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Case 1:13-cv-00431-WJM-CBS Document 7 Filed 02/21/13 USDC Colorado Page 1 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge William J. Martínez

Civil Action No. 13-cv-0431-WJM-CBS

R&D FILM 1, LLC, a California limited liability company

Plaintiff,

v.

DOES 1-23,

Defendants.

ORDER FINDING JOINDER IMPROPER AND DISMISSING WITHOUT

PREJUDICE ALL DEFENDANTS OTHER THAN JOHN DOE 1

On February 19, 2013, Plaintiff R&D Film 1, LLC (“Plaintiff”) initiated this action

against John Does 1-23 alleging that Defendants unlawfully downloaded a portion of

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Plaintiff’s copyrighted motion picture. (Compl. (ECF No. 1) ¶ 4.) Having reviewed the

Complaint, the Court sua sponte finds that joinder of all the named Defendants was not

proper and dismisses the claims against John Doe Defendants 2-23 without prejudice

to refiling separate cases against each Defendant accompanied by payment of a

separate filing fee as to each case.

I. LEGAL STANDARD

Permissive joinder of claims is governed by Federal Rule of Civil Procedure 20,

which provides that persons may be joined as defendants if:

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Defendants are known to Plaintiff only by their IP address. (Compl. ¶ 25.)

Case 1:13-cv-00431-WJM-CBS Document 7 Filed 02/21/13 USDC Colorado Page 2 of 9

(A)

(B)

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
any question of law or fact common to all defendants
will arise in the action.

The remedy for improper joinder of parties is not dismissal of the action. Fed. R. Civ. P.

21. Rather, the court may “at any time, on just terms, add or drop a party. The court

may also sever any claim against a party.” Id.

II. FACTUAL BACKGROUND

Plaintiff R&D Film 1, LLC is a California limited liability corporation that produces,

markets, and distributes motion pictures. (Compl. ¶ 19.) Plaintiff holds the copyright to

a motion picture entitled “The Divide” (the “Work”). (Id. ¶ 28.) At some point, Plaintiff

learned that the Work was being unlawfully downloaded using a computer protocol

called BitTorrent and retained a company to investigate. During the course of this

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investigation, the company identified twenty-three IP addresses in the District of

Colorado that had downloaded a file with the hash number3

A237BCFC45539E46260A71C2AC7E40D54FE8EBAC (“Hash Number”), which has

been associated with the Work. These twenty-three IP addresses were allegedly

assigned to the twenty-three John Doe Defendants at the time this file was

downloaded. (ECF No. 1-1.)

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BitTorrent is a computer protocol that works with computer software to break large
files, such as movies, into smaller files for the purpose of speeding up and easing download.
(Compl. ¶ 10 .)

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BitTorrent assigns each smaller piece of copyrighted work a unique identifier which is

commonly referred to as a “hash”. (Compl. ¶ 9.)

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III. ANALYSIS

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). Like the plaintiffs in

the other cases, R&D Film 1 LLC claims that the Defendants here participated in the

same BitTorrent “swarm” for the purpose of unlawfully downloading Plaintiff’s

copyrighted 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 the
swarm or the BitTorrent client otherwise does the same.

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

2011). The theory behind this “swarm joinder” is that “when each defendant is one of

many users simultaneously uploading and downloading a protected work, the defendant

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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.

Courts across the country are split on whether this theory of swarm joinder is

appropriate. A number of courts, including one judge in this District, have held that

joinder is appropriate. See Patrick Collins, Inc. v. John Does 1-15, 2012 WL 415436

(D. Colo. Feb. 8, 2012) (finding joinder appropriate); Digital Sin, Inc. v. Does 1-176, 279

F.R.D. 239 (S.D.N.Y. 2012) (“it is difficult to see how the sharing and downloading

activity [of individuals using the BitTorrent protocol in the same swarm] could not

constitute a ‘series of transactions or occurrences' for purposes of Rule 20(a).”); MGCIP

v. Does 1–316, 2011 WL 2292958, at *2 (N.D. Ill. June 9, 2011) (“[G]iven the

decentralized nature of BitTorrent’s file-sharing protocol—where individual users

distribute the same work’s data directly to one another without going through a central

server—the Court finds that sufficient facts have been plead to support the joinder of

the putative defendants at this time.”).

However, a growing number of district courts have held that swarm joinder is not

appropriate. See, e.g., Malibu Media, LLC v. John Does 1-23, 2012 WL 1999640, *4

(E.D. Va. May 30, 2012) (finding that, in a file sharing case, “a plaintiff must allege facts

that permit the court at least to infer some actual, concerted exchange of data between

those defendants.”); Digital Sins, Inc. v. John Does 1-245, 2012 WL 1744838, *2

(S.D.N.Y. May 15, 2012) (finding no concerted action between defendants that only

utilized the same computer protocol to download a file); SBO Pictures, Inc. v. Does

1–3036, 2011 WL 6002620, *3 (N.D. Cal. Nov. 30, 2011) (“The Court cannot conclude

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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 on August

10, 2011 . . . were engaged in the single transaction or series of closely-related

transactions recognized under Rule 20.”); Lightspeed v. Does 1-1000, 2011 U.S. Dist.

LEXIS 35392, *4-7 (N.D. Ill. Mar. 31, 2011) (finding that Doe defendants using

BitTorrent technology were misjoined on the basis that the putative defendants were

not involved in the “same transaction, occurrence, or series of transactions or

occurrence” under Fed. R. Civ. P. 20(a)(2)(A)).

Given the amount of discourse already produced by courts around the country

on this issue, the Court finds it unnecessary to write a lengthy opinion about whether

joinder is appropriate. Rather, the Court explicitly adopts the reasoning set forth by

Judge Claude Hilton in Malibu Media, LLC v. John Does 1-23, 878 F.Supp.2d 628 (E.D.

Va. 2012), Judge J. Frederick Motz in Patrick Collins, Inc. v. Does 1-23, 2012 WL

1144198 (D. Md. April 4, 2012), and Judge Joseph C. Spero in Hard Drive Prods., Inc.

v. Does 1-188, 809 F. Supp. 2d 1150 (N.D. Cal. 2011). As Judge Spero wrote:

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., 809 F. Supp. 2d at 1163. For the reasons set forth in these

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opinions, the Court finds that the Defendants in this action are not properly joined and

that dismissal of Does 2-23 is appropriate.

Moreover, even if the Court had found joinder to be proper, it would sever

Defendants 2-23 pursuant to the Court’s discretionary authority set forth in Federal

Rules of Civil Procedure 20(b) and 21. Lenon v. St. Paul Mercury Ins. Co., 136 F.3d

1365, 1371 (10th Cir. 1998) (Rule 21 permits the district court “considerable discretion”

to dismiss parties “on such terms as are just”); Coleman v. Quaker Oats Co., 232 F.3d

1271, 1296 (9th Cir. 2000) (court may sever claims under Rule 20 if joinder would

violate “fundamental fairness” or result in prejudice to either side). Even when the

specific requirements of Rule 20 are satisfied, the Court must consider whether

permissive joinder “will comport with the principles of fundamental fairness” or cause

undue prejudice to any party. Desert Empire Bank v. Ins. Co. of N.A., 623 F.2d 1371,

1375 (9th Cir. 1980); see also Intercon Research Assoc., Ltd. v. Dresser Indus., 696

F.2d 53, 58 (7th Cir. 1982) (permissive joinder should be denied where it would create

undue prejudice, expense, or delay). The Court finds that allowing this action to

proceed against all the John Doe Defendants in one case would result in difficult case

management, cause significant prejudice to Defendants, and would be fundamentally

unfair.

First, as this and many other courts have previously recognized, though the

nature of the alleged actions of each Defendant is similar in that they are accused of

having utilized BitTorrent to unlawfully download Plaintiff’s copyrighted Work, the

Defendants are likely to present very different defenses to these claims based on their

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individual circumstances. See PHE, Inc. v. Does 1-105, 2013 WL 66506, at *3 (D.

Colo. Jan. 4, 2013); Malibu Media, LLC v. John Does 1-5, 2012 WL 3030300, at *3 (D.

Colo. July 25, 2012). For example, “subscriber John Doe 1 could be an innocent parent

whose internet access was abused by her minor child, while John Doe 2 might share a

computer with a roommate who infringed Plaintiffs’ Works. John Does 3 through 203

could be thieves, just as Plaintiffs believe.” Third Degree Films v. Does 1-3577, 2011

WL 5374569, *4 (N.D. Cal. Nov. 4, 2011). As this Court has previously noted, in the

Bittorrent cases filed in this district:

Some [defendants] are businesses alleging that a patron
was the unlawful downloader. Others are elderly
grandparents that do not even know what BitTorrent is or
how to download a file from the internet; they may have
owned the computer associated with the unique IP address,
but have no knowledge of whether someone in their
household may have used the BitTorrent protocol for the
purposes alleged in the complaint.

See PHE, Inc., 2013 WL 66506, at *3; Malibu Media, 2012 WL 3030300, at *3.

The fact-intensive nature of these individualized defenses would require that the

Court give individualized attention to each claim against each Defendant. Therefore,

the Court sees little, if any, judicial economy in allowing the claims to proceed together.

Digital Sins, 2012 WL 1744838, *3 (“There are no litigation economies to be gained

from trying what are in essence 245 different cases together, because each of the John

Does is likely to have some individual defense to assert. Each defendant’s situation,

which is unique to him or her, will have to be proved separately and independently.”).

The Court also finds that Defendants are likely to be significantly prejudiced by

having to proceed in one action. The only location data provided by Plaintiff is that all

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twenty-three Defendants are located in Colorado. Colorado is a large state with

significant physical barriers (i.e. the Rocky Mountains) to quick and easy transportation

within the state. As one court has noted:

even though they may be separated by many miles and
have nothing in common other than the use of BitTorrent,
each defendant must serve each other with all pleadings—a
significant burden when, as here, many of the defendants
will be appearing pro se and may not be e-filers. Each
defendant would have the right to be at each other
defendant’s deposition—creating a thoroughly
unmanageable situation. The courtroom proceedings would
be unworkable—with each of the 188 Does having the
opportunity to be present and address the court at each
case management conference or other event. Finally, each
defendant’s defense would, in effect, require a mini-trial.
These burdens completely defeat any supposed benefit
from the joinder of all Does in this case, and would
substantially prejudice defendants and the administration of
justice.

Hard Drive Prods., 809 F. Supp. 2d at 1164. Aside from these general difficulties, this

Court’s local rules also require conferral between the parties before filing any motion,

which would be difficult with multiple pro se parties. D.C.Colo.LCivR 7.1A. Thus, the

Court finds that Defendants would suffer significant prejudice if forced to litigate this

action as a group.

On the other hand, the Court finds that Plaintiff will suffer no undue prejudice by

severing the Defendants into separate cases. Nothing in this Order prevents Plaintiff

from filing separate actions against each John Doe Defendant. The statute of

limitations for a copyright infringement action is three years, which allows Plaintiff ample

time to refile the individual cases before the limitations period expires. See 17 U.S.C. §

507. The only possible prejudice to Plaintiff is the cost of litigating each of these cases

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individually. However, requiring Plaintiff to pay a separate filing fee for each action is

not undue prejudice. As previously stated, because many of these Defendants are

likely to assert fact-intensive defenses that are particular to his or her individual

circumstances, each multi-defendant case is likely to devolve into its own mini-litigation.

Therefore, payment of a separate filing fee for its claim against each Defendant

properly balances the Plaintiff’s right to protect its copyright with the Court’s interest in

cost-efficient adjudication of cases.

IV. CONCLUSION

For the reasons set forth above, the Court ORDERS as follows:

Plaintiff’s claims against John Doe Defendants 2-23 are DISMISSED WITHOUT

PREJUDICE;

The parties and the Clerk shall omit any reference to John Doe Defendants 2-23

1.

2.

from any future filing in this action.

Dated this 21 day of February, 2013.

st

BY THE COURT:


William J. Martínez
United States District Judge

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