John DOE, Plaintiff-Appellant, v. VILLAGE OF DEERFIELD, et al., Defendants-Appellees.
No. 15-2069.
United States Court of Appeals, Seventh Circuit.
Submitted Feb. 25, 2016. Decided April 12, 2016.
819 F.3d 372
Additionally, even if one assumes that Weimert‘s misrepresentations to the Burkes and Kalka did not, standing alone, rise to the level of criminal wire fraud, they do constitute such when combined with his statements to the IDI board. In United States v. Seidling, we held that wire fraud does not require that the false statement be made directly to the victim of the scheme—here, the IDI board. 737 F.3d at 1160. Seidling involved a misrepresentation to a third party that furthered the scheme to defraud the victim. Id. As in Seidling, Weimert‘s misrepresentations to the Burkes and Kalka were integral to the success of his scheme to defraud IDI. Thus, no matter how insignificant these misrepresentations may have been to the Burkes and Kalka, I conclude that they still satisfy the requisite materiality element of wire fraud and support Weimert‘s conviction.
Beyond whether this is properly viewed as an arms-length, three-party transaction, I am further concerned with the majority‘s fiduciary duty analysis. The parties did not address the issue of fiduciary duty and, in any event, it is not central to the criminal wire fraud analysis. See United States v. Kwiat, 817 F.2d 440, 444 (7th Cir.1987). What is critical is Weimert‘s position of trust as IDI‘s president.
I also find questionable the majority‘s framing of Weimert‘s misrepresentations as a permissible employment compensation negotiating strategy. I do not view this as a situation in which Weimert, who had not been promised any sort of compensation arising out of the sale of Chandler Creek, was negotiating the terms of his employment at arms-length with the IDI board. Instead, Weimert was simultaneously representing and deceiving the IDI board for his own pecuniary gain.
For the foregoing reasons, I respectfully dissent and would affirm the judgment of conviction.
Ellen Kornichuk Emery, Lucy B. Bednarek, Ancel, Glink, Diamond, Bush, Dicianni & Krafthefer, P.C., Robert A. Habib, Law Office of Robert Habib, Chicago, IL, for Defendants-Appellees.
Before BAUER, MANION, and KANNE, Circuit Judges.
BAUER, Circuit Judge.
This case presents a matter of first impression for us: whether an order denying leave to proceed anonymously is immediately appealable. Guided by the reasoning of some of our sister circuits, we find that an order denying leave to proceed anonymously does fall within the collateral order doctrine and is immediately appealable.
An individual filed a lawsuit in federal district court naming the Village of Deerfield, Lisa Batchelder, and Gary Zalesny as defendants (collectively “defendants-appellees“). In his caption, the individual plaintiff identified himself as “John Doe,” which is not his real name. The defendants-appellees moved to dismiss Doe‘s complaint for, among other things, failure to provide his true name in the caption of his complaint. The district court granted without prejudice the motion to dismiss and denied Doe‘s motion for leave to proceed anonymously. Doe now appeals these rulings. Although Doe has won the jurisdictional battle, he has lost the war; while we do have jurisdiction to hear Doe‘s appeal, we find that Doe has failed to show exceptional circumstances justifying anonymity. Therefore, we affirm the orders of the district court.
I. BACKGROUND
Doe filed his complaint on September 23, 2014, asserting an equal protection claim under
All three defendants-appellees filed motions to dismiss Doe‘s complaint in January and February 2015, based in part upon Doe‘s failure to comply with
II. DISCUSSION
We first consider whether we have jurisdiction to hear Doe‘s appeal, which is a matter of first impression in our circuit. Generally, our jurisdiction is limited to “final decisions of the district courts.”
However, our inquiry does not end there. In Cohen v. Beneficial Industrial Loan Corporation, the United States Supreme Court enunciated the collateral order doctrine, which carves out a “small class” of non-final orders that are deemed final and immediately appealable. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); see also Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009) (citation omitted). To fall within the collateral order doctrine, the non-final order must: (1) be conclusive on the issue presented; (2) resolve an important question separate from the merits of the underlying action; and (3) be “effectively unreviewable” on an appeal from the final judgment of the underlying action. Mohawk, 558 U.S. at 106 (citation and quotation omitted); see also Abelesz v. Erste Grp. Bank AG, 695 F.3d 655, 659 (7th Cir.2012) (citation omitted). These three elements giving rise to collateral review are to be “stringent[ly]” applied, lest the collateral order doctrine exception swallow the whole of the final order doctrine. Herx v. Diocese of Fort Wayne-South Bend, Inc., 772 F.3d 1085, 1088-89 (7th Cir.2014) (quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) and Will v. Hallock, 546 U.S. 345, 350, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006)); see also Herx, 772 F.3d at 1089 and Abelesz, 695 F.3d at 659 (collateral order exception is “narrow” and “modest” in scope).
In determining whether an order falls under the collateral order doctrine, we are to examine “the entire category to which a claim belongs,” rather than “engag[ing] in an individualized jurisdictional inquiry.” Mohawk, 558 U.S. at 107 (citations and quotations omitted). Thus, for jurisdiction purposes, we must determine whether denials of motions to proceed anonymously fall under
As mentioned above, we have not yet had the opportunity to decide whether a denial of a motion for leave to proceed anonymously falls within the collateral order exception. But, a number of our sister circuits have had such an opportunity and have found in the affirmative. See Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067 (9th Cir.2000) (“Does I thru XXIII“); M.M. v. Zavaras, 139 F.3d 798, 802 (10th Cir.1998); James v. Jacobson, 6 F.3d 233, 234 (4th Cir.1993); Doe v. Frank, 951 F.2d 320, 322 n. 2 (11th Cir.1992) (based on adoption of 5th Circuit precedent); S. Methodist Univ. Ass‘n v. Wynne & Jaffe, 599 F.2d 707, 712 (5th Cir.1979).
We join our sister circuits and determine that, as a class, denials of motions for leave to proceed anonymously are immediately appealable because they meet the three elements of the collateral order doctrine. First, they are conclusive on the issue presented; such orders conclusively preclude a party‘s ability to proceed anonymously. Mohawk, 558 U.S. at 106 (citation and quotation omitted); Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 276, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988); Does I thru XXIII, 214 F.3d at 1066. Second, the question of anonymity is separate from the merits of the underlying action. Mohawk, 558 U.S. at 106 (citation and quotation omitted); Does I thru XXIII, 214 F.3d at 1066. Whether a party officially utilizes a fictitious name has no bearing on the litigation process and the resolution of the underlying merits; district courts have various means, including protective orders and placing documents under seal, of preventing a party‘s name from reaching the public domain. Third, we are persuaded by the reasoning of the Ninth Circuit that a district court‘s decision would be “effectively unreviewable” on appeal from a final decision in the case. If parties were required to litigate the case through to a final judgment on the merits utilizing their true names, the question of whether anonymity is proper would be rendered moot. Does I thru XXIII, 214 F.3d at 1066 (“Appellate review of the district court order [denying anonymity] after the district court renders a final decision on the [merits of the underlying claim] will have no legal or practical value.“). We agree and hold that orders denying motions for leave to proceed anonymously fall under the collateral order doctrine and are immediately appealable.
Despite the fact that we have not previously had the opportunity to consider a denial of a motion for leave to proceed anonymously directly, we have established the appropriate legal standard for reviewing the merits of an anonymity claim on appeal from other final orders. See Doe v. City of Chicago, 360 F.3d 667, 669-70 (7th Cir.2004); Doe v. Blue Cross & Blue Shield United of Wis., 112 F.3d 869, 872 (7th Cir.1997). Specifically, we review the district court‘s denial of Doe‘s motion for abuse of discretion only. Doe ex rel. Doe v. Elmbrook Sch. Dist., 658 F.3d 710, 721 (7th Cir.2011) (citations omitted), aff‘d en banc in relevant part, 687 F.3d 840, 842-43 (7th Cir.2012); K.F.P. v. Dane Cty., 110 F.3d 516, 519 (7th Cir.1997) (citation omitted). There is no abuse of discretion “if the district court ‘applied the correct legal standard and reached a reasonable decision based on facts supported by the record.‘” Elmbrook, 658 F.3d at 721 (quoting Pruitt v. Mote, 503 F.3d 647, 658 (7th Cir.2007)).
We have repeatedly voiced our disfavor of parties proceeding anonymously,
In some situations, a litigant‘s use of a fictitious name is warranted. Such situations include protecting the identities of “children, rape victims, and other particularly vulnerable parties.” Blue Cross, 112 F.3d at 872. Further, a party‘s allegation of fear of retaliation “is often a compelling ground” in favor of anonymity. Chicago, 360 F.3d at 669 (citations omitted). For instance, we affirmed the use of fictitious names where plaintiffs, minor children and their parents, had legitimate fears of future retribution in a case involving religious freedom. Elmbrook, 658 F.3d at 723-24.
However, we have found anonymity unjustified in other situations. For example, we found the plaintiff‘s fear of disclosure of his medical and psychiatric information through litigation was insufficient to warrant the plaintiff‘s anonymity. Blue Cross, 112 F.3d at 872. We have also questioned whether a sexual harassment claim, standing alone without any allegations of rape or torture or fear of retaliation, would justify anonymity. Chicago, 360 F.3d at 669; see also Coe v. Cty. of Cook, 162 F.3d 491, 498 (7th Cir.1998) (party‘s embarrassment of past “immoral or irresponsible” behavior insufficient basis for anonymity).
Here, anonymity is not justified, and the district court did not abuse its discretion in denying Doe‘s motion for leave to proceed anonymously. The district court applied the correct legal standard to the facts present in the record: it balanced Doe‘s stated reasons supporting anonymity—that having to proceed under his true name would defeat the purpose of his criminal expungement and any resulting embarrassment he might feel—against the public‘s and parties’ rights to the identities of parties and the potential prejudice to the opposing parties. The district court gave a detailed, well-reasoned opinion on the issue of anonymity, finding Doe had not presented exceptional circumstances justifying use of a fictitious name in a civil suit he voluntarily filed. We find no abuse of discretion on the part of the district court in denying Doe‘s motion for leave to proceed anonymously. The district court was correct in dismissing Doe‘s complaint without prejudice, preserving Doe‘s ability to refile under his true name.
In conclusion, we reiterate our
III. CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
BAUER
CIRCUIT JUDGE