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Venice PI, LLC v. Does

United States District Court, N.D. Indiana, Hammond Division

April 26, 2018

VENICE, P.I., Plaintiff,
DOES 1-18, Defendants.



         This matter is before the Court on John Doe 1 [sic] Motion to Quash or Vacate, Issue a Protective Order, and/or Sever and Dismiss, and Incorporated Memorandum of Law [DE 12], filed by Defendant John Doe 1, having an IP address of, [1] on November 1, 2017. On March 30, 2018, the Court denied the Motion in part and ordered additional briefing as to why the claims against the eighteen separate defendants should not be severed. Plaintiff filed a responsive supplemental brief on April 12, 2018.

         Also before the Court are a Motion for Clarification [DE 17] and a Third Motion to Extend Time to Serve Defendants [DE 18], both filed by Plaintiff on April 12, 2018.

         I. BACKGROUND

         On July 1, 2017, Plaintiff filed a Complaint alleging that eighteen unnamed defendants committed copyright infringement by distributing a copy or portion of a copy of the Work, a movie entitled “Once Upon a Time in Venice.” Plaintiff alleges that it is the exclusive copyright holder of the Work, and that the defendants used BitTorrent software to share an identical copy of the Work, as identified by its hash value, through participation in a single BitTorrent swarm. On July 26, 2017, the Court granted Plaintiff leave to take early discovery to determine the identities of the defendants, who were identified solely by their respective Internet Protocol (IP) addresses, by serving a Rule 45 subpoena on Comcast, the Internet Service Provider (ISP) for all eighteen defendants.

         I. ANALYSIS

         A. Whether to Sever Claims Against Doe Defendants

         Federal Rule of Civil Procedure 20 provides that multiple defendants may be joined in one action if “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 if “any question of law or fact common to all defendants will arise in the action.” Fed.R.Civ.P. 20(a)(2). The purpose of Rule 20 “is to promote trial convenience and expedite the final determination of disputes, thereby preventing unnecessary multiple lawsuits.” Bailey v. N. Trust Co., 196 F.R.D. 513, 515 (N.D. Ill. 2000) (quoting Gorence v. Eagle Food Centers, Inc., 93 C 4862, 1996 WL 734955, at *3 (N.D. Ill.Dec. 19, 1996)). “Under the Rules, 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.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966).

         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. The Court has “broad discretion whether to sever a claim under Rule 21.” Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1016 (7th Cir. 2000). The Seventh Circuit Court of Appeals has held that “a district court may sever claims under Rule 21, creating [] separate proceedings, so long as the [severed] claims are ‘discrete and separate.'” Gaffney v. Riverboat Servs. of Ind., Inc., 451 F.3d 424, 442 (7th Cir. 2006) (quoting Rice, 209 F.3d at 1016).

         Plaintiff argues that the claims against all of the defendants arise out of the same series of transactions because all of the defendants are alleged to have uploaded and downloaded the same file and because there are common issues of law and fact. It also emphasizes that, in this matter, the defendants are alleged to have accessed the file within a period of less than four days in June, 2017. Plaintiff also argues that principles of fairness favor Plaintiff and that judicial economy would be served by proceeding in a single action against all of the defendants.

         Although a number of courts have permitted joinder in BitTorrent file sharing cases, courts are split on whether joinder is appropriate in cases where there is no evidence that the defendants directly shared content with one another. As another court in the Seventh Circuit explained:

[T]he BitTorrent protocol's architecture alone does not compel the conclusion that anonymous defendants who download copies of the same file from the same swarm are engaged in a common transaction or series of transactions for the purposes of Rule 20(a)(2). . . . Furthermore, it is impossible for defendants who are not in a swarm coextensively to exchange any pieces of a file.

Malibu Media, LLC v. Reynolds, 12 C 6672, 2013 WL 870618, at *11 (N.D. Ill. Mar. 7, 2013); see also, e.g., SBO Pictures, Inc. v. Does 1-57, No. RWT 12cv22, 2012 WL 1415523, at *2 (D. Md. Apr. 20, 2012) (severing defendants and noting that “the better-reasoned decisions have held that where a plaintiff has not [pled] that any defendant shared file pieces directly with one another, the first prong of the permissive joinder is not satisfied”); CineTel Films, Inc. v. Does 1-1052, 853 F.Supp.2d 545, 552-53 (D. Md. 2012) (agreeing with the “significant number of courts . . . [that] have specifically held that the properties of BitTorrent are insufficient to support joinder” to conclude that “the requirements of Rule 20(a) are not met” where “the alleged infringement was committed by unrelated defendants, through independent actions, at different times and locations”); Hard Drive Prods., Inc. v. Does 1-188, 809 F.Supp.2d 1150, 1164 (N.D. Cal. 2011) (severing defendants where “Plaintiff concedes that while the Doe Defendants may have participated in the same swarm, they may not have been physically present in the swarm on the exact same day and time”); Boy Racer, Inc. v. Does 1-60, C 11-01738 SI, 2011 WL 3652521, at *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 defendants in one action.”); LaFace Records, LLC v. Does 1-38, No. 5:07-CV-298-BR, 2008 WL 544992 at *2 (E.D. N.C. Feb.27, 2008) (“[D]efendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20”).

         In this case, Plaintiff alleges that the eighteen defendants all transmitted at least part of the same digital copy of the Work at some point during a four-day period in June 2017. Plaintiff has not alleged or argued that the defendants were online and part of the swarm at the same time, that they were operating from the same IP address, or that they directly shared the Work with each other. Cf. Sunlust Pictures, No. 12 C 1546, 2012 WL 3717768 at *4 (N.D. Ill. Aug. 27, 2012) (finding joinder proper where “Sunlust alleges in its complaint that the defendants participated in the swarm simultaneously and that it observed the defendants transferring data from the Video between themselves”). In this case, Plaintiff also states that it is “notable that all defendants all had internet access via the same service provider, namely Comcast, ” and further points out that “each of the defendants resides in Indiana, ” but Plaintiff does not allege that parties using the same internet provider or residing in the same state are more likely to be engaged in a shared transaction than any other two people accessing the internet. Most of the defendants accessed the file hours or ...

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