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

REPLY to Response to Motion, filed by University Incarnate Word, University of the Incarnate Word School of Osteopathic Medicine, re [5] MOTION to Dismiss for Lack of Jurisdiction filed by Defendant University of the Incarnate Word School of Osteopathic Medicine, Defendant University Incarnate Word

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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 REPLY TO PLAINTIFF'S RESPONSE TO 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 Reply to Plaintiff's Response to Defendants' 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, asserting claims arising from her enrollment in and subsequent unsatisfactory departure from UIW's school of medicine. See Dkt. No. 1. On September 11, 2019, Defendants filed a motion to dismiss for lack of subject matter jurisdiction because the U.S. Constitution and the Federal Rules require plaintiffs to file suit under their own names, and Plaintiff cannot establish that her case "falls within the narrow category of exceptional cases where the need for confidentiality outweighs the strong Page 1 of 6 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); Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981); see also Dkt. No. 5. 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). 2. On September 24, 2019, Plaintiff filed an opposed motion to extend time to file her response to Defendants' motion to dismiss, seeking an extension of time until October 10, 2019. Dkt. No. 7. On October 10, 2019, Plaintiff filed her Response to Defendant UIW's Motion to Dismiss ("Response"). Dkt. No. 8. II. REPLY TO PLAINTIFF'S RESPONSE A. Plaintiff relies on the wrong standard of review. 3. As asserted in Defendants' motion to dismiss, and as previously recognized by this Court, a trial court lacks subject matter jurisdiction where a plaintiff seeks to proceed anonymously but fails to establish that "her case falls within the narrow category of exceptional cases where the need for confidentiality outweighs the strong constitutional interest of openness of judicial proceedings." Sims, CIV.SA-04-CA-1186-FB, 2005 WL 3337501, at *3; Doe, CIV. SA-04-CA- 1186-FB, 2005 WL 2708754, at *5. In her Response, Plaintiff erroneously asserted the standard of review which applies to motions to dismiss for failure to state a claim. See Dkt. No. 8 pp. 2-3. Because this is a jurisdictional challenge, Plaintiff bears the burden of establishing jurisdiction. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). Plaintiff has failed to establish that she is entitled to the exceptional relief of anonymity, and her case should be dismissed for lack of subject matter jurisdiction. Page 2 of 6 B. Plaintiff has not established that her desire for confidentiality merits the exceptional relief of anonymity. 4. In her Response, Plaintiff has failed to establish any of the Wynne & Jaffe factors which could compel the extraordinary relief she seeks. See Dkt. No. 8. Plaintiff first asserts, without benefit of authority, that establishing one of the factors "can suffice." Dkt. No 8, p. 5. Plaintiff's bald assertion is quickly belied by her own subsequent block quote which states that "no single factor is dispositive." Dkt. No. 8, p. 6. Despite this clear statement, Jane relies on a single factor: she has disabilities (ADHD and an unspecified hand injury) and she asserts, without benefit of evidence, that they are of the "utmost intimacy." Dkt. No. 8, pp. 6-7. Plaintiff mistakenly or erroneously asserts that Defendants have characterized her disabilities as being of little value; however, a plain reading of the footnote cited from the motion to dismiss makes clear that the information relates only to the fact that ADHD is a commonly occurring disability. See Dkt No. 5, fn. 2. Plaintiff then makes the unsupported and illogical leap that simply citing to National Institute of Mental Health statistics on the prevalence of ADHD in adults in the U.S. is somehow itself a violation of the ADA. Dkt. No. 8. This type of inflammatory rhetoric simply intends to distract from the reality that Plaintiff has not "demonstrated a need for anonymity that overwhelms the presumption of disclosure mandated by procedural custom and in favor of open judicial proceedings." Stegall, 653 F.2d at 185-86. When a plaintiff does not claim any greater threat of retaliation than any typical plaintiff, there is no compelling need to grant leave to proceed anonymously. Wynne & Jaffe, 599 F.2d at 713. Plaintiff asserts exactly the type of general speculation of emotional discomfort and retaliation which Wynne & Jaffe rejected. See id. C. Section 504 of the Rehabilitation Act is not implicated by Plaintiff's desire to proceed anonymously. Page 3 of 6 5. Plaintiff posits, without benefit of any supporting authority, that the Court might violate Section 504 by not offering her "an accommodation of privacy." Dkt. No. 8, p. 8. Plaintiff does not identify any section, nor even any title of the statute which might apply to a federal court in this situation. See id. The Fifth Circuit has acknowledged that exceptional circumstances might provide for the "accommodation" of the extraordinary relief she requests, but ADHD and a disabling hand injury simply do not provide the necessary exceptional circumstances. See e.g. 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, despite their assertions of stigma); Doe ex rel. Doe v. Harris, CIV.A. 14-0802, 2014 WL 4207599, at *2 (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). D. Defendants are not required to show harm. 6. In her Response, Plaintiff asserts that there is no harm to the Defendants in allowing her to proceed anonymously. Dkt No. 8, pp. 9-10. However, Plaintiff cited no authority which would require the Defendants to show harm, nor can she, because the issue of anonymity is not one of party convenience. Instead, the First Amendment mandates "a presumption of openness of judicial proceedings," which protects the public's legitimate interest in access to the facts, including the identities of the parties. Stegall, 653 F.2d at 185. Plaintiff gives this constitutional requirement short shrift, treating it as a procedural formality which she can skirt solely based on her desire to do so and her counsel's professed flouting of the Federal Rules on this issue all over the state. See Dkt. No. 8, p. 10. Fifth Circuit precedent makes clear that public access to litigants' identities is Page 4 of 6 neither a formality, nor a balancing test requiring Defendants to show harm. Stegall, 653 F.2d at 185. 7. Plaintiff's counsel also violated his ethical duty of candor to the Court in asserting that a federal court in the Southern District, Corpus Christi Division, had rejected defense counsel's request to not allow the Plaintiff to proceed anonymously. In that case, Jon DevineISD-RD v. Devine Independent School District, Civ. No. 2:19-cv-123, no such order has issued. In truth, the federal court in that case instructed Plaintiff's counsel verbally that he needed to file a motion for leave to proceed anonymously, and that Defendants would be able to respond to it. 8. There are some exceptional circumstances which can overcome the presumption of openness required of our judicial system to allow the extraordinary relief of anonymity. This suit, involving breach of contract and related claims about an adult's unsatisfactory departure from a medical program is not such a case. III. CONCLUSION AND PRAYER WHEREFORE, PREMISES CONSIDERED, for the reasons shown above and in their motion to dismiss, 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 Page 5 of 6 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 17th day of October 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 6 of 6