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Latham & Watkins LLP v. Hiring-Lw.Com

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

June 11, 2018

LATHAM & WATKINS LLP. Plaintiff.
v.
HIRING-LW.COM, Defendant.

          PROPOSED FINDINGS OF FACT AND RECOMMENDATIONS

          JOHN F. ANDERSON UNITED STATES MAGISTRATE JUDGE

         This matter is before the court on plaintiffs motion for default judgment pursuant to Federal Rule of Civil Procedure 55(b)(2). (Docket no. 20). In this action, plaintiff Latham & Watkins LLP ("plaintiff') seeks a default judgment ordering that the registration for the domain name defendant. <hiring-lw.com>, be transferred to it. Pursuant to 28 U.S.C. § 636(b)(1)(C), the undersigned magistrate judge is filing with the court his proposed findings of fact and recommendations, a copy of which will be provided to all interested parties.

         Procedural Background

         On November 30, 2017. plaintiff filed a single count complaint against domain name <hiring-lw.com>. The complaint alleges a violation of the Anti-Cybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d) ("ACPA"). (Docket no. 1). On March 16, 2018, plaintiff moved to either waive service by publication, or enter an order permitting service by publication. (Docket no. 10). On that same day, the court ordered plaintiff to file a notice in either The Washington Post or The Washington Times and to send a copy of the order to the registrant for the defendant domain name at the listed physical address and email address provided to the registrar notifying the registrant that it had twenty-one (21) days from the date of publication to file a responsive pleading. (Docket no. 14). On March 23, 2018, plaintiff filed a proof of publication affirming that it published a notice of this action in The Washington Post on March 22, 2018. (Docket no. 15-3). Plaintiff also affirmed that it sent a copy of the publication order to the physical address and email address provided by the registrant to the registrar. (Docket no. 15). On May 10, 2018, the court directed plaintiff to obtain an entry of default (Docket no. 17), which it requested on May 11, 2018 (Docket no. 18), and received as to the defendant domain name <hiring-lw.com> on May 14, 2018 (Docket no. 19). On May 23, 2018, plaintiff filed this motion for default judgment (Docket no. 20) and noticed the hearing for June 8, 2018 at 10:00 a.m. (Docket no. 23). The certificates of service on the motion and notice of hearing indicate that the registrant was sent both documents at the physical address and email address provided to the registrar for the defendant domain name. (Docket nos. 20, 23). At the hearing on June 8, 2018, counsel for the plaintiff appeared, but no one appeared on behalf of the defendant domain name or to make a claim to the defendant domain name.

         Factual Background

         The following facts are established by the complaint (Docket no. 1) ("Compl."). Plaintiff Latham & Watkins LLP is one of the world's largest law firms with over 2, 220 attorneys in fourteen different countries around the globe. (Compl. ¶ 9). Plaintiff has offered professional legal services under the "LATHAM & WATKINS" mark and associate logos and terms, including the "LW" term since its founding in Los Angeles, California in 1934. (Compl. ¶ 11). Plaintiff owns and operates the <lw.com> domain name, which it registered in October 1994, and uses it to host its primary website, send and receive emails, and otherwise conduct business around the world. (Compl. ¶ 12). Through plaintiffs widespread and continuous use of the "LW" mark to provide its legal services in interstate commerce, the mark has acquired extensive goodwill, developed a high degree of distinctiveness, and become well-known and recognized as identifying services originating from plaintiff. (Compl. ¶ 15).

         The defendant domain name <hiring-lw.com> is a domain name registered on October 6, 2016 with the registrar Network Solutions LLC and the registry for this top level <com> domain name is VeriSign Global Registry Services. (Compl. ¶¶ 2, 3, 5). The registrant for the defendant domain name listed in the WHOIS database is Perfect Privacy LLC. (Compl. ¶ 4). For a fee, Perfect Privacy LLC provides its contact information on the public WHOIS database so the true registrants of domain names may avoid disclosing their identifying information. (Id.).

         Plaintiff recently learned of various scams being perpetrated against the public that use the <hiring-lw.com> domain name and impersonate various members of the plaintiff law firm. (Compl. ¶ 16). On November 2016, a member of the public received an email from the <hiring-lw.com> domain name regarding potential employment with plaintiff using the name of an associate from plaintiffs London office in its standard [FirstName].[LastName] email format. (Compl. ¶¶ 14, 17). The potential victim began to doubt the scammer's identity and ultimately emailed the impersonated associate to alert her that her email account may have been hacked. (Compl. ¶ 19). Other victims went through the same process wherein they received fraudulent offers for work-from-home positions with plaintiff, at which point the scammers would mail a check to each victim and direct them to furnish a home office and refund the remaining amounts. (Compl. ¶ 20). By the time the initial check from the scammers bounced, the victims had already purchased the home equipment and sent the scammers the "remaining" funds from their own personal accounts. (Compl. ¶ 20). Other victims were directed to submit a check to cover training materials with a fraudulent promise of future reimbursement. (Compl. ¶ 21).

         On November 28, 2016, plaintiff wrote to Network Solutions LLC and Perfect Privacy LLC with an electronic copy to the domain name registrant's listed email address, demanding that the <hiring-lw.com> domain name be disabled, and the true owner's identity be revealed, and that the domain name be surrendered to plaintiff. (Compl. ¶ 22). Despite further attempts to contact the responsible parties, plaintiff never received a response. (Compl. ¶ 22). As of the filing of the complaint, plaintiff continued to receive reports from victims or potential victims regarding the <Wring-lw.com> domain name, including incidents in March and April 2017. (Compl. ¶ 23).

         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 the failure to plead or otherwise defend against the action, the Clerk of Court has entered a default as to the defendant domain name <hiring-lw.com>. (Docket no. 19).

         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 also GlobalSantaFe 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 a hearing to determine the amount of damages, establish the truth of any allegation by evidence, or investigate any other matter when necessary to enter or effectuate judgment.

         Jurisdiction and Venue

         A court must have both subject matter and personal jurisdiction over a defaulting party before it can render a default judgment. Plaintiff has asserted a claim against the defendant domain name pursuant to the ACPA (15 U.S.C. § 1125(d)) and alleges that this court has ...


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