MALIBU MEDIA, LLC v. JOHN DOES 1-46

Filing 45

Opinion and ORDER that the Motions of John Does 9 and 7 to sever and dismiss the action against them are GRANTED without prejudice. The Court sua sponte severs all remaining defendants (John Does 1-10, 12-16, 19 (a/k/a Defendant Regina Surgent) and 22) from this action other than John Doe # 1 without prejudice. Further, the Motions to quash the subpoenas issued to the ISPs are GRANTED, without prejudice, and the Court sua sponte quashes the subpoenas issued to ISPs for all defendants other than John Doe # 1. The Clerk of the Court is directed to terminate Docket Entry Nos. 9, 10 and 11.. Signed by Judge Stanley R. Chesler on 4/19/13. (jd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

____________________________________
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MALIBU MEDIA, LLC,
:
:
:
Plaintiff,
:
:
:
v.
:
:
REGINA SURGENT and
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JOHN DOES 1-10, 12-16,
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Defendants.
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____________________________________:

Civil Action Nos.
12-CV-3905 (SRC) (CLW)

OPINION AND ORDER

CHESLER, United States District Judge
Currently before the Court are the following motions:
•

Defendant Jane Roe # 9’s (“Jane Roe 9”) motion to quash Plaintiff Malibu
Media, LLC’s (“Plaintiff”) subpoena pursuant to Federal Rule of Civil Procedure
45 (“Rule 45), or alternatively, motion to sever and dismiss pursuant to Federal
Rules of Civil Procedure 20 and 21 (“Rule 20” and “Rule 21”) (Dkt. No. 9, “Jane
Roe 9 Motion”); 1

•

Defendant John Doe # 7’s (“John Doe 7”) motion to quash, or alternatively,
motion to sever and dismiss (Dkt. No. 10, “John Doe 7 Motion”); and

1

A similar motion to quash filed by Defendant John Doe # 11, pending before the Court (see
Dkt. No 7), is now moot since John Doe # 11 was voluntarily dismissed from this action. See
Dkt No. 33.
1

•

Defendant John Doe # 4’s (“John Doe 4”) motion to quash (Dkt. No. 11, “John
Doe 4 Motion”) (collectively, Dkt. Nos. 9, 10 and 11 are referred to herein as the
“Motions”);

Given the similarity of the Motions and their underlying arguments, the Court will address
the Motions jointly in this opinion. For the reasons set forth below, the Court grants the Motions
to sever and dismiss without prejudice. Additionally, the Court sua sponte severs and dismisses
all defendants (John Does 2-10, 12-16 and 19 (a/k/a Regina Surgent) from this action other than
John Doe # 1 without prejudice. 2 Finally, the Motions to quash the subpoenas issued to internet
service providers (“ISPs”) are granted, without prejudice and the Court sua sponte quashes
subpoenas to ISPs for all defendants other than John Doe # 1 since they are no longer parties to
this action. Upon the information available to the Court, it seems that John Doe # 1 has yet to:
appear in this action, move to quash a subpoena to his or her ISP or move to sever and/or
dismiss. 3
I.

FACTUAL BACKGROUND
The instant action is one of many similar internet copy infringement actions in this

District and across the country in which Plaintiff claims that the defendants, identified only by
internet IP address and not by name or address, used a common peer-to-peer file sharing
protocol, to infringe on Plaintiff’s copyrighted works, collectively, in this case, fifteen movies
covered by fifteen copyright registrations (the “Works”). (Dkt. No. 23, “Amended Complaint,”
¶¶ 11-12). Plaintiff alleges each of the Works was contained on a website that was converted
into a single torrent file evidenced by a Cryptographic Hash Value. Id at ¶ 13. Plaintiff further
2

Plaintiff has previously voluntarily dismissed its complaint against Defendants John Does # 11,
17, 18, 20-46. See Dkt. Nos. 19, 27, 33, 39.
3

Nothing set forth herein should later preclude John Doe #1 from moving to dismiss and/or
sever or quash a subpoena.
2

alleges that Defendants installed a peer-to-peer protocol called BitTorrent, allowing them to copy
and distribute the Works. Id at ¶¶ 14, 18, 30. Plaintiff hired IPP, Limited (“IPP”), a computer
investigator, “to identify the IP addresses for those people that are using the BitTorrent protocol
and the internet to reproduce, distribute, display or perform Plaintiff’s copyrighted work.” Id at
¶¶ 38-44.
Accordingly, Plaintiff brought this action on June 26, 2012 against forty-six (46) John Doe
Defendants alleging copyright infringement in violation of 17 U.S.C. § 106 and 501 and
contributory copyright infringement. (See Dkt. No. 1 “Complaint;” see also Amended
Complaint, ¶¶ 3-6, 47-63). Because the John Doe Defendants’ identities are unknown to
Plaintiff other than by their IP addresses, on July 3, 2012, Plaintiff moved for Leave to Serve
Third Party Subpoenas to obtain “limited, immediate discovery on the Doe Defendants’ Internet
Service Providers (“ISPs”) so that Plaintiff may learn Defendants’ true identities.” (Dkt. No. 4).
On August 1, 2012, this Court granted Plaintiff’s motion. (Dkt. No. 6; “Order Granting Leave to
Serve Third Party Subpoenas”). Following the Order Granting Leave to Serve Third Party
Subpoenas and Plaintiff’s service of subpoenas on ISPs, four of the John Doe Defendants filed
separate motions challenging the Rule 45 subpoenas issued to the ISPs and seeking severance
and/or dismissal for improper joinder. See Dkt. Nos., 7, 9, 10 and 11.
II.

LEGAL STANDARD

Since the Motions seek severance and/or dismissal for improper joinder, the legal
standard for joinder is addressed herein. Federal Rule of Civil Procedure 20(a)(2) (“Rule 20”)
sets forth two conditions which must be satisfied for a plaintiff to permissively join multiple
defendants in one action: (A) the claims asserted against the defendants must “aris[e] out of the
same transaction, occurrence, or series of transactions or occurrences;” and (B) there must be a

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“question of law or fact common to all defendants.” Rule 20(a)(2)(A)-(B). Where a plaintiff has
failed to satisfy the conditions of permissive joinder under Rule 20(a), a court may “grant
severance or dismissal to the improper party if it will not prejudice any substantial right” to
remedy improper joinder pursuant to Fed. R. Civ. P. 21 (“Rule 21”). Sabolsky v. Budzanoski,
457 F.2d 1245, 1249 (3d Cir. 1972). Rule 21 provides: “[o]n motion or on its own, the court
may at any time, on just terms, add or drop a party.”
Moreover, even where joinder is permissible under Rule 20, a Court may exercise its
discretion to sever or drop defendants if it concludes that doing so would further the interests of
judicial economy without prejudice to any party. Rule 20(b); Rules 21 and 42(b); see also
Patrick Collins, Inc. v. John Does 1-43, No. 12-cv-3908, *3 (D.N.J. Feb. 15, 2013) (Hayden, J.)
citing Rodin Properties-Shore Mall, N.V. v. Cushman & Wakefield of Penn., Inc., 49 F. Supp. 2d
709, 721 (D.N.J. 1999) (“The decision to sever a claim or to try it separately is left to the sound
discretion of the trial court”).
III.

ANALYSIS
Here, Plaintiff alleged its claims against forty-six (46) John Doe Defendants. 4 In the

Motions at bar, John Doe Defendants argue, inter alia, that they are improperly joined as
defendants, citing various authorities in support, because the instances of accessing Plaintiff’s
Works did not arise from a single transaction or occurrence required by Rule 20, but rather
happened on different dates and times. See, e.g., Dkt. No. 9, 10; see also Amended Complaint,
Exhibit C. Plaintiff, in opposition, argues, inter alia, that joinder is proper because: (1) the
infringement occurred through a series of transactions; (2) joinder is favored; (3) there are
common issues of fact and law; (4) Defendants may have distributed the Works for an extended
4

At this time, only John Does’ # 1-10, 12-16, 19 (a/k/a Defendant Regina Surgent) and 22
remain. See Dkt. Nos. 19, 33, 35.
4

period of time; (5) Defendants are jointly and severally liable; and (6) joinder will promote
fairness and judicial economy. See Dkt. Nos. 13, p. 15-23, 14, p. 7-20.
As the litigants are certainly well aware, over the last year, the voluminous amount of
internet infringement actions involving peer-to-peer file sharing has led to some inconsistent
holdings. There is a split among federal courts and even within some districts as to “whether
defendants who participated in the same swarm . . . and downloaded the same file satisfy the
transaction-or-occurrence standard and can be properly joined.” See Next Phase Distrib., Inc. v.
John Does 1-27, 284 F.R.D. 3d 165, 168 (S.D.N.Y. 2012) (holding joinder of 27 defendants
improper and sua sponte severing John Does 2-27); see also, e.g., Amselfilm Prod. GMBH & Co.
KG v. Swarm 6A6DC and John Does 1-187, No. 12-cv-3865 (D.N.J. Oct. 10, 2012) (Hochberg,
J.) (holding joinder of 187 defendants improper); Media Products, Inc. v. John Does 1–26, No.
12 Civ. 3719, 2012 WL 3866492, *2 (S.D.N.Y. September 4, 2012) (holding joinder of 26
defendants improper); Third Degree Films, Inc. v. Does 1–131, 280 F.R.D. 493, 497–99
(D.Ariz.2012) (holding joinder of 131 defendants in copyright infringement action is improper);
West Coast Prods., Inc. v. Swarm Sharing Hash Files, et al., 2012 WL 3560809, *7-8 (W.D.La.
Aug. 17, 2012) (finding joinder of 1,980 defendants improper and granting motion to sever);
compare Malibu Media, LLC v. John Does 1–5, No. 12–cv–2954, 285 F.R.D. 273, 2012 WL
3641291, *3-5 (S.D.N.Y. August 24, 2012) (holding joinder of 5 defendants in copyright
infringement action is proper); Malibu Media, LLC v. John Does # 1-30, 2012 WL 6203697, *78 (D.N.J. Dec. 12, 2012) (Arpert, J.) (finding joinder appropriate and denying motions to sever).
Despite the split, the recent authority in this District has found joinder in this context
inappropriate, and judges have either ordered or recommended severance and dismissal of all
claims against all defendants other than one defendant, usually John Doe # 1. See, e.g., Patrick

5

Collins, Inc., No. 12-cv-3908, *5-6 (sua sponte severing all John Doe defendants except for
one); Amselfilm Prod., No. 12-cv-3865, n. 3 (finding joinder improper and severing and
dismissing all John Doe defendants except John Doe 1); see also Third Degree Films, Inc. v.
John Does 1-110, No. 12-cv-5817, *2 (D.N.J. Jan. 17, 2013) (Falk, J.) (denying motion to quash
“in contemplation of severance and dismissal” for improper joinder of 110 John Doe
defendants); Century Media, Ltd. v. John Does 1-77, 12-cv-3911, 2013 WL 686230, *2-3 (D.N.J.
Feb. 27, 2013) (Dickson, J.) (ordering plaintiff to show cause as to why the Court should not
recommend sua sponte dismissal of all John Doe defendants except for one). In Amselfilm, in
severing and dismissing all John Doe defendants except for one, Judge Hochberg found joinder
of the defendants to be improper “where Defendants’ only determinable connection to one
another is the similar method of distributing the same work, and where Defendants’ alleged
instances of distribution constitute separate transactions.” Amselfilm Prod., No. 12-cv-3865, n.
3. Judge Hochberg went on to note that:
While this Court appreciates that those who participate in the same swarm are virtually
“connected” by the same copyrighted work, this Court is not convinced that the purported
instances of distribution, as identified by digital rights enforcement company Baseprotect
and listed in Schedule B of the complaint, are a part of the same transaction, particularly
because they span across various dates and times. Although there may be multiple
individuals who distribute pieces of the same work and are thereby described as being in
the same swarm, 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. Third Degree
Films, 280 F.R.D. at 498 (finding that participation in the same swarm does not constitute
the same transaction or occurrence or series of transactions or occurrences for purposes
of joinder because a particular swarm “can last for many months” and “[d]uring those
months, the initial participants may never overlap with later participants”); see also June
18, 2012 Declaration of David Farris ¶ 25. Without more connecting them, 187
defendants who have distributed pieces of the work at different times cannot be
permissively joined in this case. For joinder to be appropriate, Plaintiff must show a
more definite connection between participants in the swarm, namely that the group of
defendants sought to be joined have directly participated in the same transaction. For
example, the Plaintiff 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.
6

Id., at n. 3; see also Century Media, Ltd., 2013 WL 686230, *2-3.
The facts of the instant case are analogous to the Amselfilm case where the alleged
instances of infringement (or copying) occurred on different dates and times as different
transactions. See Amended Complaint, Exhibit C. Further, like in Amselfilm, other courts have
held that there are too few facts connecting each of the John Doe defendants; that each defendant
would likely assert different factual defenses to the allegations creating factual and legal issues
not common to all defendants which would require separate adjudication of these issues; and that
many of the owners of the IP addresses did not download the Works and thus are not the alleged
infringers. See, e.g., Patrick Collins, Inc., No. 12-cv-3908; SBO Pictures, Inc. v. Does 1-20,
2012 WL 2304253, at *2 (S.D.N.Y. June 18, 2012); Third Degree Films v. Does 1-72, 2012 WL
5464177, at *5 (D. Mass. Nov. 5, 2012); Media Prods., Inc. v. John Does 1-26, 2012 WL
3866492, at *2 (S.D.N.Y. Sept. 4, 2012). Accordingly, courts have severed and dropped all John
Doe defendants except for one because joinder of the John Doe defendants would not promote
judicial economy and fairness. See Patrick Collins, Inc., No. 12-cv-3908; Amselfilm Prod., No.
12-cv-3865, n. 3.
This Court fully agrees with the decisions of its colleagues in this District and follows the
same reasoning. Therefore, in the interests of judicial economy, the Court, in its discretion,
severs and dismisses all of the remaining John Doe Defendants to this action except for John Doe
1 without prejudice for Plaintiff to re-file its claims against John Doe Defendants in separate
actions.
IV.

CONCLUSION

For the aforementioned reasons, the Motions of John Does’ 9 and 7 to sever and dismiss the
action against them are GRANTED without prejudice. The Court sua sponte severs all
7

remaining defendants (John Does 1-10, 12-16, 19 (a/k/a Defendant Regina Surgent) and 22)
from this action other than John Doe # 1 without prejudice. Further, the Motions to quash the
subpoenas issued to the ISPs are GRANTED, without prejudice, and the Court sua sponte
quashes the subpoenas issued to ISPs for all defendants other than John Doe # 1.
The Clerk of the Court is directed to terminate Docket Entry Nos. 9, 10 and 11.

s/ Stanley R. Chesler
STANLEY R. CHESLER
UNITED STATES DISTRICT JUDGE

Dated: April 19, 2013
.

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