Breaking Glass Pictures, LLC v. Does 1-188

Filing 23

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that those Defendants Doe #2 through Doe #188 who are still in the action are SEVERED from this action and the claims against them are DISMISSED without prejudice. Signed by District Judge Audrey G. Fleissig on 8/28/13. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

BREAKING GLASS PICTURES, LLC,

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Plaintiff,
v.
DOES 1-188,
Defendants.

Case No. 4:13CV00388 AGF

MEMORANDUM AND ORDER
This “BitTorrent swarm” copyright infringement suit is before the Court on its
own motion. For the reasons set forth below, those Doe Defendants #2 through #188
who are still in the action shall be severed from Doe #1 for misjoinder under Federal Rule
of Civil Procedure 21.
BACKGROUND
Plaintiff Breaking Glass Pictures, LLC, filed this action against 188 Doe
Defendants, claiming that they violated its copyright to a movie by uploading and
downloading it using a peer-to-peer (“P2P”) file sharing client known as BitTorrent.
According to the complaint, P2P networks are computer systems which allow users to
make files stored on each user’s computer system available for copying by other users, or
peers; search for files stored on other users’ computers; and transfer exact copies of files
from one computer to the other via the internet. BitTorrent in particular allows users to
share large files while minimizing the strain on computer networks. It does this by

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breaking files into smaller parts, and then enabling the small parts to be downloaded from
multiple other users, rather than downloading a single large file from one other user’s
computer. BitTorrent coordinates the downloading of the large file between hundreds
and thousands of computers, and as the original user (“peer”) downloads his or her copy
it becomes available for other users to download. The collection of users who
simultaneously share a file is known as a “swarm.”1
Plaintiff alleges that some of the Defendants are Missouri residents and were part
of a swarm that allowed them and others to steal Plaintiff’s movie, “6 Degrees of Hell,”
in violation of its copyright. An exhibit attached to the complaint suggests that this
swarm lasted approximately nine weeks, from December 2, 2012, until January 30, 2013.
Plaintiff seeks damages and injunctive relief against Defendants.
Plaintiff was only able to identify Defendants by their Internet Protocol (“IP”)
address and Internet Service Providers (“ISPs”). By Order dated May 1, 2013, the Court
granted Plaintiff’s request to take pre-service discovery to ascertain Defendants’
identities and contact information by serving subpoenas, within 30 days of the date of the
Order, upon the ISPs for this information.
The ISPs were directed to serve, within 60 days, a copy on Defendants whose IP
addresses were provided by Plaintiff. The Order, which was to be served on Defendants
along with the subpoena, gave Defendants up to 60 days from the date of the Order to file

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See generally Columbia Picture Indus., Inc. v. Fung, 710 F.3d 1020, 1024-28 (9th
Cir. 2013).
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a motion to contest the subpoena, and to do so anonymously. Several Doe defendants
objected and were voluntarily dismissed by Plaintiff.
DISCUSSION
Rule 20 of the Federal Rules of Civil Procedure permits, in relevant part, a
plaintiff to join multiple defendants into one action if “(A) any right to relief is asserted
against them . . . 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 21 permits a court to sever parties sua sponte.
Fed. R. Civ. P. 21 (“On motion or on its own, the court may at any time, on just terms,
add or drop a party.”); Purzel Video GMBH v. Does 1-67, No. 4:13CV450 (SNLJ), 2013
WL 3941383, at *1 (E.D. Mo. July 31, 2013) (“[D]istrict courts across the country are
considering, sua sponte, the issue of whether [BitTorrent] Doe defendants are properly
joined.”).
When determining whether defendants are joined properly, the court should
“liberally construe[ ] [the requirements] in the interest of convenience and judicial
economy in a manner that will secure the just, speedy, and inexpensive termination of the
action.” Call of the Wild Movie, LLC v. Does 1–1,062, 770 F. Supp. 2d 332, 342 (D.D.C.
2011) (citations omitted). If defendants do not satisfy the test for permissive joinder, the
court may sever the misjoined parties, “so long as no substantial right will be prejudiced
by the severance.” Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997) (citation
omitted). “Misjoinder of parties is not a ground for dismissing an action.” Fed. R. Civ.
P. 21.
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There is a split of authority nationally over whether it is appropriate to join in a
single lawsuit many Doe defendants who are alleged to have participated in a single
BitTorrent swarm. Relying on BitTorrent’s architecture, some courts have concluded
that Doe defendants’ infringing activities arise from the same series of transactions or
occurrences if the illegally downloaded torrent file’s unique identifier links each Doe
defendant to the same initial seed and swarm. See, e.g., Digital Sin, Inc. v. Does 1–176,
279 F.R.D. 239, 244 (S.D.N.Y. 2012).
This court is persuaded by the contrary view taken by many courts, that Rule 20(a)
joinder of numerous Doe Defendants is not proper in BitTorrent cases, especially where,
as here, the Doe Defendants’ activities spanned roughly nine weeks. The rationale for
this view is expressed in Hard Drive Productions, Inc. v. Does 1-188, 809 F. Supp. 2d
1150 (N.D. Cal. 2011), as follows:
Does 1–188 did not participate in the same transaction or occurrence, or the
same series of transactions or occurrences. Under the BitTorrent Protocol, it
is not necessary that each of the Does 1-188 participated in or contributed
to the downloading of each other’s copies of the work at issue—or even
participated in or contributed to the downloading by any of the Does 1-188.
Any “pieces” of the work copied or uploaded by any individual Doe may
have gone to any other Doe or to any of the potentially thousands who
participated in a given swarm. The bare fact that a Doe clicked on a
command to participate in 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.
Id. at 1163 (citing numerous cases). The Court believes that these cases are wellreasoned and will follow their precedent.
Even if joinder of the Doe Defendants in this action met the requirements of Rule

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20(a), the Court finds it is appropriate to exercise its discretion to sever and dismiss all
but one Doe Defendant to avoid causing prejudice and unfairness to Defendants, and in
the interest of justice. Rule 20(a)’s purpose of promoting judicial economy and trial
convenience would not be served by allowing the number of defendants in this case
because the ensuing discovery and variety of defenses could prove unwieldy for a single
case. See, e.g., BMG Music v. Does 1-203, No. CV-04-650, 2004 WL 953888, at *1
(E.D. Penn. Apr. 2, 2004) (noting that different defenses would create scores of minitrials involving different evidence and testimony).
In addition, joinder of numerous defendants in a single case may cause them
prejudice. Court proceedings would be hampered as each defendant would have the
opportunity to be present with his or her attorney. Though defendants may have nothing
in common other than their participation in a single BitTorrent swarm, they would be
required to serve every other defendant with all pleadings. Also, each defendant would
have the right to be present at all other defendants’ depositions. “The combination of
these hardships could make conducting litigation difficult for individual defendants.”
Bleiberg Entertainment, LLC v. Does 1-47, No. CV-13-00595-PHX-GMS, 2013 WL
3786641, at *3 (D. Ariz. July 19, 2013).
Recently, in Night of the Templar, LLC v. Does 1-116, this Court decided to
follow this approach. No. 4:12CV02022 (AGF), 2013 WL 4504368, at *4 (E.D. Mo.
August 23, 2013). As noted in Night of the Templar, another court in this District, after
expressing the view that joinder of numerous Doe Defendants in BitTorrent swarm cases
was likely not proper under Rule 20, severed Defendants on the basis of judicial economy
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and fairness. See reFX Audio Software, Inc. v. Does 1-97, No. 4:13-CV-00409 (CEJ),
2013 WL 3766571 (E.D. Mo. July 16, 2013). Since then, at least one other Court in this
District has adopted this approach. See Purzel Video GMBH, 2013 WL 3941383, at *3.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that those Defendants Doe #2 through Doe #188
who are still in the action are SEVERED from this action and the claims against them are
DISMISSED without prejudice.

____________________________________
AUDRERY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 28th day of August, 2013.

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