`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`Judge William J. Martínez
`
`Civil Action No. 12-cv-3342-WJM-KLM
`
`PHE, INC.,
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`Plaintiff,
`
`v.
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`DOES 1-105,
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`Defendants.
`
`
`
`ORDER FINDING JOINDER IMPROPER AND DISMISSING ALL
`DEFENDANTS OTHER THAN JOHN DOE 1
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`On December 27, 2012 Plaintiff PHE, Inc. initiated this action against John Does
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`1-105 alleging that Defendants unlawfully downloaded a portion of Plaintiff’s
`1
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`copyrighted work. (Compl. (ECF No. 1) ¶ 59.) Having reviewed the Complaint, the
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`Court sua sponte finds that joinder of all the named Defendants was not proper and
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`dismisses the claims against John Doe Defendants 2-105 without prejudice to refiling
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`separate cases against each Defendant accompanied by payment of a separate filing
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`fee as to each case.
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`I. LEGAL STANDARD
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`Permissive joinder of claims is governed by Federal Rule of Civil Procedure 20,
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`which provides that persons may be joined as defendants if:
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`(A)
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`any right to relief is asserted against them jointly,
`severally, or in the alternative with respect to or
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`1
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` At this time, Defendants are known to Plaintiff only by their IP address. (Compl. ¶ 25.)
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`Case 1:12-cv-03342-WJM-KLM Document 6 Filed 01/04/13 USDC Colorado Page 2 of 10
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`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.
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`(B)
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`The remedy for improper joinder of parties is not dismissal of the action. Fed. R. Civ. P.
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`21. Rather, the court may “at any time, on just terms, add or drop a party. The court
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`may also sever any claim against a party.” Id.
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`II. FACTUAL BACKGROUND
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`Plaintiff PHE, Inc. holds the copyright to “Buffy the Vampire Slayer XXX: A
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`Parody” (the “Work”). At some point, Plaintiff learned that the Work was being
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`unlawfully downloaded using a computer protocol called BitTorrent and retained a
`2
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`company to investigate. During the course of this investigation, the company identified
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`105 IP addresses in the District of Colorado that had downloaded a file with the hash
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`number BD9418995FBB78D888D7208003B7A00DC6B6980D (“Hash Number”), which
`3
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`has been associated with the Work. These 105 IP addresses were allegedly assigned
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`to the 105 John Doe Defendants at the time this file was downloaded.
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`III. ANALYSIS
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`This case is part of an “outbreak of similar litigation . . . around the country in
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`which copyright holders have attempted to assert claims against multiple unknown
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`defendants by joining them, in often large numbers, into a single action.” Raw Films,
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` BitTorrent is a computer protocol that works with computer software to break large
`2
`files, such as movies, into smaller files for the purpose of speeding up and easing download.
`(Compl. ¶ 34.)
`
` BitTorrent assigns each smaller piece of copyrighted work a unique identifier which is
`3
`commonly referred to as a “hash”. (Compl. ¶ 38.)
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`2
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`Inc. v. Does 1-32, 2011 WL 6840590, *1 (N.D. Ga. Dec. 29, 2011). Like the plaintiffs in
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`the other cases, PHE, Inc. claims that the Defendants here participated in the same
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`BitTorrent “swarm” for the purpose of unlawfully downloading Plaintiff’s copyrighted
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`Work. (Compl. ¶ 6.) The BitTorrent swarm process has been described as follows:
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`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,
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`2011). The theory behind this “swarm joinder” is that “when each defendant is one of
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`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
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`and fact.’” Raw Films, 2011 WL 6840590, at *1.
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`Courts across the country are split on whether this theory of swarm joinder is
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`appropriate. A number of courts, including one judge in this District, have held that
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`joinder is appropriate. See Patrick Collins, Inc. v. John Does 1-15, 2012 WL 415436
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`3
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`Case 1:12-cv-03342-WJM-KLM Document 6 Filed 01/04/13 USDC Colorado Page 4 of 10
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`(D. Colo. Feb. 8, 2012) (finding joinder appropriate); Digital Sin, Inc. v. Does 1-176, 279
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`F.R.D. 239 (S.D.N.Y. 2012) (“it is difficult to see how the sharing and downloading
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`activity [of individuals using the BitTorrent protocol in the same swarm] could not
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`constitute a ‘series of transactions or occurrences' for purposes of Rule 20(a).”); MGCIP
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`v. Does 1-316, 2011 WL 2292958, at *2 (N.D. Ill. June 9, 2011) (“[G]iven the
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`decentralized nature of BitTorrent’s file-sharing protocol—where individual users
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`distribute the same work’s data directly to one another without going through a central
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`server—the Court finds that sufficient facts have been plead to support the joinder of
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`the putative defendants at this time.”).
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`However, a growing number of district courts have recently held that swarm
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`joinder is not appropriate. See, e.g., Malibu Media, LLC v. John Does 1-23, 2012 WL
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`1999640, *4 (E.D. Va. May 30, 2012) (finding that, in a file sharing case, “a plaintiff
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`must allege facts that permit the court at least to infer some actual, concerted exchange
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`of data between those defendants.”); Digital Sins, Inc. v. John Does 1-245, 2012 WL
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`1744838, *2 (S.D.N.Y. May 15, 2012) (finding no concerted action between defendants
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`that only utilized the same computer protocol to download a file); SBO Pictures, Inc. v.
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`Does 1–3036, 2011 WL 6002620, *3 (N.D. Cal. Nov. 30, 2011) (“The Court cannot
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`conclude that a Doe Defendant who allegedly downloaded or uploaded a portion of the
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`Motion Picture on May 11, 2011 [and] a Doe Defendant who allegedly did the same on
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`August 10, 2011 . . . were engaged in the single transaction or series of closely-related
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`transactions recognized under Rule 20.”); Lightspeed v. Does 1-1000, 2011 U.S. Dist.
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`LEXIS 35392, *4-7 (N.D. Ill. Mar. 31, 2011) (finding that Doe defendants using
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`4
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`BitTorrent technology were misjoined on the basis that the putative defendants were
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`not involved in the “same transaction, occurrence, or series of transactions or
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`occurrence” under Fed. R. Civ. P. 20(a)(2)(A)).
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`Given the amount of discourse already produced by courts around the country
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`on this issue, the Court finds it unnecessary to write a lengthy opinion about whether
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`joinder is appropriate. Rather, the Court explicitly adopts the reasoning set forth by
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`Judge Claude Hilton in Malibu Media, LLC v. John Does 1-23, __ F. Supp. 2d __, 2012
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`WL 1999640 (E.D. Va. May 30, 2012), Judge J. Frederick Motz in Patrick Collins, Inc. v.
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`Does 1-23, 2012 WL 1144198 (D. Md. April 4, 2012), and Judge Joseph C. Spero in
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`Hard Drive Prods., Inc. v. Does 1-188, 809 F. Supp. 2d 1150 (N.D. Cal. 2011). As
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`Judge Spero wrote:
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`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.
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`Hard Drive Prods., 809 F.Supp.2d at 1163. For the reasons set forth in these opinions,
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`the Court finds that the Defendants in this action are not properly joined and that
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`dismissal of Does 2-105 is appropriate.
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`Moreover, even if the Court had found joinder to be proper, it would sever the
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`remaining Defendants pursuant to the Court’s discretionary authority set forth in Federal
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`5
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`Rules of Civil Procedure 20(b) and 21. Lenon v. St. Paul Mercury Ins. Co., 136 F.3d
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`1365, 1371 (10th Cir. 1998) (Rule 21 permits the district court “considerable discretion”
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`to dismiss parties “on such terms as are just”); Coleman v. Quaker Oats Co., 232 F.3d
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`1271, 1296 (9th Cir. 2000) (court may sever claims under Rule 20 if joinder would
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`violate “fundamental fairness” or result in prejudice to either side). Even when the
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`specific requirements of Rule 20 are satisfied, the Court must consider whether
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`permissive joinder “will comport with the principles of fundamental fairness” or cause
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`undue prejudice to any party. Desert Empire Bank v. Ins. Co. of N.A., 623 F.2d 1371,
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`1375 (9th Cir. 1980); see also Intercon Research Assoc., Ltd. v. Dresser Indus., 696
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`F.2d 53, 58 (7th Cir. 1982) (permissive joinder should be denied where it would create
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`undue prejudice, expense, or delay). The Court finds that allowing this action to
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`proceed against all the John Doe Defendants in one case would result in difficult case
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`management, cause significant prejudice to Defendants, and would be fundamentally
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`unfair.
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` First, as this and many other courts have previously recognized, though the
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`nature of the alleged actions of each Defendant is similar in that they are accused of
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`having utilized BitTorrent to unlawfully download Plaintiff’s copyrighted Work, the
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`Defendants are likely to present very different defenses to these claims based on their
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`individual circumstances. For example, “subscriber John Doe 1 could be an innocent
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`parent whose internet access was abused by her minor child, while John Doe 2 might
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`share a computer with a roommate who infringed Plaintiffs’ Works. John Does 3
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`through 203 could be thieves, just as Plaintiffs believe.” Third Degree Films v. Does 1-
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`6
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`3577, 2011 WL 5374569, *4 (N.D. Cal. Nov. 4, 2011). The Court has already observed
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`this to be true in the cases filed in this District. The Magistrate Judge assigned to all
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`BitTorrent cases has noted that defendants are coming forward with a multitude of
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`different defenses. Some are businesses alleging that a patron was the unlawful
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`downloader. Others are elderly grandparents that do not even know what BitTorrent is
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`or how to download a file from the internet; they may have owned the computer
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`associated with the unique IP address, but have no knowledge of whether someone in
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`their household may have used the BitTorrent protocol for the purposes alleged in the
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`complaint.
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`The fact-intensive nature of these individualized defenses would require that the
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`Court give individualized attention to each claim against each Defendant. Therefore,
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`the Court sees little, if any, judicial economy in allowing the claims to proceed together.
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`Digital Sins, 2012 WL 1744838, *3 (“There are no litigation economies to be gained
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`from trying what are in essence 245 different cases together, because each of the John
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`Does is likely to have some individual defense to assert. Each defendant’s situation,
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`which is unique to him or her, will have to be proved separately and independently.”).
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`The Court also finds that Defendants are likely to be significantly prejudiced by
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`having to proceed in one action. The location of the ISPs—and therefore presumably
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`the John Doe Defendants themselves—are scattered throughout the state of Colorado.
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`As one court has noted:
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`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
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`7
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`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.
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`Hard Drive Prods., 809 F. Supp. 2d at 1164. Aside from these general difficulties, this
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`Court’s local rules also require conferral between opposing parties before filing any
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`motion, which would be difficult with multiple pro se parties. D.C.Colo.LCivR 7.1A.
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`Thus, the Court finds that Defendants would suffer significant prejudice if forced to
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`litigate this action as a group.
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`On the other hand, the Court finds that Plaintiff will suffer no undue prejudice by
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`severing the Defendants into separate cases. Nothing in this Order prevents Plaintiff
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`from filing separate actions against each John Doe Defendant. The statute of
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`limitations for a copyright infringement action is three years, which allows Plaintiff ample
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`time to refile the individual cases before the limitations period expires. See 17 U.S.C. §
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`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
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`not undue prejudice. As previously stated, because many of these Defendants are
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`likely to assert fact-intensive defenses that are particular to his or her individual
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`circumstances, each multi-defendant case is likely to devolve into its own mini-litigation.
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`Therefore, payment of a separate filing fee for its claim against each Defendant
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`properly balances the Plaintiff’s right to protect its copyright with the Court’s interest in
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`8
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`cost-efficient adjudication of cases.
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`Finally, the Court is troubled by many aspects of this “swarm joinder” model for
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`copyright litigation. Courts across the country have observed that the companies
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`involved in this type of litigation do not seem interested in actually litigating their
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`copyright claims. Rather, they appear to be using the federal courts only to obtain
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`identifying information for the ISP owners and then attempting to negotiate a quick
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`settlement. See, e.g., Raw Films, 2011 WL 6180205, at *2 (“This course of conduct
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`indicates that plaintiffs have used the offices of the Court as an inexpensive means to
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`gain the Doe defendants’ personal information and coerce payment from them. The
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`plaintiffs seemingly have no interest in actually litigating the cases, but rather simply
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`have used the Court and its subpoena powers to obtain sufficient information to shake
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`down the John Does.”). In finding joinder improper in a similar action, one court
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`observed:
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`The federal courts are not cogs in plaintiff’s copyright-
`enforcement business model. The Court will not idly watch
`what is essentially an extortion scheme, for a case that
`plaintiff has no intention of bringing to trial. By requiring
`Malibu to file separate lawsuits for each of the Doe
`Defendants, Malibu will have to expend additional resources
`to obtain a nuisance-value settlement—making this type of
`litigation less profitable. If Malibu desires to vindicate its
`copyright rights, it must do it the old-fashioned way and earn
`it.
`
`Malibu Media, LLC v. John Does 1-10, No. 2:12-cv-3623-ODW(PJWx), 2012 WL
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`5382304, *4 (C.D. Cal. June 27, 2012). “Our federal court system provides litigants
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`with some of the finest tools available to assist in resolving disputes; the courts should
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`not, however, permit those tools to be used as a bludgeon.” In re BitTorrent Adult Film
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`9
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`Case 1:12-cv-03342-WJM-KLM Document 6 Filed 01/04/13 USDC Colorado Page 10 of 10
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`Copyright Litigation, 2012 WL 1570765, *10 (E.D.N.Y. May 1, 2012). The Court fully
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`agrees with the concerns expressed by these other judges and finds that this is yet
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`another basis for requiring that Plaintiff litigate its copyright claim against each John
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`Doe Defendant individually.
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`IV. CONCLUSION
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`For the reasons set forth above, the Court ORDERS as follows:
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`Plaintiff’s claims against John Doe Defendants 2-105 are DISMISSED
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`WITHOUT PREJUDICE;
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`The parties and the Clerk shall omit any reference to John Doe Defendants 2-
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`1.
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`2.
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`105 from any future filing in this action.
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`Dated this 4 day of January, 2013.
`th
`
`BY THE COURT:
`
`
`William J. Martínez
`United States District Judge
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`10