reFX Audio Software Inc. v. Does 1-100

Filing 86

MEMORANDUM AND ORDER: IT IS FURTHER ORDERED that that all remaining defendants, with the exception of Defendant Brian Wiltowski, are SEVERED from this action and the claims against them are DISMISSED without prejudice.. Signed by District Judge Rodney W. Sippel on 11/26/13. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
reFX AUDIO SOFTWARE INC.,
Plaintiff,
vs.
DOES 1–100,
Defendants.

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Case No. 4:12 CV 2095 RWS

MEMORANDUM AND ORDER
This matter is before the Court on its own motion. After further review, I have determined that
defendants were misjoined. For the reasons stated below, those defendants who are still party to this
action shall be severed from Defendant Brian Wiltowski for misjoinder under Federal Rule of Civil
Procedure 21.1
BACKGROUND
Plaintiff is the copyright holder of Nexus 2.2.0 and Nexus 2.2.1, audio mixing software products.
On November 8, 2012, Plaintiff initiated this action against Does 1-100, alleging copyright infringement
pursuant to the United States Copyright Act of 1976, 17 U.S.C. §§ 101 et. seq. Plaintiff identified the
Doe Defendants by their unique Internet Protocol (IP) Addresses, which were assigned to them by their
Internet Service Providers (ISPs).
Plaintiff alleges that each defendant used a file sharing program known as BitTorrent to illegally
obtain and distribute their Nexus software. Unlike traditional peer-to-peer file sharing programs, which
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During the course of this action Plaintiff has identified several Doe Defendants and named them as parties to this action.
Additionally, several Does and named defendants have been dismissed from this action. Defendant Brian Wiltowski,
formerly known as Doe #4, is the first remaining defendant.
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required users to download a file from a single source, BitTorrent allows users to download many
different pieces of a single file from many different sources. The file sharing process begins when the
initial file-provider elects to share a file, called the ―
seed,‖ with a torrent network. This seed file is
broken down in to many pieces. As other users download the seed file, they become part of the network
from which the file can be downloaded. This network of participants simultaneously sharing pieces of
data is often referred to as a ―
swarm.‖ Plaintiff alleges that the defendants simultaneously participated
in the same swarm to unlawfully obtain and distribute their Nexus software.
Plaintiff sought to obtain defendants' identities through expedited discovery. On November 27,
2012, I granted Plaintiff's motion for leave to take expedited discovery and ordered that Plaintiff be
allowed to serve Rule 45 subpoenas on the ISPs identified in the exhibit attached to the complaint in
order to obtain the identity of each Doe.
LEGAL STANDARD
Federal Rule of Civil Procedure 20 states that defendants may be properly joined in one action if:
― any right to relief is asserted against them jointly, severally, or in the alternative with respect to or
(A)
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). Rule
20 is designed to promote judicial economy and trial convenience. See Mosley v. Gen. Motors, 497
F.2d 1330, 1332-33 (8th Cir. 1974). ―
Under the Rules, the impulse is toward entertaining the broadest
possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is
strongly encouraged.‖ United Mine Workers of America v. Gibbs, 383 U.S. 715, 724 (1966). The
remedy for improper joinder of parties is not dismissal; instead, the court may drop a party or sever any
claim against a party. Fed.R.Civ.P. 21. Rule 21 permits a court to sever parties sua sponte. Id. (―
On
motion or on its own, the court may at any time, on just terms, add or drop a party.‖).

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DISCUSSION
With the advent of BitTorrent technology and the subsequent copyright infringement litigation
that has flooded courthouses across the nation, district courts have been divided as to whether many
individuals alleged to have participated in the same BitTorrent swarm are properly joined under Rule 20.
See Private Lenders Group, Inc. v. Does 1-17, No. 4:13–CV–285 (CEJ), 2013 WL 4522019 (E.D.Mo.
Aug. 27, 2013) (collecting cases). I am persuaded by the many courts, including several in this District,
that have found that the mere allegation that defendants participated in the same BitTorrent swarm does
not establish that defendants’ infringing activities arise from the same transaction or a series of closely
related transactions. See, e.g., id.; West Coast Productions, Inc. v. Does 1-71, No. 4:12-CV-01551
(AGF), 2013 WL 5442785 (E.D.Mo. Sept. 30, 2013).
Plaintiff alleges that the Doe Defendants acted in concert when they joined a single BitTorrent
swarm to obtain and distribute their copyrighted material. However, each defendant joined the swarm
on different dates, at different times, over a span of 37 days. While Plaintiff makes conclusory
allegations that the defendants acted collectively, it has not alleged that the defendants’ computers ever
actually communicated with each other. Plaintiff does not plead facts showing that the defendants
exchanged pieces of Plaintiff’s copyrighted material with one another. For joinder to be appropriate, it
is not enough to allege that defendants committed the same infringing activity in the same manner, there
must some ―
transactional link‖ between the defendants. See Boy Racer v. Does 1-60, No. C 11–01738
SI, 2011 WL 3652521, at *4 (―
Allegations that defendants used a single peer-to-peer network to
download plaintiff's works—on different days, at different times, and through different ISPs—is
insufficient to allow plaintiff to litigate against sixty different defendants in one action.‖). Because any
connection between the defendants' otherwise separate and independent acts is entirely speculative,
joinder under Rule 20(a) is not proper. See Hard Drive Productions, Inc. v. Does 1-188, 809 F.Supp.2d

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1150, 1163 (N.D.Cal. 2011) (― bare fact that a Doe clicked on a command to participate in the
The
BitTorrent Protocol does not mean that they were part of the downloading by unknown hundreds or
thousands of individuals across the country or across the world.‖).
Even if joinder of the defendants in this action satisfied the requirements of Rule 20, I would
exercise my discretion to sever in the interest of justice. Permitting joinder would undermine Rule 20’s
purpose of promoting fairness and judicial economy because it would result in a logistically
unmanageable case. See ReFX Audio Software, Inc. v. Does 1–97, No. 4:13–CV–409 (CEJ), 2013 WL
3766571, at *3 (E.D.Mo. July 16, 2013). While each defendant is accused of similar behavior, they are
likely to advance a unique defense. To maintain any sense of fairness, each individual defendant would
have to receive a mini-trial, involving different evidence and testimony. Furthermore, joinder of
numerous defendants in a single case may cause them prejudice. For example, the case could be
hampered as each defendant would have the right to attend all depositions and court proceedings with
his or her attorney. The defendants—many of whom will be proceeding pro se—would suffer prejudice
if forced to litigate as a group.
Accordingly,
IT IS FURTHER ORDERED that that all remaining defendants, with the exception of
Defendant Brian Wiltowski, are SEVERED from this action and the claims against them are
DISMISSED without prejudice.

_____________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 26th day of November, 2013.
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