Smash Pictures v. Unknown

Filing 18

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 6/14/12: ORDERING that the order granting leave to take expedited discovery 7 is vacated. The motions to quash 8 , 10 , 11 , 12 , 15 , 16 are granted. Pl aintiff shall serve a copy of this order on the ISPs who were served with a subpoena. The ISPs, in turn, shall serve a copy of this order upon its relevant subscribers within 30 days from the date of service upon them. RECOMMENDING that this case be dismissed without prejudice. F&R are submitted to Judge John A. Mendez. Objections to F&R due within fourteen days. (Kaminski, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SMASH PICTURES,

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Plaintiff,

No. 2:12-cv-301 JAM CKD

vs.
DOES 1-265,

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Defendants.

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__________________________________/

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SMASH PICTURES,

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Plaintiff,

No. 2:12-cv-302 JAM CKD

Defendants.

ORDER AND FINDINGS AND

vs.
DOES 1-590,

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RECOMMENDATIONS
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In these actions, plaintiff alleges copyright infringement of pornographic motion

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pictures against Doe defendants. In the course of monitoring Internet-based infringement of its

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copyrighted content, plaintiff’s agents allegedly observed unlawful reproduction and distribution

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of the subject motion pictures by the Doe defendants via the Bit Torrent file transfer protocol.
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Although plaintiff does not know the actual names of the Doe defendants, plaintiff’s agents

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created a log identifying the Doe defendants by their IP addresses and the dates and times of their

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alleged unlawful activity. The IP addresses, internet service providers (“ISPs”), and dates and

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times of the alleged unlawful activity by the Doe defendants are identified in exhibits to

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plaintiff’s complaints.

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The undersigned granted expedited discovery to serve Rule 45 subpoenas on the

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ISPs to obtain the names, addresses, telephone numbers, and e-mail addresses of the Doe

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defendants. Pending before the court are several motions to quash brought by various Doe

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defendants in each of the actions. In the motions, the Doe defendants have correctly asserted that

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the mass joinder of unrelated defendants is improper under Federal Rule of Civil Procedure 20.

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Given the technical complexities of BitTorrent swarm functions, as set forth in plaintiff’s

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supporting affidavits, it appears unlikely that the Doe defendants engaged in any coordinated

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effort or concerted activity. See, e.g. Boy Racer, Inc. v. Does 1-60, 2001 WL 3652521 (N.D.

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Cal. Aug. 19, 2011). Under these circumstances, permissive joinder under Federal Rule of Civil

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Procedure 20(a)(2) is not warranted.

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Moreover, it appears that venue in this District is inappropriate for several of the

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Doe defendants. Defendants residing in Oregon and in Santa Clara County, which is part of the

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Northern District of California, have moved to quash on the basis of improper venue. Plaintiff

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has made no attempt to establish that venue is proper for the Doe defendants alleged in these

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actions and improperly invokes the general venue statute, 28 U.S.C. § 1391. However, under the

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applicable venue statute, 28 U.S.C. § 1400(a), actions relating to copyright may be “instituted in

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the district in which the defendant or his agent resides.” As it is established that venue is

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improper for some of the Doe defendants and permissive joinder is not appropriate, the court will

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grant the motions to quash and each action will recommend that all but defendant Doe 1 be

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dismissed without prejudice under Federal Rule of Civil Procedure 21.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The orders granting leave to take expedited discovery (no. 2:12-cv-301, dkt.

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no. 7; 2:12-cv-302, dkt. no. 10) are vacated;

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2. The motions to quash (no. 2:12-cv-301, dkt. nos. 8, 10, 11, 12, 15, 16; no.
2:12-cv-302, dkt. nos. 11, 12, 16, 17) are granted;

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3. Plaintiff shall serve a copy of this order on the ISPs who were served with a

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subpoena. The ISPs, in turn, shall serve a copy of this order upon its relevant subscribers within

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30 days from the date of service upon them. The ISPs may serve the subscribers using any

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reasonable means, including written notice sent to the subscriber’s last known address,

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transmitted either by first-class mail or via overnight service, or by e-mail notice; and

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IT IS HEREBY RECOMMENDED that:

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1. Does 2-265 in case no. 2:12-cv-301 JAM CKD and Does 2-590 in case no.

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2:12-cv-302 JAM CKD be dismissed without prejudice.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

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fourteen days after being served with these findings and recommendations, any party may file

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written objections with the court and serve a copy on all parties. Such a document should be

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captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the

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objections shall be served and filed within seven days after service of the objections. The parties

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are advised that failure to file objections within the specified time may waive the right to appeal

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the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: June 14, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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smash.stn

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