2010-07-05 sob complaint filed

8/9/2019 2010-07-05 SOB Complaint Filed

1/14

1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 1:10-cv-22207

TIM DUBUQUE,

Plaintiff,

v.

CHRIS BEACH andJohn Doe, a/k/a [email protected]

Defendants.

/

COMPLAINT

1. For his complaint against defendants, plaintiff, Tim Dubuque (Dubuque)alleges as follows:

INTRODUCTION

2. This is an action for conversion and replevin. The Plaintiff owned a valuabledomain name, SOB.com. John Doe, an unknown individual, stole the domain name from the

Plaintiff. Shortly after stealing the domain name from the Plaintiff, John Doe sold the domain

name to Chris Beach. Chris Beach knew or should have known that the domain name was stolen

goods. The Plaintiff has attempted to secure the return of his property through non-adversarial

means, but Chris Beach refuses to return the property. Dubuque seeks this courts assistance in

the return of his property.

THE PARTIES

3. Plaintiff Dubuque is an individual with an address of 18 Kirriemuir Drive inStratham, New Hampshire, doing business as Sites of Boston.

Case 1:10-cv-22207-XXXX Document 1 Entered on FLSD Docket 07/05/2010 Page 1 of 14


2/14

2

4. Upon information and belief, John Doe (Doe), aka [email protected],is a citizen and resident of Iran. Doe acquired control over the SOB.com domain name in

violation of Plaintiffs rights.

5. Upon information and belief, Chris Beach (Beach) is currently in possession ofSOB.com and is a citizen and resident of Australia.

DOMAIN REGISTRAR, REGISTRY, AND RECORDS

1. The current domain registrar for the SOB.com domain name is Moniker OnlineServices, LLC (Moniker). Moniker is a Florida limited liability company having its principal

place of business at 20 SW 27th Ave., Suite 201, Pompano Beach, Florida.

2. The domain registry for the SOB.com domain name is VeriSign, Inc., a Delawarecorporation having its principal place of business at 487 East Middlefield Road, Mountain View,

California.

3. The records of the domain name registrar for the SOB.com domain name identifythe registrant of the SOB.com domain name as Chris Beach, with an address at 45 Sommerville

Drive, College Grove, Western Australia and an e-mail address at [email protected]. The

WHOIS Data for the SOB.com domain name is attached hereto as Attachment 1.

JURISDICTION AND VENUE

4. This Court has subject matter jurisdiction of the action under 38 U.S.C. 1331because it is a civil action arising under the laws of the United States. More specifically,

this dispute arises, at least in part, under the provisions of the Computer Fraud and Abuse Act, 18

U.S.C. 1030.

5. This Court also has subject matter jurisdiction of the action under 28 U.S.C. 1332 as the parties are diverse, and the amount in controversy is greater than $75,000.



3/14

3

6. This Court has personal jurisdiction over John Doe because he has committedtortious acts within this district.

7. This Court has personal jurisdiction over Chris Beach because of his extensivecontacts with this district. In addition to utilizing the services of Moniker, which is located in

this district, for the domain name registration for SOB.com, Chris Beach has registered hundreds

of domain names with Moniker, each one requiring a registration contract. Accordingly, Beach

regularly does business with relevant entities in this district and is therefore subject to

jurisdiction under Fla. Stat. 48.193(1)(a), 48.193(1) (b), 48.193(1) (f), and 48.193(2).

8.

Venue is proper in this district under 28 U.S.C. 1391(a)(2) because a substantial

part of the events giving rise to the claims occurred in this district. Furthermore, the property at

issue is located within this state, because the domain name is registered with Moniker, which is

based in this district.

9. As John Doe and Chris Beach are not located in the United States, even ifjurisdiction is not proper over them in this district specifically, jurisdiction is proper in this

district generally pursuant to Fed. R. Civ. P. 4(k)(2).

FACTS RELEVANT TO ALL CLAIMS

10. Three-letter Internet domain names are relatively rare, simply from a numericalstandpoint, and accordingly enjoy higher valuations in the active secondary market for internet

domain names. There are only 17,576 three-letter dot-coms. Since the total number of domain

names is functionally infinite, and three-letter domain names are extremely easy to remember,

they are extremely valuable, which is why John Doe stole SOB.com, and which is why Chris

Beach now maintains possession of SOB.com.



4/14

4

11. Plaintiff seeks to recover this stolen internet domain name. The theft of thedomain name was accomplished by party or parties assuming various identities in a single course

of unlawful conduct engaged in for the purpose of gaining unlawful control over the domain

name SOB.com. The SOB.com domain name is worth at least $75,000.

12. On or about May 1, 1995, Plaintiff registered the domain SOB.com (theDomain).

13. During 2001, Plaintiff engaged Dotster, Inc. (Dotster) as the registrar of theDomain, and listed the administrative contact information as Sites of Boston, 18 Kirriemuir

Drive, Stratham, NH, 03885, [email protected], 603-778-8197.

14. On information and belief, on or about December 30, 2008, an unknownindividual requested that Dotster transfer the Domain to a new Dotster account, and to list the

registrant and administrative contact as Ian Parkinson, P.O. Box 308, Kingston, NJ, 08528,

[email protected], 800-457-6677 (the Dotster Transfer).

15. The Dotster Transfer was made without Plaintiffs knowledge or authorization.16. On information and belief, on or about April 2009, a request was made from

[email protected] that Dotster transfer the Domain to Moniker as registrar (the

Moniker Transfer). Dotster and Moniker granted the request, and the Domain was transferred

to Moniker.

17. The Moniker Transfer was made without Plaintiffs knowledge or authorization.18. Following the Moniker Transfer, the information regarding the registrant of the

Domain was made private using Monikers registration privacy service.

19. On or about May 7, 2009, counsel for Plaintiff spoke with an individual identifiedas Daniel in Dotsters abuse department in an attempt to determine how the Moniker Transfer



5/14

5

took place. Plaintiffs counsel has prepared an Affidavit detailing his communications with

representatives from both Dotster and Moniker from June 9, 2009 to July 29, 2009. A true and

correct copy of that Affidavit is attached hereto as Attachment 2.

20. Daniel informed Plaintiffs counsel that Dotster was able to identify the InternetProtocol (IP) address of the individual believed to have initiated the Moniker Transfer request,

and that they believed this activity originated in Iran. See Attachment 2, 2.

21. Daniel further stated that the individual Dotster believed to be associated with theIP address was notorious to Dotster for having engaged in similar activities in the past. See

Attachment 2, 2.

22. Upon information and belief, Doe is notorious to all internet registrars as anindividual who has fraudulently transferred many domain names. Accordingly, Moniker knew

or should have known that any domain transfer initiated by or involving Doe was suspicious,

warranting more scrutiny than other domain transfers. More specifically, Moniker knew or

should have known, at the time of the Moniker Transfer, that SOB.com might be stolen property,

belonging to someone other than Doe.

23. Prior to the Moniker Transfer, Moniker performed no investigation into thevalidity of Does claim of ownership in SOB.com.

24. On May 8, 2009, counsel for Plaintiff spoke with Moniker representative KjelHolmberg regarding the Moniker Transfer. Mr. Holmberg directed counsel to speak to Darcy

Enyeart of Dotsters Corporate Services Department.

25. On June 5, 2009, counsel for Plaintiff spoke with Ms. Enyeart and briefed her onthe situation. As a result of this conversation, on or about June 6, 2009, Ms. Enyeart emailed to

Mr. Holmberg and Monikers Abuse department ([email protected]) a Fraudulent Transfer



6/14

6

Report, a request for the Form of Authorization information received by Moniker in connection

with the Moniker Transfer, and a request to freeze the Domain to prevent any further transfer

while this matter was pending. A true and correct copy of Ms. Enyearts email communication is

attached to Attachment 2 as Exhibit A.

26. On or about June 24, 2009, Ms. Enyeart received an email from Moniker Legal,subsequently forwarded to Plaintiffs counsel. Moniker stated that it had frozen the Domain, and

that the Moniker Transfer was requested on April 7, 2009, at 4:05am, from the email address

[email protected]. The email went on to state that the then-current registrant for the

Domain was a Chris Beach of 45 Sommerville Drive, College Grove, Western Australia.

27. Plaintiff is informed and believes and based thereon alleges that Chris Beach alsouses the address 28 Chapple Drive, Australind, WA, 6233, Australia.

28. On or about July 7, 2009, Mr. Holmberg stated in an email to Plaintiffs counselthat as far as Moniker was concerned, the Moniker Transfer was not on its face invalid or

fraudulent, and that the current listed owner is a long time customer of Moniker with no history

of fraud or shady dealings of any kind. See Attachment 2, Exhibit D.

29. Mr. Holmberg went on to state that in order for Moniker to transfer the Domainback to Plaintiff, Moniker would require further evidence that the [email protected]

was not under Plaintiffs control at the time of the transfer, and would require Plaintiff to

indemnify Moniker. See Attachment 2, Exhibit D.

30. Mr. Holmberg stated that he would contact counsel for Plaintiff again withinformation about the form that Moniker would require in order to effectuate the transfer of the

Domain back to Plaintiff. A true and correct copy of Ms. Holmbergs email communication is

attached to Attachment 2 as Exhibit D.



7/14

7

31. On July 29, 2009, having had no further communication from Mr. Holmberg orany other Moniker representatives despite repeated attempts, Plaintiffs counsel sent Mr.

Holmberg a sworn affidavit from Plaintiff attesting to the facts at hand, and in particular that

Plaintiff did not and does not know any individual named Ian Parkinson, and did not authorize

the Moniker Transfer. A true and correct copy of Plaintiffs sworn affidavit is attached to

Attachment 2 as Exhibit G.

32. Plaintiffs counsel did not receive any response from Mr. Holmberg orOversee/Moniker.

33.

On February 18, 2010, counsel for Plaintiff sent a letter to Mr. Holmberg

recounting the facts, and informing him that unless Oversee/Moniker transferred the Domain to

Plaintiff, Plaintiff would commence civil action. The letter went on to state that Plaintiff was

willing to indemnify Oversee/Moniker against any third-party claim raised in connection with

the transfer of the Domain to Plaintiff.

34. To date, Plaintiffs counsel has not received a response to its February 18demand. On information and belief, Oversee/Moniker has a relationship with Chris Beach, which

Moniker finds to be more valuable than engaging in fair and equitable business practices.

Despite the fact that Moniker has been shown, beyond all doubt, that the domain name is stolen

property, Moniker insists upon shielding Chris Beach possession of the stolen property.

FIRST CLAIM FOR RELIEF

(Conversion and Conspiracy to Convert an Internet Domain Name)

35. Paragraphs 1 34 are incorporated herein as if set forth in their entirety.36. The defendants, individually and in concert, conspired to convert and converted

SOB.com from the use and possession of Dubuque, the rightful owner, to their own use and



8/14

8

possession, by a series of criminal acts constituting a single course of unlawful conduct, as

follows:

a. Defendants fraudulently altered the registration records in the WHOISdatabase so that it falsely recorded Ian Parkinson as the administrative

contact of SOB.com, thus violating 817.034Fla. Stat., which makes it

criminal to engages in a scheme to defraud and thereby obtains property

(including services) and to, in furtherance of that scheme, communicates

with any person with intent to obtain property (including services) from

that person.

b. Defendants willfully, knowingly, and without authorization, modifieddata, programs, or supporting documentation residing or existing internal

or external to a computer, computer system, or computer network. Such

conduct is prohibited by 815.04Fla. Stat. as an offense against

intellectual property.

c. Defendants willfully, knowingly, and without authorization disrupted,denied, and caused the denial of computer system services to Plaintiff, an

authorized user of such computer system services, which, in whole or part,

was owned by, under contract to, or operated for, on behalf of, or in

conjunction with another authorized user. Such conduct is prohibited by

815.06Fla. Stat. as an offense against computer users.

d. Defendants committed transfer of SOB.com without lawful authority,baldly usurping the true owners rights.



9/14

9

37. Each of the defendants who participated in the theft of SOB.com, and thesubsequent transfer lacked any lawful title to the internet domains, and thus their efforts to

transfer registration thereof was void, invalid ab initio, and subject to reversal by judicial order.

38. Beach has operated SOB.com profitably, and is currently steering Internet visitorsto the SOB.com website to various advertisers. Beachs profits are the fruits of unlawful

conduct, subject to discovery and disgorgement.

39. Pursuant to 772.11Fla. Stat., Dubuque seeks threefold indemnity for the lossesthat he as suffered as a result of the defendants conversion of SOB.com, including those

damages caused by lost use of the domain, and fair compensation for the time and money

expended in pursuit of the domain, including attorneys fees.

40. Dubuque suffered damages in excess of $75,000 due to the loss of SOB.com.41. For the deprivation of the use and possession of SOB.com, Plaintiff lacks any

remedy at law.

SECOND CLAIM FOR RELIEF

(Replevin)

42. Paragraphs 1 41 are incorporated herein as if set forth in their entirety.43. Defendants have wrongfully taken and detained SOB.com, which rightfully

belongs to Plaintiff.

44. Plaintiff has sustained damages as a result of Defendants wrongful taking anddetention of SOB.com.

45. Therefore, pursuant to 78.01Fla. Stat., Plaintiff is entitled to a writ of replevinto recover control of SOB.com, along with compensation for his damages sustained by reason of

Defendants wrongful detention of SOB.com.



10/14

10

THIRD CLAIM FOR RELIEF

(Declaratory Relief Under 28 U.S.C. 2201)

46. Paragraphs 1 45 are incorporated herein as if set forth in their entirety.47. An actual controversy exists between the Plaintiff and Defendants, in that Plaintiff

claims the following as his sole and exclusive rights:

a. The right to control the identity of the Registrant, Administrative Contactand Technical Contact for the SOB.com domain in the worldwide WHOIS

database,

b.

The right to reverse the effect of fraudulent transfers effected by identity

theft and the use of forged documents of transfer,

c. The right to obtain return of property wrongfully held, to wit, theSOB.com domain, and

d. The right to recover all funds wrongfully obtained by the Defendants bythe usurpation of Plaintiffs rights alleged as above in subparagraphs a

c.

48. Defendants deny that plaintiffs have such rights.49. Wherefore, a declaration of the rights of the respective parties is merited.

FOURTH CLAIM FOR RELIEF

FEDERAL CLAIM FOR VIOLATION OF

THE COMPUTER FRAUD AND ABUSE ACT, 18 U.S.C. 1030

(Computer Fraud and Abuse Act Claim)

50. Plaintiff realleges and incorporates by reference the allegations in paragraphs 49as though fully set forth herein.



11/14

11

51. John Doe did unlawfully enter into a computer server where Plaintiffs domainname registration was contained, and did unlawfully enter Plaintiffs online account on Dotsters

servers.

52. This entry was unauthorized, and through this entry, John Doe did steal thePlaintiffs property, the SOB.com domain name, the value of which was in excess of $75,000.

53. Dotsters computer servers and the Plaintiffs domain name registration accountthereupon constitute a computer within the meaning of 18 U.S.C. 1030(e)(1).

54. The computer identified above was used in interstate commerce orcommunication and was a protected computer within the meaning of 18 U.S.C. 1030(e)(2)(B).

55. Doe knowingly causes the transmission of a program, information, code, orcommand targeted at a protected computer.

56. As a result of such conduct, Doe intentionally caused damage withoutauthorization, to the Plaintiff and to the relevant computer systems.

57. Doe intentionally accessed a protected computer without authorization, and as aresult of such conduct, has caused damage.

58. The damage caused includes a loss aggregating substantially more than the $5,000amount required under 18 U.S.C. 1030(a)(5)(B)(i).

59. Plaintiff has been damaged, and has suffered losses, due to these past wrongs byDoe.

60. Does intrusion, i.e., the wrongful usurpation of Plaintiffs right to control hisinternet domain, is continued and perpetuated by Beach through his continued possession and

use of SOB.com.



12/14


13/14

13

c. For an order directing the transfer to Tim Dubuque the registration forSOB.com from Chris Beach, or any other wrongful registrant, whoever

they may be; and

d. For actual damages for lost use of the domains according to proof.3. ON THE THIRD CLAIM FOR RELIEF, for a declaration that Plaintiff has the

following rights:

a. The right to control the identity of the Registrant, Administrative Contactand Technical Contact for the SOB.com domain in the worldwide WHOIS

database;

b. The right to reverse the effect of fraudulent transfers effected by identitytheft and the use of forged documents of transfer;

c. The right to obtain return of property wrongfully held, to wit, theSOB.com domain; and

d. The right to recover all funds wrongfully obtained by Defendants by theusurpation of Plaintiffs rights alleged as above in subparagraphs a c.

4. ON THE FOURTH CLAIM FOR RELIEF,a. For an order adjudging that the Defendants caused damage or loss to

Dubuque by unlawfully entering into the Dotster.com servers and

unlawfully entering into Dubuques account thereupon; and,

b. Compensatory damages in an amount to be proven at trial; and,c. Injunctive relief reversing all actions committed by Doe including, but not

limited to, the transfer of SOB.com to Doe and the transfer of SOB.com to

Chris Beach.



14/14

14

5. ON ALL CLAIMS FOR RELIEF, for orders:a. Entering Judgment against Defendants for Plaintiffs costs, attorneys

fees; and

b. For such other and further relief as the Court deems to be just andequitable.

JURY TRIAL DEMAND

A trial by jury is demanded on all claims so triable.

Dated: July 4, 2010 Respectfully submitted,

s/Marc J. RandazzaMarc J. Randazza (625566)[email protected] A. Fischer (68762)[email protected] LEGAL GROUP, P.A.2 Biscayne Blvd, Suite 2600Miami, Florida 33131-1815Telephone: (305) 479-2491Facsimile: (305) 437-7662Attorneys for Plaintiff

Aaron Silverstein (Pro Hac Vice Pending)[email protected] & Silverstein LLP14 Cedar Street, Suite 224Amesbury, MA 01913Telephone: (978) 463-9100Facsimile: (978) 463-9109Attorney for Plaintiff


2010-07-05 sob complaint filed

Documents