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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 BOY RACER, INC., 6 7 Case No. C-11-02536 JCS Plaintiff, v. 8 DOES 1-98, 9 ORDER SEVERING AND DISMISSING DOE DEFENDANTS 2-98 Defendants. ___________________________________/ 11 For the Northern District of California United States District Court 10 In its previous Order, the Court denied Plaintiff’s Ex Parte Application for Leave to Take 12 Expedited Discovery and issued an Order to Show Cause (“the Order to Show Cause”) why the 13 Court should not sever all but Doe 1 from this action and dismiss without prejudice the claims 14 against Doe Defendants 2-98. Plaintiff filed a response on September 30, 2011 (“Response”). 15 Having considered the arguments raised by Plaintiff in its Response, the Court finds that joinder of 16 the Doe Defendants is improper under Rule 20(a) and unmanageable under Rule 20(b) of the Federal 17 Rules of Civil Procedure and therefore severs and dismisses without prejudice all claims asserted by 18 Plaintiff against Does 2-98. The Show Cause Hearing scheduled for October 21, 2011 at 1:30 p.m. 19 is vacated. The Case Management Conference scheduled for the same time shall remain on 20 calendar. 21 First, the majority of the arguments raised in Plaintiff’s Response were addressed in the 22 Court’s order in Case No. C-11-01566, Docket No. 26 (“the August 23 Order”). As the Court 23 explained in the Order to Show Cause, in that order it “concluded that Doe Defendants who are 24 joined in a single action on the basis that all of them used the BitTorrent protocol to illegally 25 download a protected work are improperly joined, even if all of the Doe Defendants participated in 26 a single ‘swarm.’” To the extent that some judges in this district have reasoned that joinder may be 27 proper where the plaintiff alleges that all of the Doe Defendants participated in the same “swarm,” 28 the undersigned disagrees for the reasons stated in the Court’s August 23 Order. 1 Second, the Court rejects Plaintiff’s argument that joinder should be permitted, at least at this 2 early stage of the case, because a determination as to whether joinder is proper should not be made 3 until after the Doe Defendants have been identified, which requires discovery. This argument was 4 not raised in Case No. 11-01566 and therefore was not addressed in the Court’s August 23 Order. 5 As a preliminary matter, Plaintiff has not cited any authority in support of its contention that a court 6 should not address whether joinder is proper until the Doe Defendants have been identified. 7 More importantly, even if there are multiple IP addresses associated with a single individual, 8 as Plaintiff suggests may be the case, Plaintiff’s allegations are not sufficient to show that the 9 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 11 For the Northern District of California United States District Court 10 number of defendants alleviate the Court’s concerns under Rule 20(b) relating to the logistical 12 difficulties of conducting proceedings involving multiple defendants with diverse defenses. Plaintiff 13 apparently had a good faith basis for naming 98 Does as defendants in this action, whether or not 14 multiple IP addresses may belong to a single individual. Having named 98 Does as defendants, the 15 possibility that the number might be reduced somewhat after discovery does not persuade the Court 16 that joinder is proper under Rule 20(a) or advisable under Rule 20(b). 17 Finally, though Plaintiff represents that the Court can address joinder at a later stage of the 18 case, when more information about the Doe Defendants has been obtained, Plaintiff is unlikely to 19 reach that point because, as experience shows, the discovery that is required to identify the Doe 20 Defendants goes far beyond the expedited discovery to obtain subscriber information that has 21 already been requested. As Plaintiff’s counsel conceded in a similar case in this district, in order to 22 “fully identify” the Doe Defendants, Plaintiff would be required to inspect each subscriber’s 23 “electronically stored information and tangible things, such as [the s]ubscriber’s computer and the 24 computers of those sharing his Internet network, for the purpose of finding the individual that 25 unlawfully violated Plaintiff’s copyrighted works by uploading/downloading the file referenced 26 BitTorrent.” See Boy Racer, Inc. v. Does 1-52, Northern District of California, Case No. 11-2329, 27 Docket No. 17 (Order Denying Further Discovery) at 4. In that case, Judge Grewal denied the 28 plaintiff’s request for further discovery. Similarly, it is highly unlikely that the undersigned would 2 1 permit such extensive and invasive discovery of non-parties to determine the identity of the Doe 2 Defendants. 3 4 5 Accordingly, the Court severs and dismisses without prejudice all claims asserted by Plaintiff against Does 2-98. IT IS SO ORDERED. 6 7 Dated: October 14, 2011 8 9 11 For the Northern District of California United States District Court 10 ____________________________ JOSEPH C. SPERO United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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