Malibu Media, LLC v. Does 1-11
286 F.R.D. 113
D.D.C.2012Background
- Malibu Media, LLC sues 11 Does alleging copyright infringement via BitTorrent downloads of the Movie; does 1–11 identified by IP addresses only.
- Court granted in part the plaintiff's subpoena to ISPs; subscribers to be notified at least 10 days before disclosure of identifying info.
- Doe 7 moves to dismiss or sever for misjoinder; plaintiff opposes.
- The case analyzes Rule 20(a) permissive joinder and Rule 21 severance standards.
- Court adopts the swarm-joinder criticism and concludes plaintiff failed to allege concerted action among Does 2–11.
- Court grants Doe 7’s motion to dismiss Does 2–11 without prejudice for improper joinder under Rule 21.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Does 2–11 were improperly joined under Rule 20(a). | Malibu alleges concerted action via swarm participation. | Doe 7; no concerted action among Does 2–11. | Yes; improper joinder; severance and dismissal granted. |
| Whether swarm joinder is a permissible basis for joining multiple Does. | Swarm theory shows concerted data exchange among peers. | Swarm theory not adequately alleged. | Rejected; swarm joinder not sufficient to join all Does. |
Key Cases Cited
- Maverick Entm’t Grp., Inc. v. Does 1–2, 810 F. Supp. 2d 1 (D.D.C. 2011) (liberal Rule 20(a) joinder standard; concerted action required)
- Hard Drive Prods., Inc. v. Does 1–188, 809 F. Supp. 2d 1150 (N.D. Cal. 2011) (swarm theory rejected; joinder improper without concerted action)
- United States v. Mississippi, 380 U.S. 128 (Sup. Ct. 1965) (joinder requires concerted action within a system; distinguish digital downloads)