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Case 1:13-cv-00893-RLV Document 5 Filed 04/18/13 Page 1 of 6

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

FILED IN CHAMBERS

U.S.D.C.• Rome

APR 182013

JAM~JTE ,e rk
eputy Clerk

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.,

VOLTAGE PICTURES, LLC,

Plaintiff,

v.

DOES 1-18j DOES 1-90j DOES 1­
56i DOES 1-14i DOES 1 44j and
DOES 1-64,

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CIVIL ACTIONS

NO. 1:13-CV-892-RLV
NO. 1:13-CV-893-RLV
NO. 1:13-CV-894-RLV
NO. 1:13-CV-895 RLV
NO. 1:13-CV-896-RLV
NO. 1:13-CV-897-RLV

Defendants.

o R D E R

In each of the above six complaints, the plaintiff alleges

that numerous unnamed persons, who are identifi~d as "John Doe"

defendants,

committed

direct

and

contributory

copyright

infringement when the unnamed persons downloaded a movie called

"Maximum Conviction" using a file-sharing method.

This matter

comes before the court on the court's sua sponte review of the

complaints in these six complaints.

In its six complaints, the plaintiff alleges that each "John

Doe" defendant infringed on its copyright by sharing a movie named

"Maximum Conviction" on the BitTorrent internet peer-to-peer file

sharing system.

In its six complaints, the plaintiff states that

it did not name each defendant by name because it is "impossible

Case 1:13-cv-00893-RLV Document 5 Filed 04/18/13 Page 2 of 6

for [the plaintiff] to identify [the defendants] at this time."

However, the plaintiff argues that discovery will allow it to be

able to identify these potential "John Doe" defendants by their "IP

addresses."

An "IP address" is a number assigned by various

internet service providers to individual devices that are connected

to the internet. According to the plaintiff, it can match up the

"IP address" with the individual who committed the copyright

infringement by obtaining this information from various internet

providers who possess the names, addresses, and phone numbers

associated with the "IP addresses" in question. As an exhibit to

each of the six complaints, the plaintiff attached a list of "IP

addresses" that it alleges could be used to identify the "John Doe"

defendants in the future.

In order to locate the various "John Doe

defendants," the plaintiff filed a motion in each of the six cases

to serve various non-party

internet service providers with

discovery requests prior to the service of the complaint on any

defendant.

Because the undersigned was troubled by the potential joinder

of unrelated and unnamed defendants, this court conducted research

into this issue.

In each of the six complaints, the plaintiff

alleges that each defendant should be joined together with the

other "John Doe" defendants because each defendant is one of many

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Case 1:13-cv-00893-RLV Document 5 Filed 04/18/13 Page 3 of 6

users who were simultaneously uploading and downloading its

copyrighted materials in violation of copyright laws. According to

the plaintiff, each "John Doe" defendant is acting as a member of

a "swarm, II which forms a "series of transactions" involving "common

questions of law and fact." Some courts have referred to this type

of joinder theory as the "swarm theory of joinder."

..

While this court recognizes that other courts have reached

disparate conclusions about the viability of "swarm theory of

joinder" in the federal courts, this court rejects this theory and

sides with those courts who have rejected the theory as an improper

attempt to join unrelated, unnamed defendants together into one

lawsuit. Therefore, the court concludes that defendants iIJ. each of

the six complaints were improperly joined together in violation of

Rule 20 of the Federal Rules of Civil Procedure. 1

In reaching this conclusion, the court greatly relied upon the

analysis of United States District Judge Thomas W. Thrash, Jr. of

this district who addressed a similar set of facts in Raw Films,

Inc. v. John Does 1-32, No. 1:11-CV-2939, 2011 WL 6840590 (N.D. Ga.

Dec. 29, 2011).

In Raw Films, Judge Thrash extensively examined

1 Pursuant to Rule 20's clear language, this court can drop a
party or sever the claims against any party improperly joined on
its own motion.

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Case 1:13-cv-00893-RLV Document 5 Filed 04/18/13 Page 4 of 6

the

"swarm

joinder

theory," which

forms

the basis for

the

plaintiff's joinder of the defendants in these six cases. After

examining the allegations in Raw Films, Judge Thrash concluded that

the various "John Doe" defendants in that case had been improperly

joined in violation of Rule 20 because the plaintiff in that case

had not properly alleged that the "John Doe" defendants were

engaged in a common series of transactions or occurrences.

In these six cases, the court reaches the same conclusion

reached by Judge Thrash in Raw Films.

In these six cases, the

plaintiff segregates the "John Doe" defendants into six separate

"swarm groups." While plaintiff alleges that the six "swarm

groups" are linked together closely in time in unnamed defendants'

downloading and uploading activity, the court concludes that the

plaintiff does not adequately allege that the defendants were

engaged in a common series of transactions as required by Rule 20.

Therefore, this court, like Judge Thrash did in Raw Films, severs

the claims by the plaintiff against each of

the "John Doe"

defendants from the first-named "John Doe" defendant in each of the

six cases. Because the "John Doe" defendants were improperly

joined to the first-named "John Doe" defendant in each of the above

six cases, the court dismisses without prejudice the plaintiff's

claims against the improperly joined "John Doe" defendants in each

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Case 1:13-cv-00893-RLV Document 5 Filed 04/18/13 Page 5 of 6

of the six cases. After this dismissal based on improper joinder,

only the first "John Doe" defendant in each of the six cases would

remain pending.

However, the court also concludes that the first-named "John

Doe" defendant in each of the six cases should be dismissed without

prejudice for a separate and independent reason, i.e., fictitious

party practice is not permitted in federal court. See New v. Sports

& Rec., 114 F.3d 1092, 1094 n1 (11th Cir. 1997). While this court

recognizes that many courts have created a series of exceptions to

this general rule, the court concludes that none of the exceptions

are applicable here.

In reaching this conclusion, the court notes

that the plaintiff in each of these six cases has not adequately

described the "John Doe" defendants.

In this court's opinion, an

"IP address" without more does not adequately identify or describe

a potential defendant. For example, it is possible that multiple

people may use the same computer which is identified by one "IP

address," i. e ., a publ ic computer or a computer used by various

family or individuals at a work place. Because the court cannot

allow the use of "fictitious party practice" given the lack of an

adequate description or identification of the potential defendants,

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Case 1:13-cv-00893-RLV Document 5 Filed 04/18/13 Page 6 of 6

the court DISMISSES the first-named "John Doe" defendant in each of

the above six cases without prejudice. 2

For the above reasons, the court DISMISSES all of the "John

Doe" defendants WITHOUT PREJUDICE in the above six cases.

The

Clerk of Court is directed to CLOSE all six cases and TERMINATE all

pending motions in each of the six cases above.

SO ORDERED, this II~

April, 2013.

u~li~·

,

, J

.

Senior United States District Judge

2 Even if this court had not dismissed the improperly joined
"John Doe" defendants from the first-named "John Doe" defendant in
each of the six cases based upon improper joinder in violation of
Rule 20 of the Federal Rules of Civil Procedure, it would have
dismissed all of
these
defendants were not properly identified, which amounts to improper
"fictitious party pleading." As the court stated in the body of
its order, a "John Doe" designation may be allowed in certain
limited circumstances that are not applicable here.

these "John Doe" defendants because

6