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

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 1:10-cv-22207

TIM DUBUQUE,

Plaintiff,

v.

CHRIS BEACH and

John Doe, a/k/a ianiparkinson@gmail.com

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 valuable

domain 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 court’s assistance in

the return of his property.

THE PARTIES

3. Plaintiff Dubuque is an individual with an address of 18 Kirriemuir Drive in

Stratham, New Hampshire, doing business as “Sites of Boston.”

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4. Upon information and belief, John Doe (“Doe”), aka ianjparkinson@gmail.com,

is a citizen and resident of Iran. Doe acquired control over the SOB.com domain name in

violation of Plaintiff’s rights.

5. Upon information and belief, Chris Beach (“Beach”) is currently in possession of

SOB.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 Online

Services, 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 Delaware

corporation 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 identify

the 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 chrisbeach@ii.net. 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.

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6. This Court has personal jurisdiction over John Doe because he has committed

tortious acts within this district.

7. This Court has personal jurisdiction over Chris Beach because of his extensive

contacts 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 if

jurisdiction 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 numerical

standpoint, 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.

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11. Plaintiff seeks to recover this stolen internet domain name. The theft of the

domain 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 (the

“Domain”).

13. During 2001, Plaintiff engaged Dotster, Inc. (“Dotster”) as the registrar of the

Domain, and listed the administrative contact information as “Sites of Boston, 18 Kirriemuir

Drive, Stratham, NH, 03885, tim@oms.net, 603-778-8197.”

14. On information and belief, on or about December 30, 2008, an unknown

individual 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,

ianjaparkinson@gmail.com, 800-457-6677” (the “Dotster Transfer”).

15. The Dotster Transfer was made without Plaintiff’s knowledge or authorization.

16. On information and belief, on or about April 2009, a request was made from

ianjparkinson@gmail.com 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 Plaintiff’s knowledge or authorization.

18. Following the Moniker Transfer, the information regarding the registrant of the

Domain was made private using Moniker’s registration privacy service.

19. On or about May 7, 2009, counsel for Plaintiff spoke with an individual identified

as “Daniel” in Dotster’s abuse department in an attempt to determine how the Moniker Transfer

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took place. Plaintiff’s 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 Plaintiff’s counsel that Dotster was able to identify the Internet

Protocol (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 the

IP 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 an

individual 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 the

validity of Doe’s claim of ownership in SOB.com.

24. On May 8, 2009, counsel for Plaintiff spoke with Moniker representative Kjel

Holmberg regarding the Moniker Transfer. Mr. Holmberg directed counsel to speak to Darcy

Enyeart of Dotster’s Corporate Services Department.

25. On June 5, 2009, counsel for Plaintiff spoke with Ms. Enyeart and briefed her on

the situation. As a result of this conversation, on or about June 6, 2009, Ms. Enyeart emailed to

Mr. Holmberg and Moniker’s Abuse department (abuse@moniker.com) a Fraudulent Transfer

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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. Enyeart’s 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 Plaintiff’s 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

ianjparkinson@gmail.com. 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 also

uses the address 28 Chapple Drive, Australind, WA, 6233, Australia.

28. On or about July 7, 2009, Mr. Holmberg stated in an email to Plaintiff’s counsel

that 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 Domain

back to Plaintiff, Moniker would require further evidence that the ‘ianjparkinson@gmail.com’

was not under Plaintiff’s 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 with

information 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. Holmberg’s email communication is

attached to Attachment “2” as Exhibit “D.”

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31. On July 29, 2009, having had no further communication from Mr. Holmberg or

any other Moniker representatives despite repeated attempts, Plaintiff’s 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 Plaintiff’s sworn affidavit is attached to

Attachment “2” as Exhibit “G.”

32. Plaintiff’s counsel did not receive any response from Mr. Holmberg or

Oversee/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, Plaintiff’s counsel has not received a response to its February 18

demand. 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

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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 WHOIS

database so that it falsely recorded Ian Parkinson as the administrative

contact of SOB.com, thus violating § 817.034 Fla. 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, modified

data, programs, or supporting documentation residing or existing internal

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

conduct is prohibited by § 815.04 Fla. 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 §

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

d. Defendants committed transfer of SOB.com without lawful authority,

baldly usurping the true owner’s rights.

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37. Each of the defendants who participated in the theft of SOB.com, and the

subsequent 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 visitors

to the SOB.com website to various advertisers. Beach’s profits are the fruits of unlawful

conduct, subject to discovery and disgorgement.

39. Pursuant to § 772.11 Fla. Stat., Dubuque seeks threefold indemnity for the losses

that 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 and

detention of SOB.com.

45. Therefore, pursuant to § 78.01 Fla. Stat., Plaintiff is entitled to a writ of replevin

to recover control of SOB.com, along with compensation for his damages sustained by reason of

Defendants’ wrongful detention of SOB.com.

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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 Contact

and 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, the

SOB.com domain, and

d. The right to recover all funds wrongfully obtained by the Defendants by

the usurpation of Plaintiff’s 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 49

as though fully set forth herein.

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51. John Doe did unlawfully enter into a computer server where Plaintiff’s domain

name registration was contained, and did unlawfully enter Plaintiff’s online account on Dotster’s

servers.

52. This entry was unauthorized, and through this entry, John Doe did steal the

Plaintiff’s property, the SOB.com domain name, the value of which was in excess of $75,000.

53. Dotster’s computer servers and the Plaintiff’s domain name registration account

thereupon constitute a “computer” within the meaning of 18 U.S.C. § 1030(e)(1).

54. The “computer” identified above was used in interstate commerce or

communication 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, or

command targeted at a protected computer.

56. As a result of such conduct, Doe intentionally caused damage without

authorization, to the Plaintiff and to the relevant computer systems.

57. Doe intentionally accessed a protected computer without authorization, and as a

result of such conduct, has caused damage.

58. The damage caused includes a loss aggregating substantially more than the $5,000

amount 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 by

Doe.

60. Doe’s intrusion, i.e., the wrongful usurpation of Plaintiff’s right to control his

internet domain, is continued and perpetuated by Beach through his continued possession and

use of SOB.com.

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61. On information and belief, Beach was aware of Doe’s unlawful actions, has

assisted in those unlawful actions, and has benefitted from Doe’s unlawful actions.

62. Doe’s conduct is in violation of 18 U.S.C. § 1030(a)(5)(B)(i), and Beach has

conspired with Doe to violate 18 U.S.C. § 1030.

63. Plaintiff will suffer irreparable harm if Beach is allowed to continue his

intrusions.

PRAYER FOR RELIEF

Wherefore, Plaintiff prays for judgment against Defendants as follows:

1. ON THE FIRST CLAIM FOR RELIEF:

a. For an order adjudging that Plaintiff is the sole legal and equitable owner

of the SOB.com domain name;

b. For an order directing the transfer to Tim Dubuque the registration for

SOB.com from Chris Beach, or any other wrongful registrant, whoever

they may be;

c. For three times actual damages for lost use of the domains according to

proof; and

d. For Plaintiff’s reasonable attorneys fees incurred in prosecution of this

action.

2. ON THE SECOND CLAIM FOR RELIEF:

a. For an order adjudging that Plaintiff is the sole legal and equitable owner

of the SOB.com domain name;

b. For an writ of replevin directing to Defendants the return of all converted

personal property to the rightful owners;

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c. For an order directing the transfer to Tim Dubuque the registration for

SOB.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 Contact

and 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, the

SOB.com domain; and

d. The right to recover all funds wrongfully obtained by Defendants by the

usurpation of Plaintiff’s 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 Dubuque’s 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.

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5. ON ALL CLAIMS FOR RELIEF, for orders:

a. Entering Judgment against Defendants for Plaintiff’s costs, attorneys’

fees; and

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

equitable.

JURY TRIAL DEMAND

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

Dated: July 4, 2010 Respectfully submitted,

s/Marc J. Randazza
Marc J. Randazza (625566)
mjr@randazza.com
Jason A. Fischer (68762)
jaf@randazza.com
RANDAZZA LEGAL GROUP, P.A.
2 Biscayne Blvd, Suite 2600
Miami, Florida 33131-1815
Telephone: (305) 479-2491
Facsimile: (305) 437-7662
Attorneys for Plaintiff

Aaron Silverstein (Pro Hac Vice Pending)

asilverstein@massiplaw.com
Saunders & Silverstein LLP
14 Cedar Street, Suite 224
Amesbury, MA 01913
Telephone: (978) 463-9100
Facsimile: (978) 463-9109
Attorney for Plaintiff

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