United States District Court, E.D. Virginia, Alexandria Division
REPORT AND RECOMMENDATION
THERESA CARROLL BUCHANAN, UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Plaintiff's Motion for
Entry of Default Judgment (Dkt. 11). After a representative
for Defendants failed to respond to Plaintiff s Motion or to
appear at the hearing on December 8, 2017, the undersigned
U.S. Magistrate Judge took Plaintiff's Motion for Entry
of Default Judgment (Dkt. 11) under advisement.
November 11, 2017, Precision Telephone Services, Inc.,
("Plaintiff") filed this lawsuit against individual
defendant John Doe ("Doe") and defendant domain
name <roxi.com> ("Subject Domain Name")
(collectively "Defendants"). Plaintiff alleges that
Doe hijacked Plaintiff's email account and transferred
control of the Subject Domain Name from Plaintiff to Doe with
the intent to gain the Subject Domain Name's advertising
revenue for himself. (Compl. ¶¶ 23-29.) Plaintiff
therefore brought suit against Defendants alleging violations
of the Anti-Cybersquatting Consumer Protection Act
("ACPA"), 15 U.S.C. § 1125(d), and the
Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C.
§ 1030, along with common law tort claims. (Id.
¶¶ 36-56.) Plaintiff now seeks default judgment
against the Subject Domain Name in rem and an order
directing that the Subject Domain Name be transferred to
Plaintiff. (Mot. Default J. at 2.) Plaintiff further requests
that the CFAA claims and the common law tort claims be
dismissed without prejudice. (Id.) Therefore, this
Report and Recommendation addresses only the relief requested
pursuant to the ACPA claim.
Jurisdiction and Venue
Court has subject matter jurisdiction over this action
pursuant to 28 U.S.C. §§ 1331 and 1338(a), because
this action involves a federal question arising under the
ACPA, which is a federal law relating to trademarks. (Compl.
Court has in rem jurisdiction over the Subject
Domain Name, pursuant to 15 U.S.C. § 1125(d)(2)(A),
because Plaintiff has alleged violations of its trademark,
Plaintiff cannot obtain in personam jurisdiction
over defendant Doe, and the registry for the Subject Domain
Name, Verisign, Inc., is located in this district. (Compl.
¶¶ 6, 9, 20, 32.)
is proper in this District pursuant to 15 U.S.C. §
1125(d)(2)(C), because the registry for the Subject Domain
Name, Verisign, Inc., is located in this district.
(Id. ¶ 9.)
Service of Process
plaintiff filing an in rem action under the ACPA
must provide notice via service of process of the action to
the registrant of the allegedly infringing domain name. 15
U.S.C. § 1125(d)(2)(A)-(B). When a plaintiff is not able
to obtain in personam jurisdiction over a person who
would have been a defendant in an ACPA action, then service
of process is sufficient if the plaintiff sends notice of the
alleged violation and intent to bring the action to the
registrant of the domain name at the postal and email
addresses to the domain name registrar and publishes notice
of the action as a court may direct after filing the action.
Id. § 1125(d)(2)(A)(ii), (B).
undersigned concludes that Plaintiff cannot obtain in
personam jurisdiction over Doe, the current registrant
of the Subject Domain Name. Doe gained possession of the
Subject Domain Name some time before October 8, 2017. (Compl.
¶ 7.) The information set forth on the WHOIS registry, a
P.O. Box address in San Mateo, California, and an email
address of email@example.com, is incomplete and
insufficient to identify him. (Id. ¶ 7, Ex. A.)
Doe is therefore outside the scope of in personam
jurisdiction, and notice to Doe is sufficient if Plaintiff
meets the aforementioned ACPA service of process
satisfied the ACPA service of process requirements through
its attempts to contact Doe, who is currently in possession
of the Subject Domain Name. On November 3, 2017, Plaintiff
sent copies of the Complaint (Dkt. 1) and all exhibits to the
postal delivery and email addresses provided on the WHOIS
registry, the only available methods of communication with
Doe. (Notice Compl. at 2.) On November 7, 2017, the Court
entered an Order (Dkt. 6) granting Plaintiff's Motion for
Leave to Serve Process by Email and Publication (Dkt. 3). On
November 9, 2017, Plaintiff had The Washington Times
publish a notice of this action, as ordered by the Court.
(Proof Publ'n; Aff. Publ'n.) Therefore, Plaintiff
sent notice of the alleged violation and intent to bring the
action to Doe at the provided postal and email addresses, and
Plaintiff published notice of the action as the Court
directed, so service of process for Plaintiff's in
rem ACPA action is deemed complete.
Grounds for ...