Flypaper Distribution, LLC v. Does 1-19

Filing 9

ORDER TO SHOW CAUSE AND QUASHING SUBPOENAS by Judge Robert S. Lasnik. (TF)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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FLYPAPER DISTRIBUTION, LLC,

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Plaintiff,

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Case No. C13-0063RAJ-RSL
v.
ORDER TO SHOW CAUSE AND
QUASHING SUBPOENAS

DOES 1 - 19,

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Defendants.

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This action was filed on January 9, 2013. It is one of forty-eight copyright

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infringement actions filed during a four month period by attorney Richard J. Symmes

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against approximately 2,323 individual Doe defendants. The nineteen defendants in this

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case are represented by IP addresses linked to on-line sharing of the movie “Flypaper”

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between 1:29 pm on August 30, 2012, and 2:40 pm on November 27, 2012. Although the

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evidence of internet activity shows that hours, if not days, separated each defendant’s

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allegedly infringing conduct, plaintiff alleges that all nineteen defendants participated in a

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single “swarm” utilizing interactive peer-to-peer file transfer technology protocol called a

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BitTorrent to illegally copy and share “Flypaper.” Plaintiff affirmatively alleges that the

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“swarm” aspect of the file-sharing justifies joinder of these disparate defendants in a

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single lawsuit.

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ORDER TO SHOW CAUSE AND
QUASHING SUBPOENAS - 1

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On February 12, 2013, the Court granted plaintiff’s motion to initiate early

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discovery, including the issuance of subpoenas under Fed. R. Civ. P. 45 to internet

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service providers, in an attempt to identify each Doe defendant. No defendants have filed

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objections to the subpoenas. Despite the fact that more than two months have elapsed

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since discovery was authorized, there is no indication that any defendants have been

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timely served (see Fed. R. Civ. P. 4(m)), nor has plaintiff amended its complaint to

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identify the Doe defendants.

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All BitTorrent cases filed in the Western District of Washington have been
referred to the undersigned for pretrial handling. As the full extent of this assignment has

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become clear, the Court admits to some concerns regarding both the appropriateness of

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joinder and the possibility that the judicial authority of the United States may be used to

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wrest improvident settlements from pro se litigants under threat of huge statutory

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penalties. The Court is not alone: other judicial officers in the Ninth Circuit are beset by

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the same concerns and have taken various paths to mitigate the potential for abuse. See,

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e.g., Ingenuity 13 LLC v. John Doe, No. 2:12-cv-9333-ODW(JCx) (C.D. Cal. May 6,

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2013); Voltage Pictures, LLC v. Does 1-12, No. 2:13-292-AA (D. Or. May 4, 2013).

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Having reviewed the record in this and related cases as well as the relevant
case law, it is hereby ORDERED as follows:

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1. Any and all subpoenas issued in the above-captioned matter are hereby

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QUASHED. Plaintiff shall immediately notify the subpoena recipients that they need not

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respond.

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2. To the extent plaintiff has obtained identifying information regarding one or

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more Doe defendants, whether through the service provider, defendant, or another source,

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it shall not utilize that information in any way. If plaintiff has already contacted one or

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more of the defendants, it shall file under seal all correspondence or other written

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ORDER TO SHOW CAUSE AND
QUASHING SUBPOENAS - 2

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communications (including emails) sent to defendants and a summary of any oral

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communications. Plaintiff shall refrain from any further oral or written communications

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with defendants unless expressly approved by the Court in advance.

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3. Plaintiff shall, within fourteen days of the date of this Order, show cause why

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the above-captioned matter should not be dismissed as to all defendants other than Doe 1

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for improper joinder and/or pursuant to the Court’s inherent authority to control its

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docket.

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4. Plaintiff shall, within fourteen days of the date of this Order, show cause why
the above-captioned matter should not be dismissed as to all defendants for failure to
timely serve.
5. Plaintiff shall, within fourteen days of the date of this Order, provide additional

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information regarding (a) Flypaper Distribution, LLC’s ownership of the copyright at

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issue and (b) Flypaper Distribution, LLC’s direct and indirect members/owners/

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stakeholders. Plaintiff shall provide a copy of any and all transfer statements and/or

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work-for-hire agreements supporting a determination that Flypaper Distribution, LLC has

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standing to pursue this action. Plaintiff shall also supplement the corporate disclosure

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statement filed in this action (Dkt. # 2) by providing the registration information for

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Foresight Unlimited, LLC maintained by the Secretary of State and identifying all

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members/owners/stakeholders of Foresight Unlimited, LLC, both direct and indirect, in

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the form of an organizational tree that reaches back far enough to reveal all individual

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members/owners/stakeholders and publicly-traded corporations.

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6. With the exception of the actions specifically set forth in this Order, the abovecaptioned matter is hereby STAYED.

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ORDER TO SHOW CAUSE AND
QUASHING SUBPOENAS - 3

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The Clerk of Court is directed to place this Order to Show Cause on the
Court’s calendar for Friday, May 31, 2013.

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Dated this 15th day of May, 2013.

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A
Robert S. Lasnik
United States District Judge

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ORDER TO SHOW CAUSE AND
QUASHING SUBPOENAS - 4