Bunkers International Corporation v. Carreira Pitti, P.C. et al

Filing 44

MEMORANDUM OPINION: Because plaintiff has failed to demonstrate that property of defendant Carreira Pitti is located within this district, the Court is without jurisdiction under Supplemental Rule B. Accordingly, TLDS' Motion for Summary Judgment will be granted and this civil action will be dismissed by an Order to accompany this Memorandum Opinion.Signed by District Judge Leonie M. Brinkema on 03/22/12. (yguy)

L

E
IN THE UNITED STATES DISTRICT COURT FOR T

E fR

MAR 2 2 2012

EASTERN DISTRICT OF VIRGINIA
CLERK, U.S. DISTRICT COIKIT

Alexandria Division

ALEXANDRIA. VIRGINIA

BUNKERS INTERNATIONAL CORP.,

Plaintiff,

l:llcv803 (LMB/IDD)
CARREIRA PITTI,

P.C,

et al.,

Defendants,

MEMORANDUM OPINION

Before the Court is a renewed Motion for Summary Judgment

filed by garnishee TLDS, LLC.

For the reasons stated in open

court and elaborated below, the motion will be granted and this
civil action will be dismissed.
I.

BACKGROUND

Plaintiff Bunkers International Corporation ("Bunkers")

brings this quasi in rem action in admiralty on claims of breach
of contract and maritime garnishment.

Plaintiff's claims arise

from its maritime contract with defendant Carreira Pitti, P.c,
a Panamanian law firm, which is in default in this action.

The

complaint alleges that pursuant to the contract, on May 27,
2010, plaintiff delivered bunkers (marine oil)

to an ocean

vessel in Venezuela "on the order of Carreira Pitti," for a
price of $34,245.54.

Compl. fl 7.

Plaintiff sent Carreira Pitti

an invoice for the bunkers on June 15, 2010; Carreira Pitti

acknowledged receipt of the invoice but has failed to pay the

amount due.

Id^ HU 11-13.

In Count I of its complaint,

plaintiff seeks payment for the invoiced amount as well as 2%

monthly interest accruing from the date of delivery and a one
time 5% administrative fee pursuant to the terms of the

contract.

Id^ HI 14, 16.

Garnishee TLDS (a subsidiary of Network Solutions, LLC) is

an Internet domain name registrar.

See Sterling Decl. UU 1, 8.

In Count II of the complaint, plaintiff alleges that Carreira

Pitti has registered its domain name, <carreirapitti.com>, with
TLDS within the Eastern District of Virginia.

Plaintiff claims

that Carreira Pitti "cannot be found within this District

pursuant to Supplemental Rule B" and, accordingly, all property
held by TLDS on behalf of Carreira Pitti, including the domain

name, should be subject to maritime garnishment.1
Plaintiff has filed two other Supplemental Rule B lawsuits
against Carreira Pitti based on the same unpaid invoice at issue
in this action.

In the United States District Court for the

Southern District of Texas, plaintiff has sought maritime

garnishment of a bank account; default has been entered against
1 When this action was first filed, the Court authorized the
issuance of a Process of Maritime Garnishment.

As detailed in

this Memorandum Opinion, however, since that time, the garnishee
has demonstrated that garnishment is not appropriate.
Therefore, the writ of garnishment will be vacated.

Carreira Pitti in that case.

In the United States District

Court for the Southern District of Florida, plaintiff has sought
maritime garnishment of domain name <panamalaw.com>, which is
registered with a domain name registrar located in that

district.

That action has proceeded only to service of process

on the garnishee and issuance of a summons to the defendant.

TLDS as garnishee has moved for summary judgment, arguing
that domain names are not subject to garnishment and that, even
if a domain name could be garnished, plaintiff has failed to
establish that Carreira Pitti is the registrant of the domain
name in question.
II.

STANDARD OF REVIEW

"The court shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."

Civ. P. 56(a).

Fed. R.

A genuine dispute of material fact exists "if

the evidence is such that a reasonable jury could return a
verdict for the nonmoving party."
Inc.,

477 U.S.

242, 248 (1986).

Anderson v. Liberty Lobby,

The Court must view the record

in the light most favorable to the nonmoving party.

See Bryant

v. Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir. 2002).

The

moving party must initially show the absence of a genuine
dispute of material fact, and once it has met its burden, the
nonmovant "must come forward and show that a genuine dispute
3

exists."

Arrington v. ER Williams, Inc., No. I:llcv535, 2011

U.S. Dist. LEXIS 144909, at *11-12 (E.D. Va. Dec. 16, 2011)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) and
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 586-87 (1986)).

The nonmoving party, however, "must

do more than simply show that there is some metaphysical doubt
as to the material facts."

Matsushita, 475 U.S.

at 586.

Accordingly, the "mere existence of a scintilla of evidence in
support of the [nonmovant's] position will be insufficient;

there must be evidence on which the jury could reasonably find
for the [nonmovant]."

Anderson, 477 U.S. at 252.

Therefore,

"[w]here the record taken as a whole could not lead a rational

trier of fact to find for the nonmoving party," summary judgment
is appropriate.

Matsushita, 475 U.S. at 587.
III.

A.

DISCUSSION

Supplemental Rule B

Fed. R. Civ. P. Supp. Rule B provides that
[i] f a defendant is not found within the district when

a verified complaint praying
affidavit required by Rule

for attachment and the
B(l)(b)
are filed,
a

verified complaint may contain a prayer for process to
attach the defendant's tangible or intangible personal
property-up

to

the

amount

sued

for-in

the

hands

of

garnishees named in the process.

The purpose of maritime attachment is both "to gain jurisdiction
over an absent defendant

judgment."

[and]

to assure satisfaction of a

Aqua Stoli Shipping Ltd. v. Gardner Smith Pty Ltd.,
4

460 F.3d 434, 437 (2d Cir. 2006).

In this action, plaintiff

seeks maritime attachment of the domain name

<carreirapitti.com>, registered with TLDS in this district,
which plaintiff asserts is intangible property of defendant
Carreira Pitti.

"Because a requirement of Rule B attachments is

that the defendant is not 'found within the district,'

the res

is the only means by which a court can obtain jurisdiction over
the defendant.

If the res is not the property of the defendant,

then the court lacks jurisdiction."
Jaldhi Overseas PTE Ltd.,
also Woodlands Ltd. v.

Shipping Corp. of India v.

585 F.3d 58,

Nationsbank,

69 (2d Cir.

N.A.,

682156, at *4 (4th Cir. Sept. 23, 1998)

No.

2009); see

97-1813,

1998 WL

("In a Rule B attachment

case, jurisdiction is derived from the attachment of the
property of the defendant.

A Rule B attachment case is,

therefore, a quasi in rem action instituted for the purpose of

(1) asserting jurisdiction over the defendant in personam
through the property and (2) to assure satisfaction of any
judgment.").

Therefore, if summary judgment is entered in favor

of TLDS as garnishee, the Court will no longer have jurisdiction
over the breach of contract claim against Carreira Pitti and the
complaint will have to be dismissed.
B.

The Registrant of the Domain Name

Without deciding the property status of domain names, even

assuming that they are garnishable property, plaintiff has

failed to establish that Carreira Pitti is the registrant of the
domain name or otherwise has a garnishable interest in it.

In

its motion, TLDS has put forward documentary evidence clearly
establishing that Carreira Pitti is not the registrant of the
domain name.

TLDS' records demonstrate that an entity named

Cable Onda is the registrant as well as the technical and

billing contact for the domain name.

See Sterling Decl. Ex. B

(Network Solutions registration record).

Moreover, all of the

registration and renewal payments for the domain name have been

made via credit cards associated with mailing addresses for
Cable Onda and two payments are also associated with a Cable

Onda email address.

See Sterling Decl. HH 12-13.

The WHOIS

record, which shows the server to which a domain name is
directed,

"reflects that the servers associated with the domain

name <carreirapitti.com> are NS2.CABLE0NDA.NET and
NS1.CABLE0NDA.NET."

Id. H 15 & Ex. F.

To rebut the clear evidence that defendant is not the

registrant, plaintiff merely argues that "Carreira Pitti has at
least some interest in the Domain Name," supporting this
contention with only inadmissible evidence and speculation.
See PL's Opp'n at 6.

Plaintiff appears to argue that Cable

Onda is an agent of, or has some other relationship with,
Carreira Pitti, and therefore registered the domain name on
defendant's behalf.

Plaintiff relies on one aspect of the

Network Solutions registration record, which reflects that a
Francisco Carreira is the administrative contact for the domain

name.

See Sterling Decl. Ex. B at 8.

Although that fact is

some circumstantial evidence suggesting a connection between
Carreira Pitti and the domain name, plaintiff has offered no

more than a "scintilla" of support for its view, and certainly
not enough evidence "on which the jury could reasonably find
for" plaintiff.

Anderson, 477 U.S. at 252.

Moreover, plaintiff has admitted that, although it had the

benefit of time in which to take discovery, it made absolutely
no effort to contact Cable Onda, the documented registrant of
the domain name, to determine the existence and/or nature of its
relationship with Carreira Pitti.

See Def.'s Mem. Ex. 2 at

31:7-10 (deposition testimony of corporate designee for the
plaintiff, agreeing that no one "on behalf of Bunkers

International [has] communicated with Cable Onda, S.A., at any
time").

Plaintiff has also conceded that it is not "aware of

any agreements between Cable Onda and Carreira Pitti with

respect to the use of the domain name carreirapitti.com."

Id.

at 32:6-9.

At oral argument, counsel for plaintiff explained the

decision not to take discovery on these crucial questions by
arguing that, because Carreira Pitti has defaulted, it has

admitted to being the "owner" of the domain name, thereby

conclusively establishing the fact of ownership.

Assuming,

arguendo, that a domain name is subject to ownership,
plaintiff's argument falls flat.

The parties cannot waive

subject matter jurisdiction, and it is plaintiff's burden to

establish that jurisdiction is proper in this Court.

Although

defendant has defaulted, the garnishee has presented significant

evidence casting doubt on what, if any, relationship Carreira

Pitti has with the domain name, which evidence has gone entirely
unrebutted by plaintiff.
When considered outside the somewhat abstract context of

domain names, the fallacy of plaintiff's position is apparent.
For example, it would be absurd to allow a plaintiff to garnish
a bank account held in the name of someone other than the

defendant and argue that a default by the defendant established

that the bank account in fact belonged to the defendant, despite

being held in the name of a third party.

In such a situation,

the bank's customer—i.e., the registered owner of the account-

would have had no opportunity to protect its right in its
property.

To attach the account, the plaintiff would not only

have had to join the account's named owner as a necessary party
under Fed. R. Civ. P. 19, but would also have had to prove that
a relationship existed between the bank account, its owner, and

the person against whom the attachment was sought.

Similarly

here, the domain name is registered to Cable Onda, an entity

other than the named defendant.

Not only has Cable Onda not

been joined as a party to this lawsuit, but plaintiff has made

no effort to contact it or to offer admissible evidence showing
that, for example, Cable Onda is an agent of Carreira Pitti or

that the two have a lease or other type of property-sharing
arrangement.
IV.

CONCLUSION

Because plaintiff has failed to demonstrate that property
of defendant Carreira Pitti is located within this district, the

Court is without jurisdiction under Supplemental Rule B.
Accordingly, TLDS' Motion for Summary Judgment will be granted

and this civil action will be dismissed by an Order to accompany
this Memorandum Opinion.
Entered this M

day of March, 2012.

Alexandria, Virginia

Leonie M. Brinkema

United States District Judge