Office Depot Inc. v. Zuccarini ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OFFICE DEPOT INC., 
Plaintiff-Appellee,
DS HOLDINGS, LLC, No. 07-16788

Assignee-Appellee, D.C. No.
v. CV-06-80356-SI
JOHN ZUCCARINI, doing business as OPINION
Country Walk,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of California
Susan Yvonne Illston, District Judge, Presiding
Argued and Submitted
July 17, 2009—San Francisco, California
Filed February 26, 2010
Before: Cynthia Holcomb Hall, William A. Fletcher and
Richard A. Paez, Circuit Judges.
Opinion by Judge William A. Fletcher
3119
3122 OFFICE DEPOT v. ZUCCARINI
COUNSEL
John Zuccarini, Pro se, Stuart, Florida, defendant-appellant.
Michael Woodrow De Vries, Latham & Watkins LLP, Costa
Mesa, California, for the plaintiff-appellee.
Henry M. Burgoyne III, Karl S. Kronenberger, Kronenberger
Burgoyne LLP, San Francisco, California, for the assignee-
appellee.
OPINION
W. FLETCHER, Circuit Judge:
John Zuccarini is a judgment debtor who owns the rights to
many Internet domain names. DS Holdings (“DSH”) is the
assignee of the judgment against Zuccarini. DSH attempted to
levy upon Zuccarini’s domain name holdings in the Northern
District of California where VeriSign, the official registry for
all “.com” and “.net” domain names, has its headquarters. The
district court appointed a receiver to take control of and auc-
tion off some of Zuccarini’s domain names in order to satisfy
the judgment.
Zuccarini appeals, contending that the Northern District of
California is not a proper place to levy upon his domain
names and that the appointment of the receiver was therefore
improper.
We affirm.
OFFICE DEPOT v. ZUCCARINI 3123
I. Background
In December 2000, Office Depot obtained a judgment
against Zuccarini under the Anticybersquatting Consumer
Protection Act of 1999 (“ACPA”), 15 U.S.C. § 1125(d), aris-
ing out of Zuccarini’s registration of the domain name “offic-
depot.com.” Office Depot was unable to collect on the
judgment and eventually assigned the judgment to DSH.
DSH sought to levy upon some of the other domain names
owned by Zuccarini. DSH registered the judgment in the dis-
trict court for the Northern District of California. DSH then
obtained a preservation order from the district court and
engaged in discovery. It learned that Zuccarini owned more
than 248 domain names registered with VeriSign, of which
more than 190 were “.com” domain names. DSH targeted the
“.com” domain names in its levy.
Some background information on the structure of the
domain name system will be helpful to the reader:
Every computer connected to the Internet has a
unique Internet Protocol (“IP”) address. IP addresses
are long strings of numbers, such as 64.233.161.147.
The Internet [domain name system] provides an
alphanumeric shorthand for IP addresses. The hierar-
chy of each domain name is divided by periods.
Thus, reading a domain name from right to left, the
portion of the domain name to the right of the first
period is the top-level domain (“TLD”). TLDs
include .com, .gov, .net., and .biz. Each TLD is
divided into second-level domains identified by the
designation to the left of the first period, such as “ex-
ample” in “example.com” or “example.net.” . . .
Each domain name is unique and thus can only be
registered to one entity . . . .
A domain name is created when it is registered
with the appropriate registry operator. A registry
3124 OFFICE DEPOT v. ZUCCARINI
operator maintains the definitive database, or regis-
try, that associates the registered domain names with
the proper IP numbers for the respective domain
name servers. The domain name servers direct Inter-
net queries to the related web resources. A registrant
can register a domain name only through companies
that serve as registrars for second level domain
names. Registrars accept registrations for new or
expiring domain names, connect to the appropriate
registry operator’s TLD servers to determine
whether the name is available, and register available
domain names on behalf of registrants . . . .
The majority of domain name registrations for
commercial purposes utilize the .com TLD.
Coalition for ICANN Transparency, Inc. v. VeriSign, Inc., 464
F. Supp. 2d 948, 951-53 (N.D. Cal. 2006), reversed by 567
F.3d 1084 (9th Cir. 2009).
As explained in Coalition for ICANN Transparency, there
are three primary actors in the domain name system. First,
companies called “registries” operate a database (or “regis-
try”) for all domain names within the scope of their authority.
Second, companies called “registrars” register domain names
with registries on behalf of those who own the names. Regis-
trars maintain an ownership record for each domain name
they have registered with a registry. Action by a registrar is
needed to transfer ownership of a domain name from one reg-
istrant to another. Third, individuals and companies called
“registrants” own the domain names. Registrants interact with
the registrars, who in turn interact with the registries.
VeriSign is the registry for the domain names “.com” and
“.net”. Id. at 953. Its headquarters are located in Mountain
View, California, in the Northern District of California. Dur-
ing discovery, DSH learned that the registrars for Zuccarini’s
“.com” and “.net” domain names were located in the United
OFFICE DEPOT v. ZUCCARINI 3125
States, Germany, and Israel. DSH filed a request in the district
court for a turnover order to compel the registrars of certain
“.com” domain names owned by Zuccarini to transfer owner-
ship to DSH. The district court denied the request, holding
that, under California Civil Procedure Code § 699.040, it
could not order third parties to turn over property. DSH then
moved for the appointment of a receiver who would obtain
and sell the “.com” domain names in question and would use
the proceeds to satisfy the judgment. The district court
granted the motion to appoint a receiver.
Zuccarini appealed. We have jurisdiction under 28 U.S.C.
§ 1292(a)(2) to entertain an appeal from an interlocutory
order appointing a receiver.
II. Standard of Review
We review for abuse of discretion a district court order
appointing a receiver. Canada Life Assurance Co. v. LaPeter,
563 F.3d 837, 844 (9th Cir. 2009). We review de novo a dis-
trict court’s interpretation of law, including state law. Capital
Dev. Co. v. Port of Astoria, 109 F.3d 516, 518 (9th Cir. 1997).
III. Discussion
DSH does not argue that the district court in the Northern
District of California has in personam jurisdiction over Zuc-
carini. Rather, it argues that the court has jurisdiction over
Zuccarini’s intangible property that is located, for purposes of
attachment, in the Northern District.
[1] The type of jurisdiction at issue is “type two quasi in
rem.” See Restatement (First) of Judgments § 32 (1942). Type
two quasi in rem jurisdiction is used to establish the owner-
ship of property in a dispute unrelated to the property. Type
two quasi-in rem jurisdiction is sometimes called “attachment
jurisdiction.” See Restatement (Second) of Judgments § 8
(1982). So far as the record in this case shows, the domain
3126 OFFICE DEPOT v. ZUCCARINI
names upon which DSH seeks to levy were not involved in
the underlying litigation that led to the judgment against Zuc-
carini.
[2] A district court can obtain quasi in rem jurisdiction
over property situated within its geographical borders. See
Pennington v. Fourth Nat’l Bank, 243 U.S. 269, 272 (1917);
Fed. R. Civ. P. 4(n)(2) (“[T]he court may assert jurisdiction
over the defendant’s assets found in the district. Jurisdiction
is acquired by seizing the assets under the circumstances and
in the manner provided by state law in that district.”). Though
“the situs of intangibles is often a matter of controversy,”
Hanson v. Denckla, 357 U.S. 235, 246-47 (1958), quasi in
rem jurisdiction can be asserted over intangible property.
Harris v. Balk, 198 U.S. 215 (1905). Due process requires a
constitutionally sufficient relationship among the defendant,
the forum, and the litigation. Shaffer v. Heitner, 433 U.S. 186,
204 (1977). In an action to execute on a judgment, due pro-
cess concerns are satisfied, assuming proper notice, by the
previous rendering of a judgment by a court of competent
jurisdiction. Id. at 210 n.36 (“Once it has been determined by
a court of competent jurisdiction that the defendant is a debtor
of the plaintiff, there would seem to be no unfairness in allow-
ing an action to realize on that debt in a State where the
defendant has property, whether or not that State would have
jurisdiction to determine the existence of the debt as an origi-
nal matter.”); Glencore Grain Rotterdam B.V. v. Shivnath Rai
Harnarain Co., 284 F.3d 1114, 1127 (9th Cir. 2002) (quoting
Shaffer).
We have previously noted that “[s]tate law has been
applied under Rule 69(a) to garnishment, mandamus, arrest,
contempt of a party, and appointment of receivers,” when
such actions are undertaken in aid of executing on a judg-
ment. In re Merrill Lynch Relocation Mgmt., Inc., 812 F.2d
1116, 1120 (9th Cir. 1987); see also Edmonston v. Sisk, 156
F.2d 300, 301 (10th Cir. 1946) (applying Rule 69(a), and state
law, to appointment of receiver in aid of an action for execu-
OFFICE DEPOT v. ZUCCARINI 3127
tion); 12 Wright & Miller, Federal Practice and Procedure
§ 3012 at 148-49. We now take the opportunity to explain
why this is so.
[3] Federal Rule of Civil Procedure 69 governs procedures
on execution of a judgment and, for the most part, directs the
district court to look to state rules. The version of Rule 69(a)
relied upon by the district court provided as follows:
Process to enforce a judgment for the payment of
money shall be a writ of execution, unless the court
directs otherwise. The procedure on execution, in
proceedings supplementary to and in aid of a judg-
ment, and in proceedings on and in aid of execution
shall be in accordance with the practice and proce-
dure of the state in which the district court is held,
existing at the time the remedy is sought, except that
any statute of the United States governs to the extent
that it is applicable. . . .1
To paraphrase, Rule 69 provides that state law applies gener-
ally, but a federal statute governs to the extent it applies.
[4] Rule 66 governs the appointment of a receiver in fed-
eral court. It provides:
These rules govern an action in which the appoint-
1
The rule was amended as of December 1, 2008. The updated text of the
rule is as follows:
A money judgment is enforced by a writ of execution, unless the
court directs otherwise. The procedure on execution—and in pro-
ceedings supplementary to and in aid of judgment or execution—
must accord with the procedure of the state where the court is
located, but a federal statute governs to the extent it applies.
Fed. R. Civ. P. 69(a)(1) (2009). The advisory committee notes indicate
that these amendments were merely stylistic. Advisory Committee Note
(2007).
3128 OFFICE DEPOT v. ZUCCARINI
ment of a receiver is sought or a receiver sues or is
sued. But the practice in administering an estate by
a receiver or a similar court-appointed officer must
accord with the historical practice in federal courts
or with a local rule. An action in which a receiver
has been appointed may be dismissed only by court
order.
The federal rules, including Rule 66, qualify as federal stat-
utes under Rule 69(a). Bair v. Bank of Am. Nat’l Trust & Sav.
Ass’n, 112 F.2d 247, 249-50 (9th Cir. 1940) (applying federal
rule to Rule 69 action); see also Schneider v. Nat’l R.R. Pas-
senger Corp., 72 F.3d 17, 19 (2d Cir. 1995) (“This term
includes the Federal Rules of Civil Procedure, since they have
the force and effect of federal statutes.”); Okla. Radio Assoc.
v. FDIC, 969 F.2d 940, 942 (10th Cir. 1992). Therefore, Rule
66 prevails over any state law to the extent it applies. How-
ever, Rule 66 does not provide a rule governing the proper
location for appointment of a receiver in aid of execution of
a judgment. Because Rule 66 does not provide a governing
rule, we look to state law.
California Civil Procedure Code § 695.010(a) provides,
“Except as otherwise provided by law, all property of the
judgment debtor is subject to enforcement of a money judg-
ment.” Section 699.710 provides, inter alia, “[A]ll property
that is subject to enforcement of a money judgment . . . is sub-
ject to levy under a writ of execution to satisfy a money judg-
ment.” Under these provisions, all property of a judgment
debtor can be used to satisfy a writ of execution.
California Civil Procedure Code § 708.620 governs the
appointment of a receiver in aid of the execution of a judg-
ment in California state courts. It provides:
The court may appoint a receiver to enforce the
judgment where the judgment creditor shows that,
considering the interests of both the judgment credi-
OFFICE DEPOT v. ZUCCARINI 3129
tor and the judgment debtor, the appointment of a
receiver is a reasonable method to obtain the fair and
orderly satisfaction of the judgment.
This rule does not indicate where a receiver over property
should be appointed. However, § 699.510(a) provides that the
appropriate place to direct a writ of execution is the county
where the levy is to be made:
[A]fter entry of a money judgment, a writ of execu-
tion shall be issued by the clerk of the court upon
application of the judgment creditor and shall be
directed to the levying officer in the county where
the levy is to be made and to any registered process
server.
[5] The combined effect of these provisions is to provide
that if the domain names are property subject to execution,
and if they are located in the Northern District of California,
that district is an appropriate location to execute judgment on
them through the appointment of a receiver. There are thus
two questions before us. First, are domain names property that
is subject to execution? Second, if so, where are the domain
names located for purposes of execution? We address these
questions in turn.
[6] First, we have already held that domain names are
intangible property under California law. Kremen v. Cohen,
337 F.3d 1024, 1030 (9th Cir. 2003). In Palacio Del Mar
Homeowners Ass’n, Inc. v. McMahon, 174 Cal. App. 4th
1386, 1391 (2009), a California Court of Appeal held that
domain names do not constitute property subject to a turnover
order because they cannot be taken into custody. The court in
Palacio Del Mar based its holding on a reading of California
Civil Procedure Code § 699.040, which provides that, with
respect to a turnover order, property must “be levied upon by
taking it into custody.” However, the court left open the ques-
tion whether domain names constitute intangible property
3130 OFFICE DEPOT v. ZUCCARINI
generally, and it cited Kremen with approval. Moreover, the
“taking it into custody” language in § 699.040 does not
appear in § 708.620, which governs the appointment of
receivers. We conclude that Kremen is still an accurate state-
ment of California law, and that domain names are intangible
property subject to a writ of execution.
Second, we note that “attaching a situs to intangible prop-
erty is necessarily a legal fiction; therefore, the selection of a
situs for intangibles must be context-specific, embodying a
‘common sense appraisal of the requirements of justice and
convenience in particular conditions.’ ” Af-Cap Inc. v. Repub-
lic of Congo, 383 F.3d 361, 371 (5th Cir. 2004) (quoting U.S.
Indus., Inc. v. Gregg, 540 F.2d 142, 151 n.5 (3rd Cir. 1976)).
That is, the location of intangible property varies depending
on the purpose to be served:
The situs may be in one place for ad valorem tax
purposes; it may be in another place for venue pur-
poses, i.e., garnishment; it may be in more than one
place for tax purposes in certain circumstances; it
may be in still a different place when the need for
establishing its true situs is to determine whether an
overriding national concern, like the application of
the Act of State Doctrine is involved.
Tabacalera Severiano Jorge, S. A. v. Standard Cigar Co., 392
F.2d 706, 714-15 (5th Cir. 1968) (citations omitted). A single
piece of intangible property may be located in multiple places
for some purposes. Curry v. McCanless, 307 U.S. 357, 367-68
(1939).
[7] California law says nothing specific about the location
of domain names. However, in the Anticybersquatting Con-
sumer Protection Act Congress has addressed the question.
Under the ACPA, a trademark owner in a civil cybersquatting
action can proceed in personam against the cybersquatter. If
there is no in personam jurisdiction in any judicial district of
OFFICE DEPOT v. ZUCCARINI 3131
the United States, the owner may proceed in rem against the
allegedly infringing domain name. 15 U.S.C. § 1125(d)(2)(A)
(ii)(I). The ACPA provides that in rem jurisdiction over these
domain names shall be “in the judicial district in which the
domain name registrar, domain name registry, or other
domain name authority that registered or assigned the domain
name is located . . . .” 15 U.S.C. § 1125(d)(2)(A). The ACPA
also provides for the legal situs of the domain name once a
lawsuit has been filed:
In an in rem action under this paragraph, a domain
name shall be deemed to have its situs in the judicial
district in which . . . the domain name registrar, reg-
istry, or other domain name authority that registered
or assigned the domain name is located . . . .
Id. § 1125(d)(2)(C)(i); see also Mattel, Inc. v. Barbie-
Club.com, 310 F.3d 293, 302 (2d Cir. 2002) (interpreting
these provisions). Although the current proceeding is not an
action under the ACPA, the statute is authority for the propo-
sition that domain names are personal property located wher-
ever the registry or the registrar are located.
Both parties make practical arguments relevant to an
appraisal of the interests of “justice and convenience.” Af-Cap
Inc., 383 F.3d at 371. Zuccarini argues that since registrars
tell the registries who owns domain names, any attachment
should be directed to registrars. Zuccarini also argues that if
the domain names under VeriSign’s control are located in the
district where VeriSign has its headquarters, every “.net” and
“.com” domain name is located in that district.
DSH admits that instructions concerning the transfer of
ownership of domain names must go through registrars. But
it points out that the registrars are essentially intermediaries,
that the registry controls the database of all domain names,
and that any change in ownership is ultimately reflected in the
registry. Additionally, DSH points out that it would greatly
3132 OFFICE DEPOT v. ZUCCARINI
impede the ability of judgment creditors to levy upon domain
names if they were required to bring suits in the many differ-
ent places where registrars of the domain names are located.
[8] Given the persuasive but not controlling language of
the ACPA, and the practicalities involved in bringing suit to
execute judgments against owners of domain names, we con-
clude under California law that domain names are located
where the registry is located for the purpose of asserting quasi
in rem jurisdiction. Although the question is not directly
before us, we add that we see no reason why for that purpose
domain names are not also located where the relevant regis-
trar is located.
Conclusion
[9] Because VeriSign has its headquarters in the Northern
District of California, the district court had quasi in rem juris-
diction over the domain names registered with VeriSign for
purposes of appointing a receiver to assist in executing a judg-
ment against the owner of the names.
AFFIRMED.