Judge Patricia A. Seitz issued an Omnibus Order in Aerosoft GMBH v. Does 1-50, 1:12-cv-21489-PAS (S.D. Fla.) severing and dismissing John Does 2-50 from the lawsuit because of misjoinder. This ruling is consistent with the Judge’s prior orders severing John Doe Defendants in Bubble Gum Productions v. Does 1-80, 1:12-cv-20367-PAS (S.D. Fla. 7/19/12) and Sunlust Pictures, LLC v. Does 1-120, 1:12-cv-20920-PAS (S.D. Fla. 7/24/12)
The Order’s discussion begins with a lengthy quote in Bubble Gum Productions setting forth its reasoning for why use of the BitTorrent protocol to download the same video does not in and of itself support joinder of defendants and that consideration of fundamental fairness and judicial economy favor severance. Next, the court addressed the Plaintiff’s two arguments in opposition of severance; specifically, that (1) it was premature to raise the issue of misjoinder, and (2) joinder was appropriate because the pieces of the video obtained from each Defendant could be aggregated into a complete copy of the work.
Many district courts have accepted the copyright trolls’ argument that John Doe defendants lack standing to raise the issue of misjoinder because they have not been named and served in the lawsuit. Judge Seitz, however, rejected the Plaintiff’s attempt to frame the John Doe Defendants as non-parties.
“The Court finds [Plaintiff’s] argument specious. First, the Complaint names and makes allegations against Does 1-50. Further, in Exhibit A, Plaintiff identifies each of the Does by IP address. Thus, Plaintiff has identified each Doe. There is no indication that the Plaintiff did not intend to proceed against all fifty Does once Plaintiff obtained more specific identifying information. Consequently, contrary to Plaintiff’s assertion, the Does have been named in this action and are currently Defendants in this action. Therefore, the motions are not premature.”
Judge Seitz then addressed the Plaintiff’s argument that the Doe Defendants were involved in the same transaction or series of transactions. The court highlighted the Plaintiff’s allegation that the Defendants had each entered the BitTorrent swarm at different times and on different dates over a six-week timeframe. It also noted that Plaintiff had failed to allege that the pieces downloaded from each Defendant were compiled into a single copy of the work, and that Plaintiff had failed to allege that the Does acted in concert or that they shared pieces of the work with each other. Eloquently summarized:
“To argue that the Does acted together in the same transaction involving ‘the data flow from Does to SKB logger’ would be equivalent to arguing that all bank depositors acted together in the same transaction in the flow of money into the bank.”