More than you can chew

Mass tort litigation can promote judicial economy and efficiency in managing cases. As often quoted, the purpose of joinder is “to promote trial convenience and expedite the final resolution of disputes, thereby preventing multiple lawsuits, extra expense to the parties, and loss of time to the court as well as the litigants appearing before it.” West Coast Productions, Inc. v Does 1–5,829, 275 FRD 9, 15 (DDC 2011)

However, with great cases comes great responsibility. In the pending We 3 Kings, Inc. v. The Steve Harvey Show, et al. case the plaintiff complained that The Steve Harvey Show incorporated cue music in its production without a license. Rather that bring suit against the production company and distributor, plaintiff named each TV station that aired the show, for a total of over 200 defendants. This action also listed each time the music was used in the entire season, 268 times, and claimed $700 in damages for each use against each TV station individually for a total of 225 x 268 x $700 or $42,000,000+. (Note, the case claims $42,310,000 not $42,210,000, which may simply be a math error, or may incorporate additional defendants.)

One thing plaintiff seemed to have overlooked is that this case actually has over 200 defendants. Each defendant is a party to the case and more than simply a number in a damages calculation. When faced with the massive task of serving 200+ defendants, the plaintiff failed to follow through and effect service and then failed to dismiss the outstanding defendants. (There are other indications that the attorneys for plaintiff were non-responsive and generally failing to follow through on a number of issues.) In March 2015, well after the deadline for all defendants to be served, several of the defendants who had been served filed a motion to dismiss the balance of the parties.   The court then on its own issued a Show Cause Order demanding an explanation from the plainitff.

The result was predictable. As per the court order:

On April 13, 2015, Plaintiff and its counsel were ordered to show cause why they should not be sanctioned in the amount of $1,000 for (1) their unnecessary joinder of an extremely large number of defendants whom they apparently had no interest in pursuing in this Court and (2) their failure to respond to either the motion to dismiss or the Court’s OSC. Plaintiff’s response states only that Plaintiff is seeking new counsel and finding new counsel is taking longer than expected. For reasons left to the imagination, Plaintiff – or at least its counsel – seems to believe that this explains the failure to serve the extremely large number of defendants who were named in this case. It does not. In addition, the response fails to offer any reason for Plaintiff’s failure to respond to the motion and the OSC or for its joinder of numerous defendants it has failed to serve.

Plaintiff and its counsel are therefore sanctioned, jointly and severally, in the amount of $1,000. This amount is to be paid to the Clerk of Court no later than May 4, 2015. Counsel must file a declaration no later than May 5, 2015 stating that the sanctions have been paid.

– Order of April 24, 2015

A few things to keep in mind on this case:

– This is a $1,000 sanction in a multi-million dollar case. Copyright liability is strict and it is likely the defendants will eventually pay the plaintiff far more than this sanction of the court.

– The real lesson here: joinder may make cases more efficient, but it does not make them easy. With great cases comes great responsibility… and a lot of work. You still have to do the work.

Key documents:

The complaint: We Three Kings v. The Steve Harvey Show et al., 2:14-cv-08816, (C.D. Cal.)

April 24, 2015 Order of Judge Dale S. Fisher, 2:14-cv-08816, (C.D. Cal.)

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