Boy Racer Inc. v. Does 1-98

Filing 15

ORDER SEVERING AND DISMISSING DOE DEFENDANTS 2-98 without prejudice and vacating Show Cause Hearing scheduled for October 21, 2011. Signed by Judge Joseph C. Spero on October 14, 2011. (jcslc1, COURT STAFF) (Filed on 10/14/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BOY RACER, INC.,

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Case No. C-11-02536 JCS

Plaintiff,
v.

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DOES 1-98,

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ORDER SEVERING AND DISMISSING
DOE DEFENDANTS 2-98

Defendants.
___________________________________/

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For the Northern District of California

United States District Court

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In its previous Order, the Court denied Plaintiff’s Ex Parte Application for Leave to Take

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Expedited Discovery and issued an Order to Show Cause (“the Order to Show Cause”) why the

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Court should not sever all but Doe 1 from this action and dismiss without prejudice the claims

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against Doe Defendants 2-98. Plaintiff filed a response on September 30, 2011 (“Response”).

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Having considered the arguments raised by Plaintiff in its Response, the Court finds that joinder of

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the Doe Defendants is improper under Rule 20(a) and unmanageable under Rule 20(b) of the Federal

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Rules of Civil Procedure and therefore severs and dismisses without prejudice all claims asserted by

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Plaintiff against Does 2-98. The Show Cause Hearing scheduled for October 21, 2011 at 1:30 p.m.

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is vacated. The Case Management Conference scheduled for the same time shall remain on

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calendar.

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First, the majority of the arguments raised in Plaintiff’s Response were addressed in the

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Court’s order in Case No. C-11-01566, Docket No. 26 (“the August 23 Order”). As the Court

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explained in the Order to Show Cause, in that order it “concluded that Doe Defendants who are

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joined in a single action on the basis that all of them used the BitTorrent protocol to illegally

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download a protected work are improperly joined, even if all of the Doe Defendants participated in

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a single ‘swarm.’” To the extent that some judges in this district have reasoned that joinder may be

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proper where the plaintiff alleges that all of the Doe Defendants participated in the same “swarm,”

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the undersigned disagrees for the reasons stated in the Court’s August 23 Order.

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Second, the Court rejects Plaintiff’s argument that joinder should be permitted, at least at this

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early stage of the case, because a determination as to whether joinder is proper should not be made

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until after the Doe Defendants have been identified, which requires discovery. This argument was

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not raised in Case No. 11-01566 and therefore was not addressed in the Court’s August 23 Order.

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As a preliminary matter, Plaintiff has not cited any authority in support of its contention that a court

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should not address whether joinder is proper until the Doe Defendants have been identified.

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More importantly, even if there are multiple IP addresses associated with a single individual,

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as Plaintiff suggests may be the case, Plaintiff’s allegations are not sufficient to show that the

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remaining defendants – of whom there are still likely to be many – participated in a single
transaction that meets the requirements of Rule 20(a). Nor does the potential reduction in the

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For the Northern District of California

United States District Court

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number of defendants alleviate the Court’s concerns under Rule 20(b) relating to the logistical

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difficulties of conducting proceedings involving multiple defendants with diverse defenses. Plaintiff

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apparently had a good faith basis for naming 98 Does as defendants in this action, whether or not

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multiple IP addresses may belong to a single individual. Having named 98 Does as defendants, the

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possibility that the number might be reduced somewhat after discovery does not persuade the Court

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that joinder is proper under Rule 20(a) or advisable under Rule 20(b).

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Finally, though Plaintiff represents that the Court can address joinder at a later stage of the

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case, when more information about the Doe Defendants has been obtained, Plaintiff is unlikely to

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reach that point because, as experience shows, the discovery that is required to identify the Doe

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Defendants goes far beyond the expedited discovery to obtain subscriber information that has

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already been requested. As Plaintiff’s counsel conceded in a similar case in this district, in order to

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“fully identify” the Doe Defendants, Plaintiff would be required to inspect each subscriber’s

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“electronically stored information and tangible things, such as [the s]ubscriber’s computer and the

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computers of those sharing his Internet network, for the purpose of finding the individual that

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unlawfully violated Plaintiff’s copyrighted works by uploading/downloading the file referenced

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BitTorrent.” See Boy Racer, Inc. v. Does 1-52, Northern District of California, Case No. 11-2329,

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Docket No. 17 (Order Denying Further Discovery) at 4. In that case, Judge Grewal denied the

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plaintiff’s request for further discovery. Similarly, it is highly unlikely that the undersigned would

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permit such extensive and invasive discovery of non-parties to determine the identity of the Doe

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Defendants.

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Accordingly, the Court severs and dismisses without prejudice all claims asserted by
Plaintiff against Does 2-98.
IT IS SO ORDERED.

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Dated: October 14, 2011

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For the Northern District of California

United States District Court

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____________________________
JOSEPH C. SPERO
United States Magistrate Judge

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