1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MALIBU MEDIA, LLC, Plaintiff ,

v. DOES 1–11, Defendants. Civil Action No. 12-1118 (ESH)

MEMORANDUM OPINION Plaintiff Malibu Media, LLC, the owner of the copyright for a movie entitled “Pretty Back Door Baby” (the “Movie”), has sued 11 Doe defendants alleging that they infringed plaintiff’s copyright by dow nloading a portion of the Movie by me ans of the BitTorrent protocol. (Complaint, July 9, 2012 [Dkt. N o. 1] (“Compl.”) ¶¶ 11, 14–42.) Pl aintiff’s complaint identifies the Doe defendants by their Internet Protocol (“IP”) addresses only. ( Id. , Ex. B.) On July 9, 2012, the Court granted in part and denied in part plaintiff’s motion for leave to serve third party subpoenas on the Doe defendants’ internet se rvice providers (ISPs) prior to a Rule 26(f) conference. ( See Order, July 9, 2012 [Dkt. No. 5].) Th e Court’s July 9 Order permitted plaintiff to subpoena the Doe defendants’ I SPs, but required the ISPs to provide notice to the targeted subscribers that plainti ff was seeking their identifying inform ation at least ten days prior to providing plaintiff with that information. ( See id. at 1 (citing Malibu Media, LLC v. John Does

1–16 , No. 12-cv-0235, 2012 WL 1681819, at *2 (D.D.C. April 11, 2012)).)

Before the Court is John Doe 7’s Motion to Dismiss or Sever for Misjoinder (Aug. 23, 2012 [Dkt. No. 9] (“Doe Mot.”)) and plainti ff’s opposition (September 6, 2012 [Dkt. No. 12]2 (“Pl. Opp’n”)). Doe 7 argues that he and the ot her Doe defendants have been improperly joined in this single action and that, pursuant to Fed. R. Civ. P. 21, seve rance and dismissal are proper. For the reasons stated, the Court will grant Do e 7’s Motion and dismiss Does 2–11 from this case without prejudice.

ANALYSIS The legal principles governing severa nce and joinder are well established. “The court may sever claims if parties are improperly joined.” Davidson v. Dist. of Columbia , 736 F. Supp. 2d 115, 119 (D.D.C. 2010) (citing Fed. R. Civ. P. 21). “In determining whether partie s are misjoined for purposes of Rule 21, courts apply the permissive joinder requirements of Rule 20(a).” Id. (citing Montgomery v. STG Int’l, Inc. , 532 F. Supp. 2d 29, 35 (D.D.C. 2008)). Defendants are properly joined if “any right to relief is asserted against them . . . with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences,” and if “a ny question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). “[T]he two prongs of Rule 20(a) ‘are to be liberally cons trued in the interest of convenience and judicial economy . . . in a manner th at will secure the just, speedy, and inexpensive determinatio n of th[e] action.’” Davidson , 736 F. Supp. 2d at 119 (second and third alterations in the original) (quoting Lane v. Tschetter , No. 05- cv-1414 (EGS), 2007 WL 2007493, at *7 (D.D.C. July 10, 2007)). If the Rule 20(a) test is not satisfie d, however, then defendants are not properly joined and the claims against them can be severed under Rule 21. See, e.g. , id. at 119–22. Pursuant to the first prong of the Rule 20(a) test, [plaintiff’s] claims against defendants “aris[e] out of the same transaction, occurrence, or series of transactions or occurrences,” Fed. R. Civ. P. 20(a)(2), only if they are “‘logically related.’” Maverick Entm’t Grp., Inc. v. Does 1–2,115 , 810 F. Supp. 2d 1, 12 (D.D.C. 2011) (quoting Disparte v. Corporate Exec. Bd. , 223 F.R.D. 7, 10 (D.D.C. 2004)); accord Bederson v. United States , 756 F. Supp. 2d 38, 54 (D.D.C. 2010). “The logical relationship te st is flexible because ‘the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.’” Disparte , 223 F.R.D. at 10 (quoting United Mine Workers of Am. v. Gibbs , 383 U.S. 715, 724 (1966)). Yet, [plaintiff] “cannot join defendants who simply engaged in similar types of behavior , but who are otherwise unrelated; some allegation of concerted action between defendants is required .” Grynberg v. Alaska Pipeline Co. , No. 95-cv-725(TFH), 1997 WL 33763820, at *1 (D.D.C. March 27, 1997) (emphasis added); see id. at *2 (examining cases and concluding that “[c]ourts have not join ed totally independent actors, without any allegation of concert or conspiracy” (citing United States v. Mississippi , 380 U.S. 128 (1965);3 Nassau Cnty. Ass’n of Ins. Agents v. Aetna Life & Cas. , 497 F.2d 1151 (2d Cir. 1974); Cohen v. Dist. of Columbia Nat’l Bank , 59 F.R.D. 84 (D.D.C. 1972))). Spaeth v. Mich. State Univ. Coll. of Law , 845 F. Supp. 2d 48, 53 (D.D.C. 2012) (footnote omitted, citation format altered). 1 The Court concludes that plaintiff has not sa tisfied the Rule 20(a) test because plaintiff has not alleged concerted action among the Doe de fendants. Plaintiff a lleges that each Doe defendant used BitTorrent, a “common peer-to-peer file sharing protocol[]” (Compl. ¶ 14), to download the same piece of a larger file containing the Movie. ( See id. ¶¶ 16–42.) Key to plaintiff’s joinder theories are the following allegations: Once a peer receives a piece of the comput er file, here a piece of the [Movie], it starts transmitting that piece to the other pe ers. . . . In this way, all of the peers and seeders are working together in what is called a “swarm.” . . . Here, each [Doe defendant] peer member particip ated in the same swarm and directly interacted and communicated with other members of that swarm through digital handshakes, the passing along of com puter instructions, uploading and downloading, and by other t ypes of transmissions. ( Id. ¶¶ 31–33. 2 ) “[A] growing number of dist rict courts have recently he ld that swarm joinder is not appropriate.” Malibu Media, LLC v. John Does 1–54 , No. 12-cv-1407, 2012 WL 3030302, at *2

1 The first prong of the two-part Rule 20 test may also be satisfied if “an y right to relief is asserted against [defendants] jointly[ or] severa lly.” Fed. R. Civ. P. 20(a)(2)(A). Plaintiff “asserts that . . . each of the [Doe defendants] is jointly and severally liable for the infringing activities of each of the other [D oe defendants]” (Compl. ¶ 10), but neither plaintiff’s complaint nor its opposition to Doe 7’s motion provides any ju stification for this cl aim. Accordingly, the Court will not consider it.

2 Although the Court does not rely on this fact, itnotes that BitTorrent clients—the computer programs used to access the BitTor rent protocol—can be configured such that materials which they download are not accessible, and cannot be uplo aded, to other peers. Thus, the factual basis for plaintiff’s assertion that each Doe defenda nt both downloaded and uploaded a piece of the Movie (Compl. ¶ 31) is dubious.4 (D. Colo. July 25, 2012) (collecting cases); see also Raw Films, Inc. v. Does 1–32 , No. 1:11-cv2939, 2011 WL 6840590, at *2 (N.D. Ga. Dec. 29, 2011) (The swarm joinder theory “has been considered by various district courts, the major ity of which have rejected it.”). This Court

agrees. 3 “[A] plaintiff must allege facts that pe rmit the court at least to infer some actual, concerted exchange of data between [the Doe defendants].” Malibu Media, LLC v. John Does 1–

54 , 2012 WL 3030302, at *2 (internal quotation marks and citation omitted). Plaintiff has not

done so here. Nothing in the complaint negates the infe rence that the downloads by the various [Doe] defendants were discrete and separate acts that took pla ce at different times; indeed, the complaint alleges that sepa rate defendants shared access to a file containing a pornographic film in separate and isolated incidents over the course of [45] days. [( See Compl., Ex. B.)] In other words, what we have here [are 11] separate and discrete trans actions in which [11] individuals used the same method to access a file via the Internet—no concer ted action whatever, and no series of related occurrences—a t least, not related in any way except the method that was allegedly used to violate the law. Digital Sins, Inc. v. John Does 1–245 , No. 11-cv-8170, 2012 WL 1744838, at *3 (S.D.N.Y. May 15, 2012). 4

3 The Court acknowledges, however, that Judge Howell has recently conc luded that the swarm joinder theory is permissible. See AF Holdings LLC v. Does 1–1,058 , No. 12-cv-048, 2012 WL 3204917, at *14 (D.D.C. Aug. 6, 2012); see also Malibu Media, LLC v. John Does 1–54 , 2012 WL 3030302, at *2 (“Courts across the country are sp lit on whether this theo ry of swarm joinder is appropriate.” (collecting cases)).

4 Plaintiff’s reliance on United States v. Mississippi , 380 U.S. 128 (1965), is misplaced. ( See Pl. Opp’n at 4.) Indeed, Mississippi underscores that joi nder is only proper where a plaintiff alleges concerted action among defendants. There, the Supreme Court’s conclusion that joinder was proper was contingent on the f act that plaintiff alleged that defendants, individual voter registrars, “had acted and were continuing to ac t as part of a state-wide system designed to enforce the registration laws” so as to discriminate against people of color. Mississippi , 380 U.S. at 142. Individuals who act togeth er as part of a discriminatory system—indeed who are alleged to have acted intentionally to comprise and ac tively further that system—are a far cry from individuals whose computer pr ograms, with or w ithout the individuals ’ knowledge, download pieces of a larger file in unconcerted fashion.5 “There is no need for this Court to write another lengthy opinion discussing why plaintiff’s theory is wrong.” Id. at *2; see also Malibu Media, LLC v. John Does 1–54 , 2012 WL 3030302, at *3 (“Given the amount of discourse al ready produced by courts around the country on this issue, the Court finds it unnecessary to write a lengthy opinion abou t whether joinder is appropriate.”). Rather, the Court explicitly a dopts the reasoning put forward by Judge McMahon

in Digital Sins, Inc. v. John Does 1–245 , 2012 WL 1744838, at *1–4, by Judge Motz in Patrick Collins, Inc. v. Does 1–23 , No. 8:12-cv-087, 2012 WL 1144918, at *1–7 (D. Md. April 4, 2012), and by Magistrate Judge Spero in Hard Drive Productions, Inc. v. Does 1–188 , 809 F. Supp. 2d 1150, 1157–65 (N.D. Cal. 2011). See also In re BitTorrent Adu lt Film Copyright Infringement

Cases , Nos. 11-cv-3995, 12-cv-1147, 12-cv- 1150, and 12-cv-1154, 2012 WL 1570765, at *11– 12 (E.D.N.Y. May 1, 2012). Ultimately,

Under the BitTorrent Protoc ol, it is not necessary that each of the Does 1–[11] participated in or contributed to the do wnloading of each other’s [pieces] of the work at issue—or even participated in or contributed to the downloading by any of the Does 1–[11]. 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 opinions, the

Court finds that the Doe defendants in this action are not properly joined and that dismissal of Does 2–11 is appropriate. Fed. R. Civ. P. 21. 5

CONCLUSION Because the Court concludes that joinder is improper under Fed. R. Civ. P. 20, it will

5 Accordingly, the Court need not reach Doe 7’s arguments for quashing the subpoena issued to his ISP or for a protective order.6 grant Doe 7’s motion and dismiss Does 2–11 without prejudice. A separate Order accompanies this Memorandum Opinion.

/s/ ELLEN SEGAL HUVELLE United States District Judge Date: September 28, 2012