DS Holdings V Zuccarini Appellant Brief 9th Circuit Court of Appeals
DS Holdings V Zuccarini Appellant Brief 9th Circuit Court of Appeals
DS Holdings V Zuccarini Appellant Brief 9th Circuit Court of Appeals
1. Did the District Court err or abuse it’s discretion when ignoring that it lacked
discretion to claim that the court had quasi in rem jurisdiction although the
Supreme Court has stated that quasi in rem is archaic and found against it?
3. Did the District Court err or abuse it’s discretion when wrongly interpreting CA
law? Assuming that it did not, did it err or abuse it’s discretion by violating and
4. Did the District Court err or abuse it’s discretion by ignoring/allowing that the
5. Did the District Court err or abuse it’s discretion when violating Appellant’s rights
6. Did the District Court err or abuse of discretion to allow and participate in fraud
7. Is it err or abuse of discretion to have property, that has monthly income of almost
8. Was it err or abuse of discretion for the Court to deny Appellant Preliminary
Injunction after being shown that property, taken for an alleged judgment had
1
STATEMENT OF THE CASE
Office Depot, was allegedly awarded Judgment1 against John Zuccarini in The
United States District Court for the Middle District of CA, December 2000. Mr.
Zuccarini, was living in Pennsylvania, was not served, had no knowledge of suit.
For (10) years, the alleged Judgment had not been registered in the US District
Depot2 October 2006, assigned the alleged Judgment to DS Holdings (DSH). December,
2006, DSH, Registered “Foreign Judgment” [Dkt.1] in US District Court, San Francisco
Division3 and obtained a Writ of Execution [Dkt.3]. To date, Mr. Zuccarini has never
February 2007, District Court signed an Order directed toward Mr. Zuccarini, and
1
According to Pacer Website, nothing was filed in the US District Court in Santa Ana
between 12/13/2000 until 10/5/2006 when “Notice of Assignment” was filed by Office
Depot, who won on Default.
2
Although the case is titled Office Depot v Zuccarini, Office Depot no longer has an
interest in this matter, has not been part of the current proceedings. The title of the case is
misleading and inappropriate, as Office Depot had no standing.
3
DSH claimed that the matter was filed in the US District Court for the Northern District
of California, San Francisco Division, because the domain names would have to be
transferred by Verisign, whose CA address is: 487 East Middlefield Road Mountain
View, CA 94043.
2
WHOIS4 to produce any/all documentation pertaining to any/all domain names
Services Langenback (Joker.com); and prohibiting the transfer of the Domain Names by
Mr. Zuccarini, NSI, or Joker.com to any other entity. The order further specifically
states:
DSH claimed that Mr. Zuccarini owned more than 248 domain names registered
with Network Solutions, Inc (NSI)5, and moved to levy on all of the domain names,6 and
The same Order specifically, and without reason, threatened Mr. Zuccarini with
4
WHOIS located in Singapore at: 9A Jasmine Road, Singapore 576582 The Court
lacked jurisdiction to Order “third party” Whois to do anything.
5
Network Solutions, LLC. and Verisign, LLC are both in Virginia, not in CA as alleged
by DSH in order to fraudulently assert jurisdiction in the CA District Court; Mr.
Zuccarini is a resident of FL, not CA, whereby neither Mr. Zuccarini, nor any of his
property is, or has ever been located in, or had ties with CA.
6
DSH later lied that they only sought to levy on 190 .com domain names [doc.93 pg.1,
@7], evidenced by the fact that DSH attempted to have “Addition of Names To Writ of
Execution” [Doc.10] in which DSH sought to take over Six Thousand (6,000) of Mr.
Zuccarini’s domain names [Doc.11,pg.2*fn1]; and the fact that Blacksburg has illegally
converted to his name Mr. Zuccarini’s .eu, .org, .net, etc. which the District Court stated
“This Court did not order transfer of the .eu domain names…the Court would have
lacked jurisdiction to do so…however, there is no basis to order their return to Zuccarini”
[Doc.137,pgs.3@26-28;pg.4@3-5]
3
[Doc.9,pg.5@17-19], which was done to justify appointment of reciever. The statement
shows bias/prejudice by a Court having actual knowledge that Mr. Zuccarini had not
been served with process or Notice; actual knowledge the court lacked jurisdiction, was
an improper venue; actual knowledge that the alleged judgment had never been
registered, no attempts to obtain a Writ of Execution been made. Further that Mr.
DSH filed an Ex Parte Motion for a Final Turnover Order April 27, 2007 [Dkt-
14,15,16], the Court Denied on May 15, 2007 [Doc.17,] because “requiring third parties
June 25, 2007, DSH filed Motion to Appoint Reciever [Dkt.18-23]; August 7,
2007 Mr. Zuccarini filed in Opposition [Dkt.25-28]; September 10, 2007 the Court
According to both the District Court, and this Court, Blacksburg was to seek
“specifically the ones that were ‘.com’”. “DSH targeted the “.com” domain names in its
levy.” [9th Cir. Ruling, pg. 3123, 2nd ¶ Feb. 26, 2010]. That statement was incorrect as
4
Mr. Zuccarini moved to have .eu, .org, etc domain names returned to him June 2,
2010 [Doc.101], which the Court denied July 12, 2010 [Doc.137@19-25].
Feb. 26, 2010: 9th Cir. Court No: 07-16788 Affirmed District Court’s Ruling;
May 12, 2010 [Dkt.t95] District Court Denied Defendant’s Motion to Stay Auction of
April 20, 2010 Mr. Zuccarini filed Motion to Stay pending Petition for Writ of
Zuccarini has now managed to stall for the last ten years…” [Doc.93,pg.4,@17-22];
May 25, 2010 Mr. Zuccarini discovered an article on a news website, that the
Sells For $53K On NameJet”7 [Doc.97-Ex-A] The article discussed that one (1) domain
name converted from Mr. Zuccarini’s estate and mismanaged by Blacksburg, had
auctioned for Fifty-three Thousand Dollars ($53,000.00). The article shows that on one
day, Domain Names converted from Mr. Zuccarini’s Estate by Blacksburg, and
auctioned, under Blacksburg’s scheme to have domain names auctioned without the
7
http://www.thedomains.com/2010/05/25/after-5-hours-govermentgrants-com-sells-for-
53k-on-namejet-yes-its-a-typo/ This article was also attached as Exhibit A to Rule 60(b)
Motion filed in District Court [Docs.99,100].
5
court’s permission, auctioned for Sixty-five Thousand Dollars ($65,000.00), but the
receiver had not renewed the Domain Names, NSI received 80-85%; only 15-20% would
go toward Mr. Zuccarini’s alleged debt. The receiver’s gross negligence, caused Mr.
Zuccarini irreparable injury and harm. Had the property been properly managed, a large
TRO/Injunction [Doc.97]; Motion for Relief from Judgment under Rule 60(b)(1),(3),(4),
and (6) [Docs.99] and a Motion attempting to have returned to Mr. Zuccarini the
European domain names that Blacksburg had illegally converted to his own name [101];
name that are not .com or .net domain names, and not included in the District Court’s
Orders. The Court’s denial of the Motion for the return of domain names, because the
[Doc.137,pg.3@26-28; pg.4@3-5].
On May 12, 2010 the District Court Ordered that Blacksburg would provide Mr.
Thousand, Six Hundred Dollars ($69,600.00) annually. The income would satisfy the
6
debt without having to auction the domain names. Besides, Mr. Zuccarini would
normally be using that income to live on, auctioning the domain names has caused and
will continue to cause Mr. Zuccarini extreme undue hardship.8 The equivalent would be
garnishing a man’s full wages and leaving him nothing to live on, and as is shown by the
statutes in every state of this country, that simply is not done, all states have
The District and Appellate Courts cite many CA codes, but have continually
evaded any/all codes that would be in favor of Mr. Zuccarini. Further, “intangible
property” is exempt from levy in all matters concerning judgments in CA9. The Courts
levied upon”.
DSH also filed for Emergency TRO/Injunction, requests to freeze the domain
June 14, 2010, Network Solutions, Inc. (NSI) filed Ex Parte Application to
On June 15, 2010 the Court Denied Mr. Zuccarini’s Emergency Motion/Injunction,
that DSH/Blacksburg knowingly, willingly, wantonly, and maliciously misled the court,
June 22, 2010 Mr. Zuccarini sought a Stay Pending Appeal [Docs.124,125.126],
Mr. Zuccarini filed Notice Of Appeal [Dkt.123], which Notice should have stated
that Mr. Zuccarini was seeking to Appeal: everything that had been ruled on since
Further, a hearing had been scheduled for July 16, 2010 on Mr. Zuccarini’s Rule
60(b)(1),(3),(4) and (6) Motion; the court cancelled the hearing and denied the Rule 60(b)
Motion on July 12, 2010 [Doc.137]; which for judicial economy, and to prevent injustice,
Office Depot obtained an alleged judgment against Mr. Zuccarini, without ever
effecting service upon him, granted by a Court that lacked personal and subject matter
The matter before the District Court, DSH v Zuccarini, was brought six (6) years
Errata)”;.
11
Mr. Zuccarini filed Motion to Amend Notice of Appeal, requesting that he be allowed
to address this in the Appeal. At the time of preparing the Mr. Zuccarini’s Brief, there
had been no ruling, therefore Mr. Zuccarini addresses the issue in his Brief.
8
after Office Depot had allegedly been awarded an alleged judgment for which, they
neglected to attempt to collect, and assigned to DSH. After tacking on almost Sixty
Thousand Dollars ($60,000.00) to the alleged award, DSH Registered the alleged
judgment in an improper venue, with a court that lacked jurisdiction and filed for a Writ
of Execution, which the Court granted the following day. Mr. Zuccarini was never
Facts show for six years, no attempt made to collect the alleged judgment.
Furthermore, Mr. Zuccarini has been a resident of the State of Florida since 2001,
and Mr. Zuccarini does not now, nor has he ever had any ties with, or property in
California. There is an issue of improper venue, lack of personal and subject matter
jurisdiction, as well as lack of jurisdiction over the intangible property (which in both CA
and VA cannot be levied upon to satisfy a judgment), which is not, in fact, in CA either.
Appointing Blacksburg receiver, did not dissolve the “third party” issue, which
NSI is a LLC, which if a “third party” is a LLC, and not named in the action, cannot be
Newly discovered facts and evidence show, without a doubt that DSH, in Order
9
to obtain rulings in their favor, perpetrated a fraud upon the District Court, which led that
Court to believe that it had jurisdiction. The newly discovered facts and evidence, Mr.
Zuccarini could not have come across earlier, that supports Mr. Zuccarini’s claims that
has refused to take into consideration; together with the fact that the CA District Court
lacked both personal and subject matter jurisdiction on other grounds, the District Court
has always lacked jurisdiction in this matter. Verisign may have headquarters in CA, but
the General Manager, the network, systems, computers, and personnel are in VA, which
DSH is guilty of the crime of conversion. Blacksburg took many domain names
besides .com and .net, as was what DSH claimed they were seeking; and Blacksburg had
illegally converted into his own name many .eu, .org, and other extensions
[Doc.137@19-25].
After learning that Blacksburg had let the renewal of fourteen (14) domain names
lapse, which were auctioned with the proceeds going to Network Solutions, rather than
going toward Mr. Zuccarini’s alleged debt, both Mr. Zuccarini and DSH separately filed
Should the District Court’s ruling stand, one can only conclude that the District
10
Court was part of a conspiracy with DSH/Blacksburg to steal through conversion, Mr.
Zuccarini’s other Domain names. Although DSH has prejudiced the courts against him,
Mr. Zuccarini is protected by the US Constitution, has the right to due process of
law,which have been grossly violated. The ruling is unconscionable, void on it’s face,
A. JURISDICTION/VENUE
This Court has jurisdiction to examine the jurisdiction of the district court and is
conferred by 28 U.S.C. § 1291. Sederquist v. Court, 861 F.2d 554, 555 (9th Cir. 1988).
novo. See Menken v. Emm, 503 F.3d 1050, 1056 (9th Cir. 2007); Dow Chemical Co. v.
Calderon, 422 F.3d 827, 830 (9th Cir. 2005); Schwarzenegger v. Fred Martin Motor
Co., 374 F.3d 797, 800 (9th Cir. 2004). Likewise, the district court’s decision whether
there is subject matter jurisdiction is reviewed de novo. See Atwood v. Fort Peck Tribal
Court Assiniboine, 513 F.3d 943, 946 (9th Cir. 2008); Schnabel v. Lui, 302 F.3d 1023,
1029 (9th Cir. 2002). The district court‟s factual findings on jurisdictional issues are
Mr. Zuccarini moved from PA,to FL in 2001; was never served with process,
Summons/Complaint. Office Depot alleges that in 2000, the US District Court Central
11
CA, awarded them judgment against Mr. Zuccarini. Venue and jurisdiction were left
wanting, Mr. Zuccarini never resided in CA, had no property in CA, did no business
there. The Supreme Court has repeatedly held “Due process requires that the defendant
be given adequate notice of the suit”, Mullane v. Central Hanover Trust Co., 339 U. S.
306, 313-314 (1950), and be subject to the personal jurisdiction of the court,
Office Depot assigned an alleged award to DSH, whose Appellee Brf shows held
serving notice, filing proof of notice, …”13 District Court issued the writ the following
Failure to serve Defendant deprived the Court of jurisdiction. FRCP Rule 4(c)(1);
“a federal court lacks jurisdiction over an improperly served defendant. Printed Media
Servs., Inc. v. Solna Web, Inc., 11 F.3d 838, 843 (8th Cir. 1993); If a defendant is
improperly served, a federal court lacks jurisdiction over the defendant. See Dodco, Inc.
v. American Bonding Co., 7 F.3d 1387 (8th Cir.1993); Sieg v. Karnes, 693 F.2d 803,
Further, the statute expressly uses the word “shall” 14. The statute had to be
12
Common sense “Foreign Judgment” done to appear Zuccarini lived in CA.
13
CAL. CCP. CODE § 683.160
14
unmistakably mandatory character, requiring that certain procedures "shall," "will," or
"must" be employed Hewitt v. Helms, 459 US 460 - Supreme Court 1983; mandatory
language, the words “shall”, “must”, or “will” In sum, the use of "explicitly mandatory
language," …establishment of "specified substantive predicates" to limit discretion, ….
12
precisely followed, without a judge using it’s discretion.
The Judge issued the Writ and violated procedure, Mr. Zuccarini’s Rights to due
process of law were violated, the judgment is void. (A judgment rendered in violation of
due process is void in the rendering State and is not entitled to full faith and credit
Obviously the FTC brought suit against Mr. Zuccarini where he lived, not in CA; anyone
with common sense would know the 2006 FTC action showed that venue would be
Mr. Zuccarini has newly discovered evidence, facts showing that Verisign General
Manager, computer systems, all operations are performed in VA, through NSI. Further,
it has many times been held that only when the defendant cannot be located, can in rem
“No state can obtain in the tribunals of other jurisdictions full faith
and credit for its judicial proceedings if they are wanting in the due
process of law enjoined by the fundamental law. 'No judgment of a
court is due process of law, if rendered without jurisdiction in the
court, or without notice to the party.'” Scott v. McNeal, 154 U.S. 34,
46 , 38 S. L. ed. 896, 901, 14 Sup. Ct. Rep. 1108.” Old Wayne Mut.
L. Assoc. v McDonough, 204 U.S. 8, 27 S.Ct. 260 (1907)
The United States Supreme Court has held for well over one hundred (100) years,
When a Court rules and has no authority to do so, due process of law is violated; judicial
immunity no longer exists; and the judgments “are regarded as nullities”, “they are not
voidable, but simply void” See Williamson v Berry, 8 HOW. 945, 540 12 L. Ed. 1170,
1189 (1850)
See also:
“But if it act without authority, its judgments and orders are regarded
as nullities. They are not voidable, but simply void, …They constitute
no justification, and all persons concerned in executing such
judgments or sentences are considered in law as trespassers.” Elliott
v. Lessee of Piersol, 26 U.S. 1 Pet. 328 328 (1828)
The District Court claimed “quasi in rem jurisdiction”, of which The US Supreme
Court has held “abandoned the outworn rule of Harris v. Balk, 198 U.S. 215 (1905), that
jurisdiction over the debtor Schaffer v. Heitner, 433 U.S. 186 (1977). Having interred
14
the mechanical rule that a creditor’s amenability to a quasi in rem action …., we are
“In a long and venerable line of cases, the Supreme Court has held
that, without proper jurisdiction, a court cannot proceed at all, but can
only note the jurisdictional defect and dismiss the suit. See, e.g.,
Capron v. Van Noorden, 2 Cranch 126; Arizonans for Official
English v. Arizona, 520 U.S. 43. Bell v. Hood, supra; National
Railroad Passenger Corp. v. National Assn. of Railroad Passengers,
414 U.S. 453, 465, n. 13; Norton v. Mathews, 427 U.S. 524, 531;
Secretary of Navy v. Avrech, 418 U.S. 676 , 678 (per curiam);
United States v. Augenblick, 393 U.S. 348; Philbrook v. Glodgett,
421 U.S. 707, 721; and Chandler v. Judicial Council of Tenth
Circuit, 398 U.S. 74, 86—88, distinguished.”
Morgan Chase Bank USA, 552 F.3d 1114, 1118 (9th Cir. 2009); Laws v. Sony Music
Entertainment, Inc., 448 F.3d 1134, 1137 (9th Cir. 2006); Rabkin v. Oregon Health
The District Court, as well as this Court, have repeatedly referenced CA law
amazingly, both Courts picked only laws favorable to DSH, rather than actually use the
something other than what it says, and ruled contrary to that what CA law states.
According to The United States Supreme Court, “a federal court's interference with this
process constitutes undue interference with a state's legitimate activities.” Juidice v. Vail,
15
430 U.S. 327, 335-36, 97 S.Ct. 1211, 1217-18, 51 L.Ed.2d 376 (1977).
The United States Supreme Court held in Younger v. Harris, 401 U.S. at 53-54,
as required by "[o]ur Federalism['s]" notion of comity, that is, "a proper respect for state
functions" and "the belief that the National Government will fare best if the States and
their institutions are left free to perform their separate functions in their separate ways."
The U.S. Supreme Court has also held: “We recognize that, as a general proposition,
‘state courts shall remain free from interference by federal courts.’” Atlantic Coast Line
R.R. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 282, 90 S.Ct. 1739, 1741,
From the very beginning, when the Judge rather than the Clerk issued the Writ,
CA laws were violated. Right after the alleged Office Depot v Zuccarini case, there
should have been a Foreign Judgment entered in the US District Court where Mr.
There was no registration of foreign judgment, no Writ of Execution filed for six years;
the Clerk, not the Judge, shall issue the Writ; the Writ “shall be direct to the levying
officer” and “registered process server” Mr. Zuccarini was never served.
Further, both Courts make several claims about “intangible property” and
16
CAL. CCP. CODE §699.510
16
that CA code says nothing about “intangible property” not being levied upon, and
so on, and the CA code doesn’t specify that domain names are “intangible
Clearly, domain names falls within this category. Nevertheless, whether or not intangible
property is subject to a Writ of Execution, this Court, for some unknown reason, refused
to have the question Certified to the CA Supreme Court, for clarification. Perhaps,
because the Court knows that CA law has been stated by CA; and in Zuccarini’s situation
this Court went against CA Court of Appeals’ ruling in Palacio Del Mar Homeowners
Association, Inc. v McMahon, 174 Cal. App. 4th 1386, 1391 (2009) Ҥ699.040 does not
authorize turnover order directed at third party registrars” by claiming the turnover was
directed to Verisign, which is false; in fact §708.205 “authorizes a turnover by third party
only when it is examined.” Neither NSI, nor the registrars for the European domain
names were ever examined, yet Blacksburg was allowed to take domain names by using
a Court order and fraudulently misrepresenting it, and District Court allowed it.
is exempt without making a claim.)17 and Mr. Zuccarini has been denied the knowledge
17
One of the CA codes that both this court and the district court ignore.
17
and/or ability to get a copy of the exemptions.
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 Appeals
held that “domain names do not constitute property subject to a turnover order because
“Like the majority of states to have addressed the issue, California law
recognizes a property interest in domain names. Kremen v Cohen, 337 F.3d 1024, 1030
(9th Cir.2003). To this end, “courts generally hold that domain names are subject to the
same laws as other types of intangible property.” Johnathan D. Hart, Internet Law 120
(2008); see e.g. Office Depot Inc. v Zuccarini, 596 F.3d 696, 701-02 (9th Cir. 2010)
18
Black’s Law Dictionary, 7th Ed. page 1233.
18
19
(domain name subject to receivership in the district of the domain name registrar.”
CRS Recovery, Inc. v. Laxton Court of Appeals 9th Cir. April 6, 2010 No.: 08-17306
Both the District Court, and this Court has stated that “domain names cannot be
Further, California law, “despite recognizing that domain names are intangible
personal property subject to a common law action for conversion, see Kremen, 337 F.3d
at 1024, does not authorize statutory turnover of domain names pursuant to the article
governing judgment debtor examinations”, see Palacio Del Mar Homeowners Ass'n,
19
Both the District Court, and this Court has continually insisted that jurisdiction in CA
was proper because of the REGISTRY, not the REGISTRAR. Now this case is being
cited because of the REGISTRAR. Courts don’t have the privilege of mis-citing their
own currently ruled on cases.
20
CAL. CCP. CODE §695.040 also states: If property that is not subject to enforcement
of a money judgment has been levied upon, the property may be released pursuant to the
claim of exemption procedure provided in Article 2 (commencing with Section 703.510)
of Chapter 4.
19
Furthermore, there is still the problem with the “third party”, and the “types of
property” that are not subject to execution, which clearly CA law states property held by
a “limited liability company” when the limited liability company “is not a judgment
debtor”;21 and “other “property that is not vested”,22 is not subject to execution.
The mere fact that Mr. Zuccarini replied in opposition at any time, the Writ could
not be acted upon, unless and until such time all appeals, including Petition for Cert to
US Supreme Court had been ruled on, effectively staying any actions on the Writ. 24
Amazingly, the Courts have continually denied Mr. Zuccarini’s Motions to Stay, in
violation of CA code. Further, the Writ is good for 180 days, at the end of such time, has
21
CAL. CCP. CODE §699.720(a)(2)
22
CAL. CCP. CODE §699.720(a)(9)
23
Black’s Law Dictionary 2nd Ed. page 1204.
24
CAL. CCP. CODE §699.720(a)(4)
20
to be renewed.25
Mr. Zuccarini was unable to find a “specific concise statement of the applicable
standard of review”, nevertheless, this Court has jurisdiction to review fraud upon the
whether there was fraud in the procurement of a judgment.” Universal Oil Products Co.
v. Root Refining Co., 328 U.S. 575, 66 S.Ct. 1176, 90 L.Ed. 1447
The matter before this Court involves parties that are “Officers of the Court.”
“Since attorneys are officers of the court, their conduct, if dishonest, would constitute
fraud on the court." H.K. Porter Co., Inc. v. Goodyear Tire & Rubber Co., 536 F.2d at
“The Ninth Circuit noted that ‘one species of fraud upon the court occurs when an
officer of the court' perpetrates fraud affecting the ability of the court or jury to
impartially judge a case." Pumphrey v. Thompson Tool Co., 62 F.3d 1128, 1130 (9th
Cir.1995); see also Weese v. Schukman, 98 F.3d 542, 553 (10th Cir.1996) (noting that
"fraud on the court should embrace only that species of fraud which does or attempts to,
subvert the integrity of the court itself, or is a fraud perpetrated by officers of the court")
(citation omitted); Kerwit Med. Prods., Inc. v. N. & H. Instruments, Inc., 616 F.2d 833,
25
CAL. CCP. CODE §699.510
21
In order to meet the standard for proof of fraud upon the court, courts have
concluded that there must be: (1) an intentional fraud; (2) by an officer of the court; (3)
which is directed at the court itself; and (4) in fact deceives the court. Herring v. U.S.
facts were misrepresented to the court that led the court to believe the court had quasi in
rem jurisdiction [June 14, 2010 NSI Ex Parte Application to Immediately Intervene,
pg.6@21-25]27. The Court relied upon the assertions made by DSH and their attorneys,
and rulings were obtained in favor of the opposition because of that fact.
Further, the court itself appears to have participated in the fraud by the comments
made to allow Blacksburg, who is also an attorney/officer of the court, to convert to his
26
Other United States Courts of Appeals expressly require that fraud upon the court must
involve an officer of the court. See Geo. P. Reintjes Co. v. Riley Stoker Corp., 71 F.3d
44, 48 (1st Cir.1995); Demjanjuk, 10 F.3d at 348. The Ninth Circuit noted that "one
species of fraud upon the court occurs when an `officer of the court' perpetrates fraud
affecting the ability of the court or jury to impartially judge a case." Pumphrey v.
Thompson Tool Co., 62 F.3d 1128, 1130 (9th Cir.1995); see also Weese v. Schukman,
98 F.3d 542, 553 (10th Cir.1996) (noting that "fraud on the court should embrace only
that species of fraud which does or attempts to, subvert the integrity of the court itself, or
is a fraud perpetrated by officers of the court") (citation omitted); Kerwit Med. Prods.,
Inc. v. N. & H. Instruments, Inc., 616 F.2d 833, 837 (11th Cir.1980) (same).
27
The Docket does not reflect the documents individually.
22
own name, and keep many domain names belonging to Mr. Zuccarini, and obtained by
Blacksburg’s having committed fraud by misusing the Court’s Order and directing it to
parties not within this country. The court agreed, that the court did not have jurisdiction
to Order an entity outside of the country to do anything, but since it had been done,
D. CONVERSION
“California law, despite recognizing that domain names are intangible personal
property subject to a common law action for conversion, see Kremen, 337 F.3d at 1024,
does not authorize statutory turnover of domain names pursuant to the article governing
judgment debtor examinations, see Palacio Del Mar Homeowners Ass'n, Inc. v.
McMahon, 95 Cal. Rptr. 3d 445, 447 (Ct. App. 2009)” CRS Recovery, Inc. v Laxton.
name, and keeping many domain names belonging to Mr. Zuccarini, obtained by
Blacksburg’s having committed fraud by misusing the Court’s Order and directing it to
parties not within this country. The court agreed, it did not have jurisdiction to Order an
California seeks to protect the intangible property rights of the owners of domain names,
23
exclusive vehicle to market products and ideas." See Patrick T. Clendenen et al., Domain
Names as Property, in 1 Internet Law and Practice § 17:1, at 17-3 (2009). A domain
name is intangible property, subject to an action for conversion under California law.
tribunal in both civil and criminal cases.” This requirement of neutrality in adjudicative
proceedings safeguards the two central concerns of procedural due process, the
While DSH argued that the domain names may have a legitimate purpose, which
the district court obviously believed, or ignored the arguments against, the fact remains
that, not only the FTC, but the 3rd Circuit Court of Appeals agreed, that “because of the
inherent nature of the domain names as misspellings and variations of other domain
24
names, there can be no legitimate use…can only do one thing, that is to redirect Internet
consumers through Internet navigational protocol away from their intended destinations.”
Further for the Appellees to claim that the very domain names that are to be
auctioned off will be bought by someone in good faith, and will not be used for
December 21, 2006, the FTC filed in the Eastern District of Pennsylvania
cv-04854-BMS), on page 8:
domain names”, which the Mr. Zuccarini included in the brief to the district court for the
On September 25, 2001 the FTC filed in the Eastern District of Pennsylvania,
against Zuccarini, for the use of misspellings and variations of domain names used to
redirect Internet consumers away from their intended destinations. On page 18, the FTC
stated:
The district court in the present action, totally disregarded rulings of the
Pennsylvania District Court, refusing to give the ruling full faith and credit. In essence,
holding that court’s ruling void. In that case, this Court must overrule the Pennsylvania
Court’s Judgment. One of the rulings must be set aside, if both are allowed to stand, it
would result in manifest injustice to Mr. Zuccarini and grossly violate his rights to due
F. PRELIMINARY INJUNCTION
This Court has jurisdiction to review the denial of a preliminary injunction. See 28
U.S.C. Sec. 1292(a)(1). The order denying preliminary injunctive relief is reviewed to
determine whether the district court abused its discretion or based its decision on an
erroneous legal standard or clearly erroneous findings of fact. Miller ex. rel. NLRB v.
California Pacific Med. Ctr., 19 F.3d 449, 455 (9th Cir. 1994) (en banc); Stanley v.
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Both Plaintiff and Defendant moved for Emergency Injunctions, which the court
denied. Mr. Zuccarini had filed also for a Rule 60(b) Motion to set aside which too was
denied. DSH further neglects to state that Blacksburg illegally converted to his own
name, Defendant’s Domain Names that were registered in Europe and this Court
admitted to lack jurisdiction over; that Blacksburg had already cost Defendant around
Eighty Thousand Dollars ($80,000) toward the alleged judgment and the tax debt.
According to CA code, the Court is supposed to see to it that the Receiver deposits
enough security into the Court, to cover just this sort of incident. Defendant OBJECTS
to the missing Eighty Thousand Dollars ($80,000); this Court should have already sua
sponte made arrangements for either Blacksburg, NameJet, or NSI to cover the amount
Further, the alleged judgment against Mr. Zuccarini was a money judgment;
neither Office Depot, nor DSH had ever sought “attachment or any other procedure to
attach” to Zuccarini’s domain names. Shaffer v. Heitner, 433 U.S. 186 (1977); the
Shaffer court had the property returned”. In “order to justify an exercise of jurisdiction
in rem, the basis for jurisdiction must be sufficient to justify exercising ‘jurisdiction over
28
On would presume that DSH had posted a bond for Blacksburg as they must, CA Civil
Procedure §566 (If a receiver is appointed…the court, before making the Order, must
require from the applicant an undertaking in an amount to be fixed by the court, to the
effect that the applicant will pay to the defendant all damages the defendant may sustain
by reason of appointment of receiver and the entry by the receiver upon the duties, in
case the applicant shall have procured the appointment wrongfully, maliciously or
without sufficient cause.”)
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the interests of persons in a thing.’” “The standard for determining whether an exercise of
jurisdiction over the interests of person is consistent with the Due Process Clause, is the
U.S. 207; the presence of property alone would not support the State’s jurisdiction. If
those other ties did not exist…could not be brought in that forum” Shaffer @209.
The Shaffer court on page 215 went on “But we have rejected… ‘[The State] does not
($70,000.00) annually should not be sold, they should be allowed to continue creating
revenue, and that would make it possible to have the alleged Office Depot judgment
satisfied. With the Eighty Thousand Dollars Blacksburg lost, and the Seventy Thousand
Dollars that the Domain Names created last year, the total comes to ONE HUNDRED
logic behind auctioning the domain names; in less than six months, the alleged judgment
will be satisfied, unless Blacksburg or another party causes another great loss and injury.
Zuccarini showed that he had suffered injury, that he was not being afforded the
fair and impartial tribunal that he is guaranteed by two Constitutions and numerous state
and federal laws; he has continually been treated differently than others in the same or
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similar circumstance (disparate treatment) in violation of his Fourteenth Amendment
Rights to Due Process of law in front of an unbiased tribunal, and Equal Protection.
Appellant John Zuccarini, has made meritorious showing of this Court should
overturn it’s previous ruling, reverse the trial court’s ruling and remand with directions
that would be consistent with state and federal laws, regulations and procedures; and
directions to the trial Court to have returned to Mr. Zuccarini the Domain Names, the
Court lacked jurisdiction over; and direction to have Blacksburg’s Bond satisfy the
Eighty Thousand Dollars ($80,000.00) loss that should have been applied toward the
alleged judgment against Mr. Zuccarini; this Court should further direct the trial court
that with One Hundred Fifty Thousand Dollars ($150,000.00) of the less than One
Names that have income of almost Seventy Thousand Dollars ($70,000.00) annually, is
not justified. Blacksburg is in contempt of the Court’s Order to provide full accountings
of income from the Domain Names. This Court should direct the trial Court on that
matter as well.
Signed: ____________________________
JOHN ZUCCARINI, Pro Se
29
190 SW Kanner Highway
Stuart, FL 34997
(772) 631-3887
1. This Brief complies with the type-volume limitation of Fed. R. App. P. 32(a)
(7)(B) because this Brief contains 6717 words, excluding the parts of the
2. This Brief complies with the typeface requirements of Fed. R. App. P. 32(a)
(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has
been prepared using Microsoft Office, using 14 Point Times New Roman.
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This _____ day of August, 2010
___________________________
John Zuccarini, Pro Se
CERTIFICATE OF SERVICE
I certify that I have this ___ day of August, 2010 served a true and correct copy of
Appellant’s Brief and Record Excerpts, and any attachments, by First Class mail,
as listed below.
_________________________
John Zuccarini
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