Malibu Media, LLC v. Does 1-27

Filing 19

ORDER: The individual claims in this action are SEVERED such that Does 2-13 and 15-27 are DISMISSED without prejudice. Malibu Media has the option of filing suits against each of these individual Doe Defendants separately and is required to pay the filing fee in connection with each individual suit it chooses to file. The deadline for Malibu Media to effect service of process on Doe 1 is extended to February 28, 2013. Signed by Judge Virginia M. Hernandez Covington on 1/31/2013. (MEB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MALIBU MEDIA, LLC,
Plaintiff,

Case No.: 8:12-cv-1764-T-33TGW

v.
JOHN DOES 1-27,
Defendants.
______________________________/
ORDER
This cause comes before the Court pursuant to the Court’s
January 22, 2013, Show Cause Order (Doc. # 17), and Plaintiff
Malibu Media, LLC’s response to the Order (Doc. # 18), filed
on January 30, 2013.
For the reasons that follow, the Court determines that
all of Malibu Media’s claims except those asserted against Doe
1 shall be severed and dismissed without prejudice and with
leave to re-file as separate actions against as many of the
remaining

Doe

Defendants

as

Malibu

Media

chooses.

In

addition, the Court grants Malibu Media an extension of time
in which to effect service of the summons and complaint upon
Doe 1.
I.

Procedural History
Malibu Media filed this action for copyright infringement

on August 6, 2012, against twenty-seven Doe Defendants, known

to Malibu Media and identified in the Complaint only by their
Internet Protocol (IP) addresses. (Doc. # 1).

Since that

time, Malibu Media has voluntarily dismissed Doe Defendant 14
from this action. (Doc. # 15).

On August 21, 2012, Malibu

Media sought an order allowing it to serve immediate discovery
on the Doe Defendants’ internet service providers so as to
allow Malibu Media to ascertain the Doe Defendants’ true
identities from their IP addresses. (Doc. # 5). The Honorable
Thomas G. Wilson, United States Magistrate Judge, granted the
motion for immediate discovery in an Order dated October 2,
2012. (Doc. # 10).
On December 5, 2012, this Court granted an extension of
time, until January 4, 2013, for Malibu Media to effect
service

of

the

summons

Defendants. (Doc. # 13).

and

the

complaint

on

the

Doe

On January 4, 2013, Malibu Media

requested a second extension of time in which to effect
service of process on the Doe Defendants, because it had not
yet obtained the identities of all of the Doe Defendants from
their internet service providers. (Doc. # 14).

The Court

entered an Order on January 22, 2013, denying Malibu Media’s
motion without prejudice and directing Malibu Media to show
cause in writing by January 30, 2013, as to “why the Doe
Defendants should not be severed and all claims except those
asserted against Doe 1 be dismissed without prejudice, with
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leave to re-file separate actions against as many of the Doe
Defendants as Plaintiff chooses to pursue.”

(Doc. # 17).

Malibu Media filed its response to the Court’s Show Cause
Order on January 30, 2012. (Doc. # 18).
II.

Analysis
Malibu Media is the owner of United States Copyright

Registration Number PA0001789427 for the motion picture titled
“Pretty Back Door Baby.” (Doc. # 1 at ¶ 11).

Malibu Media

alleges that each Doe Defendant used the BitTorrent file
sharing protocol to illegally download the film.

Generally,

Malibu Media contends that each of the Doe Defendants shared
pieces of the film, using BitTorrent, such that the film could
be

reassembled

into

a

full

copy

for

view

by

the

Doe

Defendants. The file is replete with explanations of the
BitTorrent protocol and detailed descriptions of how the
protocol is used to violate United States copyright law, such
that further explanation of such protocol is unnecessary here.
The issue presently before this Court is whether this
action should proceed against the Doe Defendants collectively
or whether the individual actions should be severed.
On December 6, 2012, the Honorable James D. Whittemore,
United

States

District

Judge,

entered

a

detailed

Order

addressing the issue of severance in the context of copyright
infringement cases based on BitTorrent file sharing. See
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Malibu Media, LLC v. Does 1-28, 8:12-cv-1667-JDW-MAP (Doc. #
22).

Under facts nearly identical to those presented here,

Judge Whittemore concluded that “joinder is technically proper
under Rule 20(a),” but that such joinder of Doe Defendants as
“users in the same BitTorrent swarm” frustrated the purpose of
the Federal Rules of Civil Procedure.

Id. at 5, 7.1

Thus,

Judge Whittemore severed the individual cases pursuant to Rule
21, Fed. R. Civ. P., after considering the deleterious impact
of joinder on the parties and on the judicial system.2

After

due consideration, this Court joins in his sound reasoning.
Severing the individual claims asserted in this action is
necessary to promote judicial economy and to ensure effective
case management.

Given the nature of this case, the Court

anticipates

the

that

motions

filed

by

each

of

the

Doe

Defendants during the course of the case are likely to be
highly-individualized and fact-intensive. Indeed, identified
only

by

their

IP

addresses,

and

linked

only

by

their

participation in a cyber “swarm,” the Court foresees that each
Doe Defendant may assert unique challenges to the Court’s

1

Pursuant to Rule 20, Fed. R. Civ. P., a plaintiff may
join claims against defendants if the claims arise out of the
same transaction, occurrence, or series of transactions or
occurrences and if any question of law or fact common to all
these persons will arise in the action.
2

Rule 21, Fed. R. Civ. P., permits the Court to “sever
any claim against a party.”
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jurisdiction

and

other

factually

diverse

arguments

and

defenses. See Bubble Gum Prods., LLC v. Does 1-80, No. 12-cv20367, 2012 WL 2953309, at *4 (S.D. Fla. July 19, 2012)
(“[T]he variety of individualized defenses that can be raised
creates judicial inefficiency when numerous defendants are
joined.”); CineTel Films, Inc. v. Does 1-1,052, 853 F. Supp.
2d 545, 554 (D. Md. 2012)(“To maintain any sense of fairness,
each individual defendant would have to receive a mini-trial,
involving different evidence and testimony.
burden

of

a

trial

like

this

.

.

.

would

The enormous
substantially

prejudice defendants and the administration of justice.”).
The Court finds that resolution of the Doe Defendants’
various arguments and defenses via “mini-trial” would hinder
judicial economy and be fundamentally unfair to the parties.
Furthermore, as noted by Judge Whittemore, “The only
economy that litigating these cases as a single action would
achieve is an economy to plaintiff - the economy of not having
to pay a separate filing fee for each action brought.” No.
8:12-cv-1667-JDW-MAP (Doc. # 22 at 11) (citations omitted).
Here, in an action initially filed against twenty-seven Doe
Defendants, Malibu Media paid a single filing fee of $350.00,
rather than $9,450.00, the amount that would be required to
bring twenty-seven separate actions.
strategy

has

bombarded

the

Court
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Malibu Media’s current
with

a

tidal

wave

of

litigation, while depriving the Court of much needed funds in
the form of filing fees.3
Filing fees not only provide crucial funding for the
operation of the Court, but also serve as a deterrent to the
filing of frivolous suits. See In re McDonald, 489 U.S. 180,
184 (1989)(explaining that filing fees provide a threshold
barrier against the filing of frivolous actions and garner
much

needed revenue

for

the

courts).

Severance

of

the

individual claims in this matter is essential to preserve the
purpose of the filing fee as mandated by 28 U.S.C. § 1914(a).
In addition, the Court turns to Rule 1 of the Federal
Rules of Civil Procedure, which requires that this Court
construe the Federal Rules to “secure the just, speedy, and
inexpensive determination of every action and proceeding.”
Severing these individual actions will promote these laudable
principles and prevent the unique prejudice that is presented
in multi-defendant copyright cases where the identities of the
Doe Defendants may be difficult to ascertain.

As noted by

Judge Whittemore:
With twenty-eight defendants, meaningful case
management deadlines will not be reasonably
3

By filing thirty-six lawsuits in the Middle District of
Florida against 906 individual Doe Defendants, Malibu Media
has paid $12,600.00 in filing fees, rather than $317,100.00,
the amount that would be required for bringing each action
separately.
-6-

achievable without extensive hearings.
And when
the identity of each John Doe defendant is
eventually discovered by Malibu, the prospect of
numerous amended complaints arises, an unnecessary
exercise in contemporary litigation which will
present an inordinate administrative chore for the
Clerk, the court, and the parties. And the process
of identifying the unknown defendants has the
potential of prejudicing those defendants who are
identified early on, who will likely languish in
litigation beyond their control while Malibu
pursues the identities of the other John Does.
No. 8:12-cv-1667-JDW-MAP (Doc. # 22 at 14).

The Honorable

David A. Baker, United States Magistrate Judge, also recently
highlighted the “significant burden on the Clerk’s office” in
the absence of severance in a similar copyright case based on
use of the BitTorrent protocol, when “each time an order is
docketed in the case, [the Clerk’s office] is obligated to
review every item filed, and potentially prepare and mail a
copy of the order to all of the defendants who are pro se even
when the order does not pertain to each defendant.” Bait
Prods. PTY LTD. v. Does 1-73, No. 6:12-cv-1637 (Doc. # 12 at
8).
In conclusion, the Court finds that to jointly try these
disparate actions would contravene judicial economy, inhibit
effective case management, and cause significant prejudice to
the joined Doe Defendants and to the Court.

The Court

accordingly dismisses Doe Defendants 2-13 and 15-27 without
prejudice.

Malibu Media has the option of filing suits
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against each of these individual Doe Defendants separately and
is required to pay the filing fee in connection with each
individual suit it chooses to file.
Additionally, as noted above, on January 4, 2013, Malibu
Media requested a further extension of time to effect service
of the summons and the complaint on the Doe Defendants,
including Doe 1. (Doc. # 14).

Upon due consideration and in

light of the procedural posture of this case, the Court
determines that it is appropriate to grant an extension.
Thus, Malibu Media has until and including February 28, 2013,
in which to effect service of the summons and the complaint on
Doe 1.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1)

The individual claims in this action are SEVERED such
that Does 2-13 and 15-27 are DISMISSED without prejudice.
Malibu Media has the option of filing suits against each
of these individual Doe Defendants separately and is
required to pay the filing fee in connection with each
individual suit it chooses to file.

(2)

The deadline for Malibu Media to effect service of
process on Doe 1 is extended to February 28, 2013.

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DONE and ORDERED in Chambers, in Tampa, Florida, this
31st day of January, 2013.

Copies: All Counsel and Parties of Record

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