When Is Joinder Proper? OR “Another Failure for Third Degree Films,” 8:12-cv-00023, TDF, v. Does 1-85, MD (Troll Mike Meiers)

Thanks SJD for tweeting about this recent ruling in which a Maryland judge double-tapped a Mike Meier’s case, 8:12-cv-00023-RWT, Third Degree Films, Inc., v. Does 1-85 (“Illegal Ass 2”).   Complaint_00023(MD)    Docket   I will give the main highlight from the ruling, but I really wanted to go over “Rule 20, PERMISSIVE JOINDER OF PARTIES.”

Cornell University Law School – Legal Information Institute (LII) – Rule 20   The LII is a great resource and they do accept tax-deductible donations – http://www.law.cornell.edu/donate

Rule 20 . Permissive Joinder of Parties

As stated by the judge, Rule 20 consists of a “Two Prong” test for its applicability. This means for Rule 20 to be correctly applied, “Both” parts of this test (A & B below) must be applied to the case and joined parties.

(2) Defendants. Persons—as well as a vessel, cargo, or other property subject to admiralty process in rem—may be joined 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.

Analysis

So for this case, Plaintiff claims 85 Doe defendants are properly joined because they allegedly downloaded/shared the same copyright protected movie file via BitTorrent.

Analysis of (A) – They key point to part (A) is that defendants CAN be joined if they ALL took part in the same transaction(s), act(s), incident(s), etc.

Analysis of (B) – They key point of (B) is there must be the same “Question of Law” or “Question of “Fact” that ties ALL the defendants to this case.

The judge (ROGER W. TITUS) ruled against joining all the defendants for the following reasons:

Because Plaintiff cannot satisfy the first prong of the permissive joinder test—i.e. that the infringement arises “out of the same transaction, occurrence, or series of transactions or occurrences”—the Court need not address the second prong of the permissive joinder test to evaluate whether any question of law or fact is common to all the Defendants. If Defendants are improperly joined, the Court “on motion or on its own … may at any time, on just terms … drop a party.” See Fed. R. Civ. P. 21. The Federal Rules make clear that “misjoinder of parties is not a ground for dismissing an action” in its entirety. Id.

The details of this ruling were based on these points:

  • The transactions of each Doe defendant is NOT related to one another
  • The only thing that is related is they All allegedly downloaded the exact same file during a set time period.
  • Plaintiff has NOT claimed ANY defendant shared file pieces directly with other defendants
  • Even if the public IP addresses of the Doe defendants ALL came from a single swarm, there is no evidence to suggest each of the public IP addresses acted in concert with All the other defendants
  • The time period (Oct – Dec 2012) of the alleged infringement activity DOES NOT lead one to believe ALL the Doe defendants took part in the same transaction.

Severed, Dismissed, & Protective Order

The judge dismissed all defendants except for Doe #1 and required any further action against Doe #1 be done under seal to prevent disclosure of personal information.

Well it isn’t a DC case, but it is very close. What was interesting and I bet helped the judge see reason was that fact that seven Doe defendants were represented by Eric Menhart, CyberLaw PC, Washington DC. I don’t know this judge, but I’m a firm believer that there is some legal snobbery in a vast majority of the courts. This snobbery makes it extremely hard for Pro Se defendants to be heard and actually taken seriously. This is no more apparent than when our good buddy John Steele comes to these Blogs just to ridicules our legal efforts and likens them to watching a handicapped child and laughing at them. Yes John Steele is one classy guy. As Plaintiff appears to have gotten settlements from seven Does, it doesn’t appear to be a total loss for them.

Yes they can still refile single case OR actually try to show which public IP addresses actually shared the movie file between them. I doubt that evidence was even recorded. I doubt they will do either of these. They will likely only make threatening overtures to Doe #1 and try to get him to pay out. As Doe #1’s personal information is now under protective seal, Meiers has lost the threat of exposure. Looks like the judge knows what you were going to do.

Hold out Doe #1, Mike Meiers will close down this case unless YOU make it easy for him.

DieTrollDie 🙂

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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7 Responses to When Is Joinder Proper? OR “Another Failure for Third Degree Films,” 8:12-cv-00023, TDF, v. Does 1-85, MD (Troll Mike Meiers)

  1. Sloop John D says:

    I gotta wonder just how much the judges talk to each other? I know that Maryland & DC are right next door, but I would think that they’re more worried about being the big fish in their little pond rather than seeing what all the other ponds are up to. Just an observation.
    It is up to us Does to file briefs including these sort of rulings so the courts are aware of each other’s actions. We can’t expect the EFF to file amicus curiae briefs in all of these cases.

  2. Raul says:

    Another great post which gives a breakdown of an area of law that is daunting but now is made understandable. Maryland is a battleground for these troll lawsuits with some judges finding joinder proper and Motz and Titus finding joinder improper. With so many of these lawsuits burdening the Maryland federal judiciary I think we will see more and more judges coming around to the view that joinder is improper. In the meantime both Judge Motz and Judge Titus have a few more troll lawsuits to dispose of.

  3. Raul says:

    In another Maryland case, Patrick Collins v. Does 1-70 (case no. 12-cv-350), Judge Messitte has 13 pending Doe Motions http://ia700808.us.archive.org/5/items/gov.uscourts.mdd.197401/gov.uscourts.mdd.197401.36.0.pdf and Judge Chasanow has 9 Doe motions in Patrick Collins v. Does 1-39 (case no. 12-cv-93). http://www.rfcexpress.com/lawsuits/copyright-lawsuits/maryland-district-court/87870/patrick-collins-inc-v-john-does-1-39/summary/ How these motions are decided will help determine whether the trolls pack up or extend their stay

  4. Doe says:

    Why does it matter that the Does lawyer was from DC? How is this judicial snobbery? I’m confused….do you believe the Maryland judge is less likely to listen to a Maryland attorney

    • DieTrollDie says:

      Not at all. The snobbery is against Pro Se (no lawyer) defendants. Many judges across the country give more weight to the words of a lawyer just because he is a lawyer – IMO. If the information provided by the Pro Se Doe is relevant, the court should not penalize the Does because he is a layman and fighting an uphill battle.

      DTD 🙂

  5. Raul says:

    What I find interesting about permissive joinder is that it rests largely within the discretion of the Judge. Judge A could find joinder proper because it promotes judicial economy and Judge B could find joinder improper because it causes a waste of judicial resources; both judges would be “right” (same thing about swarm theory of joinder). If a troll lawsuit immediately disgusts a judge he will either order the troll to show cause as why all Does but Doe1 should not be severed or sever Does when the troll moves for expedited discovery on the issue of joinder. If the judge is not immediatley disgusted then you see the severances on the issue of joinder come when MTQs are filed. If the judge is an idiot or a sadist there is not a severance on the issue of joinder. An excellent illustration of this is the Memorandum Opinion of MD Chief Judge Chasanow in Third Degree Films v. Does 1-108 (case no. 11-cv-3007) in which she explains how she evolved from thinking joinder was proper to thinking that joinder is improer in a troll lawsuit. http://ia600807.us.archive.org/6/items/gov.uscourts.mdd.195265/gov.uscourts.mdd.195265.40.0.pdf

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