United States District Court, D. Maryland
MEMORANDUM AND ORDER RE: SEVERANCE
W. TITUS UNITED STATES DISTRICT JUDGE
Criminal Productions, Inc. filed a Complaint against 12
unidentified Doe defendants on September 21, 2016. Criminal
Productions, Inc. seeks monetary and injunctive relief for
copyright infringement under 17 U.S.C. § 101 et seq.
Because Criminal Productions, Inc. does not know the true
names or capacities of each defendant, it has identified them
only by the fictitious “Doe” name and an Internet
Protocol address (“IP address”). For the reasons
that follow, the Court finds the joinder of the putative
defendants improper and sua sponte severs claims against all
defendants except Doe 1, IP address 126.96.36.199.
Productions, Inc. contends that joinder of the defendants is
proper under Federal Rule of Civil Procedure 20(a)(2) because
the acts of infringement by the defendants were part of a
series of transactions over the course of a short period of
time on July 13, 2016, involving the same piece of Criminal
Production, Inc.'s copyrighted work, the motion picture
CRIMINAL. Criminal Productions, Inc. contends that
the acts of infringement were performed by the defendants
acting in concert with one another by using BitTorrent, a
common peer-to-peer file sharing protocol. Criminal
Productions, Inc. alleges that it was able to identify the IP
addresses of Does 1-12 participating in the same
swarm to receive and transmit a fully-playable
digital copy of CRIMINAL associated with a specific
Rule 20 describes permissive
joinder, in pertinent part:
Persons . . . may be joined in one action as 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).
Court determines that the two requirements are not met, Rule
21 gives the Court the power to sua sponte sever the
defendants deemed to be improperly joined. See,
e.g., Patrick Collins, Inc. v. Does
1-23, No. 8:12-CV-00087, 2012 WL 1144918, at *1 (D. Md.
Apr. 4, 2012). As in Patrick Collins, and numerous
other BitTorrent cases in this district and in others,
this Court finds that the allegations of this case, although
the Plaintiff alleges that the activity was over the course
of a short period of time, do not support the joinder of
multiple unknown -- otherwise - otherwise unrelated -
defendants, some of whom are expected to be identified and
added in the future. See, e.g., Raw Films, Inc.
v. Does 1-32, No. 1:11-CV-2939-TWT, 2011 WL 6840590, at
*2 (N.D.Ga. Dec. 29, 2011) (“The swarm joinder theory
has been considered by various district courts, the majority
of which have rejected it.”).
Court agrees with the majority of district courts who have
held that the properties of BitTorrent are insufficient to
support joinder because Rule 20's transactional component
has not been met, i.e., the multiple Doe defendants,
even though the IP addresses are alleged to participate in
the same swarm, do not constitute “the same
transaction, occurrence or series of transactions or
occurrences.” Rule 20. The conclusory allegation that
the defendants acted in concert with one another is
insufficient to establish that downloading and uploading a
work as part of a swarm constitutes concerted action.
Hard Drive Prods., Inc. v. Does 1-188, 809 F.Supp.2d
1150, 1160 (N.D. Cal. 2011) (“As a threshold matter,
the court rejected the plaintiff's argument that the
single transaction or series of closely-related transactions
requirement under Rule 20(a)(2) was satisfied merely because
all defendants joined a common ‘swarm' to upload or
download the copyrighted film.”). Rather than the
individual defendants directly working together to obtain a
particular file, it is the software, BitTorrent, that is
smart enough to seek out multiple unrelated people who have
the same file and download it in pieces from several sources
at once. While these transactions may arguably satisfy a
logical relationship test, this Court finds it insufficient
to support joinder under Rule 20.
each defendant will likely have different and divergent
defenses to the copyright violation claims.
the Court were to find joinder proper under Rule 20, the
Court would still find it appropriate to exercise its
discretion to sever all but one defendant to avoid potential
prejudice and unfairness as well as to promote judicial
economy and trial convenience. See Hard Drive Prods.
Inc., 809 F.Supp.2d at 1164.
it is this 28th day of September, by the United States
District Court for the District of Maryland,
ORDERED, that all Doe defendants are hereby
SEVERED from this action, except for Doe 1,
IP address 188.8.131.52; and it is further
that Plaintiff's claims against severed Doe defendants