Kick Ass Pictures, Inc. v. Does 1 - 25

Filing 7

Judge Mark L. Wolf: MEMORANDUM AND ORDER entered denying 4 Motion for Discovery.Accordingly, it is hereby ORDERED that: 1. By January 31, 2012, the plaintiff shall file a memorandum and supporting affidavits addressing the foregoing questions and seeking to show cause why its claims against each unidentified defendant except "Doe 1" should not be dismissed without prejudice to being refiled as individual cases. See, e.g., Third Degree Films v. Does 1-47, --- F.R.D. ----, 2012 WL 44 98911, *6-*10 (D. Mass. Oct. 2, 2012); New Sensations, Inc. v. Does 1-201, 12-11720-RGS, Electronic Order (Oct. 10, 2012); Liberty Media Holdings LLC v. BitTorrent Swarm, 277 F.R.D. 672, 675-76 (S.D. Fla. 2011); Hard Drive Prods., Inc. v. Does 1188, 809 F. Supp. 2d 1150, 1158-65 (N.D. Cal. 2011). 2. Plaintiff's Emergency Ex Parte Motion for Early Discovery (Docket No. 4) is DENIED without prejudice to resubmission pending resolution of the issues described in this Memorandum and Order. (Hohler, Daniel)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
KICK ASS PICTURES, INC.,
Plaintiff,
v.
DOES 1-25,
Defendants

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C.A. No. 12-10810-MLW

MEMORANDUM AND ORDER
WOLF, D.J.

January 4, 2013

Plaintiff Kick Ass Pictures, Inc., is a California corporation
and the owner of a copyrighted adult movie (the "Movie"). Plaintiff
alleges that each of the 25 unknown "Doe" defendants in this case
infringed on its copyright by reproducing and distributing at least
a portion of the Movie through the Internet peer-to-peer filesharing

software

BitTorrent.

Plaintiff

has

identified

the

defendants by the Internet Protocol ("IP") addresses assigned to
each defendant by their Internet Service Providers ("ISPs") in
Massachusetts. Plaintiff has filed an Emergency Ex Parte Motion for
Early Discovery (Docket No. 4), seeking to subpoena the respective
ISPs to obtain identifying information regarding defendants.
This case is one of several filed in this district in which
adult video companies, represented by the same counsel, seek relief
from unknown Doe defendants for alleged copyright violations. See,
e.g., Third Degree Films v. Does 1-47, --- F.R.D. ----, 2012 WL
4498911 (D. Mass. Oct. 2, 2012) (Young, J.); New Sensations, Inc.
v. Does 1-201, No. 12–cv-11720–RGS, 2012 WL 4370864 (D. Mass. Sep.
21, 2012) (Stearns, J.) ("New Sensations I"); Discount Video Ctr.,

Inc. v. Does 1-29, 2012 WL 5464175 (D. Mass. Nov. 7, 2012)
(Sorokin, M.J.); Exquisite Multimedia, Inc. v. Does 1-35, No.
12-cv-10813-MLW. These cases are similar to others filed by film
companies and copyright holders in many districts. See, e.g.,
Liberty Media Holdings LLC v. BitTorrent Swarm, 277 F.R.D. 672
(S.D. Fla. 2011); Hard Drive Prods., Inc. v. Does 1–188, 809 F.
Supp. 2d 1150 (N.D. Cal. 2011); Call of the Wild Movie, LLC v. Does
1–1,062, 770 F. Supp. 2d 332 (D.D.C. 2011); Digital Sin, Inc. v.
Does 1-176, 279 F.R.D. 239 (S.D.N.Y. 2012). Some commentators have
characterized such cases as "copyright trolling" –- cases in which
a copyright holder files a mass copyright infringement lawsuit and
subpoenas identifying information for anonymous Doe defendants,
intending to send demand letters and achieve prompt settlements for
limited amounts rather than intending to actually litigate the
claims asserted. See Third Degree Films, 2012 WL 4498911, at *1
(and sources cited); see also Discount Video Ctr., 2012 WL 5464175,
at *1-*4 (after hearing, denying motion for ex parte discovery and
noting that plaintiffs did not appear interested in amending and
serving complaint on defendants, but rather were interested in
disclosure of names of ISP subscribers so as to settle or dismiss
claims on an informal basis).
Many courts have considered whether joinder of unidentified
Doe

defendants

in

similar

Internet

file-sharing

cases

is

permissible under the Federal Rules of Civil Procedure. See, e.g.,

2

Third Degree Films, 2012 WL 4498911, at *1-*6; see also Liberty
Media Holdings, 277 F.R.D. at 675; Hard Drive Prods., 809 F. Supp.
2d at 1159-65; Call of the Wild Movie, 770 F. Supp. 2d at 342-45;
Digital Sin, 279 F.R.D. at 243-44. Pursuant to Federal Rule of
Civil Procedure 20(a)(2), permissive joinder of defendants is
proper 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." In cases of
misjoinder, Federal Rule of Civil Procedure 21 provides that "[o]n
motion or on its own, the court may at any time, on just terms, add
or drop a party. The court may also sever any claim against a
party." If joinder is permissible under Rule 20(a), a court may
nevertheless take measures to protect defendants from possible
prejudice or unfairness, including by severing them under Federal
Rule of Civil Procedure 20(b), which states that the "court may
issue orders — including an order for separate trials — to protect
a party against embarrassment, delay, expense, or other prejudice
that arises from including a person against whom the party asserts
no claim and who asserts no claim against the party." Similarly,
under Federal Rule of Civil Procedure 42(b), a "court may order a
separate trial of one or more separate issues, claims, crossclaims,
counterclaims, or third-party claims" for a variety of reasons,

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including "avoid[ing] prejudice."
Meaningful questions relating to joinder are presented by the
instant case. First is the question of whether, on the alleged
facts of this case, joinder is permissible. Compare New Sensations,
Inc. v. Does 1-201, 12-11720-RGS, Electronic Order (Oct. 10, 2012)
("New

Sensations

II")

(concluding

defendants

in

BitTorrent

copyright infringement case not properly joined, severing all
defendants

but

Doe

1,

and

dismissing

remaining

Does

without

prejudice); Liberty Media Holdings, 277 F.R.D. at 675-76 (holding
joinder improper under Rule 20(a) due to nature of BitTorrent file
sharing, and severing and dismissing all defendants except Doe 1);
Hard Drive Prods., 809 F. Supp. 2d at 1159-65 (same) with Call of
the Wild Movie, 770 F. Supp. 2d at 342–45 (concluding joinder of
defendants in BitTorrent copyright infringement case permissible
under Rule 20(a)); Digital Sin, 279 F.R.D. at 243-44 (same); see
also Third Degree Films, 2012 WL 4498911, at *3-*6.1
Second is the question of whether, if joinder is permissible,
the court should exercise its discretion to sever all defendants.
See,

e.g.,

Third

Degree

Films,

2012

WL

4498911,

at

*6-*10

(concluding that although joinder of defendants in BitTorrent
copyright infringement case was permissible under Rule 20(a), the

1

For more cases discussing the split of authority in
federal courts regarding joinder of defendants in such cases, see
Patrick Collins, Inc. v. Does 1-23, No. JFM 8:12–cv–00087, 2012
WL 1144918, at *3 (D. Md. Apr. 4, 2012) (and cases cited).
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court should sever all defendants under the protective measures
provision of Rule 20(b)); see also Hard Drive Prods., 809 F. Supp.
2d at 1164-65 (stating that even if the court had determined that
joinder was proper in BitTorrent copyright infringement case, the
court would have found it appropriate to exercise its discretion to
sever and dismiss all but one Doe defendant in the interest of
justice

to

avoid

causing

prejudice

and

unfairness

to

other

defendants); Liberty Media Holdings, 277 F.R.D. at 676 (same).
Third are the related questions, if joinder is permissible but
severance is justified, whether the court has the authority to
dismiss all other defendants besides Doe 1 and require filing of
separate lawsuits against them, and, if so, whether the court
should do so. See, e.g., Third Degree Films, 2012 WL 4498911, at
*1-*10

(severing

Doe

defendants

in

BitTorrent

copyright

infringement case and dismissing all defendants except Doe 1
without prejudice to refiling in separate actions); Hard Drive
Prods., 809 F. Supp. 2d at 1164-65 (same); Liberty Media Holdings,
277

F.R.D.

at

675-76

(same);

see

also

New

Sensations

II,

12-11720-RGS, Electronic Order (Oct. 10, 2012) (same).
Accordingly, it is hereby ORDERED that:
1. By January 31, 2012, the plaintiff shall file a memorandum
and supporting affidavits addressing the foregoing questions and
seeking to show cause why its claims against each unidentified
defendant except "Doe 1" should not be dismissed without prejudice

5

to being refiled as individual cases. See, e.g., Third Degree Films
v. Does 1-47, --- F.R.D. ----, 2012 WL 4498911, *6-*10 (D. Mass.
Oct. 2, 2012); New Sensations, Inc. v. Does 1-201, 12-11720-RGS,
Electronic Order (Oct. 10, 2012); Liberty Media Holdings LLC v.
BitTorrent Swarm, 277 F.R.D. 672, 675-76 (S.D. Fla. 2011); Hard
Drive Prods., Inc. v. Does 1–188, 809 F. Supp. 2d 1150, 1158-65
(N.D. Cal. 2011).
2. Plaintiff's Emergency Ex Parte Motion for Early Discovery
(Docket No. 4) is DENIED without prejudice to resubmission pending
resolution of the issues described in this Memorandum and Order.

/s/ Mark L. Wolf
UNITED STATES DISTRICT JUDGE

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