I.T. Productions, LLC v. Doe 1 et al
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
Civil Action No. DKC 16-3999
MEMORANDUM OPINION AND ORDER
(ECF No. 1).
Plaintiff owns the copyright to a movie titled
downloaded and/or uploaded the Work illegally using an internet
protocol called BitTorrent.
The Doe Defendants are identified
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 184.108.40.206.
Plaintiff contends that joinder of the Defendants is proper
infringement were part of a series of transactions on September
alleges that the acts of infringement were performed by the Doe
BitTorrent, a peer-to-peer file sharing protocol.1
alleges that the Doe Defendants participated in the same swarm,
transmit a digital copy of the Work associated with a specific
(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
occurrences; and (2) a common question of law or fact will arise
in the action.
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
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.
(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).
multiple unknown and otherwise unrelated defendants.
joinder theory” advanced by Plaintiff “has been considered by
various district courts, the majority of which have rejected
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
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.
As Plaintiff notes, Plaintiff’s counsel has recently filed
six other copyright infringement cases in this district.
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.).
Does 1–1,052, 853 F.Supp.2d 545, 548-54 (D.Md. 2012); Patrick
Collins, 2012 WL 1144918, at *1.
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.”
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
See Hard Drive Prods., Inc. v. Does 1-188, 809 F.
Supp.2d 1150, 1160 (N.D.Cal. 2011) (“As a threshold matter, the
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
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
file, it is the software, BitTorrent, that is smart enough to
seek out multiple unrelated people who have the same file and
download it in pieces from several sources at once.”3
Severance at 4, LHF Prods., No. MJG-16-2759.
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
F.Supp.2d at 1164.
identified and served.
(ECF No. 6, at 19).
In Third Degree
Films, this court initially denied defendants’ motions to sever,
holding in part that joinder for the limited purposes of serving
1514807, at *2.
The court initially expected that the fairness
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.
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.
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
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.
thus improper, and severance at this stage of the litigation is
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
Accordingly, it is this 17th day of January, 2017, by the
220.127.116.11, all Doe Defendants BE, and the same hereby ARE,
SEVERED from this action;
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
Opinion and this Order to counsel for the parties.
DEBORAH K. CHASANOW
United States District Judge
separately file individual cases against each Doe Defendant.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?