Killer Joe Nevada, LLC v. Does 1-11

Filing 5

ORDER AND OPINION vacating the Court's 4 May 8, 2013 Order. The Court severs John Does 2-11 and the claims against them are dismissed without prejudice. Plaintiff is directed to designate any actions filed against these severed defendants as related to this action, if they allege claims like those in the complaint filed here. The Court grants plaintiffs motion 2 as to the first defendant, John Doe 1. Signed by Judge Julie E. Carnes on 5/28/13. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

KILL JOE NEVADA, LLC
Plaintiff,
v.

CIVIL ACTION NO.
1:13-cv-1514-JEC

DOES 1-11,
Defendants.
ORDER & OPINION
This matter is presently before the Court on the plaintiff’s
Motion for Leave to Take Discovery Prior to a Rule 26(f) Conference
[2].

Before appreciating the manageability problems posed by the

type of joinder the plaintiff asserts, this Court granted the instant
motion. (Order [3] at 1.)

Upon further review, however, it appears

the plaintiff’s suit is part of a growing number of copyright cases
which attempt to improperly join multiple defendants into a single
action.

Therefore, for the reasons set out below, the Court VACATES

its May 8, 2013 Order [3].

John Does 2-11 are SEVERED and the

actions against them are DISMISSED WITHOUT PREJUDICE.

With respect

to John Doe 1, the only defendant now remaining in this action, the
plaintiff’s motion [2] is GRANTED.

AO 72A
(Rev.8/82)

BACKGROUND
The plaintiff brings this copyright action, as well as eleven
(11) other essentially identical actions in this district, against
anonymous defendants identified only by their internet protocol
(“IP”) addresses.

Plaintiff asserts that the unnamed defendants

“acted in a collective and interdependent manner” to unlawfully
reproduce and distribute plaintiff’s copyrighted work, Killer Joe
(the “movie”).

(Compl. [1] at ¶ 4.)

They also assert that the only

way to obtain the actual names of the alleged infringers is by
subpoenaing third-party Internet Service Providers (“ISPs”), who keep
the names associated with the IP addresses as part of their regular
course of business.

(Pl.’s Mot. for Leave (Pl.’s Mot.”) [2] at 8.)

The Court now considers, sua sponte, the issue of whether the
unnamed defendants were properly joined under FED. R. CIV. P. 20.
DISCUSSION
The Court notes that the instant series of litigation is part of
an “‘outbreak of similar litigation . . . around the country,’ in
which copyright holders have attempted to assert claims against
multiple unknown defendants by joining them, in often large numbers,
into a single action.”

The Bicycle Peddler, LLC v. Does 1-98, Civ.

No. 1:13-cv-921-CAP, Order at Dkt. No. [5] at 3 (citing On The Cheap,
LLC v. Does 1-5011, 280 F.R.D. 500, 502 (N.D. Cal. 2011)).

These

cases arise from the use of the file-sharing technology known as
2

AO 72A
(Rev.8/82)

BitTorrent.

Essentially, BitTorrent allows users to simultaneously

upload and download a file, often a copyrighted work, by being part
of a “swarm.”

See id. at 3-4.

In more technical terms, BitTorrent’s swarm process has been
described as follows:
In
the
BitTorrent
vernacular,
individual
downloaders/distributors of a particular file are called
“peers.”
The
group
of
peers
involved
in
downloading/distributing a particular file is called a
“swarm.” A server which stores a list of peers in a swarm
is called a “tracker.” A computer program that implements
the BitTorrent protocol is called a BitTorrent “client.”
The BitTorrent protocol operates as follows. First, a
user locates a small “torrent” file. This file contains
information about the files to be shared and about the
tracker,
the
computer
that
coordinates
the
file
distribution. Second, the user loads the torrent file into
a BitTorrent client, which automatically attempts to
connect to the tracker listed in the torrent file. Third,
the tracker responds with a list of peers and the
BitTorrent client connects to those peers to begin
downloading data from and distributing data to the other
peers in the swarm. When the download is complete, the
BitTorrent client continues distributing data to the peers
in the swarm until the user manually disconnects from the
swarm or the BitTorrent client otherwise does the same.
Diabolic Video Prods., Inc. v. Does 1-2099, No. 10-cv-5865-PSG, 2011
WL 3100404, at *1-2 (N.D. Cal. May 31, 2011)(Grewal, Mag. J.).
Plaintiff

in

this

case,

like

other

similarly

situated

plaintiffs, argues that the unnamed defendants participated in one of
these BitTorrent “swarms” in order to illegally download and upload
its copyrighted work, Killer Joe.

3

AO 72A
(Rev.8/82)

(Compl. [1] at ¶ 4.)

Plaintiff

submits a declaration by Darren M. Griffin with their motion for
leave to take discovery prior to a Rule 26(f) conference.
Darren

Griffin

Decl.

[2-1].)

Using

special

forensic

(See

software

provided by the Crystal Bay Corporation, Griffin attests that he
isolated the specific transactions, the IP addresses and the location
of the users responsible for copying and distributing the movie.
(Id. at ¶ 8.)

He also attests that he confirmed that the identified

users were sharing the exact same copy of the movie by looking at a
unique string of characters that identifies any audiovisual work,
known as a “hash checksum.”

(Id. at ¶ 10.)

Thus, plaintiff argues,

the users identified in the complaint acted in concert since, by the
nature of the BitTorrent software, a user simultaneously uploads and
downloads the same copy of the movie.

(Compl. [1] at ¶ 11.)

This

practice is known as the “swarm joinder” theory and many courts,
including several within this District, previously considered and
rejected this theory.

Raw Films, Inc. v. Does 1-32, Civ. No. 1:11-

cv-2939-TWT, 2011 WL 6840590, at *2 (N.D. Ga. Dec. 29, 2011);

The

Bicycle Peddler, LLC, Civ. No. 1:13-cv-921-CAP, Order at Dkt. No. [5]
at 4.
I.

MISJOINDER
Pursuant FED. R. CIV. P. 20(a)(2), a person may be joined in one

action as defendants if “(A) any right to relief is asserted against
them jointly, severally, or in the alternative with respect to or
4

AO 72A
(Rev.8/82)

arising out of the same transaction, occurrence, or series of
transactions or occurrences; and (B) any question of law or fact
common to all defendants will arise in the action.” While misjoinder
is not a ground for dismissing an action, Rule 21 permits a court,
whether on motion or on its own, to sever any claim against any party
as long as it is “on just terms.”

FED. R. CIV. P. 21.

Rule 21 affords district courts broad discretion to sever
improperly joined defendants.

Breaking Glass Pictures, LLC v. Does

1-99, Civ. No. 1:13-cv-882-AT, Order at Dkt. No. [6] at 7.

These

courts “consider several factors in determining whether to exercise
this discretion and sever defendants including whether the claims
arise from the same transaction or occurrence, whether they present
some

common

question

of

law

or

fact,

whether

severance

would

facilitate settlement or judicial economy, and the relative prejudice
to each side if the claim is severed.” Id. (internal citations and
quotations omitted).

As in Breaking Glass, these factors weight in

favor of severance.
A.

Same Transaction or Occurrence

First, the complaint does not allege facts sufficient to show
that the John Does in this case were involved in the same transaction
or occurrence.

The complaint alleges that “[b]ecause of the nature

of a BitTorrent protocol, any user that has downloaded a piece prior
to

the

time

a

subsequent

user
5

AO 72A
(Rev.8/82)

downloads

the

same

file

is

automatically a source for the subsequent peer so long as that prior
user is online at the time the subsequent user downloads a file.”
(Compl. [1] at ¶ 12)(emphasis added).

Further, a user may manually

disconnect from the “swarm” at any time or their BitTorrent client
may disconnect automatically. Diabolic Video, 2011 WL 3100404, at *2.
Therefore, for the unnamed defendants to be involved in the same
transaction, one defendant would necessarily need to be connected to
the

internet

and

still

actively

distributing

data

through

its

BitTorrent client at the same time as another user for that user to
be able to connect and “share” a copy of the movie.

(See Compl. [1]

at ¶¶ 10-12.)
However, plaintiff’s own evidence illustrates the unlikelihood
that many of the defendants identified in this action were online and
“sharing” at the same time.

For example, John Doe 2 was observed to

have been in the BitTorrent swarm on March 2, 2013.
attached to Pl.’s Compl. [1] as Ex. A.)

(Activity Log,

John Doe 11, however, was

observed to be participating on January 9.

(Id.)

Therefore, John

Doe 11 needed to stay online for nearly two (2) months in order to be
involved

in

the

same

implausible at best.

transaction

as

John

Doe

2.

This

seems

See Breaking Glass Pictures, LLC, Civ. No.

1:13-cv-882-AT, Order at Dkt. No. [6] at 8; Hard Drive Prods., Inc.
v. Does 1-188, 809 F. Supp. 2d 1150, 1163 (N.D. Cal. 2011)(“In fact,
the nearly six-week span covering the activity associated with each
6

AO 72A
(Rev.8/82)

of the addresses calls into question whether there was ever common
activity linking the 51 [IP] addresses in this case.”); K-Beech, Inc.
v. John Does 1-47, Civ. No. 1:11-cv-2968-WSD, Order at Dkt. No. [7]
at 6.
Further, it appears that the main link between the defendants in
this suit is not their participation in the same “swarm,” but their
connection to this district since the plaintiff has filed very
similar copyright actions for the movie in at least eight other
districts.1 See K-Beech, Civ. No. 1:11-cv-2968-WSD, Order at Dkt. No.
[7] at 7 n.8.

In fact, at least one of these cases involves a file

identified by the same unique “hash” as one of the cases before the
undersigned,2 an identifier which the plaintiff states is a unique to
each “swarm.”

(Compl. [1] at ¶ 20.)

Thus, according to plaintiff’s

own complaints, those cases must involve the same “swarm,” but the
defendants from the Colorado action were not joined in the action
brought before this district.

Compare Killer Joe Nevada, LLC, Civ

No. 1:13-cv-1450-JEC, Compl. at Dkt. No. [1] at ¶ 20 (N.D. Ga. Apr
30, 2013) with Killer Joe Nevada, LLC v. John Does 1-17, Civ. No.

1

Plaintiff has filed similar copyright suits in the District
of Colorado, the District of Delaware, the Central District of
Illinois, the Eastern District of Tennessee and the Northern and
Southern Districts of Iowa and Ohio.
2

As previously mentioned, in the span of a single week,
plaintiff filed essentially the same copyright action eleven times
against different sets of John Does.
7

AO 72A
(Rev.8/82)

1:13-cv-1292-WYD-MEH, Compl. at Dkt. No. [1] at ¶ 38 (D. Colo. May
17, 2013).3
For these reasons, the Court finds that the instant facts, as
alleged, do not indicate that the defendants participated in the same
transaction or occurrence or were “acting in concert.”

Therefore,

this factor weighs heavily in favor of severing the defendants.
B.

Judicial Efficiency

Keeping these John Doe defendants joined would not promote
judicial efficiency.

In fact, it would likely lead to logistical

confusion and an increased burden on the Court. As Judge Spero aptly
points out:
[P]ermitting joinder would force the Court to address the
unique defenses that are likely to be advanced by each
individual Defendant, creating scores of mini-trials
involving different evidence and testimony.
In this
respect, the Court also notes that in Exhibit A4 to the
Complaint there are listed [several]5 different internet
service provides associated with Doe Defendants, which
could also give rise to different ISP-specific defenses,
evidence, and testimony.

3

As of the date of this order, neither the district nor
magistrate judge assigned to the Colorado action has issued a
substantive order addressing any of the plaintiff’s claims.
4

By happenstance (or perhaps not), Exhibit A of Killer Joe
Nevada’s complaint is also the list of defendants identified by their
IP addresses and the ISPs that provide them service.
5

In Hard Drive, there were 13 different ISPs. Hard Drive, 809
F. Supp. 2d at 1164. In the instant action, customers from at least
three (3) different ISPs have been identified as potential
infringers.
8

AO 72A
(Rev.8/82)

Hard Drive, 809 F. Supp. 2d at 1164.
These fears of the potential for such a logistical nightmare are
not unfounded or purely speculative in nature.

For example, before

severing joined defendants in a similar action, one district court
noted that it was inundated with multiple defendants filing separate
motions to quash raising differing defenses, from innocence to
improper joinder to improper venue.

See On the Cheap, 280 F.R.D. at

502-503.
C.

Prejudice to the Parties

Third, not only will keeping the defendants joined create a huge
logistical
defendants.

burden
For

on

the

example,

court,

it

although

will
the

likely
only

prejudice

relation

the

between

defendants may be their use of BitTorrent, each defendant would be
required to serve all of the other defendants with all pleadings.
See Breaking Glass Pictures, LLC,
Dkt. No. [6] at 9.

Civ. No. 1:13-cv-882-AT, Order at

This task would be made only more burdensome to

those defendants who decide to proceed pro se. Even more frightening
to the Court is that all of the defendants have a right to be at the
other defendants’ depositions and all courtroom proceedings, creating
a situation that may be logistically impossible without instituting
the use of mini-trials.

See Hard Drive, 809 F. Supp. 2d at 1164.

Further, similar prejudice does not exist for the plaintiff.

9

AO 72A
(Rev.8/82)

Nothing

in

today’s

court

order

prevents

the

plaintiff

from

individually suing each defendant and moving forward with each
instance of alleged infringement separately.
below,

the

Court

grants

plaintiff’s

In fact, as concluded

motion

for

leave

to

take

discovery to determine the contact information for John Doe 1 so that
this unnamed defendant can be properly identified.
For these reasons, this factor also weighs in favor of severing
the defendants.
D.

Conclusion

This Court follows the reasoning of the majority of district
courts, including this district, which reject the “swarm joinder”
theory.

See Breaking Glass Pictures, LLC, Civ. No. 1:13-cv-882-AT,

Order at Dkt. No. [6] at 9 (listing several cases within this
district which reject the swarm joinder theory). For the reasons set
forth above, joinder of the 11 defendants in this case is not
appropriate

under

FRCP

20

and,

thus,

the

Court

exercises

its

discretion to sever all but the first John Doe defendant.
II.

PLAINTIFF’S MOTION FOR LEAVE TO TAKE DISCOVERY PRIOR TO RULE
26(f) CONFERENCE
As mentioned above, the Court previously granted plaintiff’s

motion [2].

(See May 8, 2013 Order [3] at 1.)

While the plaintiff

properly asserts the need for expedited discovery, the May 8 Order
grants this motion with respect to all of the defendants.

10

AO 72A
(Rev.8/82)

However,

as explained above, John Does 2-11 have been severed from this
action.

For this reason, the May 8 Order is VACATED.

However, with

respect to John Doe 1, the May 8 Order properly granted the motion.
Therefore, for good cause shown, the Court GRANTS plaintiff’s motion
for leave to take discovery [2] with respect to the sole remaining
defendant in this case.
CONCLUSION
For the reasons set forth above, the Court SEVERS John Does 2-11
and the claims against them are DISMISSED WITHOUT PREJUDICE.
Plaintiff is DIRECTED to designate any actions filed against
these severed defendants as “related” to this action, if they allege
claims like those in the complaint filed here.
The

Court

GRANTS

plaintiff’s

motion

[2]

as

to

the

first

defendant, John Doe 1.

SO ORDERED, this 28th day of May, 2013.

/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE

11

AO 72A
(Rev.8/82)