Page 1
`
`
`
`LexisNexisi’
`
`ROBERT NOVAK D/B/A PETSWAREHOUSE.COM, Plaintiff,
`VERSUS TUCOWS, INC, OPENSRS AND NITIN NETWORKS,
`INC., Defendants.
`
`No 06—CV-1909 (JFB) (ARL)
`
`UNITED STATES DISTRICT COURT FOR THE EASTERN DIS-
`TRICT OF NEW YORK
`
`2007 US. Dist. LEXIS 21269; 73 Fed. R. Evid. Serv. (Callaghan) 33]
`
`March 26, 2007, Decided
`
`March 26, 2007, Filed
`
`by
`SUBSEQUENT HISTORY: Affirmed
`Novak v. Tucows Inc, 2009 US. App. LEXIS
`9786 (2d Cir. N. Y., May 6, 2009)
`
`COUNSEL:
`
`[*1] Plaintiff appears Pro se.
`
`For Defendant Tucows is represented by Glenn
`Matthew Mitchell, Esq, Schwimmer Mitchell
`Law Firm, Mount Kisco, New York.
`
`For Defendant Nitin is represented by Gary
`Adelman, Esq., Adelman & Lavania, LLC,
`New York, New York.
`
`Inc. and its subsidiary, OpenSRS 1
`Tueows,
`(collectively, ”Tucows") and Nitin Networks,
`Inc. ("Nitin") (collectively, "defendants"), al-
`leging that defendants transfer of his internet
`domain name,
`"petswarehouse.com,” consti-
`tuted trademark infringement and trademark
`dilution in Violation of the Lanham Act, 15
`USC. § 1114, 1117,1125{a)& 1125(C).Plain—
`tiff also brings pendent state claims, including:
`conversion, negligence, bailee breach of duty,
`bailee breach of trust, negligent misrepresenta—
`tion, breach of contract,
`tortious interference
`and intentional infliction of emotional distress.
`
`JUDGES: JOSEPH F. BIANCO, United States
`District Judge.
`
`OPINION BY: JOSEPH F. BIANCO
`
`OPINION
`
`MEMORANDUM AND ORDER
`
`JOSEPH F. BIANCO, District Judge:
`
`Pro se plaintiff Robert Novak ("Novak")
`brings the present action against defendants
`
`Inc. does business under
`Tueows,
`l
`the name OpenSRS; however, there is no
`legal entity by the name of OpenSRS that
`is connected with Tucows. (Lazare Decl.,
`P 3; Tucows' Br., at 6 n6.) Therefore,
`this Court shall consider Tueows,
`Inc.
`and OpenSRS as a single entity.
`
`Presently before the court are de-
`[*2]
`fendants’ motions to dismiss the complaint
`pursuant to Fed. R. Civ. P. 12(1))(3), on the ba-
`sis of improper venue,
`‘
`'
`
`'
`
`

`

`2007 US. Dist. LEXIS 21269, *; 73 Fed. R. Evid. Serv. (Callaghan) 331
`
`Page 2
`
`under Fed. R. Civ. P. 12(b)(6) and I2(b)(]), on
`the grounds that plaintiff fails to state a federal
`claim upon which relief may be granted and,
`absent any federal question,
`this Court lacks
`jurisdiction due to an absence of complete di—
`versity
`between
`the
`parties.
`Plaintiff
`cross-moves to strike certain of both defen—
`
`dants' declarations and exhibits, and defendant
`Tucows moves to strike certain of plaintiffs
`exhibits.
`
`For the reasons that follow, plaintiffs mo—
`tion to strike is granted in part and denied in
`part. Defendant Tucows' motion to strike is
`granted, and both defendants' motions to dis-
`miss are granted on the basis of improper
`venue.
`
`I. BACKGROUND
`
`A. The Facts
`
`The following facts are taken from the
`amended complaint.
`
`In approximately November 1997, Novak
`registered for and obtained the Internet domain
`name "petswarehousecom" through "Bulkreg—
`ister.com,” an internet domain name registra-
`tion [*3]
`company. (Am. Compl. PP 36, 38.)
`He then commenced selling pet supplies and
`livestock via his website. (Id. P 124.) Accord—
`ing to Novak, his website was the fourth
`most—Visited
`pet—supply-related
`site
`in
`the
`United States during 1999. (Id P 5.) On July 30,
`2001, Novak trademarked the domain name
`
`"petswarehousecom" and was awarded trade-
`mark number 2,600,670. (Id. P 36.)
`
`On February 11, 2003, in the Circuit Court
`of Colbert County, Alabama, an individual
`named John Benn obtained a default judgment
`against Novak in the amount of $ 50,000. (Id. P
`37.) Faced with the prospect of litigation in
`Alabama, Novak, a New York resident, opted
`to
`transfer
`the
`domain name
`"petsware—
`housecom" from ”Bulkregistercom," which
`was based in Maryland, to another company,
`
`Nitin, which was located in New York. (Id. PP
`38-39.) On March 21, 2003, Novak contacted
`Nitin by telephone in order to initiate the trans—
`fer of his domain name. (Id. P 39.) A little over
`one month later, on May 1, 2003, Benn applied
`for a writ of execution to obtain Novak's do—
`
`main name "petswarehousecom" in an effort to
`enforce the default judgment that he had been
`awarded against Novak. (Id. P 41.) Novak [*4]
`asserts that it was only as a result of the May 1,
`2003 writ of execution that he became aware
`
`that his domain name was actually being held
`by Tucows, a Canadian registration company,
`rather than the New York—based Nitin. (Id. P
`42.) Novak contacted Nitin on May 2, 2003,
`and demanded that Nitin transfer registration of
`"petswarehousecom" from Tucows back to
`Nitin. (Id) Novak was told by Nitin that such a
`transfer was not possible. (101’)
`
`The Alabama trial court's May 1, 2003 writ
`of execution required Tucows to suspend do—
`main name hosting of "petswarehousecom"
`and to turn over the domain name to the Col-
`
`bert County Sheriff‘s Department for public
`auction. (Id. P 45; Ex. C.) On May 23, 2003,
`Tucows transferred control over the domain
`
`to the
`name to the Alabama court pursuant
`court's order, and access to Novak’s servers
`through the "petswarehousecom" web address
`was suspended. (Id. P 47, 124; Ex. D.) Internet
`users accessing "petswarehousecom" were di-
`rected to a web page providing notice of the
`Colbert County Sheriff's Sale of the domain
`name pursuant to the Alabama trial court's writ
`of execution.
`(Id. P 68; Ex. E.) On July 28,
`2003, Benn purchased "petswarehouse.
`[*5]
`com” in a public auction held by the Colbert
`County Sheriff,
`in which Benn was the only
`bidder. (Id. P 54.) On September 16, 2003, Tu-
`cows transferred the domain name to Benn
`
`pursuant to the Alabama trial court’s order. (Id.
`P 55.)
`
`Novak challenged the Alabama trial court’s
`decision, and on April 2, 2004, the Alabama
`Court of Civil Appeals reversed Benn's default
`
`

`

`2007 US. Dist. LEXIS 21269, *; 73 Fed. R. Evid. Serv. (Callaghan) 331
`
`Page 3
`
`judgment and writ of execution against Novak
`on the basis that the judgment had been entered
`without personal jurisdiction over Novak. (Id. P
`71.) Armed with the state appellate court deci—
`sion, Novak demanded that Tucows return con—
`trol of "petswarehousecom" to him. (Id. P 72.)
`On October 1, 2004, after Benn was denied re—
`hearing by the Alabama Court of Civil Appeals
`and the Alabama Supreme Court, Tucows re—
`turned the domain name to Novak.
`(Id. P
`72-73.)
`
`Plaintiff alleges that the transfer of his do—
`main name out of his control between May 1,
`2003 and October
`1, 2004 destroyed his
`pet-supply business. Prior to May 23, 2003,
`Novak had received approximately 12,000
`daily visitors to ”petswarehouse.com." (Id. P
`134.) Following transfer of the domain name,
`visitors to the website were directed to the
`
`notice of sale, and Novak was
`sheriffs [*6]
`unable to process any pet—supply orders.
`(161.)
`According to Novak, Tucows
`and Nitin's
`transfer of the domain name out of his control
`
`diluted the ”petswarehouse.com" trademark in
`Violation of the Lanham Act, 15 USC, §
`1125(c). Novak also asserts that the transfer
`deceptively and misleadingly represented Tu-
`cows and Nitin’s association with "petsware-
`housecom,” and constituted unfair competition
`and cyberpiracy under 15 US. C. §§ 1114, 1117
`& 1125(0).
`
`B. Procedural History
`
`On April 25, 2006, Novak, proceeding pro
`filed the instant complaint against defen-
`se,
`dants Tucows,
`Inc. and OpenSRS. By letter
`dated May 11, 2006, defendant Tucows indi-
`cated its intention to move for dismissal on the
`
`basis of improper venue. Upon learning of de—
`fendants' proposed motion to dismiss, plaintiff
`modified his claims, adding Nitin as a defen—
`dant, and filed an amended complaint on May
`16, 2006. On July 10, 2006, defendants Nitin
`and Tucows moved to dismiss the complaint on
`the basis of improper venue, or, in the alterna—
`
`tive, failure to state a claim and lack of sub-
`ject-matter
`[*7]
`jurisdiction.
`Plaintiff
`cross—moved to strike the declarations and ex—
`
`hibits submitted by defendants in support of
`their motions to dismiss, and defendants moved
`to strike certain of plaintiffs exhibits. Oral ar—
`gument and an evidentiary hearing were held
`on December 22, 2006, January 25, 2007 and
`February 9, 2007.
`
`H. EVIDENTIARY OBJECTIONS
`
`A. Plaintiffs Motion to Strike
`
`1. General Objections to Admissibility of
`Foreign Declarations
`
`the declarations of
`According to Novak,
`two of defendant Tucows' employees in Canada
`are inadmissible under Fed. R. Evid. 902(12).
`Rule 902(12) permits foreign documents to be
`submitted into evidence as self~authenticating
`business records if accompanied by a declara-
`tion signed "in a manner that, if falsely made,
`would subject
`the maker to criminal penalty
`under the laws of the country where the decla-
`ration is signed." Fed. R. Evid. 902(12). Novak
`argues that, in order to meet this requirement, a
`"jurat including penalty of perjury" under Ca-
`nadian law should have been provided by de~
`fendants with regard to the declarations sub—
`mitted by Brenda Lazare (”Lazare"), Tucows'
`Secretary and [*8] General Counsel, and Ev-
`geniy Pirogov ("Pirogov"), Team Leader of the
`OpenSRS Development Team.
`(Pl.'s Br., at
`25—26.) However, where a matter must be sup—
`ported by a sworn declaration, a declaration
`written outside of the United States may be
`supported "with like force and effect” by a
`statement in writing that "I declare (or certify,
`verify, or state) under penalty of perjury under
`the laws of the United States of America, that
`the foregoing is true and correct. Executed on
`(date)." 28 US. C. § 1746. In this instance, both
`the Lazare and Pirogov declarations contain the
`requisite statement, and are therefore admissi—
`
`

`

`2007 US. Dist. LEXlS 21269, *; 73 Fed. R. Evid. Serv. (Callaghan) 331
`
`Page 4
`
`ble. (See Lazare Decl, at 9; Pirogov Decl, at
`6.)
`
`2. Objections to the Lazare Declaration
`
`According to plaintiff, the Lazare declara-
`tion is also defective in failing to authenticate
`the attached Exhibits J—L as business records.
`
`The contested exhibits include: Exhibit J, ex—
`cerpts from the registrar’s agreement between
`Tucows and ICANN, the non-profit corporation
`that administers the internet domain name and
`
`internet protocol number system; Exhibit K,
`excerpts from Tucows’ registrar license and the
`registry-registrar agreement between Tucows
`[*9]
`and Network Solutions,
`Inc.
`a/k/a
`Verisign, Inc. ("Verisign"), a registry that opera
`ates and maintains ".com" top—level domain
`names; and Exhibit L, excerpts from Nitin’s
`reseller application and the reseller agreement
`between Tucows and Nitin. (Lazare Decl, Ex.
`J—L.) In the declaration, Lazare, as Secretary
`and General Counsel of Tucows, clearly sets
`forth her personal knowledge of the facts stated
`therein, explaining that she has held her current
`position overseeing management of the regula—
`tory compliance and disputes department of
`Tucows since June 2000. (Lazare Decl., P 1—2.)
`Specifically, Lazare details Tucows‘ relation-
`ship with lCANN, Verisign and Nitin, and
`clearly sets forth how the related exhibits were
`created and maintained in the course of "regu—
`larly conducted business activity," pursuant to
`Fed. R. Evid. 803(6). Therefore, the Court finds
`that Exhibits J—L are properly authenticated by
`the Lazare declaration and, moreover, are ad—
`missible as business records.
`
`Plaintiff further asserts
`
`that
`
`the Lazare
`
`Declaration should be held inadmissible on the
`
`basis that it contains legal argument. The Court
`finds that the first 26 paragraphs of the [*10]
`declaration contain factual descriptions of the
`domain name registration and transfer proc—
`esses.
`(1d. PP 1-26.) However, paragraphs
`27-31 of the declaration present legal argument
`regarding the applicability of the forum selec-
`tion clause at issue in this case, and as such,
`
`(1d. PP
`those paragraphs shall be disregarded.
`27—31.) See, e.g., Kamen v. Am. Te]. & Tel. C0,,
`79] F.2d 1006, 10]] (2d Cir. 1986) (holding
`that it was improper for district court to con-
`sider "conclusory and hearsay” statements in an
`attorney affidavit where the statements were
`not based upon personal knowledge).
`
`3. Objections to the Pirogov Declaration
`
`Novak argues that the Pirogov Declaration
`lacks personal knowledge, expresses ”expert
`opinion" testimony, and includes hearsay. Pi-
`rogov, Team Leader of the OpenSRS Devel—
`opment Team since October 2003, asserts in his
`declaration that his duties include "supervision
`of the software development that allows Tu~
`cows to process transfers, and maintenance of
`the logs that archive prior transfers." (Pirogov
`Decl., PP 1-4.) Based upon Pirogov's position
`and his statements, the Court finds that he has
`sufficient personal knowledge to describe [u—
`cows'
`[*11]
`domain name transfer process,
`and to authenticate the exhibits demonstrating
`that process. Furthermore,
`the Court finds no
`basis in the declaration for Novak‘s assertion
`
`that it includes "expert opinion” testimony or
`hearsay.
`
`in addition, plaintiff objects to the admissi—
`bility of Exhibits B-l, authenticated therein, on
`the basis that they have been newly created for
`purposes of this litigation, and were not kept in
`the ordinary course of business. The Court dis-
`agrees. First, the Court finds that these exhibits
`have been authenticated by Pirogov pursuant to
`Rule 901(b)(9), which permits the admission of
`"[e]vidence describing a process or system used
`to produce a result and showing that the proc-
`ess or system produces an accurate result." Fed.
`R. Evid. 901(b)(9). Furthermore, to the extent
`that Exhibits B—I are submitted merely as a
`demonstrative aid,
`the Court
`finds that
`the
`hearsay rule is not applicable. "[T]here is no
`requirement
`that demonstrative evidence be
`shown to be totally accurate. Rather, alleged
`inaccuracies go to the weight and not the ad-
`missibility of the evidence." 5-900 Weinslez’n's
`
`

`

`2007 us. Dist. LEXIS 21269, *; 73 Fed. R. Evid. Serv. (Callaghan) 331
`
`Page 5
`
`(2006); see,
`Federal Evidence § 900.07 [*12]
`e.g., Dalskow v. Teledyne Cont’l A/Iotors Air—
`craft Prod, 826 F. Supp. 677, 686 (WD.N.Y.
`1993)
`(admitting computer—generated anima-
`tion used to show theory of how accident oc-
`curred). Thus, the Court shall consider Exhibits
`B—I
`to the extent
`that
`they demonstrate the
`process of transferring domain names, rather
`than to show the transfer steps specific to
`"petswarehousecom. ” ’-
`
`the evidentiary hearing, Eliot
`At
`2
`Noss, CEO of Tucows, testified regard~
`ing a series of additional exhibits that
`recreate the steps taken during Novak's
`transfer of the domain name ”petsware-
`houseeom"
`based
`upon
`information
`stored in Tucows' databases. This Court
`
`in fact,
`ruled that such exhibits were,
`admissible for purposes of showing the
`transfer steps specific to the transaction
`in question:
`
`There are a few docu—
`
`ments in which the witness
`
`testified the computer took
`data and put it in the form of
`how it would have appeared
`on the page at the time to
`Show where the information
`
`would have been inputted on
`the forms as they currently
`existed at
`the time of the
`
`transaction. I find that that is
`
`[Tlhe
`.
`.
`.
`also admissible.
`witness properly laid the
`foundation for the[m] having
`retained the data, and for
`what forms they used at the
`time, and it was clear
`to
`point out that this was not
`created at
`the time, but
`it
`
`was recreated to show, based
`upon what data they stored,
`where it would have been
`
`inputted on their existing
`
`forms. So I think it is admis—
`
`sible under the rules of evi—
`
`dence.
`.
`.
`.
`I
`think, based
`upon [Noss'] testimony, they
`have laid the proper founda—
`tion for the admissibility of
`the documents. So I am ad—
`
`mitting Defense Exhibits Tl
`through 10.
`
`(Transcript of December 22, 2006 Hear—
`ing (hereinafter "Dec. 22, 2006 Tr.,” at
`125—26.)
`
`[*131
`laration
`
`4. Objections to the Agarwal Dec—
`
`Novak argues that the declaration submitted
`by Nitin Agarwal ("Agarwal"), CEO and foun—
`der of Nitin, contains impermissible hearsay
`and is not based on personal knowledge. The
`Court
`finds, based upon Agarwal‘s position,
`that he had personal knowledge of the events
`relating to Nitin's handling of the transfer of
`Novak‘s domain name. Moreover, any potential
`defects in Agarwal's declaration were subse-
`quently cured by his testimony at the eviden—
`tiary hearing, in which he set forth a clear basis
`for his personal knowledge of Novak‘s interac~
`tions with Nitin in transferring "petsware-
`housecom."
`
`Plaintiff also asserts that the Agarwal Dec-
`laration contains the false statement that ”[a]t
`the time of the transfer [March 21, 2003], Nitin
`
`names as a registrar, and was exclusively using
`Defendant Tucows for all of its registrations
`and transfers." 3 (Agarwal Decl., P 4.) Accord—
`ing to plaintiff,
`this statement conflicts with
`evidence that Nitin Networks was, in fact, reg—
`istering domain names. However, plaintiffs
`objection does not go to the admissibility of the
`Agarwal Declaration, but to its credibility and
`[*14] weight.
`
`

`

`2007 US. Dist. LEXIS 21269, *g 73 Fed. R. Evid. Serv. (Callaghan) 331
`
`Page 6
`
`During the evidentiary hearing,
`3
`plaintiff
`cross—examined Agarwal
`re-
`garding paragraph 4 of his declaration,
`and Agarwal affirmed "I stand by the full
`sentence of the statement." (Jan. 25, 2007
`Tr. 87.)
`
`B. Defendants’ Motion to Strike
`
`Defendants contend that plaintiffs Exhibits
`B, J, K, O-R, U and V, which are printouts of
`internet pages, constitute inadmissible hearsay
`and do not fall within any acknowledged ex—
`ception to the hearsay rule. 4 At the evidentiary
`hearing, defendants objected to Plaintiffs Ex—
`hibit 1, as well as to Plaintiffs Exhibits N-R.
`
`(Jan. 25, 2007 Tr. 125-31.) Plaintiffs Exhibit 1
`is a printout from ”RegisterSitecom," Nitin’s
`website, as it purportedly appeared in 2003.
`(Pl.'s Ex. 1.) According to plaintiff, he obtained
`the printout through a website called the Inter-
`net Archive, which provides access to a digital
`library of Internet sites. (Novak Decl, P 2.)
`The Internet Archive operates a service called
`the ”Wayback Machine," which purports to al—
`low a user to obtain, an archived [*15] web
`page as it appeared at a particular moment in
`time. (See id. PP 3—5.) The other contested ex-
`hibits include: Exhibit B, an online summary of
`plaintiffs past and pending lawsuits, obtained
`via the Wayback Machine; Exhibit J, printouts
`of comments on a web message board by Pi-
`rogov; Exhibit K, a news article from the
`Poughkeepsie Journal website featuring Agar-
`wal; Exhibit N, Novak's declaration regarding
`the authenticity of pages printed from the
`Wayback Machine; Exhibit 0, pages printed
`from the Internet Archive website; Exhibit P,
`pages printed from the Wayback Machine web—
`site; Exhibits Q, R and U, all of which consti—
`tute pages printed from RegisterSite.com via
`the Wayback Machine; and Exhibit V, a news
`article from "The Register," a British website,
`regarding Tucows. (Pl.'s Exs. B, J, K, N—R, U
`& V.) Where postings from internet websites
`are not statements made by declarants testify—
`ing at trial and are offered to prove the truth of
`
`the matter asserted, such postings generally
`constitute hearsay under Fed R. Evid. 80].
`United States v. Jackson, 208 F.3d 633, 638
`(7th Cir. 2000) (declining to admit web post~
`ings where defendant
`[*16] was unable to
`show that
`the postings were authentic, and
`holding that even if such documents qualified
`under a hearsay exception, they are ”inadmissi—
`ble if the source of information or the method
`
`or circumstances of preparation indicate a lack
`of trustworthiness") (quoting United States v.
`Croft, 750 F.2d 1354, 1367 (7th Cir. 1984));
`see also St. Clair v. Johnny’s Oyster & Shrimp,
`Inc, 76 F. Swap. 2d 773, 775 (SD. Tex 1999)
`("[A]ny evidence procured off the Internet is
`adequate for almost nothing, even under the
`most
`liberal
`interpretation of the hearsay ex—
`ception rules”).
`
`During the evidentiary hearing, de-
`4
`fendant Tucows also objected to the ad-
`mission of plaintiffs Exhibit S, a docu—
`ment
`titled ”OpenSRS Quickstart
`In-
`structions," and dated January 2001, on
`the basis that the exhibit had not been
`
`authenticated by Tucows. (Jan. 25, 2007
`Tr. 46—50.) By letter dated January 30,
`2007, Tucows withdrew its objection
`based upon the authenticity of Exhibit S.
`(Tucows' January 30, 2007 Letter, at 2.)
`However, Tucows "reserve[d] the right to
`argue the immateriality of the document,
`based both on its contents and the rele—
`
`vance of the 2001 document to events
`
`that took place in 2003." (Id)
`
`in this case, such
`Furthermore,
`[*17]
`documents have not been properly authenti-
`cated pursuant
`to Fed. R. Evid. 90]. While
`plaintiffs declaration purports to cure his in—
`ability to authenticate the documents printed
`from the internet, he in fact lacks the personal
`knowledge required to set forth with any cer-
`tainty
`that
`the
`documents
`obtained
`via
`third—party websites are,
`in fact, what he pro—
`claims thcm to be. This problem is even more
`acute
`in the case of documents procured
`
`

`

`2007 U.S. Dist. LEXIS 21269, *; 73 Fed. R. Evid. Serv. (Callaghan) 331
`
`Page 7
`
`through the Wayback Machine. Plaintiff states
`that the web pages archived within the Way-
`back Machine are based upon "data from third
`parties who compile the data by using software
`programs known as crawlers,” who then "do—
`nate" such data to the Internet Archive, which
`”preserves and provides access to it.” (Novak
`Dccl. P 4.) Based upon Novak's assertions, it is
`clear that the information posted on the Way-
`back Machine is only as valid as the third-party
`donating the page decides to make it -— the au—
`thorized owners and managers of the archived
`websites play no role in ensuring that the mate-
`rial posted in the Wayback Machine accurately
`represents what was posted on their official
`websites [*18]
`at the relevant time. As Novak
`proffers neither testimony nor sworn statements
`attesting to the authenticity of the contested
`web page exhibits by any employee of the
`companies hosting the sites from which plain-
`tiff printed the pages, such exhibits cannot be
`authenticated as requircd under the Rules of
`Evidence. See, e. g. Costa v. Keppel Singmarine
`Dockyard PTE, Ltd, No. 01-CV—11015 MMM
`(Ex), 2003 US. Dist. LEXIS 16295, at *29 n. 74
`(CD. Cal. Apr. 25, 2003) (declining to con—
`sider evidence downloaded from corporation's
`website in the absence of testimony from the
`corporation authenticating such documents)
`(citing Jackson, 208 F.3d at 638, and St. Clair,
`76 F. Supp. 2d at 775 ("Anyone can put any—
`thing on the internet. No web-site is monitored
`for accuracy and nothing contained therein is
`under oath or even subject to independent veri-
`fication absent underlying documentation.”)).
`Therefore, in the absence of any authentication
`of plaintiffs internet printouts, combined with
`the lack of any assertion that such printouts fall
`under a viable exception to the hearsay rule,
`defendants‘ motion to strike Exhibits B, J, K,
`N—R, U and V is granted.
`[*19]
`5
`
`5
`
`The Court notes that, even if all of
`
`plaintiffs exhibits were admissible, they
`would not impact the Court’s analysis or
`
`conclusions on the substantive issues in
`the instant case.
`
`111. STANDARD OF REVIEW
`
`Defendants challenge venue in this case
`pursuant to Federal Rule of Civil Procedure
`12(1)) (3). However, the Court must first address
`the question of whether a motion to dismiss
`based upon a forum selection clause is properly
`brought under Rule 12(17)(3) as a challenge to
`venue, rather than under Rule 12$)(6) for fail—
`ure to state a claim or Rule 12(1)) (1) for lack of
`subj ect-matter jurisdiction.
`
`In New .Moon Shipping Co, Ltd v. Man
`8&W Diesel A.G.,
`the Second Circuit ae-
`
`knowledged the absence of consensus among
`the courts regarding the correct procedural
`mechanism for dismissal of a suit pursuant to a
`valid forum selection clause. 12] F.3d 24, 28
`(2d Ctr. 1997) (comparing A VC Nederland B. V.
`v. Atrium Inv. P’ship, 740 F.2d 148, 152 (2d
`Cir. 1984)
`[*20]
`(applying Fed. R. Civ. P.
`12(b)(1) to a motion to dismiss based upon a
`forum selection
`clause), with Paterson,
`Zocnonis (UK.) Ltd. v. Cornpania United Ar-
`rows, S.A., 493 F. Supp. 626, 629 (SD.N.Y.
`I980) (applying Fed. R. Civ. P. 12(19)(3))); see
`also Rain/”(west Cafe, Inc. v. EklecCo, L.L.C.,
`340 F.3d 544, 546 n.5 (8th Cir. 2003) (recog-
`nizing controversy between whether to apply
`Fed. R. Civ. P. 12(1))(3) or Fed. R. Civ. P.
`12(2)) (6) to a motion to dismiss based on forum
`selection clause). In this instance, defendants
`have framed the forum-selection clause issue as
`
`a motion to dismiss pursuant to Rule 12(1))(3),
`and in the absence of any objection to this
`framework by plaintiff, the Court shall consider
`the jurisdictionalissue pursuant to this rule. See,
`e g. Person v Google Inc, 456 F. Supp. 2d
`488 49293 (SDN Y. 2006) ("Here, the issue
`will be considered under Fed. Civ. P. Rule
`
`I2(b)(3) because that is how it was framed by
`the parties.
`[*21]
`") (citingJ. B. Harris, Inc.
`V. Razei Bar Indus, Inc, 3 7 F. Supp. 2d 186,
`189 (E.D.N.Y I998) ("The Court does not de~
`
`

`

`2007 US. Dist. LEXIS 21269, *; 73 Fed. R. Evid. Serv. (Callaghan) 331
`
`Page 8
`
`cide whether this issue might more properly
`have been raised by way of Rule 12(b)(6), as
`the issue is squarely framed by Defendants un—
`der Rule 12(b)(3) and Plaintiff does not argue
`that
`this is an improper procedural mecha-
`nism”) (internal citation omitted)).
`
`Without resolving the question of whether
`to treat the motion to dismiss as a 12(19)(1) or
`12(19)(3) motion,
`the Second Circuit held in
`New Moon Shipping that ”at the initial stage of
`litigation, a party seeking to establish jurisdic—
`tion need only make a prima facie showing by
`alleging facts which, if true, would support the
`court's exercise ofjurisdiction." 121 F.3d at 29
`(citing Marine Midland Bank, NA. v. Miller,
`664 F.2d 899, 904 (2d Cir. 1981)); GulfIns. Co.
`v. Glasbrenner, 417 F.3d 353, 355 (2d Cir.
`2005) ("If the court chooses to rely on plead-
`ings and affidavits, the plaintiff need only make
`a prima facie showing of [venue].") (quoting
`CutCo Indus.
`v. Naughton, 806 F.2d 361,
`364—65 (2d Cir. 1986) and citing [*22]
`Sun—
`ward Elees. v. McDonald 362 F. 3d 17, 22 (2d
`Cir. 2004)). ”After limited discovery on the
`jurisdictional issue, the matter might be appro—
`priate for resolution on motion supported by
`affidavits, or, if a genuine dispute of material
`fact exists,
`the Court may conduct a hearing
`limited to Article Ill standing." Alliance for
`Envll. Renewal, Inc. v. Pyramid Crossgates C0.,
`436 F.3d 82', 87-88 (2d Cir. 2006) (citations
`omitted). Disputed facts may be
`resolved
`against
`the non-moving party only after an
`evidentiary hearing, where the plaintiff must
`demonstrate venue by a preponderance of the
`evidence. New Moon Shipping, 121 F.3d at 29
`(”A disputed fact may be resolved in a manner
`adverse to the plaintiff only after an evidentiary
`hearing.
`.
`.
`.
`[A] party seeking to avoid en-
`forcement of such a contractual clause is also
`
`entitled to have the facts Viewed in the light
`most
`favorable to it, and no disputed fact
`should be resolved against that party until it has
`had an opportunity to be heard") (citations
`omitted); Gulf’lns. C0., 417 F.3d at 355 ("[l]f
`the court holds an evidentiary hearing .
`.
`. the
`
`[venue] by a
`plaintiff must demonstrate [*23]
`preponderance of
`the evidence")
`(quoting
`CutCo Indus, 806 F.2d at 364-65) (additional
`citation omitted); Murphy v. Schneider Nal'l,
`Inc, 362 F.3d 1133, 1139 (9th Cir. 2004) (”To
`resolve such motions when genuine factual is—
`sues are raised, it may be appropriate for the
`district court to hold a Rule 12(b)(3) motion in
`abeyance until the district court holds an evi-
`dentiary hearing on the disputed facts. Whether
`to hold a hearing on disputed facts and the
`scope and method of the hearing is within the
`sound discretion of the district court") (cita-
`tions omitted).
`
`In this case, the Court conducted an eviden-
`tiary hearing to resolve a disputed material fact
`as to Whether venue is proper in this Court:
`specifically, whether plaintiff consented to an
`agreement with defendant Tucows that con-
`tained a forum selection clause mandating liti-
`gation of all related disputes in Ontario, Canada.
`At the evidentiary hearing, all parties presented
`evidence bearing on the question of whether
`Novak agreed to transfer his domain name to
`Tucows by clicking his assent to a Domain
`Name Transfer Agreement
`("DNTA") on a
`website. The DNTA in question contained the
`[*24]
`following forum selection clause at
`paragraph 27:
`
`GOVERNING LAW.
`
`This
`
`agreement shall be governed by
`and interpreted and enforced in
`accordance with the laws of [sic]
`Province of Ontario and the federal
`
`laws of Canada applicable therein
`without reference to rules govern—
`ing choice of laws. Any action re—
`lating to this agreement must be
`brought
`in Ontario and you ir-
`revocably consent to the jurisdic—
`tion of such courts.
`
`(Pirogov Decl., EX. H.) The legal effect of a
`forum selection clause depends upon "whether
`
`

`

`2007 U.S. Dist. LEXIS 21269, *; 73 Fed. R. Evid. Serv. (Callaghan) 331
`
`Page 9
`
`its existence was reasonably communicated to
`the plaintiff.” Eflron v. Sim Line Cruises, Inc.,
`67 F.3d 7, 9 (2d Cir. I 995) (citations omitted).
`”A forum selection clause stated in clear and
`
`is considered rea-
`.
`.
`unambiguous language .
`sonably communicated to the plaintiff in de—
`termining its enforceability." Vitricon,
`Inc.
`v.
`Il/IIdWESZ Elastomers, Inn, 148 F. Supp. 2d .245,
`247 (EDNY. 200]) (citing Eflron, 67 F.3d at
`9). As there is no question that the language of
`the forum-selection clause at issue is clear and
`
`unambiguous, should this Court find that No—
`vak did,
`in fact, "click—through" the Tucows
`DNTA, the Court {*25] may fairly conclude
`that the clause was "reasonably communicated"
`to the plaintiff. Id.
`
`IV. THE EVIDENTIARY HEARING
`
`The Court conducted an evidentiary hearing,
`over several days, to determine whether Novak
`in fact ”clicked-through" his assent to Tucows’
`DNTA. Based upon the testimony and exhibits
`presented at the hearing, the Court finds that
`there is overwhelming evidence that the plain—
`tiff consented to the DNTA with Tucows. Al-
`
`though it is unclear whether plaintiff actually
`read the agreement, the evidence unequivocally
`demonstrates
`that
`he was
`required
`to
`"click-through" his assent to Tucows' DNTA in
`order to complete the successful
`transfer of
`”petswarehouse.com."
`
`The plaintiff argues that he never agreed to
`the forum-selection clause, and, further, that he
`never agreed to enter
`into any agreement
`whatsoever with defendant Tucows. According
`to Novak, when he transferred the domain
`name "petswarehousecom" from its original
`registrar, ”Bulkregister.com," he did so solely
`by phone agreement with Nitin, whose online
`transfer system was not operational at the time.
`(Jan. 25, 2007 Tr. 117.) Novak explained that
`he was not aware that Nitin was actually a re—
`seller, rather than a [*26]
`registrar, of domain
`names, nor that Tucows was the actual registrar
`of "petswarehousecom" until over a month af-
`
`ter the transfer, when Benn issued a writ of
`execution to obtain the domain name from Tu—
`
`cows. (Jan. 25, 2007 Tr. 112, 117; Feb. 9, 2007
`Tr. 49.) Novak argues that, in fact, his intent in
`transferring the domain name from "Bulkregis-
`ter.c0m" to Nitin was to bring the domain name
`under the control of a New York-based regis-
`trar. (Jan. 25, 2007 Tr. 110-11; Feb. 9, 2007 Tr.
`66—67.) According to Novak, had he received a
`DNTA from Tucows, a Canadian registrar, he
`”would have declined the transfer, first because
`[he] would have felt deceived in seeing another
`company being involved in this transaction, and
`moreover a company based not only outside
`New York, but Canada." (Feb. 9, 2007 Tr. 63.)
`
`In response, defendants argue that plaintiff
`could not possibly have executed transfer of his
`domain name to Tucows solely by oral agree—
`ment by phone with Nitin. According to Tu—
`cows, "[p]1aintiffs assertion that he transferred
`the petswarehousecom domain name orally
`through Nitin Networks is demonstrably and
`necessarily false, as the domain name registra—
`tion system does not permit
`transfers [*27]
`without the safeguard of an electronic confir—
`mation." (Tucows' Br., at 5.) Contrary to No-
`vak's assertion that he never entered into any
`agreement with Tucows, Noss testified that
`such agreements are ”necessary” to the domain
`name transfer process, and that ”[t]hey are
`overwhelmingly —- in fact, in our case, almost
`without
`exception,
`they are
`click-through
`agreements, ones that are subscribed to on a
`web page." (Dec. 22, 2007 Tr. 14.) Tucows as-
`serts that, after plaintiff commu ricated with
`Nitin by phone, he received notification by
`email from Tucows that he would have to exe-
`
`cute further electronic authorization of the
`
`transfer. (Tucows' Br., at 5.) According to Tu-
`cows, in the confirmation email, plaintiff was
`instructed to click on a link directing him to
`Tucows' website, where he was required to
`submit a "Transfer C