New lawsuit is in rem and in a different district.
Oath Research, a company that says its domains were stolen from its account at registrar TrustName, has filed a new lawsuit (pdf) to recover its most important domain.
The company originally filed a lawsuit in New Jersey against TrustName. The judge in that case denied a motion for a temporary restraining order and a preliminary injunction because it lacked personal jurisdiction, and Oath had not shown why TrustName shouldn’t be given an opportunity to respond.
Oath Research’s new lawsuit is in rem against the domain name itself and no longer names TrustName. It adds the .com registry, Verisign, and the Chinese domain registrar, NiceNic. (The domain moved from TrustName to NiceNic, but has subsequently moved to Reg.ru.)
Importantly, the new case was filed in the Eastern District of Virginia, where Verisign is located.
With TrustName no longer named and the switch to an in rem suit in Verisign’s district, Oath Research hopes to overcome the deficiencies in its first filing.
They named Verisign as a defendant. Clearly, they are going to hit every branch of the stupid tree on the way down. The entire point of the ACPA immunity for registries and the in rem jurisdiction was to avoid naming the registry as a defendant. So, instead of getting a prompt in rem order against a name that is going to likely default, they are going to have to go through Verisign’s process for dealing with cases in which they are named as a defendant. On top of that, it doesn’t seem as if they understand that the registrar defendant is being de-accredited by ICANN and an order directing them to give the domain name back is ridiculous; instead of what every sane litigant does which is to get a default in rem order directing the registry to move the domain name to the registrar of their choice. For someone who wants their domain name back quickly, these guys manage to pick the least efficient pathways to that result.
I found naming Verisign as a bit odd. They just need the court order demanding Verisign transfer the domain.
Typically, in order to compel someone to do something in a court order, you have to have that entity as a party in the suit. Once in a while (in places other than EDVA) you’ll run into a judge who will wonder why a party is proposing an order which requires a non-party to do something. But if you are going to name that party in the action for the purpose of obtaining effective injunctive relief, then it is best to coordinate ahead of time with that party to make sure there is an understanding that they are simply there in order to implement any relevant order. That’s one of the conveniences built into the in rem jurisdiction mechanism of the ACPA. But if you are pursuing a suit at the registry location in order to gain control of the domain name, then it is important to realize that the registry cannot control to whom the domain is registered – they can only assign the registrar. So, you still need to coordinate with the registrar to whom you want it transferred in order to get it into your account. Getting an order telling the registry “transfer the domain name to this person” is pointless, since they can’t do that. Likewise, ordering a registrar that is going to be functionally disabled within the next few days to do anything is equally pointless.