LHF Prods., Inc. v. Kabala

• Decision Date: 13 June 2017
• Docket Number: Case No. 2:16-cv-02028-JAD-NJK
• Parties: LHF PRODUCTIONS, INC., Plaintiff(s), v. BRIAN KABALA, et al., Defendant(s).
• Court: U.S. District Court — District of Nevada

LHF PRODUCTIONS, INC., Plaintiff(s), v. BRIAN KABALA, et al., Defendant(s).

Case No. 2:16-cv-02028-JAD-NJK

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

June 13, 2017

ORDER REPORT AND RECOMMENDATION

This is one of several of cases filed by Plaintiff against numerous defendants alleged to have infringed its copyright through the BitTorrent protocol.¹ The Court issued an order to show cause as to why the defendants should not be severed and all defendants dismissed without prejudice except for the first defendant, as well as why the subpoenas served should not be quashed except to the extent they relate to the first defendant. Docket No. 33. Plaintiff filed a response to the order to show cause, and an amended response. Docket Nos. 53, 59.

Defendant Brian Kabala filed a response. Docket No. 55. Defendant Kabala also filed a motion for leave to file an amended response, Docket No. 58, which is hereby GRANTED.

The Court finds a hearing unnecessary on this matter. See Local Rule 78-1. Accordingly, the motion for a hearing at Docket No. 60 is DENIED.

The undersigned further RECOMMENDS that all Defendants except Defendant Brian Kabala be SEVERED and DISMISSED without prejudice.

Plaintiff is ORDERED to promptly serve a copy of this order and report and recommendation on any defendant who has not yet appeared, and shall file a proof of service of the same by June 20, 2017.

I. FACTUAL BACKGROUND

This is one of dozens of cases alleging numerous defendants engaged in copyright infringement through BitTorrent. Although this type of case is now relatively common in federal courts, it is only recently becoming common in this District. Plaintiff owns the copyright for the motion picture "London Has Fallen." Docket No. 1 at ¶ 11. Plaintiff alleges that each of the defendants is a Nevada resident who infringed that copyright through participation in a BitTorrent swarm. See, e.g., id. at ¶¶ 29-35. Plaintiff hired a digital forensic investigation service to determine the IP addresses that were involved in that swarm. See id. at ¶¶ 36-42.

Plaintiff then brought suit against 23 Doe Defendants. See Docket No. 1-1. Plaintiff moved the Court ex parte for an order allowing it to obtain discovery from various Internet Service Providers so that it could identify the Doe Defendants. Docket No. 3. The Court granted that motion. Docket No. 5. On November 22, 2016, Plaintiff amended the complaint to bring claims against ten named defendants and ten Doe Defendants. Docket No. 7. On April 27, 2017, the Court issued the instant order to show cause. Docket No. 33. At this juncture, four defendants remain in the case.

II. RECOMMENDATION FOR SEVERANCE AND DISMISSAL WITHOUT PREJUDICE

The central question now before the Court is whether Plaintiff properly joined numerous defendants in this case based on the contention that they participated in the same BitTorrent "swarm." The majority of courts within the Ninth Circuit have determined that such allegations are insufficient to establish the requirements for joinder under Rule 20(a) of the Federal Rules of Civil Procedure² and, even if thoserequirements had been met, that joinder should nonetheless not be permitted as a discretionary matter. The undersigned agrees with the majority approach on both issues.

A. MERITS OF PERMISSIVE JOINDER

Rule 21 provides that the Court may, "on just terms, add or drop a party" from an action or "sever any claim against a party." Courts have broad discretion in determining whether to sever a party. See, e.g., Coleman v. Quaker Oats Co., 232 F.3d 1271, 1297 (9th Cir. 2000). Rule 20(a) outlines the requirements for permissive joinder of defendants, providing that joinder is appropriate if (1) a right to relief is asserted relating to or arising out of the same transaction or occurrence, or series of transactions or occurrences, and (2) some question of law or fact is common to all defendants. See Desert Empire Bank v. Ins. Co. of N. Am., 623 F.2d 1371, 1375 (9th Cir. 1980). The Ninth Circuit has indicated that Rule 20 must be "construed liberally in order to promote trial convenience and to expedite the final determination of disputes, thereby preventing multiple lawsuits." See, e.g., League to Save Lake Tahoe v. Tahoe Reg'l Planning Agency, 558 F.2d 914, 917 (9th Cir. 1977); see also United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966) (noting 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"). At the same time, "[t]he policy favoring broad joinder does not mean that the requirements for permissive joinder should be ignored." CineTel Films, Inc. v. Does 1-1,052, 853 F. Supp. 2d 545, 554 (D. Md. 2012).

As noted above, a basic prerequisite for joining claims against different defendants is that they must arise "out of the same transaction, occurrence, or series of transactions or occurrences." Fed. R. Civ. P. 20(a)(2)(A). Plaintiff alleges that each Defendant participated in a BitTorrent swarm with respect to its copyrighted work and, further, that such participation in that BitTorrent swarm constitutes a transaction or series of transactions. E.g., Docket No. 1 at ¶¶ 10, 33.³ Plaintiff further alleges that "[e]ach Defendant had copied a piece of the Plaintiff's copyrighted Work identified by the Unique Hash Number; and [t]herefore, each Defendant was part of the same series of transactions." Id. at ¶ 39.

Generally speaking, whether a situation constitutes a single transaction, occurrence, or series of transactions or occurrences for purposes of Rule 20 depends on a case-specific analysis. 7 Wright, Miller, & Kane, FEDERAL PRACTICE AND PROCEDURE, § 1653 (3d ed. 2014). The factual scenario presented here, however, is the same or substantially similar to many other copyright cases alleging infringement through BitTorrent,⁴ and the Court finds that those cases provide significant guidance on whether Plaintiff has shown a transaction, occurrence, or series of transactions or occurrences in this case.

"In most of these cases, the courts have held that the defendants were improperly joined, and have usually ordered severance of all but one defendant. While the defendants' conduct is parallel, each acts separately so that each instance of downloading is a separate transaction or occurrence." 4-20 MOORES'S FEDERAL PRACTICE - Civil § 20.05 (2017). Several district court decisions within the Ninth Circuit persuasively articulate the reasons for finding BitTorrent swarm allegations insufficient to establish a transaction, occurrence, or series of transactions or occurrences, as required to satisfy Rule 20(a). For example, Judge Teilborg succinctly surmised some of the problems with the joinder of BitTorrent claims as follows:

The Court finds that a user participating in the same swarm is not the same transaction or occurrence or series of transactions or occurrences. The Court 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. Finally, in Plaintiff's effort to ensure this Court's jurisdiction, Plaintiff has included only Arizona IP addresses from this particular swarm. However, the Court presumes many users from many other jurisdictions participated in this swarm. Because of the ease with which all of the various users can be separated, the Court finds it would be inconsistent to find a single transaction or occurrence for joinder based solely on Plaintiff's litigation goals of bringing a single lawsuit against the Arizona defendants. In other words, there is no logic to segregating the Arizona based members of the swarm from the non-Arizona based members, except Plaintiff's convenience. The Court finds this is not a basis for allowing permissive joinder.

Third Degree Films, Inc. v. Does 1-131, 280 F.R.D. 493, 498 (D. Ariz. 2012).

The concerns articulated by Judge Teilborg echo those that had been outlined earlier by Judge Spero in finding that the BitTorrent protocol does not meet Rule 20's transactional requirement:

Under the BitTorrent Protocol, it is not necessary that each of the Does 1-188 participated in or contributed to the downloading of each other's copies of the work at issue—or even participated in or contributed to the downloading by any of the Does 1-188. Any "pieces" of the work copied or uploaded by any individual Doe may have gone to any other Doe or to any of the potentially thousands who participated in a given swarm. The bare fact that a Doe clicked on a command to participate in the BitTorrent Protocol does not mean that they were part of the downloading by unknown hundreds or thousands of individuals across the country or across the world.

Hard Drive Prods., Inc. v. Does 1-188, 809 F. Supp. 2d 1150, 1163 (N.D. Cal. 2011).

Plaintiff casts these decisions as "riddled with [such] profound errors in logic and judgment" that they have been relegated to "outlier" status. See, e.g., Docket No. 59 at 10.⁵ Plaintiff's view of the legal landscape is a distorted one. While there are undoubtedly some judges who have reached the opposite conclusion,⁶ the reasoning articulated by Judge Teilborg and Judge Spero is consistent with the majority view adopted by vast numbers of other judges within the Ninth Circuit who have held that BitTorrent swarm allegations are insufficient to meet the transactional requirement in Rule 20(a)(2)(A). See On the Cheap, LLC v. Does 1-5011, 280 F.R.D. 500, 502-03 (N.D. Cal. 2011) (Zimmerman, J.) ("Most recent decisions on this issue have concluded that the use of the BitTorrent protocol does not distinguish these cases from earlier rulings in P2P cases in which courts have found that...