Voltage Pictures, LLC v. Does 1-22

Filing 35

ORDER Affirming and Adopting Recommendation of United States Magistrate Judge. ORDERED that the Recommendation of United States Magistrate Judge 27 is AFFIRMED AND ADOPTED. Plaintiff's Objection to the Recommendation 31 is OVERRULED. ORDERED that Doe No. 15's Amended Motion to Sever 23 is DENIED by Judge Wiley Y. Daniel on 08/15/13.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 13-cv-01121-WYD-MEH
VOLTAGE PICTURES, LLC, a California Limited Liability Company,
Plaintiff,
v.
DOES 1-3, 5-11, 13-22,
Defendants.

ORDER AFFIRMING AND ADOPTING RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on Doe No. 15's Amended Motion to Sever filed
July 19, 2013. This motion was referred to Magistrate Judge Hegarty. A
Recommendation of United States Magistrate Judge (“Recommendation”) was issued
on July 26, 2013, and is incorporated herein by reference. See 28 U.S.C. § 636(b)(1),
Fed. R. Civ. P. 72(b), D.C.COLO.LCivR. 72.1. Magistrate Judge Hegarty recommends
that the Amended Motion to Sever be denied.
By way of background, Plaintiff alleges that the Doe Defendants, identified only
by their Internet Protocol (“IP”) addresses, infringed on Plaintiff’s copyrighted work by
using the internet and a “BitTorrent” protocol to reproduce, distribute, display, or perform
Plaintiff’s protected motion picture entitled “Maximum Conviction”. (Recommendation at
2.) Doe No. 15 argues in his Amended Motion to Sever that joinder of the Doe
Defendants was improper in this case as Plaintiff’s allegations fall short of

demonstrating a right to relief with respect to or arising out of the same transaction or
series of transactions. (Id. 7.) Doe No. 15 also contends that the allegations fail to
show a question of law or fact common to all Defendants in this case, and asks the
Court to find pursuant to Fed. R. Civ. P. 20(b) that joinder would prejudice the
Defendants. (Id.)
Magistrate Judge Hegarty recommends that Doe No. 15's motion be denied,
finding that Doe No. 15 did not meet his burden of showing that severance pursuant to
Fed. R. Civ. P. 21 is proper at this stage of the litigation. (Recommendation at 12.) He
first addressed Doe No. 15's arguments that Plaintiff failed to satisfy the requirements of
Fed. R. Civ. P. 20(a). (Id. 7-9.) Magistrate Judge Hegarty found persuasive Judge
Arguello’s ruling in a similar case, Patrick Collins, Inc. v. John Does 1-15, No. 11-cv02164-CMA-MJW, 2012 WL 41536 (D. Colo. Feb. 8, 2012). (Id.) As in the Patrick
Collins case, Magistrate Judge Hegarty found that “the allegations are sufficient to
demonstrate that the Doe Defendants, all located in Colorado, engaged in downloading
and uploading the same file (motion picture) identified by a unique hash number during
a relatively short time period.” (Id. 8.) Similarly, he noted Plaintiff’s allegations “that
each Defendant engaged in direct and contributory infringement of its protected film”.
(Id.) Thus, it was recommended that the Court find that Plaintiff’s allegations meet the
requirements of Rule 20(a)(2)(A). (Id. 8-9.) Moreover, Magistrate Judge Hegarty found,
as did Judge Arguello in the Patrick Collins case, that “the present matter requires proof
of the same elements against each Defendant and involves the same allegations
concerning the Defendants’ use of the BitTorrent protocol.” (Id. 9.) Thus, he
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recommends finding that Plaintiff has met the requirements of Rule 20(a)(2)(B)
regarding a common question of law or fact. (Id.)
The Recommendation then turned to Plaintiff’s argument of prejudice.
Magistrate Judge Hegarty acknowledged that courts have reached different conclusions
regarding whether to address the issue of joinder prior to permitting discovery
(Recommendation at 9), but found that “joinder at an early stage of the litigation in these
types of cases promotes judicial efficiency and economy.” (Id. 10.) He further found
that “[g]iven the inevitable disclosure of the information at issue in the subpoena, it
seems judicial efficiency is best promoted by declining to reach the question of joinder
at this time.” (Id. 11.) Magistrate Judge Hegarty also found that “Doe #15 offers no
persuasive argument that the Court will be inconvenienced or that he will be unduly
prejudiced by the joinder of Doe Defendants at the early stage of litigation.” (Id.)
On August 8, 2013, Doe No. 15 filed a timely Objection to the Recommendation.
Defendant’s timely objection necessitates a de novo determination as to those
specified proposed findings or recommendations to which objection is made since the
nature of the matter is dispositive. Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). “In
order to conduct a de novo review a court ‘should make an independent determination
of the issues ...; [it] ‘is not to give any special weight to the [prior] determination.’”
Ocelot Oil Corp. v. Sparrow Industries, 847 F.2d 1458, 1464 (10th Cir. 1988) (quoting
United States v. First City Nat. Bank, 386 U.S. 361, 368 (1967)) (internal quotation
marks omitted)). While the court may place whatever reliance on the magistrate judge’s

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“recommendation its merit justifies, the court must review the record in light of its own
independent judgment.” Id.
Having reviewed the Objection, I find no merit to the arguments made therein.
Doe No. 15 argues that I should find an opinion of Judge Martinez that joinder was
improper more persuasive than Judge Arguello’s opinion noted above. See Malibu
Media, LLC v. John Does 1-5, No. 12-cv-01405-WJM, 2012 WL 3030300 (July 25,
2012). In support of his decision in the above-referenced Malibu Media case, Judge
Martinez cited to an opinion of Judge Spero in Hard Rock Products, Inc. v. Does 1-188,
809 F. Supp. 2d 1150 (N.D. Cal. 2011). According to Plaintiff, the “reasoning and logic”
of Judge Spero’s opinion “trumps that of Judge Arguello.” (Objection at 2.) I disagree,
and reject this argument.
Magistrate Judge Hegarty conducted a thorough analysis of Doe No. 15's
challenge to joinder under Fed. R. Civ. P. 20(a)(2)(A) and (B), as well as his argument
of prejudice. Based on this analysis, I am satisfied that Plaintiff has satisfied the
requirements of Rule 20(a)(2) at this stage of the litigation. I also agree with Magistrate
Judge Hegarty that judicial efficiency is best promoted by declining to reach the
question of joinder at this time, and that Doe No. 15 has not offered a persuasive
argument that he will be unduly prejudiced by joinder at this early stage of the case.
Contrary to Plaintiff’s speculation, Magistrate Judge Hegarty is well versed in the
“BitTorrent protocol” and the “technical jargon” of these cases, and I have no reason to
believe that he was “overcome” by that jargon. (See Objection at 3.) In short, Doe No.
15 has not shown grounds that require rejection of the Recommendation. I also note
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that similar motions in other cases in this Court have been routinely denied.
Accordingly, it is
ORDERED that the Recommendation of United States Magistrate Judge dated
July 26, 2013 (ECF No. 27) is AFFIRMED AND ADOPTED. Plaintiff’s Objection to the
Recommendation (ECF No. 31) is OVERRULED. It is
FURTHER ORDERED that Doe No. 15's Amended Motion to Sever filed July 19,
2013 (ECF No. 23) is DENIED.
Dated: August 15, 2013
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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