Green Jacket Auctions, Inc. et al v. Augusta National, Inc.
Filing
13
ORDER denying without prejudice 5 Motion to Dismiss and directing the Clerk to transfer this case to the United States District Court for the District of Arizona. Signed by Chief Judge J. Randal Hall on 04/25/2018. (thb)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
*
*
GREEN JACKET AUCTIONS, INC.,
5
and RYAN CAREY, on behalf of
GREEN JACKET AUCTIONS, INC.,
•k
*
CV 118-008
*
Plaintiffs,
*
*
V.
*
5
AUGUSTA NATIONAL, INC.,
5
5
Defendant.
*
ORDER
The present action stems from Defendant's attempt to obtain
ownership
of
the
"Domain Name").
private
golf
domain
name
''greenjacketauctions.com"
(the
Defendant, Augusta National, Inc. ("ANI"), is a
club
that
operates
Tournament (the "Masters").
the
world-famous
Plaintiff Green
Masters
Jacket Auctions,
Inc. ("GJA"), is an online auctioneer of golf memorabilia that
uses the Domain Name and has a history of selling items related
to the Masters.
registered
the
("GoDaddy").
stop
GoDaddy
Plaintiff Ryan Gary is the founder of GJA who
Domain
Name
with
the
registrar
GoDaddy,
LLC
Plaintiffs originally filed suit in this Court to
from
implementing
an
arbitration
decision
compelling GoDaddy to transfer ownership of the Domain Name from
Plaintiffs^
clear.
to
Defendant.
Plaintiffs
seek
For
to
reasons
dismiss
that
their
will
case
on
soon
the
become
grounds
that: (1) the Court lacks personal jurisdiction; and (2) venue
is improper under the first-filed rule.
I. BACKGROUND
In November 2017, ANI filed an arbitration complaint with
the Internet Cooperation for Assigned Names and Number {^^ICANN")
to challenge Plaintiffs' use of the Domain Name.
ANI claimed
that the Domain Name violated its trademark rights and sought to
obtain ownership of the Domain Name.
After a hearing in front
of a one judge arbitration panel (the ^^Panel"), ANI prevailed,
and
the
Panel
ordered
GoDaddy
to
transfer
ownership
of
the
Domain Name from Plaintiffs to ANI in a decision dated December
21, 2017.
The crux of this case concerns Plaintiffs' efforts to
appeal this adverse ruling.
The
ICANN
dispute
resolution
process is governed by two
sets of procedures: the Uniform Domain-Name Dispute-Resolution
^ The parties dispute the extent of Mr. Carey's involvement in
this dispute. Plaintiffs contend that Mr. Carey "does not appear in
his personal capacity . . . and he cannot be treated as a real party
because his only association with this dispute is a procedural
technicality." (Doc. 5 at n.l.) According to Plaintiffs, Mr. Carey
registered the Domain Name "solely on GJA's behalf and is protected by
the corporate veil." (Id. at 19.) Defendant contends, however, that
Mr. Carey registered the Domain Name six months before GJA was ever
incorporated and that Plaintiffs have presented no documentation that
Mr. Carey ever transferred ownership of the Domain Name to GJA. (Doc.
8 at 3.)
Nevertheless, because this dispute is not relevant to the
Court's decision today, the Court will simply refer to Mr. Carey and
GJA jointly as "Plaintiffs" throughout this opinion.
Policy
(the ''Policy")
and
the
Rules
for
Dispute Resolution Policy (the "Rules").
Uniform
Domain
Name
(See Uniform Domain-
Name Dispute-Resolution Policy, ICANN (Apr. 11, 2018, 1:47 PM),
https://www.icann.org/resources/pages/help/dndr/udrp-en;
Rules
for Uniform Domain Name Dispute Resolution Policy, ICANN (Apr.
17, 2018, 1:47 PM), https://www.icann.org/resources/pages/rulesbe-2012-02-25-en.)
Regarding
appeals
of arbitration
rulings.
Paragraph 4(k) of the Policy states that:
If an Administrative Panel decides that
your domain name
registration should be canceled or transferred, we will
wait ten (10) business days (as observed in the location
of our principal office) after we are informed by the
applicable Provider of the Administrative Panel's decision
before implementing that decision. We will then implement
the decision unless we have received from you during that
ten (10) business day period official documentation (such
as a copy of a complaint, file-stamped by the clerk of the
court) that you have commenced a lawsuit against the
complainant in a jurisdiction to which the complainant has
submitted under Paragraph 3(b)(xiii) of [the Rules]. (In
general, that jurisdiction is either the location of our
principal office or of your address as shown in our Whois
database. See Paragraphs 1 and 3(b)(xiii) of [the Rules]
for details.) If we receive such documentation within the
ten (10) business day period, we will not implement the
Administrative
Panel's
decision,
and
we
will
take
no
further action, until we receive (i) evidence satisfactory
to us of a resolution between the parties; (ii) evidence
satisfactory to us that your lawsuit has been dismissed or
withdrawn; or (iii) a copy of an order from such court
dismissing your lawsuit or ordering that you do not have
the right to continue to use your domain name.
Under Paragraph 3(b)(xii) of the Rules,^ a complaint shall
^"[sjtate
that
challenges
Complainant
to
a
will
decision
in
submit,
the
with
respect
administrative
to
any
proceeding
canceling or transferring the domain name, to the jurisdiction
of the courts in at least one specified Mutual Jurisdiction."
Paragraph 1 of the Rules defines a Mutual Jurisdiction as:
a court jurisdiction at the location of either (a) the
principal office of the Registrar (provided the domainname holder has submitted in its Registration Agreement to
that jurisdiction for court adjudication of disputes
concerning or arising from the use of the domain name) or
(b) the domain-name holder's address as shown for the
registration
of
the
domain
name
in
Registrar's
Whois
database at the time the complaint is submitted to the
Provider.
Thus, to appeal an adverse decision, the appealing party should
file
in
one
of
the
two
Mutual
Jurisdictions
defined
by
the
Rules.
On December 26, 2017, GoDaddy informed ANI and Plaintiffs
that
it
^^transfer
January,
complaint
had
received
[the
10,
Domain
2018,
following
(Doc. 8-3 at 6.)
the
Name]
unless
the
Panel's
in
we
rules
ruling
ten
receive
under
(10)
and
that
business
during this
[Paragraph
it
would
days
period
on
a
3(b)(xii)]."
On January 2, Plaintiffs notified GoDaddy that
they had filed a complaint in the United States District Court
^ While the Policy references Paragraph 3(b)(xiii) of the Rules, this
is clearly a scrivener's error.
The Rules were updated in 2015 so
that Paragraph 3(b)(xiii) became Paragraph 3(b)(xii). Based upon the
context and language of Paragraph 4(k) of the Policy, it is obvious
that when ICANN updated the Rules, it merely failed to update the
cross-references to the Rules in its Policy.
for
the
Middle
District
of
Florida
—
the
location
of
"the
domain-name holder's address" as specified in the Rules (i.e.,
Mr. Carey's address) — and on
January 3 GoDaddy notified the
parties that it would not transfer the Domain Name during the
pendency of the legal proceedings.
Jacket Auctions, Inc.
(Id. at 5; see also Green
v. Augusta National^
Inc., No. 8:18-cv-
012-RAL-TGW (M.D. Fla. Jan. 2, 2018)(the "Florida Case").)
On
January 5, however, ANI notifed Plaintiffs and GoDaddy that the
Middle District of Florida was not a proper jurisdiction under
Rule 3(b)(xii).
(I^ at 3-4.)
ANI argued that it had only
submitted to jurisdiction in this Court, or, in the alternative,
in Scottsdale, Arizona, as the location of the principal office
of
the
registrar
(i.e.,
GoDaddy).
(Id.
at
4.)
GoDaddy
responded to the parties the same day stating that "[a]fter
further [sic] [the Domain Name] will be transferred to [ANI]
upon the implementation date January 10, 2018 since the received
court
complaint
was
not
filed
in
the
Mutual
Jurisdiction
(Scottsdale, Arizona) outlined on the UDRP complaint.
However,
once [the Domain Name] has been transferred to [ANI] [the Domain
Name] will remain locked in [ANI's] account pending outcome of
the legal dispute."
(Id. at 3.)
On January 9 at 4:22 p.m., one day before the January 10th
deadline. Plaintiffs notified GoDaddy that they had filed a new
complaint in the United States District Court for the District
of
Arizona
("Arizona")
and
requested
that
GoDaddy
"confirm
receipt and thai: the [Domain Name] will not: be transferred, but
will remain on Registrar-Lock pending the outcome of this legal
dispute."
(Doc. 8-3 at 2 (emphasis in original); see also Green
Jacket Auctions^
084-GMS
(D.
Inc.
v. Augusta
Ariz.
Jan.
9,
National,
Inc., No. 2:18-cv-
2018)(the
''Arizona
Case").)
Plaintiffs requested a response by the close of business that
same day.
(Id.)
receive one.
According to the record. Plaintiffs did not
At 8 a.m. the next day, January 10, Plaintiffs
notified GoDaddy that they had filed suit in this Court and
requested
confirmation
Domain Name.
(Id.)
that
GoDaddy
would
not
transfer
the
GoDaddy responded to this email at 10:45
a.m.: "This is to confirm we have received a copy of a file-
stamped
court
complaint,
filed
regarding [the Domain Name].
in
the
proper
jurisdiction
[The Domain Name] will not be
transferred, per the arbitration decision, but will remain on
Registrar-Lock pending the outcome of the legal dispute."
(1^•
at 1.)
On January 23, 2018, ANI filed an answer and counterclaim
in this Court.
(Doc.
4.)
On
February 13, 2018, Plaintiffs
filed their present motion to dismiss also in this Court.
5.)
(Doc.
Then, on February 28, 2018, ANI filed a motion to dismiss
for lack of jurisdiction in the Arizona Case.
II. DISCUSSION
Although the parties raise several issues in their briefs, the
Court
addresses
only
whether:
(1)
this
Court
has
personal
jurisdiction over Plaintiffs; and (2) the first-filed rule requires
this Court to transfer this case to Arizona.
Plaintiffs
argue
that
this
Court
lacks
personal
jurisdiction because ''[Plaintiffs were] improperly coerced into
filing a Complaint in this Court to prevent GoDaddy from causing
[them] irreparable harm, which was in violation of [their] right
to due process."
(Doc. 5 at 6.)
But Plaintiffs ignore an
elementary rule of civil procedure: personal jurisdiction is a
personal right which can be waived.
Iranian
Harris Corp. v. Nat^l
Radio and Television, 691 F.2d 1344, 1353 (11th Cir.
1982) ("Lack of jurisdiction over the person, unlike subject
matter jurisdiction, is a waivable defect.").
By filing in this
Court, Plaintiffs submitted to the power of this Court to rule
on
the
issues
requested
by
them.
Burger
King
Corp.
v.
Rudzewicz, 471 U.S. 462, 472 (1985) ("We have noted that, because
the personal jurisdiction requirement is a waivable right, there
are a variety of' legal arrangements by which a litigant may give
express or implied consent to the personal jurisdiction of the
court."
(citations
and
internal
quotations
omitted)).
Had
Plaintiffs wanted to avoid litigating in this Court, they should
have more closely read ANI's arbitration complaint, filed first
in
Arizona
rather
than
Florida,
7
and
been
prepared
to
request
relief,
in
the
restraining
form
order,
of
from
transfer deadline.
a
preliminary
the
Arizona
injunction
court
well
or
temporary
prior
to
the
They cannot now, after seeking relief from
this Court, challenge its personal jurisdiction over them.
The
Court,
argument,
transfer
that
that
the
when
however,
the
case
agrees
first-filed
to
parties
with
rule
Arizona. ''The
have
Plaintiffs'
requires
first-filed
instituted
competing
this
second
Court
to
rule
provides
or
parallel
litigation in separate courts, the court initially seized of the
controversy should hear the case."
Collegiate Licensing Co. v.
Am. Cas. Co. of Reading, Pa., 713 F.3d 71, 78 (11th Cir. 2013).
Under the first-filed rule, the court initially seized of the
controversy should be the court to decide whether and how any
subsequently filed suits should proceed.
See id. (citing Butter
Corp. V. P&P Indus., Inc., 125 F.3d 914, 920 (5th Cir. 1997)).
A court subsequently seized of the controversy, the second-filed
court,
should
only
determine
whether
"a
likelihood
substantial overlap exists" between the two suits.
of
Marietta
Drapery & Window Covering Co., Inc. v. North River Ins. Co., 486
F. Supp. 2d 1366, 1370 (N.D. Ga. 2007) (citing Cadle Co. v.
Whataburger
1999)).
of
Alice,
Inc.,
174
F.3d
599,
605-06
(5th
Cir.
If the second-filed court makes such a determination,
"'the proper course of action [is] for the court to transfer the
case to the [first-filed] court to determine which case should,
in the interest of sound judicial administration and judicial
economy, proceed.'"
Id. (quoting Cadle, 174 F.3d at 606); see
also Sini v. Citibank, N.A., 990 F. Supp. 2d 1370, 1375 (S.D.
Fla. 2014) (^^MT]he first-filed rule' requires the first court
to
be
the
Intern.
(S.D.
one
Corp.
Fla.
to
v.
decide
whether
Anheuser-Busch,
1997) (finding
the
rule
Inc.,
applies."); Supreme
972
F.
Supp.
604, 607
that the first-filed court ''is
the
more appropriate forum in which to determine whether the firstfiled case should proceed, or whether it should give way for
reasons of judicial economy to this action.").
The parties do not dispute that the present suit was the
second-filed suit.
Nor do they dispute that this suit and the
Arizona case are nigh identical.
Thus, the Court finds that a
likelihood of substantial overlap exists between the suits and
that Arizona is the proper court to determine how this "second-
filed suit" should proceed.^
See North River Ins. Co., 486 F.
Supp. 2d at 1371.
^ This Court's ruling also appears to be consistent with
decisions by district courts within the Ninth Circuit.
SAES Getters
S.p.A. V. Aeronex, Inc., 219 F. Supp. 2d 1081, 1089 (S.D. Cal. 2002)
("[The first-filed rule] provides that where substantially identical
actions are proceeding in different courts, the court of the laterfiled action should defer to the jurisdiction of the court of the
first-filed action by either dismissing, staying, or transferring the
later-filed suit."); Amerifreight. Inc. v. Belacon Pallet Services,
LLC, No. 2:15-CV-5607-RSWL, WL 13037420 (C.D. Cal. Nov. 11, 2015) ("If
the first-to-file rule applies to a suit, the second-filed court may
transfer, stay, or dismiss the proceeding in order to allow the firstfiled court to decide whether to try the case.").
III. CONCLUSION
In sum, the Court finds that is has personal jurisdiction
over Plaintiffs, that a likelihood of substantial overlap exists
between
case
this
suit
and
the
was the first-filed
Arizona
suit.
case,
Thus, the
and
that
the
Arizona
Court DENIES WITHOUT
PREJUDICE Plaintiffs' motion to dismiss (doc. 5) and DIRECTS the
Clerk to TRANSFER this case to the United States District Court
for the District of Arizona.
ORDER ENTERED at Augusta, Georgia, this
day of April,
2018.
J.
CHIEF JUDGE
UNIT^ "states DISTRICT COURT
SOUlJi^^KN DISTRICT OF GEORGIA
10
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