Cinetel Films, Inc. v. Doe

• Decision Date: 04 April 2012
• Docket Number: Civil No. JFM 8:11–cv–02438.
• Citation: 853 F.Supp.2d 545,82 Fed.R.Serv.3d 28
• Parties: CINETEL FILMS, INC., and Family of the Year Productions, LLC, Plaintiffs, v. DOES 1–1,052, Defendants.
• Court: U.S. District Court — District of Maryland

853 F.Supp.2d 545

82 Fed.R.Serv.3d 28

CINETEL FILMS, INC., and Family of the Year Productions, LLC, Plaintiffs,

v.DOES 1–1,052, Defendants.

Civil No. JFM 8:11–cv–02438.

United States District Court, D. Maryland.

April 4, 2012.

Thomas M. Dunlap, Dunlap Grubb and Weaver PC, Leesburg, VA, for Plaintiffs.

Doe No. 122, pro se.

Doe No. 97, pro se.

Doe No. 234, pro se.

Doe No. 290, pro se.

Doe No. 337, pro se.

Doe No. 173, pro se.

Doe No. 156, pro se.

Doe No. 177, pro se.

Doe No. 371, pro se.

Doe No. 168, pro se.

Doe No. 91, pro se.

Ryan P. Siney, Shumaker Williams PC, Camp Hill, PA, Michael Wenyue Lu, Law Offices of Michael W. Lu LLC, Rockville, MD, Kenneth W. Lee, Tucker Arensberg PC, Lemoyne, PA, William K. Meyer, Zuckerman Spaeder LLP, Baltimore, MD, for Defendants.

OPINION

J. FREDERICK MOTZ, District Judge.

Plaintiffs, CineTel Films, Inc. (“CineTel”) and Family of the Year Productions, LLC (“Family”), (collectively, “plaintiffs”), filed a complaint in this court on August 11, 2011 against unidentified John Doe defendants 1–1,052, ¹ seeking monetary and injunctive relief for copyright infringement pursuant to 17 U.S.C. § 101 et seq. Pending before the court are (1) Motions to Sever filed by Does 128, 465, 514 (ECF Nos. 13, 42, 46); (2) Motions to Quash or Modify Plaintiffs' Subpoena, filed by Does 91, 97, 122, 128, 155, 156, 173, 168, 177, 234, 290, 337, 339, 371, 465, 469, 499, 514, 571, 597, 642 (ECF Nos. 14, 11, 7, 13, 34, 25, 24, 29, 27, 21, 22, 23, 36, 28, 42, 49, 43, 46, 54, 62, 58) and five by unnumbered, unidentified Doe defendants (ECF Nos. 19–20, 26, 34, 51); (3) Motions for a Protective Order filed by Does 128, 339, 446, 642 (ECF Nos. 13, 35, 52, 58); (4) Motions to Dismiss filed by Does 128, 339, 465, 514 (ECF Nos. 13, 37, 42, 46), and two by unnumbered, unidentified Doe defendants (ECF Nos. 19–20); and (5) a Motion to Dismiss Plaintiff CineTel filed by Doe # 465 (ECF No. 42).² All issues have been fully briefed and no oral argument is necessary. See Local Rule 105.6. For the reasons that follow, I find joinder of the putative defendants improper and sever claims against all defendants, except Doe defendant # 37, the first Doe defendant listed in Exhibit A to the complaint that has not been voluntarily dismissed. All other defendants are hereby dismissed without prejudice. As a result, all subpoenas seeking severed defendants' personal identifying information are quashed. Finally, the motions to dismiss for lack of personal jurisdiction and to dismiss CineTel as an improper plaintiff are moot because the movants have been severed and dismissed from this action.

BACKGROUND

On August 30, 2011, Plaintiffs CineTel Films, Inc. (“CineTel”) and Family of the Year Productions, LLC (“Family”) filed a complaint against 1,052 John Doe defendants alleging that defendants used a file-sharing protocol called BitTorrent to illegally obtain plaintiffs' copyrighted pornographic motion picture I Spit on Your Grave. (Compl. ¶ 3.) Plaintiffs explain that the BitTorrent protocol differs from the standard peer-to-peer (“P2P”) protocol used for such networks as Kazaa and Limewire. ( Id.) Unlike a P2P protocol, with BitTorrent the illegal download occurs through a piecemeal process. ( Id.) The initial file-provider shares the original file, known as a “seed,” with a torrent network. ( Id.) Then, through this torrent network, users receive different portions of the file from other “peer” users who have already downloaded the file, eventually obtaining a full and complete copy of the file. ( Id.) As more and more peers join the network, they form what is collectively known as a “swarm.” ( Id.) The plaintiffs state that as more individuals download the file and thereby join the swarm, the likelihood of new, successful downloads increases. ( Id. ¶ 4.) Plaintiffs allege the Doe defendants reproduced and/or distributed I Spit on Your Grave through this piecemeal process, thereby willfully and intentionally infringing on plaintiffs' exclusive rights. (Compl. ¶ 12.)

Attached to the complaint is a chart listing the Internet Protocol addresses (“IP addresses”) of the 1,052 Doe defendants—the only identifying information provided to this court—together with the date and time each defendant allegedly accessed the torrent network for the purpose of downloading unlawful copies of plaintiffs' copyrighted motion picture. (Compl. Ex. A, ECF No. 1–1). On November 28, 2011, the court granted plaintiffs' Motion to Expedite Discovery. (ECF No. 6.) In accordance with this court's Order, plaintiffs served Rule 45 subpoenas on the Internet Service Providers (“ISPs”) that provide internet service to the allegedly infringing IP addresses to obtain sufficient identifying information—names, addresses, telephone numbers, and e-mail addresses—to serve Doe defendants with process. In response, over twenty-five Doe defendants have filed motions to (1) sever the joined defendants; (2); quash or modify plaintiffs' subpoena; (3) secure a protective order; (4) dismiss for lack of personal jurisdiction and improper venue; and/or (5) remove CineTel as a plaintiff.

ANALYSIS

A. Motions to Sever

Federal Rule of Civil Procedure 20(a)(2) describes the requirements for permissive joinder: “Persons ... may be joined in one action as defendants if: (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 transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action.” Fed.R.Civ.P. 20(a)(2). If the two requirements are not met, and defendants are deemed improperly joined, the court “on motion or on its own ... may at any time, on just terms ... drop a party.” Fed.R.Civ.P. 21. The Federal Rules make clear that “misjoinder of parties is not a ground for dismissing an action” in its entirety. Id.

The Supreme Court has articulated that “the impulse is toward the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.” See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Additionally, the Fourth Circuit has held that “Rule 20 grants courts wide discretion concerning the permissive joinder of parties.” Aleman v. Chugach Support Servs. Inc., 485 F.3d 206, 218 n. 5 (4th Cir.2007). The court cannot ignore Rule 20's requirements, however. See Arista Records, LLC v. Does 1–11, No. 1:07–cv–2828, 2008 WL 4823160, at *4 (N.D.Ohio Nov. 3, 2008) (stating that the court “does not believe that ... efficiency concerns should supersede the requirements for joinder set forth in the Federal Rules of Civil Procedure, particularly where, as here, there are no allegations that the same individual is responsible for multiple instances of infringement occurring at the identified IP addresses”). I find the requirements of Rule 20 are not met, and defendants are improperly joined.

As a preliminary matter, I must address why I find it appropriate, if not preferable, to reach the joinder issue prior to the Doe defendants' identification. See Arista Records, 2008 WL 4823160, at *4 (“[T]he Court agrees with the various district courts that have decided to reach the joinder issue prior to identification of the doe defendants.”) (collecting cases); BMG Music v. Does 1–203, No. Civ. A. 04–650, 2004 WL 953888, at *1 (E.D.Pa. Apr. 2, 2004) (“Although it would be convenient and economical (for Plaintiffs) to have this Court preside over Plaintiffs' expedited discovery request, the Court simply cannot overcome its finding that the Defendants are not properly joined parties. In light of the Court's continuing conviction that joinder is improper, deferring consideration of the joinder issue is inappropriate....”). Unlike a personal jurisdiction inquiry, the court does not need defendants' personal identifying information to evaluate joinder. Plaintiffs' allegations are sufficient to evaluate whether Rule 20's permissive joinder requirements are satisfied.

Not only does the court possess the requisite information to address joinder at this stage, but failing to do so raises significant fairness concerns. The Northern District of Ohio provides an excellent description of the adverse practical consequences associated with deferring consideration of joinder:

[I]f Plaintiffs' Complaint does in fact violate the joinder requirements, Plaintiffs should not be permitted to proceed with their lawsuit until after the procedural defect is rectified.... The Federal Rules of Civil Procedure should not be cast aside merely in the name of potential efficiency.... [Additionally,] [i]n all likelihood, if the joinder decision were to be postponed, the Court would never have an opportunity to rule on the propriety of Plaintiffs' joinder of the Doe Defendants. See Sony BMG Music Entm't v. Does 1–5, No. CV 07–2434 SJO (JCx) (C.D.Cal. Aug. 29, 2007) (“Although Plaintiffs contend that the Defendant Does may question the propriety of joinder after they are identified, it is this Court's experience that an overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.”) ... While overworked courts normally would appreciate one less motion to decide, by deferring a ruling on joinder in this case and if, as will be discussed below, the Doe Defendants are misjoined, Plaintiffs would be able to avoid paying $350 filing fees under 28 U.S.C. § 1914(a) for separate actions against each of the improperly joined Defendants. Although the government would not lose a substantial amount of filing fees from this case alone, other courts and commentators have noted that a consequence of postponing a decision on joinder in lawsuits similar to this action results in lost revenue of perhaps millions of dollars and only...