plaintiff motion to strike non-party submission

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Stamatios Stamoulis #01790-1999 Richard C. Weinblatt #01571-2001

STAMOULIS & WEINBLATT LLC Two Fox Point Centre 6 Denny Road, Suite 307 Wilmington, DE 19809 (302) 999-1540 stamoulis@swdelaw.com weinblatt@swdelaw.com

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

BATTLE FORCE, LLC, § § Plaintiff, § §v. § CA No. 1:12-cv-06539-JBS-KMW

§JOHN DOES 1-39, Defendants.

§§§ § §

JURY TRIAL DEMANDED

PLAINTIFF’S MOTION TO STRIKE NON-PARTY SUBMISSION

Plaintiff hereby moves to have the non-party submission of an anonymous, non-party

John Doe (DI 6) struck from the docket. In his submission, the non-party John Doe admits that

he is not a party to this action and is not an attorney. See DI 6 at ¶ 3, 7. The non-party John Doe

also admits that he has taken further steps to conceal his true identity by mailing his affidavit

from a state other than his own. See DI 6 at ¶ 3. The anonymous nature of the affidavit renders

it inherently unreliable and it should not be considered by the Court.

Further, the non-party John Doe lacks standing to submit a filing before this court. Third

party standing requires the satisfaction of three preconditions: 1) a party must suffer injury; 2)

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the injured party and the third party must have a “close relationship”; and 3) the third party must

face some obstacles that prevent it from pursuing its own claims. Pennsylvania Psych. Soc. v.

Green Spring Health Services, Inc., 280 F.3d 278, 283, 287-289 (3d Cir.2002) (citations

omitted). No facts supporting the standing of the non-party John Doe are before the Court. The

non-party John Doe has therefore suffered no cognizable injury and lacks standing to appear

before the Court. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 575-76 (1992). Finally,

because non-party John Doe’s third party status necessarily means DI 6 is not a pro-se pleading,

the submission is an improper filing by a non-attorney.

Nevertheless, should the Court require a response regarding the propriety of Plaintiff’s

joinder of the Doe Defendants in this matter, Plaintiff will submit briefing on that issue. In cases

such as these, where all of the Doe defendants participated in the same BitTorrent “swarm” and

downloaded the same “Hash” file (see D.I. 5-2, affidavit of D. Griffin, at ¶¶ 13-15) courts have

routinely found joinder of Doe defendants proper under Fed. R. Civ. P. 20. See Digital Sin, Inc.

v. Does 1-176, 279 F.R.D. 239 (S.D.N.Y. Jan. 30, 2012); AF Holdings LLC v. Does 1-1,058,

2012 WL 3204917 (D.D.C. Aug. 6, 2012); Raw Films, Ltd. v. John Does 1-15, 2012 WL

1019067 (E.D. Pa. Mar. 26, 2012). Indeed, the opinion in Raw Films is highly instructive on this

issue:

The general policy of the rules regarding joinder is “toward entertaining the broadest possible scope of action consistent with fairness to the parties,” and joinder “is strongly encouraged.” The purpose of Rule 20(a) is “to promote trial convenience” and prevent a multiplicity of lawsuits. … Here, the plaintiff argues that joinder of the Doe defendants in a single action is appropriate because “the claims against all defendants are logically related and Plaintiff is seeking joint and several liability,” and that the defendants, as members of the same BitTorrent swarm, participated in the same series of transactions or occurrences. … The plaintiff alleges that it retained a forensic investigator, who determined that each of the fifteen Doe defendants copied a piece of the same copy of the Work as identified by a particular cryptographic hash value, and that each of the defendants' computers connected to the investigator's server and transmitted at least a

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piece of the Work. By using BitTorrent to upload or download the same file, the Doe defendants are part of the same “swarm.” This is so even though each defendant's activity occurred during different times over a seventy-four day period. … Even if no Doe defendant directly transmitted a piece of the Work to another Doe defendant, the Court is satisfied that at this stage of the litigation the claims against each Doe defendant appear to arise out of the same series of transactions or occurrences, namely, the transmission of pieces of the same copy of the Work to the same investigative server. The claims against each defendant are logically related because they will feature largely duplicative proof regarding the nature of BitTorrent, the plaintiff's ownership interest in the copyright for the Work, and the forensic investigation conducted by the plaintiff. These common questions of fact are likely to arise along with the legal standards for direct and contributory copyright infringement liability. The joining of the fifteen defendants that have these elements in common will, at this point, prevent a multiplicity of lawsuits. Thus, the requirements of Rule 20(a)(2) are met, and its purposes furthered. Additionally, at this stage of litigation, joinder will not result in prejudice to any defendant or result in needless delay. Indeed, severance of the action as requested by the two moving Doe defendants would require the filing of separate actions and the issuance of new subpoenas on the internet service providers serving the IP addresses in this case in order to identify each defendant. Neither of these steps would “secure the just, speedy, and inexpensive determination” of the action. No defendant will be prejudiced by joinder at this stage, as none has been served in the matter or required to respond to the complaint. Instead, the defendants may benefit from joinder by permitting them to obtain the same discovery from the plaintiff or allowing them to see any defenses raised by other Doe defendants.

Raw Films, Ltd. v. John Does 1-15, 2012 WL 1019067 (E.D. Pa. Mar. 26, 2012) (internal

citations omitted). For all of the foregoing reasons, Plaintiff requests that the non-party

submission of John Doe (DI 6) be struck and that Plaintiff’s Motion for Expedited Discovery (DI

5) be granted.

Dated: November 8, 2012 STAMOULIS & WEINBLATT LLC

/s/ Stamatios Stamoulis Stamatios Stamoulis #01790-1999 Richard C. Weinblatt #01571-2001

Two Fox Point Centre 6 Denny Road, Suite 307 Wilmington, DE 19809 (302) 999-1540 stamoulis@swdelaw.com weinblatt@swdelaw.com Attorneys for Plaintiff

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CERTIFICATE OF SERVICE

I hereby certify that on November 8, 2012, I electronically filed the above document(s)

with the Clerk of Court using CM/ECF which will send electronic notification of such filing(s) to

all registered counsel.

/s/ Stamatios Stamoulis Stamatios Stamoulis

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

BATTLE FORCE, LLC, § § Plaintiff, § §v. § CA No. 1:12-cv-06539-JBS-KMW

§JOHN DOES 1-39, Defendants.

§§§ § §

JURY TRIAL DEMANDED

[PROPOSED] ORDER GRANTING MOTION TO STRIKE

AND NOW, upon consideration of Plaintiff’s Motion to Strike the submission of non-

party John Doe; and for good cause shown,

IT IS HEREBY ORDERED this ___ day of , 2012 that Plaintiff's Motion

to Strike is hereby GRANTED. The Clerk of the Court is directed to remove DI 6 from the

docket of the above captioned matter.

United States Magistrate Judge

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