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Intercontinental Data Communications Ltd. v. Doe

United States District Court, E.D. Virginia, Alexandria Division

July 15, 2016

INTERCONTINENTAL DATA COMMUNICATIONS LTD., Plaintiff,
v.
JOHN DOE, et al., Defendants.

          Intercontinental Data Communications Ltd., Plaintiff, represented by Attison Leonard Barnes, III, Wiley Rein LLP.

          PROPOSED FINDINGS OF FACT AND RECOMMENDATIONS

          JOHN F. ANDERSON, Magistrate Judge.

         This matter is before the court on the motion for default judgment filed by Intercontinental Data Communications Ltd. ("plaintiff") pursuant to Federal Rule of Civil Procedure 55(b)(2). (Docket no. 19). Pursuant to 28 U.S.C. § 636(b)(1)(C), the undersigned magistrate judge is fi ling with the court his proposed findings of fact and recommendations, a copy of which will be provided to all interested parties.

         Procedural Background

         On June 2, 2016, plaintiff filed a complaint in this matter. (Docket no. 1). On June 3, 2016, plaintiff filed its amended complaint against the defendant domain name <21.com> ("defendant domain name") for cybersquatting pursuant to the in rem provisions or the Anticybersquatting Consumer Protection Act ("ACPA"), 15 U.S.C. § 1125(d), and against the defendant John Doe for violation of the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030 et seq. (Docket no. 3). Plaintiff's amended complaint sought an order directing Verisign, Inc. to transfer the registration for the defendant domain name from its current registrar to eNom, Inc., and thereafter, directing that eNom, Inc. change the registrant of the defendant domain name to the plaintiff. ( Id. at 11). The amended complaint also sought an award of damages, costs, and reasonable attorney's fees. (Id).

         On June 3, 2016, plaintiff filed a motion for an order to publish notice of action (Docket no. 4), a memorandum in support (Docket no. 5), a declaration of David E. Weslow (Docket no. 5-1 at 2-3) ("First Weslow Decl."), an exhibit in support (Docket no. 5-1 at 5), and a waiver of hearing on the motion (Docket no. 6). Also on that date, plaintiff filed a motion for a preliminary injunction (Docket no. 7), a memorandum in support (Docket no. 8), and a notice setting a hearing on the motion for June 10, 2016 (Docket no. 9).

         On June 6, 2016, the District Judge entered an order granting plaintiff's motion for an order to publish notice of action and directed that a copy of the order be published in The Washington Post or The Washington Times within fourteen (14) days after entry of the order and that a declaration be filed on plaintiff's behalf, no later than twenty (20) days after the entry of the order, describing the steps that have been taken to comply with the order. (Docket no. 10). The order also directed plaintiff to serve a copy of the order on defendant John Doe and the defendant domain name <21.com> via the e-mail address provided in the domain name registration. (Id.). On June 14, 2016, plaintiff filed a declaration by Ari Meltzer (Docket no. 12-1 at 1-2) ("Meltzer Decl.") and an affidavit from Tierra D. McKinley, an authorized agent of The Washington Times (Docket no. 12-1 at 4) ("McKinley Aff."), which described the steps plaintiff took to comply with the court's order to publish notice of action.

         Plaintiff renoticed its motion for a preliminary injunction for a hearing on June 24, 2016. (Docket no. 11). Having received no opposition or response to plaintiff's motion for a preliminary injunction, on June 23, 2016, the District Judge granted plaintiff's motion for a preliminary injunction (Docket no. 14) and entered an Order Granting Preliminary Injunction (Docket no. 15). In that order, the District Judge found, inter alia, that plaintiff has a strong likelihood of succeeding on the merits of its claims that (a) 21.com is a protectable trademark, the defendant domain name has been stolen from plaintiff and thereby registered, trafficked, or used with bad faith intent to profit from plaintiff's 21.com trademark, and (b) defendant John Doe knowingly and intentionally accessed plaintiff's domain name management account on a protected computer without authorization and as a result of such conduct caused damage and loss to plaintiff. (Docket no. 15 at 1-2). Based on those findings, the Court ordered the domain name registry Verisign, Inc. to change the registrar of the defendant domain name to eNom, Inc. and, thereafter, directed eNom, Inc. to list plaintiff as the registrant. ( Id. at 2). Plaintiff was required to post a cash security bond in the amount of $500.00 and to serve a copy of the pleadings, along with a copy of the order, upon Verisign, Inc. (Id.). On June 23, 2016 the plaintiff posted the $500.00 cash security bond. (Docket no. 16).

         On June 30, 2016, plaintiff filed its request for entry of default against the defendants (Docket no. 17), a second declaration of David E. Weslow (Docket no. 17-1 at 1-2) ("Second Weslow Decl."), and an exhibit in support (Docket no. 17-1 at 4). On July 1, 2016, the Clerk of Court entered default against the defendants pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. (Docket no. 18). On July 1, 2016, plaintiff filed its motion for default judgment (Docket no. 19), memorandum in support (Docket no. 20), a third declaration of David E. Weslow (Docket no. 20-1) ("Third Weslow Decl."), and a notice setting a hearing on the motion for July 22, 2016 (Docket no. 21). On July 5, 2016, the undersigned entered an order directing plaintiff to renotice its motion for a hearing on another Friday. (Docket no. 22). On July 8, 2016, plaintiff renoticed its motion for default judgment for a hearing before the undersigned for July 15, 2016. (Docket no. 23) ("amended notice of hearing"). The motion for default judgment, memorandum in support, and amended notice of hearing were sent to the e-mail address listed in the domain name registration record for the defendant domain name: XXXXXXXXX@qq.com. (Docket nos. 19, 20, 23). On July 15, 2016 plaintiff's counsel appeared at the hearing on the motion for default judgment before the undersigned and no one appeared on behalf of the defendants.

         Factual Background

         In ruling on the motion for a preliminary injunction, the District Judge has previously considered the facts underlying the plaintiff's claim and has determined that plaintiff is likely to succeed on the merits of its claim under the ACPA. (Docket no. 15). No new facts have been presented to the Court and it appears undisputed that the defendant domain name is identical to the plaintiff's 21.com mark and that the John Doe registrant obtained the defendant domain name through his unauthorized access of plaintiff's domain registrar account and subsequent transfer of the defendant domain name to a third-party domain name registrar. (Id.).

         Proposed Findings and Recommendations

         Rule 55 of the Federal Rules of Civil Procedure provides for the entry of a default judgment when "a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend." Based on defendants' failure to file responsive pleadings in a timely manner, the Clerk of Court has entered a default as to the defendant domain name and the John Doe defendant. (Docket no. 18).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A defendant in default admits the factual allegations in the complaint. See Fed.R.Civ.P. 8(b)(6) ("An allegation - other than one relating to the amount of damages - is admitted if a responsive pleading is required and the allegation is not denied."); see alsoGlobalSantaFe Corp. v. Globalsantafe.com, 250 F.Supp.2d 610, 612 n.3 (E.D. Va. 2003) ("Upon default, facts alleged in the complaint are deemed admitted and the appropriate inquiry is whether the facts as alleged state a claim."). Rule 55(b)(2) of the Federal Rules of Civil Procedure provides that a court may conduct ...


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