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LHF Productions Inc. v. Doe

United States District Court, E.D. Virginia, Richmond Division

December 22, 2016

LHF PRODUCTIONS, INC., Plaintiff,
v.
JOHN DOES 1-24, Defendants.

          MEMORANDUM OPINION

          M. Hannah Lauck Judge.

         This matter comes before the Court on four motions: (1) the Second Motion to Extend Time Pursuant to Federal Rule of Civil Procedure 4(m) (the "Second Motion to Extend Time") filed by Plaintiff LHF Productions, Inc. ("LHF"), (ECF No. 8); (2) the Motion for Discovery to Take Pre-Conference Depositions (the "Motion for Discovery") filed by LHF, (ECF No. 9); (3) the Third Motion to Extend Time Pursuant to Federal Rule of Civil Procedure 4(m) and Notice of First Amended Complaint (the "Third Motion to Extend Time") filed by LHF, (ECF No. 11); and, (4) the Motion of Plaintiff for Leave to File Second Amended Complaint (the "Motion for Leave to File") filed by LHF, (ECF No. 12). The Court exercises jurisdiction pursuant to 28 U.S.C. § 1338(a).[1] The Court dispenses with oral argument because the materials before it adequately present the facts and legal contentions, and argument would not aid the decisional process.

         For the reasons that follow, the Court will: (1) order LHF to file a First Amended Complaint within fourteen (14) days of entry of this Memorandum Opinion and Order; (2) sever and dismiss without prejudice all defendants except the first named defendant; (3) quash any subpoenas issued pursuant to its May 26, 2016 Order, (ECF No. 5), to the extent the subpoenas pertain to any defendants other than the first named defendant; (4) deny as moot the Second Motion to Extend Time, (ECF No. 8), (5) deny as moot the Motion for Discovery, (ECF No. 9); (6) grant LHF's Third Motion to Extend Time, (ECF No. 11), only to the extent it pertains to the first named defendant; and, (7) deny as moot the Motion for Leave to File, (ECF No. 12).

         I. Factual and Procedural Background

         A. Allegations in the Complaint

         On May 13, 2016, LHF filed its Complaint for Copyright Infringement against John Does 1-24 in this Court.[2] (ECF No. 1.) The Complaint listed 24 John Doe defendants ("the Defendants"), identified by their Internet Protocol ("IP") addresses, who had allegedly infringed on LHF's copyrighted work, the motion picture London Has Fallen ("the Movie"), in violation of the United States Copyright Act, 17 U.S.C. §§ 101, et seq. To establish personal jurisdiction in this District, LHF used "geolocation technology" to trace the IP addresses of all the Defendants to a point of origin within this District.

         The Complaint alleges that, using a network called a "BitTorrent protocol" ("BitTorrent"), the Defendants "reproduced, distributed[, ] and offered to distribute" the Movie without LHF's consent or permission. (Compl. 2-3.) The Defendants' alleged use of BitTorrent occurred over the span of nine days: March 8, 2016, to March 17, 2016. LHF contends that BitTorrent differs from a Peer-to-Peer protocol in that it facilitates data-sharing among individuals and "makes even small computers with low bandwidth capable of participating in large data transfers." (Id. at 2.) In BitTorrent, the initial shared file is called a "seed, " and other users on the network are called "peers." When peers connect to the network and request the seed, they receive different pieces of the seed data from other peers who have already downloaded the file. Each peer thus "becomes a part of the network from which the file can be downloaded." (Id.) This group of peers is called a "swarm." LHF claims that with BitTorrent, "every downloader [is] also an uploader" of the shared file, and every member of a swarm serves as a source for the seed file, so long as the member remains online at the time other peers download the file. (Id. at 2-3.) Furthermore, "because of the nature of the swarm downloads ... every [peer] is [downloading seed data] from many [ISPs] in numerous jurisdictions." (Id. at 3.) Uploading one seed file to a BitTorrent network "can result in nearly instantaneous worldwide distribution of that single [file] to a limitless number of people." (Id.)

         LHF asserts that "each Defendant deliberately participated in a swarm and/or reproduced and/or distributed the same seed file" of the Movie, and thereby "participated in a collective and interdependent manner with other Defendants" to infringe LHF's copyright. (Id. at 5-6.) LHF states that because all the Defendants participated in the "same swarm" using BitTorrent, all the Defendants participated in the "same transaction, occurrence[, ] or series of transactions or occurrences as the other Defendants in the swarm." (Id. at 6.) LHF seeks declaratory, injunctive, and monetary relief.

         On May 19, 2016, LHF filed a Motion for Leave to Serve Third Party Subpoenas in order to ascertain the identities of the John Doe defendants associated with the IP addresses. LHF sought leave to serve limited discovery on the Internet Service Providers ("ISPs") from which the Defendants obtain Internet access in order to determine the Defendants' identities. On May 26, 2016, the Court granted LHF's Motion and allowed LHF to serve subpoenas under Federal Rule of Civil Procedure 45[3] seeking "information sufficient to identify each defendant, including name, address, telephone number, email address, and Media Access Control address." (Order 2.)

         B. LHF's Second Motion to Extend Time

         On October 6, 2016, LHF filed the Second Motion to Extend Time, requesting the Court to extend time to serve the Defendants because "[t]he process of identifying likely infringers is continuing and LHF expects to complete that process by November 30, 2016." (Mot. Extend Time 2.) LHF asked for an extension of sixty days "to complete depositions for identification purposes, joinder, and service of the defendants of this case." (Id.)

         C. LHF's Motion for Discovery

         Also on October 6, 2016, LHF filed the Motion for Discovery, requesting that the Court "grant[] it leave to take depositions prior to a Rule 26(f) conference...." (Mot. Disc. 1.) In support of the Motion for Discovery, LHF asserts, inter alia, that: (1) good cause exists to grant the motion; (2) LHF seeks limited and specific discovery; (3) no alternative means exists to learn Defendants' identities; and, (4) LHF's interest in knowing Defendants' identities outweighs Defendants' interests in remaining anonymous. (Id. at 5-8.) LHF requests the Court's permission to "take depositions of certain IP address assignees in order to attempt to determine the true name and address of each Doe Defendant." (Id. at 10.) LHF alleges that "[w]ithout this information, LHF cannot properly move its lawsuit forward ...." (Id.)

         D. LHF's Third Motion to Extend Time

         On December 7, 2016, LHF filed the Third Motion to Extend Time, requesting another extension of time to serve the Defendants. LHF included a "Notice of Filing of Amended Complaint" in the Third Motion to Extend Time and attached the "First Amended Complaint, " which included named defendants, to the Motion as an exhibit. The Third Motion to Extend requests until January 6, 2017, to serve the "name[d] IP address holders that have not settled." (Mot. Extend 1 (emphasis added).) LHF asserts that "good cause ... exists in terms of the time required for obtaining summons and serving the named defendants, " and requests additional time "to complete settlements where possible and service of others that do not settle." (Id. at 2 (emphasis added).)

         E. LHF's Motion for Leave to File

         On December 20, 2016, LHF filed the Motion for Leave to File, requesting leave to further amend its proposed "First Amended Complaint" and file a Second Amended Complaint. (Mot. Leave File 2.) LHF states that after obtaining the identities of people assigned the IP addresses associated with the alleged infringement, "LHF made a good faith effort to identify actual infringers and seek settlement with each person identified by the subpoenaed information." (Id. at 2 (emphasis added).) LHF requests this Court's permission to amend its "First Amended Complaint" to correct "clerical errors" in that proposed filing. (Id.) These inaccuracies included LHF "erroneously includ[ing]" a person-in a proposed public document-as an infringer whom LHF had "verified as a non-infringer." (Id.) Such substantive blunders cause the Court grave concern.

         II. LHF May File Its First Amended Complaint as a Matter of Right

         Federal Rule of Civil Procedure 15(a)(1)(A) permits a party to amend its pleading once as a matter of course within 21 days after serving it. Fed.R.Civ.P. 15(a)(1)(A).[4] LHF filed its "Notice of Amended Complaint" before any Defendants had been served. Therefore, Rule 15(a)(1)(A) permits LHF to file an amended complaint as a matter of course. The Court will order LHF to file an amended complaint.[5]

         III. The Court Will Sua Sponte Sever All Defendants Except ...


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