Riding Films Incorporated v. Unknown Party et al

Filing 7

ORDER - IT IS ORDERED: 1. All Defendants with the exception of the first unknown party (IP Address No. are severed from this action and the complaints against them are dismissed without prejudice. 2. Plaintiff's motion for leave t o take discovery prior to the rule 26(f) conference (Doc. 6 ) is granted with respect to the remaining Defendant. Plaintiff may issue a subpoena for the ISP of Defendant 1 (IP Address No. (See document for full details). Signed by Judge David G Campbell on 5/16/13. (LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Riding Films, Inc., No. CV13-00299-PHX-DGC Plaintiff, 10 11 v. 12 ORDER John and Jane Does I-CCL, and Black and White Companies I-CCL, 13 Defendants. 14 15 Plaintiff Riding Films, Inc., owns the copyright to a video entitled “Dawn Rider.” 16 Doc. 1 at 2. Plaintiff alleges that the video has been illegally copied and disseminated 17 online through a peer-to-peer file sharing network. Plaintiff has obtained the internet 18 protocol (“IP”) addresses of each computer that participated in the group – referred to as 19 a swarm – that uploaded the content to the internet and allowed others to download it. 20 Because Plaintiff only has access to the IP addresses of alleged infringers, it has brought 21 this motion for leave to take discovery prior to the Rule 26(f) conference to obtain the 22 identities of the owners of the IP addresses. Plaintiff requests that the Court issue a 23 subpoena to the internet service providers (ISP) requiring them to provide the identities 24 of the individuals associated with the IP addresses. Doc. 6. 25 Plaintiffs request is a familiar one in federal court. It raises both the question of 26 whether Doe defendants, identified with nothing more than their IP addresses, are 27 properly joined and whether courts should permit discovery under such circumstances. 28 Courts have dealt with the issue in several ways: denying the discovery requests, severing 1 all but the first Doe defendant, delaying the severance decision until after the Does have 2 been identified, or approving both joinder and pre-service discovery. See e.g. Pac. 3 Century Int=l, Ltd. v. Does 1-101, No. C-11-02533, 2011 WL 5117424, at *2 (N.D.Cal. 4 Oct. 27, 2011) (denying request to issue subpoenas); SBO Pictures, Inc. v. Does 1-3036, 5 No. 11-4220, 2011 WL 6002620, at *3-4 (N.D.Cal. Nov. 30, 2011) (severing all but the 6 first Doe defendant and allowing discovery for him alone); AF Holdings, LLC v. Does 1- 7 97, No. C-11-03067, 2011 WL 2912909 (N.D.Cal. July 20, 2011) (denying discovery 8 request and declining to severe); Camelot Dist. Grp. v. Does 1-1210, No. 2:11-cv-02432, 9 2011 WL 4455249 (E.D.Cal. Sept. 23, 2011) (allowing discovery and delaying the 10 question of severance); Openmind Solutions, Inc. v. Does 1-39, No. C 11-3311, 2011 WL 11 4715200, at *5-8 (N.D. Cal. Oct. 7, 2011) (approving both joinder and pre-service 12 discovery). Without any consensus in the case law, the Court will engage in its own 13 analysis of the both the joinder issue and the pre-service discovery requests. 14 I. 15 Joinder. Under similar facts, courts disagree on when a Court should, sua sponte, consider 16 the question of joinder. 17 development of the record. 2011 WL 4455249 at *4. On the other hand, in Boy Racer, 18 Inc. v. Does 1-60, No. C 11-01738, 2011 WL 3652521, at *2-4 (N.D. Cal. Aug. 19, 19 2011), the court considered joinder immediately because of the potential for lost filing fee 20 revenue and a fear of incentivizing Plaintiffs to join too many Doe defendants. When 21 defendants are unknown at the time of filing in the Ninth Circuit, courts are instructed to 22 give the Plaintiff “an opportunity through discovery to identify the unknown defendants,” 23 unless “discovery would not uncover the identities” or “the complaint would be 24 dismissed on other grounds.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). 25 Because the standard requires consideration of whether the complaint might be dismissed 26 on other grounds, the Court finds that it must consider the appropriateness of joinder 27 before any further development of the record. 28 Camelot declined to consider joinder until after further Rule 20(a)(2) allows permissive joinder when a right to relief is asserted against -2- 1 all defendants jointly or severally or if the right to relief “aris[es] out of the same 2 transaction, occurrence, or series of related transactions or occurrences.” Fed. R. Civ. P. 3 20(a)(2). The rule also requires a common question of law or fact that is relevant to all 4 defendants. Id. Where the test for permissive joinder is not satisfied, a court has 5 discretion to sever the improperly joined parties “so long as no substantial right will be 6 prejudiced by the severance.” Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997). 7 Even when the test is satisfied, however, courts still have discretion to sever under 8 Rules 20(b), 21, and 42(b). On the Cheap, LLC v. Does 1-5011, No. C10-4472, 2011 WL 9 4018258, at *2 (N.D.Cal. Sept. 6, 2011). In exercising that discretion courts must 10 “examine whether permissive joinder would comport with the principles of fundamental 11 fairness or would result in prejudice to either side.” Id. (quoting Coleman v. Quaker Oats 12 Co., 232 F.3d 1271, 1296 (9th Cir. 2000)). “Courts may also consider factors such as the 13 motives of the party seeking joinder and whether joinder would confuse and complicate 14 the issues for the parties involved.” SBO Pictures, 2011 WL 6002620 at *3. 15 Courts are divided on whether the rights of action against participants in a 16 “swarm” arise out of the same transaction or series of related transactions. Some courts 17 have found that a swarm is not a series of related transactions because swarms may exist 18 over a period of months and can involve large numbers of users downloading and 19 uploading throughout that period. See SBO Pictures, 2011 WL 6002620, at *3; Third 20 Degree Films v. Does 1-3577, No. C 11-02768, 2011 WL 5374569, at *3 (N.D. Ca. Nov. 21 4, 2011). 22 Other courts have, at least preliminarily, found that merely alleging that all 23 defendants were part of the same swarm and downloaded exactly the same file is 24 sufficient to support a finding that the swarm constituted a related series of transactions 25 or occurrences for the purposes of Rule 20. See New Sensations, Inc. v. Does 1-1474, 26 No. C 11-2770, 2011 WL 4407222, at *6 (N.D. Cal. Sept. 22, 2011); Digital Sin, Inc. v. 27 Does 1-176, No. 12-CV-00126, 2012 WL 263491, at *5 (S.D.N.Y. Jan. 30, 2012). 28 Digital Sin noted that a contrary ruling would present a significant obstacle to a plaintiff’s -3- 1 ability to protect its copyright and found that requiring such a party to file hundreds or 2 thousands of infringement action would not be cost effective or promote judicial 3 economy. Digital Sin, 2012 WL 263491 *5, n. 6. Notably, the court in Digital Sin was 4 not bound by Ninth Circuit case law requiring consideration of whether the case might be 5 dismissed on other grounds at the time of the initial joinder decision, and it remained 6 open to reconsidering the joinder issue later. Id at *5; see Gillespie, 629 F.2d at 642. 7 The Court has already determined that it must address permissive joinder at this 8 juncture. It now finds that the rights of action against different participants in the same 9 online swarm do not arise out of the same transaction or series of transactions. This 10 finding is based on the fact that a particular swarm can last for many months. During 11 those months, the initial participants may never overlap with later participants. 12 Additionally, because pieces and copies of the protected work come from various sources 13 within the swarm, individual users might never use the same sources. Without a more 14 definite showing that each defendant is transactionally related to all other defendants, the 15 Court is reluctant to expand the scope of permissive joinder to cover a swarm that 16 17 18 19 20 21 22 23 24 25 26 27 28 potentially accumulates many users over a long period of time. Furthermore, even if the Court found that these facts met the preliminary requirements for permissive joinder, there are substantial reasons to believe that joinder in this case would “confuse and complicate the issues for the parties involved.” SBO Pictures, 2011 WL 6002620 at *3. Allowing a case to proceed against such a large number of Defendants would invite many unrelated motions to present the different factual and legal defenses of each Defendant. Receiving, sorting, and responding to such a high volume of motions would require significant judicial resources. Scheduling and conducting hearings and discovery disputes among many parties would be almost impossible. Additionally, during discovery, each Defendant, who might appear pro se and not be an e-filer, would be forced to serve paper copies of all filings on all other parties, and would have the right to be present at all other parties= depositions, all of -4- 1 which would be a significant burden on each Defendant litigant.1 Also, because of the 2 potential prejudice to each unrelated Defendant, the Court likely would not undertake to 3 conduct a trial for all Defendants at the same time. Thus, the Court would effectively 4 sever these cases for trial, and conduct over a hundred separate trials with different 5 witnesses and evidence, eviscerating any Aefficiency@ of joinder. Finally, all of these 6 issues would needlessly delay the ultimate resolution of any particular Defendant=s case, 7 which again weighs against efficiency and the opportunity for the Defendant to receive a 8 prompt resolution of his or her case. Accordingly, the Court finds that joinder is not 9 warranted. 10 II. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Severance. Having concluded that joinder is not proper in this case, the appropriate remedy is severance of all but the first Defendant. Call of the Wild Movie, LLC v. Does 1-1062, 770 F.Supp.2d 332, 342 (D.D.C. 2011); see also Hard Drive Productions, 2011 WL 3740473, at *15. Accordingly, the Court will retain unknown Defendant 1 (IP address No. and severe all other Defendants. All claims against the additional unknown Defendants will be dismissed without prejudice. III. Discovery Request. The remaining issue is the pre-service discovery request against the remaining Defendant. Courts are split on whether to allow discovery of this nature to go forward. Rule 26(d)(1) allows a court to authorize discovery before the Rule 26(f) conference for the parties’ convenience and in the interest of justice. Courts in the Ninth Circuit apply a 1 See Hard Drive Productions, 2011 WL 3740473, at *14 (summarizing similar management problems for 188 Defendants); see also On the Cheap, 2011 WL 4018258, at *4 (“The Court does not condone copyright infringement and encourages settlement of genuine disputes. However, plaintiff=s desire to enforce its copyright in what it asserts is a cost-effective manner does not justify perverting the joinder rules to first create the management and logistical problems discussed above and then offer to settle with Doe defendants so that they can avoid digging themselves out of the morass plaintiff is creating.”) -5- 1 good cause standard to decide pre-service discovery requests, comparing the need for 2 expedited discovery with potential prejudice to the responding party. See Semitool, Inc. 3 v. Tokyo Electron America, Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). Courts may 4 consider whether the plaintiff: (1) can identify the missing party with sufficient 5 specificity that the Court can determine that defendant is a real person or entity who 6 could be sued in federal court; (2) has identified all previous steps taken to locate the 7 elusive defendant; (3) suit against the defendant could withstand a motion to dismiss; and 8 (4) has demonstrated that there is a reasonable likelihood of being able to identify the 9 defendant through the requested discovery, thus allowing for service of process. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999). Pacific Century applied this test to similar facts and denied the plaintiff’s discover request. 2011 WL 5117424, at *2. The denial rested primarily on the chance that the owner of the IP address may not be the same person as the actual infringer because individual computers are often used by more than their owners. While that concern is legitimate, the Court finds that the potential for mistaken identification does not outweigh the interests of justice in identifying alleged infringers. Here, Plaintiff’s allegations are sufficiently specific to conclude that there is a real person or entity associated with the IP address that can be sued in federal court. It also appears that Plaintiff has exhausted all other means for identifying the true owner or end user of the IP address and that this expedited discovery is likely to reveal that identity. It also appears that the complaint states a valid claim on its face. Accordingly, the Court will allow expedited discovery and issue a summons with respect to the remaining Doe Defendant. 24 IT IS ORDERED: 25 1. All Defendants with the exception of the first unknown party (IP Address 26 No. are severed from this action and the complaints against 27 them are dismissed without prejudice. 28 2. Plaintiff’s motion for leave to take discovery prior to the rule 26(f) -6- 1 conference (Doc. 6) is granted with respect to the remaining Defendant. 2 Plaintiff may issue a subpoena for the ISP of Defendant 1 (IP Address No. 3 4 Dated this 16th day of May, 2013. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-

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