UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
(PHILADELPHIA)
Strick Corporation,
plaintiff
v.
James B. Strickland,
defendant
Civil action no. 00-CV-3343
JUDGE BRUCE W. KAUFFMAN
RESPONSE TO PLAINTIFF'S MOTION TO DEPOSIT REGISTRAR CERTIFICATE INTO THE REGISTRY OF THE COURT
This paper answers plaintiff Strick Corporation's ("SC's") Motion to Deposit Registrar Certificate into the Registry of the Court, court docket no. 3. SC's motion was filed July 28, 2000, but this Court held the Motion in abeyance until issue was joined. SC effected service of process upon defendant James B. Strickland ("Mr. Strickland") on about September 16, 2000, and on November 29, 2000 this Court ordered (court docket no. 17) that defendant's response to the Motion should be made on or before December 14, 2000. The present paper is that response.
The Registrar Certificate ("Certificate") is a document issued ex parte to SC, presumably at SC's request, by Network Solutions, Inc. ("NSI"). The Certificate offers NSI's assurances that it will comply with any orders of the Court concerning a disputed domain name. The fact is, however, that NSI is no longer the registrar with respect to the strick.com domain name, and entry of the Certificate would therefore be meaningless. This should be the end of the matter, because it renders SC's motion moot. However, SC has refused to withdraw its motion on this ground, and has instead suggested that something sinister is afoot because NSI is no longer the registrar. The balance of this paper is an attempt to answer SC's as yet undefined accusations.
THE ROLE OF NETWORK SOLUTIONS, INC.
Network Solutions, Inc. provides registrar services for Internet domain names ending in ".com", ".net", and ".org." Until about a year ago, NSI enjoyed a government monopoly on such registration services. Since that time, the monopoly has been broken, and domain name owners have been free to use registrars other than NSI.
NSI has a policy under which is issues "Certificates" of the type that are the subject of SC's motion. In the Certificate, NSI promises to comply with any order of this Court.(1) NSI's reason for issuing registrar "Certificates" is simple -- it hopes to avoid being sued by parties who are seeking to obtain domain names through litigation. NSI intends that its registrar "Certificate" will reassure the plaintiff as to NSI's intention to comply with court orders, without the need for NSI to be named as a party.
THE PRESENT CASE
In July of 1995, when Mr. Strickland registered strick.com, the only registrar available to Mr. Strickland was NSI. On about January 17, 1997, in accordance with its policies and in reliance on false and defamatory statements made by SC, NSI placed Mr. Strickland's strick.com domain name "on hold." In the spring of 2000, NSI advised complainants like SC that it would remove the hold status on all domains then on hold, unless some formal proceeding contesting rights to the domain was brought. On May 5, 2000, SC selected a forum in which to determine the rights of the parties to the strick.com domain name, that forum being the National Arbitration Forum. The forum constituted a three-person panel, namely Judge Louis E. Condon, Judge Glen Ayers and Professor Milton Mueller. On July 7, 2000, the National Arbitration Forum panel ordered:
Accordingly, for all the foregoing reasons, it is ordered that the domain name "STRICK.COM" be released from the "Hold" with full use restored to the Respondent.
A copy of the National Arbitration Forum decision is attached hereto as Exhibit A.
Under NSI's policy, a prevailing domain name owner such as Mr. Strickland:
may not transfer [his] domain name registration to another registrar during a pending administrative proceeding ... or for a period of fifteen (15) business days (as observed in the location of our principal place of business) after such proceeding is concluded.
The fifteen business days ended on July 28, 2000. On that day Mr. Strickland was free to transfer his domain name to another registrar, and did so.(2) Mr. Strickland chose to apply to transfer the domain name to NameSecure.com, a competitor of NSI. On Sunday, July 30, 2000, NSI sent an email message to Mr. Strickland informing him that his transfer request "has been approved by NSI." A copy of the email message is attached as Exhibit B. Mr. Strickland has subsequently transferred strick.com to another registrar, DomainDiscover.com. That transfer took place on about October 17, 2000.
Because of these transfers NSI ceased to have any registrar role with respect to strick.com on July 30, 2000 when NameSecure.com became the registrar. Presumably this ends any concern on NSI's part that it would be sued as a registrar to ensure compliance with court orders after July 30, 2000 regarding the disposition of the domain name. Moreover, entry of the Certificate at this stage would work to NSI's detriment, since it would commit NSI to doing things that it no longer can do. Thus the certificate is a nullity. Depositing it into the registry of the court would mean nothing and would accomplish nothing. It would simply place an unnecessary burden upon the Clerk of Court if the Clerk were required to maintain custody and control of the "Certificate" for the duration of this litigation.
THERE IS NO WRONGDOING BY MR. STRICKLAND
There was nothing clandestine nor wrongful about Mr. Strickland's actions in transferring strick.com from NSI to NameSecure.com and from NameSecure.com to DomainDiscover.com.(3)
NSI has a reputation of being pro-challenger in its dealings with contested domain names, and also has been reported to be erratic in its enforcement of its policies. Thus, transferring to a different registrar as soon as it was possible was a reasonable action.(4) Moreover, it was an action taken without knowledge that the "Certificate" has been issued.(5)
Nothing on the present record indicates what prompted NSI to issue this "Certificate." We can speculate that SC's counsel may have asked NSI for it, presumably in some ex parte communication between SC's counsel and NSI. Such ex parte communication could have occurred at any time between June 30, 2000 (when the present Complaint was filed) and July 26, 2000 (when NSI executed the "Certificate"). SC's counsel did nothing to disclose to Mr. Strickland (or to his counsel) that SC was seeking the "Certificate."
The first that Mr. Strickland learned of the existence of this "Certificate" was on or about August 8, 2000, when the undersigned received an envelope by mail from SC's counsel containing the present Motion. (The certificate of service states that the envelope was mailed on Friday, July 28, 2000.) Thus, on the day (July 28, 2000) that Mr. Strickland asked NSI to transfer strick.com to a different registrar, he was unaware of the existence of the "Certificate" and was unaware that SC had asked NSI to issue it.(6)
THIS MOTION SHOULD HAVE BEEN WITHDRAWN, AND MR. STRICKLAND SHOULD NOT HAVE BEEN FORCED TO INCUR THE EXPENSE OF PREPARING THIS RESPONSE
By a letter dated November 30, 2000, Mr. Strickland's counsel apprised SC's counsel that NSI had some time ago ceased to be the registrar for strick.com. SC's counsel was provided with a printout from http://www.nsiregistry.com showing that NSI was no longer the registrar for strick.com. SC's counsel was thus able independently to confirm that NSI was no longer the registrar for strick.com. SC's counsel was asked to withdraw the motion so as to save Mr. Strickland the expense of having to prepare and file this Answer. No response having been received, SC's counsel was sent a reminder letter on December 5, 2000. SC's counsel responded that day, declining to withdraw the motion and alleging "disturbing facts" associated with the change of registrars.(7) This refusal necessitated the present Answer, and unwarranted and unnecessary expenses by Mr. Strickland.
A suitable Order is attached.
Dated December 6, 2000.
<signed>
Carl Oppedahl
Admitted pro hac vice on October 12, 2000
Oppedahl & Larson LLP
P O Box 5088
Dillon, CO 80435-5088
Telephone 970-468-6600
Email: oppedahl@patents.com
Footnotes:
1. "[NSI's] Policy ... asserts that NSI will abide by all temporary and final Court orders directing the disposition of a domain name without being named as a party to the litigation." Worldsport Networks Ltd. v. Artinternet S.A. et al., civil action no. 99-CV-616, 1999 U.S. Dist. LEXIS 6080 at 4 (E.D.Pa. April 27, 1999).
2. Second Declaration of James B. Strickland, Jr. dated December 6, 2000, paras 1-2 (hereinafter "Second Declaration").
3. It is a matter of public record which registrar a domain name is registered with; any member of the public may type in a query at http://www.nsiregistry.com to learn the registrar that is providing registration services for a particular domain name on a particular date. Attached as Exhibit C is a current printout from http://www.nsiregistry.com showing that strick.com was transferred to DomainDiscover.com on October 17, 2000.
4. Second Declaration, para. 3.
5. Second Declaration, paras. 4-5.
6. Second Declaration, paras. 4-5.
7. Sitting in SC's shoes it must indeed be disturbing that NSI allowed the transfer of the strick.com domain name at approximately the same time it was issuing the Certificate to SC. This is simply an example of the type of unpredictable behavior which prompted Mr. Strickland to transfer the strick.com domain name, however, and not an indication of any wrongdoing by Mr. Strickland.
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, Lavorgna & Monaco, P.C.
Two Penn Center Plaza #1800
Philadelphia, PA 19102-1786
by Federal Express, airbill number 790415931494 upon Mr. Seidel, this 6th day of December, 2000.
<signed>
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
(PHILADELPHIA)
Strick Corporation,
plaintiff
v.
James B. Strickland,
defendant
Civil action no. 00-CV-3343
JUDGE BRUCE W. KAUFFMAN
ORDER
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 the Answer of Defendant James B. Strickland, 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.
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 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.
Ordered this __________ day of December, 2000.
By the Court:
______________________________
Judge Bruce W. Kauffman
United States District Judge