AF Holdings LLC v. Does 1-97

Filing 18

ORDER by Judge Claudia Wilken DENYING PLAINTIFFS 12 MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT AND SEVERING DEFENDANTS DOES 2-97. (ndr, COURT STAFF) (Filed on 11/1/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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AF HOLDINGS, LLC,

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No. C 11-3067 CW

Plaintiff,
v.
DOES 1-97,
Defendants.
________________________________/

ORDER DENYING
PLAINTIFF’S MOTION
FOR LEAVE TO FILE
AN AMENDED
COMPLAINT AND
SEVERING
DEFENDANTS
DOES 2-97
(Docket No. 12)

United States District Court
For the Northern District of California

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Plaintiff AF Holdings, LLC moves the Court for leave to file

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an amended complaint.

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opposition has been filed to Plaintiff’s motion.

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considered the papers filed by Plaintiff, the Court denies

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Plaintiff’s motion to amend and severs and dismisses without

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prejudice Plaintiff’s claims against Does 2 through 97, for the

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reasons set forth below.

No Defendants have yet been served, and no
Having

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BACKGROUND

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On June 21, 2011, Plaintiff, a limited liability company

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based in the Federation of Saint Kitts and Nevis, filed a

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complaint alleging that Does 1-97 (Doe Defendants), each

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identified by IP addresses purportedly located in California,

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illegally downloaded and distributed an adult video, copyrighted

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by Plaintiff, by way of the internet peer-to-peer (P2P)

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file-sharing protocol, BitTorrent.

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Plaintiff filed a motion for leave to take expedited

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discovery on June 23, 2011 in order to unearth the identities of

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Doe Defendants in this action.

In its motion, which was heard by

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a Magistrate Judge, Plaintiff sought to differentiate BitTorrent

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technology from older forms of P2P transfer.

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have refused to allow plaintiffs to join numerous defendants, who

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are alleged to have downloaded and distributed the same

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copyrighted file through P2P programs, in a single action for

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copyright infringement.

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contrast to most earlier means of file sharing which relied on

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file transfers from one single user to another single user,

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“BitTorrent can link up to hundreds of users. . . to distribute

In the past, courts

As Plaintiff explained in its motion, in

United States District Court
For the Northern District of California

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data.”

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Expedited Disc. in Part 4-5 (citing Pl.’s Ex Parte Appl. for Leave

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to Take Expedited Disc. 10, 13, 14).

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BitTorrent operates in the following manner:

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Order Granting Pl.’s Ex Parte Appl. for Leave to Take

According to Plaintiff,

First, the protocol breaks a single large file into a
series of smaller distributable pieces. Then, an initial
file-provider (the “seeder”) intentionally elects to
distribute the pieces to third parties. . . Other users
(“peers”) on the network download a small “torrent”
file. . . the software follows the directions in the
torrent file to connect to the seeder. When peers
connect to the seeder, they download random pieces of
the file being seeded. When a piece download is
complete, the peers automatically become seeders with
respect to the downloaded pieces. In other words, each
peer in a swarm transforms from a pure downloader. . .
to a peer that is simultaneously downloading and
distributing pieces of a file.
Id. at 5-6 (quoting Pl.’s Ex Parte Appl. for Leave to Take

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Expedited Disc. 16).

Individuals who are seeding and/or

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downloading a particular file are collectively called a “swarm.”
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Id. at 6.
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After the hearing, the Magistrate Judge issued an order
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granting the discovery request as to Doe 1 but denying it as to
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the remaining Does on the grounds that the complaint would be

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dismissed for misjoinder.

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Leave to Take Expedited Disc. in Part 3-4.

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explained that Plaintiff had failed to meet the requirement for

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permissive joinder contained in Rule 20(a)(2)(A) of the Federal

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Rules of Civil Procedure, which requires that the right to relief

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asserted against multiple defendants arise “out of the same

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transaction, occurrence, or series of transactions or

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occurrences.”

Order Granting Pl.’s Ex Parte Appl. for
The Magistrate Judge

Id. at 4-7. (quoting Fed. R. Civ. P. 20(a)(2)).

United States District Court
For the Northern District of California

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Plaintiff failed to account for the fact that different versions

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of a particular work could exist on BitTorrent.

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in the creation of different swarms.

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Defendants may have downloaded the same copyrighted work did not

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mean that they were in the same swarm.

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that Plaintiff did not sufficiently plead that Doe Defendants had

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acted together to obtain the work in the same “transaction,

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occurrence, or series of transactions or occurrences.”

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6-7.

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Defendants other than Doe 1 on this ground, the Magistrate Judge

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did not address other issues surrounding joinder.

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The Magistrate Judge granted Plaintiff leave to “renew the

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[discovery] request with respect to Defendant Does 2-97 after a

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determination by the District Judge that Defendant Does 2-97 are

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properly joined.”

This would result

Thus, the fact that Doe

The Magistrate Judge held

Id. at

Because the Magistrate Judge refused discovery as to Doe

Id. at 7 n.2.

Id. at 1.

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Plaintiff has now moved this Court for leave to file its

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first amended complaint pursuant to Rule 15(a) of the Federal

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Rules of Civil Procedure in order to fortify the joinder

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allegations found insufficient by the Magistrate Judge.
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STANDARD

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Federal Rule of Civil Procedure 15(a) provides that leave of

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the court allowing a party to amend its pleading “shall be freely

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given when justice so requires.”

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factors when assessing the propriety of a motion for leave to

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amend: undue delay, bad faith, futility of amendment, prejudice to

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the opposing party and whether the plaintiff has previously

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amended the complaint.

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F. 3d 1051, 1055 n.3 (9th Cir. 2009).

Courts generally consider five

Ahlmeyer v. Nev. Sys. of Higher Educ., 555
Although these five factors

United States District Court
For the Northern District of California

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are generally all considered, “futility of amendment alone can

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justify the denial of a motion.”

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Id. at 1055.

Under Rule 20(a)(2), permissive joinder of multiple

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defendants is appropriate where “(A) any right to relief is

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asserted against them jointly, severally, or in the alternative

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with respect to or arising out of the same transaction,

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occurrence, or series of transactions or occurrences; and (B) any

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question of law or fact common to all defendants will arise in the

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action.”

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court may, on just terms, add or drop a party so long as “no

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substantial right will be prejudiced by the severance.”

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Coughlin v. Rogers, 130 F. 3d 1348, 1351 (9th Cir. 1997); Fed. R.

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Civ. P. 21.

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trial convenience and to expedite the final determination of

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disputes.”

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Agency, 558 F. 2d 914, 917 (9th Cir. 1977).

Fed. R. Civ. P. 20(a)(2).

Where misjoinder occurs, the

See

Rule 20 is construed liberally “in order to promote

League to Save Lake Tahoe v. Tahoe Reg'l Planning

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DISCUSSION

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Plaintiff contends that its Amended Complaint makes clear

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that it is aimed only at ninety-seven Doe Defendants who “took
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intentional, concerted action to enter [a single and uniquely

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identified] torrent swarm. . . and unlawfully download

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[Plaintiff’s copyrighted work] amongst each other.”

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Leave to File Am. Compl. 5.

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were collectively engaged in the conspiracy even if they were not

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engaged in the swarm contemporaneously because they all took

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concerted action that contributed to the chain of data

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distribution.”

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Mot. for

Plaintiff states, “The Defendants

Proposed Am. Compl. 4 ¶ 10.

However, even though Plaintiff has alleged that Doe

United States District Court
For the Northern District of California

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Defendants entered into the same swarm and were downloading the

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same seed file, Plaintiff has not alleged that any of the ninety-

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seven Doe Defendants exchanged any piece of the relevant file with

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each other or actually acted in concert with one another.

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e.g., MCGIP, LLC v. Does 1-149, 2011 U.S. Dist. LEXIS 108109, at

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*7 (N.D. Cal.) (Beeler, Mag. J.) (finding misjoinder where the

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plaintiff “has failed to show that any of the 149 Doe defendants

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actually exchanged any piece of the seed file with one another”);

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Openmind Solutions, Inc. v. Does 1-39, 2011 U.S. Dist. LEXIS

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94356, at *15, 16 n.4 (N.D. Cal.) (James, C. Mag. J.) (finding

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misjoinder where plaintiff did not allege that defendants were

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part of the same swarm, and stating that, even if defendants were

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part of the same swarm, “the Court queries how likely it is that a

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Defendant entering a swarm on June 29 obtained any piece of a

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[particular] file from a Defendant who entered the swarm on May

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12”); Boy Racer v. Does 2-52, 2011 U.S. Dist. LEXIS 86746, at *4

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(N.D. Cal.) (Grewal, Mag. J.) (finding misjoinder where “Plaintiff

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[did] not plead facts showing that any particular defendant

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See,

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illegally shared plaintiff’s work with any other particular

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defendant”).

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Here, the activity alleged includes ninety-seven defendants,

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eleven different Internet Service Providers, and a week and a half

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of activity.

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the precise date, hour, minute and second at which it alleges that

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each Doe Defendant was observed to be sharing the torrent of the

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copyrighted work, Plaintiff does not indicate how long each Doe

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Defendant was in the swarm or if any Doe Defendants were part of

See Compl., Ex. A 13-15.

While Plaintiff provides

United States District Court
For the Northern District of California

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the swarm contemporaneously.

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any Doe Defendants ever interacted with each other in this chain,

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or if each Doe Defendant interacted with other, unnamed peers in

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the swarm, which Plaintiff states “can reach into the tens of

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thousands of unique peers.”

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the size of swarms that Plaintiff alleges may occur, it is

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plausible, or even likely, that the named Doe Defendants never

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interacted with each other, even through several other

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intermediaries.

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2011 U.S. Dist. LEXIS 94319, at *38-39 (N.D. Cal.) (Spero, Mag.

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J.) (“Any ‘pieces’ of the work copied or uploaded by any

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individual Doe may have gone to any other Doe or to any other of

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the potentially thousands who participated in a given swarm.”)

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(emphasis in original).

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Plaintiff also does not allege that

Proposed Am. Compl. 7 ¶ 21.

Given

See Hard Drive Productions, Inc. v. Does 1-188,

Further, Plaintiff has not provided any reason to believe

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that Doe Defendants knew or understood that the BitTorrent

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software they used differed from other forms of P2P software and

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that this download might involve conspiring with a large number of

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other individuals rather than simply downloading a file from a
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single source as in earlier technologies.

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not alleged that Doe Defendants acted in concert with one another,

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or that they intentionally or knowingly did so, to download

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illegally the copyrighted work at issue here, joinder is

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inappropriate.

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Boy Racer, 2011 U.S. Dist. LEXIS 86746, at *4; Hard Drive

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Productions, 2011 U.S. Dist. LEXIS 94319, at *7-14.

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Because Plaintiff has

See MCGIP, 2011 U.S. Dist. LEXIS 108109, at *8;

Plaintiff also argues that administrative efficiency weighs
in favor of joinder in this case.

However, even if the

United States District Court
For the Northern District of California

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requirements set forth in Federal Rule of Civil Procedure 20(a)(2)

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were met, the Court would nevertheless sever the additional

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defendants from the instant action.

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would involve ninety-six additional defendants, each potentially

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proceeding with counsel or pro se, and ten additional ISPs, who

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may also participate in the case.

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reasoning of other judges in the Northern District of California,

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who have found that permitting joinder in similar cases would

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undermine Rule 20(a)’s purpose of judicial economy and trial

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convenience.

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LEXIS 94319, at *40-42 (finding Rule 20(a)’s purpose would be

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undermined due to the unmanageable logistics of involving the

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large number of defendants and their attorneys in the case, who

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may also present defenses specific to their individual situations,

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resulting in a number of mini-trials); Boy Racer, 2011 U.S. Dist.

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LEXIS 86746, at *9-10 (pointing out that “each defendant also will

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likely have a different defense,” such as that the owner of the

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account associated with the IP address may not actually be the

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illegal downloader).

Allowing joinder in this case

The Court is persuaded by the

See, e.g., Hard Drive Productions, 2011 U.S. Dist.

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CONCLUSION
Accordingly, the Court DENIES Plaintiff’s motion for leave to

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file an amended complaint and SEVERS and DISMISSES without

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prejudice Plaintiff’s claims against Does 2 through 97 based on

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misjoinder.

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Defendants within twenty-one days, those actions will be deemed a

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continuation of the original action for purposes of the statute of

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limitations.

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If Plaintiff files new complaints against these

Plaintiff’s action against Doe 1 may go forward.

IT IS SO ORDERED.

United States District Court
For the Northern District of California

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Dated: 11/1/2011

CLAUDIA WILKEN
United States District Judge

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