Purzel Video GMBH v. Does 1-67
MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that defendant Doe 60's Motion to Sever (#15) is GRANTED. IT IS FURTHER ORDERED that defendant Does 2 through 20 and Does 22 through 67 are SEVERED from this action, and the claims against them are DISMISSED without prejudice. IT IS FURTHER ORDERED that defendant Doe 60's Motion to Quash and Motion to Proceed Anonymously are denied as moot. Signed by District Judge Stephen N. Limbaugh, Jr on 7/31/13. (MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
PURZEL VIDEO GMBH,
Case No. 4:13-cv-450 SNLJ
MEMORANDUM AND ORDER
This matter is before the Court on Doe 60's motion to proceed anonymously, motion to
sever, and motion to quash subpoena (#15). Plaintiff Purzel Video GMBH filed this action
against defendants identified as Does 1 through 67 on March 11, 2013. Plaintiff alleges that the
Does had violated Purzel’s copyrights with respect to a motion picture using an internet-based
application known as Bit Torrent. The Does are identified in the complaint only by internet
protocol (“IP”) addresses, each of which is unique to an internet subscriber. Plaintiff alleges that
the Does have each obtained and shared the movie using the internet in violation of plaintiff’s
copyrights. In order to ascertain the names of the individuals alleged to have violated plaintiff’s
copyrights, plaintiff sought (#3) and received (#7) leave to take discovery prior to a Rule 26(f)
conference. Plaintiff then served a subpoena on the internet service provider (“ISP”) responsible
for providing internet access to the IP addresses in question. Plaintiff plans to name as
defendants the individuals identified by the ISP.
Many similar cases have been filed recently with this Court by copyright holders who are
pursuing their copyright claims against dozens of unknown defendants in a single case. See, e.g.,
PHE, Inc. v. Does 1-27, No. 4:13cv480 (SNLJ); reFX Audio Software, Inc. v. Does 1-97, No.
4:13cv409 (CEJ); Vision Films, Inc. v. Does 1-30, No. 4:13cv20 (RWS); Private Lenders
Groups, Inc. v. Does 1-17, 4:13cv285 (CEJ); Breaking Glass Pictures, LLC v. Does 1-188, No.
4:13cv388 (AGF); reFX Audio Software Inc. v. Does 1-53, No. 4:13cv408 (CDP); Maxcon
Productions, Inc. v. Does 1-88, No. 4:13cv428 (TCM). The complaints of these and other cases
allege that they involve “swarms” in which numerous defendants engage in mass copyright
infringement of the plaintiffs’ intellectual property by downloading and uploading the copyright
works using peer-to-peer file transfer technology over the internet. The plaintiffs thus identified
each alleged copyright infringer based upon the infringers’ IP addresses and initiated lawsuits to
protect plaintiffs’ copyrights.
As this Court recently observed on a sua sponte review of a similar matter, PHE, Inc. v.
Does 1-27, 4:13cv480, CM/ECF Doc. No. 25, the joinder of “swarm” defendants raises concerns.
This Court stated:
“On motion or on its own, the court may at any time, on just terms, add or drop a
party.” Fed. R. Civ. P. 21. Indeed, district courts across the country are
considering, sua sponte, the issue of whether these sorts of Doe defendants are
properly joined. See, e.g., Next Phase Distribution, Inc. v. John Does 1-27, 284
F.R.D. 165, 172 (S.D.N.Y. 2012); In re BitTorrent Adult Film Copyright
Infringement Cases, CIV.A. 11-3995 DRH, 2012 WL 1570765 (E.D.N.Y. May 1,
2012) report and recommendation adopted sub nom. Patrick Collins, Inc. v. Doe
1, 288 F.R.D. 233 (E.D.N.Y. 2012); Liberty Media Holdings, LLC v. BitTorrent
Swarm, 277 F.R.D. 669, 672 (S.D. Fla. 2011); Media Products, Inc. v. Does 1-58,
No. 8:12-CV-00348 JFM, 2012 WL 1150816 (D. Md. Apr. 4, 2012); Third
Degree Films, Inc. v. Does 1-53, No. 8:12-CV-00349 JFM, 2012 WL 1150811
(D. Md. Apr. 4, 2012); see also reFX Audio Software, Inc. v. Does 1-97, No.
4:13cv409 (CEJ), CM/ECF Doc. No. 28 at 3[, 2013 WL 3766571] (E.D. Mo. July
16, 2013) (collecting cases).
Federal Rule of Civil Procedure 20(a)(2) allows joinder of defendants
when “(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 related transactions or occurrences; and (B) any question of law or fact
common to all defendants will arise in the action.” Here, as in other “swarm
defendant” cases, the plaintiff reasons that joinder of the Doe defendants is proper
because the individuals “participated in the same transaction, occurrence, or series
of transactions or occurrences as at least the other defendants in the same
swarm...and participated in a collective enterprise constituting ‘shared,
overlapping facts.’” (Cmplt. ¶ 7.)
District courts have handled the matter of swarm defendant joinder (and
discovery regarding the same) differently. See Third Degree Films, Inc. v. Does
1-131, 280 F.R.D. 493, 495 (D. Ariz. 2012) (collecting cases). This Court has
recently discussed the matter at length in reFX Audio Software, Inc. v. Does 1-97
and determined — without determining whether the practice of “swarm joinder”
was appropriate — that joinder in that particular case was not warranted due to
concerns regarding the interests of fairness and judicial economy. CM/ECF Doc.
No. 28 at 6 (E.D. Mo. July 16, 2013). In that case, the Court had granted the
plaintiff’s motion for early discovery but, in considering the ISP’s motion to
quash, the Court vacated its earlier order permitting discovery and severed all but
Doe 1 from the action, dismissing them without prejudice. In that case, the Court
had the benefit of receiving five motions from different Does that asserted
different defenses. The Court recognized that the manageability of the case was in
question when the personal circumstances regarding wireless network security,
personal responsibility, the allegedly innocent account holder of a multi-unit
property, and myriad other concerns were considered and multiplied times the
interests of 97 different defendants. See id. at 6-7; see also Third Degree Films,
Inc., 280 F.R.D. at 498 (“the Court finds that allowing this case to proceed against
131 Defendants creates more management problems than it promotes efficiency);
Kill Joe Nevada, LLC v. Does 1-81, 1:13-CV-1450-JEC, 2013 WL 2355545, *1
(N.D. Ga. May 28, 2013) (vacating order granting leave for early discovery
because it was granted “[b]efore appreciating the manageability problems posed
by the type of joinder the plaintiff asserts”).
In addition to manageability concerns, the Court notes that the 27
defendants’ only apparent relation to each other is their use of the peer-to-peer
technology. Forcing them to litigate as a group would prejudice defendants. First,
each would be required to serve each of the other defendants with all pleadings.
That is “a significant burden when...many of the defendants will be appearing pro
se and may not be e-filers.” Hard Drive Prods., Inc. v. Does 1-188, 809 F. Supp.
2d 1150, 1164 (N.D. Cal. 2011). In addition, each defendant has the right to be at
others’ deposition, “creating a thoroughly unmanageable situation.” Id.
Courtroom proceedings would be similarly unworkable, with all defendants
present and each requiring his or her own “mini-trial.” Id. Although this case has
“only” 27 defendants (of which 25 remain), which is relatively more manageable
than the cases involving a hundred or more defendants, the Court finds that the
same principles apply here. In contrast to the unfairness posed to the defendants
by joinder, the prejudice to plaintiff will be less burdensome. Plaintiff will be
required to bring suit against the remaining 24 defendants and pay a filing fee for
each action, but “[t]he serious procedural, case management, and fairness
concerns that arise in actions such as this outweigh any convenience and costsavings on Plaintiff’s part.” Third Degree Films, Inc. v. John Does 1-72, 12-CV3
14106, 2013 WL 1164024, *8 (E.D. Mich. Mar. 18, 2013) (quoting Bait Prods.
Pty Ltd. v. John Does 1–26, No. 12–CV–628–FTM–31, 2013 WL 607966, at *3
(M.D.Fla. Feb.19, 2013)). Indeed, “payment of a separate filing fee for its claim
against each Defendant properly balances the Plaintiff’s right to protect its
copyright with the Court’s interest in cost-efficient adjudication of cases.” Third
Degree Films, Inc., 2013 WL 1164024, at *8 (quoting Third Degree Films, Inc.
v. Does 1-47, No. 12-CV-2391-WJM-MEH, 2012 WL 4005842, *4 (D. Colo.
Sept. 12, 2012)), and quoted by reFX Audio Software, Inc., CM/ECF Doc. No. 28
In sum, the efficiency goals of the Federal Rules’ joinder provisions are
not accomplished by the mass joinder of defendants in this case, and joinder here
will result in an unmanageable case and unfairness to defendants.
PHE, Inc. v. Does 1-27, 4:13cv480, CM/ECF Doc. No. 25 at 2-5, 2013 WL 3811143 (E.D. Mo.
July 22, 2013) (Westlaw citation added to reFX Audio Software Inc. case). The same analysis
applies here --- indeed, plaintiff has joined 67 plaintiffs in this litigation, so the unmanageability
and unfairness factors are magnified.
The Court has, on plaintiff’s motion, already dismissed one of the 67 defendants, and the
Court will sever and dismiss without prejudice the claims against all defendants except Doe 1 in
this case. As a result, Doe 60's motion to quash and motion to proceed anonymously will be
denied as moot.
IT IS HEREBY ORDERED that defendant Doe 60's Motion to Sever (#15) is
IT IS FURTHER ORDERED that defendant Does 2 through 20 and Does 22 through
67 are SEVERED from this action, and the claims against them are DISMISSED without
IT IS FURTHER ORDERED that defendant Doe 60's Motion to Quash and Motion to
Proceed Anonymously are denied as moot.
Dated this 31st day of July, 2013.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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