UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
James B. Strickland,
Civil action no. 00-CV-3343
JUDGE BRUCE W. KAUFFMAN
OPPOSITION TO REQUEST FOR SANCTIONS
Plaintiff Strick Corporation ("SC") has filed a Reply to Defendant's Response to Plaintiff's Motion to Deposit Registrar Certificate in Registry of the Court and Request for Sanctions, court docket no. 24. This follows SC's original Motion (docket no. 3) and Mr. Strickland's Opposition (docket no. 22).
Nothing about these papers is even remotely relevant to this case. The papers of SC relating to NSI's Registrar Certificate stopped having anything to do with this case weeks ago, when NSI stopped being the registrar for the domain name that is the subject of this case. It does not matter at all for the purposes of this case which registrar Mr. Strickland uses for his domain name, or that he has changed his registrar, any more than it matters who hosts his web site at www.strick.com or who provides his email service for strick.com. Nothing that Mr. Strickland has done on this subject is any more significant than if he had switched over his long-distance telephone service from AT&T to Sprint.
SC's latest paper (docket no. 24) asks that this Court impose sanctions upon Mr. Strickland and/or his counsel. Were it not for the sanction request, Mr. Strickland would not now add any more paper to this subject, given its lack of any relevance to the case. Unfortunately, given the request for sanctions, Mr. Strickland has no choice but to file yet another paper with this court, opposing the request for sanctions. A Third Declaration of Mr. Strickland is attached in support of this paper.
Briefly, SC says that Mr. Strickland "sneaked" his strick.com domain name "out the proverbial back door" (paper no. 24, page 5) and that the domain name had been "shangaied" (page 7). SC says that Mr. Strickland's "bad faith actions ... must be sanctioned" (page 8). The accusations are false; this paper opposes the request for sanctions.
It is not improper for any domain name owner to transfer a domain name from NSI to another registrar even when litigation is pending. SC states, incorrectly, that transferring a domain name to another registrar when litigation is pending is somehow "contrary to Network Solutions' existing policies" (page 5). NSI's policy may be found at http://www.domainmagistrate.com/dispute-policy.html#transfers:
You may transfer administration of your domain name registration to another registrar during a pending court action or arbitration, provided that the domain name you have registered with us shall continue to be subject to the proceedings commenced against you in accordance with the terms of this Policy.
A copy of this policy is attached as Exhibit A. Mr. Strickland was merely doing what NSI's policy permitted him to do, which is to transfer the administration of his domain name registration to another registrar during a pending court action.
It is perhaps relevant to note that the word "transfer" appears in this NSI policy in two different contexts -- transferring a domain name to a new owner, or transferring a domain name to a new registrar. These are not the same thing. The former is like selling a car, while the latter (as mentioned above) is like switching one's long-distance service from AT&T to Sprint. It can be speculated that SC's accusations of bad faith directed to Mr. Strickland may be based on a failure to appreciate the difference between a domain name transfer to a new owner or a mere transfer to a new registrar.
It was not improper for Mr. Strickland to transfer his domain name to another registrar in this particular case, nor was it somehow sinister that he did so on the day that he did. On July 10, 2000, Network Solutions, Inc. ("NSI") wrote to Mr. Strickland, stating that because he had prevailed in the National Arbitration Forum proceeding, Mr. Strickland would be free to transfer his domain name to another registrar on July 28, 2000, but not before. (Third Declaration of James Strickland, hereinafter "Third Decl.", para. 1.) A copy of this letter is attached as Exhibit B. It should be appreciated that Mr. Strickland, having received this letter from NSI (who ought to know what is permitted under its policy and what is not) explicitly stating that he would be free to transfer registrars as of a particular date, was quite justified in proceeding with his plans to transfer the domain name. It should also be appreciated that this letter states that it was copied to the "Complainant," and as a consequence SC was on notice that a transfer of registrar could happen as soon as July 28, 2000.
By coincidence, July 28, 2000 was also the expiration date of the annual fee which Mr. Strickland had paid to NSI a year earlier for this domain name. (Third Decl. para. 2.) Only within the past year has it become possible for domain name owners to switch their domain names away from NSI and to other registrars. (Analogously, it was once the case that all telephone customers had to use AT&T, but as a result of regulatory change it later became possible for telephone customers to switch their service to other long-distance carriers.) Other registrars, including NameSecure and DomainDiscover, offer better customer service than NSI and cheaper prices, and this motivates domain name owners to switch away from NSI. (Third Decl. para. 3.) To avoid loss of his domain name, Mr. Strickland had to either pay another annual fee to NSI (which he strongly wished not to do) or had to accomplish the domain name to another registrar on or before July 28, 2000. (Third Decl. para. 2.)
Those who are familiar with NSI and its domain name registration services are aware that there have been highly publicized incidents involving domain names owned by well-known companies, where a domain name owner failed to pay an annual fee (or where NSI failed to credit an annual fee properly) and NSI then allowed the domain name to lapse and fall into the hands of some new, unrelated owner. These highly publicized incidents (and many others that have not been highly publicized) provide additional good reason why a domain name owner such as Mr. Strickland might choose to transfer a domain name away from NSI.
Given the coincidence that July 28 was both the first day and the last day on which he had to accomplish the transfer to another registrar, this placed a lot of pressure on Mr. Strickland to get the transfer done. Even a loss of a day or two past the expiration of the annual fee (on July 28) posed a substantial risk that NSI would allow the domain name to lapse and fall into the hands of some new and unrelated owner. It was imperative that the transfer be accomplished on July 28.
Although SC did not disclose its actions to Mr. Strickland at the time, SC now reveals that on July 11, 2000, SC went to NSI and asked it for a "Registrar Certificate." Although NSI did not disclose it to Mr. Strickland at the time, it is now known that on Wednesday, July 26, 2000, NSI signed the "Registrar Certificate" and sent it by Federal Express to SC. SC now says it received the Federal Express package on Thursday, July 27, 2000, although at the time it did not disclose this event to Mr. Strickland. It turns out that NSI and SC each chose to use the Postal Service to let Mr. Strickland know of their actions, NSI in a letter dated on Wednesday, July 26, and SC in a paper dated Friday, July 28. As of Sunday, July 30, neither of these items of mail had reached Mr. Strickland (Strickland Second Declaration, paras. 4-5). Thus, while Mr. Strickland was aware of the filing of the Complaint in this action, he had no way of knowing that SC, having subsequently lost its challenge in the UDRP proceeding, would go forward with its efforts to use the federal court system to try to obtain the coveted domain name.
As mentioned above, Friday, July 28 was both the first day which NSI had told Mr. Strickland he would be able to transfer the domain name, and the last day on which he could transfer it without risking loss of the domain name due to the expiration of his previously paid annual fee. It will surprise no one that Mr. Strickland chose that day rather than some other day to ask NSI to transfer the domain name to the new registrar. As it turns out, NSI dragged its feet, and it became necessary for Mr. Strickland's lawyer to telephone NSI and demand prompt action by NSI so as to avoid loss of the domain name due to the imminent expiration date.
From the foregoing discussion it is clear that there is nothing sinister about Mr. Strickland's selection of that particular date (July 28) to transfer his domain name to another registrar.
NSI approved the transfer on Sunday, July 30, 2000, as evidenced by its email message of that date, attached as Exhibit C. After Sunday, July 30, Mr. Strickland and his counsel learned of the existence of the "Registrar Certificate," but by then the domain name had already been transferred to the new registrar.
Mr. Strickland carried out the transfer of his domain name from NSI to a different registrar openly and made no attempt to conceal it in any way. (Third Decl. para. 5.) The transfer was, in fact, a matter of public record, visible to anyone within a day or two of the transfer by looking up the domain name at http://www.nsiregistry.com. (Third Decl. para. 5.)
SC urges to this Court that Mr. Strickland or his counsel somehow behaved improperly in "demanding" NSI's action on the July 28 transfer, or in failing to mention to NSI the fact that weeks earlier, SC said it had filed a lawsuit against Mr. Strickland. But as mentioned above, NSI's policy explicitly permits transfers of domain names to other registrars during pendency of litigation. In any event, by SC's own admission, it had already informed NSI of the pendency of its litigation weeks earlier on July 11. NSI cannot claim to be surprised now that the litigation was pending when it approved the transfer on July 30. And SC cannot claim that NSI was unaware of the pending litigation when NSI approved the transfer on July 30.
It is shocking that NSI would promise to SC on Wednesday, July 26 that it would refuse to let Mr. Strickland do anything with his domain name, and that NSI would four days later explicitly approve Mr. Strickland's transfer request. NSI's response is that its left hand did not know what its right hand was doing, being located in different buildings (Graves Declaration para. 18). NSI says further that it plans to take corrective action in future to avoid taking such inconsistent actions (Graves Declaration p. 26). Those who are experienced with NSI's actions in domain name disputes know well how erratic and inconsistently NSI acts in such cases. Such unpredictable behavior by NSI is yet another reason why Mr. Strickland wanted so urgently to get his domain name away from NSI.
SC cannot, however, claim to be surprised at the news that the transfer of the domain name had occurred. Such transfers are, as mentioned above, a matter of public record, visible at http://www.nsiregistry.com. SC could have learned of the transfer as long ago as about July 30, 2000 simply by visiting that web site. (Third Declaration para. 5.) In any event, Mr. Strickland directed SC's attention to the http://www.nsiregistry.com web site on November 30, 2000 (letter attached as Exhibit D) and pointed out that the transfer had occurred, so SC was aware of the transfer on that date if not before.
SC should be sanctioned. On November 30, 2000 (id.), SC was asked in writing to withdraw its motion, and apparently learned for the first time of that NSI had repudiated its promises to SC embodied in the "Certificate" which NSI had sent by Federal Express to SC. Regrettably, SC transferred its frustration with NSI to Mr. Strickland. In doing so, SC forced Mr. Strickland to incur the expense of preparing and filing not one but two papers dealing with SC's motion regarding its ill-fated "Registrar Certificate," namely this paper and paper no. 22. SC should not have done this, and if there are sanctions to be awarded, they should be awarded against SC. SC should pay Mr. Strickland's attorneys fees and costs for preparing this paper and paper no. 22.
Mr. Strickland took his transfer actions on the only date available to him, July 28. On that date he was quite unaware of SC's private negotiations with NSI or NSI's private promises to SC. NSI had told Mr. Strickland in writing that he could transfer the domain name on that day, and two days later told him that it had approved the transfer. While SC may be justly frustrated at NSI's actions, SC should not take out its frustrations on Mr. Strickland.
A suitable Order is attached.
Dated December 15, 2000.
Admitted pro hac vice on October 12, 2000
Oppedahl & Larson LLP
P O Box 5088
Dillon, CO 80435-5088
Certificate of Service
I hereby certify that this paper has been served upon plaintiff, Strick Corp., by its attorneys:
Arthur H. Seidel, Esq.
Seidel, Gonda, et al.
2 Penn Center Plaza #1800
Philadelphia, PA 19102-1786
by Federal Express, airbill number 7909 0209 7626 upon Mr. Seidel, this 15th day of December, 2000.
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
Civil action no. 00-CV-3343
JUDGE BRUCE W. KAUFFMAN
James B. Strickland,
Upon consideration of plaintiff Strick Corporation's Motion to Deposit Registrar Certificate into the Registry of the Court, court docket no. 3, and upon consideration of subsequent papers including court docket nos. 22, and 24, it is hereby ORDERED that the Motion is denied as moot. It is further ORDERED that plaintiff may retrieve the original Registrar Certificate from the Clerk of Court within ____ days of the date of this Order, and that if the original Registrar Certificate is not retrieved by plaintiff within that time, the Clerk may dispose of the Certificate as the Clerk sees fit.
Upon consideration of plaintiff Strick Corporation's Reply to Defendant's Response to Plaintiff's Motion to Deposit Registrar Certificate in Registry of the Court and Request for Sanctions, court docket no. 24, and the Opposition thereto, it is hereby ORDERED that the Request for Sanctions against defendant James Strickland is denied.
It is further ordered that plaintiff Strick Corporation pay defendant James B. Strickland's attorneys' fees and costs incurred in answering the present Motion and request for sanctions, and that defendant James B. Strickland submit, within ________ days of the date of this order, a verified Bill of Costs detailing his attorney's fees and costs therefor.
Ordered this __________ day of _________, _____.
By the Court:
Judge Bruce W. Kauffman
United States District Judge