DEFENDANT AWARE WOMAN'S OPPOSITION TO PLAINTIFF'S MOTION TO PROCEED ANONYMOUSLY

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
ROE V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
DEFENDANT AWARE WOMAN'S OPPOSITION TO PLAINTIFF'S MOTION TO PROCEED ANONYMOUSLY

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CASE NO.: 99-850-CV-19-A

JANE ROE, II,
Plaintiff,
vs.
AWARE WOMAN CENTER FOR CHOICE, INC., a Florida corporation,
EDWARD W. WINDLE, JR.,
PATRICIA B. WINDLE and
WILLIAM P. EGHERMAN, M.D.,
Defendants.

MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO PROCEED ANONYMOUSLY

Defendants, AWARE WOMAN CENTER FOR CHOICE, INC., EDWARD W. WINDLE, JR. and PATRICIA B. WINDLE, by and through their undersigned attorney, hereby files this their Motion in Opposition to Plaintiff's Motion to Proceed Anonymously:

Jane Roe, II, is a fictitious name utilized by Plaintiff in bringing the instant cause of action, The Complaint filed by Plaintiff attempts to state a cause of action under 18 USC. § 248 (also known as "FACE"). Plaintiff is not challenging the constitutionality of FACE but rather is attempting to collect monetary damages as a result of an alleged violation thereof. The right of a party to proceed anonymously was specifically addressed in Doe v. Frank, 951 F.2d 320 (11th Cir. 1992). In Doe the Court of Appeals affirmed the District Court's Order denying the Plaintiff's Motion to Proceed under Fictitious Name and in doing so set forth the standard that should be utilized in determining when a Plaintiff may be permitted to proceed anonymously. Fed.R.Civ.P. 10(a) requires a complaint to include the names of all parties and as stated in Doe is required to protect the publics interest in knowing all the facts involved. Id. at 321. In Doe the Appellate Court acknowledged courts having permitted Plaintiffs to proceed in cases involving mental illness, homosexuality and transexuality recognizing there are cases where the social stigma has been shown to overcome the presumption of openness in Court proceedings. Id. at 323. The Appellate Court went on to state:

The ultimate test for permitting a Plaintiff to proceed anonymously is whether the Plaintiff has a substantial privacy right which outweighs a "customary and constitutionally - embedded presumption of openness in judicial proceedings." . . . It is the exceptional case in which a Plaintiff may proceed under a fictitious name. Id. at 223.

In reviewing the circumstances of the instant case, one can see that Plaintiff is not challenging a governmental activity or admitting an intention to engage in illegal conduct or is the subject of social stigma rather Plaintiff is attempting to keep the fact that she underwent an abortion private. This fact alone which may indeed subject the Plaintiff to embarrassment is insufficient for Plaintiff to overcome the constitution presumption of openness. Plaintiff in this cause has filed suit seeking affirmative relief specifically monetary damages. Plaintiff is an individual who voluntarily sought an abortion procedure, signed an informed consent forms for the procedure and during the procedure unfortunately suffered medical complications which required subsequent medical care. While an abortion procedure could be construed to be personal in nature, there has been no showing by affidavit or verified pleading that Plaintiff has been the subject of physical threats or harm or that her right to proceed under her real name would prejudice her claim.

Plaintiff argues in support of her motion that she was a victim of sexual battery pursuant to Florida Statute and is therefore entitled to proceed anonymously. This agreement is wholly without merit, is scandalous, impertinent, inappropriate, false, and has not been alleged in the complaint. There is absolutely no claim pending by Plaintiff to any law enforcement authority or Court that she was a victim of sexual battery. Plaintiff counsel's far reaching attempt to now describe this instant action as a crime and a rape in his memorandum of law is without merit and should be stricken.

In seeking to proceed anonymously Plaintiff is attempting to use her anonymity to publicize this case in the media, i.e., the internet (see www.forerunner.com). This website contains a complete up to date docket of the case, the names and address of the attorneys, photographs of Dr. Egherman and the 911 transcript. Plaintiff is attempting to use the benefits of a fictitious name as a sword rather than as a shield. It is intended as a shield to protect a parties privacy in certain situations.

Permitting the Plaintiff to proceed anonymously further raises the potential legal issue of res judicata. The Plaintiffs counsel claims defense counsel acknowledged the true identity of the Plaintiff at the Case Management Conference, however, it was represented by the undersigned at the Case Management Conference that the undersigned believed he knew the identity of the Plaintiff but was not sure nor had this been verified. Interrogatory questions have been directed to Plaintiff for this very reason, however, no answers have been received. Additional complications may arise if Plaintiff proceeds under a fictitious name regarding the issuance of subpoenas for medical records, taking depositions, etc. Plaintiff has put her medical condition at issue and has failed to set forth any reasons to overcome the constitution presumption of openness.

For the aforementioned reasons Plaintiff's Motion to Proceed Anonymously should be denied.

Respectfully submitted,
ANDREW W. MENYHART, ESQUIRE <signed>
Florida Bar No. 0202754
Stevens & Menyhart, P.A.
60 McLeod Street
P. O. Box 541760
Merritt Island, FL 32954-1760
Tel.: (407) 453-2221
Fax: (407) 459-3024
Attorneys for Defendants

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by U.S. Mail this 19 day of November, 1999 to Christopher F. Sapp, Esq., Attorney for Plaintiff, P. O. Box 1012, Lehigh Acres, FL 33970 and Richard E. Ramsey, Esq., Attorney for Defendant, William Philip Egherman, M.D., P. O. Box 2753, Orlando, FL 32802-2753.

ANDREW W. MENYHART, ESQUIRE <signed>