Western District of Texas, txwd-5:2019-cv-00957

MOTION to Dismiss for Lack of Jurisdiction by University Incarnate Word, University of the Incarnate Word School of Osteopathic Medicine.

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION JANE UIW-GEL DOE § § Plaintiff, § § vs. § § UNIVERSITY OF THE INCARNATE § CIVIL ACTION NO.: 5:19-cv-957-XR WORD AND UNIVERSITY OF THE § INCARNATE WORD SCHOOL OF § OSTEOPATHIC MEDICINE § JURY DEMAND § Defendants. § DEFENDANTS UNIVERSITY OF THE INCARNATE WORD AND UNIVERSITY OF THE INCARNATE WORD SCHOOL OF OSTEOPATHIC MEDICINE'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION TO THE HONORABLE JUDGE OF SAID COURT: NOW COME Defendants University of the Incarnate Word and University of the Incarnate Word School of Osteopathic Medicine ("Defendants") and file this 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction, and show the Court the following: I. STATEMENT OF THE CASE 1. Plaintiff filed suit anonymously, without seeking leave of court to do so, alleging claims for violation of: (1) Section 504 of the Rehabilitation Act, (2) fraud in the inducement, (3) breach of contract, (4) intentional infliction of emotional distress, (5) tortious interference, (6) conspiracy, and (7) implied warranties. Dkt. No. 1, pp. 18-23. Plaintiff's claims arise from her enrollment in and subsequent unsatisfactory departure from UIW's school of medicine. See Dkt. No. 1. 2. The Defendants file this motion to dismiss for lack of subject matter jurisdiction because Plaintiff cannot establish that her case "falls within the narrow category of exceptional cases where Page 1 of 7 the need for confidentiality outweighs the strong constitutional interest of openness of judicial proceedings." Sims v. Bush, CIV.SA-04-CA-1186-FB, 2005 WL 3337501, at *3 (W.D. Tex. Sept. 6, 2005). As a result, this Court lacks subject matter jurisdiction over this lawsuit brought by an anonymous Plaintiff. Doe v. Bush, CIV. SA-04-CA-1186-FB, 2005 WL 2708754, at *5 (W.D. Tex. Aug. 17, 2005), report and recommendation adopted sub nom. Sims v. Bush, CIV.SA-04- CA-1186-FB, 2005 WL 3337501 (W.D. Tex. Sept. 6, 2005). II. MOTION TO DISMISS STANDARD 3. Motions filed under Rule 12(b)(1) allow a party to challenge the subject matter jurisdiction of the court to hear the case. Fed. R. Civ. P. 12(b)(1). The burden of proof for a Rule 12(b)(1) motion to dismiss remains at all times on the party asserting jurisdiction. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). "Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Id. The plaintiff constantly bears the burden of proof that jurisdiction exists. Id. III. ARGUMENTS AND AUTHORITY 4. "The Federal Rules of Civil Procedure require plaintiffs to disclose their names in the instrument they file to commence a lawsuit." Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981) (citing Fed. R. Civ. P. 10(a)); see also Fed. R. Civ. P. 17(a). "Public access to this information is more than a customary procedural formality; First Amendment guarantees are implicated when a court decides to restrict public scrutiny of judicial proceedings."1 Stegall, 653 at 185. There is "a presumption of openness of judicial proceedings," which protects the public's legitimate interest 1 Plaintiff miscasts the factors to be balanced, asserting that her interest in privacy outweighs any "inconvenience" to the Defendants. Dkt. No. 1, ¶ 4. Page 2 of 7 in access to the facts, including the identities of the parties. Id. While the Federal Rules do not provide an exception to identifying the parties, the Fifth Circuit has allowed plaintiffs to proceed anonymously, but only in exceptional circumstances. Southern Methodist University Ass'n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 712 (5th Cir.1979); see also Doe v. Bush, CIV. SA04CA1186FB, 2005 WL 2708754, at *5 (W.D. Tex. Aug. 17, 2005), report and recommendation adopted sub nom. Sims v. Bush, CIV.SA-04-CA-1186-FB, 2005 WL 3337501 (W.D. Tex. Sept. 6, 2005)(granting motion to dismiss on the ground that the court lacks subject matter jurisdiction over claims brought by an anonymous plaintiff). 5. In the seminal Wynne & Jaffe case, the Fifth Circuit identified the following factors to be considered in the balancing test where a plaintiff seeks to proceed under a fictitious name: (1) plaintiffs seeking anonymity were suing to challenge governmental activity; (2) prosecution of the suit compelled plaintiffs to disclose information "of the utmost intimacy; " and (3) plaintiffs were compelled to admit their intention to engage in illegal conduct, thereby risking criminal prosecution. Doe v. Stegall, 653 F.2d at 185 (citing Wynne & Jaffe, 599 F.2d at 712-13.) These non-exclusive factors are to be applied under the relevant facts and circumstances of the case. 599 F.2d at 713. None of these factors favor allowing anonymity to overcome the presumption of judicial openness in this case. 6. First, it is clear from the face of the Complaint that Plaintiff is not challenging governmental activity. See Dkt. No. 1, ¶¶ 6-7 (identifying each Defendant as "a private university"). While suits against governmental activity "involve no injury to the Government's 'reputation,' the mere filing of a civil action against other private parties may cause damage to their good names and reputation and may also result in economic harm." Wynne & Jaffe, 599 F.2d at 713. Here, as in Wynne & Jaffe, a private entity stands publicly accused of serious violations of Page 3 of 7 federal and state law. 599 F.2d at 713. "Basic fairness dictates" that Plaintiff must participate in this suit under her real name. See id. 7. The second factor also does not weigh in Plaintiff's favor. "Where the issues involved are matters of a sensitive and highly personal nature, such as birth control, abortion, homosexuality or the welfare rights of illegitimate children or abandoned families, the normal practice of disclosing the parties' identities yields to a policy of protecting privacy in a very private matter." Id. at 712- 13 (citations omitted). As one court identified, the crucial query is "how intimate and of what nature must the information be to trump the presumption of openness in judicial proceedings?" El Paso Cty. Hosp. Dist., EP-13-CV-00406-DCG, 2015 WL 1507840, at *4 (W.D. Tex. Apr. 1, 2015). In addition to the highly personal topics identified in Wynne & Jaffe, plaintiffs in cases involving prayer and personal religious beliefs and cases where the plaintiff has suffered a sexual assault have, under some circumstances, been allowed to proceed anonymously. Roe v. Patterson, 419CV00179ALMKPJ, 2019 WL 2407380, at *3 (E.D. Tex. June 3, 2019)(collecting cases). None of Plaintiff's claims nor any of her factual allegations provide any hint of a sensitive or highly intimate matter being raised. See Dkt. No. 1. Carving out an exception to the presumption of openness under these circumstances would result in a wholesale swallowing of the rule, as it would be difficult to imagine why any case on the federal docket should not then similarly be amenable to prosecution under a fictitious name. Plaintiff's claim for disability-based discrimination is arguably the most likely to involve disclosure of sensitive information, but a diagnosis of ADHD and temporary physical limitations in one hand are not the types of disabilities which supply the type of vulnerabilities that may support anonymity. See Doe v. Merritt Hosp., LLC, 353 F. Supp. 3d 472, 482 (E.D. La. 2018)(collecting cases in which HIV-positive plaintiffs were not allowed to proceed anonymously); Doe ex rel. Doe v. Harris, CIV.A. 14-0802, 2014 WL 4207599, at *2 Page 4 of 7 (W.D. La. Aug. 25, 2014), aff'd, CIV.A. 14-0802, 2015 WL 5664255 (W.D. La. Sept. 24, 2015) (collecting cases in which plaintiffs with diminished mental capacity were not allowed to proceed anonymously, even in sexual abuse cases). 8. The third factor also weighs against allowing Plaintiff to proceed anonymously. Plaintiff's Complaint is devoid of allegations, and similarly devoid of any well-pleaded facts from which one could infer that she might plausibly be compelled to admit her intention to engage in illegal or prohibited conduct by action of this lawsuit, thus risking criminal sanctions. See Dkt. No. 1. Unlike a plaintiff seeking to secure access to a prohibited contraceptive or overturn an anti-sodomy statute, the plaintiff in this case is primarily seeking to enforce her alleged contractual and quasi- contractual rights. See Dkt. No. 1. 9. In addition to the Wynne & Jaffe factors, courts have considered other circumstances, including whether plaintiffs would face threats of "violence or physical harm by proceeding in their own names, a party's age and related vulnerability, and any prejudicial impact on the defending parties." See Stegall, 653 F.2d at 186. Here, Plaintiff makes no allegations of violence or physical harm. See Dkt. No. 1. Instead, Plaintiff asserts an unspecified fear of "further retaliation" in support of her asserted "right" to proceed anonymously. Dkt. No. 1, ¶¶ 3, 5. Like the attorneys in Wynne & Jaffe who cited fear of retaliation from their current employers, future employers, and a bar that does not favor lawyers who sue other lawyers, even assuming arguendo that her allegations were true, Plaintiff cannot rely on her assertion of retaliation by Defendants, by other prospective medical schools, or by a medical community that may not favor litigious medical students. See 599 F.2d at 713. Moreover, even assuming Plaintiff could suffer retaliation for filing this lawsuit, which is vehemently denied, she conceded in her Complaint that the facts Page 5 of 7 of her identity are "well known to the Defendants." Dkt. No. 1, ¶ 4. Thus, nothing would be gained by hiding her identity from the public. 10. In addition, there are no allegations that Plaintiff is a minor, and all plausible inferences which flow from her Complaint would indicate that she is an adult, and was an adult when she enrolled and departed medical school in unsatisfactory fashion. See Dkt. No. 1. While Plaintiff has asserted that she has been diagnosed with Attention-Deficit/Hyperactivity Disorder ("ADHD") and "certain temporary physical limitations to the use of [her] left hand", these allegations of a common disability2 and a temporary and limited physical limitation do not indicate any type of special vulnerability, age-related or otherwise, which would necessitate the use of a fictitious name. See Dkt. No. 1. In contrast, the prejudicial impact on Defendants would range from the basic injustice of defending its reputation before the public from attacks by an anonymous Plaintiff to the certainty of additional time and expense necessary to redact or file under seal documents in this suit, which concomitantly further erodes the openness of the judicial process to the public. 11. "Lawsuits are public events." Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992). The risk of embarrassment or damage to reputation or career prospects cannot put this case in the narrow category of "exceptional cases involving matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity." Id. It should be dismissed accordingly. 2 The estimated lifetime prevalence of ADHD in U.S. adults aged 18 to 44 years was 8.1%. "Attention- Deficit/Hyperactivity Disorder (ADHD)", National Institute of Mental Health, (last visited September 9, 2019)(citing Kessler RC, Berglund P, Demler O, Jin R, Merikangas KR, Walters EE. Lifetime prevalence and age-of-onset distributions of DSM-IV disorders in the National Comorbidity Survey Replication. Arch Gen Psychiatry. 2005 Jun;62(6):593-602). Page 6 of 7 IV. CONCLUSION AND PRAYER WHEREFORE, PREMISES CONSIDERED, for the reasons shown above, the Defendants respectfully move the Court to grant their 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction and furthermore grant them any and all relief to which they have shown themselves justly entitled. Respectfully Submitted, By: /s/ D. Craig Wood D. Craig Wood State Bar No. 21888700 By: /s/ Katie Payne Katie E. Payne State Bar No. 24071347 WALSH GALLEGOS TREVIÑO RUSSO & KYLE P.C. 1020 NE Loop 410, Suite 450 San Antonio, Texas 78209 TEL. NO.: (210) 979-6633 FAX NO.: (210) 979-7024 ATTORNEYS FOR DEFENDANTS CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on the 11th day of September 2019, a true and correct copy of the foregoing was electronically filed with the Clerk of the Court using CM/ECF system and has been served on all counsel of record, pursuant to Federal Rules of Civil Procedure as follows: COUNSEL FOR PLAINTIFF: Terry P. Gorman Gorman Law Firm, pllc 901 Mopac Expressway South, Suite 300 Austin, Texas 78746 /s/ D. Craig Wood D. Craig Wood Page 7 of 7