Case 1:12-cv-00852-GBL-JFA Document 62 Filed 12/18/12 Page 1 of 12 PageID# 704
UNITED STATES DISTRICT COURT FORFOR THE EASTERN DISTRICT OF VIRGINIA AlexandriaAlexandria Division
) GRAHAM SCHREIBER, )) ) Plaintiff, )) )) VSvs. )) CaseCase No. lzl2 1:12 CY CV 00852 (GBL/JT'A) (GBL/JFA) )) LORRAINE LESLEY LESLEY DUNABIN, DUNABIN, et al al.) )) DefendantsDefendants. )) )
DEFENDANT ENOM.INC.'S ENOM, INC.'S REPLY MEMORANDUM MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF'S COMPLAINT
GREENBERG TRAURIG, LLP 17501750 Tysons Blvd., Suite 1200 Mclean,McLean, Virginia Virginia 22102 Telephone: (703)749-1300 (703) 749-1300 Facsimile: (703)749-1301 (703) 749-1301
Attorneys for Defendant eNom, Inc. Case 1:12-cv-00852-GBL-JFA Document 62 Filed 12/18/12 Page 2 of 12 PageID# 705
Defendant eNom, Inc. ("eNom"), ("eNom"), through undersigned undersigned counsel, respectfully respectfully submits submits this
replyreply memorandum of law law in in support of its its motion to dismiss the the Complaint ("eNom's Motion")
filedfiled by Graham Schreiber ("Mr. Schreiber") pursuant to to Fed. R. Civ. P. 12(bX1) 12(b)(1) for for lack of
subjectsubject matter jurisdiction, Fed. R. Civ. P. P. 12(bX5) 12(b)(5) for for insufficient service of process, process, and and Fed.
R. Civ. P. 12(bX6) 12(b)(6) for failure to state a claim.
I.I. INTRODUCTION
Mr. Schreiber's Opposition Brief to Defendants' Motion to Dismiss ("Opposition Brief')
(Dkt. 55), misstates the the law law and fails fails to to rebut rebut any of salient facts facts meriting dismissal including including the the
most poignant: aatrademark trademark dispute between a Canadian citizen and a U.K. resident over
trademarktrademark use in in the the U.K. with alleged damages occurring in in the the U.K. and Canada does not not
belong in a United States court, because there is no extraterritorial application of the Lanham
Act. Mr. Schreiber does not have worldwide trademark rights, or any trademark rights in the
United States, to the alleged "Landcruise" mark based on his use in Canada, an application to
registerregister the the alleged mark on the the principal principal trademark trademark register register in in the the United States, or or a domain
name registration.
Mr.Mr. Schreiber Schreiber likewise likewise fails to allege critical elements of his other claims. He admits that that
his mark is not famous, famous, a necessary necessary element for for his dilution claim. claim. And, And, Mr. Schreiber's
Opposition does not dispute that eNom is a registrar, and and therefore therefore is protected protected under the the Safe
HarborHarbor provision of the Lanham Act. Moreover, as a registrar, eNom lacks the degree of control
overover Dunabin Dunabin that would would be be necessary necessary to to impose impose liability liability for for contributory infringement.
Finally, to to the the extent that Mr. Schreiber is arguing that his Complaint contains a contract
or fraud fraud claims, those those claims also must must be be dismissed dismissed because because Mr. Schreiber is not not a third party party
I1 Case 1:12-cv-00852-GBL-JFA Document 62 Filed 12/18/12 Page 3 of 12 PageID# 706
beneficiary to any contract at issue and does not have standing to bring a breach ofcontract of contract
claim, and because because any any alleged fraud fraud claim must be be pled pled with with particularity.
For the the foregoing reasons, Mr. Schreiber's claims against eNom fail and his his Complaint Complaint
shouldshould be be dismissed with with prejudice.
II.II. ARGUMENT ARGUMENT
A. The Court Does Not Have Subject Matter Matter Jurisdiction Over Over a Trademark Dispute That Does Not Concern A U.S. Trademark
InIn his Opposition Brief, Mr. Schreib Schreiber, er, a Canadian citizen, admits that that his his claims claims are
based on Lorraine Lorraine Dunabin's Dunabin's registration of the alleged trademark Landcruise in the U.K., the
ownership rights to the alleged alleged trademark trademark Landcruise Landcruise in the the U.K., and Ms. Ms. Dunabin's registration registration
of the domain name, www.landcruise.uk.com. Opposition Brief at 3; seesee also Complaint at 3-5.. 3-5 ..
None of this use is alleged to have occurred in the United States. In addition, Mr. Schreiber
seeks relief relief that is is unrelated to trademark use in the United States. Specifrcally, Specifically, Mr. Schreiber
has asked the Court to order Ms. Dunabin to release both the U.K. trademark and domain name,
and award damages for "TWO (2) YEARS of lost lost access to to the the United Kingdom, for for marketing
at travel travel and RV related shows" and "missing "missing the the ultimate ultimate branding opportunity, of touring a
'Landcruise''Landcruise' Branded RV or RV's around London, during the the Summer Olympics of of2012.,,1 20I2."r
(Opposition(Opposition Brief at 3,21).
t 1Mr.Mr. Schteiber's Schreiber's other alleged damage of 18 months of mental health stress is similarly not recoverablerecoverable under under the the Lanham Lanham Act. See Roth v. Naturally Vitamin Supplements, 1nc.,2007 Inc., 2007 WL 2020114, atat*3 *3 (D. Ariz. July 6, 2007) (finding that the elements of damages under the Lanham Act do not include emotional distress); distress); Condit v. Star Editorial, lnc.,259 Inc., 259 F. Supp. Supp. 2d 1046,1052 1046, 1052 (E.D.(E.D. Cal. 2003) (private (private person asserting asserting an an emotional distress injury injury is is not not protected by the the Lanham Act).
)2 Case 1:12-cv-00852-GBL-JFA Document 62 Filed 12/18/12 Page 4 of 12 PageID# 707
As set forth forth in in eNom and CentralNic's Motions, the general rule is that Lanham Act does
not apply extraterritorially. See eNom's Motion (Dkt. 46-1) at 5, CentralNic's Motion (Dkt. 9) at
8-18-11. 1. The Lanham Act only applies to foreign conduct when they have a significant effect on
United States commerce. Tire Eng'g & Distribution, LLC v. ShandongShandong Lìnglong Linglong Rubber Co., Co.,
Ltd.,682F.3d292,310Ltd., 682 F.3d 292,310 (4th Cir.Cir.2012) 2012) (citing Nintendo of Am., Inc. v.v. Aeropower Co., Ltd.,34 Ltd., 34
F.3d246,250F.3d 246,250 (4thCir. (4th Cir. ß9$); 1994)); see also ACG Products, Ltd. v. Gu,2011Gu, 2011 V/L WL 7748354,at*5 7748354, at *5
(V/.D.(W.D. V/is. Wis. Nov. 4,2011) (dismissing (dismissing plaintiff plaintiffs s trademark trademark infringement infringement claim claim for for failure failure to to
allege conduct having having an effect on U.S. U.S. commerce, commerce, thereby depriving the the court ofjurisdiction of jurisdiction
underunder the Lanham Act). Act).
A court court must must consider "the citizenship citizenship of the defendant, and the possibility of conflict
with trademark trademark rights rights under the the relevant foreign law" since the the general injury contemplated by
thethe Act is is harm harm to to a plaintiff plaintiffs s "trade "trade reputation reputation in in United United States States markets." NintendoNintendo of Am., Am.,
Inc.Inc. v. AeropowerAeropower Co., Ltd.,34 Ltd., 34 F.3d F.3d 246,250 246, 250 (4th (4th Cir. Cir. 1994). Although Although courts may may apply the the
LanhamLanham Act extraterritorially extraterritorially when when "sales to foreign consumers would jeopardize the income of
an American American company," company," even even if if there there is a failure failure to to cause cause confusion among U.S. U.S. consumerc, consumers, Tire
Eng'g & Disnibution,Distribution, LLC,682 LLC, 682 F.3d at 3 310-11, 10- I l, that is not the case here.
InIn this this case, there there is is no no allegation allegation that that any of of the the alleged alleged conduct has has any effect on U.S. U.S.
commerce, let let alone a significant effect. Indeed, Indeed, all of ofMr. Mr. Schreiber's allegations focus on
conductconduct that that occurs occurs outside of (and affects affects commerce outside outside of) the United States.
Similarly,Similarly, Mr. Mr. Schreiber Schreiber has has not alleged the the possibility ofjeopardizingthe of jeopardizing the income of a
U.S. company, since since his company company is Canadian. (Complaint (Complaint at Cover Page), or a U.S. trademark' trademark.
AsAs set forth forth below in Section B, B, Mr. Schreiber has not alleged any use in commerce in the
UnitedUnited States of his alleged Landcruise mark. Accordingly and because because the Lanham Act may
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not be applied applied extraterritorially, the Complaint should be dismissed for lack of subject matter
jurisdiction.jurisdiction.
B. Mr. Schreiber Fails to State a Claim For Trademark Infringement Or Dilution Under the the Lanham Lanham Act Act or Common Law
"Although district courts have a duty to to construepro construe pro se pleadingspleadings liberally, liberally, a a court is is not
obliged to ferret ferret through a complaint, complaint, searching searching for for viable viable claims." claims." Jackson v. Michalski,20lIMichalski, 2011
WL3679143,WL 3679143, at *5 (W.D.Va. (W.D. Va. Aug. Aug. 22,2011) 22, 2011) (dismissingpro (dismissing pro se se Lanham Act claims among
others). A pro se se plaintiff must allege allege facts facts that that state a cause of action with with enough enough detail detail to
illuminateilluminate the the nature nature of the the claim, and courts do not have "to conjure up questions never squarely
presented to them." Id.Id. (quoting(quoting Beaudett v. City of Hampton, Hampton, 775 F.2d 1274, 1274,1278 1278 (4th (4thCir. Cir.
1e85).1985).
1. Mr. Schreiber Has No No Trademark Rights in in the the U.S.
a. Use of the Term "Landcruiseo'in "Landcruise" in Canada Does Does Not Not Create Trademark Rights in the U.S.
As set forth in in eNom and CentralNic's Motions, "[i]t has long been recognizedthat recognized that use of
a foreign foreign mark mark in in a a foreign country country creates no no trademark trademark rights under under United United States law." Int'lInt'l
Bancorp, LLC v. Societe des Bains de Mer et et du Cercle des Estrangers a a Monaco, 329 F F.3d .3d 359 359, ,
363 ( (4th thCir.2003). Cir. 2003).
Mr. Schreiber failed to allege that anything pertaining to his business or operations occurs
inin the the U.S. U.S. and failed failed to to allege any evidence of sales of goods or services under the the Landcruise
mark in the U.S. Mr. Schreiber has not asserted any new facts in his Opposition Brief
demonstrating use in commerce of the "Landcruise" mark in the U.S. to support trademark rights
under the Lanham Act or common law. Although Mr. Schreiber alleges that he has a "USPTO
No. 85348243 Trademark," this is not a registered trademark, but a pending application that
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confers no trademark rights rights at all. (Complaint (Complaint at 15; Opposition Brief Brief at 15). Contrary to to Mr' Mr.
Schreiber's incorrect incorrect statement, statement, his his pending pending trademark trademark is not not incontestable. incontestable. (Opposition Brief Brief at
26). The only use in commerce Mr. Schreiber alleges is his 14 years of use of the mark
"Landcruise" in in Canada for his his Canadian-based company "Landcruise Ltd," which sells or rents rents
motormotor homes homes in in Canada. Canada. (Complaint at 5,14; 5, 14; Ex. 1 at 6). Since Mr. Schreiber's mark is
unregistered, the extent of his trademark rights is limited to whatever whatever markets the mark has been
used in, in, which in this case, means Canada.
BecauseBecause use use of of a Canadian Canadian mark in Canada creates creates no trademark trademark rights in in the U.S., U.S., Mr. Mr.
Schreiber has has failed failed to state a claim under the the Lanham Act or common law.
b.b. Registration of a Domain Name Does Not Create Trademark Rights in thethe U.S. U.S.
Similarly, Mr. Mr. Schreiber Schreiber contends that he he has has trademark trademark rights, rights, which he he refers refers to to as
"states"States Rights," through through the the registration registration of his domain name. (See(See OppositionOpposition Brief at 15-16,25 15-16, 25
(stating(stating he has has a "'Registered '''Registered Mark' Mark' for for commerce, issued issued by Network Solutions, Solutions, under under
authorityauthority of of the the United States Department Department of of Commerce and it's it's in Bona Fide Fide Use and and has been
inin uninterrupted Use, Use, ever ever since")). Mr. Schreiber, however, however, appears appears to to confuse trademark trademark
registrationregistration with with domain domain registration. registration. 'oThe "The mere mere registration registration of a domain domain name with with a domain
namename registrar by by itself does not confer trademark trademark rights." rights." Newborn v. YøhooYahoo! ! Inc.,39l Inc., 391 F' F. Supp. Supp.
2d2d 1 181 8 1 (D.D.C. 2005); seesee also CentralNicMotion (Dkt. 9) 9) af at 12-14. Since the the registration of ofa a
domain name alone does does not create create trademark trademark rights, rights, Mr. Schreiber Schreiber has failed failed to to state state a claim for for
trademarktrademark infringement infringement under under the the Lanham Act or common law. law.
5 Case 1:12-cv-00852-GBL-JFA Document 62 Filed 12/18/12 Page 7 of 12 PageID# 710
2. eNom Has Not Used the Alleged Trademark In Commerce
ForFor a a domain name dispute based on federal federal or common law trademark trademark infringement infringement or or
dilution, the relevant tortious act is the use of the domain name, not registration of the domain
name. Am. Online, Inc. v. Huang,106 Huang, 106 F. S.tpp. Supp. 2d 848,854 (8.D. (E.D. Va. 2000). In this case, Mr.
Schreiber has not alleged that eNom, as the registrar of the allegedly infringing domain name,
has used the mark. For this additional independent reason, Mr. Schreiber has failed to state a
claim against eNom under the Lanham Act or common law. law.
3. Mr. Schreiber Fails to State a Claim for Dilution
To state a claim for trademark dilution, a Mr. Schreiber must show that he owns a famous
mark, among other elements. Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC,507 LLC, 507 F.3d
252,264252, 264 (4th Cir. 2007). Mr. Mr. Schreiber has has admitted that*Landcruise" that "Landcruise" is not a famous mark.
Although Mr. Schreiber states it is irrelevant that Landcruise is not a famous mark, (Opposition
BriefBrief ataI26), 26), it is relevant relevant as an an element of the claim. Therefore, Mr. Schreiber has not stated a
claimclaim for for dilution.
44.Mr. Schreiber Schreiber Fails Fails to State State a a Claim Claim for Contributory Infringement or or Dilution
r.a. The Safe Harbor Harbor Provision Shields Registrars Registrars Like eNom from LiabilityLiability
Contrary to Mr. Mr. Schreiber's assertion, in which he says says to to "See Red Red Flags!" (Opposition
BriefBrief at 5), the Safe Harbor provision found found at 15 15 U.S.C. U.S.C. $ § 1114(2)(Dxiii) 1114(2)(D)(iii) shields registrars registrars like
eNomeNom from from liability unless unless there is is an alleged bad faith faith intent intent to profit profit from from the the maintenance maintenance or
registrationregistration of of a domain name. name. (Opposition (Opposition Brief Brief at at 26). llr. Mr. Schreiber contends that that "eNom
documents issued by CentralNic illustrated the the use of enticing language, both on on CentralNics
website and eNom's eNom's too," "the sales pitch of eNom eNom enticed infringement infringement and they they with
6 Case 1:12-cv-00852-GBL-JFA Document 62 Filed 12/18/12 Page 8 of 12 PageID# 711
CentralNic, are profiting from Contributory Infringement," Infringement," and that that "eNom knew then, very
clearly,clearly, the the precious distinction's between 'TLD's' 'TLD's' and 'Domain Names' and they they were selling
'infringement''infringement' naturally equaling 'Contributory 'Contributory Infringement." Infringement." (Opposition (Opposition Brief ata|5,26,32). 5, 26, 32).
Mr.Mr. Schreiber contends that these alleged facts prevent prevent eNom from asserting the Safe Harbor
provision.provision. Sales pitches for for legitimate, ICANN-approved activities, however, do not rise to the
levellevel of bad faith faith required required for for the the Safe Harbor provision not to to apply. See Harsco Corp. v.v.
Harscobc.com,2012Harscobc.com, 2012 \ML WL 5305180, 5305180, at *4 (E.D. Va. Va. Oct. 7,2012),report 1,2012), report andrecommendation and recommendation
adopted,z}l2WLadopted, 2012 WL 5305231 (8.D. (E.D. Va. Oct. 24,2012) 24, 2012) (holding legitimate business activities do
notnot support support a finding of of bad faith intent). Therefore, the the Safe Harbor Harbor provision provision applies and
eNom is is shielded from from liability. liability.
b. eNom Cannot Be Held Liable Liable for Contributory Infringement Infringement
eNom likewise likewise cannot be held liable for for contributory infringement. infringement. "[D]omain name
registrarsregistrars lack lack the the requisite requisite degree of control over the activity of third-party third-party infringers infringers to to justify justify
extending the meaning of 'product" to their their activities."' activities. '" Size, Inc. v. Network Solutions, Solutions, Lnc.,255 Inc., 255
F. Supp. Supp. 2d 2d 568,572-73568, 572-73 (E.D. (E.D. Va. 2003) (quoting Lockheed Martin Martin v.v. NetworkNetwork Solutions, Solutions, 194 194
F.3d 980 980 (9th Cir. Cir. 1999)); see also CentralNic Motion Motion (Dkt. 9) at20-21. at 20-2l. Mr. Mr. Schreiber contends
thatthat "eNom had had 'control' 'control' sufficient sufficient to 'know' 'know' it's it's a fraudulent fraudulent representation representation of a'.com"'and a '.com'" and
thatthat "eNom "eNom knew knew then, then, very very clearly, the the precious precious distinction's between between 'TLD's' 'TLD's' and and 'Domain 'Domain
Names and they they were selling selling 'infringement' naturally equally 'Contributory Infringement."' Infringement."
(OppositionBrief(Opposition Brief at at 4,5,44) 4, 5, 44) (citing (citing Lockheed Martinv. Martin v. NetworkSolutions,l94Network Solutions, 194 F.3d F.3d 980,984- 980, 984-
85 (9th (9th Cir. 1999) for for the the proposition that for contributory infringement, the critical distinction is
"knowing"). Lockheed,Lockheed, however,however, holds holds thatthat. aaregistrar registrar cannot be held held liable liable for for contributory
7 Case 1:12-cv-00852-GBL-JFA Document 62 Filed 12/18/12 Page 9 of 12 PageID# 712
infringementinfringement because because it it does not supply a a product to to third third parties parties that that register register domain domain names, names, and
does not direct and control third parties' uses of domain names.
Since there are no allegations that eNom controlled any of the alleged infringement or
directed Ms. Dunabin's use of the domain names, or was even aware at all of ofMr. Mr. Schreiber's
alleged mark, Mr. Schreiber fails to state a claim for contributory infringement.
C. Mr. Schreiber Is Not Not a Third-Party BenefTciary Beneficiary to Any Alleged Alleged Agreement
Mr. Schreiber's contention that eNom "are [sic] liable under the ICANN contract"
because it "was breaching the law and representing themselves as ICANN agent while ......
KNOWINGLYKNOWINGL Y ...... selling selling an artificial artificial/fraudulent / fraudulent product, as an ICANN product," (Opposition
Brief at 4) likewise must be rejected. As As set forth in CentralNic's Motion to Dismiss, Mr.
Schreiber lacks standing to assert any breach of contract claim as a result of the Registrar
Accreditation Agreement ("RAA") with ICANN. See CentralNic's Memorandum InIn Support of
ItsIts Motion to to Dismiss, Dismiss, Dkt. Dkt. 9, at2l-22. at 21-22. Mr. Mr. Schreiber Schreiber is is not not a third third party beneficiary beneficiary to to any
contract concerning the .com domain domain name at issue, and the the RAA RAA specifrcally specifically disclaims any third
party benehciaries. beneficiaries. (Complaint (Complaint atat16) 16) (quoting Section 8.5 of the RAA which which disclaims any
thirdthird party benefi beneficiaries). ciaries).
D.D. Mr. Mr. Schreiber Fails Fails to to Assert Assert a a Claim for for Fraud Fraud
To the extent that that Mr. Mr. Schreiber Schreiber is is attempting to assert assert a claim claim for for fraud by by asserting in
hishis Opposition that'oeNom that "eNom is is breaching the the law law while knowingly knowingly selling an an artificial/fraudulentafüftcial/fraudulent
product,"product," this claim must must be dismissed as well. (Opposition (Opposition Brief Brief at 4)' 4).
Mr.Mr. Schreiber Schreiber has has failed to allege the the required elements of fraud or plead any of the
elements with particularity. See Hitachi Credit Credit Am. Corp. v. Signet Bank,166 Bank, 166 F.3d F.3d 614,628
(4th(4th Cir. Cir. 1999) (reciting (reciting the the elements elements of a fraud fraud claim under Virginia Virginia law law as "(1) a false false I8 Case 1:12-cv-00852-GBL-JFA Document 62 Filed 12/18/12 Page 10 of 12 PageID# 713
representation,representation, (2) (2) of a material fact, (3) (3) made intentionally intentionally and knowingly, (4) (4) with intent intent to to
mislead,mislead, (5) reliance by the the party patty mislead, mislead, and (6) resulting damage to the party misled.")
(intemal(internal quotations and citations omitted); Fed. R. Civ. P. P. 9(b) (mandating (mandating that that claimants plead
fraudfraud with particularity); see also Harrisonv. Harrison v. Westinghouse Sqvannah Savannah River River Co.,176F.3d776, Co., 176 F.3d 776,
783-84 (4th Cir. Cir. 1999) (quoting 5 5 Charles Alan Wright Wright and and Arthur Arthur R. Miller, Miller, Federal Practice Practice
andand Procedure: Civil ç§ 1297, 1297, at 590 590 (2d ed. ed. 1990) (requiring fraud fraud claimants to plead with
particularity elements such as "the time, time, place, place, and contents contents of of the the false representations, as well well
as the the identity identity of the person making the the misrepresentation and what he obtained thereby."). thereby.").
Mr.Mr. Schreiber's complaint does not allege allege any of these these elements. He likewise likewise fails to
plead the specifics specifics of any false representation, reliance, or or damages. Mr. Schreiber's claim for
fraudfraud therefore therefore should be be dismissed.
E. Mr. Mr. Schreiber Schreiber Did Not Properly Properly Serve Serve eNom eNom
InIn his his Opposition Opposition Brief, Mr. Schreiber states that that undersigned undersigned counsel for for eNom, Mr.
David Barger, accepted service by attending the Court hearing on the motion to dismiss.
(Opposition(Opposition Brief at 6). The waiver of service service of of process issue issue is is governed by by Fed. Fed. R. R. Civ. Civ. P.
12(hX1).12(h)(1). Under this this rule, rule, aaparty party must must object object to to insufficient service service of process in in its its first Rule Rule 12 12
motion or the objection is waived, but it does not mean that aparty a party waives the defense by
makingthemotion.making the motion. Xyrous Commc'ns, Commc 'ns, LLCv. LLC v. BulgarianTelecomm.Bulgarian Telecomm. Co. AD,74Fed. AD, 74 Fed. R. R. Serv. Servo
3d629,3d 629, at at *8 *8 (E.D. (E.D. Ya.2009) Va. 2009) (explaining (explaining how how the the federal waiver rules do not not recognizethe recognize the
special and general appearance distinction). In resolving a motion under Rule 12(b)(5) 12(b)(5) for
insufficientinsufficient service of of process, "the party making the the service service has the the burden of demonstrating its its
validity when when an objection to to service is made." made." United States v.V. Sea Bay Bay Dev. Dev. Corp.,2007 Corp., 2007 WL
1378544,af1378544, at *2(E.D.Va. *2 (E.D. Va. May 8,2007) 8, 2007) (quoting Reedv.Reed V. lleel 99 Case 1:12-cv-00852-GBL-JFA Document 62 Filed 12/18/12 Page 11 of 12 PageID# 714 1052,10541052, 1054 (E.D. Pa. 2001). 2001)). Since eNom asserted its insufficiency of service of process defense inin its its Motion, the the filing filing of that that Motion and Mr. Barger's subsequent appearance at the the Court Court hearing do not waive the the argument.2 argument.' III.III. CONCLUSION This Court Court does not have have subject matter jurisdiction over the underlying dispute between Mr. Schreiber and and Dunabin Dunabin regarding the use of ofMr. Mr. Schreiber's Schreiber's alleged Landcruise mark mark in in the U.K. or the the registrationregistration of of the the domain domain name cognizable claim claim against eNom and has has not not properly served eNom with with process. process. Furthermore, to to the the extent thatthat Mr. Schreiber is is attempting to to base base any of his his claim on his his incorect incorrect interpretation interpretation of third-party third-party beneficiary status or is is attempting to to assert a claim for fraud, his arguments arguments must fail and his claims must be be dismissed. For For all of these reasons reasons and as described more fully above, Mr. Schreiber's Complaint should should be dismissed with with prej prejudice. udice. Dated: December December 18,20t2 18,2012 Respectfully submitted, submitted, /s//s/ David David G. Barser Barger DavidDavid G. Barger (Va. Bar Bar No. 21652) 21652) Amanda Katzenstein (Va. Bar Bar No. No. 82273) GREENBERG TRAUzuG, TRAURIG, LLP LLP 17501750 Tysons Blvd., Suite Suite 1200 1200 Mclean,McLean, Virginia 22102 22102 Telephone: (703)749-1300 (703) 749-1300 2 2 Given the amount of time time that that has has passed since Mr. Mr. Schreiber filed his his Complaint on July 31, 2012, Mr. Schreiber's Complaint also should be dismissed for failure to properly serve eNom within 120 days of filing the Complaint under under Rule 4(m). 4(m). SeeSee Mendez Mendez v. Elliot, 45 F.3d 75,78- 75, 78- 79 (4th (4th Cir. 1995) ("Rule 4(m) requires that if a complaint is not served within 120 days after it isis filed, filed, the the complaint must must be dismissed ...... ") ") (citing (citing InIn re re Cooper, Cooper, 97I971 F.2d 640,641640, 641 (llth(l l th Cir. 1992)) ("[A] ("[AJ district court has no discretion to salvage an action once the court has found a violation of fRule [Rule 4(m)] 4(m)J and a lack of good cause."). There is no good cause here, because, as setset forth in in eNom's eNom's Motion Motion and and above, Mr. Mr. Schreiber Schreiber has failed to state state a claim. 10 Case 1:12-cv-00852-GBL-JFA Document 62 Filed 12/18/12 Page 12 of 12 PageID# 715 Facsimile: (703)749-1301 (703) 749-1301 [email protected] [email protected] a@g¡law . c om AttorneysAttorneys þr for Defendant Defendant eNom, Inc. Inc. IanIan C. Ballon BaIlon WendyWendy M. M. Mantell Mantell GREENBERGGREENBERG TRAURIG, TRAURIG, LLP LLP 18401840 Century Century Park Park East, East, Suite 1900 LosLos Angeles, CaliforniCalifornia a 90067 90067-2121 -2121 Telephone: (310)586-7700 (310) 586-7700 Facsimile:Facsimile: (310)586-7800 (310) 586-7800 [email protected]@gtlaw.com [email protected]@gtlaw.com AttorneysAttorneys for Defendant eNom, Inc. 1l11