U.S. Judge Tosses 'My Little Panties 2' BitTorrent Suit

Rhett Pardon

NEW YORK — Another mass porn BitTorrent piracy suit has bitten the dust.

U.S. District Judge Colleen McMahon of New York this week dismissed all but one of 245 John Does suspected of trading Digital Sin's "My Little Panties 2" because she ruled the suit's joinder was improper and geolocation techniques used in identifying the Does named in the suit were faulty.

McMahon's ruling was notable because she additionally laid forth rules of conduct for further litigation by Digital Sin and its counsel, Mike Meier, in connection with litigating further against the Does over "My Little Panties 2."

McMahon in her decision said that she didn't need to write another lengthy opinion discussing why plaintiff's theory is wrong. Rather, she said she incorporated reasoning by a number of judges in Northern California and New York who have rejected other mass BitTorrent joinder cases.

"Nothing in the complaint negates the inference that the downloads by the various defendants were discrete and separate acts that took place at different times; indeed the complaint alleges that separate defendants shared access to a file containing a pornographic film in separate and isolated incidents over  the course of 59 days," she wrote.

"In other words what we have here is 245 separate and discrete transactions in which 245 individuals used the same method to access a file via the Internet — no concerted action whatsoever, and no series of related occurrences — at least not related in any way except the method that was allegedly used to violate the law."  

McMahon said that it had been no accident that Digital Sin and Meier had not sought to bring the suit to class action status (because the rules for certification could not be met, she said) and that the only economy that litigating these cases as a single action would achieve is an economy to plaintiff  — "the economy of not having pay separate filing fee for each action."

Personal jurisdiction was another problem for McMahon in the Digital Sin suit because IP locator reports on the alleged copyright violations were never offered to the court. She called the oversight "troubling" because plaintiffs counsel averred that he only "personally conducted a random batch test of the purported locations of the IP addresses" of the Does.

As a result of joinder and geolocation issues, McMahon dismissed the case, with the exception of Doe No. 1, "because plaintiff has not paid the filing fee that is statutorily required to bring these 244 separate lawsuits."

The federal judge noted in her order that "litigation abuse has been a hallmark" over purported downloading of "My Little Panties 2." She said that there are currently three separate "My Little Panties 2" swarm cases pending before three different judges.

McMahon cautioned Meier about judge shopping and imposed "going forward" rules if he refiled against any of the severed defendants.

"Lest plaintiffs counsel think he can simply put cases against the severed and dismissed John Doe defendants into the wheel for assignment to yet another judge, I remind him of Local Civil Rule 1.6(a) [which requires the plaintiff attorney to bring the existence of potentially related cases to the attention of the court].”

One day after the McMahon's order severing 244 Does, Meier filed papers to sever Doe No. 1.

Meier said in his dismissal notice that that Doe No. 1 used a mobile device as he was traveling through New York and is outside jurisdiction of the court.

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