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Doc 018 - Opposition and Concurrence to Mtn to Sever

Doc 018 - Opposition and Concurrence to Mtn to Sever

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Published by: massiplaw on Jul 27, 2012
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MEDIA PRODUCTS, INC. ))Plaintiff, ) Case No.: 3:12-cv-30100-KPN)v. ))DOES 1-120 ))Defendants. )))
 In country where high roads intersect, join hands with your allies.
 - Sun-Tzu,
 Art of War 
John Doe 120 eschews the principles of the
 Art of War 
, and instead of joining hands withhis allies, seeks to divide them. John Doe 30 (hereinafter “JD30”) prefers to cast his lot with SunTzu. JD30 respectfully disagrees (in part) with his co-Defendant John Doe 120, and thus partially opposes his Motion to Dismiss for Improper Joinder (ECF 15) as it applies to JD30 andany other non-moving Defendants. While JD30 reserves the right to seek dismissal on other grounds, JD30 disagrees that joinder is improper, and believes that at this point, he and other Defendants are best served by continued joinder.
While JD30 appreciates that John Doe 120 may objectively believe that he was doing allother defendants a service by requesting severance on their behalf, JD30 respectfully disagreeswith John Doe 120’s strategy. JD30 supports John Doe 120’s Motion as it pertains to John Doe120 and his individual right to seek his own severance from the case. Thus JD30 concurs with
Case 3:12-cv-30100-KPN Document 18 Filed 07/26/12 Page 1 of 11
John Doe 120’s Motion
in part 
. Simultaneously, JD30 requests that the Court deny John Doe120’s Motion to the extent that it seeks severance of any Defendants except for John Doe 120himself. If John Doe 120 prefers to “go it alone” in separate litigation, then JD30 will not secondguess his preference as it applies to him alone. Regardless, John Doe 120 should not be deemedto speak for any other Defendants.If this Court severs all of the defendants, the Plaintiff will then likely file 120 separateclaims, forcing each of the 120 defendants to stand alone facing a much larger, and well-financed, opponent, causing unnecessary expense to all parties involved, including JD30.Further, 120 individual cases would clog the court system. This is not mere speculation: Theresulting litigation morass would be strikingly similar to that of the copyright infringementlitigation campaign waged by Righthaven LLC from 2010 to 2012, spanning more than 275lawsuits in Nevada, Colorado and South Carolina.
That campaign would have come to an endfar more efficiently, quickly, and cheaply had the cases not been firewalled from one another inhundreds of separate suits, where defense attorneys were not immediately and automaticallynotified of the various motions and other papers affecting identically situated defendants.Learning the lessons of Righthaven, joinder in this action is more efficient because of thelarge number of defendants involved, yet facing identical legal issues. Taking into considerationthe impact of expense, time, fairness, and the best interests of the Defendants, as well as that of the Court, JD30 respectfully disagrees with his co-Defendant. If the Court agrees to sever JohnDoe 120 from the action, the Court should leave the other 119 Defendants joined together for their mutual common benefit, unless they affirmatively seek individual severance.
See David Kravets, Newspaper Chain’s New Business Plan: Copyright Suits, Wired (July 22,2010 3:29 PM),http://www.wired.com/threatlevel/2010/07/copyright-trolling-for-dollars/; DavidKravets, Copyright Troll Righthaven Goes on Life Support, (Sept. 7, 2011 12:59 PM),http://www.wired.com/threatlevel/2011/09/righthaven-on-life-support/.
Case 3:12-cv-30100-KPN Document 18 Filed 07/26/12 Page 2 of 11
Usually, it is an opponent, not an ally, who seeks to divide and conquer. John Doe 120likely has his reasons for desiring severance, but at this point, a win on this minor point will be pyrrhic. Accordingly, JD30 takes the position that joinder is interests of judicial economy, and itis in the interest of all other Defendants to remain unified. If John Doe 120 can afford anindividual defense or has other reasons for seeking severance, then he may stand alone if helikes. But, his motion speaks only for John Doe 120.Joinder is appropriate in order to prevent multiple identical lawsuits, extra expense to the parties, and loss of time to the court and the litigants. See
Call of the Wild Movie, LLC v. Does1-1,062,
770 F. Supp. 2d 332, 344 (D.D.C. 2011). In considering the propriety of joinder under Rule 20, courts tend to take a positive view of it as a mechanism of judicial economy.“[C]onsistent with fairness to parties; joinder of claims, parties, remedies is stronglyencouraged.”
United Mine Workers v. Gibbs,
383 U.S. 715, 724 (1966). In a joined case, Courtsshould not sever without considering how the act will affect
litigants and the judicial process.See
Stanely Works v. Haeger Potteries, Inc.,
35 F.R.D. 551, 554 (N.D. Ill. 1964); see also
United  Mine Workers
, 383 U.S. at 724.Under this analysis, the Defendants should remain joined. Severance will negativelyimpact JD30, all other Defendants, and the Court as well. As another Court remarked, severanceof such cases by fracturing them into dozens of identical actions before the same court “does notexactly resonate with practicality.”
 Arista Records LLC v. Does 1-27,
584 F. Supp. 2d 240, 251(D. Me. 2008). If John Doe 120’s motion is granted as to him only, this one case will becomeonly two. On the other hand, if the Court grants the motion as to all 120 defendants, this casewill splinter into 120 individual lawsuits.
Case 3:12-cv-30100-KPN Document 18 Filed 07/26/12 Page 3 of 11

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