Third Degree Films, Inc. v. Does 1 - 118
Filing
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MEMORANDUM OPINION. Signed by Judge Alexander Williams, Jr on 12/28/2011. (c/m 12/28/2011 rk) (ranks, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
THIRD DEGREE FILMS, INC.,
Plaintiff,
v.
DOES 1 – 118,
Defendants.
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Civil Action No. 11-cv-03006-AW
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Memorandum Opinion
Plaintiff Third Degree Films, Inc. filed this action against 118 John Doe defendants for
copyright infringement. Pending before the Court are motions by Does 5, 20, 45, 52, 59, 76, 81,
101, 107, and 108 to dismiss or sever for misjoinder and to quash or modify the subpoena. See
Doc. Nos. 7, 10, 12, 13, 17, 21, 24, 28, 29, 30. Only the motions of Does 20, 107, 108, 5, and 52
are ripe at this time; however, the remaining motions contain substantially the same arguments
and requests for relief. The Court has reviewed all the movants’ motions, and for the reasons set
forth below, they are denied.
I.
FACTUAL & PROCEDURAL BACKGROUND
On October 20, 2011, Plaintiff Patrick Collins, Inc. (“Collins”) filed this Complaint
against 118 John Doe Defendants alleging that Defendants used a file-sharing protocol called
BitTorrent to illegally infringe Plaintiff’s copyrights in a pornographic motion picture. Plaintiff
claims to know the Internet Protocol address (“IP address”) of each infringing defendant, but not
their real names, addresses, or other identifying information. The entity that possesses
information linking an IP address to real identifying information is the Internet Service Provider
(“ISP”) for that IP address. ISPs, such as Comcast or Verizon, maintain temporary internal logs
that record the date, time, and customer identity for each IP address serviced by that ISP. On
October 24, 2011, the Court granted Plaintiff’s Motion to Expedite Discovery prior to the Rule
26(f) conference, enabling Plaintiff to conduct limited discovery on the ISPs that service the
allegedly infringing IP addresses so that Plaintiff can discover the identity of the defendants and
serve them with process. See Doc. No. 6.
Since the Court’s order permitting such discovery, the ISPs have provided their
subscribers with notice of the subpoena. As a result, several of the putative John Doe Defendants
whose contact information has been subpoenaed have filed motions with the Court seeking to
dismiss or sever for misjoinder and to quash the subpoena and prevent the ISPs from turning
over their identifying information. See Doc. Nos. 7, 10, 12, 13, 17, 21, 24, 28, 29, 30.
Specifically, the Doe Defendants contends that Defendants are not properly joined under Federal
Rule of Civil Procedure 21, and that the subpoena burdens and harasses Doe Defendants and
should be quashed pursuant to Federal Rule of Civil Procedure 45(c)(3)(A)(iv). For the reasons
stated below, the Court denies the motions of Does 20, 107, 108, 5, and 52, rendering moot the
motions of the remaining Does.
III.
ANALYSIS
A.
Motion to Dismiss or Sever for Misjoinder
Defendants argue that they are not properly joined under Federal Rule of Civil Procedure
21 and should accordingly be dismissed or severed from the instant action. As an initial matter,
the Court notes that there is a wealth of case law in other federal district courts supporting
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joinder in similar cases. See, e.g., Call of the Wild Movie, LLC v. Does 1-1062, 770 F. Supp. 2d
332, 342-32 (D.D.C. 2011) (finding joinder proper in a similar case involving over 1,000 Doe
Defendants); Donkeyball Movie, LLC v. Does 1-171, Civ. No. 10-1520(BAH), 2011 WL
1807452, at *4-*5 (D.D.C. May 12, 2011) (same); West Coast Prod., Inc. v. Does 1-5829, Civ.
No. 11-57(CKK), 2011 WL 2292239, at *5-*6 (D.D.C. Jun. 10, 2011) (same).
However, courts have also found joinder inappropriate in similar cases. See Pac. Century
Int’l, Ltd. v. Does 1-101, No. C 11-02533 DMR, 2011 WL 2690142 (N.D. Cal. Jul 8, 2011)
(severing all defendants but one due to lack of evidence that defendants were part of the same
“swarm” in uploading the same initial files of a given work); see also Patrick Collins v. Does 158, No. 3:11-cv-531(JAG) (E.D. Va. Oct. 13, 2011) (Doc. No. 17 Ex. 1) (“The mere allegation
that the defendants have used the same peer-to-peer network to copy and reproduce the Work—
which occurred on different days and times over a span of two months—is insufficient to meet
the standards to joinder set forth in Rule 20.”).
Permissive joinder is governed by Federal Rule of Civil Procedure 20, which provides
that:
Persons … 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 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.
Fed. R. Civ. P. 20(a)(2). Many courts have determined that all “logically related” events
underlying a legal cause of action are generally considered as comprising a transaction or
occurrence. See, e.g., Mosley v. Gen. Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974). The
Court may sever improperly joined parties at any time, as long as the severance is on just terms
and the entire action is not dismissed outright. Fed. R. Civ. P. 21. However, “the impulse is
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toward the broadest possible scope of action consistent with fairness to the parties and joinder of
claims, parties and remedies is strongly encouraged.” United Mine Workers of Am. v. Gibbs, 383
U.S. 715, 724 (1966). Considering the two requirements for permissive joinder under Federal
Rule 20(a)(2) as they apply to the instant action, the Court finds that at this procedural juncture,
joinder of the putative Defendants is proper.
The first requirement of permissive joinder is that claims “aris[e] out of the same
transaction, occurrence, or series of transactions or occurrences.” Fed. R. Civ. P. 20(a)(2)(A).
Defendants argue that Plaintiff is attempting to join numerous individuals without alleging any
coordinated action between the Defendants or any right to relief that arises out of the same
transaction. Additionally, they argue that there is no alleged or implied relationship between the
Doe Defendants and that the Complaint contains no allegation that any two Defendants acted in
concert or otherwise conspired against Plaintiff.
These contentions largely ignore the allegations in the Complaint. Plaintiff alleges that
each Defendant peer member participated in the same “swarm” of BitTorrent users that illegally
uploaded and downloaded Plaintiff’s copyrighted movie. See Compl. ¶¶ 7, 8. Additionally,
Plaintiff contends that it has only sued Defendants in the exact same swarm, i.e., Defendants who
participated in downloading or transmitting the same unique version of Plaintiff’s movie. Id.
Plaintiff explains that such identification is possible through the use of forensic software which
identifies the Doe Defendants’ IP Addresses as having a unique cryptographic “Hash Number”
which serves as a digital footprint. See id. ¶ 8.
Defendants point out that this swarm involved possibly thousands of other online users
from across the country. Even though Plaintiff is suing only a small portion of the swarm, the
Court finds that Plaintiff has sufficiently alleged that the putative Defendants used the same file-
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sharing device at around the same time to copy the same version of Plaintiff’s movie.
Additionally, Plaintiff has sufficiently alleged not only that each Doe played a role in the
collaborative effort of distributing Plaintiff’s movie, but that each of the 118 Defendants may
have directly facilitated the download of Plaintiff’s movie by another of the 118 Defendants. See
Call of the Wild Movie, 770 F. Supp. 2d 332, 343 (D.D.C. 2011) (finding joinder proper where
“[e]ach putative defendant is a possible source for the plaintiffs’ motion pictures, and may be
responsible for distributing the motion pictures to other putative defendants”). Although
Defendants may be able to rebut these allegations once the Court becomes aware of their
identities and individual defenses, at this stage Plaintiffs have adequately satisfied the first prong
of permissive joinder.
The second prong of the permissive joinder test, Federal Rule 20(a)(2)(B), requires
Plaintiff’s claims against Defendants to contain common questions of law or fact. Plaintiff meets
this requirement in the instant action because it asserts identical claims against the Doe
Defendants. Although Defendants will necessarily present different factual issues and legal
defenses at a later stage in the litigation, the commonality of legal claims at this time supports
joinder. Additionally, the interests of judicial efficiency also weigh in favor of joining these
claims, and doing so may be more beneficial for the Doe Defendants. See London-Sire Records,
Inc. v. Doe 1, 542 F. Supp. 2d 153, 161 (D. Mass. 2008) (finding that consolidating a group of
similar cases “ensures administrative efficiency for the Court, the plaintiffs, and the ISP, and
allows the defendants to see the defenses, if any, that other John Does have raised.”). Moreover,
joinder serves Plaintiff’s interests by providing it with an effective tool to protect its motion
picture from copyright infringement. Accordingly, the Court finds that joinder is proper and
accordingly declines to sever or dismiss the movant Does on that basis.
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B.
Motion to Quash Subpoenas
Additionally, several John Does have filed motions to quash the subpoena issued to the
ISPs seeking information about the Doe Defendants. Defendants contend that the subpoena
burdens and harasses them and should be quashed pursuant to Federal Rule of Civil Procedure
45(c)(3)(A)(iv). Federal Rule 45 provides that pursuant to a timely motion, the issuing court
must quash or modify a subpoena that, inter alia, “subjects a person to undue burden.” In the
instant action, the Court permitted Plaintiff to serve subpoenas on ISPs so that Plaintiff may
identify the Doe Defendants responsible for the alleged infringement. Such identification is
necessary so that Plaintiff may pursue these actions and enforce its legal rights to distribute its
pornographic motion picture by obtaining a remedy against infringers. Defendants’ argument
that the subpoena presents an undue burden is unavailing because the subpoena is directed
toward the ISPs and not the Doe Defendants and accordingly does not require them to produce
any information or otherwise respond. Accordingly, the Court denies Defendants’ motions to
quash the subpoena on this ground.
IV.
CONCLUSION
For the foregoing reasons, Defendants’ motions are denied. A separate order will follow.
December 28, 2011
Date
/s/
Alexander Williams, Jr.
United States District Judge
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