beIN Media Group LLC v. Domain Name bein.qa
Filing
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MEMORANDUM OPINION. Signed by Judge Colm F. Connolly on 12/20/2019. (fms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
BEIN MEDIA GROUP LLC,
Plaintiff,
Civil Action No. 18-794 (CFC)
V.
BEIN.QA,
Defendant in rem.
Rodger D. Smith II, Michael J. Flynn, MORRIS, NICHOLS, ARSHT &
TUNNELL LLP, Wilmington, Delaware; Peter H. Kang, Ash Nagdev, SIDLEY
AUSTIN LLP, Palo Alto, California; Theodore W. Chandler, SIDLEY AUSTIN
LLP, Los Angles, California
Counsel for Plaintiff
MEMORANDUM OPINION
December 20, 2019
Wilmington, Delaware
UNITED STATES DISTRICT JUDGE
Pending before me is Plaintiff beIN Media Group LLC's renewed motion for
entry of a default judgment pursuant to Federal Rule of Civil Procedure 55(b)(2).
D.I. 23.
I.
Background
beIN Media is a global media company that owns the trademark to "BEIN."
D.I. 1 ,I 2. It filed this in rem action under the Anticybersquatting Consumer
Protection Act (ACPA), 15 U.S.C. ยง 1125(d), against Defendant domain name
, alleging that the registrant of , non-party Honza Jan Zieba,
registered and threatened to use the domain name in bad faith to extort money from
beIN Media. See generally D.I. 1. is registered with IP Mirror pte Ltd,
a registrar located in Wilmington, Delaware. Id., Ex. 1.
beIN Media filed an action in California that is identical to this action in all
respects except that it names as defendants other "bein" domain names owned by
Zieba that have a registrar located in the Southern District of California. See belN
Media Group LLC v. BE/NAE, 2019 WL 1129153 (S.D. Cal. March 11, 2019).
The California court entered a default judgment in beIN Media's favor. Id. at *7.
beIN Media also filed a similar action in the District of Massachusetts against
"bein" domains owned by Zieba that have a registrar located in Massachusetts.
beIN Media Group LLC v. bein.com et al., 1:18-cv-11061 (D. Mass. May 21,
2018). The Massachusetts court entered judgment "in favor of [beIN Media] and
against Mr. Zicha." Id., D.I. 43 at 3.
On May 31, 2018, beIN Media served Zieba with the Complaint and
Summons at Zicha's residence in the United Kingdom. See D.I. 6. Shortly after
service, beIN Media and Zieba met in person and the parties agreed to a settlement.
See D.I. 10. As part of the settlement agreement, Zieba agreed to transfer and
assign the domain name to beIN Media. See D.I. 7. On July 12, 2018,
the Court signed a stipulated order that transferred the domain name to
beIN Media. D.I. 9 at 1. The stipulation was signed by Zicha's counsel.
On January 30, 2019, beIN Media filed a Request for Entry of Default
against Defendant and submitted a Bill of Costs. D.I. 10; D.I. 13; D.I. 19. On
March 6, 2019, the Clerk entered default against Defendant. D.I. 20. Defendant
has yet to file a pleading in this case.
belN Media argues that a default judgment is warranted because Zieba has
refused to cooperate in the entry of judgment. beIN Media requests an award of
$2,000.00 in statutory damages, costs in the amount of $628.62, and attorneys' fees
in the amount of$12,571.60, for a total judgment of $15,200.22. D.I. 16. beIN
Media contends that Zieba agreed to entry of final judgment as part of the
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settlement agreement and that a judgment is necessary for it to recover damages
from Zieba. D.I. 17 at 3-4.
II. Legal Standards
Entry of default judgment is a two-step process, and a default judgment
under Rule 55(b)(2) of the Federal Rules of Civil Procedure must be preceded by
an entry of default under Rule 55(a). Pursuant to Rule 55(a), the clerk must enter
default "[w]hen a party against whom a judgment for affirmative relief is sought
has failed to plead or otherwise defend, and that failure is shown by affidavit or
otherwise." Fed. R. Civ. P. 55(a). After entry of default, if the relief sought
against the defaulted party is not for a "sum certain or a sum that can be made
certain by computation," the party seeking default judgment must apply to the
court for an entry of default judgment. Fed. R. Civ. P. 55(b)(2). Default judgments
are generally disfavored in the Third Circuit, Budget Blinds, Inc. v. White, 536 F .3d
244, 258 (3d Cir. 2008), but are left to the discretion of the trial court, Hritz v.
Woma Corp., 732 F.2d 1178, 1180 (3d. Cir. 1984). "Three factors control whether
a default judgment should be granted: ( 1) prejudice to the plaintiff if default is
denied, (2) whether the defendant appears to have a litigable defense, and (3)
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whether defendant's delay is due to culpable conduct." Chamberlain v. Giampapa,
210 F .3d 154, 164 (3d Cir. 2000). 1
III. Discussion
Considered in their totality, the three relevant factors warrant entry of a
default judgment. Although it is unclear if has a litigable defense, it is
clear that beIN Media will continue to suffer prejudice absent entry of a judgment,
since otherwise it has no means of obtaining the relief it seeks. It is also clear that
's delay is the result of Zicha's culpable conduct. The emails and
affidavits submitted by beIN Media and the pleadings of the action filed by beIN
Media in Massachusetts establish that: Zicha lives in the United Kingdom; he
received service of the Complaint; he knows about the filings that have occurred in
this case as well as the California and Massachusetts actions; he entered into a
settlement agreement with belN Media; he later decided not to abide by the terms
of the settlement agreement; and he has decided not to file an answer or other
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"Before entering a default judgment against a party that has not filed responsive
pleadings, the district court has an affirmative duty to look into its jurisdiction both
over the subject matter and the parties." Wilmington Savs. Fund Soc., FSB v. Left
Field Props., L.L.C., 2011 WL 2470672, at *1 (D.N.J. June 20, 2011) (internal
quotation marks and citations omitted). For the reasons stated in the parallel case
filed in the Southern District of California, this Court has subject-matter
jurisdiction over this case and in rem jurisdiction over the domain name,
which is registered in Delaware. be/N Media, 2019 WL 1129153, at *2-5.
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responsive pleading in this action. Accordingly, the Court will enter a default
judgment in favor of beIN Media and.against .
For the reasons stated in be/N Media Group, 2019 WL 1129153, *6-7, the
Court does not believe that belN Media is entitled to statutory damages, costs, or
attorneys' fees.
IV. Conclusion
For the reasons discussed above, the Court will grant in part and deny in part
beIN Media's renewed motion for entry of a default judgment. The Court will
enter a default judgment in belN Media's favor, but it will not award beIN Media
damages, costs, or attorneys' fees.
The Court will issue an Order consistent with this Memorandum Opinion.
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