K-Beech, Inc. v. Does 1-41, CIVIL ACTION NO. V-11-46

• Decision Date: 08 March 2012
• Docket Number: CIVIL ACTION NO. V-11-46
• Parties: K-BEECH, INC, Plaintiff, v. JOHN DOES 1-41, Defendants.
• Court: U.S. District Court — Southern District of Texas

K-BEECH, INC, Plaintiff,

v.JOHN DOES 1-41, Defendants.

CIVIL ACTION NO. V-11-46

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS VICTORIA DIVISION

Dated: March 8, 2012

MEMORANDUM OPINION & ORDER

Pending before the Court is John Doe Defendant No. 7's ("John Doe #7") pro se Motion to Quash Subpoena and Motion to Sever and Motion to Dismiss (Dkt. No. 12), to which Plaintiff K-Beech, Inc. ("K-Beech") has responded (Dkt. No. 16), and John Doe #7 has replied (Dkt. No. 18). Having considered the motion, response, reply, record, and applicable law, the Court is of the opinion that John Doe #7's Motions to Sever and to Quash Subpoena should be GRANTED, and his Motion to Dismiss should be DENIED as MOOT.

I. FACTUAL & PROCEDURAL BACKGROUND

On August 19, 2011, K-Beech filed this action against 41 John Doe Defendants (the "Doe Defendants") alleging that they used a file-sharing protocol called BitTorrent to illegally infringe K-Beech's copyright in a pornographic motion picture entitled Virgins 4 (the "Work"). This case is part of an "'outbreak of similar litigation . . . around the country,' in which copyright holders have attempted to assert claims against multiple unknown defendants by joining them, in often large numbers, into a single action." Raw Films, Inc. v. Does 1-32, 2011 WL 6840590, *1 (N.D. Ga. Dec. 29, 2011) (quoting On The Cheap, LLC v. Does 1-5011, 2011 WL 4018258, * 1 (N.D.Cal. Sept. 6, 2011)).¹ Like the plaintiffs in these other cases, K-Beech claims that each Doe Defendant participated in a "swarm" with many other users, simultaneously uploading and downloading K-Beech's Work. The BitTorrent swarm process has been described as follows:

In the BitTorrent vernacular, individual downloaders/distributors of a particular file are called "peers." The group of peers involved in downloading/distributing a particular file is called a "swarm." A server which stores a list of peers in a swarm is called a "tracker." A computer program that implements the BitTorrent protocol is called a BitTorrent "client."

The BitTorrent protocol operates as follows. First, a user locates a small "torrent" file. This file contains information about the files to be shared and about the tracker, the computer that coordinates the file distribution. Second, the user loads the torrent file into a BitTorrent client, which automatically attempts to connect to the tracker listed in the torrent file. Third, the tracker responds with a list of peers and the BitTorrent client connects to those peers to begin downloading data from and distributing data to the other peers in the swarm. When the download is complete, the BitTorrent client continues distributing data to the peers in the swarm until the user manually disconnects form [sic] the swarm or the BitTorrent client otherwise does the same.

Diabolic Video Prods., Inc. v. Does 1-2099, 2011 WL 3100404, *1-2 (N.D. Cal. May 31, 2011).

When K-Beech initially filed this action, it claimed to know the Internet Protocol (IP) address of each infringing defendant, but not their real names, addresses, or other identifying information. The entity that possesses information linking an IP address to real identifying information is the Internet Service Provider (ISP) for that IP address. ISPs, such as Comcast or Verizon, maintain temporary internal logs that record the date, time, and customer identity for each IP address serviced by that ISP. Before appreciating the manageability problems posed by joinder of the 41 Doe Defendants, the Court granted K-Beech's Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f) Conference, enabling K-Beech to conduct limiteddiscovery on the ISPs that service the allegedly infringing IP addresses so that K-Beech could discover the identity of the Doe Defendants and serve them with process. (Dkt. Nos. 5, 9.)

Since the Court's Order permitting such discovery, the ISPs have provided their subscribers with notice of the subpoena, and K-Beech has discovered the identities of at least some of the Doe Defendants. As a result, on December 16, 2011, John Doe # 7, whose contact information has been subpoenaed, moved to quash the subpoena, sever all defendants, and dismiss K-Beech's claims.

On February 8, 2012, K-Beech voluntarily dismissed John Doe #40 pursuant to an undisclosed settlement agreement. (Dkt. No. 19.) K-Beech also filed an Amended Complaint on February 17, 2012, which named Gloria Aguayo, John Doe #7, Landrian Buckham, Thomas Vaugh, and Does #20—29 as defendants. (Dkt. No. 21.) Although the Court previously granted K-Beech's request for leave to take discovery prior to the Rule 26(f) conference, for the reasons set forth the below, the Court finds that John Doe #7, Landrian Buckham, Thomas Vaugh, and Does #20—29 have been improperly joined and must be severed.

II. Motion to Sever

John Doe #7 argues that the Doe Defendants are not properly joined under Federal Rules of Civil Procedure 20 and 21 and should accordingly be severed from the instant action.

A. Legal Standard

Federal Rule of Civil Procedure 21 provides that "[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. Since Rule 21 does not provide any standards by which district courts can determine if parties are misjoined, courts often look to Rule 20 for guidance. Acevedo v. Allsup's Convenience Stores, Inc., 600 F.3d 516, 521 (5th Cir. 2010). Rule 20 states that permissive joinder of defendants is proper if: "(A) any right to relief is asserted against themjointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transaction 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). "However, even if this test is satisfied, district courts have the discretion to refuse joinder in the interest of avoiding prejudice and delay . . . , ensuring judicial economy . . . , or safeguarding principles of fundamental fairness." Acevedo, 600 F.3d at 521 (internal citations omitted).

B. Analysis

Plaintiffs in a number of other similar cases have argued that "when each defendant is one of many users simultaneously uploading and downloading a protected work, the defendant acts as part of a 'swarm' in a 'series of transactions' involving 'common questions of law and fact.'" Raw Films, 2011 WL 6840590, at *1. This practice is known as "swarm joinder" and is the joinder theory relied upon by K-Beech in this action.

The U.S. District Court for the District of Columbia has repeatedly found that joinder is appropriate in cases involving BitTorrent technology. See, e.g., Call of the Wild Movie, LLC v. Does 1-1,062, 770 F. Supp. 2d 332, 342—45 (D.D.C. 2011); West Coast Prod., Inc. v. Does 15829, 275 F.R.D. 9, 15—16 (D.D.C. 2011); Donkeyball Movie, LLC v. Does 1-171, 2011 WL 1807452, *4-*5 (D.D.C. May 12, 2011).

However, a number of other district courts have found joinder inappropriate in similar BitTorrent cases. See, e.g., Raw Films, 2011 WL 6840590, at *1 (finding that "the swarm joinder pleading tactic [was] not appropriate" where "[t]he differing dates and times of each Defendant's alleged sharing d[id] not allow for an inference that the Defendants were acting in concert"); SBO Pictures, Inc. v. Does 1-3036, 2011 WL 6002620, *3 (N.D. Cal. Nov. 30, 2011) ("The Court cannot conclude that a Doe Defendant who allegedly downloaded or uploaded a portion of the Motion Picture on May 11, 2011 [and] a Doe Defendant who allegedly did the same onAugust 10, 2011 . . . were engaged in the single transaction or series of closely-related transactions recognized under Rule 20."); Third Degree Films v. Does 1-3577, 2011 WL 5374569, *3 (N.D. Cal. Nov. 4, 2011) (Rule 20 not satisfied even though defendants were alleged to be part of a common swarm where Doe defendants downloaded the protected work at various dates and times ranging over a period of several months); AF Holdings, LLC v. Does 197, 2011 WL 5195227, *2 (N.D. Cal. Nov. 1, 2011) ("[E]ven though Plaintiff has alleged that Doe Defendants entered into the same swarm and were downloading the same seed file, Plaintiff has not alleged that any of the ninety-seven Doe Defendants exchanged any piece of the relevant file with each other or actually acted in concert with one another."); Hard Drive Prods., Inc. v. Does 1-30, 2011 WL 4915551, *3 (E.D. Va. Oct. 17, 2011) ("Plaintiff relies on this "swarm" theory to claim that the Doe Defendants acted in concert through a series of transactions to commit the infringement, giving rise to proper joinder. . . . The Court, however, disagrees with this conception of proper joinder under the Federal Rules of Civil Procedure."); Raw Films, 2011 WL 6182025, at *2 ("The mere allegation that the defendants have used the same peer-to-peer network to copy and reproduce the Work—which occurred on different days and times over a span of three months—is insufficient to meet the standards of joinder set forth in Rule 20."); On The Cheap, 2011 WL 4018258, at *1 ("I . . . find that plaintiff has not established that joinder would be proper under FRCP 20(a)(2) merely because defendants used BitTorrent to download the same film."); Hard Drive Prods, Inc. v. Does 1-188, 2011 WL 3740473, *14 (N.D. Cal. Aug. 23, 2011) ("Even if joinder of the Doe Defendants in this action met the requirements of Rule 20(a) . . . , the Court finds it is appropriate to exercise its discretion to sever and dismiss all but one Doe Defendant to avoid causing prejudice and unfairness to Defendants, and in the interest of justice."); Boy Racer v. Does 1—60, 2011 WL 3652521, *4 (N.D. Cal Aug. 19, 2011) ("Allegations that defendants used a single peer-to-peer network to download plaintiff's works—on different days, at different times, and through different ISPs—is insufficient to allow plaintiff to litigate against sixty different defen...