Killer Joe Nevada, LLC v. Does 1-11

Filing 6

ORDER AND OPINION directing the plaintiff to immediately contact the ISPs to rescind and withdraw previously-issued subpoena for each such defendant. Any information that plaintiff may have obtained through these previously-issued subpoenas must be r eturned. Plaintiff shall ensure that this information is communicated to each ISP by June 25, 2013 and shall report back to the Court by July 1, 2013, providing copies of these letters to each ISP, as well as a report as to its compliance with this Order. Signed by Judge Julie E. Carnes on 6/18/13. (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3, # 4 Attachment 4)(ddm)

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

KILLER JOE NEVADA, LLC
Plaintiff,
v.

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

DOE 1,
Defendants.
ORDER & OPINION
This matter is presently before the Court to resolve an issue
that

has

arisen

regarding

the

possibility

that

plaintiff

is

continuing to take discovery as to unnamed Doe defendants who were
severed from the action and whose cases were dismissed without
prejudice.
BACKGROUND
The plaintiff brought this copyright action, as well as eleven
(11) other essentially identical actions in this district (the
“Killer Joe cases”), against anonymous defendants identified only by
their

internet

protocol

(“IP”)

addresses.

In

its

complaint,

plaintiff asserts that the unnamed defendants “acted in a collective
and interdependent manner” to unlawfully reproduce and distribute
plaintiff’s copyrighted work, “Killer Joe.”

AO 72A
(Rev.8/82)

(Compl. [1] at ¶ 4.)

Plaintiff filed a motion to take discovery prior to a Rule 26(f)
conference because plaintiff asserted that the only way to obtain the
actual names of the alleged infringers was 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 initially granted plaintiff’s motion for discovery,
issuing an Order to that effect on May 8, 2013.

It later, however,

raised, sua sponte, the issue of whether the unnamed defendants were
properly joined under FED. R. CIV. P. 20.

(May 28 Order [4] at 2.)

Specifically, in its May 28, 2013 Order, the Court found that the
unnamed defendants had not been properly joined and for that reason,
it severed all of the John Does, except for the first one, and
dismissed the complaint against these other Does without prejudice.
(Id. at 11.)

Plaintiff was instructed that he could re-file an

action against each John Doe, but must do so separately as to each
defendant and designate the new actions as “related” to the severed
action.

(Id.)

On June 14, an Atlanta-area attorney, Blair Chintella, contacted
the Court’s deputy clerk to alert the Court that potential clients
had recently contacted him regarding the Killer Joe cases.

2

AO 72A
(Rev.8/82)

(See

Attachment #1, Letter from attorney Blair Chintella.)1 This attorney
provided the Court with a copy of a letter sent by the ISP to his
potential client. (Comcast Letter, Attachment #2.)

The letter from

the ISP was dated June 12, 2013 and attached the subpoena it
received, which was dated May 20; the letter does not indicate when
the subpoena was sent.

The attachment to the letter also shows that

the person identified was John Doe #25, not John Doe #1, in the
related action; Killer Joe Nevada, LLC v. Doe 1, Civ. No. 1:13-cv01527-JEC.
After this initial communication with the Court, the attorney
received two more e-mails from potential clients on June 14 and
provided

redacted

versions

(Attachments #3 and #4.)

of

these

e-mails

to

the

Court.

Both of these e-mails indicate that the

potential defendants only recently received these notices from their
ISPs regarding the subpoenas. One e-mail indicates the specific case
involved, Killer Joe Nevada, LLC v. John Doe 1, Civ. No. 1:13-01492,
and that the potential defendant received notice from his ISP on June
13, 2013.

The other e-mail is silent about both of these facts.

Neither e-mail indicates which number John Doe the senders of the emails were.

1

The letter’s date of May 13, 2013 is apparently a typo.
Court assumes the correct date was June 13, 2013.
3

AO 72A
(Rev.8/82)

The

DISCUSSION
As noted in the Court’s previous order, this present litigation
is part of a wave of litigation around the country in which copyright
holders attempt to assert claims against many unknown defendants by
joining them into a single action.

(May 28 Order [4] at 2.)

Unfortunately, before the Court focused on the misjoinder problem,
and

then

severed

and

dismissed

Does

2-11,

it

had

granted

the

plaintiff’s motion for leave to take discovery in order to subpoena
the

names

of

the

individuals

identified

by

the

IP

addresses

associated with the alleged copyright infringement. (See May 3 Order
[3].) Obviously, now that this first order has been vacated and Does
2-11 have been severed and dismissed without prejudice, (May 28 Order
[4]), the subpoenas are null as applied to these John Does.
The recent information provided by Mr. Chintella concerns the
Court.

Although the correspondence and e-mails do not conclusively

show that subpoenas were being sent after May 28, at the least, they
strongly suggest that plaintiff has yet to contact the ISPs to inform
them of the Court’s decision nullifying all subpoenas except for
those directed at John Doe #1.

For these reasons, the Court REMINDS

the plaintiff that discovery should have been discontinued and
rescinded as to all defendants who were severed and dismissed.

The

Court DIRECTS the plaintiff to immediately contact the ISPs in each
case to rescind and withdraw previously-issued subpoena for each such
4

AO 72A
(Rev.8/82)

defendant. Further, any information that plaintiff may have obtained
through these subpoenas must be returned.
Plaintiff shall ensure that this information is communicated to
each ISP by June 25, 2013 and shall report back to the Court by July
1, 2013, providing copies of these letters to each ISP, as well as a
report as to its compliance with this Order.
CONCLUSION
For the above reasons, plaintiff is DIRECTED to notify each ISP
that the previously-issued subpoenas are no longer valid, except as
to the first John Doe.

Any information that plaintiff may have

obtained through these previously-issued subpoenas must be returned.
Plaintiff shall ensure that this information is communicated to each
ISP by June 25, 2013 and shall report back to the Court by July 1,
2013, providing copies of these letters to each ISP, as well as a
report as to its compliance with this Order.

SO ORDERED, this 18th day of June, 2013.

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

5

AO 72A
(Rev.8/82)