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GRAVES v. PIKULSKI

August 30, 2000

ROB GRAVES, ET AL., PLAINTIFFS,
V.
LEN PIKULSKI, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Foreman, District Judge.

MEMORANDUM AND ORDER

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).

I. Background.

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 "Golden Sunset."

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 "negril.com."

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 in Jamaica.

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. 2).

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 ...

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