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Ann Jenkins and Ernest F. Jenkins, Jr v. Network Solutions

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS


February 28, 2011

ANN JENKINS AND ERNEST F. JENKINS, JR., PLAINTIFFS,
v.
NETWORK SOLUTIONS, LLC, DEFENDANT.

The opinion of the court was delivered by: Tauro, J.

MEMORANDUM

I. Introduction

Ann Jenkins and Ernest F. Jenkins, Jr. ("Plaintiffs") were registrants of a domain name for which Defendant Network Solutions, LLC ("Defendant") was the registrar. Presently at issue is Defendant's Motion to Dismiss the Amended Complaint [#15]. For the following reasons, that Motion is ALLOWED.

II. Background

A. Factual Background*fn1

Plaintiff Ann Jenkins was a corporate officer and administrator of Modular Services, LLC, which held the domain name MOD.COM.*fn2 Modular services, LLC dissolved, and registration of MOD.COM was transferred to Ann.*fn3 In connection with this transfer, on or about November 23, 2005, Ann entered into a "Registrant Name Change Agreement" with Defendant.*fn4 By so doing, Ann agreed to be bound by the then-current version of Defendant's service agreement, "Service Agreement Version Number 7.6.2" ("2005 Agreement").*fn5

The 2005 Agreement details the rights and responsibilities of the Parties. The first paragraph of the 2005 Agreement defines "you" to mean the customer, Ann, and her "agents, including each person listed in [her] account information as being associated with [her] account."*fn6

The paragraph continues:

When you use your account or permit someone else to use your account to purchase or otherwise acquire access to additional Network Solutions services(s) or to modify or cancel your Network Solutions service(s) . . . , this Agreement as amended covers any such service or actions.*fn7 The 2005 Agreement also provides that Defendant had the authority to revise the contract and that such revisions were binding unless Ann notified Defendant that she did not consent to the revisions.*fn8

Additionally, the 2005 Agreement contained a forum-selection clause: You and Network Solutions agree that this Agreement and any disputes hereunder shall be governed in all respects by and construed in accordance with the laws of the Commonwealth of Virginia, United States of America, excluding its conflict of laws rules. You and we each agree to submit to exclusive subject matter jurisdiction, personal jurisdiction and venue of the United States District Court for the Eastern District of Virginia, Alexandria Division for any dispute between you and Network Solutions under, arising out of, or related in any way to this Agreement . . . .*fn9 On October 17, 2006, Service Agreement Version Number 7.7.3 ("2006 Agreement") went into effect, thereby replacing the 2005 Agreement.*fn10 In all material respects, including the forum-selection clause, the 2005 Agreement and the 2006 Agreement are identical.

In December 2006, Plaintiffs and Defendant entered into a contract*fn11 made up of various "collected electronic communications" ("Electronic Agreement").*fn12 By way of this Electronic

and/or (2) change part of the services provided under this Agreement at any time. . . . If you do not agree with any revision to the Agreement, you may terminate this Agreement at any time . . . . By continuing to use Network Solutions services after any revision to this Agreement or change in service(s), you agree to abide by and be bound by any such revisions or changes.").

Agreement, registration was transferred from Ann to both Plaintiffs, and Defendant was to bill Ann.*fn13 This Electronic Agreement constituted a binding contract, was electronically signed, and did not contain a binding forum-selection clause.*fn14

On January 19, 2007, an unidentified individual gained access to Plaintiffs' account and transferred the domain name MOD.COM to another individual.*fn15 At the time of this transfer, the only person authorized to make transfers was Ann.*fn16 She did not authorize the transfer.*fn17 Defendant has refused to identify the individual to whom the website was transferred and has not provided any information about the process.*fn18

B. Procedural Background Plaintiffs filed this action in the Massachusetts Superior Court for Middlesex County on September 22, 2009.*fn19 Defendant removed the case to the United States District Court for the District of Massachusetts on October 16, 2009.*fn20 On October 19, 2009, Defendant filed a motion to dismiss the original complaint, arguing that Plaintiffs' claims were barred by the forum-

Defendant "has no record of entering into a superseding agreement" with Plaintiffs but assumes that the allegation is true for the purposes of this motion to dismiss. Mem. Supp. Mot. Def. Dismiss Am. Compl., 3 [#16]. selection clause in the 2005 Agreement.*fn21

On April 28, 2010, this court found that the forum selection clause was binding and thus allowed Defendant's Motion to Dismiss.*fn22 In dismissing the Complaint, this court allowed Plaintiffs thirty days to file an amended complaint.*fn23

Plaintiffs filed their Amended Complaint on May 27, 2010,*fn24 and on June 10, 2010, Defendants filed a Motion to Dismiss the Amended Complaint.*fn25 On February 10, 2011, this court held a Motion Hearing on the matter and took the motion under advisement.

III. Discussion

This court has already determined, and it remains persuaded, that Plaintiffs are bound by the 2005 Agreement.*fn26 Given the provision in the 2005 Agreement that allows revisions, Plaintiffs are bound also by the 2006 Agreement and its identical forum selection clause.

The Electronic Agreement did not replace the 2006 Agreement. If the Electronic Agreement affected the Parties' rights at all, its effect was to transfer ownership of the domain name MOD.COM from Ann to both Plaintiffs. Both Plaintiffs were then bound by the 2005 and 2006 Agreements, as the 2005 Agreement made clear that subsequent modification to the account or services that was initiated by the customer would bind both the customer and her agents to the 2005 Agreement and its amendments.*fn27

Both Plaintiffs are thus bound by the forum-selection clause in the 2006 Agreement. Pursuant to that clause, Plaintiffs must file any claims against Defendant regarding these events in the United States District Court for the Eastern District of Virginia, Alexandria Division.*fn28 The Amended Complaint is thus barred by the forum-selection clause in the 2006 Agreement.

This court also notes in passing that it must dismiss the Amended Complaint as to Ann pursuant to Federal Rule of Civil Procedure 11(a). Under Rule 11(a), "[e]very pleading, written motion, and other paper must be signed . . . by a party personally if the party is unrepresented."*fn29

Further, a "court must strike an unsigned paper unless the omission is promptly corrected after being called to the . . . party's attention."*fn30 Here, Ann did not sign the Amended Complaint and Defendant called Plaintiffs' attention to that omission.*fn31 For that reason, in addition to the reasons above, the Amended Complaint must be dismissed as to Ann.

Because this court dismisses the Amended Complaint for the reasons above, it is not necessary for this court to address Defendant's argument that Plaintiffs' tort claims are insufficiently alleged.*fn32

IV. Conclusion

For the foregoing reasons, Defendant's Motion to Dismiss the Amended Complaint [#15] is ALLOWED.

AN ORDER HAS ISSUED.

Joseph L. Tauro United States District Judge


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