The opinion of the court was delivered by: Foreman, District Judge.
Before the Court is a motion to dismiss filed by Network
Solutions, Inc. on the ground that venue is improper (Doc. 24).
Plaintiffs have filed a response, (Doc. 33), and Network
Solutions, Inc. has filed a reply (Doc. 40).
Also before the Court are motions to dismiss for lack of
personal jurisdiction filed by defendants Stanley Gottlieb,
Lonnie Gottlieb, and Phillip Rock (Doc. 10), and by defendant Len
Pikulski (Doc. 42).
Plaintiff Rob Graves operates a business known as "Biengees
Internet Negril" (BIN), a limited partnership located in Negril,
Jamaica. BIN and co-plaintiff, Negril Chamber of Commerce, a
not-for-profit Jamaican association, are in the business of
promoting tourism in Jamaica. They do so through a website
associated with the Domain Name, "negril.com." Plaintiff Ray
Arthurs owns and operates a resort in Negril, Jamaica called
Plaintiffs have brought a twenty-seven page complaint, in five
counts, against six defendants. Defendant Len Pikulski owns and
operates a company called "Nothin But Net LLC" which provides and
maintains web sites. Defendant Mark Pinkstone is an employee of
Nothin But Net. Defendants Stanley and Lonnie Gottlieb operate a
resort in Negril, Jamaica. Defendant Phillip Rock is allegedly an
agent of defendant Len Pikulski and of Nothin But Net. Defendant
Network Solutions, Inc. (NSI) is the registrar of the domain name
Plaintiffs allege that they entered into a contract with Nothin
But Net to become the internet service provider for the world
wide web site registered domain name "negril.com." Plaintiffs
allege that defendants competed with plaintiffs' web sites and
actually converted plaintiffs' web sites for their own use,
profit, and promotion (Count I). Specifically, plaintiffs allege
that Len Pikulski attempted to gain illegal control of the
registration of the domain name and of the associated website,
claiming that he "covertly influenced an employee of NSI to enter
false computer data in the computer data base of NSI to change
the actual domain name." (Doc.4, p. 10). Plaintiffs accuse the
Gottliebs of infringing
on their copyrights by publishing a web site that advertises
their resort in Negril, Jamaica, on a web server located in New
Jersey. (Doc. 4, Counts II and IV). Plaintiffs further allege
that defendant Lonnie Gottlieb posted statements that were
derogatory to plaintiffs on the web server in New Jersey. (Doc.
4, Count III). Plaintiffs allege that Network Solutions, Inc.
(NSI) breached the registration agreement by modifying and
changing the registration and ownership of "negril.com" from
plaintiffs to the co-defendants (Count V). Plaintiffs claim that
they have suffered a loss of revenue and a loss of goodwill, all
Defendant Len Pikulski is a resident of, and does business in,
New Jersey (Doc. 4, p. 4). Defendant Mark Pinkstone has the same
business address as defendant Pikulski (Doc. 4, p. 5). Defendants
Stanley and Lonnie Gottlieb state that they operate a resort in
Negril, Jamaica, and have residences in Mayville, New York, and
Negril, Jamaica (Doc 11, p. 2). Defendant Phillip Rock states
that he is a resident of Dartmouth, Nova Scotia (Doc 11, p. 2).
Defendant NSI is a Delaware Corporation that has its business
offices in Herndon, Virginia (Doc. 25, p. 1).
Plaintiffs registered the domain name "negril.com" with NSI on
January 16, 1996 (Doc.33, Exh. B, Doc. 40, Exh. 3). Plaintiffs
continued to renew the registration of the domain name, and
specifically, on February 10, 1999, plaintiff Graves' mother made
a payment to renew the registration effective March, 1999. On
March 16, 1999, plaintiffs received from NSI, via email, a domain
modification form so that they could add a certain individual,
Roy Rodden, as a technical contact. The top portion of the form
contained the March, 1999 version of the registration agreement.
The email began by stating: "This is the domain name registration
agreement you recently created. In order to complete a
modification you must email this form to hostmaster @
internic.net." Plaintiffs then sent in an email requesting the
addition of Roy Rodden as the technical contact. (Doc. 33, Exh.
This case was filed in December, 1999. Thus, the March, 1999
version of the registration agreement was the most recent version
that was available when the case was filed. The first paragraph
reads as follows:
The domain name registration agreement ("Registration
Agreement") is submitted to Network Solutions, Inc.
("NSI") for the purpose of applying for and
registering a domain name on the Internet. If this
Registration Agreement is accepted by NSI, and a
domain name is registered in NSI's domain name
database and assigned to the Registrant, Registrant
("Registrant") agrees to be bound by the terms of
this Registration Agreement and the terms of NSI's
Domain Name Dispute Policy ("Dispute Policy") which
is incorporated herein by reference and made a part
of this Registration Agreement. This Registration
Agreement shall be accepted at the offices of NSI.
(Doc.33, Exh. 1, p. 1) (emphasis added).
The registration agreement also contains a forum selection
clause which states:
Governing Law. Registrant agrees that this
Registration Agreement shall be governed in all
respects by and construed in accordance with the laws
of the Commonwealth of Virginia, United States of
America. By submitting this Registration Agreement,
Registrant consents to the exclusive jurisdiction
and venue of the United States District Court for
the Eastern District of Virginia, Alexandria
Division. If there is no jurisdiction in the United
States District Court for the Eastern District ...