UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
June 19, 2012
MALIBU MEDIA, LLC, PLAINTIFF,
JOHN DOES 1-13, DEFENDANTS.
The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge
ORDER AND REPORT AND RECOMMENDATION
Before the Court is a motion by one of the John Doe defendants in the within action -who has "not provided his Doe # out of fear of overly aggressive retaliation by Plaintiff" - to dismiss or sever this action and for a protective order and/or to quash the subpoena previously served on a third-party Internet Service Provider ("ISP"). (John Doe Mot. to Dismiss/Sever 9-10.) Oral argument was held on the within motion on June 1, 2012. While counsel for plaintiff appeared and argued in opposition to the motion, John Doe failed to appear.
This action originated with the filing of a Complaint alleging copyright infringement and an ex parte motion by plaintiff to conduct expedited discovery by serving subpoenas on third-party ISPs to obtain the names, addresses, telephone numbers, email addresses and Media Access Control ("MAC") addresses of the various John Doe defendants. The Court granted plaintiff's motion for expedited discovery on March 26, 2012. Thereafter, on April 26, 2012, John Doe filed the within motion to dismiss or sever this action and for a protective order and/or to quash the subpoena previously served on his/her ISP. (John Doe Mot. to Dismiss/Sever 9-10.) The Court sua sponte stayed enforcement of the subpoenas issued by plaintiff, dated March 28, 2012 and addressed to Optimum Online and Verizon Internet Services, pending a decision on John Doe's motion. For the reasons stated below, that sua sponte stay of enforcement is now vacated and the motion to quash is denied, without prejudice to renewal, after service of process is complete as to any defendant.
I. Motion to Quash or for Protective Order "As a general rule, parties may not litigate their disputes anonymously." John Wiley & Sons, Inc. v. John Does Nos. 1-27, No. 11 Civ. 7627, 2012 U.S. Dist. LEXIS 13667, at *1-2 (S.D.N.Y. Feb. 3, 2012) (quotation omitted). Federal Rule of Civil Procedure 10(a) states that "[t]he title of the complaint must name all the parties." Fed. R. Civ. P. 10(a). In addition, Rule 11(a) dictates that "[e]very pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name - or by a party personally if the party is unrepresented . . . The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention." Fed. R. Civ. P. 11(a). Similarly, Federal Rule of Civil Procedure 17(a) mandates that "[a]n action must be prosecuted in the name of the real party in interest." Fed. R. Civ. P. 17(a). These rules "serve the vital purpose of facilitating pubic scrutiny of judicial proceedings," and as such, they "cannot be set aside lightly." John Wiley & Sons, 2012 U.S. Dist. LEXIS 13667, at *2 (quoting Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 188-89 (2d Cir. 2008)). "When evaluating a request by a party to proceed anonymously or by pseudonym courts consider numerous factors, including whether identification would put the affected party at risk of suffering physical or mental injury." Guerilla Girls, Inc. v. Kaz, 224 F.R.D. 571, 573 (S.D.N.Y. 2004) (quoting EW v. N.Y. Blood Ctr., 213 F.R.D. 108, 111 (E.D.N.Y. 2003)).
Here, John Doe has not made a motion to proceed anonymously in this
action, let alone proffered an adequate reason why he should be
afforded permission to do so. Rather, he has unilaterally withheld his
identifying information, including even his Doe number, on the grounds
that he fears "overly aggressive retaliation" by plaintiff.*fn1
(John Doe Mot. 9-10.) Thus, it is impossible for any party or
for the Court to communicate with the movant, John Doe, in this
action. A party cannot litigate an action under such circumstances.
This undoubtedly is the reason for the movant's failure to appear at
the oral argument of the within motion.
Accordingly, since "defendant has failed to identify any legal ground for shielding [his/her] identify from disclosure, the motion to quash is denied," without prejudice to renewal along with an accompanying motion to proceed anonymously within thirty (30) days of being served with a copy of the Summons and Complaint in this action. John Wiley & Sons, Inc. V. John Does 1-31, No. 12 Civ. 79, 2012 U.S. Dist. LEXIS 23085, at *3 (S.D.N.Y. Feb. 21, 2012) (citation omitted).
As stated supra, by Order dated May 10, 2012, the Court sua sponte stayed enforcement of the subpoenas issued by plaintiff, dated March 28, 2012 and addressed to Optimum Online and Verizon Internet Services and returnable May 12, 2012. That Order is hereby vacated. The ISP's are directed to turn over the requested information to the plaintiff as previously directed. The plaintiff shall notify the Court once it has received the requested identifying information and the proper defendants are served with a copy of the Summons and Complaint, at which time the Court will schedule an initial conference.
II. Motion to Dismiss and/or Sever
John Doe also seeks to dismiss and/or sever this action on the basis of improper joinder.
Pursuant to Federal Rule of Civil Procedure 20, defendants may be joined in one action where a plaintiff states a claim for relief "arising out of the same transaction, occurrence, or series of transactions or occurrences" and there are common questions of law or fact. Fed. R. Civ. P. 20(a)(2)(A) and (B). "Under the Federal Rules of Civil Procedure, 'the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.'" Digital Sin, Inc. v. John Does 1-176, No. 12-CV-00126, 2012 U.S. Dist. LEXIS 10803, at *11 (S.D.N.Y. Jan. 30, 2012) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966)). While several courts to consider this issue in similar cases have found it improper under Rule 20 to join in one action numerous Doe defendants, other courts have reached the opposite conclusion, finding joinder to be proper under similar circumstances. See Digital Sin, 2012 U.S. Dist. LEXIS 10803, at *12, n.4-5 (collecting cases).
At this point in the action, it is premature to make such a determination.*fn2 Accordingly, I recommend that John Doe's motion to dismiss and or/sever for improper joinder be denied, without prejudice to renewal after service of process is complete as to any defendant.
For the foregoing reasons, John Doe's motion to quash or for a protective order is denied, without prejudice to renewal within thirty (30) days of being served with a copy of the Summons and Complaint in this action. The Order dated May 12, 2012, which stayed enforcement of the subpoenas issued by plaintiff, is vacated and the ISP's are directed to turn over the requested identifying information within fourteen (14) days of the date of this Order.
I recommend that John Doe's motion to dismiss and/or sever this action for improper joinder be denied, with leave to renew after service of process is complete as to any defendant.
OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Any written objections to this Report and Recommendation must be filed with the Clerk of the Court, with a copy to the undersigned, within fourteen (14) days of service of this Report.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 72(b). Any requests for an extension of time for filing objections must be directed to the district judge assigned to this action prior to the expiration of the fourteen (14) day period for filing objections. Failure to file objections within fourteen (14) days will preclude further appellate review. Thomas v. Arn, 474 U.S. 140, 145 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 299-300 (2d Cir. 1992).
E. Thomas Boyle