In two orders on Monday, Judge Scheindlin and Judge McMahon reinforced their position — as reported on before in this space — that individual unknown John Does could not be joined as defendants in a single suit alleging the use of a peer-to-peer file-sharing network to download and share copyrighted films. As we have previously noted, judges in the Southern District are split on whether joinder is appropriate. In Judge Scheindlin’s case, the court denied the plaintiff’s motion for reconsideration of her sua sponte order to sever and dismiss without prejudice all claims against all but the first John Doe listed in the caption. Recognizing the split opinions among her fellow Southern District judges, Judge Scheindlin held that the difference of opinion was not sufficient grounds to cause her to reconsider her original decision:

That judges of this Court have reached conflicting conclusions on this and similar joinder questions may be good reason for direction from the Court of Appeals, but it is not sufficient reason for reconsideration….  Federal Rule of Civil Procedure 20 permits joinder of multiple defendants if the claims against them arise “out of the same transaction, occurrence, or series of transactions or occurrences.” Judges in this Court and across the country have reached different conclusions about whether or not the participants of a swarm, trading the same file, have engaged in the same series of transactions for the purpose of Rule 20.  The basic disagreement is about whether twenty individuals copying and sharing a particular file with some unknown subset of thousands of other people around the world can be said to be engaged in the same series of transactions even if no one of the twenty shared the file or communicated with any of the other nineteen.  Dozens of district courts have reached conflicting conclusions.

Ultimately, because the issue was within the discretion of the district court, and in her opinion the joinder of these defendants would not enhance judicial efficiency, Judge Scheindlin decided not to disturb her prior ruling.

Judge McMahon’s order was in response to her prior order requiring that the plaintiff show cause why the John Doe defendants should be joined in a single action.  Also recognizing the split among her colleagues, Judge McMahon too ordered the cases severed, responding to each of the plaintiff’s arguments in turn:

First, counsel argues that I should permit these defendants to be joined because I have been inconsistent on this issue, citing a 2008 case involving the recording industry and a 2010 case involving the publishing industry. To which I say, with Justice Holmes, that a foolish consistency is the hobgoblin of little minds. Counsel suggests that the earlier cases were incorrect; I might well conclude the same if confronted with them today, armed with considerably more knowledge and precedent than was before me back in 2008 and 2010.  Plaintiff’s counsel should take no comfort from any preliminary order issued in an earlier case.  Second, plaintiff calls my attention to the fact that my colleagues Judges Forrest and Nathan have reached a different conclusion in “swarm” cases like this one brought by his office.  I acknowledged as much in Digital Sin. I respectfully disagreed with my learned colleagues then and I continue to do so now, having concluded that other precedents were more persuasive in light of the Second Circuit’s holding – never overturned, despite advances in technology – that permissive joinder is not authorized when a large number of people use the same method to violate the law. See Nassau Cnty. Assoc. of Ins. Agents, Inc. v. Aetna Life & Casualty, 497 F. 2d 1151, 1154 (2d Cir. 1974). Accessing a single swarm at different periods of time to download a movie for one’s personal use on one’s personal computer appears to me to fall within that rule. Third, counsel has not satisfied the court that all 34 John Doe defendants are amenable to suit within this district. Counsel says, “Plaintiff has listed only John Does who are believed to be within the District of this Court,” based on geolocation data that he admits “are not 100% reliable.” (PI. Response to Order to Show Cause at 3). But this court already knows, from Digital Sin, that there are serious problems with plaintiffs approach to in personam jurisdiction. In Digital Sin, I allowed plaintiff to proceed against John Doe 1 (after severing the other 246 John Does), only to have plaintiff’s counsel file a discontinuance in short order; the cited ground was that plaintiff had learned that John Doe 1 – his geolocation data notwithstanding was not a New York resident and was not amenable to suit in the Southern District o/New York! I commend counsel for his candor in admitting the want of jurisdiction once it was uncovered, but he makes my point: the amenability of these defendants to suit in this district is suspect.