UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

MALIBU MEDIA, LLC, )

)

Plaintiff, )

)

v. ) CAUSE NO. 1:12-CV-263

)

JOHN DOES 1-14, )

)

Defendants. )

OPINION AND ORDER

I. INTRODUCTION

This copyright infringement action is before the Court on Defendant John Doe No. 12’s

Motion to Dismiss or Sever for Misjoinder and Motion to Quash Plaintiff’s Subpoena. (Docket

# 24.) Plaintiff Malibu Media, LLC, responded to the motion (Docket # 38), but Doe No. 12 did

not file a reply, and the time to do so has since passed. As such, the motion is now ripe for

ruling. For the following reasons, the portions of the motion seeking to sever Doe No. 12 and

quash the subpoena will be DENIED.1

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Malibu Media, LLC, a producer of adult entertainment content, owns the

copyright for a motion picture entitled “Romantic Memories.” (Compl. ¶ 11; Pl.’s Mem. in Opp.

to John Doe 12’s Sealed Mot. to Dismiss or Sever for Misjoinder & Sealed Mot. to Quash Pl.’s

Subpoena (“Pl.’s Mem. in Opp.”) 1.) Plaintiff alleges that each of the Doe Defendants

1

 The Court does not address the portion of the motion seeking to dismiss Doe No. 12. Doe No. 12, who is

proceeding pro se, should note that Local Rule 7-1(a) provides that generally motions must be filed separately. N.D.

Ind. L.R. 7-1(a). Accordingly, he should have filed a separate motion to sever and a separate motion to quash. 

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unlawfully downloaded and shared this copyrighted work using the BitTorrent file sharing

protocol. (See Compl. ¶¶ 10, 33.) According to the Complaint, BitTorrent is one of the most

common peer-to-peer file sharing protocols used for distributing large amounts of data. (Compl.

¶ 14.) It is able to distribute a large file without creating a heavy load on the source computer

and network by allowing users to join a “swarm” of host computers to download and upload

from each other simultaneously. (Compl. ¶ 15.)

Plaintiff retained computer investigators to identify the Internet Protocol (“IP”) addresses

associated with the people using the BitTorrent protocol to reproduce or distribute its

copyrighted works, including “Romantic Memories,” which was identified by a “Unique Hash

Number.” (Compl. ¶ 36; see Compl.¶¶ 38-39.) The investigation revealed that the 14 IP

addresses attached as Exhibit A to the Complaint had copied a piece of “Romantic Memories,”

as identified by its Unique Hash Number. (Compl. ¶¶ 38-39; see Compl. Ex. A.) The

individuals using these 14 IP addresses engaged in these transactions on different dates or times

between May 22, 2012, and June 23, 2012. (See Compl. Ex. A.) But Plaintiff maintains that

each Defendant was part of the same series of transactions (Compl. ¶ 39(B)), stating that “each

Defendant peer member participated in the same swarm and directly interacted and

communicated with other members of that swarm through digital handshakes, the passing along

of computer instructions, uploading and downloading, and by other types of transmissions”

(Compl. ¶ 33).

As such, on July 30, 2012, Plaintiff brought a single copyright infringement suit against

all 14 Doe Defendants, alleging that each Defendant was jointly and severally liable for the

infringing activities of each of the other Defendants; that the infringement was part of a series of

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transactions, involving the exact same torrent file of the copyrighted work, and was

accomplished by Defendants acting in concert with each other; and that there were common

questions of law and fact. (Compl. ¶ 10.) Because the Defendants were only known by their IP

addresses, Plaintiff—after receiving leave from this Court to do so (Docket # 5, 6)—served third

party subpoenas on the Internet Service Providers (“ISPs”) (Comcast and Embarq) that assigned

these IP addresses to discover the name, address, telephone number, e-mail address, and Media

Access Control address of the Defendant associated with each IP address (see Docket # 32, 33).

Doe No. 12 subsequently moved, in the same motion, to be dismissed or severed from the

case for misjoinder and to quash the subpoena to the ISP that references him. (Docket # 24.)

III. THE MOTION TO QUASH

Although Plaintiff has issued two subpoenas in this case, one directed to Comcast

Corporation and a second directed to Embarq Corporation, Doe No. 12 moves to quash only the

one referencing him, which is the subpoena directed to Comcast seeking the subscriber

information of Does No. 1-13 (see Docket # 12-1).

A. Standard

Federal Rule of Civil Procedure 45(a) permits the issuance of subpoenas to produce

documents and other tangible things in the custody or control of a person. Richter v. Mut. of

Omaha Ins. Co., No. 06-Misc.-011, 2006 WL 1277906, at *2 (E.D. Wis. May 5, 2006); see Fed.

R. Civ. P. 45(a). Under Rule 45, a court must quash or modify a subpoena if it fails to allow a

reasonable time to comply; requires a person who is neither a party nor a party’s officer to travel

more than 100 miles; requires disclosure of privileged or other protected matter, if no exception

or waiver applies; or subjects a person to undue burden. Fed. R. Civ. P. 45(c)(3)(A)(i)-(iv). 

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Furthermore, to protect a person subject to or affected by a subpoena, a court may quash a

subpoena if it requires disclosure of a trade secret or other confidential information, disclosure of

an unretained expert’s opinion, or a person who is neither a party nor a party’s officer to incur

substantial expenses to travel more than 100 miles to attend trial. Fed. R. Civ. P. 45(c)(3)(B)(i)-

(iii).

The party seeking to quash a subpoena under Rule 45(c)(3)(A) bears the burden of

demonstrating that the information sought is privileged or subjects a person to an undue burden. 

Illiana Surgery & Med. Ctr. LLC v. Hartford Fire Ins. Co., No. 2:07 cv 3, 2012 WL 776694, at

*3 (N.D. Ind. Mar. 7, 2012) (citation omitted); see Pettit v. City of Columbus, No.

104CV1464JDTTAB, 2005 WL 2218373, at *1 (S.D. Ind. Sept. 9, 2005); Jones v. Hirschfield,

219 F.R.D. 71, 74-75 (S.D.N.Y. 2003) (“The burden of persuasion in a motion to quash a

subpoena . . . is borne by the movant.”); Wahuchop v. Domino’s Pizza, Inc., 138 F.R.D. 539, 543

(N.D. Ind. 1991). As with other discovery issues, deciding whether to grant a motion to quash

lies within the sound discretion of the district court. Sullivan v. Gurtner Plumbing, Inc., No. 11-

cv-6261, 2012 WL 896159, at *1 (N.D. Ill. Mar. 13, 2012) (citing United States v. Ashman, 979

F.2d 469, 495 (7th Cir. 1992)).

B. Standing

 Although Plaintiff does not raise the issue, the Court will briefly address Doe No. 12’s

standing to quash a subpoena to Comcast, a third party to this action. As a general rule, “a party

lacks standing to quash a subpoena issued to a nonparty unless the party has a claim of privilege

attached to the information sought or unless it implicates a party’s privacy interests.” Hard

Drive Prods. v. Does 1-48, No. 11 CV 9062, 2012 WL 2196038, at *3 (N.D. Ill. June 14, 2012);

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see Brady v. Cent. Ind. Reg’l Blood Ctr. Inc., No. 1:99-MC-19, 1999 WL 33912610, at *1 (N.D.

Ind. Oct. 6, 1999) (citations omitted); see also United States v. Raineri, 670 F.2d 702, 712 (7th

Cir. 1982) (“A party has standing to move to quash a subpoena addressed to another if the

subpoena infringes upon the movant’s legitimate interests.”). As such, in similar cases,

courts have found that a Doe defendant accused of copyright infringement has standing to object

to a subpoena issued to ISPs, even where the movant’s privacy interest is “minimal at best.” 

Sunlust Pictures, LLC v. Does 1-75, No. 12 C 1546, 2012 WL 3717768, at *2 (N.D. Ill. Aug. 27,

2012) (quoting Malibu Media, LLC v. Does 1-25, No. 12-cv-0362-LAB (DHB), 2012 WL

2367555, at *2 (S.D. Cal. June 21, 2012)); see Third Degree Films, Inc. v. Does 1-2010, No.

4:11 MC 2, 2011 WL 4759283, at *5 (N.D. Ind. Oct. 6, 2011) (finding that a Doe defendant had

standing to assert his privacy interest in the information requested from the ISP).

Here, because Doe No. 12 “has at least a minimal privacy interest in the information

requested by the subpoena, he has standing to object.” Sunlust Pictures, 2012 WL 3717768, at

*2; see Third Degree Films, Inc. v. Does 1-108, No. DKC 11-3007, 2012 WL 669055, at *2 (D.

Md. Feb. 28, 2012) (“[H]owever minimal or ‘exceedingly small’ the Doe Defendants’ interests

here are, parties need only have ‘some personal right or privilege in the information sought’ to

have standing to challenge a subpoena to a third party.”). 

C. Analysis

Having determined that Doe No. 12 has standing to challenge the subpoena directed to

Comcast, the Court turns to his arguments in favor of quashing that subpoena. Doe No. 12 first

argues that “Plaintiff ignores the fact that ‘IP subscribers are not necessarily copyright

infringers’” because the infringer could be someone in the subscriber’s household, a visitor, a

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neighbor, or even someone parked on the street. (John Doe 12’s Sealed Mot. to Dismiss or

Sever for Misjoinder & Sealed Mot. to Quash Pl.’s Subpoena (“Mot. to Dismiss or Sever &

Quash”) 12 (quoting VPR Internationale v. Does 1-1017, No. 11-2068, 2011 WL 8179128, at *1

(C.D. Ill. Apr. 29, 2011).) Doe No. 12 further states earlier on in his motion that, after receiving

notice of Plaintiff’s subpoena from his ISP, he discovered that his wireless network was not

locked, allowing any individual with an electronic device capable of establishing an internet

connection to gain access to his network. (Mot. to Dismiss or Sever & Quash 2.) 

But these arguments essentially amount to a denial of liability, which “is not relevant as

to the validity or enforceability of a subpoena, but rather should be presented and contested once

parties are brought properly into the suit.” Hard Drive Prods., 2012 WL 2196038, at *4; accord

First Time Videos, LLC v. Does 1-18, No. 4-11-cv-69-SEB-WGH, 2011 WL 4079177, at *2

(S.D. Ind. Sept. 13, 2011) (quoting First Time Videos v. Does 1-500, 276 F.R.D. 241, 251 (N.D.

Ill. 2011)). Furthermore, such objections to the subpoena based on the possibility that Doe No.

12’s IP address may have been used by someone else to violate the copyright are likewise

“irrelevant and premature because they go to the merits of Plaintiff’s claims and do not address

the propriety vel non of the subpoenas.” Third Degree Films, Inc., 2011 WL 4759283, at *5

(quoting West Coast Prods., Inc. v. Does 1-5829, 275 F.R.D. 9, 13 (D.D.C. 2011)). And it is

Doe No. 12, not Plaintiff, who bears the burden of establishing that the subpoena falls within the

Rule 45 criteria for quashing a subpoena. Hard Drive. Prods., 2012 WL 2196038, at *5 (citation

omitted). A denial of liability is simply not among those criteria. Id. (citing Fed. R. Civ. P.

45(c)(3)(A)).

Furthermore, the case that Doe No. 12 relies on to support this argument, VPR

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Internationale, 2011 WL 8179128, is easily distinguishable from the present circumstances. The

plaintiff in VPR Internationale sought to commence a class action against all persons

everywhere who used the BitTorrent protocol to infringe any of its copyrighted motion pictures

and identified 1,017 IP addresses that allegedly did so. Patrick Collins, Inc. v. John Does 1-9,

No. 12-CV-3161, 2012 WL 4321718, at *4 (C.D. Ill. Sept. 18, 2012) (construing VPR

Internationale, 2011 WL 8179128, at *1-2). Unlike Plaintiff here, VPR Internationale did not

allege that any of the 1,017 IP addresses had been used to upload or download the same unique

copy of one of its copyrighted works or identify even one IP address that had been used within

the district to infringe one of its copyrights. Id. Rather than engaging in such a fishing

expedition, Plaintiff here has identified only 14 infringing IP addresses, all of which were used

to download and upload the same unique copy of one copyrighted work from within this District. 

Id. Therefore, Doe No. 12’s reliance on VPR Internationale does not strengthen his first

argument for quashing the subpoena. 

Doe No. 12 next argues that “the request burdens a third party ISP with a request for

information about an act that may or may not be actionable against Doe 12.” (Mot. to Dismiss or

Sever & Quash 13.) But Rule 45 only requires a court to quash a subpoena when it subjects a

person to an undue burden. Fed. R. Civ. P. 45(c)(3)(A)(iv). Doe No. 12 makes no argument that

the subpoena issued to Comcast imposes such an undue burden on it. And any argument that

this subpoena imposes an undue burden on Doe No. 12 fails because, as courts have consistently

recognized, a subpoena directed at an ISP does not require the defendant to produce anything. 

See, e.g., Sunlust Pictures, 2012 WL 3717768, at *2 (“The subpoena does not impose an undue

burden on Doe because he is not the party directed to respond to it.”); First Time Videos, 2011

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WL 4079177, at *1 (“[T]he issuance of a subpoena to the Internet Service Provider of putative

defendants does not create an undue burden on the putative defendants because they are not

required to produce anything.”); see also Third Degree Films, 2011 WL 4759283, at *5 (citing

First Time Videos, 276 F.R.D. at 250; Voltage Pictures, LLC v. Does 1-5,000, 818 F. Supp. 2d

28, 36 (D.D.C. 2011)) (holding that “[a] Doe defendant lacks standing to quash a subpoena on

the ground of undue burden when the subpoena is directed to the ISP rather than to him” because

the subpoena requires the ISP, and not the Doe Defendant, to produce information).

Doe No. 12 further contends that, pursuant to the “Business Model” employed by

Plaintiff and other producers of adult entertainment in similar cases, “any release of information

to the Plaintiff will undoubtedly lead to a flurry of demand letters sent to all of the John Doe

Defendants” with the purported aim of harassing the alleged infringers into a quick settlement. 

(Mot. to Dismiss or Sever & Quash 13-14.) Plaintiff responds that it has never issued demand

letters to any defendant in any case and that Doe No. 12 mischaracterizes its purpose for

engaging in settlement activities. (Pl.’s Mem. in Opp. 14.) 

As one district court within this Circuit has recognized, “[o]ne person’s cottage industry

in harassing lawsuits is another person’s vigilant defense of property rights. The Work may or

may not be pornographic, but [Plaintiff] has alleged that it owns the copyright to the Work and,

if so, is entitled to the same protections as the owners of any other copyrighted work.” Patrick

Collins, 2012 WL 4321718, at *5. And that Plaintiff, and other producers of similar adult

entertainment, may settle these suits quickly does not indicate any wrongdoing, particularly

when “[s]ettlement of civil disputes is generally a positive outcome, not a negative one.” Id.

And, finally, Doe No. 12 makes no showing that Plaintiff is fabricating a false claim by alleging

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that Plaintiff pulled the allegedly infringing IP addresses out of thin air, and Doe No. 12 does not

challenge or dispute any of the procedures used by Plaintiff’s investigator to identify the

infringing IP addresses or that the IP addresses were used to download and upload portions of

the same unique copy of Plaintiff’s copyrighted work. Id. Accordingly, Doe No. 12 presents

nothing besides speculation for his claim that the Plaintiff in this particular case is improperly

attempting to extract settlements from innocent people. Id. Such speculation is not the basis for

quashing a subpoena under Rule 45.

The remaining potentially applicable basis for quashing the subpoena, which Doe No. 12

does not argue, is that the subpoena “requires disclosure of privilege or protected matter.” Fed.

R. Civ. P. 45(c)(3)(A). Courts, however, have consistently held that “there is no expectation of

privacy in Internet subscriber information because it has already been exposed to a third party,

the Internet Service Provider.” First Time Videos, 2011 WL 4079177, at *1 (citing Courtright v.

Madigan, No. 09-cv-208-JPG, 2009 WL 3713654, at *2 (S.D. Ill. Nov. 4, 2009)); accord AF

Holdings LLC v. Doe, No. 12 C 4222, 2012 WL 5520861, at *2 (N.D. Ill. Nov. 13, 2012); Hard

Drive Prods., 2012 WL 2196038, at *4; Third Degree Films, 2011 WL 4759283, at *3. 

Additionally, when there is an allegation of copyright infringement, an individual has no

protected privacy interest in their name, address, phone number, e-mail address, or Media

Access Control address. First Time Videos, 2011 WL 4079177, at *1. Therefore, as the

subpoena here does not require disclosure of protected matter, this cannot be a basis for quashing

it.

Therefore, because Doe No. 12 has not met his burden of showing that the subpoena

meets the criteria of Rule 45(c)(3)(A), his motion to quash the subpoena directed at Comcast will

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be DENIED.

IV. THE MOTION TO SEVER

Along with his motion to quash, Doe No. 12 also moved to be severed from this case

under either Federal Rule of Civil Procedure 20 or 21. (Mot. to Dismiss or Sever & Quash 7.) 

The Court will consider Doe No. 12’s motion to sever under each of these rules.

A. Permissive Joinder Under Rule 20

Doe No. 12 first argues that he should be severed from this case because there is no

single transaction or series of transactions involved in this case as is required for permissive

joinder under Rule 20 and “it is untenable to imagine a set of facts” in which the Doe Defendants

would have engaged in coordinated action. (See Mot. to Dismiss or Sever & Quash 9-10.) Doe

No. 12 further claims that the temporal gaps between the transactions here—the 14 transactions

occurred at different days or times between May 22, 2012, and June 23, 2012—suggest that the

Doe Defendants did not act in concert with each other. (Mot. to Dismiss or Sever & Quash 9.) 

In support of joinder, Plaintiff responds that the Doe Defendants’ infringement was

committed through the same series of transactions as its investigator was able to receive a piece

of the copyrighted movie from each Defendant and because each Defendant used BitTorrent and

the computers of others to download the same file and allowed others to access their computer to

receive it. (Pl.’s Mem. in Opp. 4-5) Moreover, Plaintiff maintains that, despite the temporal gap

between the transactions, Defendants are properly joined because their actions directly relate

back to the same initial seed of the swarm and their alleged infringement further advances the

series of infringements that began with that initial seed and continued through other infringers. 

(Pl.’s Mem. in Opp. 6-7) 

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1. Standard

Federal Rule of Civil Procedure 20 states that persons may join 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). In short, to join persons as defendants in an action

under Rule 20, “there must be both a right to relief arising out of the same transaction or

occurrence and a question of law or fact common to all the [defendants].” Teklehaimanot v.

Park Ctr., Inc., No. 1:08-CV-220, 2009 WL 799505, at *1 (N.D. Ind. Mar. 24, 2009) (citations

and internal quotation marks omitted); see also In re Monon Tel. Co., 218 F.R.D. 614, 616 (N.D.

Ind. 2003). “Federal policy favors joinder, and the district court has wide discretion when

deciding whether joinder of parties is proper.” Teklehaimanot, 2009 WL 799505, at *1 (citation

omitted); see Monon Tel., 218 F.R.D. at 616 (“When the requirements of Rule 20(a) are satisfied

and joinder will not result in undue prejudice to a party, discretion is exercised in favor of

joinder.” (citing Anderson v. Montgomery Ward & Co., 852 F.2d 1008, 1011 (7th Cir. 1988))). 

Furthermore, “[p]ermissive joinder under Rule 20 are to be liberally construed to promote

convenience and judicial economy.” Patrick Collins, 2012 WL 4321718, at *2 (citations

omitted). 

Even if joinder is appropriate, Rule 20(b) provides that “[t]he court may issue

orders—including an order for separate trials—to protect a party against embarrassment, delay,

expense, or other prejudice that arises from including a person against whom the party asserts no

claim and who asserts no claim against the party.” Fed. R. Civ. P. 20(b). 

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2. Analysis

Courts throughout the country are split over whether joining many anonymous

defendants alleged to have participated in a single BitTorrent “swarm” in a single suit is

appropriate. Sunlust Pictures, 2012 WL 3717768, at *3; compare, e.g., In re BitTorrent Adult

Film Copyright Infringement Cases, Nos. 11-3995(DRH)(GRB), 12-1147(JS)(GRB), 12-

1150(LDW)(GRB), 12-1154(ADS)(GRB), 2012 WL 1570765, at *11 (E.D.N.Y. May 1, 2012)

(finding joinder inappropriate because, among other reasons, allegations were insufficient to

show that defendants actually shared file bits with one another), SBO Pictures, Inc. v. Does 1-57,

No. RWT 12cv22, 2012 WL 1415523, at *2 (D. Md. Apr. 20, 2012) (denying joinder and stating

that “the better-reasoned decisions have held that where a plaintiff has not plead that any

defendant shared file pieces directly with one another, the first prong of the permissive joinder is

not satisfied”), and Hard Drive Prods., Inc. v. Does 1-188, 809 F. Supp. 2d 1150, 1164 (N.D.

Cal. 2011) (finding no concerted action were “Plaintiff does not plead facts showing that any

particular defendant illegally shared plaintiff’s work with any other particular defendant”), with

Pac. Century Int’l v. Does 1-31, No. 11 C 9064, 2012 WL 2129003, at *2 (N.D. Ill. June 12,

2012) (allowing joinder where the anonymous defendants participated in the same swarm),

Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 244 (S.D.N.Y. 2012) (declining to sever where

“the Doe Defendants were trading the exact same file as part of the same swarm”), and First

Time Videos, 276 F.R.D. at 252 (allowing joinder where putative defendants were alleged to

have reproduced copyrighted materials and continued to distribute data to others in the swarm). 

As to the first joinder requirement—that the claim against each Defendant arose out of

the same transaction or series of transactions—courts denying joinder in the BitTorrent context

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have “generally done so because the plaintiff failed to allege that the defendants simultaneously

participated in a single swarm or that the defendants distributed files directly among

themselves.” Sunlust Pictures, 2012 WL 3717768, at *4. But here, Plaintiff alleges that each

Defendant “participated in the same swarm and directly interacted and communicated with other

members of that swarm through digital handshakes, the passing along of computer instructions,

uploading and downloading, and by others types of transmissions” (Compl. ¶ 33 (emphasis

added)) and, using the BitTorrent protocol, “copied a piece of Plaintiff’s copyrighted Work

identified by the Unique Hash Number” (Compl. ¶ 39(A)). All of these transactions occurred

over a period spanning only a month. (See Compl. Ex. A (indicating that the transactions

occurred between May 22, 2012, and June 23, 2012).)

At this stage of the litigation, Plaintiff’s allegations that all the Defendants infringed on

its copyright by “uploading and downloading the same unique copy of the Work with the same

Unique Hash Number through the same BitTorrent protocol that required each participant to

send and receive portions of the Work in order to download and view the entire Work” are

sufficient to assert a claim against each Defendant arising from the same series of transactions. 

Patrick Collins, 2012 WL 4321718, at *2; see also Third Degree Films, 2012 WL 669055, at *5

(finding that, based on allegations that the Doe defendants swapped the same exact file and

evidence connecting the IP addresses to the same exact “hash,” it was reasonable to conclude

that each of the Doe defendants may have directly facilitated the download of the work by

another of the Doe defendants and was thus part of the same transaction or series of

transactions); MGCIP v. Does 1-316, No. 10 C 6677, 2011 WL 2292958, at *2 (N.D. Ill. June 9,

2011) (“[G]iven the decentralized nature of BitTorrent’s file-sharing protocol—where individual

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users distribute the same work’s data directly to one another without going through a central

server—the Court finds that sufficient facts have been [pled] to support the joinder of the

putative defendants at this time.”). 

Moreover, based on Plaintiff’s allegations that Defendants used the 14 IP addresses to

upload and download a copy of the copyrighted work that had the same Unique Hash Number,

“this means that the copy that each Defendant downloaded ultimately came from a single source. 

Given the policy in favor of joinder, this is sufficient at this time to deny severance.” Patrick

Collins, 2012 WL 4321718, at *2; see also Digital Sin, 279 F.R.D. at 244 (declining to sever

defendants where the Plaintiff alleged that the Doe defendants were trading the exact same file

as part of the same swarm). That these transactions occurred at varying times spanning just a

month does not change this outcome. See Pac. Century Int’l, 2012 WL 2129003, at *2 (finding

that Plaintiff’s allegations that the anonymous defendants participated in the same swarm, at

varying times spanning just over one month, sufficiently alleged that they were involved in the

same series of transactions to warrant joinder under Rule 20). Furthermore, “unlike many of the

cases where courts have found joinder improper, Plaintiff has sued only Doe defendants whose

IP addresses appear to be based in [the Northern District of Indiana].” Id. (citing CP Prods., Inc.

v. Does 1-300, No. 10 C 6255, 2011 WL 737761, at *1 (N.D. Ill. Feb. 24, 2011) (objecting to the

large number of defendants over which the court demonstrably lacked personal jurisdiction)). 

Moving onto the second requirement for joinder under Rule 20—that Defendants share a

“common question of law or fact”—Plaintiff has asserted the same counts of direct and

contributory copyright infringement against all Defendants, with no exception (see Compl. ¶¶

45-61), which suggests that joinder is appropriate. Third Degree Films, 2012 WL 669055, at *5

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(noting, in finding the second joinder requirement “easily met,” that Plaintiff asserted the same

claim of copyright infringement against all the defendants with no exception). And this case also

involves questions of law and fact common to all Defendants, including “whether Plaintiff is a

proper copyright holder, whether violations of the Copyright Act have occurred, and whether

entering a BitTorrent swarm constitutes willful copyright infringement,” fully satisfying the

second joinder requirement. Pac. Century Int’l, 2012 WL 2129003, at *2 (citation omitted).

Therefore, Plaintiff has met both requirements of permissive joinder under Rule 20, and

as such, Doe No. 12 will not be severed on the basis of misjoinder. Nor will the Court, for the

reasons explicated below, order separate trials under Rule 20(b) at this stage of the proceedings.

B. Discretionary Severance under Rule 21

Although Defendants are properly joined, Doe No. 12 also asks the Court to exercise its

discretion under Federal Rule of Civil Procedure 21 to sever him because the “large number of

infringement and defense arguments that a jury would be required to consider at trial” would

prejudice him. (Mot. to Dismiss or Sever & Quash 10.) Doe No. 12 further contends that

severance is appropriate because Plaintiff has an “improper purpose” for filing this suit against

the Doe Defendants—namely, attempting to coerce payment from them. (Mot. to Dismiss or

Sever & Quash 11.) On the other hand, Plaintiff claims that joinder promotes judicial efficiency,

particularly at this stage of the litigation and given the limited number of Defendants. (Pl.’s

Mem. in Opp. 8-9.)

1. Standard

Under Federal Rule of Civil Procedure 21, a court may, on motion or on its own, add or

drop a party or sever any claim against any party at any time. Sunlust Pictures, 2012 WL

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3717768, at *3 (citing Fed. R. Civ. P. 21). The determination of whether to sever is “committed

to the broad discretion of the trial judge.” Bennett v. Sch. Dirs. of Dist. 115, No. 96 C 2422,

1996 WL 495555, at *2 (N.D. Ill. Aug. 28, 1996); see Rice v. Sunrise Express, Inc., 209 F.3d

1008, 1016 (7th Cir. 2000) (“It is within the district court’s broad discretion whether to sever a

claim under Rule 21.”). “The practical effect of severance of previously-joined claims is the

creation of two or more separate actions.” Hohlbein v. Heritage Mut. Ins. Co., 106 F.R.D. 73, 78

(E.D. Wis. 1985). To decide whether severance is appropriate, “a court should consider the

convenience and fairness to parties as well as the claim’s separability in logic and law. A court’s

decision should serve the ends of justice and facilitate the prompt and efficient disposition of the

litigation.” Bennett, 1996 WL 495555, at *2 (internal citations omitted).

2. Analysis

First, unlike cases involving hundreds of defendants where joinder has been found too

cumbersome, Plaintiff has named only 14 defendants, not hundreds, and only 12 remain in the

case,2

 all of whom are located in this District, facts which weigh in favor of joinder by promoting

judicial efficiency. Patrick Collins, 2012 WL 4321718, at *3 (citing Hard Drive Prods., 809 F.

Supp. 2d at 1164 (severing where joinder of the 188 defendants “would result in a logistically

unmanageable case” and where the defendants may be separated by many miles)). Here,

“[j]oinder at the discovery phase would be more efficient than conducting the same discovery in

[twelve] separate cases,” id., as it “facilitates jurisdictional discovery and expedites the process

of obtaining identifying information, which is prerequisite to reaching the merits of [Plaintiff’s]

2 Although there were originally 14 Doe Defendants in this case, Does No. 1 and No. 13 have been

voluntarily dismissed with prejudice (Docket # 27, 28).

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claims,” Patrick Collins, Inc. v. John Does 1-15, No. 11-cv-02164-CMA-MJW, 2012 WL

415436, at *4 (D. Colo. Feb. 8, 2012) (quoting Voltage Pictures, 818 F. Supp. 2d at 41-42). See

also AF Holdings, LLC v. Does 1-1,058, __ F.R.D.__, 2012 WL 3204917, at *13 (D.D.C. Aug.

6, 2012) (“[J]oinder at this stage in the proceedings is the single, most efficient mechanism

available for the plaintiff to obtain information to identify those allegedly illegally downloading

and distributing its movie.”).

As to the Doe No. 12’s argument that not severing him would prejudice or otherwise be

unfair to him, “the Court acknowledges that a risk of embarrassment exists for the ISP customers

who may become publically associated with the [a]lleged IP addresses,” as the copyrighted work

contains adult, and potentially pornographic, content. Patrick Collins, 2012 WL 4321718, at *5. 

This potential for embarrassment, however, does not outweigh Plaintiff’s statutory right to

protect its property interest in its copyright, id., and, at least at this point in the litigation, to do so

in a single suit against the 12 remaining Doe Defendants.3

 And that Defendants will present

different factual issues and legal defenses at a later stage of the litigation does not make joinder

inappropriate at the discovery stage; rather, “the commonality of legal claims at this time

supports joinder.” Third Degree Films, 2012 WL 669055, at *5 (citation omitted). 

At the same time, the Court is mindful of these concerns as well as the case law

suggesting that the litigation strategy Plaintiff has employed in this case has a history of

becoming abusive and potentially giving rise to sanctions under Rule 11. See, e.g., Sunlust

Pictures, 2012 WL 3717768, at *5-6 (recognizing that “plaintiffs in these types of cases might

unfairly threaten to disclose defendants’ identities in order to improperly leverage settlement

3

 For the same reasons, the Court declines, at this time, to order separate trials under Federal Rule of Civil

Procedure 20(b).

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negotiations”); Hard Drive Prods., 2012 WL 2196038, at *5-6 (discussing cases considering the

potentially abusive litigation tactics of adult film producers like Plaintiff here and cautioning the

plaintiff to think “long and hard” about whether naming the Doe defendant or otherwise moving

forward against him would comport with Rule 11(b) and its certification requirements); K-Beech,

Inc. v. Does 1-85, No. 3:11cv469-JAG, 2011 U.S. Dist LEXIS 124581, at *6-7 (E.D. Va. Oct. 5,

2011) (requiring Plaintiff in a similar case to show cause why its conduct did not violate Rule

11). As such, the Court remains open to reconsidering whether to sever Doe No. 12, and the

other Doe Defendants, at a later date. See Patrick Collins, 2012 WL 4321718, at *3 (stating that

“any Defendant can renew the Motion later if he or she later shows that joinder of him or her

would not promote judicial economy”); Third Degree Films, 2012 WL 669055, at *5 (noting that

the Doe defendants retained their ability to move for severance at a later stage of the litigation

and that the court may always sever the case sua sponte); Digital Sin, 279 F.R.D. at 244

(declining to sever the Doe defendants at that time, but leaving open the possibility of

reconsidering the issue later on); MGCIP, 2011 WL 2292958, at *2 (finding joinder proper at

this stage and noting that the individual defendants could raise the joinder issue again as named

parties). Now, however, Doe No. 12’s motion to sever will be DENIED.

V. CONCLUSION

For the foregoing reasons, the portions of Doe No. 12’s motion (Docket # 24) seeking to

sever him from the case and to quash the subpoena are DENIED.

SO ORDERED.

Enter for the 10th day of December, 2012.

S/Roger B. Cosbey

Roger B. Cosbey,

United States Magistrate Judge

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