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 DEFENDANT DOMAINS BY PROXY, LLC’S OPPOSITION TO PLAINTIFF LARRY G. PHILPOT’S 

MOTION FOR ENTRY OF DEFAULT 

Paula L. Zecchini, AZ Bar No. 031880

COZEN O’CONNOR 

999 Third Avenue, Suite 1900 

Seattle, WA 98104 

Telephone: (206) 340-1000 

Facsimile: (206) 621-8783 

Email: pzecchini@cozen.com 

Attorneys for Defendant 

DOMAINS BY PROXY, LLC, erroneously 

sued as DOMAINS BY PROXY, INC. 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

LARRY G. PHILPOT, an individual,

Plaintiff, 

v. 

DOMAINS BY PROXY, INC., a 

Delaware Corporation, 

Defendant. 

Case No.: 2:17-mc-00069-DGC

DEFENDANT DOMAINS BY 

PROXY, LLC’S OPPOSITION 

TO PLAINTIFF LARRY G. 

PHILPOT’S MOTION FOR 

ENTRY OF DEFAULT 

 

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DEFENDANT DOMAINS BY PROXY, LLC’S OPPOSITION TO PLAINTIFF LARRY G. PHILPOT’S 

MOTION FOR ENTRY OF DEFAULT 

I. INTRODUCTION 

Plaintiff Larry G. Philpot’s (“Plaintiff”) Motion for Entry of Default (Dkt. No. 2) (the 

“Motion”) must be denied, because it is procedurally improper and inapplicable, and it is moot. 

First, Plaintiff’s Motion is improper because Plaintiff filed no complaint in this action, and 

asserted no claim against Defendant Domains by Proxy, LLC (“DBP”). Instead, Plaintiff 

initiated this miscellaneous action under the Digital Millennium Copyright Act (“DMCA”) 

pursuant to 17 U.S.C. § 512(h), in order to have “the Clerk issue a subpoena to [DBP] to 

identify the actual registrant of certain domain names,” which Plaintiff alleges are violating 

his copyright protected works. Therefore, DBP could not be in default, because there is no 

pleading to which it needed to respond. Second, Plaintiff’s Motion should be denied as moot 

because (a) Plaintiff failed to certify compliance with Local Civil Rule 7-2(j), and (b) DBP 

fully responded to the subpoena, and produced the information that Plaintiff sought. 

Therefore, any sanction against DBP would be inappropriate, as there is no order with which 

the Court needs to coerce DBP’s compliance. Plaintiff’s Motion must be denied. 

II. FACTUAL BACKGROUND 

A. Background on DBP 

DBP is a domain name privacy service that provides customers the ability to keep their 

information private when they register a domain name. Declaration of Chris Boyle (“Boyle 

Decl.”) at ¶ 3. Websites are typically accessed by a domain name, such as “google.com” or 

“azd.uscourts.gov.” Id. at ¶ 4. To obtain a domain name, a registrant must register the domain 

name with a registrar, like GoDaddy.com, LLC (“GoDaddy”). Id. Domain names are 

assigned on a first-come, first-served basis. Id. 

Pursuant to the requirements set out by the Internet Corporation of Assigned Names 

and Numbers (“ICANN”), the organization responsible for governing domain names, domain 

name registrars must contribute registration information to the WHOIS database. Id. at ¶ 

5. The WHOIS database provides public access to information regarding all registered 

domains, including the registrant’s name, address, phone number, and e-mail 

address. Id. Given the highly public nature of the registrant’s personal contact information, 

Case 2:17-mc-00069-DGC Document 7 Filed 03/05/18 Page 2 of 10
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DEFENDANT DOMAINS BY PROXY, LLC’S OPPOSITION TO PLAINTIFF LARRY G. PHILPOT’S 

MOTION FOR ENTRY OF DEFAULT 

DBP offers customers a way to protect their privacy, by displaying its contact information in 

the WHOIS database instead of the domain name registrant. Id. 

DBP is not a domain name registrar. It offers domain privacy services through partner 

domain registrars such as GoDaddy. Id. at ¶ 6. The domain name registrant registers his or 

her domain name, and then purchases DBP’s privacy services as an add-on service, if 

desired. Id. DBP’s sole role is to allow the domain name registrant to use DBP’s contact 

information within the WHOIS database, and to forward any communications by third parties 

to the domain name registrant. Id. at ¶ 7. 

While using DBP’s privacy service, the domain name registrant maintains custody, 

ownership, and complete control over the domain at all times. Id. This information is made 

clear not only to DBP’s customers prior to their purchase of privacy services, but to the public 

at large via DBP’s website, www.domainsbyproxy.com: 

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DEFENDANT DOMAINS BY PROXY, LLC’S OPPOSITION TO PLAINTIFF LARRY G. PHILPOT’S 

MOTION FOR ENTRY OF DEFAULT 

DBP, www.domainsbyproxy.com (last visited on March 5, 2018). Id. DBP does not own, 

operate, or otherwise have any interest in or affiliation with any of the domain names belonging 

to its privacy service customers, nor any websites resolving therefrom. Id. at ¶¶ 8-9. 

B. Plaintiff’s Miscellaneous Action 

Plaintiff alleges that he is a photographer and the owner of copyrights to several 

pictorial works at issue in this action. See Dkt. No. 1, Declaration of Larry Philpot, at ¶¶ 1-2. 

“As a part of his work, [P]laintiff photographs musical artists in concert.” Philpot v. Media 

Research Center Inc., No. 1:17-cv-822, 2018 WL 339142, at *1 (E.D. Va. Jan 8, 2018). 

On December 13, 2017, Plaintiff initiated this miscellaneous action by filing his 

declaration in support of his “application pursuant to 17 U.S.C. § 512(h) for the Clerk to issue 

a subpoena to [DBP] to identify the actual registrant of certain domain names.” Dkt. No. 1 ¶ 

1. Plaintiff alleged that the domain names at issue were “hosting images that infringe[] one of 

[Plaintiff’s] copyrighted works.” Id. ¶ 3. Plaintiff further alleged that the registrants of the 

domain names at issue used DBP’s privacy services. Id. ¶ 12. Plaintiff made clear that the 

only purpose of the subpoena Plaintiff sought was “to obtain the identity of the infringer.” Id.

¶ 13. The Clerk issued the subpoena. See Dkt. 1-1. 

C. Plaintiff’s Motion for Default 

On February 16, 2018, Plaintiff filed the Motion. Plaintiff describes the abovereferenced subpoena application as “a Complaint against [DBP] alleging copyright 

infringement of certain photographs.” Dkt. No. 2, at 1. However, Plaintiff filed no complaint 

in this action, and has asserted no claims against DBP. Plaintiff again acknowledged that the 

only purpose of the subpoena was to obtain the contact information for the “true owner” of the 

domain names at issue “for prosecution of Copyright infringement.” Id. Plaintiff contended 

that DBP “failed to answer [Plaintiff’s] claims within the time period required by the Federal 

Rules of Civil Procedure.” Id. at 2. As a result, Plaintiff “requests that the Court enter default 

against [DBP] and deem [DBP] as the owner” of the domains at issue. Id.

On or about February 27, 2018, DBP responded to Plaintiff’s subpoena, and provided 

the information that the subpoena sought for all but one domain. See Declaration of Paula L. 

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DEFENDANT DOMAINS BY PROXY, LLC’S OPPOSITION TO PLAINTIFF LARRY G. PHILPOT’S 

MOTION FOR ENTRY OF DEFAULT 

Zecchini (“Zecchini Decl.”) at ¶ 3, Ex. A, Letter Dated February 27, 2018.1 With regard to 

the domain for which DBP withheld the requested information from its initial production of 

February 27, 2018, such information was withheld because the customer who owned the 

domain at issue advised DBP that a motion to quash the subpoena would be forthcoming. Id.

at ¶ 4. As of March 5, 2018, no such motion to quash appeared on the docket. Id. As a result, 

DBP provided Plaintiff with the information that the subpoena sought for the last domain 

identified in the subpoena. Id. at ¶ 4, Ex. B, Letter Dated March 5, 2018. 

III. LEGAL STANDARD 

The DMCA authorizes “[a] copyright owner . . . [to] request the clerk of any United 

States district court to issue a subpoena to a service provider for identification of an alleged 

infringer.” 17 U.S.C. § 512(h)(1). The sole purpose of this subpoena is to “identify a copyright 

infringer.” Signature Management Team, LLC v. Automattic, Inc., 941 F. Supp. 2d 1145, 1152 

(N.D. Cal. 2013). If the request meets the requirements of Section 512(h), “the clerk shall 

expeditiously issue and sign the proposed subpoena.” 17 U.S.C. § 512(h)(4). Once the service 

provider receives the subpoena, “the service provider shall expeditiously disclose to the 

copyright owner or person authorized by the copyright owner the information required by the 

subpoena.” 17 U.S.C. § 512(h)(5). A party seeking to enforce a DMCA subpoena must follow 

the procedures set forth in Rule 45 of the Federal Rules of Civil Procedure (“Rule 45”). See

17 U.S.C. § 512(h)(6) (“[T]he remedies for noncompliance with the subpoena[] shall be 

governed to the greatest extent practicable by those provisions of the Federal Rules of Civil 

Procedure governing the issuance, service, and enforcement of a subpoena duces tecum.”). 

See also In re: Verizon Internet Servs., Inc., 257 F. Supp. 2d 244, 250-251 (D.D.C. 2003), 

rev’d on other grounds sub nom Recording Ind. Assoc. of America, Inc. v. Verizon Internet 

Servs., Inc., 351 F.3d 1229 (D.C. Cir. 2003) (“[T]he procedures in Fed.R.Civ.P. 45 governing 

enforcement of a subpoena duces tecum are applicable to a § 512(h) subpoena . . . .”). 

 

1

 As DBP does not believe this issue to be in dispute, and because the actual document 

production includes private information of DBP customers, DBP has attached only the cover 

letter associated with its response to Plaintiff’s subpoena. 

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DEFENDANT DOMAINS BY PROXY, LLC’S OPPOSITION TO PLAINTIFF LARRY G. PHILPOT’S 

MOTION FOR ENTRY OF DEFAULT 

Rule 45 sets forth the procedure and potential consequences for noncompliance with a 

subpoena. A court “may hold in contempt a person who, having been served, fails without 

adequate excuse to obey the subpoena or an order related to it.” Fed. R. Civ. P. 45(g). The 

advisory notes make clear that “it would be rare for a court to use contempt sanctions without 

first ordering compliance with a subpoena.” Id. 2013 Committee Note. A civil contempt 

sanction is designed “to compel obedience to a court order or to compensate the contemnor’s 

adversary for the injuries which result from the noncompliance.” Martinez v. City of Avondale, 

No. CV-12-1837-PHX-LOA, 2013 WL 5705291, at *3 (D. Ariz. Oct. 18, 2013). 

A party seeking a contempt order must first seek “an order to show cause why a 

contempt order should not be issued.” Dallas Buyers Club, LLC v. Doe-71-237-192-131, No. 

3:15-cv-731-AC, 2016 WL 96152, at *2 (D. Or. Jan. 7, 2016) (citing Alcade v. NAC Real 

Estate Invs. & Assignments, Inc., 580 F. Supp. 2d 969, 971 (C.D. Cal. 2008)). Then, the 

moving party must prove that “the non-moving party violated a court order by clear and 

convincing evidence.” Id. (citing FTC v. Enforma Natural Prods., Inc., 362 F.3d 1204, 1211 

(9th Cir. 2004)). Finally, any contempt order must be accompanied by a ‘purge’ condition, 

meaning, it must give the contemnor an opportunity to comply with the order before payment 

of the fine or other sanction becomes due.” Martinez v. City of Pittsburgh, No. C 11-01017 

SBA (LB), 2012 WL 699462, at *3 (N.D. Cal. Mar. 1, 2012) (citing De Parcq v. United States 

District Court for Southern Dist. of Iowa, 235 F.2d 692, 699 (8th Cir. 1956)). 

Furthermore, the Local Rules mandate that the parties engage in a conferral process 

before filing any discovery motion, and submit with any discovery motion a certification 

setting forth those efforts. See LRCiv 7-2(j) (“No discovery motion will be considered or 

decided unless a statement of moving counsel is attached thereto certifying that after personal 

consultation and sincere efforts to do so, counsel have been unable to resolve the matter.”). 

IV. PLAINTIFF’S MOTION FOR ENTRY OF DEFAULT MUST BE DENIED 

A. The Motion is Procedurally Improper and Inapplicable to a Subpoena 

Plaintiff’s Motion should be denied, because Plaintiff filed no complaint in this matter, 

and asserted no claims against DBP. Therefore, there is no pleading to which DBP could 

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DEFENDANT DOMAINS BY PROXY, LLC’S OPPOSITION TO PLAINTIFF LARRY G. PHILPOT’S 

MOTION FOR ENTRY OF DEFAULT 

respond. Rule 55(a) of the Federal Rules of Civil Procedure provides that “the clerk must 

enter the party’s default” when “a party against whom a judgment for affirmative relief is 

sought has failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a). However, if there is 

no complaint or other pleading to which a party must respond, there is no basis to find a party 

in default. See Norsyn, Inc. v. Desai, 351 F.3d 825, 828 (8th Cir. 2003) (“If the party against 

whom a default judgment is sought has incurred no obligation under the Federal Rules of Civil 

Procedure to ‘plead or otherwise defend’ the action, the district court does not abuse its 

discretion in refusing to grant such relief.”).2

 

Here, there was no pleading to which DBP could defend or respond, because Plaintiff 

never filed a complaint or asserted claims against DBP in this action. Although Plaintiff 

alleges that on December 13, 2017, he “filed a Complaint against [DBP] alleging copyright 

infringement of certain photographs,” Dkt. No. 2 at 1, Plaintiff never filed a complaint in this 

action. Rather, Plaintiff filed a request for a subpoena pursuant to 17 U.S.C. § 512(h). See

Dkt. No. 1. Any alleged noncompliance with that subpoena is governed by “those provisions 

of the Federal Rules of Civil Procedure governing the . . . enforcement of a subpoena duces 

tecum.” 17 U.S.C. § 512(h)(6). See also In re: Verizon Internet Servs., Inc., 257 F. Supp. 2d 

at 250-251. Rules 12 and 55 of the Federal Rules of Civil Procedure simply do not apply to 

this action, and there is no lawful basis for the entry of default against DBP. 

B. Plaintiff’s Motion Should Be Denied as Moot, Because DBP Fully 

Responded to the Subpoena. 

Even if the Court were to construe Plaintiff’s Motion as a Request for Sanctions under 

Rule 45(g) of the Federal Rules of Civil Procedure for failure to comply with a subpeona, 

Plaintiff’s Motion should be denied as moot because (1) DBP fully responded to the subpoena, 

and (2) Plaintiff failed to comply with the conferral requirement in Local Civil Rule 7-2(j). 

The Federal Rules of Civil Procedure authorize a court to “hold in contempt” a person 

who fails to respond to a subpoena. Fed. R. Civ. P. 45(g). However, that penalty is “rare” 

 

2

 To date, research has revealed no decision applying Rule 12 or Rule 55 of the Federal 

Rules of Civil Procedure to a DMCA subpoena issued pursuant to 17 U.S.C. § 512(h). 

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DEFENDANT DOMAINS BY PROXY, LLC’S OPPOSITION TO PLAINTIFF LARRY G. PHILPOT’S 

MOTION FOR ENTRY OF DEFAULT 

unless a court first orders compliance with a subpoena. Id. 2013 Committee Note. See also 

Dallas Buyers Club, LLC, 2016 WL 96152, at *2 (a party seeking a contempt order must first 

seek “an order to show cause why a contempt order should not be issued.”). Here, Plaintiff 

has failed to satisfy any, much less all, of the procedural prerequisites for the issuance of a 

contempt order. 

First, Plaintiff failed to comply with Local Civil Rule 7-2(j), which provides that “[n]o 

discovery motion will be considered or decided unless a statement of moving counsel is 

attached thereto certifying that after personal consultation and sincere efforts to do so, counsel 

have been unable to satisfactorily resolve the matter.” When a party fails to include this 

required certification, courts will not consider the discovery motion. See, e.g. Robinson v. 

Hall, No. CV-12-166-PHX-FJM (LOA), 2013 WL 791268, at *1 (D. Ariz. Mar. 4, 2013); 

Krueger Investments, LLC v. Cardinal Health 110, Inc., No. CV 12-0618-PHX-JAT, 2012 

WL 3264524, at *3 (D. Ariz. Aug. 9, 2012); Bustamante v. Graco, Inc., No. CV 03-182 TUC 

JMR, 2005 WL 5976149, at *1 (D. Ariz. Dec. 1, 2005). Plaintiff’s failure to include this 

required certification, much less engage in this required conferral process, warrants denying 

the Motion. 

Second, there are no grounds to hold DBP in contempt, because DBP has fully 

responded to the subpoena. See Zecchini Decl. at ¶¶ 3-4, Exs. A-B. As a result, Plaintiff 

cannot meet his burden of showing that DBP violated any court order “by clear and convincing 

evidence.” Martinez v. City of Avondale, 2013 WL 5705291, at *4. Moreover, there is simply 

no court order with which compliance must be compelled. See Int’l Union, United Mine 

Workers of America v. Bagwell, 512 U.S. 821, 826-827 (1994) (“[C]ivil contempt sanctions, 

or those penalties designed to compel future compliance with a court order, are considered to 

be coercive and avoidable through obedience . . . .”); Martinez v. City of Pittsburgh, 2012 WL 

699462, at *3 (“A civil contempt order must be accompanied by a ‘purge’ condition, meaning, 

it must give the contemnor an opportunity to comply with the order before payment of the fine 

or other sanction becomes due.”). In light of the fact that any civil contempt sanction must be 

“the minimum sanction necessary to obtain compliance,” see Whittaker Corp. v. Execuair 

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DEFENDANT DOMAINS BY PROXY, LLC’S OPPOSITION TO PLAINTIFF LARRY G. PHILPOT’S 

MOTION FOR ENTRY OF DEFAULT 

Corp., 953 F.2d 510, 517 (9th Cir. 1992), sanctions are inappropriate when a person has 

complied with a subpoena. As DBP fully responded to the subpoena, there are no grounds to 

issue contempt sanctions against DBP. 

V. CONCLUSION

For the reasons set forth herein, DBP respectfully requests that the Court deny 

Plaintiff’s Motion for Entry of Default. 

Dated: March 5, 2018 COZEN O’CONNOR 

Paula L. Zecchini 

By: s/ Paula L. Zecchini

Paula L. Zecchini

Attorneys for Defendant

DOMAINS BY PROXY, LLC erroneously 

sued as DOMAINS BY PROXY, INC.

 

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DEFENDANT DOMAINS BY PROXY, LLC’S OPPOSITION TO PLAINTIFF LARRY G. PHILPOT’S 

MOTION FOR ENTRY OF DEFAULT 

CERTIFICATE OF SERVICE

The undersigned hereby certifies, under penalty of perjury under the laws of the State 

of Arizona that I electronically filed the foregoing document with the Clerk of the Court using 

the CM/ECF system on March 5, 2018. On that same date, I served a true and correct copy of 

the foregoing document by First Class United States Mail on: 

Larry G. Philpot

8125 Halyard Way 

Indianapolis, IN 46236 

Pro se Plaintiff 

SIGNED AND DATED this 5th day of March, 2018 at Seattle, Washington. 

COZEN O'CONNOR 

By: s/ Paula Zecchini Paula Zecchini 

Case 2:17-mc-00069-DGC Document 7 Filed 03/05/18 Page 10 of 10