1

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

BUBBLE GUM PRODUCTIONS, LLC, ) 

 ) 

Plaintiff, ) Case Number: 1:12-cv-00595 

 ) 

v. ) Hon. Joan H. Lefkow 

 ) 

DOES 1 – 37, ) 

 ) 

Defendants. ) 

MEMORANDUM OF LAW IN SUPPORT OF JOHN DOE 3’S 

MOTION TO DISMISS, OR IN THE ALTERNATIVE, 

TO SEVER DEFENDANTS AND QUASH SUBPOENA

I. INTRODUCTION 

Plaintiff Bubble Gum Productions, LLC (“BGP”) is the alleged copyright owner of the 

adult entertainment video entitled “ExpTeens – November 25, 2011.” See Complaint (Dkt. 1) at 

¶ 3. BGP alleges that it received a copyright registration for its adult entertainment video from 

the United States Copyright Office. Id. at ¶ 23. Through its Complaint, BGP asserts that 37 

John Doe Defendants, including Movant, John Doe 3,1

 infringed its copyright for the adult video 

by allegedly downloading it via a peer-to-peer client, BitTorrent. Id. at ¶ 28. On March 1, 2012, 

BGP issued a subpoena to the seven internet service providers (“ISP”) listed in Exhibit A of the 

Complaint for the identities of its customers who were assigned specific Internet Protocol (“IP”) 

addresses, including an IP address allegedly assigned by one of the ISPs to Movant. 

In recent years, owners and purported owners of copyright registrations relating to adult 

entertainment, including BGP, have attempted to abuse the federal joinder rules by suing dozens 

                                                           

1

 According to Movant’s ISP, the IP address in question is 173.29.134.13, which is the 3rd IP address 

listed in Exhibit A to the Complaint (Dkt. 1-1), hence Movant’s self-identification as John Doe 3. 

Case: 1:12-cv-00595 Document #: 19 Filed: 04/09/12 Page 1 of 7 PageID #:96
2

of unrelated John Doe defendants in a single complaint. The complaints allege use of BitTorrent 

and other peer-to-peer clients to download allegedly copyrighted works. As the Honorable 

Harold A. Baker of the Central District of Illinois has noted, this mass-defendant litigation tactic 

is used to “wrest quick settlements, even from people who have done nothing wrong”. VPR Int’l 

v. Does 1-1017, No. 11-cv-02068-HAB-DGB, Dkt. 15 at 3 (C.D. Ill. Apr. 29, 2011), attached 

hereto as Exhibit A. 

BGP has improperly joined dozens of anonymous, unrelated individuals as defendants in 

the present “John Doe” action. At best, BGP has alleged that each of these individuals has used 

the same peer-to-peer client, BitTorrent, to download BGP’s alleged copyrighted work. This 

alleged parallel use of the same file-sharing protocol does not amount to the same transaction or 

occurrence, as would be required for proper joinder. In addition, each of the dozens of 

defendants will likely have different defenses. As recognized by recent decisions in the Northern 

District of West Virginia, the proper judicial response to this misuse of the federal courts is 

severance of the action into separate actions for each individual defendant, coupled with 

quashing the subpoenas seeking the identity of all the severed defendants. 

Accordingly, Movant respectfully requests that this Court dismiss the present action in its 

entirety or, in the alternative, sever from the action all John Doe Defendants except the single 

Defendant identified by the first IP address in Exhibit A to the Complaint, and quash any 

outstanding subpoenas relating to any of the severed Defendants, including that with respect to 

Movant, John Doe 3. 

II. THIS COURT SHOULD SEVER DEFENDANTS AND QUASH THE 

OUTSTANDING SUBPOENAS 

A. The Standard for Proper Joinder. 

Joinder of multiple defendants in one action is proper if: 

Case: 1:12-cv-00595 Document #: 19 Filed: 04/09/12 Page 2 of 7 PageID #:97
3

(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. Pro. 20(a)(2). If parties are misjoined, a court should not dismiss the action 

completely, but 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.” Fed. R. Civ. P. 21. 

B. Plaintiff Has Improperly Joined the John Doe Defendants. 

 BGP has failed to allege that John Doe 3 and the other John Doe Defendants have 

participated in the same transaction, occurrence, or series of transactions or occurrences. 

Instead, BGP merely alleges that each of the Defendants used the BitTorrent client to download 

BGP’s alleged copyrighted work. See Complaint (Dkt. 1) at ¶ 28. 

 “However, merely committing the same type of violation in the same way does not link 

defendants together for purposes of joinder.” Laface Records, LLC v. Does 1-38, 2008 WL 

544992, *2 (E.D.N.C., Feb. 27, 2008) (a copy of which is attached hereto as Exhibit B) (severing 

action against John Doe defendants accused of using the same Internet Service Provider and 

peer-to-peer networks to commit copyright infringement). See also BMG Music v. Does 1-4, 

2006 U.S. Dist. LEXIS 53237, *5-6 (N.D. Cal., July 31, 2006) (a copy of which is attached 

hereto as Exhibit C) (sua sponte severing multiple defendants where only connection between 

them was allegation they used same Internet Service Provider to conduct copyright 

infringement); Interscope Records v. Does 1-25, 2004 U.S. Dist. LEXIS 27782, *19 (M.D. Fla., 

Apr. 1, 2004) (a copy of which is attached hereto as Exhibit D) (recommending severance of 

multiple defendants where only connection between them was allegation they used the same 

Internet Service Provider and peer-to-peer network to commit copyright infringement). 

Case: 1:12-cv-00595 Document #: 19 Filed: 04/09/12 Page 3 of 7 PageID #:98
4

 Joinder is improper here for the additional reason that each of the dozens of different 

Defendants will likely have different defenses, based on their individual circumstances. As 

described by one court facing another large set of “John Doe” defendants: 

Comcast 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, inexcusably pilfering Plaintiffs’ property and 

depriving them, and their artists, of the royalties they are rightly owed. 

BMG Music v. Does 1-203, 2004 WL 953888, *1 (E.D. Pa., Apr. 2, 2004) (a copy of which is 

attached hereto as Exhibit E). 

In an attempt to mask its misjoinder, BGP raises the impossibility that all 37 of the John 

Doe Defendants may actually be the same individual. See Complaint (Dkt. 1) at ¶ 11. BGP’s 

allegation is easily belied by the fact that it had to subpoena seven different ISPs in order to 

match up each of the alleged 37 IP addresses named in Exhibit A of the Complaint. It is 

extraordinarily unlikely that one individual would have accounts with seven different ISPs, 

especially when some of the named ISPs provide Internet access in a fundamentally different 

way using different equipment. For instance, for BGP’s theory to be correct, an individual 

would need to have a cable modem and separate cable subscriptions to access Internet service 

provided by each of Comcast Corporation, RCN Corporation, Wide Open West, Mediacom 

Communications, and Charter Communications, plus a DSL modem and DSL subscription to 

access Internet service provided by AT&T Internet Services. In any event, Movant’s ISP, 

Mediacom, only has identified one of the 37 IP addresses to be associated with Movant’s ISP 

subscription. 

Case: 1:12-cv-00595 Document #: 19 Filed: 04/09/12 Page 4 of 7 PageID #:99
5

 Because BGP merely alleges that each of the John Doe Defendants has committed the 

same type of copyright infringement, and because those Defendants will likely have vastly 

different particular defenses, joinder of all Defendants in this case is improper. 

C. This Court Should Sever From This Action All John Doe Defendants Except 

One, and Quash the Subpoenas Related to the Severed Defendants. 

Recently, a federal court in the Northern District of West Virginia found misjoinder 

under a set of factual circumstances nearly identical to the present one. See Third World Media, 

LLC v. Does 1-1,243, No. 3:10-CV-90 (N.D.W.V., Dec. 16, 2010) (a copy of which is attached 

hereto as Exhibit F). There, the owner of an adult entertainment video alleged copyright 

infringement over the Internet by numerous John Doe defendants identified only by IP addresses. 

Id. at *1. In response to an objection by one of the John Doe defendants, the court found 

misjoinder and severed from the action all such defendants (including the moving defendant) 

except one. Id. at *4. The court allowed the plaintiff to re-file separate actions against each 

individual severed defendant, but only if the plaintiff remitted a separate filing fee for each such 

action. Id. at *5. At the same time, the court quashed as invalid the subpoenas seeking the 

identity of all of the John Doe defendants who had been severed from the action. Id. at *4. 

 The Third World Media decision provides a useful roadmap for this Court to fashion an 

appropriate remedy for the misjoinder which BGP has committed here. This Court should sever 

from this action all John Doe Defendants (including Movant, John Doe 3) except the single 

Defendant identified by the first IP address in Exhibit A to the Complaint (Dkt. 1-1). The Court 

could allow BGP to re-file individual actions against each severed Defendant, upon payment of 

the appropriate filing fees. In addition, this Court should quash any outstanding subpoenas 

relating to any of the severed Defendants, because the information sought in them no longer has 

relevance to the action against the single remaining Defendant. 

Case: 1:12-cv-00595 Document #: 19 Filed: 04/09/12 Page 5 of 7 PageID #:100
6

III. CONCLUSION 

 This Court should dismiss the present action in its entirety. In the alternative, this Court 

should sever from the action all John Doe Defendants except the single Defendant identified by 

the first IP address in Exhibit A to the Complaint, and quash any outstanding subpoenas relating 

to any of the severed Defendants, including that with respect to Movant, John Doe 3. 

 Respectfully submitted, 

JOHN DOE 3 

Dated: April 9, 2012 By: s/ Scott R. Kaspar 

Scott R. Kaspar (ARDC #6284921) 

TOLPIN & PARTNERS, PC 

11 South LaSalle Street, Suite 2900 

Chicago, Illinois 60603 

Phone: (312) 698-8971 

Fax: (312) 803-9602 

Email: Scott@tolpinlaw.com 

Attorneys for Defendant 

JOHN DOE 3 

Case: 1:12-cv-00595 Document #: 19 Filed: 04/09/12 Page 6 of 7 PageID #:101
7

CERTIFICATE OF SERVICE

 I, Scott R. Kaspar, an attorney, hereby certify that on April 9, 2012, I caused to be filed 

electronically MEMORANDUM OF LAW IN SUPPORT OF JOHN DOE 3’S MOTION 

TO DISMISS, OR IN THE ALTERNATIVE, TO SEVER DEFENDANTS AND 

QUASH SUBPOENA with the Clerk of the Court using the CM/ECF system, which will send 

an electronic copy of the foregoing to all counsel of record and constitutes proper service under 

Fed. R. Civ. P. 5(b)(2)(D) pursuant to L.R. 5.9 of the Northern District of Illinois.

 

 /s/ Scott R. Kaspar 

 

Case: 1:12-cv-00595 Document #: 19 Filed: 04/09/12 Page 7 of 7 PageID #:102