Case 2:16-cv-01918-JAD-NJK Document 58 Filed 10/23/17 Page 1 of 22
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF NEVADA
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`LHF Productions, Inc.,
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`2:16-cv-01918-JAD-NJK
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`Plaintiff
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`v.
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`Derrick Boughton, et al.,
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`Defendants
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`Order Adopting in Part and Report
`and Recommendation; Granting in
`Part and Denying in Part Motion for
`Default Judgment; and Closing Case
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`[ECF Nos. 47, 55]
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`This is one of several essentially identical cases filed by plaintiff LHF
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`Productions, Inc., in which LHF sues many unidentified Doe defendants—under a
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`single filing fee—for separately infringing its copyright in the film “London Has
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`Fallen” by using BitTorrent software. LHF’s practice in these cases is to move for
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`expedited discovery to identify the defendants, and then systematically dismiss the
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`defendants after failing to serve them or settling with them.1 Magistrate Judge
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`Nancy Koppe recommends that I sever and dismiss all claims against all defendants
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`other than defendant Derrick Boughton for improper joinder and in the interests of
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`judicial economy and case management.2 LHF objects to the recommendation,
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`arguing that the defendants were properly joined under Federal Rule of Civil
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`Procedure 20(a)(2), and that mass joinder—“swarm joinder” as it is called in the
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`BitTorrent-defendant context—better serves the economic and efficiency interests of
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`the parties and the court.3 After a full review of the report and recommendation,
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`1 See LHF Productions, Inc. v. Kabala, 2:16-cv-02028-JAD-NJK; LHF Productions,
`Inc. v. Buenafe, 2:16-cv-01804-JAD-NJK; LHF Productions, Inc. v. Smith, 2:16-cv-
`01803-JAD-NJK; LHF Productions, Inc. v. Wilson, 2:16-cv-02368-JAD-NJK.
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`2 ECF No. 47.
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`3 I find these matters suitable for disposition without oral argument. L.R. 78-1.
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`Case 2:16-cv-01918-JAD-NJK Document 58 Filed 10/23/17 Page 2 of 22
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`and LHF’s objection and exhibits, and an exhaustive review of the case law, I agree
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`with the magistrate judge’s recommendation and overrule LHF’s objection.4
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`LHF also moves for default judgment against the remaining defendants,
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`requesting $15,000 in statutory damages, $7,550 in attorney’s fees and costs, and a
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`permanent injunction against each defendant. I deny the motion as moot in part
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`because I sever and dismiss all but one of the defendants from this case, but I grant
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`the motion against un-severed defendant Boughton.
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`Background
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`These copyright-infringement swarm-joinder cases against users of
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`BitTorrent software have significantly increased in popularity nationwide in the
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`past five years with some plaintiffs filing against thousands of defendants in a
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`single action,5 other plaintiffs filing against defendants in groups of roughly
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`10–1006, and at least one plaintiff filing over one thousand cases against individual
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`defendants.7 The defendants are discovered and targeted by their internet provider
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`(IP) addresses, which register on the BitTorrent tracker when they download the
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`plaintiff’s film. Safety Point Products, LLC v. Does describes the BitTorrent
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`protocol well:
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`4 I do not, however, share the magistrate judge’s characterization of the state of the
`law, and I do not decide whether swarm joinder satisfies Rule 20(a)(2). So,
`although I do not adopt those portions of the report, I agree with—and adopt—its
`ultimate recommendation.
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`5 See, e.g., Nu Image, Inc. v. Does 1–3,932, 2012 WL 1890854 (M.D. Fl. May 10,
`2012); Entertainment v. Does 1–1,427, 2012 WL 12897376 (E.D. Tex. Mar. 16,
`2012).
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`6 See, e.g., Combat Zone Corp. v. Does 1–192, 2012 WL 12897164 (S.D. Tex. Oct. 12,
`2012); Sunlust Pictures, LLC v. Does 1–75, 2012 WL 3717768 (N.D. Ill. Aug. 27,
`2012); Patrick Collins, Inc. v. John Does 1–54, 2012 WL 911432 (D. Ariz. Mar. 19,
`2012).
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`7 See Malibu Media, LLC v. Doe, 2013 WL 6579338, at *4 n.4 and corresponding
`text (E.D. Wis. Dec. 12, 2013).
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`Case 2:16-cv-01918-JAD-NJK Document 58 Filed 10/23/17 Page 3 of 22
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`BitTorrent is a program that enables users to share files
`via the internet. Unlike other “peer-to-peer” (P2P) file
`sharing networks that transfer files between users or
`between a user and a central computer server, BitTorrent
`allows for decentralized file sharing between individual
`users who exchange small segments of a file between one
`another until the entire file has been downloaded by each
`user. Each user that either uploads or downloads a file
`segment is known as a “peer.” Peers that have the entire
`file are known as “seeds.” Other peers, known as
`“leeches” can simultaneously download and upload the
`pieces of the shared file until they have downloaded the
`entire file to become seeds.
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`Groups of peers that download and upload the same file
`during a given period are known as a “swarm,” with each
`peer being identified by a unique series of alphanumeric
`characters known as “hashtag” that is attached to each
`piece of the file. The swarm’s members are relatively
`anonymous, as each participant is identifiable only by her
`Internet Provider (IP) address. Overseeing and
`coordinating the entire process is a computer or server
`known as a “tracker” that maintains a record of which
`peers in a swarm have which files at a given time. In
`order to increase the likelihood of a successful download,
`any portion of the file downloaded by a peer is available to
`subsequent peers in the swarm so long as the peer
`remains online.
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`But BitTorrent is not one large monolith. BitTorrent is a
`computer protocol, used by various software programs
`known as “clients” to engage in electronic file-sharing.
`Clients are software programs that connect peers to one
`another and distributes data among the peers. But a
`peer’s involvement in a swarm does not end with a
`successful download. Instead, the BitTorrent client
`distributes data until the peer manually disconnects from
`the swarm. It is only then that a given peer no longer
`participates in a given BitTorrent swarm.8
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`LHF alleges that its film has been pirated by BitTorrent users 79,404,331
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`times worldwide, 16,799,795 times in the United States, and 113,962 times in
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`Nevada.9 Of those 113,962 alleged infringers, LHF identified the 1–2% most
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`8 Safety Point Products, LLC v. Does, 2013 WL 1367078, at *1 (N.D. Ohio Apr. 4,
`2013) (internal citations omitted).
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`9 ECF No. 51-1 at 8.
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`Case 2:16-cv-01918-JAD-NJK Document 58 Filed 10/23/17 Page 4 of 22
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`egregious offenders and filed suit against them in sets of 10–30 Does per case.10
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`Once those 10–30 Does in each case are identified, LHF somehow narrows them
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`down even further to 10 or fewer, and then, allegedly, to the extent that any
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`defendant raises a distinct defense or cause of action, that defendant would be
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`severed into a separate cause of action.11 LHF claims that this process “is designed
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`to impose the least expense on all parties involved—including the Court.”12 LHF
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`brought this particular case against 18 initially unidentified defendants. After
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`learning their identities, LHF amended its complaint against 11 named defendants,
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`and then LHF proceeded to dismiss them from the case.13 Only five defendants now
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`remain: Derrick Boughton, Jose Gallego, Tom Gyarfas, Daniell Templeton, and
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`Kristina Walsh.
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`A.
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`Standard of review
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`Discussion
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`When a party objects to a magistrate judge’s findings and recommendations,
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`a district court judge must “make a de novo determination of those portions of the
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`report or specified proposed findings or recommendations to which objection is
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`made.”14 The district court judge “may accept, reject, or modify in whole or in part,
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`the findings or recommendations made by the magistrate.”15
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`10 Id. at 9.
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`11 Id.
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`12 Id.
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`13 See generally docket report case 2:16-cv-01918-JAD-NJK.
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`14 U.S. v. Reyna-Tapia, 328 F.3D 1114, 1119 (9th Cir. 2003) (quoting 28 U.S.C. §
`636(b)(1)(C) and also citing to Fed. R. Civ. P. 72).
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`15 Id.
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`Case 2:16-cv-01918-JAD-NJK Document 58 Filed 10/23/17 Page 5 of 22
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`B.
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`The swarm-joinder split of authority
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`Joining multiple John/Jane Doe participants in a BitTorrent swarm into a
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`single action is commonly referred to as “swarm joinder.”16 Because the defendants
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`are initially unidentified, the plaintiff files an ex parte motion for expedited
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`discovery to subpoena internet service providers (ISPs) for the names and addresses
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`of defendants associated with specified IP addresses. The motion raises two issues:
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`(1) whether the defendants are properly joined; and (2) whether the court should
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`permit the expedited discovery.17 “Courts have dealt with the issue in several ways:
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`denying the discovery requests, severing all but the first Doe defendants, delaying
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`the severance decision until after the Does have been identified, or approving both
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`joinder and pre-service discovery.”18
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`The procedural posture of this case tracks the delay-severance-decision
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`option. Magistrate Judge Koppe granted LHF’s expedited discovery requests,19 and
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`then she ordered LHF to show cause why the identified defendants shouldn’t be
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`16 See, e.g., Glacier Films (USA), Inc. v. Turchin, 2016 WL 4251581, at *1 n.1 (D. Or.
`Aug. 10, 2016); Malibu Media, LLC v. Reynolds, 2013 WL 870618, at *12 (N.D. Ill.
`Mar. 7, 2013); Patrick Collins, Inc. v. John Does 1 through 34, 2013 WL 593445, at
`*2 (S.D. Cal. Feb. 13, 2013).
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`17 See Riding Films, Inc. v. John Does I–CCL, 2013 2152552, at *1 (D. Ariz. May 16,
`2013).
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`18 Id.; see also Pac. Century Int’l, Ltd. v. Does 1–101, 2011 WL 5117424, at *2 (N.D.
`Cal. Oct. 27, 2011) (denying request to issue subpoenas); SBO Pictures, Inc. v. Does
`1–3036, 2011 WL 6002620, at *3–4 (N.D. Cal. Nov. 30, 2011) (severing all but the
`first Doe defendant and allowing discovery for him alone); AF Holdings, LLC v.
`Does 1–97, 2011 WL 2912909 (N.D. Cal. July 20, 2011) (denying discovery request
`and declining to sever); Camelot Dist. Grp. v. Does 1–1210, 2011 WL 4455249 (E.D.
`Cal. Sept. 23, 2011) (allowing discovery and delaying the question of severance);
`Openmind Solutions, Inc. v. Does 1–39, 2011 WL 4715200, at *5–8 (N.D. Cal. Oct.
`7, 2011) (approving both joinder and pre-service discovery).
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`19 ECF No. 6.
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`Case 2:16-cv-01918-JAD-NJK Document 58 Filed 10/23/17 Page 6 of 22
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`severed from the first defendant and dismissed in each of its cases.20 Judge Koppe,
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`after conducting her own extensive research on swarm joinder, ultimately
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`recommended that I sever and dismiss from this case the claims against all
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`defendants except defendant Boughton.21 LHF objected to that recommendation, so
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`I now determine whether the defendants were properly joined and whether
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`severance is appropriate.
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`There is a major split of authority on this issue. Only one circuit court—the
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`D.C. Circuit—has ruled on the issue, finding that swarm joinder does not satisfy
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`FRCP 20(a)(2) because the defendants’ use of the same BitTorrent protocol to
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`download the same file does not arise out of the same transaction or occurrence.22
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`The district courts in every other circuit and even the judges within some districts
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`widely disagree on whether to permit swarm joinder. Some courts hold that swarm
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`joinder is appropriate under FRCP 20(a)(2).23 Other courts hold as the D.C. Circuit
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`does.24 And still others exercise their discretion to manage their dockets and sever
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`the defendants even if swarm joinder would technically be permissible under the
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`FRCP because other factors outweigh the benefits conferred by joinder: judicial
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`economy, the high burden on the defendants, the risk of inappropriate settlement
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`20 ECF No. 28.
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`21 ECF No. 47.
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`22 AF Holdings, LLC v. Does 1–1058, 752 F.3d 990, 998 (D.C. Cir. 2014).
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`23 See, e.g., Elf-Man, LLC v. Does 1-29, 2013 WL 3709235, at *2 (E.D. Wash. July
`12, 2013); Patrick Collins, Inc. v. Does, 2012 WL 12870254, at *4–5 (N.D. Fl. Oct.
`16, 2012).
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`24 See, e.g., Night of the Templar, LLC v. Does 1–116, 2013 WL 4504368, at *3 (E.D.
`Mo. Aug. 23, 2013); Riding Films, Inc. v. John Does I–CCL, 2013 WL 2152552, at *3
`(D. Ariz. May 16, 2013); West Coast Prods. v. Swarm Sharing Hash Files, 2012 WL
`3560809, at *4 (W.D. La. Aug. 17, 2012).
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`Case 2:16-cv-01918-JAD-NJK Document 58 Filed 10/23/17 Page 7 of 22
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`leverage, and filing-fee evasion.25 The Ninth Circuit has not yet decided the issue,
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`so I am not bound by any authority.
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`My exhaustive research on the issue uncovered no clear majority rule. The
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`D.C. Circuit is the only circuit court to have addressed the issue (it doesn’t allow
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`swarm joinder),26 5 districts permit swarm joinder under Rule 20(a)(2),27 12 districts
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`25 See, e.g., Breaking Glass Pictures v. Swarm Sharing Hash File SHA1:
`£973F491D02C1E0220DBC534D8F8EDC15FC53FAEF, 2013 WL 2407226, at *3
`(D. Mass. May 1, 2013) (declining to decide whether swarm joinder satisfies Rule
`20(a)(2) because joinder: (1) does not promote judicial efficiency considering each
`defendant may raise a unique defense or claim; (2) would be a logistical nightmare
`because “each defendant would be required to serve any motion or other submission
`on” every other defendant and all defendants “would have a right to be present at
`any deposition or court proceeding”; and (3) would defeat the purposes of the filing
`fee as a revenue raising measure and a barrier to meritless lawsuits); Third Degree
`Films, Inc. v. Does 1–178, 2012 WL 12925674, at *5 (N.D. Cal. Dec. 6, 2012)
`(holding that swarm joinder technically satisfies Rule 20(a)(2) but severing anyway
`because of the risk of inappropriate settlement leverage).
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`26 AF Holdings, LLC v. Does 1–1058, 752 F.3d 990 (D.C. Cir. 2014).
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`27 K-Beech, Inc. v. Doe 37, 2012 WL 12910991 (E.D.N.C. June 12, 2012); Combat
`Zone Corp. v. John/Jane Does 1–5, 2012 WL 5289736 (N.D. Tex. Oct. 26, 2012); Elf-
`Man, LLC v. Does 1–29, 2013 WL 3709235 (E.D. Wash. July 12, 2013); LHF
`Productions, Inc. v. Farwell, 2016 WL 6948394 (W.D. Wash. Nov. 28, 2016); Patrick
`Collins, Inc. v. Does, 2012 WL 12870254 (N.D. Fl. Oct. 16, 2012).
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`Case 2:16-cv-01918-JAD-NJK Document 58 Filed 10/23/17 Page 8 of 22
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`do not,28 18 districts have judges on both sides of the debate,29 and the remaining 58
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`28 AF Holdings, LLC v. Does 1–1058, 752 F.3d 990 (D.C. Cir. 2014); In re BitTorrent
`Adult Film Copyright Infringement Cases, 296 F.R.D. 80 (E.D.N.Y. 2012); Odin’s
`Eye Entertainment v. Does 1–66, 2013 WL 5890408 (D. Del. Oct. 31, 2013); Malibu
`Media, LLC v. John Does 1–23, 878 F. Supp. 2d 628 (E.D. Va. 2012); West Coast
`Prods. v. Swarm Sharing Hash Files, 2012 WL 3560809 (W.D. La. Aug. 17, 2012);
`Malibu Media, LLC v. John Does 1–31, 297 F.R.D. 323 (W.D. Mich. 2012); reFX
`Audio Software Inc. v. Does 1–97, 2013 WL 3766571 (E.D. Mo. July 16, 2013); Third
`Degree Films, Inc. v. Does 1–131, 280 F.R.D. 493 (D. Ariz. 2012); Patrick Collins,
`Inc. v. Does, 2012 WL 12893290 (C.D. Cal. Dec. 14, 2012); Cobbler Nevada, LLC v.
`Cerritos, 2016 WL 7177527 (D. Or. Dec. 9, 2016); Raw Films, Inc. v. Does 1–32,
`2011 WL 6840590 (N.D. Ga. Dec. 29, 2011); Voltage Pictures, LLC v. Does 1–31,
`291 F.R.D. 690 (S.D. Ga. 2013).
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`29 Compare Digital Sin, Inc. v. Does 1–45, 2013 WL 1289263 (D. Mass. Mar. 28,
`2013) (not allowing swarm joinder) with Liberty Media Holdings, LLC v. Swarm
`Sharing Hash File, 821 F. Supp. 2d 444 (D. Mass. 2011) (allowing swarm joinder);
`compare Next Phase Distribution, Inc. v. John Does 1–27, 284 F.R.D. 165 (S.D.N.Y.
`2012) (not allowing) with Digital Sin, Inc. v. Does 1–27, 2012 WL 2036035 (S.D.N.Y.
`June 6, 2012) (allowing); compare Malibu Media, LLC v. John Does 1–18, 2014 WL
`229295 (D. N.J. Jan. 21, 2014) (not allowing) with Malibu Media, LLC v. John Does
`1–11, 2013 WL 1504927 (D. N.J. Apr. 11, 2013) (allowing); compare Patrick Collins,
`Inc. v. Does 1–30, 2013 WL 1157840 (E.D. Pa. Mar. 21, 2013) (not al lowing) with
`Patrick Collins, Inc. v. John Does 1–11, 2013 WL 395497 (E.D. Pa. Jan. 31, 2013)
`(allowing); compare K-Beech, Inc. v. John Does 1–41, 2012 WL 773683 (S.D. Tex.
`Mar. 8, 2012) (not allowing) with Combat Zone Corp. v. Does 1–192, 2012 WL
`12897164 (S.D. Tex. Oct. 12, 2012) (allowing); compare Third Degree Films, Inc. v.
`John Does 1–72, 2013 WL 1164024 (E.D. Mich. Mar. 18, 2013) (not allowing) with
`Third Degree Films v. Does 1–36, 2012 WL 2522151 (E.D. Mich. May 29, 2012)
`(allowing); compare Killer Joe Nevada, LLC v. Does 1–12, 2013 WL 3458197 (N.D.
`Ohio July 9, 2013) (not allowing) with Voltage Pictures, LLC v. Does 1–43, 2013 WL
`1874862 (N.D. Ohio May 3, 2013) (allowing); compare Dragon Quest Prods. v. Does
`1–100, 2013 WL 4811735 (E.D. Tenn. Sept. 9, 2013) (not allowing) with Sojo Prods.
`v. Does 1–67, 2013 WL 1759561 (E.D. Tenn. Apr. 24, 2013) (allowing); compare In
`re BitTorrent Copyright Infringement Cases, 2013 WL 501443 (C.D. Ill. Feb. 11,
`2013) (not allowing) with Patrick Collins, Inc. v. John Does 1–9, 2012 WL 4321718
`(C.D. Ill. Sept. 18, 2012) (allowing); compare Malibu Media, LLC v. Reynolds, 2013
`WL 870618 (N.D. Ill. Mar. 7, 2013) (not allowing) with First Time Videos, LLC v.
`Does 1–76, 276 F.R.D. 254 (N.D. Ill. 2011) (allowing); compare TCYK, LLC v. Does
`1–19, 2013 WL 6578787 (N.D. Ind. Dec. 13, 2013) (not allowing) with Malibu Media,
`LLC v. John Does 1–14, 287 F.R.D. 513 (N.D. Ind. 2012) (allowing); compare Malibu
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`districts have not addressed the issue. Within the Ninth Circuit alone, the District
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`of Arizona,30 the Central District of California, and the District of Oregon do not
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`allow swarm joinder. The Eastern and Western Districts of Washington both
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`permit swarm joinder under Rule 20. The Eastern, Northern, and Southern
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`Districts of California have judges on both sides of the fence. And the Districts of
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`Alaska, Hawaii,31 Idaho, Montana, and Nevada have not yet addressed the issue.
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`Media, LLC v. John Does 1–7, 2012 WL 6194352 (E.D. Cal. Dec. 12, 2012) (not
`allowing) with New Sensations, Inc. v. Does 1–306, 2012 WL 5031651 (E.D. Cal.
`Oct. 17, 2012) (allowing); compare Third Degree Films, Inc. v. Does 1–178, 2012 WL
`12925674 (N.D. Cal. Dec. 6, 2012) (not allowing) with Braun v. Primary Distributor
`Doe Number 1, 2013 WL 12142998 (N.D. Cal. Jan. 11, 2013) (allowing); compare
`Third Degree Films, Inc. v. John Does 1–4, 2013 WL 3762625 (S.D. Cal. July 16,
`2013) (not allowing) with Liberty Media Holdings, LLC v. Does 1–62, 2012 WL
`628309 (S.D. Cal. Feb. 24, 2012) (allowing); compare PHE, Inc. v. Does 1–105, 2013
`WL 66506 (D. Colo. Jan. 4, 2013) (not allowing) with Patrick Collins, Inc. v. John
`Does 1–15, 2012 WL 415436 (D. Colo. Feb. 8, 2012) (allowing); compare Malibu
`Media, LLC v. Doe, 923 F. Supp. 2d 1339 (M.D. Fl. 2013) (not allowing) with Nu
`Image, Inc. v. Does 1–3,932, 2012 WL 1890854 (M.D. Fl. May 10, 2012) (allowing);
`compare Liberty Media Holdings, LLC v. BitTorrent Swarm, 277 F.R.D. 672 (S.D.
`Fl. 2011) (not allowing) with AF Holdings, LLC v. Does 1–162, 2012 WL 12845359
`(S.D. Fl. Jan. 12, 2012) (allowing).
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`30 LHF argues that Arizona has abandoned its position and now openly allows
`swarm joinder and consolidates cases involving defendants from the same swarm.
`LHF supports that position with 86 pages of docket reports—no orders or legal
`analysis—showing that expedited-discovery motions were granted in every case
`without severing the defendants. These reports are not persuasive because they do
`not tell me that Arizona permits swarm joinder under Rule 20(a)(2) and in the
`interests of judicial efficiency. I am especially unpersuaded because expedited
`discovery was granted earlier in this case without severing any defendants, and I
`now find that swarm joinder is improper.
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`31 LHF argues that Hawaii has addressed the issue and permits swarm joinder.
`LHF supports that argument with an order granting expedited discovery from a
`magistrate judge that does not discuss the joinder issue at all. The order analyzes
`only the standard for permitting early discovery to identify defendants. This does
`not mean that the District of Hawaii addressed the swarm-joinder issue and
`permitted it. It merely means that the magistrate judge did not exercise his
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`The only thing that is firmly established about this issue is that there is no uniform
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`protocol.
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`I do not decide today whether the defendants’ actions were part of the same
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`transaction or occurrence to satisfy Rule 20(a)(2). Even if Rule 20(a)(2) were
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`satisfied, I would still exercise my discretion under Rule 2132 and sever all
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`defendants except the first one, Derrick Boughton, because joining them causes
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`more harm than good.33
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`I find most persuasive Magistrate Judge Sorokin’s analysis on the issue and
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`his conclusion that swarm joinder is not likely to promote judicial efficiency.34 As
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`Judge Sorokin opined, “the claims against each defendant are likely to turn on
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`individual defenses (e.g., ‘my wireless internet service is not password protected,’ ‘I
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`didn’t watch it, my adolescent child did,’ or ‘that is not my IP address’), and each
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`will require a separate ‘mini-trial.’”35 “Joinder would transform an otherwise
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`straightforward case into a logistical nightmare. For example, each defendant
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`would be required to serve any motion or other submission on the . . . other
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`defendants, and all . . . defendants would have a right to be present at any
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`discretion sua sponte to analyze whether joinder was proper and recommend his
`finding to a district judge. At best, he temporarily acquiesced in the swarm-joinder.
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`32 Fed. R. Civ. P. 21 (“On motion or on its own, the court may at any time, on just
`terms, add or drop a party. The court may also sever any claim against a party.”).
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`33 Fed. R. Civ. P. 20(b) (“The court may issue orders—including an order for
`separate trials—to protect a party against embarrassment, delay, expense, or other
`prejudice that arises from including a person against whom the party asserts no
`claim and who asserts no claim against the party.”).
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`34 Breaking Glass Pictures, 2013 WL 2407226 at *3.
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`35 Id.
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`Case 2:16-cv-01918-JAD-NJK Document 58 Filed 10/23/17 Page 11 of 22
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`deposition or court proceeding.”36 “If consolidation of certain pretrial proceedings
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`were deemed appropriate, it could be accomplished via Rule 42(a), after the
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`institution of individual actions against each defendant.”37 Finally, severance
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`prevents inappropriate settlement leverage and filing-fee evasion.38
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`LHF argues that the defendants would benefit from swarm joinder because
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`they could pool their resources and share in one another’s defenses, representation,
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`and other strategies, and if any defendant had a unique defense then LHF would
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`move to sever that defendant into a separate case. I find that those benefits to the
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`defendants do not outweigh the potential burdens imposed on them considering the
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`varied and extensive motion practice that is typical of contemporary litigation, the
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`scheduling conflicts that would inevitably arise when deposing each party, and the
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`likelihood of confusing the issues and parties should the action proceed to trial.
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`LHF also argues that prohibiting swarm joinder would make copyright
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`enforcement too costly and allow BitTorrent users to continue their infringing
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`activities undeterred and cause “substantial damage to the entertainment industry
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`and our economy as a whole. It would essentially serve as an abdication of judicial
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`authority from the Court—a move that would compromise the rule of law and fly in
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`the face of two centuries of jurisprudence.”39 I don’t share this apocalyptic prophecy,
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`and LHF’s own objection belies its position.
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`LHF mentions that prohibiting swarm joinder would “likely increase the final
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`36 Id.
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`37 Id.
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`38 See id. (filing-fee evasion); Third Degree Films, 2012 WL 12925674, at *5
`(inappropriate settlement leverage).
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`39 ECF No. 51-1 at 8.
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`Case 2:16-cv-01918-JAD-NJK Document 58 Filed 10/23/17 Page 12 of 22
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`dollar amount of judgment awards entered against individual [d]efendants.”40
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`Those “likely” higher judgment awards would surely offset LHF’s concern that
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`individual cases would be too costly to file. The copyright-enforcement business
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`model that LHF and many other plaintiffs in these swarm-joinder cases follow41
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`imposes a greater burden on the courts and defendants than the burden imposed on
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`the plaintiff by severance. Courts have held that cost effectiveness is not sufficient
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`to justify swarm joinder.42 To borrow the sentiment expressed by the court in On
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`The Cheap, LLC v. Does 1–5011, I do “not condone copyright infringement and [I
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`do] encourage[] settlement of genuine disputes. However, [LHF]’s desire to enforce
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`its copyright in what it asserts is a cost-effective manner does not justify perverting
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`the joinder rules to first create . . . management and logistical problems . . . and
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`then offer to settle with Doe defendants so that they can avoid digging themselves
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`out of the morass [that LHF] is creating.”43 So I adopt Judge Koppe’s
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`recommendation to sever and dismiss all defendants except for Derrick Boughton
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`from this case without prejudice to LHF’s ability to refile separate lawsuits against
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`them.
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`C.
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`Motion for default judgment
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`40 Id.
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`41 See Malibu Media, LLC v. John Does 1 through 10, 2012 WL 5382304 (C.D. Cal.
`June 27, 2012) (“These lawsuits run a common theme: plaintiff owns a copyright to
`a . . . movie; plaintiff sues numerous John Does in a single action for using
`BitTorrent to pirate the movie; plaintiff subpoenas the ISPs to obtain the identities
`of these Does; if successful, plaintiff will send out demand letters to the Does;
`because of embarrassment, many Does will send back a nuisance-value check to the
`plaintiff. The cost to the plaintiff: a single filing fee, a bit of discovery, and stamps.
`The rewards: potentially hundreds of thousands of dollars. Rarely do these cases
`reach the merits.”).
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`42 On the Cheap, LLC v. Does 1–5011, 280 F.R.D. 500, 505 (N.D. Cal. 2011).
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`43 Id.
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`Case 2:16-cv-01918-JAD-NJK Document 58 Filed 10/23/17 Page 13 of 22
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`LHF also moves for default judgment against defendants Boughton, Gallego,
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`Gyarfas, Templeton, and Walsh. Because I sever and dismiss the claims against
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`Gallego, Gyarfas, Templeton, and Walsh from this action for improper joinder, the
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`motion is moot against them, and I deny it. I now address the motion as it pertains
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`to defendant Boughton.
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`1.
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`Background
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`After identifying Boughton, LHF sent a demand letter informing Boughton of
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`this case and his potential liability.44 Boughton did not respond, so LHF sent him a
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`second demand letter approximately three weeks later.45 LHF filed its first-
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`amended complaint three weeks after that and sent Boughton a third demand
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`letter.46 Despite adequate service of process, Boughton did not respond to the first-
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`amended complaint or demand letter.47 The Clerk of Court entered default against
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`Boughton on May 8, 2017.48 LHF now moves for default judgment, requesting
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`$15,000 in statutory damages, $6,570 in attorney’s fees and costs, and a permanent
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`injunction to prohibit Boughton from further infringing its copyright directly or
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`indirectly.49
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`2.
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`Default-judgment standard
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`Federal Rule of Civil Procedure 55(b)(2) permits a plaintiff to obtain default
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`judgment if the clerk previously entered default based on a defendant’s failure to
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`defend. After entry of default, the complaint’s factual allegations are taken as true,
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`44 ECF No. 41 at 4.
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`45 Id.
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`46 Id.
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`47 Id.
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`48 ECF No. 31.
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`49 ECF No. 41.
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`Case 2:16-cv-01918-JAD-NJK Document 58 Filed 10/23/17 Page 14 of 22
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`except those relating to damages.50 “[N]ecessary facts not contained in the
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`pleadings, and claims [that] are legally insufficient, are not established by
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`default.”51 The court has the power to require a plaintiff to provide additional proof
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`of facts or damages in order to ensure that the requested relief is appropriate.52
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`Whether to grant a motion for default judgment lies within my discretion,53 which is
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`guided by the seven factors outlined by the Ninth Circuit in Eitel v. McCool:
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`(1) the possibility of prejudice to the plaintiff; (2) the
`merits of plaintiff’s substantive claim; (3) sufficiency of
`the complaint; (4) the sum of money at stake in the action;
`(5) the possibility of a dispute concerning material facts;
`(6) whether the default was due to excusable neglect; and
`(7) the strong policy underlying the Federal Rules of Civil
`Procedure favoring decisions on the merits.54
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`A default judgment is generally disfavored because “[c]ases should be decided upon
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`their merits whenever reasonably possible.”55
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`3.
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`Evaluating the Eitel factors
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`a.
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`Possibility of prejudice to LHF
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`The first Eitel factor weighs in favor of granting default judgment against
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`Boughton. LHF sent Boughton numerous demand letters and a summons along
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`with the first-amended complaint, but Boughton never responded. LHF claims that
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`Boughton infringed its copyright by downloading its film using BitTorrent software.
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`50 TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987) (per
`curiam); FED. R. CIV. P. 8(b)(6) (“An allegation—other than one relating to the
`amount of damages—is admitted if a responsive pleading is required and the
`allegation is not denied.”).
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`51 Cripps v. Life Ins. Co., 980 F.2d 1261, 1267 (9th Cir. 1992).
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`52 See Fed. R. Civ. P. 55(b)(2).
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`53 Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986).
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`54 Eitel, 782 F.2d at 1471–72.
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`55 Id. at 1472.
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`Given the nature of BitTorrent software, Boughton may be exacerbating LHF’s
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`injury by seeding the file to the BitTorrent swarm.
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`b.
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`Substantive merits and sufficiency of the claims
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`The second and third Eitel factors require LHF to demonstrate that it has
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`stated a claim on which it may recover.56 The first-amended complaint sufficiently
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`pleads LHF’s direct-copyright-infringement, contributory-copyright-infringement,
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`and vicarious-liability claims.
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`To present a prima facie case of direct infringement, LHF must show that: (1)
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`it owns the allegedly infringed material, and (2) the alleged infringers violate at
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`least one exclusive right granted to copyright holders under 17 U.S.C. § 106.57 LHF
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`alleges that it is the owner of the copyright registration for the film “London Has
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`Fallen.”58 LHF also alleges that Boughton willfully violated several exclusive rights
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`granted by 17 U.S.C. § 106, and that those violations caused it to suffer damages.59
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`The contributory-copyright-infringement claim requires LHF to allege that
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`Boughton “had knowledge of the infringing activity” and “induce[d], cause[d,] or
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`materially contribute[d] to the infringing conduct of another.”60 “Put differently,
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`liability exists if the defendant engages in personal conduct that encourages or
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`assists the infringement.”61 Given the nature of BitTorrent technology, BitTorrent-
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`56 See Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978).
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`57 A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001).
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`58 ECF No. 8 at 11, ¶ 46; see also ECF No. 8-2.
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`59 ECF No. 8 at 11–12.
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`60 A&M Records, 239 F.3d at 1019 (quoting Gershwin Publ’g Corp. v. Columbia
`Artists Mgmt., 443 F.2d 1159, 1162 (2d Cir. 1971) and citing Fonovisa, Inc. v.
`Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir. 1996)).
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`6