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Doe v. United States

United States District Court, W.D. Missouri, Western Division

September 26, 2016

JOHN DOE and JANE DOE, Plaintiffs,


          FERNANDO J. GAITAN, JR. United States District Judge.

         Currently pending before the court is plaintiff's Motion to Proceed Under Pseudonym (Doc. # 2) and defendant's Motion to Dismiss (Doc. # 14).

         I. BACKGROUND

         The Does' claims arise from an enforcement action filed by the Federal Trade Commission. Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), authorizes the FTC, through its attorneys to initiate federal court proceedings to enjoin violations and to secure equitable relief. In 2013, Helen Wong, an attorney with the FTC initiated an investigation into John Doe's employer. Based on the results of her investigation and as part of her official duties, Wong filed a complaint against Doe's employer and a number of its executives alleging violations of Section 5(a) of the FTC Act. John Doe was not named as a party, but was involved in the practices at issue and was deposed by the FTC. During the deposition, John Doe provided personally identifiable information (“PII”). In the course of her work on the case against the Does' employer, Wong prepared a reply brief in support of a motion for preliminary injunction. In his deposition, Doe testified to facts which supported the FTC's legal position. Thus, Wong decided to include portions of the deposition transcripts in her reply suggestions. Wong stated in her Affidavit that she instructed other employees of the FTC with whom she was working to redact any personal identifiable information contained in the exhibits. Wong states that the brief was filed under her ECF ID in the Court's filing system. Wong states in her affidavit that at the time the filing was complete, she believed that the exhibits contained only the redacted deposition transcript. However, approximately one hour after the reply suggestions had been filed, she learned that the unredacted transcripts had been inadvertently attached as exhibits to the preliminary injunction brief. In her affidavit, Wong states that she immediately tried to remove the documents, but was unable to do so. She left a voicemail on the After Hours Emergency number for the Western District of Missouri. She also emailed the Western District of Missouri district court clerk and the FTC's Privacy Officer to inform them that two exhibits that contained the personally identifiable information had been inadvertently filed on the court's ECF system. The exhibits were eventually placed under seal.

         Plaintiffs allege that the deposition, with the identifying information, was taken from the Court's electronic filing system and re-posted on the internet by third-parties. Plaintiffs allege that following the reposting, they have been the victim of a variety of attacks on their identities and physical threats have been made against them. On January 28, 2016, plaintiffs filed a Complaint stating that their dates of birth, address, driver's license numbers, marital status, emails and Mr. Doe's social security number were put into the public court record by the FTC. Plaintiffs sued the United States of America and Helen Wong, in her official capacity as legal counsel to the FTC. Plaintiffs state that the Court has jurisdiction pursuant to the privacy protections of the Constitution of the United States, the Privacy Act of 1974, 28 U.S.C.§ 552a, the Federal Tort Claims Act and the law of the State of Missouri. Plaintiffs asserted three counts in their Complaint: Count I - state law claim for Invasion of Privacy; Count II - Government Disclosure of Private Identifying Information and Count III - Constitutional Right to Privacy - Privacy Act. (Doc. # 1).

         II. STANDARD

         To survive a motion to dismiss under 12(b)(6), ''a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.'' Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A pleading that merely pleads ''labels and conclusions'' or a ''formulaic recitation'' of the elements of a cause of action, or ''naked assertions''devoid of ''further factual enhancement'' will not suffice. Id. (quoting Twombly). ''Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'' Id. at 1950. Under Fed.R.Civ.P. 12(b)(6) we must accept the plaintiff's factual allegations as true and grant all reasonable inferences in the plaintiff's favor. Phipps v. FDIC, 417 F.3d 1006, 1010 (8th Cir. 2005).

         In Driesen v. Smith, No. C13-4037-MWB, 2014 WL 24234 (N.D.Iowa Jan. 2, 2014), aff'd, 584 Fed.Appx. 292 (8th Cir. 2014), the Court explained the standards for Fed.R.Civ.P. 12(b)(1).

A motion attacking the court's subject matter jurisdiction is governed by Federal Rule Civil Procedure 12(b)(1). A Rule 12(b)(1) motion can either attack the complaint's claim of jurisdiction on its face or it can attack the factual basis for jurisdiction.... In a facial challenge to jurisdiction, all of the factual allegations concerning jurisdiction are presumed to be true and the motion is successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction.... If the [defendant] wants to make a factual attack on the jurisdictional allegations of the complaint, the court may receive competent evidence such as affidavits, deposition testimony, and the like in order to determine the factual dispute.

Id. at * 6.


         A. Motion for Leave to Proceed Under Pseudonym

         Plaintiffs have filed a Motion for Leave to Proceed Under a Pseudonym. Plaintiffs state that if they are required to proceed under their own names, it will require them to re-disclose private information which was initially wrongfully disclosed. Plaintiffs also argue that the Government will not be prejudiced if they are allowed to proceed under a pseudonym because a Notice of Claim has been provided which lists their real names. Additionally, plaintiffs state that the public interest in ascertaining their identity is minimal when balanced against the harm it might potentially cause.

         The Government states that Fed.R.Civ.P. 10(a) states that “[t]he title of the complaint must name all the parties.” The Government also notes that there is a “strong presumption against allowing parties to use a pseudonym.” W.G.A. v. Priority Pharmacy, Inc., 184 F.R.D. 616, 617 (E.D.Mo.1999). The Government argues that although the Does have asserted that some personally identifiable information was disclosed in a previous lawsuit and that this information is still publicly available, that does not necessarily mean that they should be allowed to proceed under a pseudonym in this case. The Government states that to the extent that any personally identifiable information needs to be disclosed to the Court, it may be redacted from the public filings and unredacted documents may be provided to the Court.

         In the case In re Ashley Madison Customer Data Security Breach Litigation, MDL No. 2669, 2016 WL 1366616 (E.D.Mo. Apr. 6, 2016), the Court stated:

The public has a First Amendment right to access judicial proceedings, and that right includes the identity of the parties to litigation. . . .Indeed, when a plaintiff commences an action in federal court, he invites public scrutiny of the dispute and the proceeding. . . .The decision to allow pseudonyms is within a court's discretion. . . .Neither the Eighth Circuit nor the Supreme Court has addressed the issue of when a pseudonym may be used; however, many federal courts of appeal and numerous district courts have reached this issue. . . .These courts have held that a totality-of-the circumstances balancing test must be used when deciding whether a party can sue under a pseudonym; in other words, the court must ascertain whether the plaintiff has a substantial privacy right which outweighs the customary constitutionally-embedded presumption of openness in judicial proceedings. . . .The courts have identified several factors common to cases in which a plaintiff has been permitted to proceed under a fictitious name, ...

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