UNITED STATES DISTRICT COURT DISTRICT OF

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CAPITOL RECORDS, INC., et al.,
Plaintiffs,
v.
NOOR ALAUJAN,
Defendant.
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)
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SONY BMG MUSIC ENTERTAINMENT, )
et al.,
Plaintiffs,
)
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v.
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JOEL TENENBAUM,
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)
Defendant.
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)
Civ. Act. No. 03-cv-11661-NG
(LEAD DOCKET NUMBER)
Civ. Act. No. 07-cv-11446-NG
(ORIGINAL DOCKET NUMBER)
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION
UNDER RULES 19 AND 20 TO ADD THE RIAA AS A PARTY
Plaintiffs hereby respectfully submit the following Opposition to Defendant’s Motion
Under Rules 19 and 20 to Add the Recording Industry Association of America (“RIAA”) as a
party to Defendant's Amended Counterclaim.
INTRODUCTION
Plaintiffs are record companies who own or control the exclusive rights to copyrights in a
large number of sound recordings produced and sold in the United States. Together with other
record companies, Plaintiffs face a massive problem of copyright infringement over the Internet.
Specifically, during the relevant time period herein, millions of individuals utilized online media
distribution systems over peer-to-peer (or “P2P”) networks such as KaZaA to engage in the
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largely anonymous, illegal file-swapping of billions of perfect copies of digital music files,
including Plaintiffs’ copyrighted sound recordings as alleged in the Complaint. As a result of
this massive infringement, Plaintiffs have sustained, and continue to sustain, devastating
financial losses that have resulted in billions of dollars of lost revenue and thousands of
individuals associated with the recording industry losing their jobs.
At the September 23, 2008 status conference in this case, Defendant’s counsel was asked
whether he intended to amend his pleadings. He responded that there would be “[n]o
amendments, Your Honor.” (Tr. of Sept. 23, 2008 Status Conference, at 13: 21-24, Exhibit A
hereto.) Despite this clear representation, on November 5, 2008, Defendant sought leave to file
an Amended Counterclaim against Plaintiffs purporting to assert a counterclaim for federal
common law abuse of process, a claim which has been specifically rejected by the United States
Supreme Court, and which Plaintiffs have opposed and is currently pending before this Court.
Defendant also filed a Motion to Add the RIAA as a Party to Defendant's Amended
Counterclaim.
The RIAA is a not-for-profit trade association whose member record companies create,
manufacture, and/or distribute the great majority of sound recordings produced and sold in the
United States. Among other things, the RIAA provides legal services and anti-piracy counsel to
its members. All of the Plaintiffs in this action are members of the RIAA.
Defendant presents only conclusory allegations in support of his joinder arguments
premised almost exclusively on his motion for leave to file an amended counterclaim for alleged
federal abuse of process, a claim which does not exist, and which Plaintiffs have opposed on
grounds of futility. (Dock. No. 686.) Plaintiffs filed their Opposition to Defendant's Motion to
Amend Counterclaim on November 24 (Dock. No. 703), and that motion is currently pending.
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Plaintiffs respectfully incorporate their Opposition by this reference. As the Court has not
granted Defendant leave to amend to assert his purported counterclaim, there is no counterclaim
at issue, to date, and Defendant's Motion to add the RIAA is premature. For this reason alone,
Defendant's Motion to add the RIAA should be denied.
Additionally, even if Defendant is allowed to amend his answer to assert his
counterclaim, there is no basis for compulsory joinder of the RIAA under Rule 19 because
complete relief can be afforded as between the parties currently in the action. Similarly, the
RIAA should not be joined under Rule 20 because Defendant has no right to relief from the
RIAA and has made no allegations specific to the RIAA regarding his purported abuse of
process counterclaim. Moreover, as explained more fully in Plaintiffs' Opposition to Defendant's
Motion to Amend Counterclaim (Dock. No. 703), Defendant’s proposed counterclaim fails as a
matter of law. Thus, there is no basis for joinder. Defendant's purported federal abuse of
process claim has been specifically rejected by the U.S. Supreme Court, and, to the extent he is
attempting to assert a state law abuse of process claim, it also fails because, inter alia,
Defendant cannot allege any illegitimate or ulterior purpose and because the bringing of lawsuits
like this one by Plaintiffs is conduct protected by the First Amendment under the NoerrPennington doctrine. Finally, joinder is also inappropriate because adding the RIAA would
result in significant complication and delay of the current matter, which is set for trial in
March 2009.
ARGUMENT
I.
THE RIAA IS NOT A NECESSARY PARTY UNDER RULE 19.
Defendant argues that the RIAA should be joined pursuant to Rule 19(a)(1)(a) because
the Court cannot “accord complete relief to Defendant Joel Tenenbaum on his claim of abuse of
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process without providing recourse against the RIAA.” (Motion at 2.) This argument is without
merit.
Under Rule 19(a)(1), an entity “shall be joined as a party in the action if (A) in the
person’s absence complete relief cannot be accorded among those already parties.” See Fed. R.
Civ. P. 19(a)(1)(A). The movant bears the burden of showing that the absent party is needed for
just adjudication under Rule 19. Pub. Serv. Co. v. Portland Natural Gas & Transmission, 2002
DNH 146. *2-3 (D.N.H. 2002) (The movant under Fed. R. Civ. P. 19 has the burden of
persuasion.) John Hancock Property & Casualty Co. v. Hanover Ins. Co., 859 F.Supp. 165, 168
(E.D. Pa. 1994). “To meet this burden, the movant may submit affidavits or other relevant
evidence.” Rojas v. Loewen Group Int'l, 178 F.R.D. 356, 360-361 (D.P.R. 1998) (analyzing rule
under 12(b)(7) motion to dismiss for failure to join indispensable party).
Here, Defendant’s Rule 19 Motion fails because Defendant has no viable counterclaim
against the RIAA. It is undisputed that the RIAA did not initiate any process whatsoever against
Defendant. Defendant's proposed counterclaim does not make a single allegation specific to, or
directed exclusively toward, the RIAA. Additionally, Defendant’s federal abuse of process
counterclaim has been specifically rejected by the U.S. Supreme Court, and numerous courts
throughout the country, but even if recognized, would fail as a matter of law. (See Dock. No.
703). Finally, even if Defendant's counterclaim is allowed, complete relief can be afforded
among the current parties to this lawsuit and there is no basis for compulsory joinder under
Rule 19.
A.
There is No Basis for Compulsory Joinder Given that Defendant’s Abuse of
Process Counterclaim Fails as a Matter Of Law.
Without a viable counterclaim, there is no basis to join the RIAA and the RIAA cannot,
as a matter of law, be a necessary third-party Defendant. Fed. R. Civ. P. 13(h), 19(a)(1)(A).
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Here, Defendant’s entire argument for compulsory joinder rests on the assumption that he has
viable abuse of process counterclaim. (See Motion at 2.) For the reasons more fully set forth in
Plaintiffs’ Opposition (Dock. No. 703), Defendant’s abuse of process claim fails as a matter of
law. A federal abuse of process claim has been specifically rejected by the Supreme Court, and
numerous courts around the country, who have repeatedly declined to create a federal common
law abuse of process claim. Moreover, to the extent Defendant is attempting to assert a state law
abuse of process claim, this claim also fails because, inter alia, Defendant cannot allege any
illegitimate or ulterior purpose and the bringing of lawsuits is conduct protected by the First
Amendment under the Noerr-Pennington doctrine. (Dock. No. 703). Because Defendant has no
viable counterclaim, the premise of Defendant’s argument for compulsory joinder fails.
B.
There is No Basis for Compulsory Joinder Given that Complete Relief Can
Be Accorded Among the Existing Plaintiffs/Counter-Claim Defendants.
A motion to join a party under Rule 19 should be denied where complete relief can be
accorded among the existing parties to the lawsuit. Fed. R. Civ. P. 19(a)(1)(A). “[T]he term
complete relief refers only to relief as between the persons already parties, and not as between a
party and the absent person whose joinder is sought.” IBM v. Merlin Tech. Solutions, Inc., 2007
U.S. Dist. LEXIS 7390 (D. Mass. Feb. 1, 2007) (citing Arkwright-Boston Mfrs. Mut. Ins. Co. v.
City of New York, 762 F.2d 205, 209 (2d Cir. 1985)). It is well settled that complete relief can be
accorded among those already parties, and Rule 19 joinder denied, where the absence of the
party sought to be joined – the RIAA in this case -- would not impair any relief that could be
granted to the plaintiff should he prevail on his counterclaim. 4-19 Moore’s Federal Practice Civil § 19.03 (“Joinder is required only when the absentee's nonjoinder precludes the court from
rendering complete justice among those already joined.”); Int’l Bhd. of Teamsters, Chauffeurs,
Warehousemen, & Helpers, Local 878 v. Commercial Warehouse Co., 84 F.3d 299, 302 (8th Cir.
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1996); Angst v. Royal Maccabees Life Ins. Co., 77 F.3d 701, 705 (3d Cir. 1996) (“Completeness
is determined on the basis of those persons who are already parties, and not as between a party
and the absent person whose joinder is sought.”). As Moore's Federal Practice explains, it is
fundamental that under Rule 19, alleged “[j]oint tortfeasors are not necessary parties.” Daynard
v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 184 F. Supp. 2d 55, 78 (D. Mass. 2001)
(citing Moore's Federal Practice § 19.06[1] (3d ed. 2001)). “The mere fact, however, that Party
A, in a suit against Party B, intends to introduce evidence that will indicate that a non-party, C,
behaved improperly does not, by itself, make C a necessary party.” Pujol v. Shearson/American
Express, 877 F.2d 132, 136 (1st Cir. P.R. 1989).
In this case, Defendant's counterclaim alleges, in sum, that Plaintiffs (and the RIAA)
behaved badly. That is insufficient to make the RIAA a necessary party under Rule 19(a)(1).
See id. Regardless of how the Court rules on Plaintiffs’ Opposition to Defendant’s Motion for
Leave to Amend Counterclaim, there can be no question that complete relief can be accorded
among those already parties to this case. Defendant’s proposed counterclaim seeks actual and
punitive damages for harm allegedly caused by the Plaintiff record companies having filed this
lawsuit. (Am. Countercl. ¶¶ 8-12, 21.) All of the Plaintiffs are already party to this lawsuit, and
there is no basis to suggest that complete relief cannot be accorded to all parties.
Defendant's proposed counterclaim contains no allegations specific to the RIAA that
could demonstrate any conceivable basis for relief. Indeed, the only reference to the RIAA is in
the introduction. (Id. at 1.) The sole basis for Defendant's abuse of process counterclaim is
Plaintiffs’ initiation of this lawsuit against him (id. ¶ 8-12), and it is undisputed that the RIAA
did not initiate any process whatsoever against Defendant. Defendant, therefore, does not – and
could not – show that the RIAA’s absence as a counterclaim defendant would impair any relief
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that could be granted to him should he prevail on the merits of his purported counterclaim.
Accordingly, he has failed to satisfy his burden under Rule 19 and his Motion should be denied.
II.
DEFENDANT SHOULD NOT BE PERMITTED TO JOIN THE RIAA UNDER
RULE 20 BECAUSE HE HAS NO RIGHT TO RELIEF FROM THE RIAA.
To satisfy the joinder requirements of Rule 20(a), a party must show (1) a right to relief
arising out of the same transaction or occurrence, or series of transactions or occurrences, and
(2) some questions of law or fact common to all persons seeking to be joined. See Fed. R. Civ.
P. 20(a); Legion Ins. Co. v. Family Serv., 561 F. Supp. 2d 232, 236 (D.R.I. 2008). Once the
requirements of Rule 20 are satisfied, courts consider a number of factors to determine whether
“the permissive joinder of a party will comport with the principles of fundamental fairness.”
Chavez v. Ill. State Police, 251 F.3d 612, 632 (7th Cir. 2001) (quoting Desert Empire Bank v.
Ins. Co. of N. Am., 623 F.2d 1371, 1375 (9th Cir. 1980)). Specifically, a court may deny
permissive joinder if joinder would create “prejudice, expense or delay.” Chavez, 251 F.3d at
632; 6A Charles Alan Wright, et al., Federal Practice and Procedure § 1652 at 396 (2001).
Here, Defendant’s Rule 20 Motion fails because Defendant cannot show any right to
relief against the RIAA and because joinder would unnecessarily prolong and complicate these
proceedings.
A.
Defendant’s Rule 20 Motion Fails Because Defendant Cannot Show Any
Right To Relief Against The RIAA.
Defendant premises his entire Rule 20 permissive joinder argument on his alleged
counterclaim for federal abuse of process. (See Motion at 2-3.) This counterclaim, however,
does not show any right to relief against the RIAA for multiple reasons.
First, as explained in Plaintiffs’ Opposition to Defendant’s Motion for Leave to Amend
Counterclaim (Dock. No. 703), Defendant’s alleged abuse of process counterclaim fails to state a
claim upon which relief can be granted. As such, Defendant’s Motion does not allege any viable
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right to relief against the RIAA arising out of the same transaction, occurrence or series of
transactions or occurrences, and for this reason alone, his Motion should be denied. Fed. R Civ.
P. 20(a)(2); Tapscott v. MS Dealker Serv., 77 F3d 1353, 1360 (11th Cir. 1996).
Second, a necessary element to any abuse of process claim is proof of some process
initiated by the alleged tortfeasor against the complaining party . Am. Mgmt. Servs. v. George S.
May Int’l, 933 F. Supp. 64, 68 (D. Mass. 1996). Here, the RIAA is not a Plaintiff in the
underlying action and did not institute any process against Defendant. Defendant does not, and
could not, allege that the RIAA initiated any process against him. Thus, he cannot show any
right to relief against the RIAA.
Third, Defendant’s cryptic statement that the RIAA “coordinates a nationwide masslitigation effort” (Dock. No. 693) is insufficient to support a claim against the RIAA for abuse of
process. A generalized allegation as to what the RIAA may or may not have done in other cases
is not relevant to whether the RIAA is alleged to have initiated some “process” against this
Defendant. This allegation is neither an allegation specific to any process against Defendant; nor
is it an allegation that demonstrates any impropriety on the part of the RIAA.
Finally, as explained in Plaintiffs’ Opposition To Defendant’s Motion For Leave To File
Amended Counterclaim (Dock. No. 703), the record company plaintiffs’ actions in pursuing
claims like this one do not constitute an abuse of process.
It is not, however, an abuse of the legal process to organize a large-scale legal
assault on small-scale copyright infringers that together cause devastating
financial losses. Moreover, it is not an abuse of the legal process if the Recording
Companies’ goal in bringing these actions is to scare would-be infringers into
complying with federal law, and thereby prevent the networks that allegedly
facilitate the alleged infringement from doing so.
Interscope Records v. Duty, 2006 U.S. Dist. LEXIS 20214, at *13-14 (D. Ariz. April 14, 2006).
See Atlantic Recording Corp. v. Heslep, 2007 U.S. Dist. LEXIS 35824, at *16 (N.D. Tex. May
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16, 2007) (“For now, our government has chosen to leave the enforcement of copyrights, for the
most part, in the hands of the copyright holder. See 17 U.S.C. § 101, et seq., Plaintiffs face a
formidable task in trying to police the internet in an effort to reduce or put a stop to the online
piracy of their copyrights. Taking aggressive action, as Plaintiffs have, to defend their
copyrights is certainly not sanctionable conduct. . . ”).
B.
Joinder Would Unnecessarily Prolong And Complicate These Proceedings.
Regardless of how the Court rules on Plaintiffs’ pending Opposition (Dock. No. 703), it
cannot be disputed that, due to the additional legal, factual, and discovery issues that the addition
of a new party would cause, joining the RIAA to try to assert an abuse of process claim would
significantly expand the scope of this otherwise simple action for copyright infringement,
increase the cost of litigation, and create undue delay. Adding an entity that is alleged to have
provided legal services to the other defendants as a defendant to an abuse of process claim, is a
novel theory that would generate questions of first impression. Given the RIAA’s role to, among
other things, provide legal services and anti-piracy counsel to the plaintiffs in this action, there
would be substantial issues regarding privilege. The presence of those issues would dramatically
complicate a simple copyright infringement action.
Moreover, this case is currently scheduled to go to trial in March 2009. The RIAA is not
currently a party, has not had an opportunity to challenge the allegations against it in the putative
Amended Complaint, and has not answered or engaged in any discovery. If the Court were to
add the RIAA as a party, it would need to be afforded the opportunity to do all three of these
things. These actions would not likely be completed in advance of the scheduled March trial
date. As such, the addition of the RIAA to this case would delay the current trial schedule.
Additionally, there is no question that the RIAA is not a party to this litigation and
initiated no process against Joel Tenenbaum. While Defendant is seeking to put the entire
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Copyright Act and Plaintiffs’ litigation on trial, this case is simply about whether Joel
Tenenbaum downloaded and/or distributed Plaintiffs’ copyrighted sound recordings. To the
extent the Court allows Defendant’s counterclaim, it should be limited to Plaintiffs’ actions in
litigating this case against Joel Tenenbaum. Because all the companies litigating this case would
be parties to the counterclaim, the addition of the RIAA is unnecessary and would only
needlessly complicate and prolong the litigation. As joinder of the RIAA under Rule 20 will
create “prejudice, expense or delay,” and needlessly complicate these proceedings, this court
should deny Defendant's request for permissive joinder. See Chavez, 251 F.3d at 632; 6A
Charles Alan Wright, et al., Federal Practice and Procedure § 1652 at 396 (2001).
CONCLUSION
For all of the foregoing reasons, Plaintiffs respectfully request that this Court deny
Defendant’s Motion to Join the RIAA in this action under either Rule 19(a) or 20(a).
SONY BMG MUSIC ENTERTAINMENT;
WARNER BROS. RECORDS INC.;
ATLANTIC RECORDING CORPORATION;
ARISTA RECORDS LLC; and UMG
RECORDINGS, INC.
By their attorneys,
Dated: November 28, 2008
By:
s/ Eve G. Burton
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Daniel J. Cloherty
DWYER & COLLORA, LLP
600 Atlantic Avenue - 12th Floor
Boston, MA 02210-2211
Telephone: (617) 371-1000
Facsimile: (617) 371-1037
[email protected]
Eve G. Burton (pro hac vice)
Timothy M. Reynolds (pro hac vice)
HOLME ROBERTS & OWEN LLP
1700 Lincoln, Suite 4100
Denver, Colorado 80203
Telephone: (303) 861-7000
Facsimile: (303) 866-0200
Email: [email protected]
[email protected]
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on November 28, 2008, a copy of the foregoing
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION UNDER RULES 19 AND 20
TO ADD THE RIAA AS A PARTY was served upon the counsel for Defendant via email and
United States Mail at the following address:
Charles Nesson
1575 Massachusetts Avenue
Cambridge, MA 02138
[email protected]
s/ Eve G. Burton
Eve G. Burton (pro hac vice)
HOLME ROBERTS & OWEN LLP
1700 Lincoln, Suite 4100
Denver, Colorado 80203
Telephone: (303) 861-7000
Facsimile: (303) 866-0200
Email: [email protected]
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