PHE, Inc. v. Does 1-27

Filing 25

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED THAT defendant Does 2 through 11, Does 13 through 21, and Does 23 through 27 are SEVERED from this action, and the claims against them are DISMISSED without prejudice. Signed by District Judge Stephen N. Limbaugh, Jr on 7/22/2013. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

PHE, INC.,

)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
DOES 1-27,
Defendants.

Case No. 4:13-cv-480 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court sua sponte to review the matter of plaintiff’s joinder of 27
individual, unknown defendants. Plaintiff PHE, Inc. filed this action against defendants identified
as Does 1 through 27 on March 14, 2013. Plaintiff alleges that the Does had violated PHE’s
copyrights with respect to an adult-themed 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 (#6) 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.,
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.
The joinder of “swarm” defendants raises concerns. “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. 113995 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 158, 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 (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;

2

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

3

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 “minitrial.” 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 cost-savings on Plaintiff’s part.” Third Degree Films, Inc. v. John Does 1-72, 12-CV-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.

4

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 at 7-8.
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. The Court has, on plaintiff’s motion, already dismissed two of
the 27 defendants, and the Court will sever and dismiss without prejudice the claims against all
defendants except Doe 1 in this case.
Accordingly,
IT IS HEREBY ORDERED THAT defendant Does 2 through 11, Does 13 through 21,
and Does 23 through 27 are SEVERED from this action, and the claims against them are
DISMISSED without prejudice.

Dated this 22nd day of July, 2013.
____________________________________
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

5