West Coast Productions Inc v. Swarm Sharing Hash Files 9A43B11EB6A42DDDA63FACF61790BD4D3BDFDDDE et al
RULING. 11 Motion to Sever, GRANTED. IT IS HEREBY ORDERED the Motion to Sever [rec. doc. 11] is GRANTED, and that all defendants except John Doe 1 are hereby SEVERED from this action. IT IS FURTHER ORDERED that within thirty (30) days from the e ntry of this Ruling, the plaintiff may file individual complaints against those Doe defendants whom it wishes to proceed. IT IS FURTHER ORDERED that plaintiff is directed to serve notices on all John Doe defendants for whom it has received identify ing information. 11 Motion to Quash, GRANTED. IT IS FURTHER ORDERED that the Motion to Quash the Subpoena of John Doe 1320 is GRANTED. IT IS FURTHER ORDERED that this matter is hereby STAYED. No additional action may occur until the filing fee s are paid. IT IS FURTHER ORDERED that plaintiff notify Doe defendants for whom it has received identifying information and all involved internet service providers that no case will remain pending until the filing fees are paid. The Court reserves ruling on 11 Motion to Dismiss for Lack of Jurisdiction. Signed by Magistrate Judge C Michael Hill on 8/16/2012. (crt,Davenport, M)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
WEST COAST PRODUCTIONS, INC.
Case No. 6:12-cv-1713
SWARM SHARING HASH FILES, ET AL *
MAGISTRATE JUDGE HILL
Pending before the Court is the Motion to Dismiss for Improper Venue and Lack
of Personal Jurisdiction, Motion to Dismiss or Sever for Misjoinder or in the Alternative
Motion to Quash the Subpoena of John Doe 1320 filed on July 17, 2012. [rec. doc. 11].
Based on the following reasons, the Motion is GRANTED in part.
On June 15, 2012, plaintiff, West Coast Productions, Inc. (“West Coast”) brought
this action for copyright infringement and contributory copyright infringement under the
United States Copyright Act of 1976, as amended, 17 U.S.C. §§ 101 et seq., against 1,980
unnamed defendants (the “John Doe Defendants”) for allegedly uploading and
downloading of the pornographic film “Phat Black Juicy Anal Booty 8" (the "Work")
using an interactive peer-to-peer (“P2P”) file sharing client known as BitTorrent.
Jurisdiction was asserted pursuant to 28 U.S.C. §§ 1331 and 1338(a). To establish
personal jurisdiction in this district, West Coast used geolocation technology and traced
the Internet Protocol ("IP") addresses of each defendant, at least 99 of which were located
in Louisiana, to acquire the general location and time of the alleged infringement. [rec.
doc. 1, ¶ 16].
P2P networks are computer systems which enable internet users to: (1) make files
(including motion pictures) stored on each user’s computer system available for copying
by other users or peers; (2) search for files stored on other users’ computers, and (3)
transfer exact copies of files from one computer to the other via the internet. [rec. doc. 1,
¶ 8]. The P2P protocol at issue in this suit is called “BitTorrent.” BitTorrent allows users
to share large computer files, such as the Work in this case, while minimizing the strain
on computer networks. In re: BitTorrent Adult Film Copyright Infringement Cases,
Docket No. 11-3995 [rec. doc. 39] (E.D.N.Y. May 1, 2012). BitTorrent works by
breaking files into many smaller files to reduce the load on the source computer, rather
than downloading a file from a single source computer. Id.
The BitTorrent software allows a person to visit a private website and download a
file containing the desired digital media (such as digital copies of movies) onto a program
already installed on the user's computer. Raw Films, Ltd. v. John Does 1-32, 2011 WL
6182025 (E.D. Va. Oct. 5, 2011). Once the file is loaded, the BitTorrent program
connects to hundreds or thousands of different users that possess and share copies of the
particular media contained in the file, and it coordinates the copying of the media using
the digital copies of those other users. Id. As the original user (or "peer") downloads his
or her copy, it is immediately made available to other users looking to obtain the file. In
this way, the collection of users who simultaneously "share" a particular file is known as
a "swarm." Id. Plaintiff argues that the John Doe swarm members simultaneously
allowed others to steal (download from the swarm) plaintiff’s copyrighted materials,
resulting in a significant amount of infringement in this District, and a significant
transmission of infringing materials to and from this District. [rec. doc. 1, ¶ 14].
On June 19, 2012, the Court granted the plaintiff’s request for leave to take
discovery prior to the Rule 26(f) conference, authorizing it to serve Rule 45 subpoenas on
the internet service providers ("ISPs") named in Exhibit A of the Complaint to obtain the
identity of each Doe Defendant. [rec. doc. 6]. On July 17, 2012, defendant, John Doe
#1320, filed the instant Motion to Dismiss for Improper Venue and Lack of Personal
Jurisdiction, Motion to Dismiss or Sever for Misjoinder or in the Alternative Motion to
Quash the Subpoena of John Doe 1320. [rec. doc. 11].
Upon due consideration, the Court finds that Doe defendants 1-1,980 have been
improperly joined in violation of Federal Rule of Civil Procedure 20(a)(2). For the
reasons stated herein, the Court finds that all defendants except Doe I should be
SEVERED from this case, and that the subpoenas be QUASHED pending further order
of the Court.
1. Motion to Sever.
Defendant, John Doe 1320, argues that he should be severed or dismissed under
Fed. R. Civ. P. 20(a)(2) and 21 for improper joinder.
Under Rule 20(a)(2), permissive joinder of defendants is proper 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
Fed. R. Civ. P. 20(a)(2).
Rule 20(a)(2) is designed to promote judicial economy and trial convenience. See
Mosley v. General Motors Corp., 497 F.2d 1330, 1332-33 (8th Cir. 1974); Guedry v.
Marino, 164 F.R.D. 181, 184 (E.D. La. 1995). Courts have described Rule 20 as creating
a two-prong test, allowing joinder of plaintiffs when (1) their claims arise out of the
“same transaction, occurrence, or series of transactions or occurrences” and when (2)
there is at least one common question of law or fact linking all claims. Acevedo v.
Allsup’s Convenience Stores, Inc., 600 F.3d 516, 521 (5th Cir. 2010); Applewhite v.
Reichhold Chems., Inc., 67 F.3d 571, 574 n. 11 (5th Cir.1995). Generally, as long as both
prongs of the test are met, “permissive joinder of plaintiffs . . . is at the option of the
plaintiffs.” Acevedo, 600 F.3d at 521 (quoting Applewhite, 67 F.3d at 574 n. 11).
However, even if this test is satisfied, district courts have the discretion to refuse joinder
in the interest of avoiding prejudice and delay. Id.
Rule 21 of the Federal Rules of Civil Procedure provides as follows:
Misjoinder of parties is not a ground for dismissing an action. On motion or
on its own, the court may at any time, on just terms, add or drop a party.
The court may also sever any claim against a party.
As set forth in Rule 21, to remedy improperly joined parties, the court should not
dismiss the action outright, but the court may, at any time, on just terms, add or drop a
party. LaFace Records, LLC v. Does 1-38, 2008 WL 544992, *5 (E.D.N.C. Feb. 27,
2008) (citing Fed. R. Civ. P. 21). The court may act upon a motion by a party or sua
sponte. Id. The trial court has broad discretion to sever issues to be tried before it.
Brunet v. United Gas Pipeline Co., 15 F.3d 500, 505 (5th Cir. 1994)
Defendant argues that the facts do not support joinder under Rule 20, because the
claims against the different defendants will require separate trials as they might involve
separate witnesses, different evidence, and different legal theories and defenses, which
could lead to confusion of the jury. The Court agrees. In this case, there are 1,980
unnamed defendants, and the evidence against each of them could clearly lead to
confusion of the jury. In similar cases, other courts have held that where there is no
assertion that multiple defendants have acted in concert, joinder is improper. Laface
Records, supra (citing BMG Music v. Does 1-4, No. 3:06-cv-01579-MHP, 2006 U.S.
Dist. LEXIS 53237, at *5-6 (N.D. Cal. July 31, 2006)) (sua sponte severing multiple
defendants in action where only connection between them was allegation they used same
ISP to conduct copyright infringement); Interscope Records v. Does 1-25, No.
6:04-cv-197-Orl-22DAB, 2004 U.S. Dist. LEXIS 27782, at *19 (M.D. Fla. Apr. 1, 2004)
(magistrate judge recommended sua sponte severance of multiple defendants in action
where only connection between them was allegation they used same ISP and P2P network
to conduct copyright infringement).
Many courts have severed defendants in swarm cases, particularly those involving
numerous John Does. See Diabolic Video Productions, inc. v. Does 1-2099, 2011 WL
3100404 (N.D. Cal. Sept. 6, 2011); Pacific Century Intern. Ltd. v. Does 1-101, 2011 WL
2690142 (N.D. Cal. July 8, 2011); MCGIP, Inc. v. Does 1-149, 2011 WL 3607666 (N.D.
Cal. Aug. 15, 2011); Hard Drive Productions, Inc. v. Does 1-188, 809 F.Supp.2d 1150
(N.D. Cal. 2011).1 As the court explained in Raw Films, Inc. v. Does 1-32, 2011 WL
6840590 (N.D. Ga. Dec. 29, 2011), this case is part of an “outbreak of similar litigation ...
around the country,” in which copyright holders have attempted to assert claims against
multiple unknown defendants by joining them, in often large numbers, into a single action
as part of a swarm. See On The Cheap, LLC v. Does 1–5011, 280 F.R.D. 500, 502
(N.D.Cal. 2011) (published order). The swarm joinder theory has been considered by
various district courts, the majority of which have rejected it. Raw Films, supra (citing
On The Cheap at *1 (gathering cases)).
In BitTorrent Adult Film Copyright Infringement Cases, supra, a case involving 37
defendants, the court ordered severance, finding that “[t]he individualized determinations
far outweigh[ed] the common questions in terms of discovery, evidence, and effort
required. ... [S]warm joinder complicates these actions, resulting in waste of judicial
resources.” Similarly, in Raw Films, supra, the court determined that joinder under Rule
20 “would not result in judicial economy,” and exercised its discretion to sever the claims
against the 29 remaining defendants. Further, in Pacific Century Int’l v. Does, 2011 WL
5117424 (N.D. Cal. Oct. 27, 2011), a case involving 101 Does, the court severed the
defendants, reasoning as follows:
In contrast, other courts have found joinder appropriate at this stage in the litigation and
denied motions to sever. See, e.g., Patrick Collins, Inc. v. John Does 1-15, 2012 WL 415436
(D.Colo. Feb. 8, 2012); Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239 (S.D.N.Y. 2012); Call of
the Wild Movie, LLC v. Does 1–1,062, 770 F.Supp.2d 332, 342–43 (D.D.C.2011); K-Beech, Inc.
v. Does 1-22, 2011 WL 6000768 (D.Md. Nov. 29, 2011); K-Beech, Inc. v. Does 1-57, 2011 WL
5597303 (M.D. Fla. Nov. 1, 2011); Hard Drive Productions, Inc. v. Does 1-55, 2011 WL
4889094 (N. D. Ill. Oct. 12, 2011); Donkeyball Movie, LLC v. Does 1–171, 2011 WL 1807452,
at *4–*5 (D.D.C. May 12, 2011); West Coast Prod., Inc. v. Does 1–5829, 275 F.R.D. 9 (D.D.C.
The manageability difficulties, procedural inefficiencies, and likelihood that
Defendants will assert myriad factual and legal defenses compel it to sever
Does 2–101 from this case. An internetbased copyright infringement case
with at least 101 defendants would prove a logistical nightmare. It is likely
that Defendants would assert different factual and legal defenses, and would
identify different witnesses. Case management and trial of 101 such claims
would be inefficient, chaotic, and expensive. Each Defendants' varying
defenses would require the court to cope with separate discovery disputes
and dispositive motions, and to hold separate trials, each based on different
evidence. Joining Defendants to resolve what at least superficially appears
to be a relatively straightforward case would in fact transform it into a
cumbersome procedural albatross. These difficulties would place
tremendous burden on Defendants as well. To provide two illustrative
examples, each Defendant would have the right to be present at every other
Defendant's depositions—a thoroughly unmanageable and expensive
ordeal. Similarly, pro se Defendants, who most likely would not e-file,
would be required to serve every other Defendant with a copy of their
pleadings and other submissions throughout the pendency of the action at
substantial cost. The court ... cannot permit a case to proceed in this
Here, 1,980 defendants are involved, as opposed to the 101 in Pacific Century. If
the court there considered a case with 101 Does to potentially be a “logistical nightmare”
and a “procedural albatross,” then it is inconceivable what kind of legal quagmire an
additional 1,879 defendants could present. Though the 1,980 Doe defendants may have
engaged in similar behavior, they are likely to present different defenses. As the court
noted in BMG Music v. Does 1-203, 2004 WL 953888 (E.D. Pa. 2004), at *2, “Comcast
subscriber John Doe 1 could be an innocent parent whose internet access was abused by
her minor child, while John Doe 2 might share a computer with a roommate who
infringed Plaintiffs' works. John Does 3 through 203 could be thieves, just as Plaintiffs
Accordingly, this court finds that defendants' use of the same ISP and P2P
networks to allegedly commit copyright infringement is, without more, insufficient for
permissive joinder under Rule 20. Thus, the motion to sever is GRANTED. This court
will sever not only the moving defendant from this action, but all other Does defendants
except Doe 1. See BMG Music, supra at *2 (upon motion for reconsideration, court
upheld its sua sponte order of severance of all but one Doe defendant).
The Court further observes that plaintiff has attempted to join 1,980 defendants
into a single action, thereby avoiding the payment of multiple filing fees. As the court
observed in CP Productions, Inc. v. Does 1–300, 2011 WL 737761 (N.D.Ill. Feb. 24,
2011), “No predicate has been shown for thus combining 300 separate actions on the
cheap-if CP had sued the 300 claimed infringers separately for their discrete
infringements, the filing fees alone would have aggregated $105,000 rather than $350.” In
this case, the filing fees, if paid for each of the individual defendants, would amount to a
staggering $639,000. Allowing these 1,980 claims to be asserted in a single case would
defeat, not enhance, judicial economy. Raw Films, supra.2 Accordingly, the Court
concludes that plaintiff should be required to pay the filing fees as to all of the defendants
2. Motion to Quash Subpoena.
“The market value of a work like the one in this case is modest. The danger of swarm
joinder is to enhance the proceeds from a work by extracting settlement amounts that exceed the
value of the Work and the litigation. It is conceivable that the swarm joinder device could
encourage the creation of works not for their sales or artistic value, but to generate litigation and
settlements. The risk of inappropriate settlement leverage is enhanced in a case like this
involving salacious and graphic sexual content where a defendant may be urged to resolve a
matter at an inflated value to avoid disclosure of the content the defendant was accessing.”
[citation omitted]. Raw Films, supra, at *2.
Doe 1320 seeks to quash the subpoena issued to him/her for personal information,
including defendant’s name and address. Under Rule 45(c)(3), a court must modify or
quash a subpoena that, inter alia, “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). A court may modify or quash a subpoena that, inter alia,
requires disclosing confidential information. Fed.R.Civ.P. 45(c)(3)(B).
Furthermore, Rule 26(c)(1) provides:
A party or any person from whom discovery is sought may move for a
protective order in the court where the action is pending ... The court may,
for good cause, issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including ...
forbidding the disclosure or discovery.
Here, the subpoena requested by plaintiff is designed to “flush out” the defendant
John Does’ identities. Recently, the Fifth Circuit affirmed the district court’s imposition
of sanctions against a pornographic film producer’s attorney for the exact strategy being
attempted in this case, i.e., “suing anonymous internet users for allegedly downloading
pornography illegally, using the powers of the court to find their identity, then shaming or
intimidating them into settling for thousands of dollars—a tactic  employed all across
the state and that has been replicated by others across the country. Mick Haig
Productions E.K. v. Does 1-670, — F.3d —, 2012 WL 2849373, *3 (5th Cir. July 12,
2012). Under these circumstances, I find that the information sought by the subpoena(s)
to be embarrassing, oppressive, and unduly burdensome.
Accordingly, the motion to quash is GRANTED. The subpoenas are quashed not
only as to the moving defendant from this action, but all other Doe defendants. Seee, CP
Productions, supra, at *1.
For the reasons set forth above,
IT IS HEREBY ORDERED the Motion to Sever [rec. doc. 11] is GRANTED,
and that all defendants except Doe 1 are hereby SEVERED from this action.
IT IS FURTHER ORDERED that within thirty (30) days from the entry of this
Ruling, the plaintiff may file individual complaints against those Doe defendants whom it
wishes to proceed. Upon election to proceed, the plaintiff shall submit to the Clerk of the
Court filing fees for each of the complaints against those defendants whom the plaintiff
wishes to proceed. Such cases will be assigned separate civil action numbers and placed
on the Court's docket.
IT IS FURTHER ORDERED that plaintiff is directed to serve notices on all Doe
defendants for whom it has received identifying information. The notices shall inform
each John Doe that his or her case has been severed. The plaintiff shall file, under seal,
copies of all such notices with the Court and send copies of this Order to all Doe
defendants for which it has received identifying information.
IT IS FURTHER ORDERED that the Motion to Quash the Subpoena of John
Doe 1320 is GRANTED. Additionally, plaintiff is ORDERED to notify, at its expense,
all those to whom plaintiff has previously given notice of plaintiff’s subpoenas that
plaintiff will take no further action in connection with the enforcement of subpoenas
against any other defendant in this case pending further order of the Court.
IT IS FURTHER ORDERED that this matter is hereby STAYED. No
additional action may occur until the filing fees are paid.
IT IS FURTHER ORDERED that plaintiff notify Doe defendants for whom it
has received identifying information and all involved internet service providers that no
case will remain pending until the filing fees are paid.
The Clerk of Court is directed to assign Civil action No. 12-1713 to Doe 1 as
an individual defendant. The actions filed within 30 days of this Memorandum Order
against any other Doe defendants severed from this case will be deemed to have been
filed as of June 15, 2012, the date of the filing of the original Complaint.
Oral argument set for August 22, 2012, is hereby CANCELED.
Signed August 16, 2012, Lafayette, Louisiana.