I.T. Productions, LLC v. Doe 1 et al

Filing 7

MEMORANDUM AND ORDER severing all Doe defendants with the exception of Doe 1 and DISMISSING the claims of Plaintiff against severed Doe Defendants 2-12. Signed by Judge Deborah K. Chasanow on 1/17/2017. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
I.T. PRODUCTIONS, LLC
:
v.

:

Civil Action No. DKC 16-3999

:
DOES 1-12
:
MEMORANDUM OPINION AND ORDER
On

December

(“Plaintiff”)
against

twelve

(ECF No. 1).
I.T.

(“the

16,

filed
“John

2016,
this

Plaintiff

action

Doe”

for

defendants

I.T.

Productions,

copyright
(the

“Doe

LLC

infringement
Defendants”).

Plaintiff owns the copyright to a movie titled

Work”).

The

Doe

Defendants

are

alleged

to

have

downloaded and/or uploaded the Work illegally using an internet
protocol called BitTorrent.
in

the

complaint

only

by

The Doe Defendants are identified
internet

protocol

(“IP”)

addresses

assigned to a customer on a specific date by an Internet Service
Provider (“ISP” or “Provider”) and through which the copyrighted
work was allegedly downloaded.

On December 16, Plaintiff was

directed to show cause why the court should not sever the Doe
Defendants, with the exception of Doe 1, from this action and
dismiss the claims against severed Does 2-12 without prejudice.
(ECF No. 4).

Plaintiff responded on January 6.

(ECF No. 6).

For the following reasons, the court finds the joinder of the

Doe Defendants improper and will sever the claims against all
defendants except Doe 1, IP address 24.126.121.140.
Plaintiff contends that joinder of the Defendants is proper
under

Fed.R.Civ.P.

20(a)(2)

because

the

Defendants’

acts

of

infringement were part of a series of transactions on September
24,

2016,

involving

the

same

piece

of

the

Work.

Plaintiff

alleges that the acts of infringement were performed by the Doe
Defendants

acting

in

concert

with

one

another

by

BitTorrent, a peer-to-peer file sharing protocol.1

using

Plaintiff

alleges that the Doe Defendants participated in the same swarm,
a

group

of

BitTorrent

users

sharing

a

file,

to

receive

and

transmit a digital copy of the Work associated with a specific
hash value.

(See ECF No. 1 ¶¶ 50-63).

Federal Rule of Civil Procedure 20 permits a plaintiff to
join parties in a single action if (1) a right to relief is
asserted

against

transaction,

the

defendants

occurrence,

or

with

series

respect
of

to

the

transactions

same
or

occurrences; and (2) a common question of law or fact will arise
in the action.

Fed.R.Civ.P. 20(a)(2).

The rule grants courts

“wide discretion concerning the permissive joinder of parties.”
Aleman v. Chugach Support Servs., Inc., 485 F.3d 206, 218 n.5
1

The BitTorrent protocol is described in more detail in the
complaint. (See ECF No. 1 ¶¶ 22-41); see also Patrick Collins,
Inc. v. John Does 1-28, No. 12-13670, 2013 WL 359759, at *1-3
(E.D.Mich. Jan. 29, 2013).
It allows a digital file to be
anonymously shared through a piecemeal process.
2

(4th Cir. 2007).

If Rule 20’s requirements are not met, the

court has the power to sua sponte sever the defendants deemed to
be improperly joined pursuant to Rule 21.

See, e.g., Patrick

Collins, Inc. v. Does 1-23, No. 8:12-CV-00087, 2012 WL 1144918,
at *1 (D.Md. Apr. 4, 2012).
Plaintiff’s

allegations

do

not

support

the

multiple unknown and otherwise unrelated defendants.

joinder

of

The “swarm

joinder theory” advanced by Plaintiff “has been considered by
various district courts, the majority of which have rejected
it.”

Raw Films, Inc. v. Does 1-32, No. 1:11-CV-2939-TWT, 2011

WL 6840590, at *2 (N.D.Ga. Dec. 29, 2011).

Although courts are

split on this issue, recent decisions of courts in this district
in similar copyright infringement cases have found joinder to be
improper.2

See,

e.g.,

Mem.

&

Order

Re:

Severance,

Criminal

Prods., Inc. v. Doe 1, et al., No. RWT-16-3208 (D.Md. Sept. 28,
2016); Order Re: Severance, LHF Prods., Inc. v. Does 1-14, No.
MJG-16-2759 (D.Md. Sept. 7, 2016); Third Degree Films, Inc. v.
Does 1-108, No. DKC 11-3007, 2012 WL 1514807, at *3 (D.Md. Apr.
27, 2012); SBO Pictures, Inc. v. Does 1–57, No. RWT 12cv22, 2012
WL 1415523, at *2 (D.Md. Apr. 20, 2012); CineTel Films, Inc. v.

2

As Plaintiff notes, Plaintiff’s counsel has recently filed
six other copyright infringement cases in this district.
(ECF
No. 6, at 16).
In four of those cases, the court has either
issued a sua sponte order severing the claims against all but
one defendant or directed the plaintiff to show cause why the
claims should not be severed. (Id.).
3

Does 1–1,052, 853 F.Supp.2d 545, 548-54 (D.Md. 2012); Patrick
Collins, 2012 WL 1144918, at *1.
The

court

agrees

that

the

properties

of

BitTorrent

are

insufficient to support joinder because Rule 20’s transactional
component has not been met, i.e., the multiple Doe defendants,
even though the IP addresses are alleged to participate in the
same swarm, do not constitute “the same transaction, occurrence
or series of transactions or occurrences.”

Fed.R.Civ.P. 20.

The conclusory allegation that the Defendants acted in concert
with one another is insufficient to establish that downloading
and uploading a work as part of a swarm constitutes concerted
action.

See Hard Drive Prods., Inc. v. Does 1-188, 809 F.

Supp.2d 1150, 1160 (N.D.Cal. 2011) (“As a threshold matter, the
court

rejected

transaction

or

the

plaintiff’s

series

of

argument

that

closely-related

the

single

transactions

requirement under Rule 20(a)(2) was satisfied merely because all
defendants joined a common ‘swarm’ to upload or download the
copyrighted film.” (discussing Diabolic Video Prods., Inc. v.
Does 1-2099, No. 10-CV-5865-PSG, 2011 WL 3100404 (N.D.Cal. May
31, 2011)).

As Judge Garbis recently noted in holding that the

allegation that defendants participated in a single swarm was
insufficient to support joinder, “[r]ather than the individual
defendants

directly

working

together

to

obtain

a

particular

file, it is the software, BitTorrent, that is smart enough to
4

seek out multiple unrelated people who have the same file and
download it in pieces from several sources at once.”3

Order Re:

Severance at 4, LHF Prods., No. MJG-16-2759.
Moreover,
different
claims,

because

and

each

divergent

“joinder

raises

Doe

Defendant

defenses
serious

to

is

likely

to

have

the

copyright

violation

fairness

concerns.”

CineTel

Films, Inc., 853 F.Supp.2d at 552; see also Third Degree Films,
2012 WL 1514807, at *3-4.

Thus, even if joinder were proper

under Rule 20, the court would still find it appropriate to
exercise its discretion to sever all but one defendant to avoid
potential
economy

prejudice

and

trial

and

unfairness,

convenience.

and

See

to

promote

Hard

Drive

judicial

Prods.,

809

F.Supp.2d at 1164.
Finally,
better

Plaintiff

analyzed

once

identified and served.

argues
the

that

unknown

the
Doe

issue

of

Defendants

(ECF No. 6, at 19).

joinder
have

is

been

In Third Degree

Films, this court initially denied defendants’ motions to sever,
holding in part that joinder for the limited purposes of serving
the

subpoenas

1514807, at *2.

on

the

Doe

defendants

was

proper.

2012

WL

The court initially expected that the fairness

3

Plaintiff also argues that this case is distinguishable
because it alleges contributory infringement, in addition to
direct infringement, against each Doe Defendant, and emphasizes
that this is not a “mass” copyright infringement action.
(ECF
No. 6, at 9-10).
As in LHF Productions and Criminal
Productions, the court finds that the addition of this claim is
insufficient to support joinder under Rule 20.
5

concerns raised by defendants’ potentially different facts and
defenses would not be apparent until after they were served and
appeared in the action.

Id. at *3.

In subsequently revisiting

the issue and holding joinder to be improper, the court noted
that, “[c]ontrary to expectations, . . . the motions to quash
and sever have themselves presented a wide variety of factual
and

legal

issues

pertinent

to

this

case.”

Id.

The

Doe

Defendants’ personal identifying information is not needed to
evaluate joinder, see CineTel Films, 853 F.Supp.2d at 549, and
the experience of this court has proven that the countervailing
concerns of “prejudice, expense, or delay,” see Aleman, 485 F.3d
at 218 n.5, substantially outweigh any convenience.

Joinder is

thus improper, and severance at this stage of the litigation is
appropriate.4

4

Plaintiff also argues that the court may only “drop”
misjoined parties, dismissing that defendant from the case
without prejudice, or sever claims and allow those claims to
proceed with a new case number, and that if the court finds that
joinder is improper, the claims against Does 2-12 should only be
severed and not dismissed.
(ECF No. 6, at 21-23 & n.12).
Plaintiff has not shown that the statute of limitations or
another issue limits the court’s discretion to dismiss under
Rule 21 here. See DirecTV, Inc. v. Leto, 467 F.3d 842, 845 (3d
Cir. 2006) (“Because a district court’s decision to remedy
misjoinder by dropping and dismissing a party, rather than
severing the relevant claim, may have important and potentially
adverse statute-of-limitations consequences, the discretion
delegated to the trial judge to dismiss under Rule 21 is
restricted to what is ‘just.’”).
Accordingly, the court will
sever Doe Defendants 2-12 and dismiss Plaintiff’s claims against
the severed Doe Defendants. To be clear, the court is available
to Plaintiff to enforce its copyright, but Plaintiff must
6

Accordingly, it is this 17th day of January, 2017, by the
United

States

District

Court

for

the

District

of

Maryland,

ORDERED that:
1.

With

the

exception

of

Doe

1,

IP

address

24.126.121.140, all Doe Defendants BE, and the same hereby ARE,
SEVERED from this action;
2.

The claims of Plaintiff I.T. Productions, LLC, against

the severed Doe Defendants 2-12 BE, and the same hereby ARE,
DISMISSED without prejudice; and
3.

The

clerk

will

transmit

copies

of

the

Memorandum

Opinion and this Order to counsel for the parties.

/s/
DEBORAH K. CHASANOW
United States District Judge

separately file individual cases against each Doe Defendant.
The
joinder
mechanism
cannot
be
permitted
in
these
circumstances.
7