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

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK
------- --- - - - - ------- - - - - --- --- - ------ -- - - - -

JOHN DOE,
Civil Action No:

5:15-cv-322 TJM/DEP

Plaintiff,

-againstCORNELL 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 Plaintiffs Memorandum of Law in Support of Plaintiffs Motion to Proceed Under
Pseudonym And For Protective Order and the Declaration of Kimberly C. Lau, Esq. In Support
of Plaintiffs Motion to Proceed Under Pseudonym And Protective Order.
Dated: New York, New York
March 19, 2015
Respectfully submitted,
NESENOFF & MILTENBERG, LLP
Attorneys for Plaintiff 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 .

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

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

------------------- ----------------------- --x

JOHN DOE,

Civil Action No: 5:15-cv-322 TJM/DEP

Plaintiff,
-against-

CORNELL UNIVERSITY,
Defendant.

--------------------------------------------x
PLAINTIFFS MEMORANDUM OF LAW IN SUPPORT OF
PLAINTIFFS 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. Plaintiffs 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 Plaintiffs Ex 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
Courts request.

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

STATEMENT OF FACTS
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 not intoxicated to the point that she did not know what was going
on.

Case 5:15-cv-00322-TJM-DEP Document 2-1 Filed 03/19/15 Page 3 of 9

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 Plaintiffs hair. Witness N.N. indicated Jane Doe "wasnt 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 "didnt 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 Does apartment.
Some members of this group had to retrieve their belongings dropped off 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

Case 5:15-cv-00322-TJM-DEP Document 2-1 Filed 03/19/15 Page 4 of 9

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 Does
apartment for approximately twenty five minutes. They engaged in conversation in Jane Does
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 Plaintiffs 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
familys 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

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

removed her own dress and underwear, and Plaintiff followed, by removing his pants and
underwear. Jane Doe begin to manipulate Plaintiffs 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 Plaintiffs 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 Does 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 commenced.

Case 5:15-cv-00322-TJM-DEP Document 2-1 Filed 03/19/15 Page 6 of 9

A non-exhaustive list of Cornells wrongful actions throughout Plaintiffs 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
Plaintiffs 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 Does
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 Plaintiffs sanction, Cornell initially determined that expulsion was appropriate, and,
upon reconsideration, modified Plaintiffs 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

Case 5:15-cv-00322-TJM-DEP Document 2-1 Filed 03/19/15 Page 7 of 9

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 Cornells 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 Cornells blind acceptance of the accusations made by Jane Doe, defective
procedures, and unwarranted punishment, Plaintiffs reputation is tarnished, his future career
prospects put on hold and his overall economic future compromised.
As a result of Cornells actions, Plaintiffs 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 Cornells 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.

Case 5:15-cv-00322-TJM-DEP Document 2-1 Filed 03/19/15 Page 8 of 9

ARGUMENT
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 391, 393 (6th Cir. 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." Does I

Thru XXIII v. Advanced Textile Corp., 214 F. 3d 1058, 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 partys fear; (3) the anonymous partys vulnerability to the
retaliation; (4) prejudice to the opposing party; and (5) whether the publics 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. Karadzic, 70 F.3d 232 (2d Cir. 1995) (two Jane Doe plaintiffs); Xuncax v. Gramajo,
886 F. Supp. 162, 170 (D. Mass. 1995) (one Juan Doe plaintiff); Doe v. Islamic Salvation Front,
993 F. Supp. 3 (D.D.C. 1998) (all plaintiffs proceeding as Does).

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

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 Ex Parte Motion to Proceed Under Pseudonym and For Protective Order be
granted.
Dated: March 19, 2015
Respectfully submitted,
NESENOFF & MILTENBERG, LLP
Attorneys for Plaintiff John Doe
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

Case 5:15-cv-00322-TJM-DEP Document 2-2 Filed 03/19/15 Page 1 of 3

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK
------ -- ------ - ------- -- --- - - - -- - --- - - --- - --

JOHN DOE,

Civil Action No: 5:15-cv-322 TJM/DEP

Plaintiff,
-against-

CORNELL UNIVERSITY,
Defendant.

--------- ------------------------- ---------- x

DECLARATION OF KIMBERLY C. LAU, ESQ.
IN SUPPORT OF PLAINTIFFS 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 Plaintiffs 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").

Case 5:15-cv-00322-TJM-DEP Document 2-2 Filed 03/19/15 Page 2 of 3

4.

A non-exhaustive list of Cornells 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 Plaintiffs compliance with same; (ii)
Cornell failed to conduct a thorough and impartial investigation; (iii) Cornell employed a singleinvestigator 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 Does unsubstantiated theory of "sailboat community values" as evidence;
(vii) Cornell relied on an investigation that consisted of a skewed rendition of the facts, cherrypicked 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 Plaintiffs sanction, Cornell initially determined that expulsion was

appropriate, and, upon reconsideration, modified Plaintiffs 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.

Case 5:15-cv-00322-TJM-DEP Document 2-2 Filed 03/19/15 Page 3 of 3

8.

As a result, Plaintiffs 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 Plaintiffs future employment prospects, with no end in sight
9

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

the Complaint under a pseudonym.

WHEREFORE, the Court should grant Plaintiffs 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

March 19, 2015
Is! Kimberly C. Lau

Kimberly C. Lau

Case 5:15-cv-00322-TJM-DEP Document 2-3 Filed 03/19/15 Page 1 of 1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK
-

------------ -----------------------------x

JOHN DOE,

Civil Action No: 5:15-cv-322 TJM/DEP

Plaintiff,
:

-againstCORNELL UNIVERSITY,

ORDER GRANTING
PLAINTIFFS EXPARTE
MOTION TO PROCEED
UNDER PSEUDONYM AND
FOR PROTECTIVE ORDER

Defendant.
--

----------------------------------------x

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 Plaintiffs Ex 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