Case 8:12-cv-01666-JSM-EAJ Document 27 Filed 03/07/13 Page 1 of 21 PageID 196

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION MALIBU MEDIA, LLC, ) ) Plaintiff, ) ) v. ) ) DOES 119, ) ) Defendants. ) ______________________________ )

Civil Action No. 8:12-cv-01666-JSM-EAJ

DOE 17S OMNIBUS MOTION TO DISMISS; TO SEVER ACTION; AND TO QUASH NON-PARTY SUBPOENAS OR ENTER A PROTECTIVE ORDER, WITH INCORPORATED MEMORANDUM OF LAW COMES NOW Defendant Doe 17,1 identified by Plaintiff only as the accountholder for IP Address 96.252.149.248, in a special, limited appearance by and through the undersigned attorney, and, pursuant to Rule 4(m), Federal Rules of Civil Procedure, DISMISS the case for failure to serve process

within the allotted time; Rules 20 and 21, to SEVER the action and dismiss claims against Doe 17; and, Rules 26 and 35, QUASH the subpoena seeking Doe 17s subscriber information or issue a protective order protecting same.

Doe 17 and the undersigned attorney are making a special, limited appearance only; this motion is not to be construed as a general appearance by either Doe 17 or the undersigned attorney. Doe 17 has not been subject to service of process in this action and does not intend to waive service of process.

Case 8:12-cv-01666-JSM-EAJ Document 27 Filed 03/07/13 Page 2 of 21 PageID 197

I.

Background On July 26, 2012 (225 days ago), Plaintiff, pornographer

MALIBU MEDIA, LLC, filed the instant case, one of dozens of near identical cases in this District, against 19 anonymous Internet subscribers for alleged downloading of the

pornographic film Introducing Diana. On August 20, 2012, pursuant to Rule 26(d), Federal Rules of Civil Procedures, Plaintiff moved the Court for leave to issue third party subpoenas on the Doe Defendants Internet Service Providers to obtain the subscribers identities,

claiming that said identities were relevant to the subject matter in the action. (Doc. 5) On August 21, 2012, this Court granted Plaintiffs motion (Doc. 6). On November 26, 2012, the 124th day after filing the complaint, Plaintiff moved for additional time to serve the Doe Defendants (Doc. 20). On through November December 27, 26, 2012, 2012, this within Court which granted to serve Plaintiff the Doe

Defendants (Doc. 21). On November 29, 2012, this Court dismissed Does 1-3 and 5-11, pursuant to Plaintiffs notice of voluntary dismissal. On December 26, 2012, the last date of Plaintiffs Court-

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granted extension of time, Plaintiff moved a second time for additional time to serve the Doe Defendants (Doc. 24). On through December January 27, 26, 2012, 2013, this within Court which granted to serve Plaintiff the Doe

Defendants (Doc. 25). On February 26, 2013, with no activity docketed in the case and no summons issued as to any of the Defendants, this Court, sua sponte, entered an Order requiring Plaintiff to file a Status Report on or before March 11, 2013 (Doc 26). On or about February 27, 2013, more than a month after the expiration of Plaintiffs second Court-ordered extension of time within which to serve Defendants, Doe 17 received a letter from his Internet Service Provider, Verizon, alerting him that Plaintiff had sought his subscriber information for use in the instant case. It has now been more than 40 days since the expiration of Plaintiffs second Court-Ordered extension of time within

which to serve Defendants. any Defendant, and

No summons has been issued as to has not moved for a third

Plaintiff

extension of time. I. This Court should dismiss the claims against Doe 17 for Plaintiffs failure to show good cause. First, because Plaintiff has failed to serve Doe 17 or

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even issue a summons as to him within the second granted extension of time, this Court should dismiss the claims

against him or her, without prejudice. Rule 4(m) provides in relevant part: If a defendant is not served within 120 days after the complaint is filed, the court on motion or on its own after notice to the plaintiff must dismiss the action without prejudice against that

defendant or order that service be made within a specified time. Fed. R. Civ. P. 4(m) (emphasis added); see also Melton v. Wiley, 262 F. Appx 921, 922 (11th Cir. 2008)). As Plaintiff is still seeking Doe 17s identity and has not issued any summons as to same, it is clear and undisputed that Plaintiff did not effectuate service on Doe 17 within either of the two extensions granted by this Court.

Therefore, in order for Plaintiff to avoid dismissal of its claims for failure to effect service on Doe 17 in compliance with Fed.R.Civ.P. 4(m), Plaintiff was required to demonstrate good cause for having failed to serve said Defendant by January 26, 2013. Cox v. Arizona League of Profl Baseball Clubs, Inc., 151 F.R.D. 436, 438 (M.D. Fla. 1993). Rule 4(m),

Federal Rules of Civil Procedure, permits the Court to extend the time for service when Plaintiff shows good cause for the failure to serve Defendants. However, in the instant case,

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Plaintiff has not shown any cause for its failure to serve Doe 17 within the already extended period of time because

Plaintiff has let more than 40 days pass since the expiration of its second extension of time, and has not filed anything. Therefore, because service was not effectuated within the allotted extension, and because Plaintiff did not show any cause good or otherwise for the failure of service,

pursuant to Rule 4(m), this Court must dismiss the claims against Doe 17. II. As the claims against Doe 17 must be dismissed pursuant to Rule 4(m), the subpoena must also be quashed. Rule 26(b)(1), Federal Rules of Civil Procedure, allows parties to obtain discovery for any matter relevant to the subject matter involved in the action (emphasis added).

Thus, information sought in discovery must be relevant . . . and tailored to the issues involved in the particular case. Rosenbaum v. Becker & Poliakoff, P.A., 08-CV-81004, 2010 WL 623699 (S.D. Fla. 2010) Corp., (citing 959 F.2d Washington 1566, 1570 v. Brown &

Williamson

Tobacco

(11th

Cir.

1992)); see also Syposs v. U.S., 181 F.R.D. 224, 226 (W.D.N.Y. 1998) (the reach of a subpoena issued pursuant to

Fed.R.Civ.P. 45 is subject to the general relevancy standard applicable to discovery under [Rule 26(b)(1)]). Where a non-

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party subpoena seeks information not reasonably calculated to lead to the discovery of admissible evidence, the Court may quash the subpoena or enter a protective order. E.g., Maxwell v. Health Ctr. of Lake City, Inc., 3:05CV1056-J-32MCR, 2006 WL 1627020 seeking (M.D. Fla. 2006) entire (quashing personnel subpoena files on non-party were not

plaintiffs

which

relevant to the case at hand); Premer v. Corestaff Services, L.P., 232 F.R.D. 692, 693 (M.D. Fla. 2005) (granting motion to quash/motion for protective order where discovery requests on non-parties were overbroad and are not reasonably calculated to lead to the discovery of admissible evidence.) As explained above, dismissal is proper, pursuant to Rule 4(m), Federal Rules of Civil procedure, as too much time has passed without serving Doe 17. Because Doe 17 must be

dismissed from the instant action, any discovery pertaining to Doe 17s information because is the not relevant seeks to this case. not

Accordingly,

subpoena

information

reasonably calculated to lead to the discovery of admissible evidence, it must be quashed. III. The claims against the John Does should be severed. Next, because the Defendants are improperly joined, the action should be severed. Last spring, after filing hundreds

of suits nationwide for alleged unauthorized downloading of

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its pornography, MALIBU MEDIA began filing dozens of lawsuits in the Middle District of Florida. the issue of joinder premature,2 After months of finding and a group of other

copyright Plaintiffs3 also filing suits against similar groups of anonymous Does, judges in the Middle District began

severing the actions. First, on December 6, 2012, the Honorable JAMES D.

WHITTEMORE (Tampa) entered an order granting a Does motion to sever in a similar case. Malibu Media, LLC v. Does 1-28, 8:12cv-01667-JDW-MAP [Doc. 22.] (Dec. 6, 2012). See Exhibit 1. Even though no Doe had been served, the Court granted a motion to sever and dismissed claims against all except Doe 1. Next, CORRIGAN on December 13, 2012, the an Honorable order TIMOTHY J.

(Jacksonville)

entered

staying

three

copyright troll cases (including two by the instant Plaintiff) and requiring the plaintiffs to file a brief as to why

Defendants should not be severed. West Coast Prod., Inc. v. Does 1-675, 3:12-cv-964-J-32TEM [Doc. 20]; Malibu Media LLC v. Does 1-19, 3:12-cv-335-J-32MCR [Doc. 42]; Malibu Media LLC v. Does 1-46, 3:12-cv-522-J-UATC-PRL [Doc. 11]. See Exhibit 2.
2

Order in Malibu Media, LLC v. Does 1-9, 8:12-cv-669 [Doc. 25] (M.D. Fla. July 6, 2012). 3 Other Plaintiffs filing suits in the District include BAIT PRODUCTIONS PTY, LTD.; CELESTIAL, INC.; FIRST TIME VIDEOS, LLC; INGENUITY 13 LLC; JOHN STAGLIANO, INC; NU IMAGE, INC.; NUCORP, LTD; PATRICK COLLINS, INC.; RAW FILMS, LTD; THIRD DEGREE FILMS, INC.; and WEST COAST PRODUCTIONS.

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The next day, on December 14, 2012, the Honorable DAVID A. BAKER of the Orlando division, after holding a hearing in all 25 cases filed by Bait Productions, Inc., entered a report and recommendation finding that the 1536 cumulative Defendants were improperly or imprudently joined. Bait Productions Pty Ltd. v. Does 1-73, 6:12-CV-1637-ORL-31 [Doc. 12 at 2], 2012 WL 6755274 (M.D. Fla. 2012).4 other cases in that this the Therein, Judge Baker mentioned the including or the this Board case, of and

district, Chief

recommended

Judge

Judges

consider comparable case management and severance for all such cases. Id. Subsequently, various judges of the Middle District

entered orders severing the Bait cases. the Honorable GREGORY A. PRESNELL

In a few such orders, finding the

(Orlando),

defendants improperly joined, opined:

report and recommendation adopted in part, rejected in part sub nom. Bait Productions Pty Ltd. v. Does 1-71, 8:12-CV-2465-T-30TGW, 2013 WL 23904 (M.D. Fla. 2013) and report and recommendation adopted in part, rejected in part sub nom. Bait Productions Pty Ltd. v. Does 1-36, 8:12-CV-2464-T33MAP, 2013 WL 298337 (M.D. Fla. 2013) and report and recommendation adopted, 6:12-CV-1637-ORL-31, 2013 WL 450638 (M.D. Fla. 2013) and report and recommendation adopted sub nom. Bait Productions Pty Ltd. v. Does 154, 8:12-CV-2468-T-30MAP, 2013 WL 23987 (M.D. Fla. 2013) and report and recommendation adopted sub nom. Bait Productions Pty Ltd. v. Does 1-96, 6:12-CV-1780-ORL-37, 2013 WL 440568 (M.D. Fla. 2013) and report and recommendation adopted in part sub nom. Bait Productions Pty Ltd. v. Does 1-41, 8:12-CV-02555-JDW, 2013 WL 85144 (M.D. Fla. 2013) and report and recommendation adopted in part sub nom. Bait Productions Pty Ltd. v. Does 1-72, 8:12-CV-02470-JDW, 2013 WL 85137 (M.D. Fla. 2013).

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Our current judicial system is ill-equipped to handle this type of case. Concerns about

fairness and due process prevent the joinder of thousands of defendants with little in common, but courts would be quickly overwhelmed if each of these infringers was sued individuallynot to mention the resources wasted. Since there is no single entity responsible for facilitating

BitTorrent file sharing, plaintiffs such as Bait Productions are left with little choice but to sue every individual infringer. Courts

throughout the country have attempted to resolve these issues in lengthy This opinions Order reaching to

conflicting

results.

appears

follow the emerging majority rule by requiring plaintiffs to file While against this each result infringer may be

individually.

unsatisfying to plaintiffs seeking to enforce their legal rightsand to a court facing the prospect of thousands of casesthe Court is

aware of no reasonable alternative. In short, it appears that technology has outpaced the ability of the courts to deal with it.

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Bait Productions Pty Ltd. v. Does 1-81, 6:12-CV-1779-ORL-31, 2013 WL 764687 (M.D. Fla. Feb. 27, 2013); Bait Productions Pty Ltd. v. John Does 1-26, 2:12-CV-628-FTM-31, 2013 WL 607966 (M.D. Fla. 2013). (Tampa), adopting Similarly, the Honorable SUSAN C. BUCKLEW Judge Bakers report and recommendation,

explained that improper joinder of the Does significantly impacts the Courts ability to effectively manage this

litigation and outweighs any convenience and cost-savings to Plaintiff. Bait Productions Pty Ltd. v. Does 1-82, 8:12-CV2643-T-24TBM, 2013 WL 525063 (M.D. Fla. Feb. 13, 2013). Just a few weeks ago, in yet another Malibu Media case where no defendant had yet been served, the HONORABLE MARCIA MORALES HOWARD (Jacksonville) explained, If joinder is not appropriate, the Court sees no justification in prolonging the decision until after service, a course of action which would undoubtedly increase costs for the parties, particularly those of any Defendant who wishes to appear in the action in an attempt to defend his or her own interests. Malibu Media, LLC v. Does 1-21, 3:12-CV-575-J-34TEM, 2013 WL 525352 (M.D. Fla. 2013) (finding joinder not premature and severing defendants). In said order, Judge Howard explained that the likelihood of different defenses, the logistics of having mini-trials to accommodate these differences, the possibility of joining

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innocent defendants, and the increased cost and complexity caused by pursing Plaintiffs claims against Defendants

jointly, warrant severance. Id. *6. These cases reflect rulings made by many dozens of courts across the country. is: A non-exhaustive sample of these cases

E.g., Third Degree Films v. Does 1-47, 12-10761-WGY, 2012

WL 4498911 (Oct. 2, 2012) (severing all but Doe 1 after a careful weighing of the balance of potential injustices in this case and like cases); Sunlust Pictures, LLC v. Does 1 120, Case No. 1220920, DE26 (S.D. Fla. July 24, 2012); West Coast Productions, Inc. v. Swarm Sharing Hash Files, 6:12-cv1713, 2012 WL 3560809 (W.D. La. Aug. 16, 2012); Malibu Media LLC v. Does, No. 2:12-cv-3623, 2012 U.S. Dist. LEXIS 89286, at *8-9 (C.D. Cal. June 27, 2012) (The federal courts are not cogs in a plaintiffs copyright-enforcement business model. The Court will not idly watch what is essentially an extortion scheme, for a case that plaintiff has no intention of bringing to trial); Malibu Media, LLC v. John Does 1-23, 2012 WL

1999640, *4 (E.D. Va. May 30, 2012) (finding that, in a file sharing case, a plaintiff must allege facts that permit the court at least to infer some actual, concerted exchange of data between those defendants); Digital Sins, Inc. v. Does 1 245, 2012 WL 1744838 (S.D.N.Y. May 15, 2012) (The bare fact

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that Doe clicked on a command to participate in the BitTorrent Protocol does not mean that they [sic] were part of the

downloading by unknown hundreds or thousands of individuals across the country or across the world); Third Degree Films v. Does 1-108, 8:11-cv-3007-DKC, 2012 WL 1514807 (D. Md. Apr. 27, 2012); Patrick Collins, Inc. v. Does 1-23, 2012 WL 1144198 (D. Md. April 4, 2012) (the Doe defendants separate and distinct actions did not constitute the same transaction, occurrence or series of transactions or occurrences);

Patrick Collins, Inc. v. John Does 1-23, 11-cv-1231, 2012 WL 1019034 (E.D. Mich. Mar. 26, 2012) (simply alleging the use of BitTorrent technology under Rule . . . 20(a) does for not comport with the

requirements

permissive

joinder);

Liberty Media Holdings, LLC v. BitTorrent Swarm, 277 F.R.D. 672, 675 (S.D. Fla. 2011) (finding mass John Doe joinder inappropriate); MCGIP, LLC v. Doe, 4:2011cv02331, 2011 WL

432110, at *4 n.5 (N.D. Cal. Sept. 16, 2011) (these cases are merely a strong tool for leveraging settlements a tool whose efficiency is largely derived from the plaintiffs

success in avoiding the filing fees for multiple suits and gaining early access en masse to the identities of alleged infringers.); Raw Films, Inc. v. Does 1-32, 1:11-CV-2939-TWT, 2011 WL 6840590 (N.D. Ga. 2011) (Downloading a work as part

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of a swarm does not constitute acting in concert with one another, particularly when the transactions happen over a long period.); SBO Pictures v. Does 1-3036, 2011 WL 6002620 at *3 (N.D. Cal. Nov. 30, 2011); Pacific Century Intl Ltd. v. Does 1-101, No. C-11-02533, 2011 U.S. Dist. LEXIS 124518 (N.D. Cal. 2011) (That BitTorrent users have downloaded the same

copyrighted work does not . . . evidence that they have acted together to obtain it.); Lightspeed v. Does 1-1000, No. 10 C 5604, 2011 U.S. Dist. LEXIS 35392 (N.D. Ill. Mar. 31, 2011); K-Beech, Inc. v. Does 1-85, 3:11cv469, 2011 U.S. Dist. LEXIS 124581 *6 (E.D. Va. 2011) (plaintiffs have used the offices of the Court as an inexpensive information means and to gain the Doe from

defendants them). IV.

personal

coerce

payment

Why joinder is improper. Joinder herein is improper because the Doe Defendants

decision[s] to obtain the BitTorrent protocol and download the same video does not in and of itself constitute the same transaction, occurrence, or series of transactions or

occurrences, as required by Rule 20(a)(2). Bubble Gum Prod., LLC v. Does 1-80, 12-20367-CLV-SE1TZ, 2012 WL 2953309 *3 (S.D. Fla. July 19, 2012); but see Malibu Media, LLC v. Does 1-28, 8:12-cv-01667-JDW-MAP [Doc. 22 at 5-9] (finding claims

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logically

related

because

joinder

rules

are

interpreted

broadly, but severing the case nonetheless). Joinder of defendants is appropriate only where: (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. Fed. R. Civ. P. 20(a)(2) (emphasis added). drop or sever any claim against a party The Court may if it finds

misjoinder. Fed. R. Civ. P. 21(b). Rather than joining the users into a single transaction, the file-sharing the method known as BitTorrent users. merely Gum

facilitates

transactions

between

Bubble

Prod., 12-20367-CLV-SE1tZ, 2012 WL 2953309 *3.

In BitTorrent

downloading, one Internet user shares the original copy (the seed) with a torrent network, to which other users connect. Bait Productions Pty Ltd. v. Does 1-73, 6:12-CV-1637-ORL-31, 2012 WL 6755274 *2. In this network, unlike a traditional peer-to-peer network, each new file downloader is receiving a different piece of the data from each user who has already downloaded the file that together comprises the whole. Id. Furthermore, much of the BitTorrent protocol operates

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invisibly

to

the

user,

as

the

BitTorrent

protocol

is

determining which users to connect to in order to obtain the additional 2953309 pieces In of a file. users Bubble can Gum Prod., away 2012 WL

*3.

fact,

walk

from

their

computers and as long as the computer is still on, the filing sharing process continues for an indefinite period of time among an undefined number of users. Id. (concluding that, aside from downloading nothing the same Video using all of BitTorrent the Doe

protocol,

. . .

. . .

connects

Defendants to each other). Taking Plaintiffs allegations as true, the only

similarity among the Defendants would be that they violated the same statute or acted in the same manner, as the

Defendants are alleged to have merely used the same method to access a file via the Internet. Digital Sins, Inc. v. Does 1 245, 2012 WL 1744838 (S.D.N.Y. May 15, 2012) (finding no concerted occurrences action at whatever, and no in series any way of related the

least, not related

except

method that was allegedly used to violate the law). Simply because their pieces could be aggregated into a whole does not make the Does uploading of the pieces part of the same transaction. Aerosoft GmbH, 12-21489-CIV, 2012 WL 5272270. An analogy would be to argue that all bank

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depositors acted together in the same transaction in the flow of money into the bank. Id. *5. v. Does 1-38, 2008 WL 544992 See also LaFace Records, LLC *7 (E.D.N.C. 2008) (merely

committing the same type of violation in the same way does not link defendants together for purposes of joinder) Therefore, as courts have consistently severed claims against unrelated defendants where the only similarly between the defendants are the allegations that they violated the same statute or acted in the same manner, severing the instant case, as was recently recommended by Judge Baker, is proper. Bait Productions Pty Ltd., 6:12-CV-1637-ORL-31, 2012 WL

6755274 *3 (citing DIRECTV v. Loussaert, 218 F.R.D. 639, 643 644 (S.D. Iowa 2003) and Turpeau v. Fidelity Fin. Services, Inc., 936 v. F.Supp. Does 975, 978 (N.D. Ga. 1996)); 2004 Interscope WL 6065737

Records

1-25,

6:04-CV-197-ORL-22,

(M.D. Fla. Apr. 1, 2004) (same finding).

See also Patrick

Collins, Inc. v. Does 1-16, 6:12-cv-477-ACC-KRS, Order to Show Cause [Doc. 7, Page ID 93] (M.D. Fla. Apr. 5, 2012) (finding Doe defendants to have not act[ed] in concert and not engaged in the same series of transactions or occurrences). V. Severance is appropriate under Rule 21 Next, regardless of whether the claims are part of the same transaction or occurrence, the sheer manageability and

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impracticability

of

swarm

joinder

especially

with

27

defendants makes severance appropriate. Malibu Media, LLC, 8:12-cv-01667-JDW-MAP [Doc. 22] (Exh. 1 at 9-14). For defenses example, will the numerous immense and differing to facts the and

cause

prejudice

joined

Defendants. E.g., Bridgeport Music, Inc. v. 11C Music, 202 F.R.D. 229, 233 (M.D. Tenn. 2001) (If joined in one action, hundreds onslaught of of Defendants materials will and be subject to an overwhelming to the

information

unrelated

specific claims against them all of which they must pay their attorney to review.). Additionally, continued joinder

will strain judicial economy. See, e.g., Digital Sins, Inc. v. Does 1-245, 11-cv-8170(CM), 2012 WL 1744838 (S.D.N.Y. May 15, 2012) (cited by Malibu Media, LLC, 8:12-cv-01667-JDW-MAP [Doc. 22 at 11] (There are no litigation economies to be gained from trying what are in essence 245 different cases together, because each of the John Does is likely to have some

individual defense to assert.). [T]he reality is that each claim against each Doe

involves different facts and defenses. Third Degree Films v. Does 1-108, Civ. No. PJM 12-1298, 2012 WL 1514807 (D.Md. Apr. 27, 2012) (quoting CineTel Films, Inc., v. Does 1-102, 2012 WL 1142272 *5 (D.Md. 2012)); see also BMG Music v. Does 1-203,

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2004

WL

953888

*1

(E.D.

Pa.

2004)

(one

Doe

could

be

an

innocent parent whose internet access was abused by her minor child, while another Doe might share a computer with a

roommate who infringed Plaintiffs works.).

[D]ue to the alleged

imprecise manner in which the Plaintiff identifies

infringers, namely by IP addresses, defendants can assert an unquantifiable number of different factual scenarios to

establish that they did not download the copyrighted work. Bubble Gum Prod., 12-20367-CLV-SE1TZ, 2012 WL 2953309 (citing In re Bittorrent Adult Film Copyright Infringement Cases, 2012 WL 1570765 at *5, 2012 U.S. Dist. LEXIS 61447 (E.D.N.Y. May 1, 2012)). Moreover, swarm joinder tactics deny the federal courts additional revenue from filing fees in the suits that should be filed to obtain the information the plaintiffs desire. Pac. Century Intl v. Does 1-37, 2012 WL 1072312, at *11 n.15 (N.D. Ill. Mar. 30, 2012). filing fee. have paid, Here, Plaintiff paid a single $350

Had Plaintiff filed 19 separate actions, it would and the Middle District of Florida would have

received, $6650 in filing fees. See also Exh. 1 at 12, Malibu Media, LLC, 8:12-cv-01667-JDW-MAP (By filing multi-defendant complaints, Malibus lawsuits have deprived the court of

hundreds of thousands of dollars in much needed revenue, while

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burdening the docket with cases that are difficult to manage, in the traditional sense, without extraordinary judicial time and labor.); In Re BitTorrent Adult Film Copyright

Infringement Cases, No. 2:11-cv-03995, 2012 WL 1570765, *22-23 (recognizing lost revenue of perhaps millions of dollars

(from lost filing fees)); Third Degree Films, 2012 WL 1514807 (finding it patently unfair to permit Plaintiff to receive a windfall fee). VI. Conclusion First, as Plaintiff has failed to serve Doe 17 within the second granted extension of time, and as Plaintiff has failed to request a third extension above and beyond said expiration date, this Court should dismiss the claims against Doe 17 pursuant to Rule 4(m). Doe 17 must be Additionally, as the claims against the subpoena seeking Doe 17s . . . without paying more than a one-time filing

dismissed,

information exceeds the scope of discovery allowed by Rule 26(b) and accordingly must be quashed. Finally, this Court

should follow the trend set in this district by the likes of Judges Howard action. not Whittemore, in similar Corrigan, or Baker, Presnell, cases Bucklew, sever and the

near-identical

and

Joinder is improper because the Doe Defendants did in the same transaction or occurrence

participate

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within the meaning of Rule 20, and it is appropriate because continued joinder would cause immense prejudice to the

Defendants, strain judicial resources, and be patently unfair. Additionally, the Court should reconsider and vacate its order granting early discovery because if Plaintiff can show any good cause to obtain subscriber information to defend its

copyright, such cause could only potentially apply to Doe 1. WHEREFORE, for the foregoing reasons, Defendant Doe 17 respectfully requests that this Honorable Court enter an Order GRANTING this Motion and: 1. 2. 3. DISMISSING the claims against Doe 17 pursuant to Rule 4(m), Federal Rules of Civil Procedure; SEVERING this action and DISMISSING all but the first Defendant from this case; and QUASHING the outstanding subpoena seeking Doe 17s identity, or issuing a protective order protecting same; and VACATING this Courts Order granting Plaintiff leave to serve third-party subpoenas.

4.

Malibu Media v. Does 1-19, 8:12-cv-01666-JSM-EAJ

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RULE 3.01(g) CERTIFICATE OF GOOD-FAITH CONFERENCE I hereby certify that, on March 7, 2013, I conferred, telephonically, with counsel for Plaintiff, who stated that Plaintiff is opposed to the relief requested in this motion. /s/ Cynthia Conlin, Esq. CYNTHIA CONLIN, ESQ. Florida Bar No. 47012 cynthia@cynthiaconlin.com CERTIFICATE OF SERVICE I hereby certify that I filed electronically the

foregoing with the Clerk of the Court via CM/ECF system which will notify electronically all parties. Attorney for Doe 17: Cynthia Conlin, P.A. 1643 Hillcrest Street Orlando, Florida 32803 Tel 407-965-5519 Fax 407-545-4397 www.cynthiaconlin.com /s/ Cynthia Conlin, Esq. CYNTHIA CONLIN, ESQ. Florida Bar No. 47012 cynthia@cynthiaconlin.com

Malibu Media v. Does 1-19, 8:12-cv-01666-JSM-EAJ

Doe 17s Motion to Sever, Page 21 of 21