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 Misjoin-der and Motion to Quash Plaintiffs 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.
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 unlawfully downloaded and shared this copyrighted work using the Bit-Torrent file sharing protocol. {See Compl. ¶¶ 10, 33.) According to the Complaint, Bit-Torrent 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 Bit-Torrent 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
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 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. (CompU 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 Em-barq 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,
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,
B. Standing
Although Plaintiff does not raise the issue, the Court will briefly address Doe No. 12’s standing to quash a subpoena to Com-cast, 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,
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,
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 TP subscribers are not necessarily copyright infringers’ ” because the infringer could be someone in the subscriber’s household, a visitor, a 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,
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.,
Furthermore, the case that Doe No. 12 relies on to support this argument, VPR Internationale,
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,
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 infring-ers 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,
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
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 be DENIED.
IV. THE MOTION TO SEVER
Along with his motion to quash, Doe No. 12 also moved to be severed from this ease 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)
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. l:08-CV-220,
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,
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 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.” Sun-lust Pictures,
At this stage of the litigation, Plaintiffs 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,
Moreover, based on Plaintiffs 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,
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,
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,
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,
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 [alleged IP addresses,” as the copyrighted work contains adult, and potentially pornographic, content. Patrick Collins,
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., Sun-lust Pictures,
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.
Notes
. 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.
. 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).
. For the same reasons, the Court declines, at this time, to order separate trials under Federal Rule of Civil Procedure 20(b).