Circuit Splits

Circuit Split Roundup

For the latest coverage of noteworthy issues dividing the federal courts, check out the following links:

• Daily Tax Report, Supreme Court Urged to Take Case to Resolve Circuit Split on Windfall Tax, Bloomberg BNA (Aug. 24, 2012).

• Amy Hocevar, Courts Split In Award Of Electronic Discovery Costs To Prevailing Party, Sixth Circuit Appellate Blog (Aug. 22, 2012).

• John Fisher, Wading Into Circuit Splits, Sixth Circuit Upholds Injunction Against Michigan Township For Violating Telecommunications Act, Sixth Circuit Appellate Blog (Aug. 22, 2012).

• Joseph Celentino, Prosecutor Given Fresh Angle for Age Bias Fight, Courthouse News Service (Aug. 27, 2012).

Circuit Split Roundup

For the latest coverage of noteworthy issues dividing the federal courts, check out the following links:

• Failed Motion for Summary Judgment Preserves Purely Legal Issue for Appeal, D.C. Circuit Review (Aug. 2, 2012). 

• Bonnie Lindemann, DNA Recording: The Court Allows Maryland to Continue Collecting and Testing DNA Samples from People Who Are Arrested, Criminal Law Brief Blog (Aug. 2, 2012).

• Louis M. Solomon, United States: Eight[h] Circuit Court of Appeals Affirms Dismissal Under the Foreign Sovereign Immunities Act, mondaq.com (July 27, 2012).

Courts Split Over Joinder of John Does in "Downloading Swarm" Cases

Not surprisingly, courts have struggled to apply old law to new technology. The Supreme Court’s decision in the recent GPS-tracking case along with the developing circuit split over the Computer Fraud and Abuse Act come to mind (see here, here, and here). Last week, a federal court in Illinois confronted yet another issue involving law and technology on which there exists a split in authority.

The case, Pacific Century International v. Does, involves a “Maltese provider of adult entertainment” that sued thirty-one “John Doe” defendants for unlawfully downloading adult movies using a filesharing service that “works by breaking files into many smaller files ‘to reduce the load on the source computer . . . and allows users to join a ‘swarm’ of host computers to download and upload from each other simultaneously . . . .’” No. 11-C-9064 (N.D. Ill. June 12, 2012) (quoting In re BitTorrent Adult Film Copyright Infringement Cases, Nos. 11-3995, 12-1147, 12-1150, 12-1154 (E.D.N.Y. May 1, 2012)) (alterations in original). The plaintiff “subpoenaed Comcast for information identifying the anonymous defendants” who participated in the alleged downloading “swarm.”

Comcast objected to the subpoena on the grounds that the plaintiff had misjoined the group of anonymous defendants. According to the opinion penned by Judge Harry Leinenweber, “there is a split of authority over whether it is appropriate to join many anonymous defendants alleged to have participated in a single downloading ‘swarm’ in a single suit.” The opinion provided the following overview of the competing positions adopted by various district courts:

Compare, e.g., In re BitTorrent Adult Film Copyright Infringement Cases, 2012 WL 1570765, at *11 (finding joinder inappropriate due to insufficient allegations that the defendants actually shared file bits with one another); Lightspeed Media Corp. v. Does 1-1000, No. 10-C-5604, at 2 (N.D. Ill. Mar. 31, 2011) (Manning, J.); CP Prods. Inc. v. Does 1-300, No. 10 C 6255, 2011 WL 737761, at *1 (N.D. Ill. Feb. 24, 2011) (Shadur, J.) (finding the violations separate and personal jurisdiction lacking) with Digital Sin, Inc. v. Does 1-176, No. 12-CV-00126, 2012 WL 263491, at *5 (S.D.N.Y. Jan. 30, 2012) (finding joinder appropriate at this stage); First Time Videos, LLC v. Does 1-500, 276 F.R.D. 241, 252-53 (N.D. Ill. 2011) (Castillo, J.) (same); First Time Videos, LLC v. Does 1-76, 276 F.R.D. 254, 257 (N.D. Ill. 2011) (Bucklo, J.) (same); Hard Drive Prods., Inc. v. Does 1-44, No. 11 C 2828, at 3 (N.D. Ill. Aug. 9, 2011) (Holderman, J.) (same).

This Court respectfully joins the latter group and concludes that, at least at this stage, Plaintiff's allegations that the anonymous defendants participated in the same "swarm" (at varying times spanning just over one month) sufficiently alleges that they were involved in "a series of transactions" to warrant joinder under Rule 20. See MGCIP v. Does 1-316, No. 10 C6677, 2011 WL 2292958, at *2 (N.D. Ill. 2011) (finding joinder proper at this stage and noting that the individual defendants could re-raise the joinder issue as named parties). The Court also notes that, unlike many of the cases where courts have found joinder improper, Plaintiff has sued only Doe defendants whose IP addresses appear to be based in Illinois. Cf. CP Prods., Inc. v. Does 1-300, 2011 WL 737761, at *1 (objecting to the large number of defendants over which the court demonstrably lacked personal jurisdiction). (To the extent that Plaintiff's geolocation of the allegedly infringing IP addresses is incorrect, the defendants may interpose jurisdictional objections at the appropriate time.)

Pac. Century Int'l v. Does, 11-C-9064 (N.D. Ill. June 12, 2012).

Emerging Split Over Service of Process on Foreign Defendants

Does the Hague Convention permit U.S. litigants to directly serve process on foreign defendants by mail?

Last week, a federal court in Colorado highlighted a circuit split over the appropriate method for serving process on foreign defendants. As the court explained, “[t]he Hague Convention is a treaty entered into by the United States and other countries, including Sweden, which provides a ‘simple and certain means by which to serve process on a foreign national.’ S. African Apartheid Litig., 643 F. Supp. 2d at 432.” Galloway v. Flexstar Technology, Civil Action No. 10-cv-02853-CMA-MTW (D. Colo. Jan. 5, 2012).

By “simple and certain means,” the cited court was referring to the Convention’s mandate “that each signatory country is required to establish a ‘Central Authority’ in order to receive and attempt to satisfy requests for service of process coming from foreign countries.” Id. Does the Convention’s express establishment of a “Central Authority” created for the sole purpose of serving process implicity bar other forms of service, including direct service by mail?

The court points out a split on the issue:

Compare Nuovo Pignore v. Storman Asia M/V, 310 F.3d 374, 384 (5th Cir. 2002) ("the Hague Convention does not permit service by mail") with Ackerman v. Levine, 788 F.2d 830, 839 (2d Cir. 1986) ("service of process by registered mail did not violate the Hague Convention."). Plaintiff should brief the issue if he still desires to attempt to effectuate service through the mail.

Id. at n.4. In 1998, the Fourth Circuit agreed with the Second Circuit that Article 10(a) of the Hague Convention permitted service of process on foreign defendants by mail. Koehler v. Dodwell, 152 F.3d 304, 307-08 (4th Cir. 1998).