Randazza v. Cox

• Decision Date: 11 January 2013
• Docket Number: Case No. 2:12–cv–02040–GMN–PAL.
• Citation: 920 F.Supp.2d 1151
• Parties: Marc J. RANDAZZA, an individual, Jennifer Randazza, an individual, and Natalia Randazza, a minor, Plaintiffs, v. Crystal COX, an individual, and Eliot Bernstein, an individual, Defendants.
• Court: U.S. District Court — District of Nevada

920 F.Supp.2d 1151

Marc J. RANDAZZA, an individual, Jennifer Randazza, an individual, and Natalia Randazza, a minor, Plaintiffs,

v.Crystal COX, an individual, and Eliot Bernstein, an individual, Defendants.

Case No. 2:12–cv–02040–GMN–PAL.

United States District Court, D. Nevada.

Jan. 11, 2013.

Ronald D. Green, Jr., Randazza Legal Group, Las Vegas, NV, for Plaintiffs.

Crystal L. Cox, Port Townsend, WA, pro se.

ORDER

GLORIA M. NAVARRO, District Judge.

Pending before the Court is the Motion for Preliminary Injunction (ECF # 2) filed by Plaintiffs Marc J. Randazza, Jennifer Randazza, and Natalia Randazza (collectively, “Plaintiffs”). Also before the Court are Defendant Cox's Motion for Judges and Clerks to Sign a Conflict of Interest Disclosure (ECF # 19), Defendant Cox's Motion for Judge Gloria Navarro's Recusal (ECF # 20), and Plaintiffs' Motion to Strike Defendant Cox's Fugitive Surreply to Motion for Preliminary Injunction (ECF # 31).

I. BACKGROUND

The Complaint brought before the Court involves Plaintiffs' claims that Defendants registered no less than thirty-two Internet domain names (“Domain Names”) that incorporate all or part of Plaintiffs' personal names. Plaintiff Marc Randazza is the managing partner of Marc J. Randazza PA, d/b/a Randazza Legal Group, ( See Id. at Ex. 4) and also provides legal commentary for various media organizations ( See Id. at Ex. 3, 5; Randazza Decl. ¶ 5). Plaintiff Jennifer Randazza is Plaintiff Marc Randazza's wife, and Natalia Randazza is their four-year-old daughter. Defendant Crystal Cox (“Cox”), registered the Domain Names at issue in this case, some of which were listed under proxy, Defendant Eliot Bernstein (“Bernstein”) (collectively, “Defendants”). Defendants allegedly registered the Domain Names at issue in this case through registrar Godaddy.com and through Google's Blogspot service between December 10, 2011 and September 20, 2012:

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On January 16, 2012, Cox sent an email to Plaintiff Marc Randazza stating that she had purchased his personal name as a domain name. ( See Id. at Ex. 8). She then offered Plaintiff her “reputation management services” and asked if he or anyone else would be interested in purchasing these services. ( Id.). At the time of the filing of the Complaint, Cox used the websites for her “investigative blogging” or as GoDaddy “domain park” pages, which display a variety of pay-per-click advertisements. ( Id. at Ex. 11.) Randazza responded to Cox that she had “no right to register a domain name that corresponds to” his real name. ( Id.) Randazza also requested that Cox transfer the rights to < marcrandazza.com> to Randazza. ( Id.) Cox did not transfer the Domain Names, and, ultimately, she advertised on her blog that the Domain Name < marcrandazza.me> was for sale for $5 million. ( See id. at Ex. 13.)

After Defendants refused to transfer the Domain Names and to cease their infringing activity, Plaintiffs filed a complaint in this Court alleging six causes of action: (1) Violation of Individual Cyberpiracy Protections under 15 U.S.C. § 8131; (2) Cybersquatting under 15 U.S.C. § 1125(d); (3) Right of Publicity under Nevada Revised Statute 597.810; (4) Common Law Right of Publicity; (5) Common Law Right of Intrusion Upon Seclusion; and (6) Civil Conspiracy. Plaintiffs also filed the instant motion pursuant to Rule 65 of the Federal Rules of Civil Procedure for a preliminary injunction barring Defendants from using the Domain Names. For the reasons discussed below, Plaintiffs' Motion for Preliminary Injunction (ECF No. 2) is GRANTED.

II. LEGAL STANDARD REGARDING PRELIMINARY INJUNCTIONS

Rule 65 of the Federal Rules of Civil Procedure governs preliminary injunctions and temporary restraining orders, and requires that a motion for temporary restraining order include “specific facts in an affidavit or a verified complaint [that] clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition,” as well as written certification from the movant's attorney stating “any efforts made to give notice and the reasons why it should not be required.” Fed.R.Civ.P. 65(b). A party seeking injunctive relief under Fed.R.Civ.P. 65 must demonstrate irreparable harm, meaning that “money damages alone will not suffice to restore the moving party to its rightful position.” Clark Pacific v. Krump Constr., Inc., 942 F.Supp. 1324, 1346 (D.Nev.1996). A court may issue a preliminary injunction where the plaintiff shows “serious questions going to the merits,” and a “balance of hardships that tips sharply toward the issuance of a preliminary injunction,” so long as the plaintiff can also show irreparable harm if the court does not issue the injunction. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir.2011).

In order to obtain a preliminary injunction, a plaintiff must show that: (1) the suffering of irreparable harm if injunctive relief is not granted; (2) success on the merits; (3) the balance of equities tips in favor of the moving party; and (4) granting the injunction is in the public interest. See Stanley v. University of Southern California, 13 F.3d 1313, 1319 (9th Cir.1994). Alternatively, the party seeking an injunction must also show that 1) the party is likely to suffer irreparable harm absent the issuance of an injunction and 2) the existence of serious questions going to the merits and that the balance of hardships tips sharply in his favor. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir.2011). A “serious question” is one for which the moving party has a “fair chance” of successon the merits. See Stanley, 13 F.3d at 1319.

“Injunctive relief [is] an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The purpose of a preliminary injunction is “preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no longer.” Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70, 415 U.S. 423, 439, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974).

III. DISCUSSION

For the reasons discussed below, the Court concludes that Plaintiffs have established each of the four elements necessary for the preliminary injunction to issue. Accordingly, the Court finds that Plaintiffs are entitled to a preliminary injunction directing the domain name registrar to transfer the Domain Names to Plaintiffs.

A. Likelihood of Success on the Merits

The Winter test states that in order to show the necessity of injunctive relief, plaintiffs must first prove a likelihood of success on the merits. 555 U.S. at 20, 129 S.Ct. 365. While Plaintiffs have alleged six causes of action against Defendants, (ECF No. 1), because Plaintiffs have met their burden for Violation of Individual Cyberpiracy Protections claim under the Anticybersquatting Consumer Protection Act (“ACPA”), 15 U.S.C. § 8131, the Court need not address whether Plaintiffs are likely to succeed on the merits of the remaining claims.

Plaintiffs' first cause of action alleges that Defendants' registration of the Domain Names violates the provision of the ACPA that provides cyberpiracy protection for individuals. See15 U.S.C. § 8131. In pertinent part, section 8131 provides that:

[a]ny person who registers a domain name that consists of the name of another living person, or a name substantially and confusingly similar thereto, without that person's consent, with the specific intent to profit from such name by selling the domain name for financial gain to that person or any third party, shall be liable in a civil action by such person.

15 U.S.C. § 8131(1)(A). The statute further provides a very limited exception that requires, inter alia, that the person registering the domain name act in good faith:

A person who in good faith registers a domain name consisting of the name of another living person, or a name substantially and confusingly similar thereto, shall not be liable under this paragraph if such name is used in, affiliated with, or related to a work of authorship protected under Title 17, including a work made for hire as defined in section 101 of Title 17, and if the person registering the domain name is the copyright owner or licensee of the work, the person intends to sell the domain name in conjunction with the lawful exploitation of the work, and such registration is not prohibited by a contract between the registrant and the named person. The exception under this subparagraph shall apply only to a civil action brought under paragraph (1) and shall in no manner limit the protections afforded under the Trademark Act of 1946 (15 U.S.C. 1051 et seq.) or other provision of Federal or State law.

15 U.S.C. § 8131(1)(B).

Finally, the statute empowers the court to “award injunctive relief, including the forfeiture or cancellation of the domain name or the transfer of the domain name to the plaintiff.” 15 U.S.C. § 8131(2).

Thus, Defendants are liable under the ACPA if they had a bad faith intent to profit from registering, trafficking in, or using as a domain name a mark that is either identical or confusingly similar to a distinctive mark, such as Plaintiff's personal name. For the reasons discussed below, the Court concludes that Plaintiffs have shown that they will likely succeed in establishing each of the three elements of the personal cyberpiracy protection claim and also that Defendants will be unlikely to establish the good faith exception. Thus, Plaintiffs have shown the requisite likelihood of success on the merits.

1. Defendants registered numerous domain names that include one of more of Plaintiffs' personal names.

Plaintiffs...