Malibu Media LLC v. Does 1-14
OPINION AND ORDER DENYING 12 MOTION to Quash by Defendant John Does 1-14; 13 MOTION to Sever John Doe #6 by Defendant John Does 1-14; 17 MOTION to Sever of John Doe No. 7 by Defendant John Does 1-14. Signed by Magistrate Judge Roger B Cosbey on 12/3/12. (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
MALIBU MEDIA, LLC,
JOHN DOES 1-14,
CAUSE NO. 1:12-CV-263
OPINION AND ORDER
This copyright infringement action is before the Court on Defendant John Doe No. 6’s
Motions to Quash (Docket # 12) and to Sever Does 2-14 (Docket # 13) and Defendant John Doe
No. 7’s Motion to Sever John Doe Defendants 2-14 (Docket # 17). Plaintiff Malibu Media,
LLC, responded to all three motions. (Docket # 34, 35, 37.) Although Doe No. 7 replied in
support of his motion to sever (Docket # 40), Doe No. 6 did not submit a reply to either of his
motions, and the time to do so has since passed. As such, the motions are now ripe for ruling.
For the following reasons, the motion to quash and both motions to sever will be DENIED.
II. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Malibu Media, LLC, a producer of adult entertainment content, owns the
copyright for a motion picture entitled “Romantic Memories.” (Compl. ¶ 11; Def. John Doe No.
7’s Mot. to Sever John Doe Defs. 2-14 (“Doe No. 7’s Mot. to Sever”) 1.) Plaintiff alleges that
each of the Doe Defendants unlawfully downloaded and shared this copyrighted work using the
BitTorrent file sharing protocol. (See Compl. ¶¶ 10, 33.) According to the Complaint,
BitTorrent is one of the most common peer-to-peer file sharing protocols used for distributing
large amounts of data. (Compl. ¶ 14.) It is able to distribute a large file without creating a heavy
load on the source computer and network by allowing users to join a “swarm” of host computers
to download and upload from each other simultaneously. (Compl. ¶ 15.)
Plaintiff retained computer investigators to identify the Internet Protocol (“IP”) addresses
associated with the people using the BitTorrent protocol to reproduce or distribute its
copyrighted works, including “Romantic Memories,” which was identified by a “Unique Hash
Number.” (Compl. ¶ 36; see Compl.¶¶ 38-39.) The investigation revealed that the 14 IP
addresses attached as Exhibit A to the Complaint had copied a piece of “Romantic Memories,”
as identified by its Unique Hash Number. (Compl. ¶¶ 38-39; see Compl. Ex. A.) The
individuals using these 14 IP addresses engaged in these transactions on different dates or times
between May 22, 2012, and June 23, 2012. (See Compl. Ex. A.) But Plaintiff maintains that
each Defendant was part of the same series of transactions (Compl. ¶ 39(B)), stating that “each
Defendant peer member participated in the same swarm and directly interacted and
communicated with other members of that swarm through digital handshakes, the passing along
of computer instructions, uploading and downloading, and by other types of transmissions”
(Compl. ¶ 33).
As such, on July 30, 2012, Plaintiff brought a single copyright infringement suit against
all 14 Doe Defendants, alleging that each Defendant was jointly and severally liable for the
infringing activities of each of the other Defendants; that the infringement was part of a series of
transactions, involving the exact same torrent file of the copyrighted work, and was
accomplished by Defendants acting in concert with each other; and that there were common
questions of law and fact. (Compl. ¶ 10.) Because the Defendants were only known by their IP
addresses, Plaintiff—after receiving leave from this Court to do so (Docket # 5, 6)—served third
party subpoenas on the Internet Service Providers (“ISPs”) (Comcast and Embarq) that assigned
these IP addresses to discover the name, address, telephone number, e-mail address, and Media
Access Control address of the Defendant associated with each IP address (see Docket # 32, 33).
Doe No. 6 subsequently moved both to quash the subpoena directed to Comcast (Docket
# 12) and to sever Does 2-14 from the action (Docket # 13). Doe No. 7 also filed a motion to
sever Does 2-14. (Docket # 17.) The Court will first address the motion to quash and then will
consider both motions to sever.
III. THE MOTION TO QUASH
Although Plaintiff has issued two subpoenas in this case, one directed to Comcast
Corporation (Docket # 32) and a second directed to Embarq Corporation (Docket # 33), Doe No.
6 moves to quash only the subpoena directed to Comcast, which seeks the subscriber information
of Does 1-13 (see Docket # 12-1).
Federal Rule of Civil Procedure 45(a) permits the issuance of subpoenas to produce
documents and other tangible things in the custody or control of a person. Richter v. Mut. of
Omaha Ins. Co., No. 06-Misc.-011, 2006 WL 1277906, at *2 (E.D. Wis. May 5, 2006); see Fed.
R. Civ. P. 45(a). Under Rule 45, a court must quash or modify a subpoena if it fails to allow a
reasonable time to comply; requires a person who is neither a party nor a party’s officer to travel
more than 100 miles; requires disclosure of privileged or other protected matter, if no exception
or waiver applies; or subjects a person to undue burden. Fed. R. Civ. P. 45(c)(3)(A)(i)-(iv).
Furthermore, to protect a person subject to or affected by a subpoena, a court may quash a
subpoena if it requires disclosure of a trade secret or other confidential information, disclosure of
an unretained expert’s opinion, or a person who is neither a party nor a party’s officer to incur
substantial expenses to travel more than 100 miles to attend trial. Fed. R. Civ. P. 45(c)(3)(B)(i)(iii).
The party seeking to quash a subpoena under Rule 45(c)(3)(A) bears the burden of
demonstrating that the information sought is privileged or subjects a person to an undue burden.
Illiana Surgery & Med. Ctr. LLC v. Hartford Fire Ins. Co., No. 2:07 cv 3, 2012 WL 776694, at
*3 (N.D. Ind. Mar. 7, 2012) (citation omitted); see Pettit v. City of Columbus, No.
104CV1464JDTTAB, 2005 WL 2218373, at *1 (S.D. Ind. Sept. 9, 2005); Jones v. Hirschfield,
219 F.R.D. 71, 74-75 (S.D.N.Y. 2003) (“The burden of persuasion in a motion to quash a
subpoena . . . is borne by the movant.”); Wahuchop v. Domino’s Pizza, Inc., 138 F.R.D. 539, 543
(N.D. Ind. 1991). As with other discovery issues, deciding whether to grant a motion to quash
lies within the sound discretion of the district court. Sullivan v. Gurtner Plumbing, Inc., No. 11cv-6261, 2012 WL 896159, at *1 (N.D. Ill. Mar. 13, 2012) (citing United States v. Ashman, 979
F.2d 469, 495 (7th Cir. 1992)).
Although Plaintiff does not raise the issue, the Court will briefly address Doe No. 6’s
standing to quash a subpoena to Comcast, a third party to this action. As a general rule, “a party
lacks standing to quash a subpoena issued to a nonparty unless the party has a claim of privilege
attached to the information sought or unless it implicates a party’s privacy interests.” Hard
Drive Prods. v. Does 1-48, No. 11 CV 9062, 2012 WL 2196038, at *3 (N.D. Ill. June 14, 2012);
see Brady v. Cent. Ind. Reg’l Blood Ctr. Inc., No. 1:99-MC-19, 1999 WL 33912610, at *1 (N.D.
Ind. Oct. 6, 1999) (citations omitted); see also United States v. Raineri, 670 F.2d 702, 712 (7th
Cir. 1982) (“A party has standing to move to quash a subpoena addressed to another if the
subpoena infringes upon the movant’s legitimate interests.”).
As such, in similar cases,
courts have found that a Doe defendant accused of copyright infringement has standing to object
to a subpoena issued to ISPs, even where the movant’s privacy interest is “minimal at best.”
Sunlust Pictures, LLC v. Does 1-75, No. 12 C 1546, 2012 WL 3717768, at *2 (N.D. Ill. Aug. 27,
2012) (quoting Malibu Media, LLC v. Does 1-25, No. 12-cv-0362-LAB (DHB), 2012 WL
2367555, at *2 (S.D. Cal. June 21, 2012)); see Third Degree Films, Inc. v. Does 1-2010, No.
4:11 MC 2, 2011 WL 4759283, at *5 (N.D. Ind. Oct. 6, 2011) (finding that a Doe defendant had
standing to assert his privacy interest in the information requested from the ISP).
Here, because Doe No. 6 “has at least a minimal privacy interest in the information
requested by the subpoena, he has standing to object.” Sunlust Pictures, 2012 WL 3717768, at
*2; see Third Degree Films, Inc. v. Does 1-108, No. DKC 11-3007, 2012 WL 669055, at *2 (D.
Md. Feb. 28, 2012) (“[H]owever minimal or ‘exceedingly small’ the Doe Defendants’ interests
here are, parties need only have ‘some personal right or privilege in the information sought’ to
have standing to challenge a subpoena to a third party.”).
Having determined that Doe No. 6 has standing to challenge the subpoena directed to
Comcast, the Court turns to his arguments in favor of quashing that subpoena. Doe No. 6 first
argues that he did not infringe on Plaintiff’s copyrighted work and that Plaintiff “has not shown a
preponderance of evidence that [he] should even be a named defendant in this case.” (Mot. to
Quash & Vacate Subpoena to Produc. Docs., Information, or Objects or to Permit Inspection of
Premises in a Civil Action (“Mot. to Quash”) ¶¶ 1-2.) Doe No. 6 also contends that Plaintiff’s
method of identifying alleged infringers through their IP addresses is “imprecise” and cannot
reveal the identity of the alleged infringer because someone else may have violated Plaintiff’s
copyright while using Doe No. 6’s IP address. (See Mot. to Quash ¶¶ 2-3.)
But all of these arguments essentially amount to a denial of liability, which “is not
relevant as to the validity or enforceability of a subpoena, but rather should be presented and
contested once parties are brought properly into the suit.” Hard Drive Prods., 2012 WL
2196038, at *4; accord First Time Videos, LLC v. Does 1-18, No. 4-11-cv-69-SEB-WGH, 2011
WL 4079177, at *2 (S.D. Ind. Sept. 13, 2011) (quoting First Time Videos v. Does 1-500, 276
F.R.D. 241, 251 (N.D. Ill. 2011)). Furthermore, such objections to the relevancy of the subpoena
based on the possibility that Doe No. 6’s IP address may have been used by someone else to
violate the copyright are likewise “irrelevant and premature because they go to the merits of
Plaintiff’s claims and do not address the propriety vel non of the subpoenas.” Third Degree
Films, Inc., 2011 WL 4759283, at *5 (quoting West Coast Prods., Inc. v. Does 1-5829, 275
F.R.D. 9, 13 (D.D.C. 2011)). And it is Doe No. 6, not Plaintiff, who bears the burden of
establishing that the subpoena falls within the Rule 45 criteria for quashing a subpoena. Hard
Drive. Prods., 2012 WL 2196038, at *5 (citation omitted). A denial of liability is simply not
among those criteria. Id. (citing Fed. R. Civ. P. 45(c)(3)(A)).
Doe No. 6 further takes issue with the fact that “no DMCA take-down notices were
issued,” argues that the subpoena is being used as a tool to give Plaintiff “access to unreasonable
extended searches and seizure of any and all information they see fit,” and invokes the Fourth
and Fifth Amendments to the United States Constitution. (Mot. to Quash ¶¶ 4-7), wholly
irrelevant arguments that have no bearing on whether the subpoena should be quashed under
As evidenced above—and as Plaintiff suggests (see Pl.’s Mem. in Opp. to Mot. to Quash
& Vacate Subpoena to Produc. Docs., Information, or Objects or to Permit Inspection of
Premises in a Civil Action 2)—missing from Doe No. 6’s motion to quash is any argument that
any of the grounds for quashing a subpoena under Rule 45(c)(3)(A) are met here. The two
potentially applicable bases are that the subpoena “requires disclosure of privilege or protected
matter” or “subjects a person to an undue burden.” Fed. R. Civ. P. 45(c)(3)(A).
But this latter argument—that a subpoena directed to an ISP for an anonymous
defendant’s Internet subscriber information imposes an undue burden on that defendant—has
been consistently rejected by courts because such a subpoena does not require the defendant to
produce anything. See, e.g., Sunlust Pictures, 2012 WL 3717768, at *2 (“The subpoena does not
impose an undue burden on Doe because he is not the party directed to respond to it.”); First
Time Videos, 2011 WL 4079177, at *1 (“[T]he issuance of a subpoena to the Internet Service
Provider of putative defendants does not create an undue burden on the putative defendants
because they are not required to produce anything.”); see also Third Degree Films, 2011 WL
4759283, at *5 (citing First Time Videos, 276 F.R.D. at 250; Voltage Pictures, LLC v. Does 15,000, 818 F. Supp. 2d 28, 36 (D.D.C. 2011)) (holding that “[a] Doe defendant lacks standing to
quash a subpoena on the ground of undue burden when the subpoena is directed to the ISP rather
than to him” because the subpoena requires the ISP, and not the Doe Defendant, to produce
As to the other potential basis for quashing the subpoena, Doe No. 6 argues that fulfilling
the subpoena would invade his privacy and jeopardize his identity, which, construed liberally,
could amount to an argument that the subpoena requires “disclosure of privilege or protected
matter.” (See Mot. to Quash ¶¶ 5, 7.) This argument, however, is ultimately unpersuasive as
courts have consistently held that “there is no expectation of privacy in Internet subscriber
information because it has already been exposed to a third party, the Internet Service Provider.”
First Time Videos, 2011 WL 4079177, at *1 (citing Courtright v. Madigan, No. 09-cv-208-JPG,
2009 WL 3713654, at *2 (S.D. Ill. Nov. 4, 2009)); accord AF Holdings LLC v. Doe, No. 12 C
4222, 2012 WL 5520861, at *2 (N.D. Ill. Nov. 13, 2012); Hard Drive Prods., 2012 WL
2196038, at *4; Third Degree Films, 2011 WL 4759283, at *3. Additionally, when there is an
allegation of copyright infringement, an individual has no protected privacy interest in their
name, address, phone number, e-mail address, or Media Access Control address. First Time
Videos, 2011 WL 4079177, at *1. As such, Doe No. 6’s argument that fulfilling the subpoena
would invade his privacy and jeopardize his identity is insufficient to quash the subpoena as he
has no expectation of privacy in the identifying information the subpoena seeks from the ISP.
Therefore, because Doe No. 6 has not met his burden of showing that the subpoena meets
the criteria of Rule 45(c)(3)(A), his motion to quash the subpoena directed at Comcast will be
IV. THE MOTIONS TO SEVER
Both Doe No. 6 and Doe No. 7 moved to sever Does 2-14 from this case, arguing that
joinder is inappropriate under Federal Rule of Civil Procedure 20. Doe No. 7 further argues that,
even if the Doe Defendants are properly joined, the Court should exercise its discretion to sever
them under Rule 21. The Court will address each of these arguments in turn.
A. Permissive Joinder Under Rule 20
In their motions (Docket # 13, 17), both Doe No. 6 and Doe No. 7 maintain that Does 214 should be severed because there is no single transaction or series of closely related
transactions involved in this case as is required for permissive joinder under Rule 20. (See Doe
No. 6’s Mot. to Sever Does 2-14 ¶ 1; Doe No. 7’s Mot. to Sever 6-7.) Doe No. 7 further claims
that the temporal gaps between the transactions here—the 14 transactions occurred at different
days or times between May 22, 2012, and June 23, 2012—suggest that the Doe Defendants did
not act in concert with each other. (Doe No. 7’s Mot. to Sever 7 (citations omitted).)
In support of joinder, Plaintiff responds that the Doe Defendants’ infringement was
committed through the same series of transactions as its investigator was able to receive a piece
of the copyrighted movie from each Defendant and because each Defendant used BitTorrent and
the computers of others to download the same file and allowed others to access their computer to
receive it. (Pl.’s Mem. in Opp. to Def. John Doe No. 7’s Mot. to Sever John Doe Defs. 2-14
(“Pl.’s Resp. to Doe No. 7's Mot. to Sever”) 3-4.) Moreover, Plaintiff maintains that, despite the
temporal gap between the transactions, Defendants are properly joined because their actions
directly relate back to the same initial seed of the swarm and their alleged infringement further
advances the series of infringements that began with that initial seed and continued through other
infringers. (Pl.’s Resp. to Doe No. 7’s Mot. to Sever 6-7.)
Federal Rule of Civil Procedure 20 states that persons may join in one action as
defendants if: “(A) any right to relief is asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same transaction, occurrence, or series of
transactions or occurrences; and (B) any question of law or fact common to all defendants will
arise in the action.” Fed. R. Civ. P. 20(a)(2). In short, to join persons as defendants in an action
under Rule 20, “there must be both a right to relief arising out of the same transaction or
occurrence and a question of law or fact common to all the [defendants].” Teklehaimanot v.
Park Ctr., Inc., No. 1:08-CV-220, 2009 WL 799505, at *1 (N.D. Ind. Mar. 24, 2009) (citations
and internal quotation marks omitted); see also In re Monon Tel. Co., 218 F.R.D. 614, 616 (N.D.
Ind. 2003). “Federal policy favors joinder, and the district court has wide discretion when
deciding whether joinder of parties is proper.” Teklehaimanot, 2009 WL 799505, at *1 (citation
omitted); see Monon Tel., 218 F.R.D. at 616 (“When the requirements of Rule 20(a) are satisfied
and joinder will not result in undue prejudice to a party, discretion is exercised in favor of
joinder.” (citing Anderson v. Montgomery Ward & Co., 852 F.2d 1008, 1011 (7th Cir. 1988))).
Furthermore, “[p]ermissive joinder under Rule 20 are to be liberally construed to promote
convenience and judicial economy.” Patrick Collins, Inc. v. John Does 1-9, No. 12-CV-3161,
2012 WL 4321718, at *2 (C.D. Ill. Sept. 18, 2012) (citations omitted).
Courts throughout the country are split over whether joining many anonymous
defendants alleged to have participated in a single BitTorrent “swarm” in a single suit is
appropriate. Sunlust Pictures, 2012 WL 3717768, at *3; compare, e.g., In re BitTorrent Adult
Film Copyright Infringement Cases, Nos. 11-3995(DRH)(GRB), 12-1147(JS)(GRB), 121150(LDW)(GRB), 12-1154(ADS)(GRB), 2012 WL 1570765, at *11 (E.D.N.Y. May 1, 2012)
(finding joinder inappropriate because, among other reasons, allegations were insufficient to
show that defendants actually shared file bits with one another), SBO Pictures, Inc. v. Does 1-57,
No. RWT 12cv22, 2012 WL 1415523, at *2 (D. Md. Apr. 20, 2012) (denying joinder and stating
that “the better-reasoned decisions have held that where a plaintiff has not plead that any
defendant shared file pieces directly with one another, the first prong of the permissive joinder is
not satisfied”), and Hard Drive Prods., Inc. v. Does 1-188, 809 F. Supp. 2d 1150, 1164 (N.D.
Cal. 2011) (finding no concerted action were “Plaintiff does not plead facts showing that any
particular defendant illegally shared plaintiff’s work with any other particular defendant”), with
Pac. Century Int’l v. Does 1-31, No. 11 C 9064, 2012 WL 2129003, at *2 (N.D. Ill. June 12,
2012) (allowing joinder where the anonymous defendants participated in the same swarm),
Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 244 (S.D.N.Y. 2012) (declining to sever where
“the Doe Defendants were trading the exact same file as part of the same swarm”), and First
Time Videos, 276 F.R.D. at 252 (allowing joinder where putative defendants were alleged to
have reproduced copyrighted materials and continued to distribute data to others in the swarm).
As to the first joinder requirement—that the claim against each Defendant arose out of
the same transaction or series of transactions—courts denying joinder in the BitTorrent context
have “generally done so because the plaintiff failed to allege that the defendants simultaneously
participated in a single swarm or that the defendants distributed files directly among
themselves.” Sunlust Pictures, 2012 WL 3717768, at *4. But here, Plaintiff alleges that each
Defendant “participated in the same swarm and directly interacted and communicated with other
members of that swarm through digital handshakes, the passing along of computer instructions,
uploading and downloading, and by others types of transmissions” (Compl. ¶ 33 (emphasis
added)) and, using the BitTorrent protocol, “copied a piece of Plaintiff’s copyrighted Work
identified by the Unique Hash Number” (Compl. ¶ 39(A)). All of these transactions occurred
over a period spanning only a month. (See Compl. Ex. A (indicating that the transactions
occurred between May 22, 2012, and June 23, 2012).)
At this stage of the litigation, Plaintiff’s allegations that all the Defendants infringed on
its copyright by “uploading and downloading the same unique copy of the Work with the same
Unique Hash Number through the same BitTorrent protocol that required each participant to
send and receive portions of the Work in order to download and view the entire Work” are
sufficient to assert a claim against each Defendant arising from the same series of transactions.
Patrick Collins, 2012 WL 4321718, at *2; see also Third Degree Films, 2012 WL 669055, at *5
(finding that, based on allegations that the Doe defendants swapped the same exact file and
evidence connecting the IP addresses to the same exact “hash,” it was reasonable to conclude
that each of the Doe defendants may have directly facilitated the download of the work by
another of the Doe defendants and was thus part of the same transaction or series of
transactions); MGCIP v. Does 1-316, No. 10 C 6677, 2011 WL 2292958, at *2 (N.D. Ill. June 9,
2011) (“[G]iven the decentralized nature of BitTorrent’s file-sharing protocol—where individual
users distribute the same work’s data directly to one another without going through a central
server—the Court finds that sufficient facts have been [pled] to support the joinder of the
putative defendants at this time.”).
Moreover, based on Plaintiff’s allegations that Defendants used the 14 IP addresses to
upload and download a copy of the copyrighted work that had the same Unique Hash Number,
“this means that the copy that each Defendant downloaded ultimately came from a single source.
Given the policy in favor of joinder, this is sufficient at this time to deny severance.” Patrick
Collins, 2012 WL 4321718, at *2; see also Digital Sin, 279 F.R.D. at 244 (declining to sever
defendants where the Plaintiff alleged that the Doe defendants were trading the exact same file
as part of the same swarm). That these transactions occurred at varying times spanning just a
month does not change this outcome. See Pac. Century Int’l, 2012 WL 2129003, at *2 (finding
that Plaintiff’s allegations that the anonymous defendants participated in the same swarm, at
varying times spanning just over one month, sufficiently alleged that they were involved in the
same series of transactions to warrant joinder under Rule 20). Furthermore, “unlike many of the
cases where courts have found joinder improper, Plaintiff has sued only Doe defendants whose
IP addresses appear to be based in [the Northern District of Indiana].” Id. (citing CP Prods., Inc.
v. Does 1-300, No. 10 C 6255, 2011 WL 737761, at *1 (N.D. Ill. Feb. 24, 2011) (objecting to the
large number of defendants over which the court demonstrably lacked personal jurisdiction)).
Moving onto the second requirement for joinder under Rule 20—that Defendants share a
“common question of law or fact”—Plaintiff has asserted the same counts of direct and
contributory copyright infringement against all Defendants, with no exception (see Compl. ¶¶
45-61), which suggests that joinder is appropriate. Third Degree Films, 2012 WL 669055, at *5
(noting, in finding the second joinder requirement “easily met,” that Plaintiff asserted the same
claim of copyright infringement against all the defendants with no exception). And this case also
involves questions of law and fact common to all Defendants, including “whether Plaintiff is a
proper copyright holder, whether violations of the Copyright Act have occurred, and whether
entering a BitTorrent swarm constitutes willful copyright infringement,” fully satisfying the
second joinder requirement. Pac. Century Int’l, 2012 WL 2129003, at *2 (citation omitted).
Therefore, Plaintiff has met both requirements of permissive joinder under Rule 20, and,
as such, Defendants will not be severed on the basis of misjoinder.
B. Discretionary Severance under Rule 21
Although Defendants are properly joined, Doe No. 7 also asks the Court to exercise its
discretion under Federal Rule of Civil Procedure 21 to sever Does 2-14 because permissive
joinder in this case would not comport with notions of fundamental fairness, would inflict severe
and unnecessary prejudice on Defendants, and would require the Court to engage in several
mini-trials because the facts and defenses would be unique to each Defendant. (Doe No. 7’s
Mot. to Sever 8-9.) Doe No. 6 advances a similar argument. (See Doe No. 6’s Mot. to Sever
Does 2-14 ¶ 1 (arguing that not severing Defendants would present “significant problems of
fairness and justice to the defendants, each of whom may be subject to substantially different
circumstances and as a result may raise wildly diverging defenses”).) Doe No. 7 further
contends that allowing Plaintiff to continue to proceed against the Defendants in one action
would deprive the federal judicial system of the revenue it would have earned if Plaintiff had
filed separate suits against each Defendant. (Doe No. 7’s Mot. to Sever 9.) On the other hand,
Plaintiff claims that joinder promotes judicial efficiency, particularly at this stage of the
litigation and given the limited number of Defendants. (Pl.’s Resp. to Doe No. 7's Mot. to Sever
Under Federal Rule of Civil Procedure 21, a court may, on motion or on its own, add or
drop a party or sever any claim against any party at any time. Sunlust Pictures, 2012 WL
3717768, at *3 (citing Fed. R. Civ. P. 21). The determination of whether to sever is “committed
to the broad discretion of the trial judge.” Bennett v. Sch. Dirs. of Dist. 115, No. 96 C 2422,
1996 WL 495555, at *2 (N.D. Ill. Aug. 28, 1996); Rice v. Sunrise Express, Inc., 209 F.3d 1008,
1016 (7th Cir. 2000) (“It is within the district court’s broad discretion whether to sever a claim
under Rule 21.”). “The practical effect of severance of previously-joined claims is the creation
of two or more separate actions.” Hohlbein v. Heritage Mut. Ins. Co., 106 F.R.D. 73, 78 (E.D.
Wis. 1985). To decide whether severance is appropriate, “a court should consider the
convenience and fairness to parties as well as the claim’s separability in logic and law. A court’s
decision should serve the ends of justice and facilitate the prompt and efficient disposition of the
litigation.” Bennett, 1996 WL 495555, at *2 (internal citations omitted).
First, unlike cases involving hundreds of defendants where joinder has been found too
cumbersome, Plaintiff has named only 14 defendants, not hundreds, and only 12 remain in the
case,1 all of whom are located in this District, facts which weigh in favor of joinder by promoting
judicial efficiency. Patrick Collins, 2012 WL 4321718, at *3 (citing Hard Drive Prods., 809 F.
Supp. 2d at 1164 (severing where joinder of the 188 defendants “would result in a logistically
unmanageable case” and where the defendants may be separated by many miles)). Here,
“[j]oinder at the discovery phase would be more efficient than conducting the same discovery in
[twelve] separate cases,” id., as it “facilitates jurisdictional discovery and expedites the process
of obtaining identifying information, which is prerequisite to reaching the merits of [Plaintiff’s]
claims,” Patrick Collins, Inc. v. John Does 1-15, No. 11-cv-02164-CMA-MJW, 2012 WL
415436, at *4 (D. Colo. Feb. 8, 2012) (quoting Voltage Pictures, 818 F. Supp. 2d at 41-42).
Although there were originally 14 Doe Defendants in this case, Does No. 1 and No. 13 have been
voluntarily dismissed with prejudice (Docket # 27, 28).
Although the judicial system may lose revenue from the filing fees by not severing Defendants
into separate cases, the efficiency and facilitation of discovery that joinder brings, at least at this
stage, outweigh this concern. See AF Holdings, LLC v. Does 1-1,058, __ F.R.D.__, 2012 WL
3204917, at *13 (D.D.C. Aug. 6, 2012) (“[J]oinder at this stage in the proceedings is the single,
most efficient mechanism available for the plaintiff to obtain information to identify those
allegedly illegally downloading and distributing its movie.”)
As to the Doe Defendants’ arguments that not severing them would prejudice or
otherwise be unfair to them, “the Court acknowledges that a risk of embarrassment exists for the
ISP customers who may become publically associated with the [a]lleged IP addresses,” as the
copyrighted work contains adult, and potentially pornographic, content. Patrick Collins, 2012
WL 4321718, at *5. This potential for embarrassment, however, does not outweigh Plaintiff’s
statutory right to protect its property interest in its copyright, id., and, at least at this point in the
litigation, to do so in a single suit against the 12 remaining Doe Defendants.
Further pointing to potential prejudice that could arise from joinder, Doe No. 7 also
argues that not severing Defendants would result in several “mini-trials” because each Defendant
would present facts and defenses unique to their case. But that Defendants will present different
factual issues and legal defenses at a later stage of the litigation does not make joinder
inappropriate at the discovery stage; rather, “the commonality of legal claims at this time
supports joinder.” Third Degree Films, 2012 WL 669055, at *5 (citation omitted).
At the same time, the Court is mindful of these concerns as well as the case law
suggesting that the litigation strategy Plaintiff has employed in this case has a history of
becoming abusive. See, e.g., Sunlust Pictures, 2012 WL 3717768, at *5-6 (recognizing that
“plaintiffs in these types of cases might unfairly threaten to disclose defendants’ identities in
order to improperly leverage settlement negotiations”); Hard Drive Prods., 2012 WL 2196038,
at *5 (discussing cases considering the potentially abusive litigation tactics of adult film
producers like Plaintiff here). As such, the Court remains open to reconsidering whether to sever
the Doe Defendants at a later date. See Patrick Collins, 2012 WL 4321718, at *3 (stating that
“any Defendant can renew the Motion later if he or she later shows that joinder of him or her
would not promote judicial economy”); Third Degree Films, 2012 WL 669055, at *5 (noting that
the Doe defendants retained their ability to move for severance at a later stage of the litigation
and that the court may always sever the case sua sponte); Digital Sin, 279 F.R.D. at 244
(declining to sever the Doe defendants at that time, but leaving open the possibility of
reconsidering the issue later on); MGCIP, 2011 WL 2292958, at *2 (finding joinder proper at
this stage and noting that the individual defendants could raise the joinder issue again as named
parties). Now, however, Doe No. 6’s and Doe No. 7’s motions to sever will be DENIED.
For the foregoing reasons, Doe No. 6’s Motions to Quash (Docket # 12) and to Sever
(Docket # 13) and Doe No. 7’s Motion to Sever (Docket # 17) are DENIED.
Enter for the 3rd day of December, 2012.
S/Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge