Balsam v. Angeles Technology Inc. et al

Filing 70

ORDER Granting Application for Order Restraining Transfer of Domain Names. Signed by Judge Jeremy Fogel on 10/7/2008. (jflc1, COURT STAFF) (Filed on 10/7/2008)

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**E-Filed 10/7/08**

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION DANIEL L. BALSAM, Plaintiff, v. ANGELES TECHNOLOGY, INC., et al., Defendants. Case Number C 06-4114 JF (HRL) ORDER1 GRANTING APPLICATION FOR ORDER RESTRAINING TRANSFER OF DOMAIN NAMES

Plaintiff Daniel L. Balsam seeks an order restraining the transfer of certain internet domain names pending a hearing on his motion to transfer the domain names permanently. Plaintiff's first amended complaint ("FAC") alleges violations of Cal. Bus. & Prof. Code § 17529.5 and the California Consumer Legal Remedies Act. The Court subsequently entered default judgment against Defendants Angeles Technology, Inc., Futurecast Media LLC, One World Media LLC, Grant Simmons, and John Solamito (collectively, "Defendants"), and awarded Plaintiff $1,125,000 in statutory damages. After the default judgment was entered,

This disposition is not designated for publication in the official reports.

C a s e No. C 06-4114 JF (HRL) O R D E R GRANTING APPLICATION FOR ORDER RESTRAINING TRANSFER ETC. ( JF L C 1 )

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Plaintiff requested writs of execution to enforce the judgment. Writs were served upon each of the Defendants as well as upon two financial services companies alleged to collect subscription fees for Defendants' websites. Plaintiff also filed a motion transfer certain domain names

4 5 6 7 8 9 that Belvedere or one of the Defendants may attempt to transfer two domain names, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 harm if transfer is restrained between now and the November 14 hearing. 2
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allegedly owned by Defendants. Both the motion for transfer of the domain names and execution of the writs served upon the financial services companies are opposed by a third party, Belvedere St. James, Ltd. ("Belvedere"). A hearing on these matters is scheduled for November 14, 2008. Plaintiff is concerned

<adultactioncam.com> and <adultactioncams.com>, out of this Court's jurisdiction before that date. Counsel for Belvedere does not oppose the instant request. In the Ninth Circuit, a party seeking a restraining order must show either (1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and the balance of hardships tipping in the movant's favor. Roe v. Anderson, 134 F.3d 1400, 1401-02 (9th Cir. 1998); Apple Computer, Inc. v. Formula Int'l, Inc., 725 F.2d 521, 523 (9th Cir. 1984). These formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases. Roe, 134 F.3d at 1402. In the instant case, Plaintiff has prevailed on the merits of the underlying action, and the only remaining issues concern how the final judgment will be satisfied. Plaintiff has presented sufficient evidence that Defendants or another third party may attempt to transfer the domain names out of this Court's jurisdiction in an attempt to evade the judgment. There is no evidence that the web-based businesses associated with these two domain names will suffer any economic

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The Court has jurisdiction to enforce Plaintiff's request. Under the Anticybersquatting Consumer Protection Act, Congress has provided for in rem jurisdiction over domain names "in the judicial district in which the domain name registrar, domain name registry, or other domain

4 5 6 7 8 9 respective registrars. The current registrar for the domain names at issue here is Tucows, which 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
C a s e No. C 06-4114 JF (HRL) O R D E R GRANTING APPLICATION FOR ORDER RESTRAINING TRANSFER ETC. ( JF L C 1 )

name authority that registered or assigned the domain name is located." 15 U.S.C. § 1125(d)(2)(A). Plaintiff has presented evidence that VeriSign, Inc. ("VeriSign") is the registry for "dot com" domain names. VeriSign is headquartered in Mountain View, California. A domain name registry manages ownership of domain names through the domain names'

is headquartered in Toronto, Canada. Because VeriSign is based in Mountain View, the res is located within the Northern District, and the Court may enjoin VeriSign from changing the registrar for the domain names. See America Online, Inc. v. Aol.Org, 259 F. Supp. 2d 449, 45456 (E.D. Va. 2003). ORDER Good cause therefor appearing, IT IS HEREBY ORDERED that: (1) Plaintiff's application for an order restraining transfer pending hearing is GRANTED. Defendants and any third parties, including VeriSign, Tucows, or Belvedere, are HEREBY ENJOINED AND RESTRAINED from changing the registry, registrar, or owner of record for <adultactioncam.com> or <adultactioncams.com> until after the resolution of Plaintiff's motion for transfer of domain names. Plaintiff shall serve this order on Defendants, Belvedere, VeriSign, and Tucows. This order shall be binding upon the parties to this action, their officers, agents, employees, banking institutions or attorneys and all other persons or entities who receive actual notice of this order by personal service or otherwise. Because there is no evidence that the order will result in any economic harm to the owners of the domain names, Plaintiff shall not be required to post a bond.

(2)

(3)

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DATED: October 7, 2008

JEREMY FOGEL United States District Judge

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This Order has been served upon the following persons: Andrew D. Castricone Dana Milmeister Gary Jay Kaufman Marijana Stanojevic Timothy James Walton [e-mail]

[e-mail] [e-mail], [e-mail] [e-mail] [e-mail]

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C a s e No. C 06-4114 JF (HRL) O R D E R GRANTING APPLICATION FOR ORDER RESTRAINING TRANSFER ETC. ( JF L C 1 )