Jane Doe, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1283

Jane Doe,
Appellant,

vs.

Empire Entertainment, LLC, d/b/a The Pourhouse,
Respondent,

metroConnections, Inc.,
Defendant.

Filed May 8, 2017
Affirmed
Rodenberg, Judge

Hennepin County District Court
File No. 27-CV-16-4003

Peter J. Nickitas, Peter J. Nickitas Law Office, L.L.C., Minneapolis, Minnesota (for
appellant)

Jeffrey M. Markowitz, Colby B. Lund, Arthu r, Chapman, Kettering, Smetak & Pikala,
P.A., Minneapolis, Minnesota (for respondent)

Considered and decided by Rodenberg, Presiding Judge; Ross, Judge; and Stauber,
Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
In this collateral-order appeal, appellant challenges the district court’s denial of her
request to proceed as “Jane Doe” in this la wsuit alleging negligence, invasion of privacy,

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intentional infliction of emotional distress, a nd negligent infliction of emotional distress.
Appellant argues that the district court abused its discretion when it denied her request to
proceed under a pseudonym because her claims against respondent involve matters of
“utmost intimacy.” Because Mi nn. R. Civ. P. 10.0 1 requires a plaintiff to include his or
her name in the title of the complaint, and because we see no abuse of any discretion the
district court might have to permit noncompliance with the rule, we affirm.
FACTS
Appellant is a professional musician and entertainer, performing what she describes
as “multi-genre” and “family” shows. She was hired to do a show involving Hawaiian
dance for a company party on January 29, 2016. Appellant claims that, while she was
changing costumes at this event, responde nt Empire Entertainment LLC and defendant
metroConnections Inc. permitted her image to be captured by a security camera. Appellant
sued both defendants for negligence, invasion of privacy, and intentional and negligent
infliction of emotional distress, seeking monetary damages. Appellant styled the original
complaint under a “Jane Doe” pseudonym, and filed an affidavit with the district court in
which she provided her legal name and expl ained that she wished to proceed under a
pseudonym because of the risk of harm to her career, reputation, and relationships if it were
public knowledge that she had been filmed while partially nude. Important to appellant’s
claims is that none of her professional performances involve any nudity.
In response to appellant’s request to sue under a pseudonym, metroConnections Inc.
moved the district court for an order denyin g appellant’s request and dismissing the case
for insufficiency of process under Minn. R. Civ. P. 12.02(c), because appellant’s suit papers

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did not identify her by name as required by Minn. R. Civ. P. 4.01, 10.01. Appellant argued
to the district court that cases captioned with pseudonyms are legion within Minnesota and
should be permitted in a case like hers, involving matters of “utmost intimacy.”
The district court granted, in part, the motion to dismiss for insufficiency of process.
The district court denied appe llant’s request to proceed un der a pseudonym, directed her
to amend the complaint’s caption to include appellant’s legal name, and directed appellant
to use her true name in all future pleadings. The district court explained that the rules of
civil procedure require appellant to use her na me on the pleadings. The district court
alternatively declined to exercise any disc retion it might have to permit appellant to
proceed by a pseudonym, concluding that the pu blic’s interest in an open and transparent
judiciary outweighed appellant’s claimed privacy interest.1
This appeal followed.
D E C I S I O N
Appellant argues that the district court erred in denying her request to proceed under
a pseudonym because it failed to consider “judicially recognized factors” favoring
pseudonymity. Appellant also argues that the district court abused its discretion by
concluding that appellant’s reasons for requesting perm ission to proceed using a
pseudonym were insufficient and in charact erizing her claimed privacy interest as

1 The district court addressed other matters in the same order, but none of those other issues
is raised in this appeal.

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“changing clothes.”2 Respondent argues that the Minnesota Rules of Civil Procedure do
not permit parties to use a pseudonym in the pleadings.
We first consider whether the Minnesota Rules of Civil Procedure permit a plaintiff
to proceed in an action under a pseudony m. “Construction and application of the
Minnesota Rules of Civil Procedure is . . . a question of law that we review de novo.”
Eclipse Architectural Grp. v. Lam, 814 N.W.2d 692, 696 (Minn. 2012). “If the language
of a rule is plain and unambiguous, we follow the rule’s plain language.” Gams v.
Houghton, 884 N.W.2d 611, 616 (Minn. 2016). We do not read a rule “in isolation;” rather,
we read the rules “in li ght of one another.” Madison Equities, Inc. v. Crockarell , 889
N.W.2d 568, 572 (Minn. 2017).
The Minnesota Rules of Civil Procedur e provide that the “summons shall
state . . . the names of the parties.” Minn. R. Civ. P. 4.01. “Every pleading shall have a
caption setting forth . . . the title of the acti on,” and “[i]n the complaint, the title of the
action shall include the names of all the partie s.” Minn. R. Civ. P. 10.01. “The rules
applicable for captions, signing, and other matters of form of pleadings apply to all motions
and other documents provided for by these rules. ” Minn. R. Civ. P. 7.02(b). The plain
language of these rules requires appellant, as a party to the action, to include her name in
the summons and complaint.

2 After oral argument, appellant filed supple mental citations to legal authorities and a
memorandum responding to legal authority c ited by respondent during oral argument.
Respondent objected to one of appellant’s suppl emental letters as violating the scope of
Minn. R. Civ. App. P. 128.05. We have considered appellant’s submissions to the extent
they address the specific issues raised at oral argument.

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An exception to the requirement that a part y be named in the pleadings is provided
in Minn. R. Civ. P. 9.08. A party ignorant of the name of an opposing party, who alleges
such ignorance in the pleadings, is permitted to designate that party by any name until the
opposing party’s true name is discovered, at which point “the action may be amended by
substituting the true name.” Minn. R. Civ. P. 9.08. The rule has no application here.
There are several statutes that expre ssly permit confidential or pseudonymous
pleadings. Minn. Stat. § 145.4247 (2016) permits a district court to allow a party to proceed
anonymously in certain civil actions concerning abortions, where the woman upon whom
the abortion was performed or attempted does not give consent to disclosure of her name.
Minn. Stat. § 145.4247, subd. 4. If there is no written consent from the woman, “anyone,
other than a public official, who brings an action under [Minn. Stat. § 145.4247, subd. 1],
shall do so under a pseudonym.” Id. The recently enacted Minn. Stat. § 604.31 (2016)
creates causes of action for nonconsensual di ssemination of private sexual images and
nonconsensual sexual solicitation, and expre ssly requires district courts to allow
confidential filings in cases brought under the statute in order to protect the plaintiff’s
privacy. Minn. Stat. § 604.31, subd. 5. These statutory exce ptions are not applicable to
appellant’s claims.
In support of her argument that the rule s of civil procedure permit a party to sue
under a pseudonym, appellant notes the many Minnesota ci vil cases that have been titled
with a pseudonym. See Doe v. Minn. State Bd. of Med. Exam’rs , 435 N.W.2d 45 (Minn.
1989) (involving allegations of a physician’s medical and sexual misconduct); State ex rel.
Doe v. Madonna, 295 N.W.2d 356 (Minn. 1980) (involving plaintiffs who were confined

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for mental illness); Doe 76C v. Archdiocese of St. Paul & Minneapolis , 801 N.W.2d 203,
(Minn. App. 2011) (involving allegations of sexual abuse that occurred when plaintiff was
a minor), rev’d sub nom. Doe 76C v. Archdiocese of St. Paul , 817 N.W.2d 150 (Minn.
2012); Doe 43C v. Diocese of New Ulm , 787 N.W.2d 680 (Minn. App. 2010) (involving
allegations of sexual abuse); Doe v. F.P., 667 N.W.2d 493 (Minn. App. 2003) (involving
sexual conduct between plaintiff and priest); review denied (Minn. Oct. 21, 2003); Does 1-
22 v. Roman Catholic Bishop of Fall River, 509 N.W.2d 598 (Minn. App. 1993) (involving
allegations of sexual abuse). But these cases do not inform our decision because none of
those cases raised on appeal the question of whether a party may sue using a pseudonym.3
Webster v. Fall, 266 U.S. 507, 511, 45 S. Ct. 148, 149 (1925) (“Questions which merely
lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be
considered as having been so decided as to constitute precedents.”).
Unlike the Doe cases cited by appellant, this case presents a challenge to appellant’s
proposed use of a pseudonym. And the language of rule 10.01 is plain and unambiguous.
The rule requires that a party be identified by name unless an exception applies. No
exception applies here. Therefore, “we follow the rule’s plain language.” Gams, 884
N.W.2d at 616. Appellant is required to provide her name in the pleadings. Although there

3 We observe, by way of dictum, that a defendant facing claims of a highly sensitive nature,
brought by a plaintiff who wishes to use a pseudonym, may choose as a matter of strategy
not to challenge such pseudonym use before the district court. Forcing a person to disclose
her name by insisting on strict application of all rules coul d be viewed in some quarters
and in some cases as unseemly.

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have been Doe proceedings in Minnesota in the past, their ex istence does not “negate the
plain language” of the rule. Madison Equities, Inc., 889 N.W.2d at 573 n.3.
Appellant also argues that Mi nn. R. Civ. P. 26.03 would permit the district court to
grant a request for the use of a pseudonym in the caption of the comp laint. Rule 26.03
concerns discovery. It is not a rule governin g the form of pleadings. It does not apply
here.
Appellant argues that the rules of civil procedure should be applied so as to permit
a party to proceed under a ps eudonym in cases of “utmos t intimacy,” arguing that the
district court should have applied certain “judicially recognized factors” when it considered
her request. Minnesota appellate courts have not adopted a test to be applied by district
courts when considering a pl aintiff’s request to proceed under a pseudonym. Appellant
urges us to adopt something similar to tests used by federal courts when they are faced with
a request for use of a pseudonym. She asks th at we hold that the district court abused its
discretion by failing to consider the federally recognized factors concerning the plaintiff’s
interest in proceeding under a pseudonym.
Similar to Minnesota’s rules, the federal rules provide that “the title of the complaint
must name all the parties.” Fed. R. Civ. P. 10(a). “Where the language of the Federal
Rules of Civil Procedure is similar to langu age in the Minnesota civil procedure rules,
federal cases on the issue are instructive.” T.A. Schifsky & Sons, Inc. v. Bahr Constr., LLC,
773 N.W.2d 783, 787 n.3 (Minn. 2009). But even where the language of a federal rule is
identical to a Minnesota rule, we are not bound by federal in terpretations of the federal
rule. Walsh v. U.S. Bank, N.A., 851 N.W.2d 598, 603 (Minn. 2014). Use of a pseudonym

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in federal courts is “an unusual procedure,” not expressly permitted under Fed. R. Civ. P.
10(a), but is permitted by developed caselaw in “certain limited circumstances,” such as a
case involving a plaintiff’s “[s]i gnificant privacy interests.” W.N.J. v. Yocom , 257 F.3d
1171, 1172 (10th Cir. 2001) (quotations omitted).
A majority of the federal courts of app eals have expressly adopted standards that
govern a district court’s discretion concerni ng whether to allow a plaintiff to proceed
pseudonymously. Doe v. Meglass, 654 F.3d 404, 410 (3d Cir. 2011); Sealed Plaintiff v.
Sealed Defendant, 537 F.3d 185, 189 (2d Cir. 2008); Doe v. Porter, 370 F.3d 558, 560 (6th
Cir. 2004); Doe v. City of Chicago , 360 F.3d 667, 669 (7th Cir. 2004); Does I thru XXIII
v. Advanced Textile Corp., 214 F.3d 1058, 1067-68 (9th Cir. 2000); M.M. v. Zavaras, 139
F.3d 798, 802-03 (10th Cir. 1998); James v. Jacobson , 6 F.3d 233, 242 (4th Cir. 1993);
Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992); Doe v. Stegall, 653 F.2d 180, 185-86
(5th Cir. 1981).
The federal courts of appeals have establ ished a balancing test that considers a
plaintiff’s interest in proceeding under a ps eudonym against the “public’s strong interest
in an open litigation process.” Meglass, 654 F.3d at 408. Part of the purpose of Federal
Rule of Civil Procedure 10(a)’s requirement that the complaint prov ide the name of the
parties is “the principle that judicial procee dings, civil as well as criminal, are to be
conducted in public. Identifyi ng the parties to the proceeding is an important dimension
of publicness. The people have a right to know who is using their courts.” Doe v. Blue
Cross & Blue Shield United of Wis., 112 F.3d 869, 872 (7th Cir. 1997) (citations omitted).
But “[t]he presumption that parties’ identiti es are public information, and the possible

9
prejudice to the opposing party from concealm ent, can be rebutted by showing that the
harm to the plaintiff . . . exceeds the likely harm from concealment.” City of Chicago, 360
F.3d at 669. The various federal courts of appeals that apply a balancing test agree that it
guides a district court’s discretion when considering an exception to Fed. R. Civ. P. 10(a),
but the circuits differ on the precise factors to be applied by a district court when weighing
the claimed harm against the public’s interest. Meglass, 654 F.3d at 408.
Respondent argues that it is the role of the Minnesota Supreme Court and the
statutory rule-making process to govern the adoption of a modification to the current rules
concerning the form of pleadings. The Minnesota Supreme Court has the power to
“regulate the pleadings, practice, procedure, and the forms thereof in civil actions in all
courts of this state.” Minn. Stat. § 480.051 (2016). We agree that creating an exception to
the requirements of Minn. R. Civ. P. 10.01 is the province of the Minnesota Supreme Court
and that the “carefully structured advisory-c ommittee process is the appropriate method
for amending the Rules.” Madison Equities, Inc., 889 N.W.2d at 572-73 (citing Ginsberg
v. Williams, 270 Minn. 474, 48 4-85, 135 N.W.2d 213, 220-21 (1965)). Minn. R. Civ. P.
10.01 is plain and unambiguous on its face. We decline as beyond our proper role
appellant’s invitation to announce a new rule of law adopting some permutation of the
federal standard for a party to proceed pseudonymously.
Nevertheless, and assuming for purposes of discussion that Minnesota were to
recognize an exception to the ru le requiring the parties to be named in the title of the
complaint as federal caselaw has developed that exception, we also conclude on this record
that the district court did not abuse any discretion that it might have had. It considered the

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same general factors considered by federal courts of appeals and concluded that appellant’s
interest in proceeding under a pseudonym did not outweigh the public’s interest in open
proceedings. The United States Supreme C ourt and the Minnesota Supreme Court have
recognized a preference for open court proceedings. Gannett Co. v. DePasquale, 443 U.S.
368, 386 n.15, 99 S. Ct. 2 898, 2908 n.15 (1979) (“For many centuries, both civil and
criminal trials have traditionall y been open to the public.”); In re GlaxoSmithKline PLC ,
699 N.W.2d 749, 755 (Minn. 2005) (recogniz ing the policy that “court proceedings and
documents enjoy a presumption of openness” (quotation omitted)). The district court
considered the fear and harm that appellant claimed she would suffer should her identity
be disclosed to the public, and applied a balancin g test similar to that used in the various
federal courts of appeals. It determined that the claimed harm did not outweigh the public’s
interest in an open proceeding. Even if we were to adopt an exception to rule 10.01 similar
to the federal exception, the district court considered the federal balancing test that
appellant requested, and rejected the request in the exercise of its discretion. Appellant
disagrees with the district court, but has failed to demonstrate reversible error.
Affirmed.