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Precision Telephone Services, Inc. v. Doe

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

December 18, 2017

PRECISION TELEPHONE SERVICES, INC., Plaintiff,
v.
JOHN DOE, et al., Defendants.

          REPORT AND RECOMMENDATION

          THERESA CARROLL BUCHANAN, UNITED STATES MAGISTRATE JUDGE

         This 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.[1]

         I. INTRODUCTION

         A. Background

         On 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.

         B. Jurisdiction and Venue

         The 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. ¶ 1.)

         This 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.)

         Venue 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.)

         C. Service of Process

         A 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).

         The 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 privacy@dynadot.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 requirements.

         Plaintiff 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.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;D. Grounds for ...


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