In TecSec, several defendants moved to sever, and Judge Brinkema agreed to a point – she stayed the claims except those against IBM, but she did not reach the severance issue. Fed.R.Civ. P. 20(a)(2) states that defendants may be joined in one action if “(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to the same transaction or occurrence or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action.” Since the rule is written in the conjunctive, the plaintiff must satisfy both subsections.

com, Civil Action No. 1:11cv309 (JCC/JFA), Coach, Inc., the well-known leather goods company, sought to enjoin 356 alleged cybersquatters – almost all of which registered domain names in Hong Kong or China – from using Coach’s registered trademarks as part of the alleged cybersquatters’ domain names. The problem from Magistrate Judge Anderson’s perspective, however, was that many of these 356 alleged cybersquatters were unrelated to each other, and therefore Coach could not meet the “transaction or occurrence” test for joinder under Fed. R. Civ. P. 20. Thus, when Coach filed a motion for entry of default judgment, Magistrate Judge Anderson issued Report and Recommendation on Nov. 25, 2011, that found joinder improper as to 345 alleged cybersquatters, and recommended severing those defendants from the action. As Magistrate Judge Anderson explained in a detailed, 28 page opinion: Simply put, the evidence presented is insufficient to establish that Coach’s claims against all of the defendant domain names are related, that they arise from the same transaction or occurrence, or that there is any joint action among all the defendant domain names that warrants relief under the ACPA in a single action.Id. at 15.

First, if the Doe defendant does not reside in “the judicial district in which the action was brought” then they may argue that they are not subject to the personal jurisdiction of the court. Second, “the Doe defendants [can] contend that joinder of the defendants is improper under Federal Rule of Civil Procedure 20(a)(2).”To skirt this judicial hurdle, the plaintiffs in three of the four underlying cases named a single defendant connected to an IP address located in the district where each respective suit was filed, but were seeking through discovery the identities of individuals linked to non-party IP addresses, or those that were not joined as defendants.

Test for Joinder Is Satisfied When the Facts Giving Rise to the Cause of Action Against Each Defendant Substantially Overlap 11-M100 May 04, 2012 Emsley, Rachel L. Decision Last Month at the Federal Circuit - June 2012Judges: Rader, Dyk (author), Moore [Appealed from: E.D. Tex., Judge Schneider] In In re EMC Corp., No. 11-M100 (Fed. Cir. May 4, 2012), the Federal Circuit granted petitioners’ writ of mandamus, directing the district court to reconsider the defendants’ motions to sever and transfer in light of the correct test under Fed. R. Civ. P. 20(a) to determine whether the claims “aris[e] out of the same transaction, occurrence, or series of transactions or occurrences.” Slip op. at 3 (alteration in original) (quoting Fed. R. Civ. P. 20(a)).

Eight of the eighteen defendants moved to sever and transfer the claims against them to more appropriate venues. They argued that because there was no concert of action, the claims against them did not arise out of the same transaction or occurrence, as required by Federal Rule of Civil Procedure 20, which governs permissive joinder of parties. Oasis Research opposed, arguing that because the accused infringement was limited only to online backup/storage, each defendant offered a similar online backup/storage service, and the steps taken to provide those services were all alleged to infringe, the claims arose out of the same transaction or occurrence.

Several of the defendants (including EMC) filed a writ to the Federal Circuit seeking a venue transfer. The Federal Circuit, after noting that § 299 of the AIA has no retroactive affect, analyzed the dispute under the joiner consideration set forth in Fed. R. Civ. P. 20. Under Rule 20(a)(2), defendants can only be joined if the claims against them are asserted “with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences,” and there is a “question of law or fact common to all defendants.”

The answer lies in the federal rules of civil procedure, which allow multiple defendants to be joined in a single case where the claims arise “out of the same transaction, occurrence, or series of transactions or occurrences.” (Fed. R. Civ. P. 20(a)(1)). How do the copyright plaintiffs claim the benefit of this rule?The answer lies in a variation of the BitTorrent peer-to-peer file-sharing technology known as “BitTorrent swarm” or segmented file transfer.

Notably, the court did not stop there. Rather, it also concluded under Federal Rule of Civil Procedure 20(a) that the 52 named plaintiffs could not bring their claims together in one suit because there was no common plan or policy that applied to all 52 of them. As such, the court dismissed the case to all but the first named plaintiff.

Rule 20 allows plaintiffs to join defendants if “(a) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction occurrence, or series of transactions or occurrences; and . . . (b) any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20 (emphasis added). Rule 20 appears to be, however, virtually identical to the patent-specific joinder requirements in Section 299.

The Federal Circuit granted mandamus and, in an order issued in May 2012, rejected Judge Mazzant's test for severance. The Federal Circuit held that, in pre-AIA cases such as this one, claims against independent defendants could not be joined under the transaction-or-occurrence test of FRCP 20 "unless the facts underlying the claim of infringement asserted against each defendant share an aggregate of operative facts." The court did not express an opinion on the issue of venue and remanded to the district court.