GA Judge Severs Does 2-63 (1:11-CV-02941-CAP / K-Beech) and Kills “Swarm Joinder Theory”

Hello All!  A nice reader passed along some information he thought I might enjoy.  It deals with Case # 1:11-CV-02941-CAP, K-Beech v. Does 1-63, Law Firm: Knight Johnson, LLC (Troll Bryan M. Knight) , filed 1 Sep 11.  The complaint is the standard poor looking K-Beech template (see below).  Complaint_1Sep11_02941(GA)    5Dec11_SeverOrder_02941(GA)

On 15 Nov 11, Two Does filed Motions to Server and the Troll filed Responses to these Motions on 29 Nov 11.  The Judge (Judge Charles A. Pannell, Jr.) was not too impressed with the Trolls long-winded response and stated he would not even consider Plaintiff’s memorandum, as he (Troll) exhausted his page limit in responding.  🙂 

The court does mention what this Troll has been up to in this jurisdiction.

The court also notes that the plaintiff’s counsel filed three other, nearly identical cases on (essentially) the same day that are currently pending before this court, including one filed on behalf of the same plaintiff: K-Beech, Inc. v. John Does 1-47, 11-cv-2968-WSD (N.D. Ga. filed Sept. 2, 2011); Raw Films, Inc. v. John Does 1-32, 11-cv-2939-TWT (N.D. Ga. filed Sept. 1, 2011); Patrick Collins, Inc. v. John Does 1-35, 11-cv-2940-RWS (N.D. Ga. filed Sept. 1, 2011).

The judge went on to say this case is part of an “Outbreak of similar litigation… around the country,” where the Plaintiffs join multiple Does in a single action, based on the Does taking part in a BitTorrent swarm (AKA: Swarm Joinder Theory).   

The facts here demonstrate why the swarm joinder pleading tactic is not appropriate in this action. The differing dates and times of each defendant’s alleged sharing do not allow for an inference that they were acting in concert. While the defendants may have used the same peer-to-peer system, the complaint does not allege they were sharing with each other. For example, Doe 23, who is alleged to have been in the swarm on April 15, 2011, is unlikely to have been in the swarm at the same time as Doe 20, who alleged to have been in the swarm on July 18, 2011–an almost three month span that is even longer than the six-week span in Hard Drive Productions cited above.

The judge states Plaintiff has not adequately alleged Doe defendants engaged in a common series of transactions as required by Rule 20, and joinder is not proper.  He further determined that because of this and the the variety of defenses likely to be raised by Doe defendants, joinder would not result in judicial economy.    

The judge granted the Motion to sever for both Doe Defendants.  Doe defendants 2-63 were severed from the case and the claims against them were dismissed without prejudice.  He also required that if Plaintiff wishes to refile against Does 2-63 individually, he must note that these Does are “related” to this case/action. 

It seems that K-Beech and Patrick Collins cases have been taking some good hits recently.  A bit of an early Christmas present for the Does in this case.  Yes I know they can still be refile against.  I can hear John Steele telling us how “Pyrrhic” this victory would be if it was his case.  I really doubt the Troll wants to file against the Does in this jurisdiction.  The Troll will have to inform the court they are “related” to this action.  Any new judge is going to read this order, as well as speak with Judge Pannell. 

DieTrollDie  🙂

“Some ships are designed to sink…  others require our assistance.”  

About DieTrollDie

I'm one of the many 'John Does' (200,000+ & growing in the US) who Copyright Trolls have threatened with a civil law suit unless they are paid off. What is a Copyright Troll? Check out the Electronic Frontier Foundation link - http://www.eff.org/issues/copyright-trolls
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12 Responses to GA Judge Severs Does 2-63 (1:11-CV-02941-CAP / K-Beech) and Kills “Swarm Joinder Theory”

  1. anon says:

    Why do I have the feeling that these so-called “IP Attorneys” are purchasing these lists of John Does from either, 1)The Plaintiff/studio or 2)One of the German groups.

    It is also pretty obvious they are all using the same boiler plate complaints…

    These two guys are barely out of law school

  2. Doette says:

    This is a beautiful thing.

  3. John D'oh says:

    I love it. I hate it for John Doe 1 but at least these guys won’t get to the others…at least not without lots of trouble and money. I also love the same lousy screen shot of the ip addresses that they all use. Thanks for posting.

  4. Raul says:

    It seems to me that the K-Beech and Patrick Collins kamikaze approach to litigating these cases is doing all the John Does a favor insofar as their Three Stooges approach only serves to highlight the absurdity of the Troll claims, as a group, and the alleged rational behind the lawsuits in general (not protecting a profitable business model but, rather, protecting a First Amendment protected and besieged industry). I noticed that Patrick Collins has filed in August of this year in the Southern District of New York a complaint premised on yet another unregistered non copyrighted DVD entitled “Gangbanged” by the same Troll lawyer who has had his previous efforts in this regard tabled in the Eastern District of New York for having no viable cause of action (no copyright=no third party subpoenas pursuant to FRCP Section 26(d)(1)) and yet he continues to try to mine this frivolous (in my opinion) area of bullshit alleged copyright infringement. I am hoping for a Eastern District of Virginia form of rejection of this RICO like nonsense (IMHO this Troll needs to wake up and smell the Rule 11 sanctions).

  5. CTVic says:

    Well wouldja look at that?!? Another judge wakes up and smells the spam sitting on his desk. Keep em coming, judges! Let’s set some precedent!

  6. Raul says:

    The order references an earlier Order and Opinion rendered by the Honorable William S. Duffy, Jr., in the Northern District of Georgia in a case entitled K-Beech, Inc., v. John Does 1-47(11-cv-2968). In that case, plaintiff moved for leave to serve third party subpoenas and the court, on its own initiative, severed Does 2-47 and issued a protective order with respect to John Doe 1. The Judge notes in footnote 6 that:

    “The market value of a work like the one in this case is modest. The danger of swarm joinder is to enhance the proceeds from a Work be extracting settlement amounts that exceed the value of the work and the litigation. It is conceivable that the swarm joinder device could encourage the creatioin of works not for their sales or artistic value, but to generate litigation and settlements.”

    • DieTrollDie says:

      Love that quote! Raul, can you post it to SCRIB or at least send be a copy of the original document? Another great one to add to a motion and/or declaration.

      DieTrollDie 🙂

      • Raul says:

        I’m sorry but I am not that tech savvy; however, the case is simple to locate on PACER The RFC Express link is here http://www.rfcexpress.com/lawsuits/copyright-lawsuits/georgia-northern-district-court/81239/k-beech-inc-v-john-does-1-47/summary/

      • Raul says:

        By the way the entire Order and Decision contains many judicial findings that, in my non lawyer opinion, would be extremely helpful to a MTQ such as, while discussing the need for a protective order,:

        “… the Court, in a case involving alleged copyright infringement of graphic pornographic material, is obligated to carefully manage and control discovery. BitTorrent mass copyright actions are now common. The potential for litigation abuse is real, and it is necessary to carefully control the discovery process.”

        There are some other great chestnuts in the Opinion and Order and I am sorry that I do not possess the know how to upload it to your site but anyone putting together a MTQ should read this Opinion and Order as it is potentially dispositive.

  7. Raul says:

    Yet another pro Doe Order issued on 12-19-11(early Christmas present!) from the United States District Court for the Northern District of Georgia entitled Patrick Collins v. John Does 1-35 (1:11-CV-2940-RWS). Judge Richard W. Story say the Court:

    finds persuasive the opinion of its colleague, Judge William S. Duffey in
    K-Beech, Inc. v. John Does 1-47, Case No. 1:11-CV-2968-WSD (September
    30, 2011 N.D. Ga.). Under similar factual circumstances, Judge Duffey found
    that joinder is not appropriate. In the present case, the dates on which
    Defendants were alleged to have been involved in the swarm ranged from May
    18, 2011 to July 19, 2011. Based on this range of dates, it is unlikely that all
    the Defendants were acting in concert. Moreover, the Defendants are likely to
    have very different and divergent defenses to the alleged copyright violations.
    Requiring that these be asserted in a single case would not enhance judicial
    economy.
    The Court concludes that Plaintiff has not adequately alleged that the
    Defendants were involved in a common series of transactions as required by
    Rule 20. Therefore, joinder is not proper.

    The Order can be found here https://ecf.gand.uscourts.gov/doc1/05515499377

    Methinks that the sunshine in Georgia is beginning to get too bright for the trolls to conduct business as usual.

  8. Manny says:

    I am one of the does. For the movie the company you keep. I am located in Illinois. What do you think I should do?

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