R&D FILM 1, LLC v. JOHN DOES 1-28

Filing 6

MEMORANDUM OPINION AND ORDER: ORDERED that the claims as to all John Doe Defendants are severed. ORDERED that Civil Nos. 12-6611, 12-6633, 13-482, 13-483, 13-484, 13-485, 13-486, and 13-487 shall proceed against the respective John Doe 1 Defendants only. Signed by Magistrate Judge Ann Marie Donio on 6/13/2013. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

DRAGON QUEST PRODUCTIONS, LLC,
Plaintiff,

Civil No. 12-6611 (JHR/AMD)

v.
JOHN DOES 1-100,
Defendant.
R&D FILM 1, LLC,
Plaintiff,

Civil No. 12-6633(NLH/AMD)

v.
JOHN DOES 1-40,
Defendants.
R&D FILM 1, LLC,
Plaintiff,

Civil No. 13-482 (NLH/AMD)

v.
JOHN DOES 1-28,
Defendants.
R&D FILM 1, LLC,
Plaintiff,
v.
JOHN DOES 1-103,
Defendants.

Civil No. 13-483 (NLH/AMD)

R&D FILM 1, LLC,
Plaintiff,

Civil No. 13-484 (NLH/AMD)

v.
JOHN DOES 1-104,
Defendants.
R&D FILM 1, LLC,
Plaintiff,

Civil No. 13-485 (NLH/AMD)

v.
JOHN DOES 1-105,
Defendants.
R&D FILM 1, LLC,
Plaintiff,

Civil No. 13-486 (NLH/AMD)

v.
JOHN DOES 1-31,
Defendants.
R&D FILM 1, LLC,
Civil No. 13-487 (NLH/AMD)
Plaintiff,
v.
JOHN DOES 1-28,
Defendants.

2

MEMORANDUM OPINION AND ORDER
Presently before the Court are seven separate cases filed
by R&D Film 1, LLC against a number of John Doe defendants
asserting allegations of copyright infringement with respect to the
same motion picture and one case filed by Dragon Quest Productions,
LLC asserting allegations of copyright infringement with respect to
a different motion picture.
attorney

with

virtually

All eight cases were filed by the same
identical

complaints.

The

number

of

defendants in each case varies from 28 in Civil No. 13-482 to 105
in

Civil

infringed

No.

13-485.

Plaintiffs

Plaintiffs'

copyrights

assert
by

that

using

Defendants
an

online

have
media

distribution system, referred to by Plaintiffs as the "BitTorrent
Protocol," to distribute and make available to distribute the
motion pictures at issue. Plaintiffs acknowledge in the complaints
that each Defendant is only known by an internet protocol "IP"
address and provides an exhibit to each complaint that sets forth
the date and time at which the infringing activity is alleged to
have occurred.

A number of courts have recently addressed whether

in such situations joinder of John Doe defendants is appropriate.
For the reasons that follow, the Court finds that joinder of the
Defendants is not appropriate under Rule 20(a) of the Federal Rules
of Civil Procedure.
Plaintiffs filed the complaints in these actions on

3

October 19, 2012, October 22, 2012, and January 24, 2013.1
complaint

filed

by

R&D

Film

1,

LLC,

Plaintiff

In each

alleges

that

Defendants infringed upon Plaintiff's copyright by downloading and
sharing copies of "The Divide" through the BitTorrent protocol.
(See, e.g., Compl. in 12-6633 [Doc. No. 1] ¶ 3.)

In the complaint

filed by Dragon Quest Productions, LLC, Plaintiff alleges that
Defendants infringed upon Plaintiff's copyright by downloading and
sharing copies of "Age of Dragons" through the BitTorrent protocol.
(Compl. in 12-6611 [Doc. No. 1] ¶ 3) (hereinafter, the copyrighted
works shall be referred to collectively as the "Motion Pictures").)
Plaintiffs assert that the BitTorrent protocol allows a user to
download separate small segments of data from different users that
when compiled together create a full copyrighted work. (Pl.'s
Opening Br. in Supp. of Mot. for Expedited Discovery in 12-6633
[Doc. No. 5-1] (hereinafter, "Pl.'s Br."), 4.2)
Plaintiffs further assert that the process starts when
the "initial file-provider intentionally elects to share a file
with a torrent network."

(Compl. in 12-6633 ¶ 3.)

This initial

1. The complaint in Civil No. 12-6611 was filed on October 19,
2012. The complaint in Civil No. 12-6633 was filed on October
22, 2012. The remaining complaints were filed on January 24,
2013.
2. The Court notes that a motion for expedited discovery has
only been filed in Civil No. 12-6633 and Civil No. 12-6611.
However, as the same attorneys represent Plaintiffs in each case,
and as the complaints are almost identical in each case, the
Court shall consider the statements of Plaintiff, Plaintiff's
counsel, and Plaintiff's investigator made in Civil No. 12-6633
and Civil No. 12-6611 to be equally applicable to all cases
addressed in this Order.
4

file is known as the seed file. (Id.) In support of its application
for expedited discovery, Plaintiffs submit the declaration of
Darren M. Griffin who states that he is a "data supply expert" with
a firm engaged by Plaintiff to monitor and stop the infringing
activity of the John Doe Defendants.

(Declaration of Darren M.

Griffin in Supp. of Mot. for Expedited Disc. in 12-6633 [Doc. No.
5-2] (hereinafter, "Griffin Declaration") ¶¶ 1-3.)

Mr. Griffin

states that "each participating peer intentionally obtained a
torrent file for the Motion Picture from a BitTorrent or torrent
website[,]" and that "[e]ach peer then loaded that torrent file
into a computer program that reads such files."

(Id. ¶ 10.)

Mr.

Griffin further asserts that "[o]nce loaded, the BitTorrent program
employed

a

protocol

to

initiate

simultaneous

connections

to

hundreds of other peers possessing and sharing copies of the Motion
Picture described in the file."

(Id.)

Mr. Griffin additionally

states that "[a]s the film was copied to the peers' computers piece
by piece, the downloaded pieces were immediately available to
others seeking the file."

(Id. ¶ 11.)

Mr. Griffin asserts that

each torrent file has its own unique "hash identifier" that acts as
a "'roadmap[]' to the address of other users who are sharing these
media files and specifics about those media files."
Plaintiffs

further

assert

that

a

group

of

users

(Id. ¶ 12.)
sharing

a

particular file with a specific hash identifier is defined as a
"swarm" and that the users in a specific swarm are "collectively
connected to share the particular hash file."

5

(Pl.'s Br. 4.)

In

each

case,

Plaintiffs

assert

in

the

respective

complaints that the John Does are members of a specific swarm
sharing segments of a file that comprise the Motion Pictures.
(Comp. ¶ 12.) Plaintiffs assert that based on the John Does' use of
the BitTorrent software, "Defendants are engaged in a joint act of
infringement [because] each Doe Defendant used BitTorrent and
participated in the same swarm to copy and reproduce the Motion
Picture[s] resulting in its unauthorized dissemination."
Br. 9.)

(Pl.'s

Plaintiffs' expert asserts that through the use of

"specially designed software" he identified the John Doe Defendants
as infringing on Plaintiffs' copyright for the Motion Pictures and
confirmed this infringement by downloading a portion of the Motion
Pictures file from each John Doe Defendant. (Griffin Certification
¶¶ 16-17.)
On February 13, 2013, the Court issued Orders to Show
Cause in each case requesting Plaintiffs to address whether all
John Doe Defendants except John Doe 1 in each case should be
severed.
Feb.

13,

(See, e.g., Order to Show Cause in 12-6633 [Doc. No. 6]
2013.)3

In

response

to

the

Orders

to

Show

Cause,

Plaintiffs assert that the use of the BitTorrent protocol to
download and upload the copyrighted work constitutes a series of
transactions or occurrences as required for joinder under FED. R.
3. The Court held a show cause hearing on March 6, 2013 with
Stamatios Stamoulis, Esquire, and R. Touhey Myer, Esquire,
appearing on behalf of Plaintiffs R&D Films 1, LLC and Dragon
Quest Productions, LLC. Following oral argument, the Court
permitted supplemental briefing. Plaintiff filed a supplemental
brief on March 18, 2013.
6

CIV. P. 20(a)(2). (Pl.'s Response to Order to Show Cause in 12-6633
[Doc. No. 7] (hereinafter, "Pl.'s Response"), 4-6.)4

Plaintiffs

claim that common issues of law and fact exist as to all Defendants
due to the manner in which Defendants downloaded the respective
work. (Id. at 6-7.) Additionally, Plaintiffs assert that Rule
20(a)(2)(A) is met because the complaints allege that Defendants
are

jointly

and

severally

liable

for

the

alleged

copyright

infringement. (Id. at 3.) Although the exhibits demonstrate that
individual John Doe Defendants distributed segments at different
times, Plaintiffs argue that the timing of the alleged infringing
activity does not preclude joinder.

Rather, Plaintiffs argue that

a BitTorrent user may share a particular file long after the user
actually downloaded the file. (Id. at 7-9.) Plaintiffs further
assert

that

Rule

20(a)(2)(B)

is

met

because

in

each

case,

"Plaintiff will have to establish against each putative defendant
the same legal claims concerning the validity of the copyrights in
the movies at issue and the infringement of the exclusive rights
reserved to the plaintiffs as copyright holders." (Id. at 7.)
Finally, Plaintiffs assert that joinder in this case would promote
judicial efficiency. (Id. at 7, 9-10.)
Federal Rule of Civil Procedure 20 provides in relevant
part that defendants may be joined in a single action if "any right

4. Plaintiff's counsel filed a response to the Order to Show
Cause and a supplemental brief in Civil No. 12-6633. As this was
the only response or supplemental briefing filed in any of the
eight cases, the Court shall consider these submissions as
applying to all eight cases.
7

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." FED. R. CIV.
P. 20(a)(2)(A)5.

Additionally, there must be a question of law or

fact common to all defendants.

FED. R. CIV. P. 20(a)(2)(B).

Under

Federal Rule of Civil Procedure 21, misjoinder does not serve as a
ground for dismissal of an action; rather, "[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."

FED. R. CIV.

P. 21.6
5. Plaintiffs do not assert that joinder is required under
Federal Rule of Civil Procedure 19.
6. In addressing the difference between severing and dismissing
a party, the Third Circuit stated:
To remedy misjoinder . . . a court may not simply
dismiss a suit altogether. Instead, the court has two
remedial options: (1) misjoined parties may be dropped
“on such terms as are just”; or (2) any claims against
misjoined parties “may be severed and proceeded with
separately.” Fed.R.Civ.P. 21.
The effect of each option is quite different. When a
court “drops” a defendant under Rule 21, that defendant
is dismissed from the case without prejudice. Publicker
Indus., Inc. v. Roman Ceramics Corp., 603 F.2d 1065,
1068 (3d Cir. 1979); see also Elmore v. Henderson, 227
F.3d 1009, 1011-12 (7th Cir. 2000) (Posner, J.). When
that occurs, the “statute of limitations is not tolled”
because we treat the initial complaint “as if it never
existed.” Brennan v. Kulick, 407 F.3d 603, 606 (3d Cir.
2005) (internal quotation marks omitted). But when a
court “severs” a claim against a defendant under Rule
21, the suit simply continues against the severed
defendant in another guise. White v. ABCO Eng'g Corp.,
199 F.3d 140, 145 n. 6 (3d Cir. 1999); Elmore, 227 F.3d
at 1012. The statute of limitations is held in
abeyance, and the severed suit can proceed so long as
it initially was filed within the limitations period.
Id.
8

In examining whether joinder is appropriate, the Third
Circuit has noted that "[f]or courts applying Rule 20 and related
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.'" Hagan v.
Rogers, 570 F.3d 146, 153 (3d Cir. 2009)(quoting United Mine
Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966)).

The Eighth

Circuit stated in Mosley v. Gen. Motors Corp. that joinder permits
"all reasonably related claims for relief by or against different
parties to be tried in a single proceeding [and that] [a]bsolute
identity of all events is unnecessary." Mosley v. Gen. Motors
Corp., 497 F.2d 1330, 1333 (8th Cir. 1974). However, "'[p]ermissive
joinder rests within the sound discretion of the court, who must
determine

whether

the

proposed

joinder

principles of fundamental fairness.'"

comport[s]

with

the

Malibu Media, LLC v. John

Does No. 1-30, No. 12-3896, 2012 WL 6203697, at *8 (D.N.J. Dec. 12,
2012)(hereinafter, "Malibu Media 1-30")(quoting New Jersey Mach.,
Inc. v. Alford Indus., Inc., 1991 WL 340196, at *1 (D.N.J. Oct. 7,
1991)).

"'[S]everance of parties where joinder is not required is

committed to the court's discretion if it finds that the objectives
DirecTV, Inc. v. Leto, 467 F.3d 842, 845 (3d Cir. 2006)(footnote
omitted). Because the Court here is severing Plaintiffs' claims,
the claims are continuing, albeit "in another guise." Id.
Consequently, the Court finds this Order to be non-dispositive
and therefore does not issue a report and recommendation. See 28
U.S.C. § 636(b)(1); FED. R. CIV. P. 72(a); see also Third Degree
Films v. Does 1-36, No. 11-cv-15200, 2012 WL 2522151, at *1 n.1
(E.D. Mich. 2012)(magistrate judge addressing and denying motion
to quash or modify a subpoena and to sever by way of opinion and
order and citing several cases where courts have found motions to
sever to be non-dispositive.)
9

of the rule are not fostered, or that joinder could result in
prejudice, expense, or delay.'"

Id. (quoting Raw Films, 2012 WL

1019067, at *3); see also 7 CHARLES ALAN WRIGHT, et al., FED. PRACTICE
& PROCEDURE § 1652 (3d ed. 2001).
Courts

have

reached

different

decisions

on

whether

joinder is appropriate in cases against multiple John Does for
copyright infringement in connection with the use of the BitTorrent
protocol. See, e.g., Malibu Media 1-30, 2012 WL 6203697 (permitting
joinder); Malibu Media, LLC v. John Does 1-5, 285 F.R.D. 273
(S.D.N.Y.

2012)[hereinafter,

"Malibu

Media

1-5"]

(permitting

joinder); Malibu Media, LLC v. John Does 1-22, No. 12-5091, 2013 WL
1704291

(D.N.J.

Apr.

19,

2013)(severing

and

dismissing

all

defendants other than John Doe #1); Amselfilm Prods. GMBH & Co. KG
v. Swarm 6a6dc, No. 12-3865, 2012 U.S. Dist. Lexis 186476, (D.N.J.
Oct. 10, 2012)(finding joinder to be inappropriate and severing the
defendants); Next Phase Distribution, Inc. v. John Does 1-27, 284
F.R.D. 165 (S.D.N.Y. 2012)[hereinafter "Next Phase 1-27"] (not
deciding whether joinder was proper, but severing the defendants
based on practical considerations).

As noted in Next Phase 1-27,

"[t]he fact that multiple courts, in well-reasoned opinions, have
arrived at opposing conclusions suggests that there is no clearly
correct answer to this question." 284 F.R.D. at 169.
Cases

rejecting

joinder

have

concluded

that

the

BitTorrent technology does not support a finding required under
Rule

20

of

transactions

a
or

same

transaction

occurrences.

For
10

or

occurrence

example,

in

or

series

Amselfilm,

of
the

district court found joinder to be inappropriate stating that
"[w]hile this [c]ourt appreciates that those who participate in the
same swarm are virtually 'connected' by the same copyrighted work,
this [c]ourt is not convinced that the purported instances of
distribution . . . are a part of the same transaction, particularly
because they span across various dates and times." 2012 U.S. Dist.
Lexis 186476, at *3 n.3.

Additionally, the Amselfilm court noted

that while the parties may be in the swarm by virtue of the hash
identifier, "it is probable that different people within the swarm
never distribute a piece of the work to the same person, or at the
same moment in time" and that "[w]ithout more connecting them, 187
defendants who have distributed pieces of the work at different
times cannot be permissibly joined in this case."
The

Amselfilm

court

additionally

stated

that

Id. at 4 n.3.

joinder

of

187

defendants would be "inefficient, chaotic, and expensive," and that
it would be "physically impossible for every party to appear in
court should they so choose" and that joinder would be a strain on
judicial resources. Id. at 5 n.4, 6. Based on the above reasoning,
the Amselfilm court severed and dismissed without prejudice all
defendants other than John Doe defendant 1.

Id. at 6-7; accord

Third Degree Films, Inc. v. John Does 1-110, 2013 U.S. Dist. LEXIS
27273

(D.N.J.

Jan.

17,

2013)[hereinafter,

"Third

Degree

1-

110"](agreeing with the Court's holding in Amselfilm and denying
without prejudice the request for discovery as to John Does 2-110
"in contemplation of severance and dismissal," but not severing
because the issue was not then before the court).
11

A number of other cases have similarly found joinder to
be inappropriate.

In Malibu Media, LLC v. John Does 1-39, No. 12-

6945, Doc. No. 23 (D.N.J. Mar. 28, 2013) [hereinafter, "Malibu
Media 1-39"] the court "revisited" its prior holding in a separate
case finding joinder proper and followed the holdings in Amselfilm
and Patrick Collins v. John Doe 1-43, No. 12-3908, 2013 U.S. Dist.
LEXIS 46369 (D.N.J. Feb. 15, 2013) [hereinafter "Patrick Collins 143"] (severing Doe defendants 2-41).

Based on the reasoning in

Amselfilm, the Malibu Media 1-39 court found that there was an
insufficient connection between the John Doe defendants to meet the
requirements of Rule 20(a)(2) and noted that "its ability to
efficiently manage the pretrial phase of this action with the
present number of defendants could be compromised by permitting
joinder, causing a strain on judicial resources."
39,

No. 12-6945, Doc. No. 23, at 2.

Malibu Media 1-

The court therefore severed

and dismissed all defendants except John Doe 1.

Id. at 3.

Likewise, in Third Degree Films, Inc. v. Does 1-131, 280 F.R.D. 493
(D. Ariz. 2012) [hereinafter, "Third Degree 1-131"] the District
Judge held that the requirements for joinder had not been met.
Courts have also found severance appropriate based on
several discretionary factors.

For example, in Third Degree Films

1-131, the court stated that even if joinder was appropriate under
Rule 20, joinder would be inappropriate because:
[e]ach [d]efendant may have different factual and legal
defenses, and would then file completely unrelated
motions that the [c]ourt would have to resolve within the
context of one case. Simply associating the correct
response and reply to each motion could take significant
12

time before even reaching the merits of potentially
unrelated defenses. Further, scheduling and conducting
hearings and discovery disputes among 132 parties would
be almost impossible. Additionally, during discovery,
each [d]efendant, who might appear pro se and not be an
e-filer, would be forced to serve paper copies of all
filings on all other parties, and would have the right to
be present at all other parties' depositions, all of
which would be a significant burden on each [d]efendant
litigant. Also, because of the potential prejudice to
each unrelated [d]efendant, the [c]ourt likely would not
undertake to conduct a trial for all 131 [d]efendants at
the same time. Thus, the [c]ourt would effectively sever
these cases for trial, and conduct over a hundred
separate trials with different witnesses and evidence,
eviscerating any “efficiency” of joinder. Finally, all of
these issues would certainly needlessly delay the
ultimate resolution of any particular [d]efendant's case,
which again weighs against efficiency and the opportunity
for the [d]efendant to receive a prompt resolution of his
or her case. As a result, having considered the
fundamental fairness to the parties, and the management
issues for the [c]ourt, applying this discretionary
standard, the [c]ourt alternatively finds joinder is not
warranted.
Id. at 498-99 (footnotes omitted).

Similarly, in Next Phase 1-27,

the court noted that it is very likely that each John Doe defendant
will assert different defenses, that the court would be forced to
address different defenses, motions, and discovery disputes unique
to each defendant, which would become complicated and unmanageable.
Next Phase 1-27, 284 F.R.D. at 169-70.

Moreover, the court in Next

Phase 1-27 noted that "it is conceivable that several John Does
identified in this case did not actually download the Motion
Picture" and that even if the John Doe defendant did not download
the movie in question, due to the pornographic nature of the movie,
some of those John Doe defendants may feel compelled to settle the

13

lawsuit confidentially in order to avoid embarrassment.7

Id. at

170 (citing Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 242
(S.D.N.Y. 2012) ("'Plaintiff's counsel estimated that 30% of the
names turned over by ISPs are not those of individuals who actually
downloaded or shared copyrighted material.")).

Id. at 170; see

also Patrick Collins, Inc. v. John Does 1-30, No. 12-3148, 2013 WL
1157840, at *3 (E.D. Pa. Mar. 21, 2013)[hereinafter "Patrick
Collins 1-30"] (severing defendants 2-30 and noting that early in
the litigation two different defenses had already been raised by
two separate defendants).
However, in Malibu Media, LLC v. John Does 1-11, No. 127726,

2013

U.S.

Dist.

LEXIS

52029

(D.N.J.

Apr.

11,

2013)

[hereinafter, "Malibu Media 1-11"], the court found joinder to be
appropriate noting that with only eight defendants remaining in the
case, the logistical problems with joinder were not present.
at *13-14 n.4.

Id.

The Malibu Media 1-11 court further found that the

allegations in the complaint were sufficient at that stage of the
litigation to establish that joinder was appropriate.

Id. at *14-

7. At least one court has noted the potential for coercion. See
Ingenuity 13, LLC v. John Doe, No. 2:12-cv-8333, 2013 WL 1898633
(D.C.Cal. May 6, 2013)(finding plaintiff to be a shell company,
owned by the plaintiff's attorneys, formed solely to own
copyrights of pornographic movies for the purpose of bringing
suits against John Doe defendants to force coercive settlements,
sanctioning plaintiff's attorneys, referring the attorneys'
conduct to their respective state and federal bars, and referring
the attorneys' conduct to the United States Attorney and the
Criminal Investigation Division of the Internal Revenue Service).
Here, the copyright certificates attached to the eight complaints
list the respective Plaintiffs as the authors of the respective
works. (See, e.g., Complaint in 12-6611 [Doc. No. 1] Ex. B;
Complaint in 12-6633 [Doc. No. 1] Ex. B.)
14

15 n.4.

Specifically, the Malibu Media 1-11 court noted that:

the Complaint in this matter alleges that defendants used
the BitTorrent protocol to illegally copy plaintiff's
Works. . . . Thus, the Complaint adequately alleges, at
least at this stage of the litigation, that defendants
participated in the same series of transactions or
occurrences — that is, that defendants are logically
related to one another "not merely because of their
common use of the BitTorrent protocol, but because each
[d]efendant affirmatively chose to download the same
Torrent file that was created by the same initial seeder,
intending to: 1) utilize other users' computers to
download pieces of the [Works], and 2) allow his or her
own computer to be used in the infringement by other
peers and [d]efendants in the same swarm." As stated
elsewhere in this [o]pinion, however, the [c]ourt and
defendants may revisit the issue of joinder at a later
date.
Id. at *16-17 n.4 (quoting Patrick Collins v. John Does 1-21, 282
F.R.D. 161, 165 (E.D. Mich. Apr. 5, 2012).

However, the Malibu

Media 1-11 court noted that "[i]f the discovery process reveals
disparate defenses as to each defendant, or reason to believe that
defendants did not participate in the same transaction giving rise
to the alleged infringement, the [c]ourt may, on motion or pursuant
to its inherent power, reconsider joinder's propriety at a later
stage of the proceedings."

Id. at *18.

Likewise, in Malibu Media

1-5 a district judge in the Southern District of New York found
that the defendants participated in the same transaction or series
of transactions as required for joinder under Rule 20(a)(2)(A).
285 F.R.D. at 277.

In finding the same transaction, the Malibu

Media 1-5 court noted that "the pieces of the Film allegedly shared
by defendants are all traceable back to the same original file made
accessible by the same initial seeder" and that "because of the
nature of the BitTorrent protocol, each defendant's participation
15

in

the

indirectly,

the

participation of the other defendants who followed in time."

Id.

at 277.

swarm

facilitated,

even

if

only

The court further noted that "[t]he length of time over

which defendants are alleged to have participated in the swarm-eighty-eight days--does not undermine the interrelated nature of
their actions."

Id.

The Malibu Media 1-5 court noted that

regardless of the time of the uploading of a file, the act of
uploading a particular segment of the file relates that user to
every other user in the swarm.

The Malibu Media 1-5 court also

addressed the discretionary considerations which other courts have
considered in granting severance.

Id. at 278.

As to the potential

for coercion, the court in Malibu Media 1-5 noted that because
neither the plaintiff nor plaintiff's counsel were alleged to have
been involved in such coercive tactics, the court was "reluctant to
prevent plaintiff from proceeding with its case based only on a
'guilt-by-association' rationale."

Id.

As to the individualized

defense issue, the court acknowledged that multiple defenses could
be raised by the defendants, the court found that the consideration
of

such

defenses

proceedings,

but

was

not

stated

appropriate

that

"[a]fter

at

that

plaintiff

stage
has

of

the

effected

service on defendants and defendants have responded with any
relevant defenses, we are free to determine whether the claims
against a particular defendant should be severed pursuant to
Federal Rule of Civil Procedure 21 and/or dismissed."

Id.

As to

the logistical difficulties, the Malibu Media 1-5 court concluded
that a case with only five defendants does not present the same
16

difficulties.

Id. at 278-79.

See also Patrick Collins 1-21, 282

F.R.D. 161 (finding joinder to be appropriate in a similar case and
noting that many of the cases finding joinder to be inappropriate
were factually or legally distinguishable or that the courts
finding joinder to be inappropriate failed to understand the unique
properties of the BitTorrent protocol).
Having considered the case law and the submissions, the
Court finds joinder to be inappropriate.

Specifically, the Court

finds that the use of the BitTorrent protocol by Defendants in
these cases

does

not constitute

a

series of

transactions

or

occurrences necessary to meet the requirements for joinder under
Rule 20(a)(2)(A). Here, the Court finds that the attenuated nature
of the relation between the John Doe Defendants in these cases does
not constitute the type of relation contemplated in Mosley v. Gen.
Motors Corp. or by Rule 20(a) generally.

Plaintiffs allege that

all Defendants used the BitTorrent protocol, that all Defendants
were part of the same swarm, and that Plaintiffs' investigator
downloaded a piece of the Motion Pictures from each Defendant.
(Griffin

Declaration

¶¶

15-18.)

Plaintiffs

argue

that

"the

Defendants’ infringement was committed through the same transaction
or through a series of transactions" and assert that "the algorithm
used by BitTorrent Trackers would have caused the entire series of
transactions to be different but for each of the Defendants’
infringements." (Pl.'s Response 4.) Additionally, Plaintiffs cite
Patrick Collins 1-21 and argue that "each Defendant must have
downloaded the piece(s) each had on his or her computer in one, or
17

more, of the following four ways:
1) the Defendant connected to and transferred a piece of
the Movie from the initial seeder; or
2) the Defendant connected to and transferred a piece of
the Movie from a seeder who downloaded the completed file
from the initial seeder or from other peers; or
3) the Defendant connected to and transferred a piece of
the Movie from other Defendants who downloaded from the
initial seeder or from other peers; or
4) the Defendant connected to and transferred a piece of
the Movie from other peers who downloaded from other
Defendants, other peers, other Seeders, or the Initial
Seeder.
In other words, in the universe of possible transactions,
at some point, each Defendant downloaded a piece of the
Movie, which had been transferred through a series of
uploads and downloads from the Initial Seeder, through
other users or directly, to each Defendant, and finally
to IPP.
(Pl.'s Response 6 (emphasis omitted) (quoting Patrick Collins 1-21,
2012 WL 1190840, at *4-5).)
The Court notes that Plaintiffs' argument does not take
into consideration the fact that the initial seeder, other seeders,
the various peers, and the Defendants may have participated in this
swarm months apart from each other.

While the four categories of

individuals, the initial seeder, the other seeders, the peers, and
the Defendants, may be connected by the same initial seed file, the
Court finds

that

establish joinder.

this connection

alone is not

sufficient to

See Amselfilm, 2012 U.S. Dist. LEXIS 186476

(stating that "it is probable that different people within the same
swarm never distributed a piece of the work to the same person or
at the same moment in time").
18

Here, the Court follows the

reasoning in Third Degree 1-131:
that a user participating in the same swarm is not the
same transaction or occurrence or series of transactions
or occurrences. The [c]ourt bases this finding on the
fact that a particular swarm, including the swarm at
issue in this case, can last for many months. During
those months, the initial participants may never overlap
with later participants. Additionally, because pieces
and copies of the protected work [may] be coming from
various sources within the swarm, individual users might
never use the same sources.
Third Degree 1-131, 280 F.R.D. at 498.

The Court notes that a

"[p]laintiff might be able to establish joinder by showing that on
a

certain

date

and

time,

a

particular

subset

of

the

swarm

distributed pieces of the work to a common downloader." Amselfilm,
2012 U.S. Dist. LEXIS 186476 at *5 n.2.
have not made such allegations.

Here, however, Plaintiffs

Moreover, in all but one of the

eight cases, Plaintiffs observed the infringing activity of the
first

John

Doe

Defendant

approximately

three

months

before

Plaintiffs observed the infringing activity of the last John Doe
Defendant.

Such a gap in time between the infringing activities

further supports the finding that the John Doe Defendants here were
not engaged in the same series of transactions or occurrences.8
Therefore, Plaintiffs have not demonstrated that joinder is proper.
Moreover, to permit joinder based on the similar file and
the

similar

use

of

the

BitTorrent

protocol

would

create

a

8. Even in Civil No. 13-482, where the time between first and
last infringing activity is approximately two weeks, the gap does
not support Plaintiffs' argument that the John Doe Defendants
participated in the same series of transactions or occurrences.
Despite the shorter time between the infringing activities, there
is nothing to connect the John Doe Defendants other than the
software used and motion pictures downloaded.
19

potentially unlimited number of defendants to be joined.

Due to

the technology of the BitTorrent protocol, every time another user
downloads the movie at issue, the number of potential defendants to
be joined increases.

Furthermore, under the BitTorrent protocol,

users download a movie from other users, who previously downloaded
the movie from still other users. Therefore, a swarm can continue
to increase and there has been no showing of any limitation to the
number of defendants that could eventually be joined.

While it is

true that "the doctrine of joinder must be able to adapt to the
technologies of our time," Malibu Media 1-5, 285 F.R.D. at *2
(citing Ginnett v. Computer Task Grp., Inc., 962 F.2d 1085, 1094
(2d Cir. 1992)), the Court concludes that joinder in this case
defeats the original purpose of the rule.
purpose of

the

rule

permitting

joinder

As noted in Mosley, the
"is to

promote trial

convenience and expedite the final determination of disputes,
thereby preventing multiple lawsuits" and that "[s]ingle trials
generally tend to lessen the delay, expense and inconvenience to
all concerned."

Mosley, at 1332.

However, when the definition of

"transaction, occurrence, or series of transactions or occurrences"
is construed broadly to permit joinder on such a showing as
Plaintiffs presented here, the purpose of joinder is not being
served.

Therefore, the Court finds that Plaintiffs have not

established a sufficiently related series of transactions to meet
the requirements of Rule 20(a)(2)(A).
As noted in Third Degree Films 1-131, the arbitrary
nature by which Plaintiffs separate the in-state defendants from
20

the potential out-of-state defendants further demonstrates the
problem with joinder in these cases.

280 F.R.D. at 498.

Like the

court did in Third Degree Films 1-131, this Court "presumes many
users from many other jurisdictions participated in this swarm."
Id.

Therefore, this Court finds, as the court did in Third Degree

Films 1-131, that "[b]ecause of the ease with which all of the
various users can be separated, the [c]ourt finds it would be
inconsistent to find a single transaction or occurrence for joinder
based solely on [p]laintiff's litigation goals of bringing a single
lawsuit against [New Jersey] defendants." Id. Consequently, the
Court finds joinder under Rule 20(a) to be improper in this case.9
Moreover, even if the Court were to find that Plaintiffs
have established a sufficiently related transaction or series of
transactions

to

permit

considerations

lead

appropriate.

First,

individual

defenses

supports severance.

the

joinder
Court

the
being

to

Court
raised

under

Rule

conclude

finds
by

that
each

that
the
John

20(a),

other

severance

is

likelihood of
Doe

Defendant

As noted in Patrick Collins 1-30, before

plaintiff had even discovered the identities of the John Doe
defendants, two separate defenses had been raised, specifically
that a defendant had not downloaded the copyrighted work and a
separate personal jurisdiction defense.

2013 WL 1157840, at *3.

Additionally, in In re BitTorrent Adult Film Copyright Infringement
9. Having found that Plaintiffs have not met the requirements of
FED. R. CIV. P. 20(a)(2)(A), the Court need not address whether
Plaintiffs have met the requirements of FED. R. CIV. P.
20(a)(2)(B).
21

Cases, a magistrate judge in the Eastern District of New York noted
that:
[t]he factual defenses presented are vastly different and
highly individualized. One movant – John Doe # 16 -– has
stated that he was at work at the time of the alleged
download. John Doe # 2 states under oath that he closed
the subject Earthlink account, which had been compromised
by a hacker, before the alleged download. [] John Doe #
29's counsel represents that his client is an
octogenarian with neither the wherewithal nor the
interest in using BitTorrent to download Gang Bang
Virgins. [] John Doe # 10 represents that downloading a
copy of this film is contrary to her “religious, moral,
ethical and personal views.” [] Equally important, she
notes that her wireless router was not secured and she
lives near a municipal parking lot, thus providing access
to countless neighbors and passersby.
2012 WL 1570765, at *3 (E.D.N.Y. May 1, 2012).

The cases at issue

here include a number of defendants, ranging from 28 to 105
defendants in each case, and will likely include an array of
individual defenses.

See Next Phase 1-27, 284 F.R.D. at 170

(finding that because of the potential for numerous different
defenses, "case management and the litigation process for the 27
individual

John

Does

would

quickly

become

complicated

and

unmanageable.")
Second, the Court finds that even if the John Doe
Defendants do not raise different individual defenses, the proofs
necessary to establish that a person associated with an IP address
is

the

person

different

for

who
each

allegedly

violated

defendant.

The

the

proofs

copyright
necessary

will

be

for

an

individual defendant owning one computer with a secure wireless
router may differ from the proofs necessary for a defendant who
lives with many people and has an unsecured router.
22

As this Court

has previously noted, the discovery of the name connected to an IP
address alone is not a sufficient basis upon which to establish
that a person connected to the IP address is in fact the person
who violated Plaintiffs' copyright.

Malibu Media v. John Does 1-

18, No. 12-7643, [Doc. No. 14] (Apr. 11, 2013).

Therefore, as

Plaintiffs must establish that each person identified by the IP
address

is

in

fact

the

person

who

committed

the

alleged

infringement and as the proofs necessary to meet this requirement
will be different for each Defendant, the Court finds that joinder
will not promote judicial efficiency.
Third, the Court finds that logistical difficulties
present in a case involving numerous defendants further weighs
against joinder. See Malibu Media 1-5, 285 F.R.D. at 278-79
(noting the potential for logistical difficulties, but finding
that

a

case

concerns).

with

only

five

defendants

does

not

raise

such

In light of the number of defendants, the Court agrees

with the court in Amselfilm and notes that "[n]ot only would
normal

routine

case

management

be

problematic, but

[in some

instances] it would be physically impossible for every party to
appear in court should they so choose."
186476, at *5 n.4

2012 U.S. Dist. LEXIS

The Next Phase 1-27 court, specifically set

forth these problems:
[e]ach [d]efendant would have the right to be present at
every other [d]efendant's depositions — a thoroughly
unmanageable and expensive ordeal. Similarly, pro se
[d]efendants, who most likely would not e-file, would be
required to serve every other [d]efendant with a copy of
their pleadings and other submissions throughout the
pendency of the action at substantial cost.
23

284 F.R.D. at 170 (quoting Pacific Century Int'l, Ltd. v. Does
1–101, No. 11-cv-2533, 2011 WL 5117424, at *3 (N.D.Cal. Oct. 27,
2011).

Consequently, based on the likelihood of multiple unique

defenses, the different proofs Plaintiffs must establish to prove
that each

Defendant

downloaded

the

Motion

Pictures,

and

the

logistical difficulties presented by joinder, the Court finds
joinder to be inappropriate in this case.
Having found the requirements for permissive joinder
under Rule 20(a) to be absent in these cases and having also
concluded that the discretionary considerations do not support
joinder, the Court now addresses the remedies for misjoinder. FED.
R. CIV. P. 21 provides that "[m]isjoinder of parties is not a
ground for dismissing an action. On 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."

FED R. CIV. P. 21.

As noted above, when the Court drops a party, "the 'statute of
limitations is not tolled' because we treat the initial complaint
'as if it never existed.'"

DirecTV, Inc. v. Leto, 467 F.3d at 845

(quoting Brennan, 407 F.3d at 606.) However, when a claim is
severed, "the statute of limitations is held in abeyance, and the
severed suit can proceed so long as it initially was filed within
the

limitations

period."

Id.

The

Court

finds

severance

of

Plaintiffs' claims to be the appropriate remedy for misjoinder.
See DirecTV, Inc. v. Chorba, No. 3:CV-03-0843, 2003 WL 24178469,
at *3 (M.D. Pa. Oct. 16, 2003)(finding that dropping a defendant
24

is "tantamount to dismissal" and using severance as a remedy for
misjoinder so as not to prejudice plaintiff's ability to assert
claims against the severed defendants.)

Therefore, the Court

severs Plaintiffs' claims as to each Defendant in the eight cases
captioned above.
CONSEQUENTLY, for the reasons set forth herein and for
good cause shown,
IT IS on this 13th day of June 2013,
ORDERED that the claims as to all John Doe Defendants in
the cases captioned above shall be, and are hereby, severed; and
it is further
ORDERED that Civil Nos. 12-6611, 12-6633, 13-482, 13483, 13-484, 13-485, 13-486, and 13-487 shall proceed against the
respective John Doe 1 Defendants only; and it is further
ORDERED that the claims against the remaining John Doe
Defendants shall proceed under a separate action for each John Doe
Defendant, each with its own unique civil action number, upon
Plaintiffs' payment of a filing fee as to each John Doe Defendant.

s/ Ann Marie Donio
ANN MARIE DONIO
UNITED STATES MAGISTRATE JUDGE
cc:

Hon. Joseph H. Rodriguez
Hon. Noel L. Hillman