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between the parties and the weighing of the public interest. As the Defendant has
demonstrated that the Plaintiff cannot meet the requirement of the first two prongs, these
factors are somewhat superfluous. This Court has already noted that the public interest is
not strongly implicated. However, the balancing of the equities tips squarely in the
Defendant’s favor. The Defendant has demonstrated how the requested relief is either
unnecessary or irrelevant to the stated goal of preventing the secreting or dissipating of
assets, so that AMA might recover a money judgment. Accordingly, there is no need for
the equitable relief of this court.
CONCLUSION

Based on the foregoing, Defendant Marcin Wanat respectfully requests that this
Court dismiss the Plaintiff's complaint against him for lack of personal jurisdiction, as
well as dissolve the TRO, and deny the Plaintiff's Motion for Injunctive Relief.
DATED this 30th day of November 2015.

Medrala, Prof. LLC

JAKUB P. MEDRALA, ESQ.
Pro Hac Vice

SEAN L. AFRICK, ESQ.

Pro Hac Vice

1091 S. Cimarron Road, Suite #A-1
Las Vegas, Nevada 89145

(702) 475-8884

(702) 938-8625 Facsimile

Attorneys for Defendant Marcin Wanat

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MOTION TO DISMISS AND RESPONSE TO ORDER TO SHOW CAUSE



eo ew 2 A wh Bw RN =

EXHIBIT D

GODADDY REGISTRATION AGREEMENT



1129/2015, Legal Agreement.
iii. Have none of the messages forwarded.

As with all communications, You agree to waive any and all claims arising from
Your failure to receive email directed to Your domain name but not forwarded to
You by DBP.

c. Notifications Regarding Correspondence and Your Obligation to
Respond

When DBP receives certified or traceable courier mail or legal notices addressed
to Your domain name, in most cases, DBP will attempt to forward the mail to
you via email. If You do not respond to the DBP email and/or the
correspondence DBP has received regarding Your domain name registration
concems a dispute of any kind or otherwise requires immediate disposition,
DBP may immediately reveal Your identity and/or cancel the DBP private
registration service regarding either the domain name registration(s) in
question. This means the Whois directory will revert to displaying Your name,
postal address, email address and phone number that you provided to DBP.

d. Additional Administrative Fees

DBP reserves the right to charge You reasonable “administrative fees" or
“processing fees” for (i) tasks DBP may perform outside the normal scope of
its Services, (ii) additional time and/or costs DBP may incur in providing its
Services, and/or (iii) Your non-compliance with the Agreement (as determined by
DBP in its sole and absolute discretion). Typical administrative or processing
fee scenarios include, but are not limited to, (i) customer service issues
that require additional personal time and attention; (ii) disputes that require
accounting or legal services, whether performed by DBP staff or by outside
firms retained by DBP; (iii) recouping any and all costs and fees, including the
cost of Services, incurred by DBP as the result of chargebacks or other
payment disputes brought by You, Your bank or Payment Method processor.
These administrative fees or processing fees will be billed to the Payment
Method You have on file with Your Registrar.

You agree to waive the right to trial by jury in any proceeding that takes place
relating to or arising out of this Agreement.

6. LIMITATIONS OF LIABILITY

UNDER NO CIRCUMSTANCES SHALL DBP BE LIABLE FOR ANY
DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR
CONSEQUENTIAL DAMAGES FOR ANY REASON WHATSOEVER
RELATED TO THIS AGREEMENT, YOUR DOMAIN NAME
REGISTRATION, DBP'S SERVICES, USE OR INABILITY TO USE THE
OBP WEBSITE OR THE MATERIALS AND CONTENT OF THE WEBSITE
OR ANY OTHER WEBSITES LINKED TO THE DBP WEBSITE OR YOUR
PROVISION OF ANY PERSONALLY IDENTIFIABLE INFORMATION TO
DBP OR ANY THIRD PARTY. THIS LIMITATION APPLIES REGARDLESS
OF WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT,
TORT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER
BASIS, EVEN IF DBP HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY
FORESEEABLE. BECAUSE CERTAIN JURISDICTIONS DO NOT PERMIT
THE LIMITATION OR ELIMINATION OF LIABILITY FOR CONSEQUENTIAL
OR INCIDENTAL DAMAGES, DBP'S LIABILITY IN SUCH JURISDICTIONS
SHALL BE LIMITED TO THE SMALLEST AMOUNT PERMITTED BY LAW.

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12912015 Legal Agreement
4. UP TO DATE INFORMATION; USE OF INFORMATION AND
EXPIRATION

You agree to notify GoDaddy within five (5) business days when any of the
information you provided as part of the application and/or registration process
changes. It is your responsibility to keep this information in a current and
accurate status. Failure by you, for whatever reason, to provide GoDaddy with
accurate and reliable information on an initial and continual basis, shall be
considered to be a material breach of this Agreement and a basis for suspension
and/or cancellation of the domain name. Failure by you, for whatever reason, to
respond within five (5) business days to any inquiries made by GoDaddy to
determine the validity of information provided by you, shall also be considered to
be a material breach of this Agreement and a basis for suspension and/or
cancellation of the domain name. You agree to retain a copy for your record of
the receipt for purchase of your domain name.

You agree that for each domain name registered by you, the following contact
data is required: postal address, email address, telephone number, and if
available, a facsimile number for the Registered Name Holder and, if different
from the Registered Name Holder, the same contact information for, a technical
contact, an administrative contact and a billing contact.

You acknowledge and agree that domain name registration requires that this
contact information, in whole or in part, be shared with the registry operator, for
their use, copying, distribution, publication, modification and other processing
for (among other uses in accordance with our Privacy Policy) the purpose of
administration of the domain name registration, which may require such
information be transferred back and forth across intemational borders, to and
from the U.S. to the EU, for example. As required by ICANN, this information
must also be made publicly available by means of Whois, and that the registry
operator may also be required to make this information publicly available by
Whois. Both GoDaddy and the registry operator may be required to archive this
information with a third-party escrow service. You hereby consent and give
permission for all such requirements and disclosures. Further, you represent and
warrant that, if you are providing information about a third party, you have
notified the third party of the disclosure and the purpose for the disclosure and
you have obtained the third party's consent to such disclosure. Registrar will
not process data in a way that is incompatible with this Agreement. Registrar
will take reasonable precautions to protect data from loss or misuse.

You agree that for each domain name registered by you the following information
will be made publicly available in the Whois directory as determined by ICANN
Policy and may be sold in bulk as set forth in the ICANN agreement:

¢ The domain name;

« Your name and postal address;

« The name, email address, postal address, voice and fax numbers
for technical and administrative contacts;

* The Intemet protocol numbers for the primary and secondary name
servers;

¢ The corresponding names of the name servers; and

The original date of registration and expiration date.

« Name of primary name server and secondary name server.
¢ Identity of the registrar.

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Moreover, Arizona in particular has no interest in adjudicating the dispute. The
Plaintiff is a Nevada LLC, who apparently has little or no connection with Arizona, and
neither Godaddy nor any other Arizona corporation is a party to this action. In addition,
because the alleged infringements occurred on a website registered in Germany, most
likely it is European law that is applicable in this case, not the U.S. Copyright Act. See
Restatement (Second) of Conflicts of Laws § 6 0 Choice-Of-Law Principles.

Ill. Extraordinary Relief Should Not Be Granted Because the Factors for a
Preliminary Injunction Do Not Weigh in the Plaintiff’s Favor.

“A preliminary injunction is an extraordinary remedy never awarded as of right.”
Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008). In order for a
preliminary injunction to issue, the “plaintiff seeking a preliminary injunction must
establish [(1)} that he is likely to succeed on the merits, ((2)] that he is likely to suffer
irreparable harm in the absence of preliminary relief, [(3)] that the balance of equities
tips in his favor, and [(4)] that an injunction is in the public interest.” Id.

a. The Court’s Lack of Personal Jurisdiction Over Wanat is Fatal to the
Plaintiff’s Request for Relief.

The Defendant has demonstrated that the Plaintiff cannot meet its burden of
establishing jurisdiction over the Defendant. As the Plaintiff cannot obtain jurisdiction
over the Defendant, the case is not likely to succeed on the merits, and injunctive relief
should be denied. Inter123 Corp. v. Ghaith, No. 2:14-cv-00463 (D. Ariz. April 4, 2014)
(finding that the Plaintiff was unlikely to succeed on the merits, where no personal
jurisdiction existed). Further, “[a] federal court may [only] issue an injunction if it has

4
MOTION TO DISMISS AND RESPONSE TO ORDER TO SHOW CAUSE



11/29/2015,

Legal Agreement

Selling Domain Names. As a Seller, You are obligated to complete the
transaction if the Buyer commits to purchase the domain. By receiving
payments through the Service, You appoint us as Your Agent to receive and
deposit funds on Your behalf. You must, at the time of listing of Your domain
name, establish a payee account. Payments for completed domain name sales
will be credited to Your payee account. After a fraud holding period, if no fraud
has been detected, your funds will be paid according to the payment method you
select in your payee account. Typically, payments are made as follows:

Electronic (ACH) — Processed the same day and remitted within two
business days, depending on your financial institution

PayPal® — Processed the same day and remitted within one business day

Good As Gold — Processed the same day and remitted within one
business day

Check — Processed weekly and mailed to you within 9 business days

If you do not have a payee account, we will process payment by check by
default. Beginning January 1, 2013, you will be charged a $25.00 processing fee
for all check payments. You hereby authorize us to initiate and post credit
(positive) entries for payments to the payee account. You understand the
amount initiated and posted to the payee account will represent payment for
domain names sold using the Service, less any applicable fees and/or charge
backs. You hereby authorize us to initiate and post debit (negative) entries to the
payee account to reverse erroneous payments and/or make adjustments to
incorrect payments. The authority granted to us by the payee account owner
herein will remain in full force and effect until we have received written
Notification from the payee account owner that such authority has been revoked,
but in any event, such writing shall be provided in such a manner as to afford us
a reasonable opportunity to act on such revocation, or until we have sent notice
to terminate this Agreement. In the event of a payment charge back, we will
deduct the amount of the payment from Seller's payment method on file. In the
event that chargeback experience is high, as determined by us, we reserve the
tight to hold back twenty percent (20%) of all Seller's payments for ninety (90)
days from the date the payment was to be paid.

Transfer Validation. The transfer validation service is provided to help You
keep Your domain name secure. By choosing to use the service, You are
making an explicit and voluntary request to us to deny all attempts to transfer
Your domain name to another registrar, or to move Your domain name to another
account, unless You verify each request as described herein. You will provide
us with a contact name, phone number and PIN for domain transfer validations.
You will be contacted by us when a domain transfer is requested for a domain
name in Your account. When we receive a transfer request, we will call You to
verify the transfer request. If we cannot reach You with seventy-two (72) hours
of receipt of the transfer request, the transfer will be denied. If You do not
provide the proper PIN, the transfer will be denied. When we receive a change
of account request, we will call You to verify the change request. If we cannot
reach You with seventy-two (72) hours of receipt of the change request, the
change will be denied. If You do not provide the proper PIN, the change will be
denied. Availability of Services are subject to the terms and conditions of this
Agreement and each of our policies and procedures. We shall use commercially
reasonable efforts to attempt to provide certain portions of the Services on a
twenty-four (24) hours a day, seven (7) days a week basis throughout the term
of this Agreement and other portions of the service, during normal business
hours. You acknowledge and agree that from time to time the Services may be

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11/29/2015

Legal Agreement
set forth in subsection (i) above.

v. Monitor your currently registered domain names for changes in
registrar, status, expiration date or name servers at no additional
cost.

vi. Subscribe to Domain Alert Pro which enables you to monitor any
currently registered domain name, regardless of registrar, for
historical tracking of status changes and designation of multiple
email notification addresses.

Ownership Protection. The ownership protection service generally allow You
to: (i) protect against losing a domain name; (ii) disallow the transfer of a domain
name while this Service is active on that name; and (iii) receive an annual
domain name report detailing the status of all domain names protected under
this Service. Subject to applicable rules, domain names can be transferred from
registrar to registrar and from registrant to registrant. However, the Service
protects against and prevent both kinds of transfers. Once You have elected to
purchase the Service for any and all domain names, the automatic renewal
function will be activated for each domain name and those names will not be
transferable until the renewal of the Service. Accordingly, You acknowledge and
agree You have carefully considered the implications accompanying the
purchase of the Service and understand the restrictions the Service will place
upon Your ability to transfer any domain names for which You have purchased
the Service. You further acknowledge and agree any domain name for which
You have purchased the Service will not be transferable for any reason until the
next regularly occurring renewal of such domain name, provided, You have
previously elected to deactivate the Service for that particular domain name,
which deactivation may not occur until the expiration of the current term of the
Service. By way of example and not as a limitation, if You elect to purchase the
Service for a domain name, which You have registered for a period of five (5)
years, the Service will remain active for the same five (5) year period and You
will not be able to engage in any transfer whatsoever of that domain name during
such five (5) year period.

Premium Domain Names.

1. Description of Service. The Premium Domain Name service (“Service”) is
provided to facilitate the buying and selling of currently registered domain
names. We provide a venue and a transaction facilitation process. We are not
an auctioneer or an escrow agent. We are not in custody of all of the domain
names listed on the web site. As result, we have no control over the quality,
safety or legality of the domain names listed. Domain names listed may be
withdrawn at any time by the seller or by us. We act as a transaction facilitator
to help You make and receive payments from third parties. We are not an
escrow agent, rather we act as Your agent based upon Your direction and
requests to use the Services that require us to perform tasks on Your behalf.
We will not use Your funds for its operating expenses or any other corporate
Purposes, and will not voluntarily make funds available to its creditors in the
event of bankruptcy or for any other purpose. You acknowledge we are not a
bank and the Service is a payment processing service rather than a banking
service. You further acknowledge we are not acting as a trustee, fiduciary or
escrow with respect to Your funds. In all transactions, where the domain name
is registered to us, domain names purchased through the Service may not be
transferred away from us to another registrar for a period of sixty (60) days
following the change of ownership date.

2. Your Obligations.

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11/28/2015,

Legal Agreement

application for the domain name with another registrar using the same eligibility
criteria, and the other registrar has rejected the application (if applicable); (d) you
acknowledge and agree that even if the domain name is accepted for
registration, your entitlement to register the domain name may be challenged by
others who claim to have an entitlement to the domain name; and (e) you
acknowledge and agree that the Registry or the registrar can cancel the
registration of the domain name if any of the warranties required are found to be
untrue, incomplete, incorrect or misleading.

Ownership. You acknowledge and agree that registration of a domain name
does not create any proprietary right for you, the registrar, or any other person in
the name used as a domain name or the domain name registration and that the
entry of a domain name in the Registry shall not be construed as evidence or
ownership of the domain name registered as a domain name. You shall not in
any way transfer or purport to transfer a proprietary right in any domain name
registration or grant or purport to grant as security or in any other manner
encumber or purport to encumber a domain name registration.

ICANN Requirements. You agree to comply with the ICANN requirements,
standards, policies, procedures, and practices for which each applicable
Registry Operator has monitoring responsibility in accordance with the Registry
Agreement between ICANN and itself or any other arrangement with ICANN.

Indemnification of Registry. You agree to indemnify, defend and hold harmless
(within 30 days of demand) the Registry Operator and Registry Service Provider
and their subcontractors, subsidiaries, affiliates, divisions, shareholders,
directors, officers, employees, accountants, attomeys, insurers, agents,
predecessors, successors and assigns, from and against any and all claims,
demands, damages, losses, costs, expenses, causes of action or other
liabilities of any kind, whether known or unknown, including reasonable legal and
attomey’'s fees and expenses, in any way arising out of, relating to, or otherwise
in connection with the your domain name registration, including, without
limitation, the use, registration, extension, renewal, deletion, and/or transfer
thereof and/or the violation of any applicable terms or conditions goveming the
registration. You shall not enter into any settlement or compromise of any such
indemnifiable claim without Registrar's or Registry Operators prior written
Consent, which consent shall not be unreasonably withheld, and you agree that
these indemnification obligations shall survive the termination or expiration of the
Agreement for any reason. IN NO EVENT SHALL THE REGISTRY
OPERATOR BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY
DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL,
EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR
GOODWILL, FOR ANY MATTER, WHETHER SUCH LIABILITY IS
ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), BREACH OF WARRANTIES, EITHER EXPRESS OR
IMPLIED, ANY BREACH OF THIS AGREEMENT OR ITS INCORPORATED
AGREEMENTS AND POLICIES YOUR INABILITY TO USE THE DOMAIN
NAME, YOUR LOSS OF DATA OR FILES OR OTHERWISE, EVEN IF THE
REGISTRY OPERATOR HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.

Regulated TLDs. For domain name registration in any “Regulated” TLD, you
acknowledge and agree your registration is subject to the following additional
requirements: (a) comply with all applicable laws, including those that relate to
privacy, data collection, consumer protection (including in relation to misleading
and deceptive conduct), fair lending, debt collection, organic farming, disclosure
of data, and financial disclosures; (b) if you collect and maintain sensitive health

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ccTLD you apply for. You further agree to be bound by any registry rules,
policies, and agreements for that particular ccTLD. These may include, but are
not limited to, agreeing to indemnify the ccTLD provider, limiting the liability of
the ccTLD provider, and requirements that any disputes be resolved under that
particular country's laws.

20. PROVISIONS SPECIFIC TO .CA REGISTRATIONS

You acknowledge and agree that registration of your selected domain name in
your first application to CIRA shall not be effective until you have entered into
and agreed to be bound by CIRA's Registrant Agreement.

CIRA Certified Registrar. The registrar shall immediately give notice to you in
the event that it is no longer a CIRA Certified Registrar, has had its certification
as a CIRA Certified Registrar suspended or terminated, or the Registrar
Agreement between CIRA and the Registrar is terminated or expires. CIRA may
post notice of such suspension, termination, or expiry on its website and may, if
CIRA deems appropriate, give notice to the registrants thereof. In the event that
the registrar is no longer a CIRA Certified Registrar, has had its certification as
a CIRA Certified Registrar suspended or terminated or in the event the Registrar
Agreement between CIRA and the Registrar is terminated or expires, you shall
be responsible for changing your Registrar of Record to a new CIRA Certified
Registrar within thirty (30) days of the earlier of notice thereof being given to you
by (i) the Registrar or (ii) CIRA in accordance with CIRA's then current Registry
PRP; provided, however, that if any of your domain name registrations are
scheduled to expire within thirty (30) days of the giving of such notice, then you
shall have thirty (30) days from the anniversary date of the registration(s), to
register with a new CIRA certified registrar and to renew such domain name
registration(s) in accordance with the Registry PRP.

You acknowledge and agree that should there be insufficient funds Prepaid by
the registrar in the CIRA Deposit Account to be applied in payment of any fees,
CIRA may in its sole discretion stop accepting applications for domain name
registrations from the registrar, stop effecting registrations of domain names and
transfers, renewals, modifications, and cancellations requested by the registrar
and stop performing other billable transactions requested by the registrar not
paid in full and CIRA may terminate the Registrar Agreement between CIRA
and the Registrar.

i E are bundled and reserved for a single
registrant. Registrants are not required to register all variants in a bundle, but all
registered variants must be registered and managed at a single registrar. Each
variant registered will incur a registration fee. In addition, when registering
multiple .CA domain (ASCII and IDN) variants in a bundle, your registrant
information must be identical. If variants are registered at other registrars or if
registrant information does not match, it may result in an “unavailable” search
result, delayed or failed registration. If information does not match, validation is
required and may take up to seven business days and delay availability of
domain.

21. PROVISIONS SPECIFIC TO .JP REGISTRATIONS

Registration Restrictions. You represent and warrant that you have a local
presence in Japan with a home or office address. You agree that certain domain
names are reserved and can only be registered by certain parties. These
include: (j) TLDs, other than ccTLDs, as determined by ICANN; (ii)
geographical-type JP domain names that are defined as metropolitan,
prefectural, and municipal labels; (iii) names of primary and secondary

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lwy2ar2015 Legal Agreement
GoDaddy’s Parked Page service, please review and consider
purchasing our CashParking® service.
iii. No Content. If the options listed above are not acceptable to you
and you would prefer that no content display on your domain name,
please contact customer support.

jat=il je erat a! 201 Mal ame x .
domain name expiration, and regardless of how you use your domain name
during the term of your domain name registration, your domain name will
automatically retum to the Parked Page Default Setting described above. As
used in this paragraph, “expiration” is deemed to include any “renewal period” or
“redemption period” immediately after the domain name expires, but before the
domain name is retumed to the registry. Once your domain name has retumed
to the Parked Page Default Setting described above, the only way to opt out of
the Parked Page service is to renew, redeem, or re-register your domain name in
accordance with Section 2(B), Domain Name Renewal Terms, of this
Agreement.

10. DOMAIN ADD-ONS

Business Registration: Business registration allows You to display additional
information about the business that is the basis of Your domain name, including,
but not limited to, such information as Your fax number, street address, and
hours of operation.

Certified Domains. The certified domain service generally allow You to: (i) put
a Certified Domain Validation seal on Your website; and (ii) have Your domain
name listed as “Certified”, in WHOIS lookups on our website. The Certified
Domain Validation seal renews independently of Your domain. When You renew
Your domain, You must also, when necessary, separately renew Your Certified
Validation seal. However, the Certified Domain Validation seal can be cancelled
independently of Your domain. If the domain is cancelled, the Certified Domain
associated with the cancelled domain will automatically cancel. The Certified
Domain seal is a trademark and is protected by copyright, trademark and other
intellectual property laws. You may use the Certified Domain seal only in
conjunction with the purchase of the Services set forth in the Agreement, and
subject to the terms and conditions hereof. Other than provided for in this
Agreement, You may not otherwise use, reproduce, or modify the mark for any
additional promotional use, without our prior written approval. Your right to the
use of the Certified Domain seal is immediately terminated upon expiration or
termination of this Agreement.

Expiration Consolidation. You understand and acknowledge the expiration
consolidation service may only be used to consolidate the expiration of .com
and .net domain names. The service may not be used to consolidate domains
that are on Registrar HOLD, Registry HOLD, or pending Transfer status. You
acknowledge the service may only be used to push the expiration date of Your
domains forward in time, at least one (1) month forward and no more than ten
(10) years forward, and then, only for a period lasting less than twelve (12)
months. Once the service has been used to consolidate domains, the new
expiration date may not be reversed. To ensure the service is not abused or
used as an altemative to renewals, you may only use the service on each
domain once in any 12-month period. The service may only be used on domain
names that have not passed their expiration date. In order to change the
expiration date again, You will be required to renew the domain name first. You
further understand and acknowledge the service may only be used to coordinate
domains where we are the registrar of record. Domains not registered with us

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6. I did not use this service to shield any activities relating to the domains registered
with Godaddy. I utilized this service to keep my private contact information private and safe, as
suggested by Godaddy in offering the service.

7. I am not the registrant or owner of the Internet domain epomer.com.

8. I did not post any infringing material described in the Plaintiff's complaint on the
domain eporner.com.

9. The domains epornergay.com and eprncdn.com do not contain any content
whatsoever, but merely redirect viewers to the home page of the domain eporner.com.

10. I do not have, own or control any tangible assets or real property in the United
States. I do not own or control any bank accounts, or other similar liquid assets accounts, which
are located in the United States.

11. I do not sell or advertise goods or services to any person or company located
within the United States.

12. I do not, and never have, paid taxes in the United States.

13. I do not do any business in the United States, | am not registered to do business
in the United States, I have no officers, manufacturing or distribution facilities, no employees,
directors, agents, representatives, and no licenses in the United States.

14. I do not specifically target my services to residents of the Untied States.

15. Ihave never visited the United States.

16. To the best of my knowledge, the Godaddy.com registration agreement attached
to my Motion to Dismiss for Lack of Personal Jurisdiction is a true and correct copy of my
agreement with the company for the domains epornergay.com and epmedn.com.

17. To the best of my knowledge the Godaddy.com Domains by Proxy agreement
attached to my Motion to Dismiss for Lack of Personal Jurisdiction is a true and correct copy of
the agreement with the company for the domains epornergay.com and epmedn.com.

2

Declaration of Marcin Wanat

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1/29/2015, Legal Agreement
Crose WINDow Print

GODADDY
DOMAIN NAME REGISTRATION AGREEMENT

Last Revised: 24 November 2015

PLEASE READ THIS AGREEMENT CAREFULLY, AS IT CONTAINS
IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND
REMEDIES.

1. OVERVIEW

This Domain Name Registration Agreement (this "Agreement”) is entered into by
and between GoDaddy.com, LLC, a Delaware limited liability company
("GoDaddy") and you, and is made effective as of the date of electronic
acceptance. This Agreement sets forth the terms and conditions of your use of
GoDaddy's Domain Name Registration services (the “Domain Name
Registration Services” or the Services”).

Your electronic acceptance of this Agreement signifies that you have read,
understand, acknowledge and agree to be bound by this Agreement, which
incorporates by reference each of (i) GoDaddy's Universal Terms of Service
Agreement (‘UTOS"), (ii) all guidelines, policies, practices, procedures,
registration requirements or operational standards of the top-level domain
(“TLD”) in which you register any domain (‘Registry Policies”), and (Iii) any plan
limits, product disclaimers or other restrictions presented to you on the Domain
Name Registration Services landing page of the GoDaddy website (this
“Site”). To link to and review the Registry Policies for the TLD in which you wish
to register a domain name, please click here.

The terms “we”, “us” or "our" shall refer to GoDaddy. The terms "you", "your",
“User’ or “customer” shall refer to any individual or entity who accepts this
Agreement. Unless otherwise specified, nothing in this Agreement shall be
deemed to confer any third-party rights or benefits.

You acknowledge and agree that (i) GoDaddy, in its sole and absolute
discretion, may change or modify this Agreement, and any policies or
agreements which are incorporated herein, at any time, and such changes or
modifications shall be effective immediately upon posting to this Site, and (ii)
your use of this Site or the Services found at this Site after such changes or
modifications have been made shall constitute your acceptance of this
Agreement as last revised. If you do not agree to be bound by this Agreement
as last revised, do not use (or continue to use) this Site or the Services found at
this Site. In addition, GoDaddy may occasionally notify you of changes or
modifications to this Agreement by email. It is therefore very important that you
keep your shopper account (‘Shopper Account”) information, including your email
address, current. GoDaddy assumes no liability or responsibility for your failure
to receive an email notification if such failure results from an inaccurate or out-
of-date email address.

GoDaddy is an Intemet Corporation for Assigned Names and Numbers
(CICANN") accredited registrar. You acknowledge and agree that as an ICANN-
accredited registrar, GoDaddy is bound by an agreement with ICANN. You
acknowledge and agree that GoDaddy may modify this Agreement in order to
comply with its agreement with ICANN, as well as any other terms and

eee eet OA Cinne nated 1124


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Il. _ This Court Should Dismiss the Plaintiff’s Complaint Against Wanat for Lack
of Personal Jurisdiction.

This Court does not have personal jurisdiction over Wanat. In order to prevail in
an action to dismiss under Fed. R. Civ. P. 12(b)(2), the burden is on the plaintiff to show
that personal jurisdiction is proper under the forum state’s long-arm statute and that
jurisdiction comports with Due Process under the U.S. Constitution. Rio Properties Inc.
v. Rio Intern. Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002); Fed. R. Civ. P. 4(k)(1)(A).
“Mere bare bones assertions of minimum contacts with the forum or legal conclusions
unsupported by specific factual allegations will not satisfy a plaintiff's pleading burden.”
Fiore v. Walden, 657 F.3d 838, 846-47 (9th Cir. 2011).

Realizing that its case for jurisdiction over Wanat is weak, the Plaintiff has
attempted to take a shotgun approach, hoping that at least one of the proffered theories
might hit its mark. The Plaintiff has offered the following in its First Amended
Complaint: (1) Wanat “purposefully availed himself of doing business in the U.S. and is
subject to jurisdiction in any U.S. court”; (2) the Defendant’s websites are “interactive”
and are “fully accessible to the residents of the District”; (3) “When [Wanat] used the
services of Godaddy and Domains By Proxy, [he] agreed that in any disputes between
them and any third parties, they would submit to the jurisdiction of the state or federal
courts of Arizona.” Unfortunately, as the following analysis reveals, none of these
allegations satisfy the requirements for this Court to exercise jurisdiction over the

Defendant.

5
MOTION TO DISMISS AND RESPONSE TO ORDER TO SHOW CAUSE



29/2015

Legal Agreement

You agree You are entirely responsible for maintaining the confidentiality of Your
customer number/login ID and password (“Account Access Information"). You
agree to notify DBP immediately of any unauthorized use of Your account or any
other breach of security. You agree DBP will not be liable for any loss that You
may incur as a result of someone else using Your Account Access Information,
either with or without Your knowledge. You further agree You could be held
liable for losses incurred by DBP or another party due to someone else using
Your Account Access Information. For security purposes, You should keep
Account Access Information in a secure location and take precautions to
prevent others from gaining access to Your Account Access Information. You
agree that You are entirely responsible for all activity in Your account, whether
initiated by You, or by others. DBP specifically disclaims liability for any
activity in Your account, regardless of whether You authorized the activity.

4. DBP'S RIGHTS TO DENY, SUSPEND, TERMINATE SERVICE
AND TO DISCLOSE YOUR PERSONAL INFORMATION

You understand and agree that DBP has the absolute right and power, in its sole
discretion and without any liability to You whatsoever, to:

i. Cancel the privacy service (which means that Your information will
be available in the "Whois" directory) and/or reveal Your name and
personal information that You provided to DBP:

A. When required by law, in the good faith belief that such action is
necessary in order to conform to the edicts of the law or in the
interest of public safety;

B. To comply with a legal process served upon DBP or in response
to a reasonable threat of litigation against DBP (as determined by
DBP in its sole and absolute discretion); or

C. To comply with ICANN rules, policies, or procedures.

ii. Resolve any and all third party claims, whether threatened or made,
arising out of Your use of a domain name for which DBP is the
registrant listed in the "Whois" directory on Your behalf; or

ili, Take any other action DBP deems necessary:
A. In the event you breach any provision of this Agreement or the
DBP Anti-Spam Policy;
B. To protect the integrity and stability of, and to comply with
registration requirements, terms, conditions and policies of, the
applicable domain name Registry and/or Registry Provider;
C. To comply with any applicable laws, goverment
rules or requirements, subpoenas, court orders or
requests of law enforcement;
D. To comply with ICANN's Dispute Resolution Policy;
E. To avoid any financial loss or legal liability (civil or criminal) on
the part of DBP, its parent companies, subsidiaries, affiliates,
shareholders, agents, officers, directors and employees;
F. If the domain name for which DBP is the registrant on Your
behalf violates or infringes a third party's trademark, trade name or
other legal rights; and
G. If it comes to DBP's attention that You are using DBP's
services for purposes of engaging in, participating in, sponsoring or
hiding Your involvement in, illegal or morally objectionable
activities, including but not limited to, activities which are designed,
intended to or otherwise:
1. Appeal purely to the prurient interests of third parties;
2. Defame, embarrass, harm, abuse, threaten, or harass

wre Ieeee eee cote nhmietdnn nam nannideRARAAIN, MAMEDRAYVRicesrnirt iO


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CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that on the 30th day of November, 2015, I
served a true and correct copy of the foregoing DEFENDANT MARCIN WANAT’S
MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND
RESPONSE TO ORDER TO SHOW CAUSE through the United States District Court
CM/ECF, addressed to the following, or if necessary, by U.S. Mail with first-class
postage prepaid, or, if possible to the following:
Marc J. Randazza, AZ Bar No. 27861
Ronald D. Green, Pro Hac Vice
Randazza Legal Group, PLLC
3625 S. Town Center Drive, Suite 150

Las Vegas, NV 89135
Attorneys for Plaintiff,

AMA Multimedia, LLC
By: Arn
_

An emplefee of Donath & Medrala, PLLC

2
MOTION TO DISMISS AND RESPONSE TO ORDER TO SHOW CAUSE



41/29/2015 The Medrala Law Firm Mail - Fwd: SERVICE OF COURT DOCUMENTS / AMA Multimedia, LLC v. Marcin Wanat, et al. / Case No. 2:15-cv-01674-...

From: Trey Rothell <tar@randazza.com>

Date: 2015-11-24 23:03 GMT+01:00

Subject: SERVICE OF COURT DOCUMENTS / AMA Multimedia, LLC v. Marcin Wanat, et al. / Case No. 2:15-cv-
01674-ROS

To: Marcin Wanat <marcin.wanat@gmail.com>, epomer@epomer.com,contact@epomer.com

Ce: "Marc J. Randazza" <mjr@randazza.com>, Ron Green <rdg@randazza.com>

Mr. Wanat,

We only now received the order via email after again not receiving it in today’s mail and me prodding the clerk to do
so. | apologize for the delay.

Please find attached the court's sealed order dated November 17, 2015.

Trey A. Rothell* | Randazza Legal Group, PLLC
3625 S. Town Center Drive Las Vegas, NV 89135
Tel: (702) 420-2001 | Email: tar@randazza.com

* Paralegal; not licensed to practice law.

ase

Aatnctent Intent nhac hes a8 01,1 ris 0L, Meh ite®l.2NO1 Tine familVvnAN% Narial %IC he ARANE-KAFif%3B% 20CHOF%IA% 20 a 0% 2C% 200% 2C%200)%3B%2... 1/1


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UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

AMA MULTIMEDIA LLC, a Nevada limited
liability company, CASE NO.: 2:15-ov-01674-ROS

Plaintiff,
DECLARATION OF MARCIN WANAT

vs.
MARCIN WANAT, a foreign citizen; JOHN

DOES 1-25; and ROE CORPORATIONS 26-
50,

Defendants.

J, Marcin Wanat, state:
1. 1am a Defendant in the above-described action. I make the following declaration
based on personal knowledge and I could and would competently testify to the facts stated

herein if called upon to do so.
2. Tam citizen and resident of the country of Poland.
3. I am the registrant of the Internet domains epornergay.com and eprnedn.com.

4. These domains utilized the Domains by Proxy service offered by Godaddy.com
to protect my private information.

5. To my the best of my knowledge, Domains by Proxy is a service offered to every
single person or company who registers a domain with Godaddy, and is utilized by millions of

Godaddy customers.

1

Declaration of Marcin Wanat

anh



2972015 Legal Agreement
third parties;
3. Violate state, federal or intemational law;
4. Involve hate crimes, terrorism and child pomography;
5. Are tortious, vulgar, obscene, invasive of a third party's
privacy, racially, ethnically, or otherwise objectionable;
6. Impersonate the identity of a third party;
7. Harm minors in any way; or
8. Relate to or transmit viruses, Trojan Horses, access
codes, backdoors, worms, timebombs or any other code,
routine, mechanism, device or item that corrupts, damages,
impairs, interferes with, intercepts or misappropriates any
software, hardware, firmware, network, system, data or
personally identifiable information.

You further understand and agree that if DBP is named as a defendant in, or
investigated in anticipation of, any legal or administrative proceeding arising out
of Your domain name registration or Your use of DBP's services, Your private
registration service may be canceled, which means the domain name
registration will revert back to You and Your identity will therefore be revealed in
the Whois directory as Registrant.

In the event:

i. DBP takes any of the actions set forth in subsection i, ii, or
iii above or section 5; and/or

ii. You elect to cancel DBP's services for any reason —

Neither DBP nor your Registrar will refund any fees paid by You whatsoever.
5. COMMUNICATIONS FORWARDING

a. Correspondence Forwarding

Inasmuch as DBP's name, postal address and phone number will be listed in
the Whois directory, You agree DBP will review and forward communications
addressed to Your domain name that are received via email, certified or
traceable courier mail (such as UPS, FedEx, or DHL), or first class U.S. postal
mail. You specifically acknowledge DBP will not forward to You first class
postal mail (other than legal notices), "junk" mail or other unsolicited
communications (whether delivered through email, fax, postal mail or telephone),
and You further authorize DBP to either discard all such communications or
retum all such communications to sender unopened. You agree to waive any
and all claims arising from Your failure to receive communications directed to
Your domain name but not forwarded to You by DBP.

b. Email Forwarding

The Whois directory requires an email address for every purchased domain
name registration. When You purchase a private domain registration, DBP
creates a private email address for that domain name,
"@domainsbyproxy.com". Thereafter, when messages are sent to that private
email address, DBP handles them according to the email preference You
selected for that particular domain name. You have three (3) email preferences
from which to choose. You can elect to:

i. Have all of the messages forwarded;
ii. Have all of the messages filtered for Spam and then forwarded; or

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the Plaintiff has established sufficient irreparable harm for obtaining an “asset freezing”
injunction.

The Court states that such an injunction can issue when there is a “pattern of
secreting or dissipating assets to avoid judgment” (Dkt. No. 19, quoting In re Estate of
Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467, 1480 (9th Cir. 1994)). The
element of irreparable harm can be met by showing a “likelihood of dissipation of the
claimed assets, or other inability to recover monetary damages, if the relief is not
granted.” (Dkt. No. 19, quoting Johnson v. Couturier, 572 F.3d 1067, 1085 (9th Cir.
2009) (emphasis added)). The language quoted and the acts associated with these cases
clearly show that the relief must be related to the recovery to recover of money. For
example, in Ferdinand, the injunction issued after a default, and the Ninth Circuit noted:

[T]he district court found (1) that an ultimate judgment would likely exceed $320
million, (2) that the Estate has about $320 million in assets in banks in

Switzerland and Hong Kong, (3) that the Trajano plaintiffs have been unable to

execute upon Imee Marcos-Manotoc’s assets to collect the $4.4 million judgment,

(4) that federal courts have twice enjoined the Marcoses from transferring or

secreting assets, based on a pattern and practice of secreting assets through

foreign bank accounts by the use of aliases and shell corporations.
Unlike here, the Ferdinand case, and the requested relief, dealt strictly with money—a
lot of it. The facts here do not show that the Defendant has engaged in a similar pattern
to secret assets, and the relief requested has no rational connection to the recovery of
monetary damages. All Wanat did was transfer his domains to a different registrar. The

domains still exist; they have not been “secreted away or dissipated.” In fact, these terms

have little meaning in the context of Internet domains. Regardless of their registrar, the

18
MOTION TO DISMISS AND RESPONSE TO ORDER TO SHOW CAUSE



11/29/2015

Legal Agreement

renewal registration pricing (such that the Fee for a domain name registration
tenewal may differ from other domain names in the same TLD, e.g., renewal
registration for one domain may be $100.00 and $33.00 for a different domain
name).

Restriction on Availability of Privacy or Proxy. You acknowledge and agree
that, as dictated by the Registry Policies, for certain TLDs you may not be
permitted to purchase private or proxy TLD registrations. In such case, you
must register for any and all TLD registrations using your personal information,
which information you represent and warrant is current, accurate and complete.

13. PROVISIONS SPECIFIC TO .BIZ REGISTRATIONS

Domain Name Dispute Policy. \f you reserved or registered a .BIZ domain
name through us, in addition to our Dispute Resolution Policy, you hereby
acknowledge that you have read and understood and agree to be bound by the
terms and conditions of the Restrictions Dispute Resolution Policy applicable to
the .biz TLD.

The RDRP sets forth the terms under which any allegation that a domain name
is not used primarily for business or commercial purposes shall be enforced on a
case-by-case basis by an independent ICANN-accredited dispute provider.
Registry Operator will not review, monitor, or otherwise verify that any particular
domain name is being used primarily for business or commercial purposes or
that a domain name is being used in compliance with the SUDRP or UDRP
processes.

ion. If you are registering a .BIZ domain name and you elect
to take advantage of special pricing applicable to one-year registrations, we will
automatically renew your domain name for an additional one-year period at the
end of the first year term by taking payment from the Payment Method you have
on file, unless you notify us that you do not wish to renew. You will be notified
and given the opportunity to accept or decline the one-year renewal prior to your
domain name expiration date. In the event you decide not to renew your one-
year .BIZ domain name for a second year, your domain name registration will
automatically revert back to us and we will gain full rights of registration to such
domain name. You agree that if you delete or transfer your .BIZ domain name
during the first year, you will automatically be charged the second year renewal
fees.

14, PROVISIONS SPECIFIC TO .INFO REGISTRATIONS

jon. If you are registering a .INFO domain name and you
elect to take advantage of special pricing applicable to one-year registrations,
we will automatically renew your domain name for an additional one-year period
at the end of the first year term by taking payment from the Payment Method
you have on file, unless you notify us that you do not wish to renew. You will be
Notified and given the opportunity to accept or decline the one-year renewal prior
to your domain name expiration date. In the event you decide not to renew your
one-year .INFO domain name for a second year, your domain name registration
will automatically revert back to us and we will gain full rights of registration to
such domain name. You agree that if you delete or transfer your .INFO domain
name during the first year, you will automatically be charged the second year
renewal fees.

15. PROVISIONS SPECIFIC TO .MOBI REGISTRATIONS
Instant Mobilizer. You are hereby granted a personal, revocable, non-exclusive,

s:/fuk.godaddy.com/agreements/showdoc.aspx?pageid=REG SA&isc=aofduk29

MA


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Additionally, there is no evidence that eporner.com monitors the content
uploaded anonymously by third parties. It likely had no initial awareness of the
existence of the alleged infringing videos. More critically, there is also no evidence, nor
any factually supported allegations in the Plaintiff's First Amended Complaint, that any
defendant knew that the works were the copyrighted property of the Plaintiff, or that any
defendant knew the identity or location of the Plaintiff as a U.S. business based in
Nevada. Plaintiff does not even allege that the posted works carried either the registered
trademark or copyright symbols indicating that they were U.S. intellectual property, and
even the Plaintiff admits that once eporner.com was aware of the alleged infringement, it
swiftly removed the offending content (Dkt. No. 8). These actions cannot constitute
wrongful conduct that was expressly aimed at the Plaintiff.

The last prong of the Calder effects test is similarly unsatisfied by the Plaintiff's
allegations. Having no initial knowledge of the existence of the alleged works, or the
identity of the owner of such works, the Defendant could not have known that any
allegedly infringing act would cause harm within Arizona, or even in the U.S. as a
whole.

The second requirement for specific jurisdiction is that the contacts constituting
purposeful availment must be the ones that give rise to the current suit. This is measured
in terms of “but for” causation. See Ziegler v. Indian River Cty., 64 F.3d 470, 474 (9th
Cir.1995). A dispute arises out of forum-related activities if it would not have arisen

“but for” those contacts. Ballard v. Savage, 65 F.3d 1495, 1500 (9th Cir. 1995).

10
MOTION TO DISMISS AND RESPONSE TO ORDER TO SHOW CAUSE



1929/2015 Legal Agreement
following information (and not Your personal information) will be made publicly
available in the "Whois" directory as determined by ICANN policy:

i. DBP's name as the Registrant of the domain name and a proxy
email address, phone number and postal address for the
Registrant's contact information;

ii. A proxy postal address and phone number for the domain name
registration's technical contact;

iii. A proxy email address, postal address and phone number for the
domain name registration's administrative contact;

iv. A proxy email address, postal address and phone number for the
domain's name registration's billing contact;

v. The primary and secondary domain name servers You designate for
the domain name;

vi. The domain name's original date of registration and expiration date
of the registration; and

vii. The identity of the Registrar.

2. FULL BENEFITS OF DOMAIN REGISTRATION RETAINED BY
You

Although DBP will show in the "Whois" directory as the Registrant of each
domain name registration You designate, You will retain the full benefits of
domain name registration with respect to each such domain name registration,
including, subject to Section 4 below:

i. The right to sell, transfer or assign each domain name registration,
which shall require cancellation of the DBP services associated
with each such domain name registration;

ii. The right to control the use of each domain name registration,
including designating the primary and secondary domain name
servers to which each domain name points;

iii, The right to cancel each domain name registration;

iv. The right to cancel the DBP services associated with each domain
name registration and/or Your privacy services with DBP so that
Your contract information is listed in the "Whois" directory; and

v. The right to renew each domain name registration upon its
expiration, subject to Your Registrar's applicable rules and policies.

3. PERSONAL INFORMATION AND YOUR NOTIFICATION
OBLIGATIONS; REPRESENTATION AND WARRANTIES;
ACCOUNT SECURITY

Personal Information and Your Notification Obligations

You agree that for each domain name for which DBP becomes the Registrant on
Your behalf, You will provide accurate and current information as to:

i. Your name, the email address, postal address, phone and fax
numbers for the domain name registration's Registrant contact;

ii. The email address, postal address, phone and fax numbers for the
domain name registration's technical contact;

iii, The email address, postal address, phone and fax numbers for the

httne:titic andadely eam/anreements/showdoc.asox?oadeid=DOMAIN NAMEPROXY&isc=gofduk29


11/29/2015. Randazza Legal Group - First Amendment lawyers, intellectual property lawyers, copyright lawyers, trademark lawyers, internet lawyers

Type your email here... a)

oJhandazza.com/merc-j-randazza/ KS


11/18/2015 CMECF - azd-Display Receipt

Document description:Main Document

Original filename:n/a

Electronic document Stamp:

[STAMP dcecfStamp_ID=1096393563 [Date=1 1/18/2015] [FileNumber=14222390
-0] [756d0b4cacaa2f026adc00289a2a74 1 2ed4c8434ccb5d5541590b3d8d48e52663
645caa204ea3a7 lecac3d212eaf6e10138f8b389eb807ba390a37e657fdd5eb}]}

https: /lecf.azd.uscourts.gov/cgi-bin/DisplayReceipt pl?650451699149393-L_1_0-1


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transaction with the forum or resident thereof, or perform some act by which he
purposefully avails himself of the privilege of conducting activities in the forum, thereby
invoking the benefits and protections of its laws; (2) the claim must be one that arises
out of or relates to the defendant’s forum-related activities; and (3) the exercise of
jurisdiction must be reasonable. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d
797, 802 (9th Cir. 2004).

The plaintiffs bear the burden of satisfying the first two prongs, then the burden
shifts to the defendants to “present a compelling case” that the exercise of jurisdiction in
the forum state would be unreasonable. Bancroft & Masters v. Augusta Nat’! Inc., 223
F.3d 1082, 1089 (9th Cir. 2000).

The term “purposeful availment” is often used for both purposeful availment and
purposeful direction, but the two are distinct concepts. Schwarzenegger, 374 F.3d at 802
(citing Harris v. Bell & Clements, 328 F.3d 1122, 1130 (9th Cir. 2003). Purposeful
availment is most often used in suits regarding contracts, whereas purposeful direction is
associated with tort suits. Id.

Due Process permits the exercise of personal jurisdiction over a defendant who
“purposefully direct[s}” his activities at residents of a forum, even in the “absence of
physical contacts” with the forum. Burger King v. Rudzewiz, 471 U.S. 462, 476 (1985)
(citing Keeton v. Hustler Magazine, 465 U.S. 770, 774-75 (1984)). Where the claims
arise out of trademark or copyright infringement, they are more akin to a tort action, and

the purposeful direction is more appropriate in determining the defendants’ contacts with

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Arizona’s long-arm statute is “co-extensive with the limits of federal due
process.” Doe v. Am. Nat’l Red Cross, 112 F.3d 1048, 1050 (9th Cir. 1997). Federal Due
Process requires that a defendant have “minimum contacts” with the forum state “such
that the maintenance of the suit does not offend traditional notions of fair play and
substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). The
defendant’s minimum contacts can give rise to either general or specific jurisdiction.

In addition, “[t]he due process analysis under Rule 4(k)(2) is nearly identical to
traditional personal jurisdiction analysis with one significant difference: rather than
considering contacts between the [defendants] and the forum state, we consider contacts
with the nation as a whole.” Jd. at 462.

General personal jurisdiction exists only when a defendant’s forum activities are
so substantial or continuous and systematic that the defendant may be deemed present in
the forum and subject to suit over claims unrelated to its forum activities. Brand v.
Menlove Dodge, 796 F.2d 1070, 1073 (9th Cir. 1986).

In the instant case, the Plaintiff alleges no jurisdictional facts that are so
systematic and continuous that they could give rise to general jurisdiction over the
Defendant. As a result, this analysis will focus on specific jurisdiction.

A forum state may exercise specific jurisdiction over the defendant if the case
arises out of certain forum-related acts. The Ninth Circuit has established a three part
test for determining whether specific jurisdiction over a defendant exists: (1) The

nonresident defendant must purposefully direct his activities or consummate some

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domains can be found by inquiring into their URLs. Since the domains contain no
content, it is not possible for Wanat to destroy or hide any alleged infringement on these
sites. There is no correlation between the mere transfer of two domains and the massive
money-laundering allegations in the Ferdinand case. While it may be inconvenient for
the Plaintiff to gather information about the Defendant from a foreign registrar, there is
no indication that this inconvenience would cause irreparable harm, resulting in the
inability to recover monetary damages—assuming the Plaintiff ever even receives a
judgment.

The notion that the Plaintiff would suffer irreparable harm by being unable to
view eporner.com from either Nevada or Arizona is similarly far-fetched. According to
Plaintiff, the site can be viewed from all other 48 states. Plaintiff’s counsel was easily
able to view the site using the Tor program (Dkt. 14-7, at 4). This program appears to be
able to overcome any attempt to block specific IP addresses. Jd. Further, Plaintiff's
counsel has offices in Miami, Philadelphia, and San Francisco (Randazza Website,
attached hereto as Exhibit E). Marc Randazza is barred in California, Florida, and
Massachusetts (/Jd.). Eporner.com can apparently be viewed from all these locales.
Presumably AMA has other contacts in additional states as well that can check the site.
As such, eporner.com can be easily monitored by the Plaintiff without this intervention
from the Court, and without the need for “extraordinary relief.” Mere inconvenience is
not irreparable harm.

The last two factors of the test for injunctive relief is the balancing of the equities

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conducts over the Internet.” Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 418 (9th
Cir. 1997). Passive websites that only post information do not give rise to personal
jurisdiction; whereas personal jurisdiction may be proper where a fundamentally
interactive website generates contractual business relationships. See id.

Here, Wanat has not engaged in any activity that was expressly aimed at the
forum state. There is no evidence or allegations that Wanat directed advertising into
Arizona (or any other state), and there is no evidence that Wanat has done any business
with anyone in the U.S. except for the registrar and privacy service provider,
Godaddy.com. Even the Plaintiff admits that the domains registered with Godaddy are
only proxy domains, which are completely passive, being merely redirected to the
domain eporner.com (See Dkt. No. 10, at 7).

Even, for the purpose of the argument, accepting Defendant’s allegations that
Wanat is the owner of eporner.com, the express aiming requirement still cannot be met.
Plaintiffs allegations suggest that the primary use of the site is to passively view the
videos posted therein. Plaintiff does not allege that users must pay access fees or provide
billing information to view its videos. Users who post videos (which are probably a
small percentage of the overall users) can do so freely and anonymously. Given the
explicit sexual nature of the site, it is unlikely that they submit their personal information
or addresses. The website is neither directed to the U.S., nor does it elicit sufficient
commercial activity or contracts in the U.S. for jurisdiction of U.S. courts to exist over

the Defendant.

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18. [have reviewed the Plaintiff's List of Infringing Materials, Exhibit 7 to Doc. No.
8. I did not post any of the allegedly infringing materials referenced therein to the eporner.com
website.

19. | On November 18, 2015, I received a copy of the Summons and Complaint in this
case, via my email, marcinwanat@gmail.com.

20. I did not receive a copy of the Sealed Order, dated November 17°, 2015, at the
time the Summons and Complaint were emailed to me.

21. [was not emailed a copy of the Sealed Order, dated November 17", 2015, until
November 24",

I declare under the penalty of the laws of the United States of America, that the
foregoing statements are true and correct and that this declaration is executed on November 29”
2015, in Chelmek, Poland.

DATED this 30" day of November, 2015

pein Wd
Marcin Wanat

3

Declaration of Marcin Wanat



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L

JAKUB P. MEDRALA, ESQ. a (Pn once
Pro Hac Vice —— RECEIVED ___ copy
SEAN L. AFRICK, ESQ.

Pro Hac Vice NOV 8 0 2015
Donath & Medrala, Prof. LLC =

1091 S. Cimarron Road, Suite #A-1 Pe 23
Las Vegas, Nevada 89145 Ly Ee BERL

(702) 475-8884
(702) 938-8625 Facsimile
jmedrala@domelaw.com

safrick@domelaw.com
Attorneys for Defendant Marcin Wanat

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

AMA MULTIMEDIA LLC, a Nevada
Limited Liability Company, CASE NO.: 2:15-cv-01674-ROS

Plaintiff,

vs. DEFENDANT_MARCIN _WANAT’S
MOTION TO DISMISS FOR LACK
MARCIN WANAT, a Foreign Citizen; | OF PERSONAL JURISDICTION AND
JOHN DOES 1-25; and ROE RESPONSE TO AN ORDER TO
CORPORATIONS 26-50, SHOW CAUSE

Defendants.

COMES NOW, Defendant MARCIN WANAT (“Wanat” or the “Defendant”) by
and through his counsel of record, Donath & Medrala, Prof. LLC, and files his Motion to
Dismiss the Plaintiff's Complaint for Lack of Personal Jurisdiction and responds to the
Court’s order to show cause why a preliminary injunction should not issue in the above-

entitled case.

1
MOTION TO DISMISS AND RESPONSE TO ORDER TO SHOW CAUSE



Legal Agreement

administrative or judicial body, regarding a domain name registered by you using
GoDaddy, that GoDaddy, in its sole discretion, may take whatever action
GoDaddy deems necessary regarding further modification, assignment of and/or
control of the domain name deemed necessary to comply with the actions or
requirements of the govemmental, administrative or judicial body until such time
as the dispute is settled. In this event you agree to hold GoDaddy harmless for
any action taken by GoDaddy.

You agree to submit, without prejudice to other potentially applicable
jurisdictions, to the jurisdiction of the courts (1) of your domicile, (2) where
registrar is located or (3) where the registry operator is located (e.g., China for
.CN, Columbia for .CO, UK for .EU, etc.).

In the case of .ca domain names, you agree that, if your use of the service or
the registration of a .ca domain name is challenged by a third party, you will be
subject to the provisions specified by CIRA in their dispute resolution policy, in
effect at the time of the dispute.

6. TRANSFER OF DOMAIN NAMES; RESALE PRACTICES

If you transfer any domain name, you agree to provide the information required
by, and to abide by, the procedures and conditions set forth in our Domain
Name Transfer Agreement. You may view the latest version of our Domain
Name Transfer Agreement online. In order to further protect your domain name,
any domain name registered with GoDaddy or transferred to GoDaddy shall be
placed on lock status. The domain name must be placed on unlock status in
order to initiate a transfer of the domain name away from GoDaddy to a new
Registrar. You may log into your account with GoDaddy at any time after your
domain name has been successfully transferred to GoDaddy, and change the
status to unlock.

In the event you are purchasing a domain name on behalf of a third party, you
agree to inform any customer of yours, who may be acquiring a domain name
through you using GoDaddy's registration services, that they are in fact
registering their domain name through GoDaddy and that GoDaddy is an
accredited registrar with ICANN. You agree not to represent that you are an
ICANN-accredited registrar or that you are in any way providing superior access
to the ICANN Domain Name Registry. You also agree not to use the ICANN
trademark logo in any of your promotional materials including your website.

You agree to obtain each of your customers’ acceptances to the then current
version of this Agreement, and to retain evidence of their acceptance for a
period of not less than three (3) years. Should you require that your customers
accept additional terms and conditions that are not required by GoDaddy, you
agree that such additional terms and conditions shall not conflict with this
Agreement and the policies and procedures adopted by ICANN.

You agree that GoDaddy is not lending you access to its registrar connections
of its registry access, nor will you be deemed to be a registrar in your own tight.
Furthermore, you agree you will not attempt to gain access to GoDaddy's
registrar connections or registry access. You agree to provide complete,
accurate and current data for each registrant to be added to a registry in
accordance with ICANN requirements for inclusion in the Whois database.

You agree to provide your customers with adequate customer support, and to
maintain contact with them with regard to providing a medium for them to
communicate changes in the information they provided as part of the domain
name registration process. Upon receiving corrected or updated information you

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wrongdoing, no set of facts alleged in the Plaintiff's Complaint would support the notion
that the Plaintiff's claims relate to, or arise out of, the Domains by Proxy agreement.”

The Godaddy registration does not appear to contain language specifying Arizona
as having jurisdiction over any and all disputes (See Godaddy Registration Agreement,
attached hereto as Exhibit D). However, even if it did, at least one Arizona court has
already determined that the Godaddy agreement did not confer jurisdiction against a
Lebanese national under similar circumstances. See Inter123 Corp. v. Ghaith, No. 2:14-
cv-00463, (D. Ariz. April 4, 2014.)

In that case, the court vacated the TRO and denied the plaintiff's preliminary
injunction because the plaintiff could not show that the defendant was subject to that
court’s jurisdiction. Jd. The relation of the plaintiff's claims to the registration agreement
were much stronger there than here, as the plaintiff was registered with Godaddy for
four years and the case dealt with the actual sale of the domain. See id. The court found
that the defendant’s contacts were not the “but for” cause of the dispute, and even if the
defendant had availed himself of the privilege of doing business in Arizona, he had only
done so with respect to Godaddy itself, and not to the plaintiff. Such is the case here.

The last element of specific jurisdiction is reasonableness. The exercise of
jurisdiction must comport with fair play and substantial justice in order to be considered

reasonable. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985). Burger King

? Despite Plaintiff's claims, Domains by Proxy is a service used by millions of Godaddy customers.
Godaddy lists the benefits of the services as follows: “Protect your identity, Stop domain name-related spam,
Thwart harassers and stalkers, End data mining, Maintain personal and family privacy, Prevent your domain from
being hijacked, Shield legitimate entrepreneurial business endeavors, [and] Voice political and other First
Amendment speech.” https://uk.godaddy.com/help/domains-by-proxy-faq-421.

2
MOTION TO DISMISS AND RESPONSE TO ORDER TO SHOW CAUSE



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Again, this requirement is not met. The only forum-related activity alleged
against Wanat, other than the conclusory allegations of purposeful availament, are that
Wanat registered epornergay.com and eprncdn.com with Godaddy.com located in
Arizona and utilized Domains by Proxy, a Godaddy privacy service. The Plaintiff
alleges that the Defendant agreed to Arizona jurisdiction “in any dispute between them
and any third parties.” This allegation is problematic in several ways.

First, registration with Godaddy and their service, Domains by Proxy, are not the
“but for” cause of the action. The cause of this lawsuit is the alleged reproduction or
distribution of the Plaintiff's protected works and/or trademarks on eporner.com — a
website that is neither registered nor hosted in the U.S. There is no connection between
this alleged infringement and the registration or privacy services offered by or through
Godaddy.com. Plaintiff would have sought, and does seek, to curtail any such acts
regardless of the identity or location of any party offering such services.

Further, the Plaintiff completely and intentionally misstates the jurisdictional
clauses in the Godaddy and Domains by Proxy agreements. The Domains by Proxy
agreement in relevant part states:

You agree that any action relating to or arising out of this agreement shall be

brought exclusively in the courts of Maricopa County, AZ. For the adjudication

of domain name registration disputes, you agree to submit to the exclusive

jurisdiction and venue of the U.S. District Court for the District of Arizona... .
See Exhibit C (emphasis added).

Despite the scandalous and sensational allegations that Plaintiff makes,

insinuating that the use of the Domains by Proxy service is tantamount to criminal

u
MOTION TO DISMISS AND RESPONSE TO ORDER TO SHOW CAUSE



11/29/2015, Legal Agreement

and financial data you must implement reasonable and appropriate security
measures commensurate with the offering of those services, as defined by
applicable law. Regulated TLDs include:

-games, juegos, .school, .schule, .toys, .eco, .care, .diet, .fitness, .health,
.Clinic, .dental, .healthcare, .capital, .cash, .broker, .claims, .exchange,
.finance, .financial, .fund, .investments, .lease, .loans, .market, .money,
.trading, .credit, .insure, .tax, .mortgage, .degree, .mba, .audio, .book,
-broadway, .film, .movie, .music, .software, .fashion, .video, .app, .art,
-band, .cloud, .data, .digital, .fan, .free, .gratis, .discount, .sale, .media,
-news, .online, .pictures, .radio, .show, .theater, .tours, .accountants,
-architect, .associates, .broker, .legal, .realty, .vet, .engineering, .law,
.limited, .show; .theater; .town, .city, .reise, and .reisen

Highly Regulated TLDs. In addition to the requirements for Regulated TLDs,
domain name registration in any Highly-Regulated TLD is subject to the
following requirements: (a) you will provide administrative contact information,
which must be kept up-to-date, for the notification of complaints or reports of
registration abuse, as well as the contact details of the relevant regulatory, or
Industry self-regulatory, bodies in their main place of business; (b) you represent
that you possess any necessary authorizations, charters, licenses and/or other
related credentials for participation in the sector associated with such Highly-
regulated TLD; and (c) you will report any material changes to the validity of you
authorizations, charters, licenses and/or other related credentials for participation
in the sector associated with the Highly-regulated TLD to ensure you continue to
conform to the appropriate regulations and licensing requirements and generally
conduct your activities in the interests of the consumers they serve. Highly
Regulated TLDs include:

-abogado, .attorney, .bank, .bet, .bingo, .casino .charity (and IDN
equivalent xn-30rr7y), .cpa, .corp, creditcard, .creditunion .dds, .dentist,
-doctor, .fail, .gmbh, .gripe, .hospital, .inc, .insurance, .lawyer,
.lifeinsurance, .lic, .llp, .Itda, .medical, .mutuelle, .pharmacy, .poker,
-University, .sarl, .spreadbetting, .sri, .sucks, .surgery .university,
-vermogensberater, .vesicherung, and .wtf

Special Safeguard TLDs. \n addition to the requirements for Regulated and
Highly-Regulated TLDs, by registering a domain name in any “Special-
Safeguard” TLD, you agree to take reasonable steps to avoid misrepresenting or
falsely implying that you or your business is affiliated with, sponsored or
endorsed by one or more country's or govemment's military forces if such
affiliation, sponsorship or endorsement does not exist. Special Safeguard TLDs
include:

army, .navy, .airforce

Third Party Beneficiary. Notwithstanding anything in this Agreement to the
contrary, the Registry Operator for any TLD in which your register a domain
name is and shall be an intended third party beneficiary of this Agreement. As
such the parties to this agreement acknowledge and agree that the third party
beneficiary rights of the Registry Operator have vested and that the Registry
Operator has relied on its third party beneficiary rights under this Agreement in
agreeing to GoDaddy being a registrar for the TLD. Third party beneficiary rights
of the Registry Operator shall survive any termination of this Agreement.

Variable and Non-Uniform Pricing. You acknowledge, understand and agree that
certain domain names in certain TLDs are established by Registry Policies to be
variably priced (i.e., standard v. premium names) and/or may have non-uniform

ttps://uk.godaddy.com/agreements/showdoc.aspx?paaeid=REG SA&isc=aofduk29


Legal Agreement
longer have use of that name.

All renewals will be subject to the terms of this Agreement, as it may be
amended from time to time, and you acknowledge and agree to be bound by the
terms of this Agreement (as amended) for all renewed domains. Domain name
renewals will be non-refundable. If for any reason GoDaddy is not able to take
the payment from the Payment Method you have on file, and you fail to respond
to our notices, your domain name registration will expire. It is your responsibility
to keep your Payment Method information current, which includes the expiration
date if you are using a credit card.

For certain ccTLDs (.am, .at, .be, .br, .ca, .cn, .com.cn, .net.cn, .org.cn, .de,
.eu, .fm, .gs, .it, .jp, .ms, .nu, .nZ, .co.nz, snet.nz, .org.nz, .tc, .tk, .tw, .com.tw,
.org.tw, .idv.tw, .uk, and .vg), renewal billing will occur on the first day of the
month prior to the month of expiration.

For certain ccTLDs (.am, .at, .be, .ca, .cn, .com.cn, .net.cn, .org.cn, .de, .eu,
fm, .gs, .it, jp, .ms, .nu, .nz, .co.nz, .net.nz, .org.nz, .tc, .tk, .tw, .com.tw,
.org.tw, .idv.tw, .uk, and .vg), you must renew no later than the 20th of the
month prior to the expiration date, or your domain name will be placed in non-
renewal status. For some ccTLDs (.es) you must renew no later than seven
days before the expiration date, or your domain name will be placed in non-
renewal status. When the domain name is in non-renewal status, you can
renew the domain name only by calling GoDaddy and requesting that the domain
name be renewed. You cannot renew the domain name through your Account
Manager. If you fail to manually implement the renewal before the expiration
date, the domain name will be cancelled and you will no longer have use of that
name.

You agree that GoDaddy will not be responsible for cancelled domain names
that you fail to renew, either automatically or manually in the timeframes
indicated in this Agreement. In any case, if you fail to renew your domain name
in a timely fashion, additional charges may apply. If you signed up for privacy
services, protected registration, or any other similar service, with your domain
name registration, these services will automatically be renewed when your
domain name registration is up for renewal, and you will incur the applicable
additional renewal fee unless you cancel in advance.

If you fail to renew your domain name in the timeframes indicated in this
Agreement, you agree that GoDaddy may, in its sole discretion, renew your
expired domain name on your behalf. If GoDaddy decides to renew your expired
domain name on your behalf, you will have a Renewal Grace Period during
which you may reimburse GoDaddy for the renewal and keep your domain
name. The Renewal Grace Period is currently twelve (12) days but subject to
change under the terms of this Agreement. For certain ccTLDs (.am, .at, .be,
.cn, .com.cn, .net.cn, .org.cn, .de, .eu, .fm, .gs, .it, jp. -TMMs, .nu, .nz, .co.nz,
-net.nz, .org.nz, .tc, .tk, .tw, .com.tw, .org.tw, .idv.tw, .uk, and .vg) there is no
Renewal Grace Period after the expiration date of the domain name. \f you do
not reimburse GoDaddy for the renewal during the Renewal Grace Period your
domain name will be placed on Hold and flagged for deletion after which you will
have a 30-day redemption period during which you may pay GoDaddy a
Redemption fee and redeem your domain name. The Redemption fee is
currently $80.00 USD and is subject to change under the terms of this
Agreement. If you do not redeem your domain name prior to the end of the 30-
day redemption period GoDaddy may, in its sole discretion, delete your domain
name or transfer it to another registrant on your behalf. During the redemption
period your domain name may be parked.

Meee eith ds edad nae lamennmnantnlahnridinn anmumannideDER ShRiersantchie?


112912015, Legal Agreement
Crose Window Print

DOMAINS BY PROXY
DOMAIN NAME PROXY AGREEMENT

Last Revised: 22 September 2015

Please read this Domain Name Proxy Agreement (“Agreement”) carefully. By
using the Services and/or website of Domains By Proxy, LLC, a Delaware
limited liability company ("DBP"), You (as defined below) agree to all the terms
and conditions set forth both herein and in the DBP privacy policy, which is
incorporated by reference and can be found by clicking here. You acknowledge
that DBP may amend this Agreement at any time upon posting the amended
terms on its website, and that any new, different or additional features changing
the services provided by DBP will automatically be subject to this Agreement. if
You do not agree to be bound by, or if You object to, the terms and conditions of
this Agreement and any amendments hereto, do not use or access DBP's
services. Continued use of DBP’s services and its website after any such
changes to this Agreement have been posted, constitutes Your acceptance of
those changes.

This Agreement is by and between DBP and you, your heirs, assigns, agents
and contractors ("You") and is made effective as of the date of electronic
execution. This Agreement sets forth the terms and conditions of Your
relationship with DBP and Your use of DBP's services and represents the entire
Agreement between You and DBP. By using DBP's Services, You acknowledge
that You have read, understand and agree to be bound by all the terms and
Conditions of this Agreement, and You further agree to be bound by the terms of
this Agreement for transactions entered into by:

i. You on Your behalf;
ii. Anyone acting as Your agent; and

iii, Anyone who uses the account You have established with DBP,
whether or not the transactions were on Your behalf and/or
authorized by You.

You agree You will be bound by representations made by third parties acting on
Your behalf, which either use or purchase services from DBP. You further agree
that DBP will not be bound by statements of a general nature on DBP's website
or DBP promotional materials. You further agree to abide by the terms and
conditions promulgated by the Intemet Corporation for Assigned Names and
Numbers ("ICANN") (including the Uniform Domain Name Dispute Resolution
Policy ("Dispute Resolution Policy") and Your Registrar (i.e, the ICANN-
accredited person or entity through which You register a domain name).

4. DESCRIPTION OF DBP'S PRIVATE REGISTRATION SERVICES

When You subscribe to DBP's private registration service through a DBP-
affiliated Registrar, each available domain name registration You designate will
thereafter be registered in the name of DBP, as Registrant. In exchange for
DBP becoming the Registrant of each domain name registration on Your behalf,
DBP shall keep Your name, postal address, email address, phone and fax
numbers confidential, subject to Section 4 of this Agreement. When DBP
becomes the Registrant of Your domain name registration, the

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19/29/2015, Legal Agreement

will, within five (5) business days, provide such information to GoDaddy so
GoDaddy may update its registration records. You will retain copies of all
communications between you and your customers and will upon request provide
GoDaddy copies of same.

7. YOUR OBLIGATIONS; SUSPENSION OF SERVICES; BREACH
OF AGREEMENT

You represent and warrant to the best of your knowledge that, neither the
registration of the domain nor the manner it is directly or indirectly used,
infringes the legal rights of any third party. You will comply with all applicable
laws, including, but not limited to those relating to privacy, data collection,
consumer protection, fair lending, debt collection, organic farming, and
disclosure of data and financial disclosures. {f you collect and maintain
sensitive health and financial data, you must implement reasonable and
appropriate security measures commensurate with the offering of those
services, as defined by applicable law. You represent that you possess any
necessary authorization, charter, license, and/or other related credential for
participation in the sector associated with the associated registry tld string. You
will report any material changes to the validity of your authorization, charter,
license, and/or other related credential. You will indemnify and hold harmless the
registrar and registry operator, and their directors, officers, employees and
agents, from and against any and all claims, damages, liabilities, costs and
expenses (including reasonable legal fees and expenses) arising out of or related
to the domain name registration. This obligation shall survive expiration or
termination of this Agreement or the domain name registration.

You agree that, in addition to other events set forth in this Agreement:

i. Your ability to use any of the services provided by GoDaddy is
subject to cancellation or suspension in the event there is an
unresolved breach of this Agreement and/or suspension or
cancellation is required by any policy now in effect or adopted later
by ICANN;

ii. Your registration of any domain names shall be subject to
suspension, cancellation or transfer pursuant to any ICANN adopted
specification or policy, or pursuant to any GoDaddy procedure not
inconsistent with an ICANN adopted specification or policy (a) to
correct mistakes by GoDaddy or the registry operator in registering
any domain name; or (b) for the resolution of disputes conceming
any domain name.

You acknowledge and agree that GoDaddy and registry reserve the right to
deny, cancel or transfer any registration or transaction, or place any domain
name(s) on registry lock, hold or similar status, as either deems necessary, in
the unlimited and sole discretion of either GoDaddy or the registry: (i) to comply
with specifications adopted by any industry group generally recognized as
authoritative with respect to the Intemet (e.g., RFCs), (ii) to correct mistakes
made by registry or any registrar in connection with a domain name registration,
(iii) for the non-payment of fees to registry, (iv) to protect the integrity and
stability of the registry, (v) to comply with any applicable court orders, laws,
govemment rules or requirements, requests of law enforcement, or any dispute
resolution process, (vi) to comply with any applicable ICANN rules or
regulations, including without limitation, the registry agreement, (vii) to avoid any
liability, civil or criminal, on the part of registry operator, as well as its affiliates,
subsidiaries, officers, directors, and employees, (viii) per the terms of this
Agreement, (ix) following an occurrence of any of the prohibited activities

https://uk.godaddy.com/agreements/showdoc.aspx ?pageid=REG_ SA&isc=gofduk29


Co me WB AW WD RF BD

EXHIBIT C

DOMAINS BY PROXY AGREEMENT



11/29/2015. Randazza Legal Group - First Amendment lawyers, intellectual property lawyers, copyright lawyers, trademark lawyers, internet lawyers

Peer Review Rated
For Ethical Standards & Legal Ability”

PREEMINENTTM

Martindale-Hubbell®

from LexisNexis®

pillrandazza.com/marc-j-randazza/ 4


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the forum state. See Panavision Int’l L.P. v. Toeppen, 141 F.3d 1316, 1321 (9th Cir.
1998) (applying the purposeful direction test in the context of a trademark case).

Purposeful direction is evaluated under the “effects” test outlined in the Supreme
Court’s decision in Calder v. Jones, 465 U.S. 783, 787-91 (1984). The Calder effects
test is summarized as: defendant (a) committed an intentional act, (b) expressly aimed at
the forum state, (c) causing harm that the defendant knows is likely to be suffered in the
forum state.” Yahoo! Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d
1199, 1206 (9th Cir. 2006). In evaluating these factors here, though the registration of
the Wanat domains may be an “intentional act” necessary to satisfy the first prong of the
test, it is evident that none of the Plaintiff's allegations are sufficient to carry its burden
of satisfying the second or third prongs of the test.

In the “express aiming” analysis, the act must be a deliberate attempt to cause
harm in the forum state and not an untargeted negligence. Calder, 465 U.S. at 789. The
express aiming requirement is only satisfied when the defendant is alleged to “have
engaged in wrongful conduct targeted at a plaintiff whom the defendant knows to be a
resident of the forum state. Mere foreseeability of the harm is not enough; the defendant
must individually target the plaintiff.” Schwarzenegger, 374 F.3d at 807.

For interactive websites, the Ninth Circuit has adopted the Zippo Mfg. Co. v.
Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997), sliding scale approach,
holding that “the likelihood that personal jurisdiction can be constitutionally exercised is

directly proportionate to the nature and quality of commercial activity that an entity

8
MOTION TO DISMISS AND RESPONSE TO ORDER TO SHOW CAUSE



EXHIBIT A
DECLARATION OF MARCIN WANAT



11/29/2015,

Legal Agreement

If your Services include Domain Name System Security Extensions
(‘DNSSEC”), you will be able to secure your domain names with DNSSEC.
DNSSEC is designed to protect you from forged DNS data so “hackers” cannot
direct visitors to your website to a forged site.

DNSSEC works by using public key cryptography. You acknowledge and agree
that if the keys do not match, a visitor's lookup of your website may fail (and
result in a “website not found” error) and we assume no liability or responsibility
regarding the same. In addition, DNSSEC responses are authenticated, but not
encrypted. You acknowledge and agree that DNSSEC does not provide
Confidentiality of data, and we assume no liability or responsibility regarding the
same.

We prohibit the running of a public recursive DNS service on any server. All
recursive DNS servers must be secured to allow only intemal network access or
a limited set of IP addresses. We actively scan for the presence of public
recursive DNS services and reserves the right to remove any servers from the
network that violate this restriction.

11. PRE-REGISTRATIONS

If you submit an application for pre-registration of a domain name, GoDaddy
does not guarantee that the name will be secured for you, or that you will have
immediate access to the domain name if secured. GoDaddy may use third-
party service providers for the pre-registration services.

12. PROVISIONS SPECIFIC TO ALL REGISTRATIONS

Unless otherwise noted, the provisions below in this Section 12 are
generally applicable to all TLDs that we offer. Special provisions specific
to any TLD or ccTLD (those in addition to posted Registry Policies) are
identified elsewhere below in this Agreement.

Registry Policies. You agree to be bound by all Registry Policies (defined above
in this Agreement) applicable to your domain name registration (at any level). IT
IS YOUR RESPONSIBILITY TO VISIT THE APPLICABLE TLD SITE AND
READ AND REVIEW ALL APPLICABLE REGISTRY POLICIES PRIOR TO
YOUR REGISTRATION IN THE TLD. REGISTRY POLICIES FOR EACH
TLD CAN BE FOUND BY VISITING THE CORRESPONDING TLD LINK
LISTED HERE. Notwithstanding anything in this Agreement to the contrary, the
Registry Operator of the TLD in which the domain name registration is made is
and shall be an intended third party beneficiary of this Agreement. As such the
parties to this agreement acknowledge and agree that the third party beneficiary
fights of the Registry Operator have vested and that the Registry Operator has
relied on its third party beneficiary rights under this Agreement in agreeing to
GoDaddy being a registrar for the respective TLD. The third party beneficiary
tights of the Registry Operator will survive any termination of this Agreement.

Registration Requirements. To the extent any TLD or ccTLD requires you meet
eligibility (e.g., residency for .JP, .EU, etc.), validation (e.g., DNS validation) or
other authentication requirements as a condition to registering a domain name in
the TLD, you agree that by submitting an application or registering or renewing
your domain name, you represent and warrant that: (a) all information provided to
register or renew the domain name (including all supporting documents, if any) is
true, complete and correct, and is not misleading in any way, and the application
is made in good faith; (b) you meet, and will continue to meet, the eligibility
criteria prescribed in the Registry Policies for the applicable TLD for the duration
Of the domain name registration; (c) you have not previously submitted an

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EXHIBIT E

RANDAZZA WEBSITE



12912015 Legal Agreement
by the various copyright, patent, trademark, service mark and trade secret laws
of the United States, as well as any other applicable proprietary rights and laws,
and that DBP expressly reserves its rights in and to all such content and
materials.

You further understand and agree You are prohibited from using, in any manner
whatsoever, any of the afore-described content and materials without the
express written permission of DBP. No license or right under any copyright,
patent, trademark, service mark or other proprietary right or license is granted to
You or conferred upon You by this Agreement or otherwise.

40. MISCELLANEOUS PROVISIONS

a. Severability; Construction; Entire Agreement

If any part of this Agreement shall be held to be illegal, unenforceable or invalid,
in whole or in part, such provision shall be modified to the minimum extent
necessary to make it legal, enforceable and valid, and the legality, enforceability
and validity of the remaining provisions of this Agreement shall not be affected
or impaired. The headings herein will not be considered a part of this Agreement.
You agree this Agreement, including the policies it incorporates by reference,
constitute the complete and only Agreement between You and DBP regarding
the services contemplated herein.

b. Governing Law; Venue; Waiver Of Trial By Jury

This Agreement shall be govemed in all respects by the laws and judicial
decisions of Maricopa County, Arizona, excluding its conflicts of laws rules.
Except as provided immediately below, You agree that any action relating to or
arising out of this Agreement, shall be brought exclusively in the courts of
Maricopa County, Arizona. For the adjudication of domain name registration
disputes, you agree to submit to the exclusive jurisdiction and venue of the U.S.
District Court for the District of Arizona located in Phoenix, Arizona. You agree
to waive the right to trial by jury in any proceeding, regardless of venue, that
takes place relating to or arising out of this Agreement.

c. Notices

All notices from DBP to You will be sent to the email address You provided to
DBP. Notices by email shall be deemed effective twenty-four (24) hours after
the email is sent by DBP, unless DBP receives notice that the email address is
invalid, in which event DBP may give You notice via first class or certified mail,
retum receipt requested. All notices from You to DBP shall be sent via certified
mail, retum receipt requested or traceable courier to:

Domains By Proxy, LLC
Attn: General Counsel
14455 North Hayden Rd.
Suite 219

Scottsdale, AZ 85260

Notices sent via certified mail or traceable courier shall be deemed effective five
(5) days after the date of mailing.

d. Insurance

In the unlikely event You lose Your domain name registration to a third party
solely as a result of DBP’s negligent actions (and absent fraud or other negligent
or willful misconduct committed by a third party), You may be insured against

tine-/hie andladdy cam lanreements/showdoc.asox?naacid=DOMAIN. NAMEPROXY&isc=gofduk29


1/29/2015

Legal Agreement

such loss through DBP's Professional Liability Insurance Policy, which is
currently underwritten by American Intemational Insurance Company. Of course,
every claim is subject to the then-carrier’s investigation into the facts and
circumstances surrounding such claim. In the event You have reason to believe
that circumstances exist which warrant the filing of an insurance claim, please
send a written notice (specifying the basis for such claim), via certified mail,
retum receipt requested, to:

Domains By Proxy, LLC
Attn: Insurance Claims
14455 North Hayden Rd.
Suite 219

Scottsdale, AZ 85260

e. Indemnification

In the unlikely event You lose Your domain name registration to a third party
solely as a result of DBP's willful misconduct, Your Registrar (the “Indemnifying
Party”) will indemnify and hold You harmless against any losses, damages or
costs (including reasonable attomeys' fees) resulting from any claim, action,
proceeding, suit or demand arising out of or related to the loss of Your domain
name registration. Such indemnification obligations under this Section 10(e) are
conditioned upon the following:

i. That You promptly give both DBP and the Indemnifying Party
written notice of the claim, demand, or action and provide
reasonable assistance to the Indemnifying Party, at its cost and
expense, in connection therewith, and

ii. That the Indemnifying Party has the right, at its option, to control
and direct the defense to any settlement of such claim, demand, or
action.

Any notice conceming indemnification shall, with respect to DBP, be sent in
accordance with Section 10(c) of this Agreement. With respect to Your
Registrar, notices regarding indemnification should be sent in accordance with
the notification provisions contained in Your Registrars Domain Name
Registration Agreement.

f. Term of Agreement; Survival

The terms of this Agreement shall continue in full force and effect as long as
DBP is the Registrant for any domain name on Your behalf. Sections 5
(Communications Forwarding), 6 (Limitation of Liability), 7 (Indemnity), 8
(Warranty Disclaimer) and 10 (Miscellaneous Provisions) shall survive any
termination or expiration of this Agreement.

Revised: 22/09/2015
Copyright © 2003-2015 GoDaddy.com, LLC All Rights Reserved.

weer eee BEANE AIM AMER DAV Dinnmnnfet 90,


19/29/2015,

Legal Agreement

Listing Domain Names. You may use the Services to list domain names to
which You: (i) have ownership rights for sale; and (ii) are able to transfer in
accordance with Your obligations under this Agreement. By using the Services
for such purposes, You represent and warrant that: (i) You have all rights, titles
and interests in the domain name necessary to complete the transaction; (ii) the
domain name does not infringe on the intellectual property rights of anyone else;
and (iii) You have the right to transfer the domain name in accordance with Your
obligations under this Agreement. You further agree the domain name is not
currently or will not in the foreseeable future be associated with a Uniform
Dispute Resolution Policy Dispute or other such litigation. In the event You are
unable to comply or fail to comply with Your obligations under this Agreement,
we expressly reserves the right to delist any or all of Your domain names
immediately upon becoming aware of Your failure to comply. You may list Your
domain name for any duration offered on the web site. You agree to pay the
listing fee associated with the duration period You choose at the time of the
listing. You may choose to supplement the listing with various additional
services provided, if any. By using the additional services, You agree to pay any
additional charges we may associate with the additional services. We reserve
the right to modify its pricing structure at any time. If You find a Buyer using the
Services, the transaction must be completed within the Services. For each
transaction completed within the Services, You agree to pay us a transaction
fee according to the fee schedule published on the site . Such transaction fee
will be payable directly to us. You agree You will not sell the domain name to
any Buyer found through the Services without using the Services to complete
the transaction. Should we find You are circumventing the Services, we reserve
the right to terminate Your account and cancel all of Your listings. In the event
that you update your sale price, you acknowledge and agree that it may take up
to 24 hours to update the price shown to buyers. In the event your domain
name sells prior to the price being updated on the website, you agree that the
price listed will be enforced.

Purchasing Domain Names. As a Buyer, You are obligated to complete the
transaction if You purchase the domain name. You acknowledge that some
listed domain names may be subject to an additional registration fee. For those
domain names, the registration fee will be added to the price to form the
purchase price. You agree that by completing the transaction, You are
responsible for payment of the registration fee. By initiating and sending
payments through the Service, You appoint us as Your agent to obtain the funds
on Your behalf and transfer them to the recipient You designate. We will obtain
the funds first by the Payment Method You have designated. If there are
insufficient funds or invalid credit card information, we may obtain the remaining
funds by charging any Payment Method You have on file. Once You send
payment, we will hold those funds as Your agent for a prescribed period of time
based on the type of transaction, at which time we will release the funds to the
Seller. At no time will You be able to withdraw those funds or send the funds to
another recipient unless the initial transaction is canceled. Should the Seller
refuse payment, the funds, minus the administration fee as outlined in the
pricing structure, will be retumed to You. You agree that we are not responsible
for payments refused by Seller.

Transfer of Ownership. We does not own all of the domain names listed on the
Site and cannot guarantee immediate transfer. For domain names we do own,
transfer of ownership will begin upon completion of the check out procedure.
Further, the transfer by us of any domain name to a buyer is done without
warranty and we expressly waive any and all warranties or representations that
a domain name does not infringe upon the intellectual rights of a third party.

ittps://uk.godaddy.com/agreem ents/showdoc.aspx ?pageid=REG_SA&isc=gofduk29


4112972015 Fwd: SERVICE OF COURT DOCUMENTS / AMA Multimedia, LLC v. Marcin Wanet, et al. 1: Case No. 2:15-cv-01674-ROS - safrick@domelaw.com ...

From: Trey Rothell <tar@randazza.com>

Subject: SERVICE OF COURT DOCUMENTS / AMA Multimedia, LLC v. Marcin
Wanat, et al. / Case No. 2:15-cv-01674-ROS

Date: November 18, 2015 at 10:33:35 AM PST

To: marcin.wanat@qmail.com, epomer@epomer.com, contact@epomer.com

Ce: "Marc J. Randazza” <mj .com>, Ron Green <rdg@randazza.com>

Dear Mr. Wanat:

As you are likely already aware, AMA Multimedia, LLC (‘AMA’) has initiated a lawsuit
against you and others in the U.S. District Court for the District of Arizona. The Court has
granted our Motion for Order Permitting Alternative Service and given us leave to serve
you via electronic mail. The Court has additionally entered a Temporary Restraining Order
against you as described in our Motion for Temporary Restraining Order and Preliminary
Injunction. Both of those documents are attached, as are the Amended Complaint,
Summons, Motion to File Under Seal, the Minute Orders granting those motions, and the
exhibits to these documents. Please note that the Minute Order provides that you must
appear and show cause regarding why a Preliminary Injunction should not be entered
against you no later thanNi VEMBER 30,. 2015.

While the Minute Order granting the Motions for Alternative Service and Temporary
Restraining Order is attached, the formal orders are currently under seal. The Court is
mailing them to us. We will be forwarding them to you at these email addresses as soon
as we receive them. In the meantime, feel free to contact us if you have any questions.

Trey A. Rothell* | Randazza Legal Group, PLLC
3625 S. Town Center Drive Las Vegas, NV 89135

Tel: (702) 420-2001 | Email: tar@randazza.com

* Paralegal; not licensed to practice law.

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11/29/2015,

Legal Agreement

iii. “Outage”: A period in which the Global Nameserver Infrastructure
did not maintain 99.999% availability.

Exclusions. For the purposes of the Service Uptime Guarantee, downtime due
to the following events shall not be considered an Outage:

i. Service interruptions caused by “Regularly Scheduled
Maintenance’, which shall be defined as any maintenance

performed on the Global Nameserver Infrastructure of which
customer is notified twenty-four (24) hours in advance. Email
notice of Regularly Scheduled Maintenance shall be provided to
customer's designated email address;

ii. Service interruptions caused by you from custom scripting, coding,
programming or configurations;

iii, Service interruptions caused by you from the installation of third-
party applications;

iv. Service interruptions that do not prevent visitors from accessing
your website, but merely affect your ability to make changes to
your website, including but not limited to, changes via mechanisms
such as file transfer protocol (“ETP”) and email; or

v. Service interruptions beyond the reasonable control of us or that are
not reasonably foreseeable by us, including, but not limited to,
power outages, interruption or failure of telecommunication or digital
transmission links, hostile network attacks, network congestion or
other failures.

We, in our sole and absolute discretion, shall determine whether an event shall
be considered an Outage.

Remedies. For the purposes of the Service Uptime Guarantee, when the
customer becomes aware of an Outage, the customer shail open a ticket with
our technical support services within five (5) calendar days of the Outage. If we
determine that an Outage did occur, then the customer shall receive a service
credit in the amount of two (2) months for any affected Services. The service
Credit shall be applied as an extension to the term of the affected Services. A
customer's Account shall not be credited more than once per month under the
Service Uptime Guarantee.

To qualify for a service credit, you must have a current and valid subscription to
the Services affected, and must have an Account in good standing with us.
Service credits will not apply to any charges or Services other than the Services
for which the Service Uptime Guarantee was not met. Customers with
subscriptions for more than one Service will not receive credits for unaffected
Services. The remedies set forth herein shall be the sole and exclusive
remedies if we do not meet the Service Uptime Guarantee.

In the event either party is unable to carry out its material obligations under this
Agreement by reason of Force Majeure those obligations will be suspended
during the continuance of the Force Majeure, provided the cause of the Force
Majeure is remedied as quickly as practicable. The term “Force Majeure” means
any event caused by occurrences beyond a party's reasonable control,
including, but not limited to, acts of God, fire or flood, war, terrorism,
governmental regulations, policies or actions enacted or taken subsequent to
execution of this Agreement, or any labor, telecommunications or other utility
shortage, outage or curtailment.

s://uk.godaddy.com/agreements/showdoc.asox?padeid=REG SASisc=onfdiuk29

47m


11/29/2015, Reandazza Legal Group - First Amendment lawyers, intellectual property lawyers, copyright lawyers, trademark lawyers, internet lawyers

RANDAZZA
LEGAL GROUP

MARC J. RANDAZZA, Partner

¢ Home

e/

¢ MARC J. RANDAZZA, Partner

Education

B.A. — University of Massachusetts
(Journalism)

M.A.M.C. — University of Florida
Master of Arts in Mass
Communication Law

Juris Doctor — Georgetown University
Law Center

LL.M. in International Intellectual
Property Law — Universita degli
Studi di Torino



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ARGUMENT

L The Defendant Had Insufficient Notice to Respond to the Motion for
Preliminary Injunction.

“Notice and a meaningful opportunity to be heard are the hallmarks of procedural
due process.” Ludwig v. Astrue, 681 F.3d 1047, 1053 (9th Cir. 2012). In the present case,
the Plaintiff has provided the Defendant with little notice and little opportunity for
meaningful response to the request for injunctive relief.

Plaintiff AMA Multimedia LLC (“AMA” or the “Plaintiff’) served Wanatby
email on November 18, 2015 (See Randazza Emails, attached hereto as Exhibit B). The
Court’s Order, which was filed under seal, issued on November 17, 2015. Inexplicably,
that Order, which required the instant response no later than November 30, 2015, was
not provided to Wanat until November 24, 2015 (See id.). The Plaintiff's excuse for
failing to provide the Order for an entire week was that it had not yet been received (See
Id).

Accordingly, the Defendant has had little opportunity to review the evidence or
the arguments that the Plaintiff set forth in his Motion. Moreover, the Defendant has
only been provided with one judicial day to file this response.!

For this reason alone, Wanat has demonstrated good cause as to why the
Preliminary Injunction should not be granted until he has a more meaningful opportunity
to review and respond to the Plaintiff's evidence and arguments. However, in the
interim, Defendant will attempt to reply to the substance of the Order.

' Wanat received the Order on the afternoon of November 24. The Court was closed on Thursday and

4

MOTION TO DISMISS AND RESPONSE TO ORDER TO SHOW CAUSE



19/29/2015 Legal Agreement

You agree that, to the extent permitted by ICANN, GoDaddy may make use of
the publicly available information you provided during the registration process. If
you engage in the reselling of domain names you agree to provide any
individuals whose personal information you've obtained, information about the
possible uses of their personal information pursuant to ICANN policy. You also
agree to obtain consent, and evidence of consent, from those individuals for
such use of the personal information they provide.

In order for us to comply with any current or future rules and policies for domain
name systems including any rules or policies established by the CIRA or any
provincial or federal govemment or by other organization having control or
authority to establish rules or policies, you hereby grant to us the right to
disclose to third parties through an interactive publicly accessible registration
database the following information that you are required to provide when
applying for a domain name:

i. The domain or sub-domain name(s) registered by you;
ii. Your organization name, type and postal address;

ii, The name(s), position(s), postal address(es), e-mail address(es),
voice telephone number(s) and where available the fax number(s) of
the technical and administrative contacts for your domain or sub-
domain name(s);

iv. The full hostnames and Intemet protocol (IP) addresses of at least
two (2) name server hosts (one primary and at least one secondary)
for your domain or sub-domain name. Up to six (6) name servers
may be specified. If a host has more than one (1) IP address, use a
comma-separated list;

v. The corresponding names of those name servers;
vi. The original creation date of the registration; and
vii. The expiration date of the registration.

We may be required to make this information available in bulk form to third
parties. We may also transfer or assign this information to CIRA or such other
third party as we may decide, in our sole discretion.

5. DISPUTE RESOLUTION POLICY

You agree to be bound by our current Dispute Resolution Policy. This policy is
incorporated herein and made a part of this Agreement. You can view the
Uniform Domain Name Dispute Resolution Policy online. You agree that
GoDaddy may from time to time modify its Dispute Resolution Policy. GoDaddy
will post any changes to its Dispute Resolution Policy at least thirty (30) days
before they become effective. You agree that by maintaining your domain name
registrations with GoDaddy after the updated policy becomes effective that you
agree to the Dispute Resolution policy as amended. You agree to review
GoDaddy's website periodically to determine if changes have been made to the
Dispute Resolution Policy. If you cancel or terminate your Services with
GoDaddy as a result of the modified Dispute Resolution policy, no fees will be
refunded to you. You also agree to submit to proceedings commenced under
ICANN's Uniform Rapid Suspension System, if applicable.

You agree that if a dispute arises as a result of one (1) or more domain names
you have registered using GoDaddy, you will indemnify, defend and hold
GoDaddy harmless as provided for in this Agreement. You also agree that if
GoDaddy is notified that a complaint has been filed with a govemmental,

https //uk.qodaddy.com /aareements/showdoc.aspx?pageid=REG SAsisc=qofduk29


2912015 Legal Agreement

If your domain name is deleted, the Registry also provides a 30-day Redemption
Grace Period during which you may pay GoDaddy a redemption fee and redeem
your domain name. The redemption fee is currently $80.00 USD and is subject
to change under the terms of this Agreement. If you do not redeem your domain
name prior to the end of the Registry's Redemption Grace Period the Registry
will release your name and it will become available for registration on a first-
come-first-served basis.

Renewal Grace Periods and Redemption Grace Periods vary for different
ccTLDs. Please refer to the specific terms for the applicable TLD. In the event
there is a conflict between the provisions of this paragraph and the ccTLD
terms, the ccTLD terms shall control.

Our registration expiration notification policy and associated fees are described
here.

(C) FREE PRODUCT TERMS

In the event you are provided with free products with the registration of a domain
name, you acknowledge and agree that such free products will only be available
with a valid purchase and may be terminated in the event the domain name is
deleted or cancelled. For free domain names, you acknowledge and agree that
you may not change the account associated with such free domain for the first
five (5) days after registration. In the event a free domain name is offered with
the registration of another domain and if the paid domain name registered fails,
then we may, in its sole discretion, either delete the registration of the free
domain or refund the difference between the amount paid and the value of the
free domain. Failed registrations associated with promotionals offers may result
in the deletion of the free or discounted item or an adjustment between the
registered domain price and the value of the discounted item, in our sole
discretion.

3. TERM OF AGREEMENT; TRANSFERS; DOMAIN TASTING

The term of this Agreement shall continue in full force and effect as long as you
have any domain name registered through GoDaddy.

You agree that you will not transfer any domain name registered through
GoDaddy to another domain name registrar during the first sixty (60) days after
its initial registration date. You agree that you may not transfer any domain
name for ten (10) days after a Change of Account.

You further agree that you will not engage in “domain tasting” by using the five
(5) day grace period in which a registrant may choose to cancel a domain name
and get a full refund of the registration fee as a vehicle to test the marketability
or viability of a domain name. !f GoDaddy determines (which determination
shall be made by GoDaddy in its sole and absolute discretion) that you have
been engaging in “domain tasting", then GoDaddy reserves the right to (a)
charge you a small fee (which fee shail be deducted from any refund issued) or
(b) refuse your cancellation/refund request altogether. GoDaddy will not charge
you a fee if GoDaddy cancels your domain name during the five (5) day grace
period due to fraud or other activity outside of your control. The five (5) day
grace period does not apply to Premium Domains, which are non-refundable.

You agree that GoDaddy shall not be bound by (i) any representations made by
third parties who you may use to purchase services from GoDaddy, or (ii) any
statements of a general nature, which may be posted on GoDaddy’s website or
contained in GoDaddy's promotional materials.

httre:/hik andacidv.com faareements/showdoc.2spx?pedeid=REG SAsisc=qofduk29


11/29/2015 Randazza Legal Group - First Amendment lawyers, intellectual property lawyers, copyright lawyers, trademark lawyers, internet lawyers

Offices

PHILADELPHIA
LAS VEGAS 2424 E York St
3625S TownCenterDr Ste 316
Las Vegas, NV 89135 Philadelphia, PA 19125

702.420.2001 215.385.LAW] (5291)
MIAMI

. 345 Grove St
2 S. Biscayne Blvd San Francisco, CA 94102
Ste 2600 415.404.6615
Miami, FL 33131
305.791.2891 Contact Info

Toll Free:: 888 / 667 - 1113
Fax: 305 / 437 - 7662

Email: info@randazza.com

Search Our Site
Search Qi
° Home
¢ Team
> Tenmsofse/Pnvacy

© 2015 Randazza Legal Group, PLLC. All rights reserved.

http/randazza.com/marc-j-randazza/

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personal jurisdiction over the parties and subject matter jurisdiction over the claim.”
Zepeda v. U.S. Immigration Serv., 753 F.2d 719, 727 (9th Cir. 1985).

b. Success on the Merits Is Not Likely Because Marcin Wanat Is Not the
Registrant of Eporner.com.

The basis of the Plaintiff’s infringement claims rests with the idea that Wanat is
the registrant? of eporner.com and is thus liable in some way for the allegedly infringing
content that was posted on the site by third-party users. Wanat categorically denies that
this is the case (Exhibit A). The Plaintiff admits that he has not been successful in
establishing the identity of the registrant of this domain. Even the Court’s Order states
that “because the Eporner site appears to be owned and operated by Wanat, AMA has
established a strong likelihood of success . . . .” (Dkt. No. 19)(emphasis added).

The facts allegedly supporting that Wanat is the registrant of eporner.com are
dubious at best and ambiguous at worst, meaning they are “susceptible to more than one
reasonable interpretation.” Alaska Wilderness League v. U.S. E.P.A., 727 F.3d 934, 938
(9th Cir. 2013) These “facts” are apparently as follows: (1) “[CJhanges were made to the
Eporner site very shortly after Godaddy provided notice that Wanat’s identity had been
requested,” and (2) “After Wanat received notice of this lawsuit, Wanat deleted AMA’s
works from the Eporner site.”

These facts are susceptible to multiple reasonable conclusions, each of which
does not entail legal ownership of eporner.com, such as: Wanat knows and

communicates with the owners of eporner.com, Wanat has a business relationship with

> The registrant is the legal owner of a domain.

15
MOTION TO DISMISS AND RESPONSE TO ORDER TO SHOW CAUSE



11/29/2015

Legal Agreement

inaccessible or inoperable for any reason, including, without limitation: (i)
equipment malfunctions; (ji) periodic maintenance procedures or repairs that we
may undertake from time to time; or (iii) causes beyond the reasonable control of
us or that are not reasonably foreseeable by us, including, without limitation,
interruption or failure of telecommunication or digital transmission links, hostile
network attacks, network congestion or other failures. You acknowledge and
agree that we has no control over the availability of the service on a continuous
or uninterrupted basis.

Total/Premium DNS. Total DNS is a complete Domain Name System (“DNS”)
tool that allows you to manage your DNS and keep your website and web-based
applications available and performing reliably. The service is provided “as is”,
“as available”, and “with all faults”, and we assume no liability or responsibility
regarding the same.

In addition, you specifically acknowledge and agree that we shall have no
liability or responsibility for any:

i. Service interruptions caused by periodic maintenance, repairs or
replacements of the Global Nameserver Infrastructure (defined
below) that we may undertake from time to time;

ii. Service interruptions caused by you from custom scripting, coding,
programming or configurations;

iii. Service interruptions caused by you from the installation of third-
party applications;

iv. Service interruptions that do not prevent visitors from accessing
your website, but merely affect your ability to make changes to
your website, including but not limited to, changes via mechanisms
such as file transfer protocol (“ETP”) and email; or

v. Service interruptions beyond the reasonable control of us or that are
not reasonably foreseeable by us, including, but not limited to,
power outages, interruption or failure of telecommunication or digital
transmission links, hostile network attacks, network congestion or
other failures.

Subject to the provisions of Force Majeure below, we offer a service uptime
guarantee (“Service Uptime Guarantee”) for paid services of 99.999% availability
(defined below). You shall receive service credits for any Outage (defined
below) of the service covered by the Service Uptime Guarantee. The service
credits shall be applied as extensions to the terms of the affected Service. The
Service Uptime Guarantee shall become effective fourteen (14) days after your
purchase of the Service covered by the Service Uptime Guarantee to allow both
parties time to properly configure and test the Service.

Definitions. For the purposes of the Service Uptime Guarantee, the following
definitions shall apply:

i. “Global_Nameserver Infrastructure’: The group of systems
(servers, hardware, and associated software) that are responsible
for delivering the Services. The Global Nameserver Infrastructure
does not include web-based user interfaces, zone transfer
mechanisms, update systems, or other customer-accessible data

access or manipulation methods.

li. “99.999% availability’: A guarantee that the Global Nameserver
Infrastructure shall be available to respond to DNS queries
99,999% of the time.

tps://uk.godaddy.com/agreements/showdoc.aspx?paaeid=REG SAS&isc=aofduk29

18194.


11/29/2015,

Legal Agreement

non-transferable, non-assignable, non-sublicensable license to use the Instant
Mobilizer service (“Service”), provided, however, You abide by the terms and
Conditions set forth. You shall not alter, modify, adapt or translate the whole or
part of the Service in any way whatsoever. You may not create derivative works
based on the Service. You may not rent, lease, assign, dispose of, novate, sub-
license or otherwise transfer any of its tights to use the Service to any third
party. In the event that the volume of traffic to You from Your use of the
Service is sufficient so as to jeopardize the provision of Service for other end
users, we and our licensors reserve the right to, at its sole discretion,
Permanently or temporarily, discontinue Your use of the Service. For the
avoidance of doubt, the volume of traffic generated by You should not exceed
two thousand (2,000) page views per day. You acknowledge and agree the text
“Instant Mobilizer from dotMobi" or equivalent, will be inserted at the footer of
Your site. In the event a dotMobi domain to which the Service is being provided
is transferred to another domain name registrar, the Service will be interrupted
on that dotMobi domain, and Service will not be restored if the new registrar
does not offer the Service.

16. PROVISIONS SPECIFIC TO .NAME REGISTRATIONS

Defensive Registration. A Defensive Registration is a registration designed for
the protection of trademarks and service marks and may be granted to prevent a
third party from registering a variation of a trademark or the exact trademark. If
the name you wish to register is subject to a Defensive Registration, you have
three (3) options: (i) you may register a variation of the name, (ii) you may
Challenge the Defensive Registration under the Eligibility Requirements Dispute
Resolution Policy, or (iii) you may request Consent from the Defensive
Registrant. You can request Consent by contacting the Defensive Registrant
listed in the GNR Whois database and requesting consent to register the
-NAME domain name. If the Defensive Registrant grants consent, they must
confirm in writing that they grant consent. If the Defensive Registrant does not
grant consent, you may wish to challenge the Defensive Registration under the
ERDRP.

Acceptable Use Policy. You agree to be bound by the .NAME Acceptable Use
Policy, which is hereby incorporated by reference. Among other limitations, this
Policy prohibits you from using your .NAME Email to engage in Spamming
activities. You will be limited to a maximum of five hundred (500) messages
sent from your .NAME at a time.

17. PROVISIONS SPECIFIC TO .REISE REGISTRATIONS

Domain Names registered in .REISE should be used for purposes dedicated to
travel topics within six months following initial Registration, e.g. utilized on the
Intemet or otherwise used to perform a function.

18. PROVISIONS SPECIFIC TO .SEXY REGISTRATIONS

You shall not permit content unsuitable for viewing by a minor to be viewed from
the main or top-tevel directory of a .SEXY domain name. For Purposes of clarity,
Content viewed at the main or top-level directory of a SEXY domain name is the
Content immediately visible if a user navigates to http://example.sexy or
http://www.example.sexy. No restrictions apply to the content at any other page
or subdirectory addressed by a .SEXY Registered Name.

19. OTHER COUNTRY CODE TOP LEVEL DOMAINS
You represent and warrant that you meet the eligibility requirements of each

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found that even actively sending a hyperlink to a person that directs them to a website
containing infringing content fails as a matter of law to “constitute copyright
infringement.” See Pearson Educ., Inc. v. Ishayev, 963 F. Supp. 2d 239, 253-54
(S.D.N.Y. 2013).

The case for infringement is even more attenuated here. The Plaintiff
characterizes eporner.com as a “mega-theater.” Certainly this implies that there are
hundreds if not thousands of videos posted on the site. Many more than the 22 allegedly
infringing videos. In his Declaration, Troy Rothell had to navigate to the specific (and
rather long) URLs of the allegedly infringing works themselves to view them (See Dkt.
No. 7-5). It was insufficient to merely visit the home page of eporner.com to view the
Plaintiff's works. The Wanat Domains link to the main home page of this mega-theater,
epomner.com, and not to any of the allegedly infringing URLs, or any of the other
numerous videos on the site.

For these reasons, any alleged infringement claims that arise out of Wanat’s
ownership of these domains are unlikely to succeed on the merits. Further, as Wanat is
not the registrant of eporner.com, allegations based on his ownership are also unlikely to
succeed.

c. AMA Has Still Not Established Irreparable Harm, and the Balance of
the Equities Tips in the Defendant’s Favor.

The Plaintiff did not establish irreparable harm in his initial application for

injunctive relief and does not do so now. In granting such relief, this Court asserts that

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themselves are passive, containing no content. Id.

Shortly after learning of Wanat’s identity, the Plaintiff renewed his motion for
injunctive relief. This motion, which was filed under seal, is based on the additional
facts that Wanat moved his registrations from Godaddy to a foreign registrar, and that
eporner.com denied access to Nevada and Arizona Internet addresses. As a result of this,
the Plaintiff alleges that injunctive relief is necessary to prevent Wanat from dissipating
his assets.

Based on the Plaintiff’s allegations in his renewed, ex parte motion, this Court
granted the Plaintiff’s relief, and ordered Wanat to show cause as to why a preliminary
injunction should not issue for the remainder of the case. That Order was served on
Wanat on November 24, 2015, almost a full week after Wanat had been served with the
Complaint and only one judicial day before the deadline to respond to the order.

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1729/2015

Legal Agreement

YOU FURTHER UNDERSTAND AND AGREE THAT DBP DISCLAIMS
ANY LOSS OR LIABILITY RESULTING FROM:

i. THE INADVERTENT DISCLOSURE OR THEFT OF YOUR
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i. ACCESS DELAYS OR INTERRUPTIONS TO OUR WEBSITE
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v. THE UNAUTHORIZED USE OF YOUR DBP ACCOUNT OR
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vi. ERRORS, OMISSIONS OR MISSTATEMENTS BY DBP;

vi, DELETION OF, FAILURE TO STORE, FAILURE TO PROCESS
OR ACT UPON EMAIL MESSAGES FORWARDED TO EITHER
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viii, PROCESSING OF UPDATED INFORMATION REGARDING
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policy.
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DBP, ITS PARENT COMPANIES, SUBSIDIARIES, AFFILIATES,
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9. COPYRIGHT AND TRADEMARK

You understand and agree that all content and materials contained in this
Agreement, the Privacy Policy and the DBP website found here , are protected

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EXHIBIT B

RANDAZZA EMAILS



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MEMORANDUM OF POINTS AND AUTHORITIES

STATEMENT OF FACTS

The instant action, which alleges claims of copyright infringement, trademark
infringement, and unfair competition, was initiated by the Plaintiff on August 24, 2015.
Prior to naming Defendant Wanat in its First Amended Complaint (Dkt. No. 10),
Plaintiff filed for ex parte injunctive relief, which sought to deny use of the allegedly
offending domains eporner.com, eprncdn.com, and epornergay.com. That request was
denied by this Court for lack of a showing of irreparable harm (See Dkt. No. 9).

Ultimately, Plaintiff discovered the identity of the registrant of two of the
domains it believes to be at issue, epornergay.com and eprncdn.com (collectively,
“Wanat’s domains”), as Defendant Marcin Wanat and was given permission by this
Court to serve him via email.

Wanat, a Polish citizen, has virtually no connection to the United States. He has
never visited the United States, does not do business in the United States, does not sell
or advertise goods in the United States, does not pay taxes in the United States, and does
not have any tangible or real property, or liquid assets, in the United States (See
Declaration of Marcin Wanat, attached hereto as Exhibit A).

Wanat is not the registrant or owner of the domain eporner.com. Wanat’s only
connection to the United States is that he initially registered his two proxy domains with
Godaddy.com, an Arizona corporation. Wanat’s domains are hosted outside of the United

States. Wanat’s domains merely redirect users to the domain eporner.com. The domains

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MOTION TO DISMISS AND RESPONSE TO ORDER TO SHOW CAUSE



11/29/2015,

Legal Agreement
described in Section 8 below, or (x) during the resolution of a dispute.

You agree that your failure to comply completely with the terms and conditions
of this Agreement and any GoDaddy rule or policy may be considered by
GoDaddy to be a material breach of this Agreement and GoDaddy may provide
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breached your obligations to GoDaddy within ten (10) business days, GoDaddy
may terminate its relationship with you and take any remedial action available to
GoDaddy under the applicable laws. Such remedial action may be implemented
without notice to you and may include, but is not limited to, cancelling the
registration of any of your domain names and discontinuing any services
provided by GoDaddy to you. No fees will be refunded to you should your
Services be cancelled or terminated because of a breach.

GoDaddy's failure to act upon or notify you of any event, which may constitute a
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8. RESTRICTION OF SERVICES; RIGHT OF REFUSAL

You agree not to use the services provided by GoDaddy, or to allow or enable
others, to use the services provided by GoDaddy for the purposes of:

¢ The transmission of unsolicited email (Spam); and

Repetitive, high volume inquires into any of the services provided
by GoDaddy (i.e. domain name availability, etc.).

You acknowledge and agree that you are prohibited from distributing malware,
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that the consequences for such activities include suspension of the domain
name. :

If you are hosting your domain name system (‘DNS”) on GoDaddy’s servers, or
are using our systems to forward a domain name, URL, or otherwise to a
system or site hosted elsewhere, or if you have your domain name registered
with GoDaddy, you are responsible for ensuring there is no excessive
overloading on GoDaddy’s servers. You may not use GoDaddy’s servers and
your domain name as a source, intermediary, reply to address, or destination
address for mail bombs, Intemet packet flooding, packet corruption, or other
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name from its DNS if GoDaddy deems it is the recipient of activities caused by
your site that threaten the stability of its network.

You agree that GoDaddy, in its sole discretion and without liability to you, may
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sole discretion and without liability to you delete the registration of any domain
name during the first thirty (30) days after registration has taken place. GoDaddy
may also cancel the registration of a domain name, after thirty (30) days, if that
name is being used, as determined by GoDaddy in its sole discretion, in
association with spam or morally objectionable activities. Morally objectionable
activities will include, but not be limited to:

Activities prohibited by the laws of the United States and/or foreign
territories in which you conduct business; _

hitne:/htk cindaddv.com/aareaments/showdoc.2sox?oa08id=REG SA&isc=aofduk29


1/29/2015, ‘Legal Agreement.
domain name registration's administrative contact;

iv. The email address, postal address, phone and fax numbers for the
domain name registration's billing contact; and

v. You agree to provide govemment issued photo identification and/or
govemment issued business identification as required for
verification of identity when requested.

You agree to:

i. Notify DBP within three (3) calendar days when any of the personal
information You provided upon subscribing to DBP's services,
changes;

ii. Respond within three (3) calendar days to any inquiries made by
DBP to determine the validity of personal information provided by
You; and

iii. Timely respond to email messages DBP sends to You regarding
correspondence DBP has received that is either addressed to or
involves You and/or Your domain name registration, as more fully
set forth in Section 5(c) below.

It is Your responsibility to keep Your personal information current and accurate
at all times.

Renewals

You agree DBP, as Registrant, will arrange for Your Registrar to charge the
credit card You have on file with the Registrar, at the Registrars then current
rates.

Renewal fees, once charged, will be non-refundable. You may also elect to
disengage the automatic renewal feature for DBP's private registration services,
by logging into Your DBP customer account and disabling the privacy service. It
is Your responsibility to keep Your credit card information current and accurate,
including the expiration date.

If for any reason DBP and/or the Registrar for Your domain name is unable to
charge Your credit card for the full amount of the service provided, or if DBP
and/or the Registrar is charged back for any fee it previously charged to the
credit card You provided, You agree that DBP and/or the Registrar may, without
notice to You, pursue all available remedies in order to obtain payment, including
but not limited to immediate cancellation of all services DBP provides to You.

Representations and Warranties

You warrant that all information provided by You to DBP is truthful, complete,
current and accurate. You also warrant that You are using DBP's private
registration services in good faith and You have no knowledge of Your domain
name infringing upon or conflicting with the legal rights of a third party or a third
party's trademark or trade name. You also warrant the domain name being
registered by DBP on Your behalf will not be used in connection with any illegal
or morally objectionable activity (as defined below in Section 4), or, in
connection with the transmission of Spam, or that contains or installs any
viruses, worms, bugs, Trojan horses or other code, files or programs designed
to, or capable or, disrupting, damaging or limiting the functionality of any
software or hardware.

Account Security

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11/29/2015.

Legal Agreement

conditions set forth by (i) ICANN and/or (ji) the registry applicable to the TLD or
country code top level domain ("ccTLD") in question. As used herein, the terms
"registry", “Registry”, “registry operator” or "Registry Operator” shall tefer to the
registry applicable to the TLD or ccTLD in question. To identify the sponsoring
registrar, click here.

2. FEES AND PAYMENTS

(A) GENERAL TERMS, INCLUDING AUTOMATIC RENEWAL
TERMS

Please refer to the “Fees and Payments” section of our UTOS for fees,
payment, refund and billing terms and conditions applicable to the Services
offered under the scope of this Agreement.

(B) DOMAIN NAME RENEWAL TERMS

When you register a domain name, you will have three renewal options: (i)
"Automatic Renewal", (ji) "Extended Automatic Renewal", and (ji) "Manual
Renewal”:

i. Automatic Renewal. Automatic Renewal is the default setting.
Therefore, unless you select either Extended Automatic Renewal or
Manual Renewal, GoDaddy will enroll you in the Automatic
Renewal plan. If you enroll in the Automatic Renewal plan,
GoDaddy will automatically renew, for a period equivalent to the
length of your original domain name registration, any domain name
that is up for renewal and will take payment from the Payment
Method you have on file with GoDaddy, at GoDaddy's then current
rates. Thus, if you have chosen to register your domain name for
one (1) year, GoDaddy will automatically renew it for one (1) year. If
you have chosen to register your domain name for two (2) years,
GoDaddy will automatically renew it for two (2) years, and so on.

Extended Automatic Renewal. !f you enroll in the Extended
Automatic Renewal plan, GoDaddy will automatically renew any
domain name that is up for renewal for an additional one-year period
on each and every anniversary of your domain name registration, so
the initial registration period will always remain intact. Thus, if you
have chosen to register your domain name for two (2) years,
GoDaddy will automatically renew it for one (1) additional year on
each and every anniversary of your domain name registration so
your two (2) year registration period will always remain intact. If you
have chosen to register your domain name for five (5) years,
GoDaddy will automatically renew it for one (1) additional year on
each and every anniversary of your domain name registration so
your five (5) year registration period will always remain intact, and
0 on. GoDaddy will take payment from the Payment Method you
have on file with GoDaddy, at GoDaddy's then current one-year
domain name registration rate.

iii, Manual Renewal. If you do not select that the domain name be
automatically renewed (through either Automatic Renewal or
Extended Automatic Renewal), you have the responsibility of
logging into the Domain Manager portion of your Account Manager
for that domain name and manually implementing the renewal by
the expiration date (should you in fact want the domain name to be
renewed). If you fail to manually implement the renewal before the
expiration date, the domain name will be cancelled and you will no

Mitte Mts edad na nena ante labman anavmnannideDER CAgicnmanttl 20


1ngno15s CM/ECF - azd-Display Receipt

MIME-Version:1.0

From: azddb_responses@azd.uscourts.gov

To:azddb_nefs@ localhost. localdomain

Message-Id:<14222392@azd.uscourts.gov>

Subject:Activity in Case 2:15-cv-01674-ROS AMA Multimedia LLC v. Unknown Parties Order on
Motion to Seal Document

Content-Type: text/html

This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to
this e-mail because the mail box is unattended.

***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits
attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy
of all documents filed electronically, if receipt is required by law or directed by the filer. PACER
access fees apply to all other users. To avoid later charges, download a copy of each document during
this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit
do not apply.

US. District Court

DISTRICT OF ARIZONA
Notice of Electronic Filing
The following transaction was entered on 11/18/2015 at 9:35 AM MST and filed on 11/18/2015
Case Name: AMA Multimedia LLC v. Unknown Parties
Case Number: 2:15-cv-01674-ROS
Filer:
Document Number: 19
Docket Text:

SEALED ORDER granting [13] Motion to Seal. FURTHER ORDERED granting [18] Motion for
Order Permitting Alternative Service. Plaintiff shall serve Marcin Wanat as soon as
practicable but no later than five days after Plaintiff receives this order. Plaintiff shall
provide a copy of this Order when serving Marcin Wanat. FURTHER ORDERED granting
[17] Ex Parte Motion for TRO. FURTHER ORDERED No later than November 30, 2015,
Marcin Wanat shall appear and show cause why a preliminary injunction should not issue.
See Order for Details. Signed by Senior Judge Roslyn O Silver on 11/17/15. (cc: Pla's Cnsl)
(MAP)

2:15-cv-01674-ROS Notice has been electronically mailed to:
Ronald D Green rdg@randazza.com, ecf@randazza.com
Marc John Randazza marc@randazza.com, MJR @randazza.com, ecf@randazza.com

2:15-cv-01674-ROS Notice will be sent by other means to those listed below if they are affected by this
filing:

The following document(s) are associated with this transaction:

hitps://ecf.azd.uscourts.gov/cgi-bin/DisplayReceipt.pl?65045 1699 149393-L_1_0-1 2


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places upon the defendant the burden of demonstrating that jurisdiction would be
unreasonable. Id. at 476-77.

In determining whether jurisdiction is reasonable, the Ninth Circuit considers
seven factors: (1) the extent of the defendants’ purposeful injection into the forum state’s
affairs, (2) the burden on the defendant of defending in the forum, (3) the extent of the
conflict with the sovereignty of the defendant’s state, (4) the forum state’s interest in
adjudicating the dispute, (5) the most efficient judicial resolution of the controversy, (6)
the importance of the forum to the plaintiff's interest in convenient and effective relief,
and (7) the existence of an alternative forum. Dole Food Co., Inc. v. Watts, 303 F.3d
1104, 1111 (9th Cir. 2002).

Here, the exercise of jurisdiction over Wanat is unreasonable. Wanat is a Polish
citizen who has virtually no contacts with this forum except for his dealings with a major
U.S. registrar who is a nonparty to this action. Godaddy advertises and directs its
activities to countries across the globe, including Poland. Wanat himself does not
advertise any services or products in the U.S., he owns no real property in the U.S., does
not maintain any servers in the U.S., and does not pay U.S. taxes (Exhibit A). Wanat’s
contacts with Godaddy are irrelevant as they do not give rise to the instant action.

Litigating this case in Arizona would prove extremely burdensome, as Wanat
may be required to travel on multiple occasions for the trial and other events. This would
create a financial burden on Wanat, which would provide an unfair negotiating position

for the Plaintiff.

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MOTION TO DISMISS AND RESPONSE TO ORDER TO SHOW CAUSE



1129/2015 Legal Agreement
educational organizations; (iv) names of organizations related to Intemet
management; (v) names required for .JP domain name operations; and (vi)
character strings which may be confused with ASCll-converted Japanese
domain names. The complete list of .JP Reserved Domains is available here.

Revised: 24/11/2015
Copyright © 2000-2015 GoDaddy.com, LLC All Rights Reserved.

‘ips:/luk.godaddy.com/agreem ents/showdoc.aspx?pageid=REG_SA&isc=gofduk29

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11/29/2015,

Legal Agreement
« Activities designed to encourage unlawful behavior by others, such
as hate crimes, terrorism and child pomography; and

* Activities designed to harm or use unethically minors in any way.

In the event GoDaddy refuses a registration or deletes an existing registration
during the first thirty (30) days after registration, you will receive a refund of any
fees paid to GoDaddy in connection with the registration either being cancelled
or refused. In the event GoDaddy deletes the registration of a domain name
being used in association with spam or morally objectionable activities, no
refund will be issued.

9. DEFAULT SETTINGS; PARKED PAGE

xX in N: ings. When you register a domain name with
GoDaddy, you will be prompted to choose your domain name settings during the
checkout process. If you plan on using another provider for your website or
hosting needs, then you should enter the name servers of such provider when
you choose your domain name settings. This will direct your domain name
away from GoDaddy's name servers. If you are an existing GoDaddy customer
and have already set up a customer profile designating your domain name
settings for new domain name registrations, you will not need to complete this
step again during the checkout process.

GoDaddy's Default Settings. If you do not direct your domain name away from
GoDaddy’s name servers as described above, GoDaddy will direct your domain
name to a “Parked Page” (‘Default Setting”). You acknowledge and agree that
GoDaddy has the right to set the Default Setting.

Parked Page Default Setting. GoDaddy’s Parked Page service is an online
domain monetization system designed to generate revenue (through the use of
pay per click advertising) from domain names that are not actively being used as
websites. If your domain name is directed to a Parked Page, you acknowledge
and agree that GoDaddy may display both (a) in-house advertising (which
includes links to GoDaddy products and services) and (b) third-party advertising
(which includes links to third-party products and services) on your Parked Page
through the use of pop-up or pop-under browser windows, banner
advertisements, audio or video streams, or any other advertising means, and we
may aggregate for our own use, related usage data by means of cookies and
other similar means. In addition, you acknowledge and agree that all in-house
and third-party advertising will be selected by GoDaddy and its advertising
partners, as appropriate, and you will not be permitted to customize the
advertising, or entitled to any compensation in exchange therefor. Please note
that the third-party advertising displayed on GoDaddy’s Parked Pages may
contain content offensive to you, including but not limited to links to adult
content. GoDaddy makes no effort to edit, control, monitor, or restrict the
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expressly disclaims any liability or responsibility to you or any third party in
connection therewith.

Changing GoDaddy's Default Settings. You may change GoDaddy's Default
Settings at any time during the term of your domain name registration.

. Content Displaying On Your Parked Page. You can not modify the
content displaying on your Parked Page. You may select one of
the other options listed below.

li. Participating In Domain Name Monetization. If you wish to

participate in the domain monetization potential presented by

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must be transferred before we can perform the Service.

Discount Domain Club. In exchange for purchasing a Discount Domain Club
membership, You will be able to purchase discounted products and services
from us, including discounts on selected domain registrations, one (1) free
Auctions account, one (1) free CashParking account, and discounts on Domain
Buy Service. You are required to keep Your membership current as long as You
have free or discounted products or services that are renewed with us. If You
fail to renew Your membership, without canceling Your discounted domain
registration or other services, we will automatically renew Your products and
services at the regular pricing in effect at the time of renewal, charging the
Payment Method on file for You, and You will be unable to purchase any more
discounted products or services, or use Your free accounts until the Membership
Agreement fee has been paid. All membership fees are non-refundable.

Backordering/Monitoring. You agree a domain name that has expired shall be
subject first to a grace period of twelve (12) days, followed by the ICANN-
mandated redemption grace period of thirty (30) days. During this period of time,
the current domain name registrant may renew the domain name and retain
ownership. We do not guarantee your backorder will result in you obtaining the
domain name and expressly reserves the right to (a) refuse additional
backorders or (b) cancel existing backorders at any time for any reason. If your
backorder is refused or cancelled, we agree to promptly refund any fees paid for
such domain name backorder. The domain name may also be placed in a
secondary market for resale through the Auctions® service. In order for the
backorder request to remain effective, you must have an active Auctions
membership. After your first year of Auctions membership, you agree that
unless otherwise advised, we will automatically renew your Auctions
membership using the payment method you have on file for so long as your
backorder credit is active. You may leam more about Auctions by visiting the
Auctions website. The domain name may also be subject to a drop pool process
before it is available for purchasing. You understand we and our registrar
affiliates use our services, including backordering. Therefore, the domain name
may be registered with a different registrar, but can be managed through your
account. By using the Services, you will be able to, among other things:

i. Backorder any domain name under the top level domains .COM,
.NET, .US, .BIZ, .INFO, .ORG, .MOBI. A backorder for a domain
name will include the price of up to a one-year domain name
registration. Should you successfully backorder any domain name,
you will be subject to the terms and conditions of the Domain
Name Registration and related agreements, which are incorporated
herein by reference.

ii. Change your backorder until you obtain a domain name. You will
have the opportunity to change the credit to a different domain
name until you successfully capture one. After three (3) years, if
the credit is not used, we reserves the right to remove the credit.

iii. Subscribe monthly to an expiring domain name list. You may also
choose to purchase a subscription to a list of domain names
expiring within the next five (5) days. If you subscribe to the
expiring domain name list, you agree the payment method you have
on file may be charged on a monthly subscription basis for the term
of the Services you purchase.

iv. Select domain names off the expiring domain name list you would
like to register. Each domain name you attempt to backorder will
include the price of up to a one-year domain name registration, as

atthe Hinle anda com lanreamantelehnuirinr aenvInanaine REG SARien=antcteIO

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the owners of eporner.com, and Wanat is an employee of the legal owner of
eporner.com.

A TRO or preliminary injunction that merely assumes that the Plaintiff’s
allegations are true, based on inherently ambiguous facts, places Wanat in an impossible
position: he cannot comply with an order that relates to eporner.com because he is not
the registrant of the domain.

The Plaintiff has provided sufficient evidence, and Wanat does not deny, that
Wanat is the legal owner of epornergay.com and eprncdn.com. However, without more,
this does not support a finding that there is a likelihood of success on the merits because
the Plaintiff does not allege and there is no evidence at all that any infringing works
or trademarks were displayed on these domains. A list of the 22 allegedly infringing
works reveals that all 22 works were posted only on eporner.com. (See List of Infringing
Works, Dkt. No. 8-7). The Declaration of Troy Rothell (Dkt. No. 8-3) only provides
evidence of the same.

The Plaintiffs Complaint merely states that the Eporner website (presumably,
eporner.com) can be “reached” through Wanat’s domains. Indeed, epornergay.com, and
eprnedn.com do “redirect” or “forward” users towards eporner.com. Essentially, Wanat’s
domains simply link to epomner.com, a website registered in the Germany. The
Defendant can find no case that stands for the proposition that an online service provider
that links to, or forwards to, another domain can be held liable for the allegedly

infringing materials posted on the domain. In contrast, at least one federal court has

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MOTION TO DISMISS AND RESPONSE TO ORDER TO SHOW CAUSE