Doe v. Cornell - Motion to Proceed Under Pseudonym

8/20/2019 Doe v. Cornell - Motion to Proceed Under Pseudonym

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

JOHN DOE,

Civil Action No:

Plaintiff

-against-

CORNELL UNIVERSITY,

Defendant.

x

MOTION TO PROCEED UNDER

PSEUDONYM AND FOR PROTECTIVE ORDER

The undersigned attorneys hereby move this Court to allow the Plaintiff in the above

captioned action to proceed under the pseudonym John Doe for the reasons set forth in the

attached Plaintiff s Memorandum of Law in Support of Plaintiff s Motion to Proceed Under

Pseudonym And For Protective Order and the Declaration of Kimberly C. Lau, Esq. In Support

of Plaintiff s Motion to Proceed Under Pseudonym And Protective Order.

Dated: New York, New York

March 19, 2015

Respectfully subm itted,

NESENOFF

MILTENBERG, LLP

ttorneys for

laintiff

John Doe

By:

Is

Kimberly C. Lan

Andrew T. Miltenberg, Esq. 517014)

Kimberly C. Lan, Esq. 517016)

363 Seventh Avenue, Fifth Floor

New York, New York 10001

212) 736-4500

amiltenberg Innillplaw.com

k1au nmllplaw.com

5:15-cv-322 TJM/DEP

Case 5:15-cv-00322-TJM-DEP Document 2 Filed 03/19/15 Page 1 of 1


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x

JOHN DOE,

Civil Action No:

Plaintiff,

against

CORNELL UNIVERSITY,

Defendant.

x

PLAINTIFF S MEMORANDUM OF LAW IN SUPPORT OF

PLAINTIFF S MOTION TO PROCEED UNDER

PSEUDONYM AND FOR PROTECTIVE ORDER

Plaintiff John Doe, ( Plaintiff ) by his attorneys, Nesenoff & Miltenberg, LLP, hereby

seeks authorization to file a Complaint in the above-captioned matter as a pseudonymous

Plaintiff. In light of the serious nature of the allegations contained in the Complaint, Plaintiff is

justifiably concerned about the possibility of acts of reprisal that could further prevent Plaintiff

from proceeding with his career and future endeavors, and inflict further severe physical and/or

mental harm. Plaintiff’s identity as described in the Complaint, should not be disclosed to the

public due to the nature of the allegations in said Complaint. See Declaration of Kimberly C. Lau

( Lau Decl. ) attached to Plaintiff’s

x Parte

Motion to Proceed Under Pseudonym and for

Protective Order

Plaintiff is prepared to provide a statement of his true identity under seal, upon the

Court s request.

5:15-cv-322 TJM/DEP

Case 5:15-cv-00322-TJM-DEP Document 2-1 Filed 03/19/15 Page 1 of 9


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ST TEM ENT OF F CTS

During the events described in the Complaint, Plaintiff was a student at defendant Cornell

University (hereinafter Defendant Cornell or Cornell ) and resided at a private house not

owned by Cornell, in Ithaca, New York.

Plaintiff and Jane Doe had known each other since spring semester 2011 when they were

in the same course. They were acquaintances and had all classes together, as they were in the

same major in the School of Chemical and Biomolecular Engineering.

On Friday, December 13, 2013, an end of semester event for Chemical Engineering

students was held at the Statler Hotel. Plaintiff and Jane Doe, both seniors and Chemical

Engineering majors, attended the event. A cocktail reception began at 6:00 p.m. and dinner was

served at 7:00 p.m. The party consisted of dinner and drinks with classmates, Teaching

Assistants, graduate students and professors from the Chemical Engineering school. Witness

O.G. observed that Jane Doe and Plaintiff seemed happy and friendly and noticed them talking

to each other. All students were given two drink tickets to use during the event. The gathering

concluded around 8:30 p m

After the holiday party, Jane Doe and some of her friends returned to her apartment, a

privately owned apartment off campus about half a block away, to drop off their purses and

winter boots. They then joined their classmates, Teaching Assistants, graduate students and

professors at a residence located in Collegetown at around 10:00 p.m., where they continued

socializing, dancing and drinking. Even though everyone had been drinking, witness M.N.

indicated that Jane Doe was

ot

intoxicated to the point that she did not know what was going

on

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While at the after party in Collegetown, Plaintiff and Jane Doe participated in a game of

beer pong together and continued to talk. Witness M.V. noticed Jane Doe and John Doe getting

close and flirting.

Plaintiff and Jane Doe continued to flirt throughout the evening, by dancing together,

talking, and Jane Doe touching Plaintiff’s hair. Witness N.N. indicated Jane Doe wasn’t drunk,

maybe a couple of drinks, but not messy drunk. Additionally, Witness L.T. stated that although

Jane Doe seemed to consume a lot of alcohol, she didn’t notice anyone having trouble walking

or slurring [their] speech.

Plaintiff consumed approximately five or six drinks over a ten hour period throughout the

evening. Jane Doe alleged she consumed approximately fifteen drinks throughout the evening,

consisting of three glasses of wine, half a bottle of Malibu Rum, another third a bottle of rum,

two more glasses of wine, a bottle of wine, two shots of unknown hard alcohol and one beer.

Jane Doe had previously teased her friends for being lightweights, in reference to their

completed a century (a 1.5 ounce shot of beer every minute for 100 minutes), the equivalent to

12 5

beers in 1.67 hours, and was the only one of her friends who did not get sick afterwards.

At around 2:30 or 3:00 a.m. on December 14, 2013, Plaintiff, Jane Doe, and Witnesses

L.T., M.N., M.V. and V.P. left the party together and walked back to Jane Doe s apartment.

Some m embers of this group had to retrieve their belongings dropped o ff earlier in the evening.

Although everyone had been drinking, no one was excessively intoxicated as there had

been professors present at both the holiday party and the after party. Specifically, neither

Plaintiff nor Jane Doe had trouble walking home despite the snow and icy conditions and neither

was slurring their speech. Witness V.P. indicated everyone was buzzed but that Jane Doe did



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not appear intoxicated. In fact, she was able to walk home through inclement weather, ascend the

flight of stairs in her building and unlock the door to her apartment without any assistance.

Plaintiff, Jane Doe and Witnesses L.T., M.N., M.V. and V.P. remained in Jane Doe’s

apartment for approximately twenty five minutes. They engaged in conversation in Jane Doe’s

kitchen, discussing various topics such as their previous sexual experiences. The Witnesses

indicated that no member of the group appeared overly intoxicated, to the point of being

incapacitated.

At some point during the conversation, Jane Doe removed her bra from under her shirt, in

front of the whole group. As she did this, she motioned toward Plaintiff and moved closer to him.

When the three friends departed, Plaintiff remained behind, and Jane Doe did not protest.

Witness V.P. testified that Jane Doe seemed fine when he left Jane Doe and Plaintiff at the

apartment. Additionally, Witness M.V. testified that if he felt Plaintiff was too drunk to be there

with Jane Doe, he would have made him leave. Further, M.V. stated that if [he] felt [Jane Doe]

was in any way in danger [he] would not have left.

Due to the cold weather and the distance to Plaintiff’s apartment, Jane Doe agreed to let

Plaintiff spend the night at her apartment. Jane Doe did not have a couch so it was understood

that Plaintiff would sleep in her bed with her. She attributed this hospitality to her German

family’s alleged sailboat community ideals.

After M.N., M.V., L.T. and V.P. departed, Plaintiff informed Jane Doe that he was

interested in her. Plaintiff and Jane Doe began to kiss while standing up. The kissing continued

as they moved towards the bed. They spoke occasionally in between kissing, and at one point

Jane Doe apologized for the mess in her room. They verbally communicated about hooking up,

with Jane Doe advising that she was horny but that she did not want to have sex. Jane Doe

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removed her own dress and underwear, and Plaintiff followed, by removing his pants and

underwear. Jane Doe begin to manipulate Plaintiff’s penis and Plaintiff began to digitally

penetrate Jane Doe.

Plaintiff and Jane Doe engaged in sexual activity for approximately one hour. Both

Plaintiff and Jane Doe were awake and coherent at all times during the sexual activity,

communicating non-verbally by touching, stroking and kissing each other.

Jane Doe demonstrated her consent through both words and actions, by actively

participating in the sexual activity, stating her willingness to engage in sexual activities up to a

certain point, manually manipulating Plaintiff s penis, removing her own clothing and underwear

and continuing to kiss and touch Plaintiff throughout the sexual encounter.

Plaintiff and Jane Doe fell asleep together in Jane Doe’s bed and woke up later that

morning around 8:30 a.m. when an alarm clock went off. When they awoke, Plaintiff and Jane

Doe engaged in conversation, including a discussion about her love of rabbits and the fact that

she wanted to take a shower, before Plaintiff indicated that he would leave. Given they had

mutual friends and were a part of the same major, Jane Doe advised Plaintiff to not make it

weird.

The relationship between Plaintiff and Jane Doe did not change after the Incident, as they

continued to attend the same classes, sit nearby each other and complete their finals for the

winter semester.

On February 18, 2014, more than two (2) months after the sexual encounter, Jane Doe

filed a complaint against Plaintiff, alleging that Plaintiff raped Jane Doe on December 14, 2013,

while she was incapacitated. A temporary no contact order was put in place on February 24,

2014 and an investigation comm enced.



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A non-exhaustive list of Cornell’s wrongful actions throughout Plaintiff’s disciplinary

process include the following: (i) Cornell failed to conduct a timely investigation of the

allegations and failed to timely bring the case to a close within sixty (60) days while requiring

Plaintiff’s compliance with same; (ii) Cornell failed to conduct a thorough and impartial

investigation; (iii) Cornell employed a single-investigator model which resulted in a lack of due

process for Plaintiff; (iv) Cornell purported to perform a Blood Alcohol Content analysis to form

conclusions that were unsupported and highly prejudicial; (v) Cornell engaged in an

investigation biased against the male accused; (vi) Cornell wholly adopted Jane Doe’s

unsupportable theory of sailboat community values as evidence; (vii) Cornell relied on an

investigation consisting of a skewed rendition of the facts, cherry-picked witness statements and

ignored important qualifying statements; (viii) Cornell made assessments of credibility and

evidentiary weight with respect to each fact witness without any ascertainable rationale or logic;

(ix) Cornell failed to afford Plaintiff the requisite presumption of innocence required by a

disproportionate in light of the circumstances, all of which demonstrated substantial procedural

errors in violation of Title IX

Ultimately, on May 20, 2014, the hearing panel issued a decision, in which they found

Plaintiff responsible for the charges brought by Jane Doe (the Decision ).

As Plaintiff’s sanction, Cornell initially determined that expulsion was appropriate, and,

upon reconsideration, modified Plaintiff’s sanction to withhold his diploma for two (2) years,

provided that he meets certain enumerated conditions (the Sanction ).

In addition to the damages sustained by Plaintiff at Cornell throughout the delayed

investigation process, including his inability to attend his own graduation or receive his diploma

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on graduation day, Plaintiff has sustained tremendous damages to his career prospects as a result

of the Decision and Sanction, including the loss of five

5) job offers to date, due to the fact that

he is unable to produce his diploma upon demand to such prospective employers.

In Cornell finding that Plaintiff was responsible for violating Cornell’s policies,

Plaintiff was deprived of the most basic due process and equal protection rights and was

discriminated against on the basis of his male sex.

As a result of Cornell s blind acceptance of the accusations made by Jane Doe, defective

procedures, and unwarranted punishment, Plaintiff’s reputation is tarnished, his future career

prospects put on hold and his overall economic future compromised.

As a result of Cornell’s actions, Plaintiff’s parents’ financial resources used to provide

Plaintiff with an education at an esteemed Ivy League institution have been squandered.

As a direct and foreseeable consequence of Cornell’s actions and inactions, Plaintiff

sustained tremendous damages, including, without limitation, emotional distress, reputational

damages

Without appropriate redress, the unjustified Sanction will continue to cause irreversible

damage to Plaintiff

Plaintiff seeks redress from this Court to undo the wrongs occasioned by Cornell to his

education and future

In light of these facts, Plaintiff should be permitted to protect his identity by filing the

Complaint under a pseudonym. Plaintiff is prepared to address measures to protect the

confidentiality of his identity should the Court require disclosure to the public at a later stage in

the proceedings

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RGUMENT

Many federal courts have permitted parties to proceed anonymously when special

circumstances arise. Generally, courts allow the use of pseudonyms [w]here it is necessary. . . to

protect a person from harassment, injury, ridicule or personal embarrassment....

US. v. Doe,

665 F.2d 920, 922 (9th Cir. 1977)

citing U.S. v. Doe, 556 F.2d 3 91,

393 (6th C ir. 1977)).

Courts must balance the need for anonymity against the general presumption that

parties’ identities are public information and the risk of unfairness to the opposing party.

oes I

Thru X XIII v. Advanced Textile Corp., 214 F. 3d 10 58, 1068

(9th Cir. 2000). This balancing test

generally allows plaintiffs to use pseudonyms in three situations: (1) when identification creates

a risk of retaliatory physical or mental harm; (2) when anonymity is necessary to preserve

privacy in a matter of sensitive and highly personal nature; and (3) when the anonymous party

is compelled to admit [his or her] intention to engage in illegal conduct, thereby risking criminal

prosecution. Id.

Where plaintiffs seek the use of the pseudonyms to shield them from

retaliation, the following factors must be considered: (1) the severity of the threatened harm; (2)

the reasonableness of the anonymous party’s fear; (3) the anonymous party’s vulnerability to the

retaliation; (4) prejudice to the opposing party; and

5)

whether the public’s interest would be

better served if the parties were identified.

Id.

Courts have recognized that Doe status is appropriate in cases concerning alleged human

rights violations. Although reported decisions have not addressed the pseudonym issue directly,

it is clear that the plaintiffs in those cases were permitted to proceed using pseudonyms.

See, e.g.,

Kadic v. Karad zic, 70

F.3d 232 (2d Cir.

1995)

(two Jane Doe plaintiffs);

Xun cax v. Gram ajo,

886 F. Supp. 162,

170 D.

Mass.

1995)

(one Juan D oe plaintiff);

Doe v. Islamic Salvation Front,

993 F. Supp. 3 (D.D.C. 1998) (all plaintiffs proceeding as Does).

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As in those cases the Court should allow Plaintiff to employ a pseudonym because he is

alleging that Defendant is responsible for his current and future reputation and physical and

mental well-being.

The interests of Defendant and/or the public will not be harmed at this early stage of the

case if Plaintiffs name is not revealed. Plaintiff and his attorneys are prepared to address

measures to protect the confidentiality of his identity should the Court require disclosure to the

public at a later stage in the proceedings.

CONCLUSION

For these reasons and such other reasons as may appear just to the Court Plaintiff

requests that his

x Parte

Motion to Proceed Under Pseudonym and For Protective Order be

granted.

Dated: March 19 2015

Respectfully submitted

NESENOFF

MILTENBERG, LLP

Attorneys for

laintiff

John oe

By:

Is

Kimberly C. Lan

Andrew T. Miltenberg, Esq. 517016)

Kimberly C. Lau, Esq. 517014)

363 Seventh Avenue, Fifth Floor

New York New York 10001

(212) 736-4500

amiltenbergnmlblaw com

klauumHplaw

corn



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JOHN DOE

Civil Action No:

Plaintiff

-against-

CORNELL UNIVERSITY,

Defendant.

DECLARATION OF KIMBERLY C. LAU, ESQ.

IN SUPPORT OF PLAINTIFF S MOTION TO PROCEED

UNDER PSEUDONYM AND FOR PROTECTIVE ORDER

KIMBERLY C. LAU, ESQ.

hereby declares subject to the penalties of perjury pursuant

to28U.S.C. § 1746:

1.

I am admitted to practice in the courts of the State of New York and am a member

of the Bar of the New York Courts. I am associated with the law firm of Nesenoff& Miltenberg,

LLP, attorneys for the plaintiff, John Doe ( Plaintiff ).

2.

I submit this declaration in support of Plaintiff’s Ex Parte Motion to Proceed

Under Pseudonym and For Protective Order

3.

In the instant action, Plaintiff seeks redress for actions, inactions, omissions, and

the flawed procedures employed by Defendant Cornell University ( Defendant Cornell or

Cornell ) concerning the wrongful allegations made against Plaintiff, a male senior student at

Cornell as a result of false allegations of nonconsensual sexual activity with fellow Cornell

senior student Jane Doe. These allegations purportedly refer to what was clearly consensual

sexual activity that occurred on or about December 14, 2013 (the Incident ).

5:15-cv-322 TJM/DEP



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4. A non-exhaustive list of Cornell s wrongful actions include the following: (1)

Cornell failed to conduct a timely investigation of the allegations and failed to timely bring the

case to a close within sixty (60) days while requiring Plaintiff s compliance with same; (ii)

Cornell failed to conduct a thorough and impartial investigation; (iii) Cornell employed a single-

investigator model which resulted in a lack of due process for Plaintiff; (iv) Cornell purported to

perform a Blood Alcohol Content analysis to form conclusions that were unsupported and highly

prejudicial; (v) Cornell engaged in an investigation biased against the male accused; (vi) Cornell

wholly adopted Jane Doe’s unsubstantiated theory of sailboat community values as evidence;

(vii) Cornell relied on an investigation that consisted of a skewed rendition of the facts, cherry-

picked witness statements and ignored important qualifying statements; (viii) Cornell made

assessments of credibility and evidentiary weight with respect to each fact witness without any

ascertainable rationale or logic; (ix) Cornell failed to afford Plaintiff the requisite presumption of

innocence required by a preponderance of the evidence standard; and (x) the sanction was

unwarranted and disproportionate in light of the circumstances, all of which demonstrated

substantial procedural errors in violation of Title IX

5.

Ultimately, on May 20, 2014, the hearing panel issued a decision, in which they

found Plaintiff responsible for the charges brought by Jane Doe (the Decision ).

6.

As Plaintiff s sanction, Cornell initially determined that expulsion was

appropriate, and, upon reconsideration, modified Plaintiff’s sanction to withhold his diploma for

two (2) years, provided that he meets certain enumerated conditions (the Sanction ).

7.

In Cornell finding that Plaintiff was guilty of sexual misconduct, Plaintiff was

deprived of the most basic due process and equal protection rights and was discriminated against

on the basis of his male sex

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s a result, Plaintiff s career prospects and economic future have been severely

damaged. Without appropriate redress, the unfair outcome of the hearing will continue to cause

irreversible damages to Plaintiff s future employment prospects, with no end in sight

9

n light of these facts, Plaintiff should be permitted to protect his identity by filing

the Complaint under a pseudonym.

W H E R E F O R E the Court should grant Plaintiff s application in its entirety, and should

order such further and other relief as the Court deems just and proper

I declare under the penalty of perjury that the foregoing is true and correct, pursuant to

Title 28, United States Code, Section 1746.

Dated: New York New York

M arch 19 2015

Is Kimberly C. Lau

Kimberly C. Lau



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x

JOHN DOE

Civil Action No:

Plaintiff

ORDER GRANTING

-against-

LAINTIFF S EXP RTE

MOTION TO PROCEED

CORNELL UNIVERSITY,

NDER PSEUDONYM AND

FOR PROTECTIVE ORDER

Defendant.

Upon the Ex Parte motion of the Plaintiff for an order permitting the filing of the

Complaint, summons, civil cover sheet, and Motion to Proceed Under Pseudonym and for

Protective Order under seal, and upon review of the Declaration of Kimberly C. Lau and

Memorandum of Law in support thereof it is hereby

ORDERED that Plaintiff s

x Parte

Motion to Proceed Under Pseudonym and For

Protective Order be GRANTED and it is

FURTHER ORDERED,

that the Complaint Summons Civil Cover Sheet and Motion

to Proceed Under Pseudonym and For Protective Order, and all other accompanying filings in

this action shall be placed under seal until such time as proof of service of the Summons and

Complaint is returned and filed by Plaintiff with the Clerk of the Court.

Dated: March

2015

UNITED STATES DISTRICT JUDGE

5:15-cv-322 TJM/DEP


Doe v. Cornell - Motion to Proceed Under Pseudonym

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