Hard Drive Productions, Inc. v. Does 1-84

Filing 31

ORDER by Magistrate Judge Howard R. Lloyd (1) Granting Motion to Sever; (2) Dismissing Does 2-84 Without Prejudice; (3) Denying Motion for Sanctions; and (4) Finding as Moot All Pending Motions to Quash. Re: 22 , 13 , 14 , 24 , 25 . 11/29/2011 motion hearing is vacated. (hrllc2, COURT STAFF) (Filed on 11/23/2011)

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*E-FILED 11-23-2011*

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NOT FOR CITATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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For the Northern District of California

United States District Court

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HARD DRIVE PRODUCTIONS, INC.,

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Plaintiff,

ORDER (1) GRANTING MOTION TO
SEVER; (2) DISMISSING DOES 2-84
WITHOUT PREJUDICE; (3) DENYING
MOTION FOR SANCTIONS; AND (4)
FINDING AS MOOT ALL PENDING
MOTIONS TO QUASH

Defendants.

[Re: Docket No. 22]

No. C11-03648 HRL

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v.
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DOES 1-84,
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Plaintiff Hard Drive Productions sues for alleged copyright infringement, claiming that

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the 84 Doe defendants used BitTorrent to download or distribute plaintiff’s film, “Amateur

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Allure – Kyleigh Ann.” This court granted plaintiff’s motion for leave to conduct expedited

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discovery in order to learn the identities of the defendants. Subsequently, in this and other

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similar cases (including, several filed by the same plaintiff and the same attorney), this court

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received numerous motions to quash plaintiff’s subpoenas, as well as related motions to sever

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and dismiss defendants.1

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Now before the court is one such motion filed by someone identified only as “Alleged

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Doe 68.105.97.108.” In that same motion, movant also requests monetary sanctions. Plaintiff

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Plaintiff has consented to the undersigned’s jurisdiction. 28 U.S.C. § 636;
FED. R. CIV. P. 73. Because movant has not yet been served, it is not deemed a party from
whom consent is required. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995); see also
Hard Drive Productions, Inc. v. Does 1-188, — F. Supp.2d —, No. C11-01566JCS, 2011 WL
3740473 at *5 (N.D. Cal., Aug. 23, 2011) (Spero, J.).
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opposes the motion. The matter is deemed suitable for determination without oral argument,

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and the November 29, 2011 hearing is vacated. Civ. L.R. 7-1(b). Upon consideration of the

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moving and responding papers, this court grants the motion to sever and dismiss; finds as moot

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the motion to quash; denies the request for sanctions; and severs and dismisses Does 2-84,

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without prejudice to plaintiff to file individual actions against them.

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Plaintiff alleges that joinder of all defendants is proper because they allegedly

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participated in the same BitTorrent swarm (i.e., the group of “peers” or users who download a

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particular file) to download the film in question. In the months after this court permitted

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plaintiff to pursue expedited discovery to learn defendants’ identities, it learned of a host of
similar lawsuits pending in this district. True, this court initially concluded that, at least at the

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For the Northern District of California

United States District Court

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pleading stage, plaintiff sufficiently established joinder. However, the court now agrees with

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the view and reasoning of many other courts, including in this district, that plaintiff has not

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sufficiently established that joinder would be proper and, further, that even if plaintiff had done

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so, joinder would nevertheless be inappropriate. See, e.g., On the Cheap, LLC v. Does 1-5011,

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— F.R.D. —, 2011 WL 4018258 (N.D. Cal., Sept. 6, 2011) (Zimmerman, J.); Hard Drive

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Productions, Inc. v. Does 1-188, — F. Supp.2d —, No. C11-01566JCS, 2011 WL 3740473

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(N.D. Cal., Aug. 23, 2011) (Spero, J.); Boy Racer, Inc. v. Does 1-60, No. C11-01738SI, 2011

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WL 3652521 (N.D. Cal., Aug. 19, 2011) (Illston, J.).

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Accordingly, defendants 2-84 are severed and dismissed from this action, without
prejudice to plaintiff to file individual actions against them. See Fed. R. Civ. P. 21.
Plaintiff shall send a copy of this order by first class mail, within seven (7) days of the

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date of this order, to every (1) Internet Service Provider to whom plaintiff has sent any previous

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communication referencing the instant action; and (2) potential defendant for whom plaintiff

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has or obtains an address. The notice shall advise that all defendants, except Doe 1 have been

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severed and dismissed from this action. The notice shall also include a copy of this order. By

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December 16, 2011, plaintiff’s counsel shall file a declaration attesting that plaintiff has

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complied with this provision, and attaching a copy of the notice plaintiff sent.

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Movant’s motion to quash is denied as moot, and the request for sanctions is denied.
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All other pending motions to quash and/or for protective order (Dkt. Nos. 13, 14, 24, 25)
are also deemed moot and will be terminated.
SO ORDERED.
Dated: November 23, 2011

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HOWARD R. LLOYD
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UNITED STATES MAGISTRATE JUDGE

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For the Northern District of California

United States District Court

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5:11-cv-03648-HRL Notice has been electronically mailed to:

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Brett Langdon Gibbs

[e-mail]

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Michael Bruce Stone

[e-mail]

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Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.

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For the Northern District of California

United States District Court

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