M. HANNAH LAUCK, District Judge.
This matter comes before the Court on two motions: (1) the Motion for Discovery for Leave to Serve Third Party Subpoenas (the "Motion for Discovery") filed by CELL Film Holdings, LLC ("CELL"), (ECF No. 2); and, (2) the First Motion to Extend Time Pursuant to Federal Rule of Civil Procedure 4(m) (the "Motion to Extend") filed by CELL, (ECF No. 6). The Court exercises jurisdiction pursuant to 28 U.S.C. § 1338(a).
On September 9, 2016, CELL filed its Complaint for Copyright Infringement against John Does 1-12 in this Court.
The Complaint alleges that, using a network called a "BitTorrent protocol" ("BitTorrent"), the Defendants "reproduced, distributed[,] and offered to distribute" the Movie without CELL's consent or permission. (Compl. 2,4-5.) The Defendants' alleged use of BitTorrent occurred over the span of one day: June 11, 2016. CELL contends that BitTorrent differs from a Peer-to-Peer protocol in that it facilitates data-sharing among individuals and "makes even small computers with low bandwidth capable of participating in large data transfers." (Id. at 4.) In BitTorrent, the initial shared file is called a "seed," and other users on the network are called "peers." When peers connect to the network and request the seed, they receive different pieces of the seed data from other peers who have already downloaded the file. Each peer thus "becomes a part of the network from which the file can be downloaded." (Id.) This group of peers is called a "swarm." CELL claims that with BitTorrent, "every downloader [is] also an uploader" of the shared file, and every member of a swarm serves as a source for the seed file, so long as the member remains online at the time other peers download the file. (Id. at 4-5.) Furthermore, "because of the nature of the swarm downloads . . . every [peer] is [downloading seed data] from many [ISPs] in numerous jurisdictions." (Id. at 5.) Uploading one seed file to a BitTorrent network "can result in nearly instantaneous worldwide distribution of that single [file] to a limitless number of people." (Id. at 5-6.)
CELL asserts that "each Defendant deliberately participated in a swarm and/or reproduced and/or distributed the same seed file" of the Movie, and thereby "participated in a collective and interdependent manner with other Defendants" to infringe CELL's copyright. (Id. at 7.) CELL states that because all the Defendants participated in the "same swarm" using BitTorrent, all the Defendants participated in the "same transaction, occurrence[,] or series of transactions or occurrences as the other Defendants in the swarm." (Id. at 7-8.) CELL seeks declaratory, injunctive, and monetary relief.
On October 31, 2016, CELL filed the Motion for Discovery. CELL seeks leave to serve limited discovery on the Internet Service Providers ("ISPs") from which the Defendants obtain Internet access in order to determine the Defendants' identities. In support of the Motion for Discovery, CELL asserts, inter alia, that: (1) good cause exists to grant the motion; (2) CELL seeks limited and specific discovery; (3) no alternative means exists to learn Defendants' identities; (4) CELL requires discovery to advance its asserted claims; and, (5) CELL's interest in knowing Defendants' identities outweighs Defendants' interests in remaining anonymous. (Id. at 6-14.) CELL requests the Court's permission to "serve a Rule 45
On December 7, 2016, CELL filed the Motion to Extend, requesting the Court to extend time to serve the Defendants. CELL requests an extension of ninety days "until March 8, 2017[,] to complete identification, joinder, and service of the defendants in this case." (Mot. Extend Time 1.)
Federal Rule of Civil Procedure 20(a)(2) allows joinder of 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). Although misjoinder cannot undergird the dismissal of an action, "[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 (emphasis added).
Rule 20 supports the "broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties[,] and remedies is strongly encouraged." United Mine Workers v. Gibbs, 383 U.S. 715, 724 (1966). "[T]he rule should be construed in light of its purpose, which `is to promote trial convenience and expedite the final determination of disputes, thereby preventing multiple lawsuits.'" Saval v. BL Ltd., 710 F.2d 1027, 1031 (4th Cir. 1983) (quoting Mosley v. General Motors Corp., 497 F.2d 1330, 1332 (8th Cir. 1974)). The transaction or occurrence test of Rule 20 generally proceeds on a case by case basis, and permits all "reasonably related claims . . . to be tried in a single proceeding." Id. If the joinder of parties or claims will result in prejudice, expense, or delay, the Court has discretion to deny joinder. Aleman v. Chugach Support Servs., Inc., 485 F.3d 206, 218 n.5 (4th Cir. 2007). The propriety of joinder rests within the sound discretion of the trial court. Saval, 710 F.2d at 1031.
"District courts across the country are split regarding the question of whether joinder of unidentified defendants is appropriate" in cases alleging the use of BitTorrent to share copyrighted works. Third Degree Films, Inc. v. Does 1-108, No. DKC 11-3007, 2012 WL 1514807, at *2 (D. Md. April 27, 2012) (collecting cases). However, "[a] majority of courts . . . specifically have held that the properties of BitTorrent are insufficient to support joinder." Patrick Collins, Inc. v. Does 1-10, No. 8:12cv00094,2012 WL 1144980, at *5 (D. Md. Apr. 4, 2012) (collecting cases). Importantly, every case in this District has found joinder improper when based on allegations of file-sharing using BitTorrent. See Raw Films, Ltd. v. Does 1-32, No. 3:1 lcv532, 2011 WL 6182025, at *2 (E.D. Va. Oct. 5, 2011) (finding the allegation that defendants used BitTorrent to copy and reproduce copyrighted material insufficient to support joinder because "[mjerely committing the same type of violation in the same way does not link defendants together for purposes of joinder"); see also Malibu Media, LLC v. John Does 1-23, 878 F.Supp.2d 628, 632 (E.D. Va. 2012) ("Where, as here, a plaintiff seeks to join several defendants in an action based on filesharing activity, . . . a plaintiff must allege facts that permit the court at least to infer some actual, concerted exchange of data between those defendants."); Hard Drive Prods., Inc. v. Does 1-30, No. 2:1 lcv345, 2011 WL 4915551, at *3 (E.D. Va. Oct. 17, 2011) (finding joinder improper in a case alleging that defendants used BitTorrent to copy and reproduce copyrighted material); K-Beech, Inc. v. John Does 1-85, No. 3:11cv469, 2011 WL 10646535, at *2 (E.D. Va. Oct. 13, 2011) (same).
The United States Court of Appeals for the Fourth Circuit has not ruled on the issue of joinder in cases involving BitTorrent file-sharing, and the only court of appeals to consider the matter found joinder improper. See AF Holdings, LLC v. Does 1-1058, 752 F.3d 990, 998 (D.C. Cir. 2014). That court, although assuming that "two individuals who participate in the same swarm at the same time are part of the same series of transactions within the meaning of Rule 20(a)(2)" held that "[Plaintiff] has provided no reason to think that the Doe defendants it named in this lawsuit were ever participating in the same swarm at the same time." Id.
Consistent with the majority of district courts in the country and every court in this District, the Court concludes that CELL's allegations that the Defendants used BitTorrent to share copyrighted work do not satisfy Rule 20 requirements for joinder of defendants. CELL cannot satisfy federal rules by simply labelling, in a conclusory fashion, the Defendants' conduct as part of the "same swarm."
Ultimately, CELL has merely alleged that the Defendants used BitTorrent to download and share pieces of the Movie. CELL has not included any facts that suggest the Defendants shared those pieces with each other, thus engaging in the same transaction or occurrence. CELL's Complaint itself states that, given the nature of BitTorrent, even members of the "same swarm" are "stealing copyrighted material from many . . . ISPs in numerous jurisdictions." (Compl. 5.) Given the numerous individuals who could have been involved in the data transfers at issue here and the lack of specific factual allegations that these individuals shared data with each other, the Court concludes that CELL's allegations cannot support joinder. See Malibu Media, LLC v. Does 1-34, No. PJM 12-1195,2012 WL 1792979, at *2 (D. Md. May 15, 2012) ("Plaintiff never asserts that Defendants downloaded or uploaded the same seed piece exclusively among themselves and thereby acted in concert. Moreover, the distributed nature of the BitTorrent network means that at least some of the Doe Defendants likely obtained the seed piece at issue from users not named in the Complaint."); see also Media Products, Inc. v. John Does 1-44, No. PJM 12-1292, 2012 WL 1658581, at *2 (D. Md. May 10, 2012) (same); Third Degree Films, Inc. v. John Does 1-32, No. PJM 12-1298, 2012 WL 1658682, at *2 (D. Md. May 10, 2012) (same); Digital Sin, Inc. v. John Does 1-88, No. PJM 12-24, 2012 WL 1641035, at *2 (D. Md. May 8, 2012) (same).
Even presuming that joinder were proper under Federal Rule of Civil Procedure 20(a), Rule 20(b) provides alternate grounds for this Court to sever the defendants. Federal Rule of Civil Procedure 20(b) allows a court to order separate trials to protect a party "against embarrassment, delay, expense, or other prejudice."
Other courts go further. Considering the potential to coerce unjust settlements alongside the fact that each defendant might require a "mini-trial" about what information it did or did not share, courts have condemned joinder because the enormous burden of trial for the joined defendants would "`completely defeat[] any supposed benefit from the joinder of all Does . . . and would substantially prejudice defendants and the administration of justice.'"
Because the Court finds joinder improper and severance and dismissal without prejudice of Doe Defendants 2-12 necessary, the Court will grant CELL's Motion for Discovery and CELL's Motion to Extend Time only to the extent both motions pertain to John Doe 1.
Regarding the Motion for Discovery, Federal Rule of Civil Procedure 26(b)
Pursuant to Federal Rule of Civil Procedure 26(d)(1),
Regarding the Motion to Extend, Federal Rule of Civil Procedure 4(m) governs the time for service of process. Rule 4(m) provides, in relevant part:
Fed. R. Civ. P. 4(m) (emphasis added). Under Rule 4(m), if CELL demonstrates "good cause" for failing to serve Defendant John Doe 1, the Court must grant an extension of time. If, on the other hand, CELL fails to demonstrate "good cause," the Court may still, in its discretion, permit an extension of time.
The Court declines to determine whether CELL can demonstrate good cause for its failure to serve Defendant John Doe 1 within the 90-day time proscribed by the Rule. Because this case remains in an early stage of litigation, in which Defendant John Doe 1 has not filed an answer or other responsive pleading, the Court sees no prejudice that could result from a brief extension of time. Pursuant to Federal Rule of Civil Procedure 4(m), the Court will grant the Motion to Extend Time. The Court will extend the time for service of Defendant John Doe 1 until March 8, 2017.
For the foregoing reasons, the Court will (1) sever and dismiss without prejudice all defendants except John Doe 1; (2) grant CELL's Motion for Discovery as to John Doe 1, (ECF No. 2); and, (3) grant CELL's Motion to Extend as to John Doe 1, (ECF No. 6).
An appropriate Order shall issue.
Fed. R. Civ. P. 45(c)(2).
Thus, although the purported copyright infringement in this case allegedly occurred over the span of one day rather than several months, CELL still fails to "allege facts that permit the [C]ourt at least to infer some actual, concerted exchange of data" among the Defendants in this case. See Malibu Media, 878 F. Supp. 2d at 632. CELL asserts that all the Defendants were members of the "same swarm," but, as with the cases discussed above, CELL never alleges facts that indicate any direct exchange of data among these twelve individuals.
Any court must be mindful of litigation patterns or practices that could cross appropriate lines, especially when it involves unrepresented parties. See Fed. R. Civ. P. 11(b) ("By presenting to the court a pleading, written motion, or other paper . . . an attorney or unrepresented party certifies that . . . it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation. . . ."); Fed. R. Civ. P. 11 (c) ("If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.").
