ALLENTOWN – A Berks County school district has been dismissed from litigation brought by a plaintiff alleging that she was sexually abused as a middle school student by an assistant high school baseball coach.
Plaintiff K.B. initially filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Sept. 28, 2021, versus Conrad Weiser Area School District and Jared Kiscadden.
In her complaint, K.B. alleged that Kiscadden groomed and raped her while she was a student during her 8th and 9th Grade years within the District in 2005 and 2006 – and that the District not only did not discipline him or report him to the authorities, but kept him in its employ until his later departure for unrelated reasons, leading her to suffer post-traumatic stress and resultant substance issues.
Kiscadden has denied even knowing who the plaintiff is, let alone abusing her or any other child, and the District has likewise denied having notice of Kiscadden’s alleged conduct at a time to prevent the harm in question.
On Dec. 24, 2021, K.B. motioned to proceed under a pseudonym and remain anonymous.
In response, Gallagher considered the factors under Doe v. Megless, in order to determine whether K.B. could proceed anonymously.
The factors arguing in favor of confidentiality are:
• The extent to which the identity of the litigant has been kept confidential;
• The bases upon which disclosure is feared or sought to be avoided, and the substantiality of these bases;
• The magnitude of the public interest in maintaining the confidentiality of the litigant’s identity;
• Whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigant’s identities;
• The undesirability of an outcome adverse to the pseudonymous party and attributable to his refusal to pursue the case at the price of being publicly identified; and
• Whether the party seeking to sue pseudonymously has illegitimate ulterior motives.
Meanwhile, the factors opposing confidentiality are:
• The universal level of public interest in access to the identities of litigants;
• Whether, because of the subject matter of this litigation, the status of the litigant as a public figure, or otherwise, there is a particularly strong interest in knowing the litigant’s identities, beyond the public’s interest which is normally obtained; and
• Whether the opposition to pseudonym by counsel, the public or the press is illegitimately motivated.
Gallagher found that “of those nine non-exhaustive factors, four support K.B.’s request, while the remaining factors do not otherwise tip the scale against the request.”
“The [first] factor is, at best, equivocal. At worst, it weighs against K.B.’s request. While K.B. has taken some steps to keep her identity confidential since filing her suit, two paragraphs of the complaint reveal her last name. Further, it appears that K.B.’s relationship with her alleged attacker was ‘common knowledge’ and an ‘open secret’ among her peers. Accordingly, the Court cannot conclude that K.B. has undertaken the sort of ‘substantial efforts to maintain anonymity’ that would otherwise support her request,” Gallagher said.
“This factor weighs in favor of K.B.’s request to proceed anonymously. For this factor to support anonymity, ‘a plaintiff must show both (1) a fear of severe harm, and (2) that the fear of severe harm is reasonable.’ K.B., who has a history of mental illness, articulates a well-founded fear that disclosure of her identity would ‘once again…traumatize her.’ Accordingly, this factor supports K.B.’s request.”
In the third factor, which he explained supported K.B.’s request, Gallagher said that “while the public undoubtedly has a weighty interest in knowing the identities of those who sue public entities like CWSD, equally weighty, if not more so, is the interest in protecting the identities of sexual assault victims so that other victims are not disincentivized to vindicate their rights.”
As to the fourth factor, Gallagher found it weighs against K.B.’s request to proceed anonymously, since her claims are “particularly fact-dependent, raising questions concerning the conduct of K.B.’s alleged attacker and CWSD’s response thereto.”
“Here, there is no indication whether or not K.B. would proceed with this action under her full name. Accordingly, this [fifth] factor weighs neutrally, favoring neither anonymity nor disclosure. The [sixth] factor weighs in favor of K.B.’s request to proceed anonymously. Courts must consider ‘whether the party seeking to sue pseudonymously has illegitimate ulterior motives.’ There is no reason to believe that K.B. has illegitimate ulterior motives. CWSD certainly does not suggest as much,” Gallagher said.
“This [seventh] factor weighs against K.B.’s request to proceed anonymously. While this factor weighs against K.B.’s request, the Court is cognizant of the risk that K.B. ‘would once again be traumatized’ by the disclosure of her identity and the concomitant ‘knowledge that these sensitive and private matters…would be made public and be part of a permanent public record that would follow her forever.”
Gallagher further found that the eighth factor weighs in favor of K.B.’s request to proceed anonymously, since K.B. is not a public figure and the ‘subject matter of this litigation is unfortunately common’, and that the last factor weighed against K.B.’s request to proceed anonymously.
“This [ninth] factor weighs against K.B.’s request to proceed anonymously. There is no indication here that CWSD’s opposition is illegitimately motivated. Rather, CWSD’s opposition is well-briefed and fairly portrays the Megless factors. K.B. also does not suggest anywhere in her briefing that CWSD is illegitimately motivated,” Gallagher said.
After this consideration of all nine factors, Gallagher concluded by granting K.B.’s request to proceed anonymously on Jan. 24.
UPDATE
K.B.’s counsel filed a notice of voluntary dismissal as to the District on Oct. 18.
“Plaintiff K.B., by and thorough her undersigned counsel, and defendant Conrad Weiser Area School District, by and through its undersigned counsel, hereby respectfully request dismissal of the above-captioned action and associated claims with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), each bearing their own costs and fees,” the notice stated.
U.S. District Court for the Eastern District of Pennsylvania case 5:21-cv-04292
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com