYSCEF Doc. No. 4 at 1; NYSCEF Doc. No. 5 at 1; Dkt. 8 at ECF 5; Dkt. 11 at ECF 8.) Indeed, under Plaintiff's signature as "Jane Doe" on her Amended Complaint, she reveals her true identity. (Am. Compl. at ECF 8 (identifying Plaintiff as "Natasha Vernon").)⁵

Lastly, even if Plaintiff had a strong interest in maintaining her anonymity, it is outweighed by the countervailing public interest in the disclosure of her identity because of her status as a licensed attorney and officer of the Court. In New York, for example, applicants to the bar arerequired to disclose their involvement in litigation. See Admission Multip Packet, http://www.nybarexam.org/Admission/AdmissionMultiDeptPacket.htm (last visited Jan. 6, 2017). This...