Opinion
No. 5:11-CV-381-BO
06-11-2012
K-BEECH, INC., Plaintiff, v. JOHN DOE 37 AND ROBERT JENKINS, JR., Defendants.
ORDER
This matter is before the Court on John Doe 37's Motion to Quash or Modify Subpoena [DE 37]. Plaintiff responded on March 19, 2012 [DE 39]. John Doe 37 did not reply and the Motion is now ripe for adjudication.
BACKGROUND
Plaintiff filed this action on July 21, 2011, alleging direct and contributory copyright infringement of a motion picture for which it owns the copyright, "Gang Bang Virgins," in violation of the Copyright Act of 1976, 17 U.S.C. §§ 101, et seq. Plaintiff alleges that Defendants used BitTorrent, a peer-to-peer file sharing protocol, to upload and download Plaintiff's copyrighted work. As relief, Plaintiff seeks a permanent injunction against infringement of its copyrighted work, a court order directing each Defendant to delete and permanently remove the torrent file and copyrighted work from each of his computers, a court order of joint and several liability, and an award of attorneys' fees and costs.
Plaintiff claims to know the Internet Protocol address ("IP address") of each infringing Defendant, but not Defendants' real names, addresses, or identifying information. This information is possessed by the Internet Service Provider ("ISP") that serves each IP address. Therefore, Plaintiff has served subpoenas on Defendants' ISPs.
On February 27, 2012, Defendant John Doe 37 filed the instant Motion to Quash or Modify Subpoena, alleging that Plaintiff has improperly joined 39 individual defendants based on disparate alleged acts. He asserts that the Court should sever the defendants and "drop" him from the case pursuant to Federal Rule of Civil Procedure 21, as a remedy for the Plaintiff's alleged misjoinder. John Doe 37 also challenges the identification method used by Plaintiff to identify his IP address, seeks to have Plaintiff divulge its "settlement methods," and argues that Plaintiff has a history of extorting money and is using this lawsuit to "shake down" Defendants. Based on the content of John Doe 37's motion, and in keeping with liberal construction of pro se filings, this Court interprets the motion as a Motion to Quash as well as a Motion to Sever and denies both forms of requested relief. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); cf. Fed. R. Civ. P. 8(e)("Pleadings must be construed so as to do justice.")
Although Defendant's Motion is styled as a Motion to Quash, it is also a Motion to Sever.
DISCUSSION
Motion to Quash
"Ordinarily, a party does not have standing to challenge a subpoena issued to a nonparty unless the party claims some personal right or privilege in the information sought by the subpoena." United States v. Idema, 118 F. App'x 740, 744 (4th Cir. 2005) (per curiam) (unpublished); see Fed. R. Civ. P. 45(c)(3)(A)(iii). Although Plaintiff alludes to a privacy interest in his identifying information [DE 38 at 5], this Court agrees with the reasoning of the District of Maryland, which notes that "individuals who use the Internet to download or distribute copyrighted works are engaged in only a limited exercise of speech and the First Amendment does not necessarily protect such persons' identities form disclosure." CineTel Flims, Inc. v. Does 1-1,052, No. JFM 8:11-CV-02438, 2012 WL 1142272, at *8-10 (D. Md. Apr. 4, 2012). Having already shared his personal identifying information with his ISP, John Doe 37 cannot now assert a reasonable expectation of privacy in this information to quash this subpoena. See United States v. Hambrick, No. 99-4793, 2000 WL 1062039, at *4 (4th Cir. 2000).
Motion to Sever
Federal Rule of Civil Procedure 20(a)(2) provides that defendants may be joined in a single action if (1) "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 (2) "any question of law or fact common to all defendants will arise in the action." This test requires that claims asserted against joined parties must be "logically related." Disparte v. Corporate Exec. Bd., 223 F.R.D. 7, 10 (D.D.C. 2004).
At this early stage of litigation, Plaintiff has sufficiently alleged that the infringing activity of both remaining Defendants is logically related. As described in the amended complaint [DE 22], in order to receive and download files, a BitTorrent user must also share files. BitTorrent operates by breaking files up into hundreds of digital "pieces." As soon as a user has one piece of a file, it can begin sharing that piece with other users. The users who are sharing the same copy of a file constitute a "swarm." Investigators are able to identify the IP addresses associated with a given file copy, which is in turn identified by a unique "hash number." Plaintiff argues that joinder is proper because (1) long-arm and venue are proper, (2) more than one of the unique "hash numbers" was included in the lawsuit, and (3) the complaint specifically alleges how BitTorrent works. Because each Defendant is a possible source for Plaintiff's motion picture, and may have shared the motion picture with the other Defendant, permissive joinder is appropriate at this stage. Further inquiry into whether Plaintiff's claims against the two remaining Defendants are sufficiently logically related is premature "without first knowing Defendants' identities and the actual facts and circumstances associated with Defendants' conduct." Call of the Wild Movie, LLC v. Does 1-1,062, 770 F. Supp.2d 332, 343 (D.D.C. 2011) (citing Arista Records LLC v. Does 1-19, 551 F. Supp. 2d 1, 11-12 (D.D.C. 2008)), Defendant John Doe 37 may later be able to rebut the propriety of joinder in this case, but the Court holds that severance would be premature at this stage.
CONCLUSION
For the foregoing reasons, Defendant John Doe 37's Motion to Quash or Modify Subpoena [DE 37] is DENIED WITHOUT PREJUDICE, with permission to refile if subsequent discovery reveals that there is not a common transaction or occurrence between Defendants John Doe 37 and Mr. Robert Jenkins, Jr.
SO ORDERED. This 11 day of June, 2012.
/s/_________
TERRENCE W. BOYLE
UNITED STATES DISTRICT JUDGE