DOE v. UNIVERSITY INCARNATE WORD et al

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

RESPONSE to Motion, filed by Jane UIW-Gel Doe, 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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2 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION JANE UIW-GEL DOE § Plaintiff § vs. § C.A. 5:19-cv-957-XR § UNIVERSITY OF THE § INCARNATE WORD and § UNIVERSITY OF THE § INCARNATE WORD SCHOOL § OF OSTEOPATHIC MEDICINE § Defendants § ________________________________________________________________________ PLAINTIFF DOE'S RESPONSE TO DEFENDANT UIW'S MOTION TO DISMISS COMES NOW, Plaintiff "JANE UIW-GEL DOE" to file this "PLAINTIFF DOE'S RESPONSE TO DEFENDANT UNIVERSITY'S MOTION TO DISMISS" ("Response") as follows: SUMMARY OF CONTENTS I. PROCEDURAL STATUS II. STANDARD OF REVIEW III. ARGUMENT AND AUTHORITIES IN RESPONSE A. Plaintiff Jane has satisfied the right to proceed under a pseudonym. B. To not allow Jane to proceed under a pseudonym could itself create a Section 504 Violation. C. There is no harm to Defendant UIW in allowing Jane to proceed under a pseudonym. IV. CONCLUSION PLAINTIFF DOE'S RESPONSE TO DEFENDANT UIW'S MOTION TO DISMISS 1 Glaw 2019.10.10 2 I. PROCEDURAL STATUS 1. Pending before this Court is the following motion filed by Defendants UNIVERSITY OF THE INCARNATE WORD and UNIVERSITY OF THE INCARNATE WORD SCHOOL OF OSTEOPATHIC MEDICINE (collectively hereafter as "UIW"): 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 (Dkt.# 5) (hereafter, "MTD"). 2. Defendant UIW's MTD is directed at Plaintiff's Original Complaint ("Complaint") (Dkt. # 1). 3. Plaintiff Jane offers this Response to Defendant UIW's MTD. II. STANDARD OF REVIEW 4. A motion to dismiss is not proper where the complaint's factual matter allows the Court to draw a reasonable inference that the defendant is responsible for the alleged misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 566 (2007). A complaint is sufficient if its allegations suggest that particular misconduct occurred. Twombly, supra at 556 - 558. PLAINTIFF DOE'S RESPONSE TO DEFENDANT UIW'S MOTION TO DISMISS 2 Glaw 2019.10.10 2 5. As set forth hereafter in this Response, Plaintiff Jane's Complaint meets the foregoing described standard for pleadings, and, has meet the pleading requirements to proceed under a pseudonym. III. ARGUMENT AND AUTHORITIES IN RESPONSE 6. Defendant UIW's MTD asserts the following single basis for there being a lack of subject matter jurisdiction as to Plaintiff Jane's Complaint: Jane's use of a pseudonym denies this Court subject matter jurisdiction. For the purposes of this Response, the forgoing shall be referred to as the "Desire to Out Jane."1 7. As set forth in this Response, Defendant UIW's MTD should be denied because: a. Plaintiff Jane has satisfied the right to proceed under a pseudonym; b. To not allow Jane to proceed under a pseudonym could itself create a Section 504 Violation; and 1 Counsel for Plaintiff acknowledges that use of the foregoing term is clearly a colloquialism used for rhetorical purposes. However, as set forth in this Response, such use is warranted because of the mean spirited intent behind Defendant UIW's MTD. PLAINTIFF DOE'S RESPONSE TO DEFENDANT UIW'S MOTION TO DISMISS 3 Glaw 2019.10.10 2 c. There is no harm to Defendant UIW in allowing Jane to proceed under a pseudonym. A. PLAINTIFF JANE HAS SATISFIED THE RIGHT TO PROCEED UNDER A PSEUDONYM. 8. Plaintiff Jane makes no challenge to Defendant UIW's citation of the Federal Rules of Civil Procedure as to the need to identify the plaintiff. 9. Although the Federal Rules of Civil Procedure require plaintiffs to disclose their names when they commence a lawsuit, FED. R. CIV. P. 10(a), the Fifth Circuit has long recognized the right of individuals to proceed anonymously through the use of a fictitious name. Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981). 10. While recognizing that, as a general matter, there is "a clear and strong First Amendment interest in ensuring that '(w)hat transpires in the courtroom is public property,'" id. (quoting Craig v. Harney, 331 U.S. 367, 374 (1947)), the Fifth Circuit has held has held that the "normal practice of disclosing the parties' identities yields 'to a policy of protecting privacy in a very private matter,'" Id. (quoting S. Methodist Univ. Ass'n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir. 1979)) ("SMU") (internal citation omitted). PLAINTIFF DOE'S RESPONSE TO DEFENDANT UIW'S MOTION TO DISMISS 4 Glaw 2019.10.10 2 11. Under Fifth Circuit precedent, there is "no hard and fast rule for courts to follow when deciding whether to allow a party to proceed under a fictitious name." Stegall, 653 F.2d at 185. Rather, a Court must decide whether the considerations calling for the maintenance of a party's privacy outweigh the presumption of openness in judicial proceedings. Id. at 186; see also Doe v. Beaumont Indep. Sch. Dist., 172 F.R.D. 215, 216 (E.D. Tex. 1997). 12. In considering where anonymity may be maintained by a plaintiff, the Fifth Circuit offers the following factors for this Court to use when determining whether to permit a plaintiff the right to proceed under a fictitious name: a. whether the party seeking anonymity is suing to challenge governmental activity; b. whether prosecution of the suit compels the party to disclose information of the utmost intimacy; and c. whether the party is compelled to admit her intention to engage in illegal conduct, thereby risking criminal prosecution. See Stegall, 653 F.2d at 185. 13. Further, a plaintiff is not required to satisfy all three of the Stegall factors. One can suffice, as is the case with Plaintiff Jane. PLAINTIFF DOE'S RESPONSE TO DEFENDANT UIW'S MOTION TO DISMISS 5 Glaw 2019.10.10 2 14. As recently as four months ago, the Eastern District of Texas addressed this exact issue and offers the following summary and guidance: "Furthermore, a party need not prove all three factors to proceed anonymously. Doe v. El Paso Cty. Hosp. Dist., 2015 U.S. Dist. LEXIS 46081, 2015 WL 1507840, at *2 (W.D. Tex. 2015) (citing Plaintiff B v. Francis, 631 F.3d 1310, 1316 (11th Cir. 2011); Stegall, 653 F.2d at 186). 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; Frank, 951 F.2d at 323-24. No single factor is dispositive, and a judge should "carefully review all the circumstances before deciding whether the customary practice of disclosing the plaintiff's identity should yield to the plaintiff's privacy concerns." Frank, 951 F.2d at 323 (emphasis in original)." Roe v. Patterson, 2019 U.S. Dist. LEXIS 95314 (June 2019), at 7 and 8. 15. As identified in Plaintiff Jane's Complaint, Jane does suffer from certain "Disabilities" (as defined in Jane's Complaint) recognized by Section 504 of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978, 29 U.S.C. § 794 ("Section 504") as disabilities that require a school receiving federal funds (such as Defendant UIW) not only to refrain from discriminating against one with such disabilities, but also to provide appropriate accommodations. PLAINTIFF DOE'S RESPONSE TO DEFENDANT UIW'S MOTION TO DISMISS 6 Glaw 2019.10.10 2 16. Although Plaintiff Jane is asserting various concurrent Texas causes of action against Defendant UIW, Defendant UIW's violations under Section 504 are core issues of Jane's Complaint. 17. Plaintiff Jane's Disabilities are also at the heart of the satisfaction of the second Stegall factor of: whether prosecution of the suit compels the party to disclose information of the utmost intimacy. 18. Although Plaintiff Jane has generally described Jane's Disabilities in Jane's Complaint, the prosecution of Jane's Complaint will require a much deeper and intimate disclosure of Jane's Disabilities and how intensely Jane was impacted and harmed by Defendant UIW's Section 504 Violations. 19. In an obvious effort to minimize Plaintiff Jane's Disabilities, Defendant UIW offers its own view that Jane's Disabilities are of little value. See. Footnote 2 of Defendant UIW's MTD. 20. Not only is such a statement itself a likely violation of Title II of the Americans with Disabilities Act, 42 U.S.C.A. §§ 12131–50 (2011) ("ADA"), but such statement reflects the lack of concern which Defendant UIW continues to show Plaintiff Jane as to her Disabilities. PLAINTIFF DOE'S RESPONSE TO DEFENDANT UIW'S MOTION TO DISMISS 7 Glaw 2019.10.10 2 21. In an effort to cast Plaintiff Jane's Disabilities as insufficient to satisfy the second Stegall factor, Defendant UIW cites a Louisiana case2 which held that identification of a person being HIV+ was not sufficient reason to allow anonymity because the public was now more accepting of such persons. 22. However, the purported public acceptance of a person being HIV+ provides this Court with no reason to allow the private emotional and physical details of Plaintiff Jane's Disabilities to be made public subjecting Jane to potential humiliation, retaliation, and other harms which can so easily be inflicted by the public of today. B. To not allow Jane to proceed under a pseudonym could itself create a Section 504 Violation. 23. By definition and as a matter of law, Section 504 prohibits discrimination of persons with the recognized Disabilities that Plaintiff Jane suffers from. 24. However, the core of Defendant UIW's MTD is an argument based on a proposition that Plaintiff Jane is not entitled to an accommodation of privacy. The irony and audacity of such a proposition should not be ignored. 2 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). PLAINTIFF DOE'S RESPONSE TO DEFENDANT UIW'S MOTION TO DISMISS 8 Glaw 2019.10.10 2 C. THERE IS NO HARM TODEFENDANT UIW IN ALLOWING JANE TO PROCEED UNDER A PSEUDONYM. 25. As a basis to deny Plaintiff Jane from proceeding under a pseudonym, Defendant UIW claims a prejudicial impact on Defendant because Defendant UIW's reputation could be harmed, and Defendant will have to spend time and money redacting documents. 26. Whether Defendant UIW's reputation is harmed by Plaintiff Jane's Complaint has absolutely nothing to do with whether the public is ever made aware of who Jane is, rather the source of such humiliation would be from the acts and omissions committed by Defendant UIW. 27. As for redaction, counsel for Plaintiff Jane would be happy to show Defendant UIW how easy redaction now is using Adobe Pro. 28. Defendant UIW does not assert that UIW does not know who Jane is. Defendant UIW's sole purpose of, and motivation behind, Defendant UIW's MTD is simply Defendant UIW's Desire to Out Jane. 29. Defendant UIW is gambling that if this Court were to require a public identification of Plaintiff Jane, then Jane's right to her privacy may be so strongly felt that Jane would drop the Complaint. PLAINTIFF DOE'S RESPONSE TO DEFENDANT UIW'S MOTION TO DISMISS 9 Glaw 2019.10.10 2 30. The description of such a gamble is not mere supposition. For counsel for Defendant UIW has now proceeded with the same effort "to out the plaintiff" in another federal court lawsuit filed by counsel for Plaintiff Jane. 31. In such matter in the Southern District-Corpus Christi Division, the federal court rejected counsel's effort. 32. Although counsel for Defendant UIW is allowed to present its defense in whatever manner it chooses, counsel for Plaintiff has filed over thirty lawsuits in Texas using a pseudonym, yet counsel for Defendant UIW is the only counsel to ever challenge the plaintiffs' asserted right of privacy in such suits. IV. CONCLUSION WHEREFORE, Plaintiff Jane has already suffered greatly by the acts and omissions of Defendant UIW. This Court need not assist Defendant UIW in harming Jane further through Defendant UIW's Desire to Out Jane. Defendant UIW's MTD should be denied. PLAINTIFF DOE'S RESPONSE TO DEFENDANT UIW'S MOTION TO DISMISS 10 Glaw 2019.10.10 2 Respectfully submitted, Gorman Law Firm, pllc By: Terry P Gorman, Esq. Texas Bar No. 08218200 tgorman@school-law.co 901 Mopac Expressway South, Suite 300 Austin, Texas 78746 Telephone: (512) 980-4556 (direct) Telecopier: (512) 597-1455 ATTORNEYS FOR PLAINTIFF JANE UIW-GEL DOE PLAINTIFF DOE'S RESPONSE TO DEFENDANT UIW'S MOTION TO DISMISS 11 Glaw 2019.10.10 2 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the preceding document was served via the Court's CM/ECF system on October 10, 2019 on: Katie E. Payne kpayne@wabsa.com D. Craig Wood cwood@wabsa.com WALSH GALLEGOS TREVINO RUSSO & KYLE P.C. 100 N.E. Loop 410, Suite 900 San Antonio, Texas 78216 COUNSEL TO DEFENDANTS UNIVERSITY OF THE INCARNATE WORD AND UNIVERSITY OF THE INCARNATE WORD SCHOOL OF OSTEOPATHIC MEDICINE' Terry P. Gorman PLAINTIFF DOE'S RESPONSE TO DEFENDANT UIW'S MOTION TO DISMISS 12 Glaw 2019.10.10