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Chen v. Jun

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

October 31, 2018

XIAOMEI CHEN, Plaintiff,
v.
LING BING JUN, et al. Defendants.

          REPORT AND RECOMMENDATION

          THERESA CARROLL BUCHANAN UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on Plaintiffs Motion for Entry of Default Judgment (Dkt. 9). After a representative for Defendants failed to respond to Plaintiffs Motion or to appear at the hearing on September 28, 2018, the undersigned U.S. Magistrate Judge took Plaintiffs Motion for Entry of Default Judgment under advisement.[1]

         I. INTRODUCTION

         A. Background

         On June 27, 2018, Xiaomei Chen, ("Plaintiff) filed this lawsuit against Lin Bing Jun ("Jun"), and 789365.com, 402013.com, 402014.com, 402015.com, and vip999365.com (the "Domain Names") (collectively, "Defendants"). Plaintiff alleges that he is the rightful owner of the Domain Names and associated trademarks ("Marks"), (Compl. ¶ 11; Chen Decl. ¶¶ 4-6), and that Jun illegally transferred the Domain Names to his accounts without Plaintiffs authorization or permission (Compl. ¶¶ 13-17; Chen Decl. ¶¶ 6-7, 9). Plaintiff therefore sued Defendants alleging violations of the Anti-Cybersquatting Consumer Protection Act ("ACPA"), 15 U.S.C. § 1125(d). (Compl. ¶¶ 23-29.) Plaintiff now seeks default judgment against Jun for violations of ACPA, [2] and Plaintiff also seeks an order directing that the Domain Names be transferred to Plaintiff. (Mot. Default J. at 1-2.)

         B. 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 brings this cause of action pursuant to ACPA (15 U.S.C. § 1125(d)) and alleges that this court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. (Compl. ¶ 5; Mem. Supp. at 3.)

         Plaintiff alleges that this Court has in rem jurisdiction over the Domain Names, pursuant to 15 U.S.C. § 1125(d)(2)(A), as the registry for the Domain Names is Verisign, Inc., located at 12061 Bluemont Way, Reston, Virginia 20190, and the currently listed registrant, Jun, is a citizen and resident of China without sufficient contacts to confer personal jurisdiction in this court. (Compl. ¶¶ 2, 6; Mot. PubPn at 1; Mem. Supp. at 3.) Plaintiff alleges that venue is proper in this District pursuant to 15 U.S.C. § 1125(d)(2)(C), because the registry for the Domain Names, Verisign, Inc., is located in this district. (Compl. ¶ 6.) Given the uncontested allegations that the registry for the Domain names is located in this District, and that the registrant, Jun, is not subject to personal jurisdiction in this court, the undersigned finds that the Court has subject matter jurisdiction over this action, the Court has in rem jurisdiction over the Domain Names, and that venue is proper in this Court.

         C. Service of Process

          Rule 4(n)(1) provides that the court may assert service over property if authorized by a federal statute, and notice to claimants of the property must be given as provided in the statute or by serving a summons under this rule. A plaintiff filing an in rem action under 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). Under 15 U.S.C. § 1125(d)(2)(A)(ii)(II)(bb), if the court finds that the owner through due diligence was not able to find a person who would have been a defendant for violating any right of the owner of a mark protected under subsections (a) or (c), a plaintiff may publish a notice of the action as directed by the court.

         On July 11, 2018, Plaintiff attempted postal service on Defendant Jun using the postal information provided in the registration of the Defendant Domain Names, but could not complete service as the address provided was not in fact an actual postal address. (McCool Decl. ¶ 3.) Also on July 11, 2018, Plaintiff forwarded a copy of the Complaint to Defendant Jun at the e-mail address provided by ICANN, GoDaddy.com, and NameSilo.com. (Id. ¶ 4, Ex. A-l.) On July 23, 2018, Plaintiff moved for notice by publication, alleging that Jun was not subject to personal jurisdiction anywhere in the United States for their in rem action. (Mot. Publ'n at 1.) On July 24, 2018, the Court granted plaintiffs motion and directed plaintiff to publish a notice in the Richmond Times-Dispatch (Dkt. 5). On July 28, 2018, Plaintiff published a notice in the Richmond Times-Dispatch (Dkt. 6). Based on the foregoing, the undersigned finds that service of process has been accomplished as set forth in 15 U.S.C. § 1125(d)(2)(A)(ii).

         D. Grounds for Default Judgment

         To date, no party with an interest in the Domain Names has appeared or otherwise participated in these proceedings. On July 28, 2018, The Richmond Times-Dispatch published a notice of this action, which informed parties with an interest in the Domain Names of the need to respond in this case within twenty-one (21) days (Dkt. 6-2).[3] No. party responded on behalf of Defendants by August 18, 2018. As a result, on August 22, 2018, Plaintiff filed a Request for Entry of Default (Dkt. 7), seeking an entry of default for Defendants, and the Clerk of the Court issued the Entry Default (Dkt. 8) on the same day. Plaintiff filed his Motion for Entry of Default Judgment (Dkt. 11) on August 31, 2018. The undersigned U.S. Magistrate Judge then held a hearing on Plaintiffs Motion for Entry of Default Judgment on September 28, 2018, at which no representative for Defendants appeared. Finding the matter uncontested, the undersigned took the matter under advisement to issue this Report and Recommendation.

         II. FIN ...


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