United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER GRANTING MOTION FOR
N. PARRISH, DISTRICT JUDGE
matter is before the court on the Motion for Default Judgment
(ECF No. 76) against defendant DG International Limited, LLC
(“DGI LLC”) filed by Plaintiff ZooBuh, Inc.
(“ZooBuh”) pursuant to Fed.R.Civ.P. 55(b)(2).
ZooBuh seeks statutory damages and treble damages against DGI
LLC for its alleged violations of the Controlling the Assault
of Non-Solicited Pornography and Marketing Act of 2003
(CAN-SPAM Act), 15 U.S.C. § 7701 et seq, in the amount
of $3, 003, 600.00. The court grants ZooBuh's motion.
is a Utah corporation with its principal place of business in
Utah County, Utah. ZooBuh provides email services to its
customers, and it owns all of the servers, routers, and
switches on its network. Every ZooBuh email account is
registered, hosted, and serviced through ZooBuh's
is a Delaware limited liability company with its principal
place of business in New Castle, Delaware. DGI LLC is an
email marketing company. It entered into a contract with
Defendant DG International Limited (“DGI
Limited”), a foreign entity, to send emails to persons
on DG International's customer lists. The customer list
at issue in this case contained email addresses for persons
who had supposedly registered for the dating website
xdating.com. DGI LLC used the platform of Savicom, Inc., dba
Mindshare Design (“Mindshare”) to send email
advertisements to the email addresses associated with the
xdating.com customer list.
alleges that it and its customers have received thousands of
email advertisements for xdating.com. All of these emails
arrived on Zoobuh's email servers, which are located in
Utah. The emails contain links to a registration page for
xdating.com. Many of the emails contain misleading
information: they purport to identify people registered on
xdating.com, but in reality the people identified in the
emails do not exist and are not users of xdating.com. Rather,
the emails are sent from “virtual cupids”: fake
users created by DGI LLC and/or DG International who
communicate with users in the same way actual users would. As
xdating.com's terms and conditions explain:
THIS SITE USES FANTASY PROFILES CALLED “ONLINE
FLIRT®” In order to enhance your amusement
experience, to stimulate you and others to use our Services
more extensively, and to generally sprinkle some sparkle and
excitement into the Services of XDATING.COM, we may post
fictitious profiles, generate or respond to communications by
means of automated programs or scripts that simulate or
attempt to stimulate your intercommunication with another
real human being (though none really exists and any dialog is
generated by programming) . . . .
the emails at issue are tailored to the recipient's
location, in this case, Utah. Some of the emails state,
“Hey there [username], these are few [sic] members
we've selected for you near Salt Lake City.” The
emails identify supposed members of xdating.com living in
Salt Lake City, Ogden, Sandy, West Jordan, Cedar Valley, West
Valley City, Provo, Midvale, Spanish Form, Orem, and
Murray-all cities in Utah. But the members identified whose
usernames range from “bigbootylicious” to
“sassyhottie37, ” appear to be virtual cupids
only. Many images are reused with different usernames and
to ZooBuh, neither it nor its customers elected to receive
email advertisements for xdating.com. Rather, ZooBuh believes
that its customers are being opted-in to receive emails from
xdating.com when, in actuality, the customers are attempting
to unsubscribe from xdating.com's email list.
Specifically, ZooBuh has an auto-unsubscribe feature that
does not distinguish between unsubscribe links and marketing
links. As such, the auto-unsubscribe “follows all
links.” This, according to ZooBuh, has inadvertently
resulted in ZooBuh customers being added to the xdating.com
alleges that all of the emails at issue violate at least one
or more provisions of CAN-SPAM. ZooBuh alleges that it has
suffered harms to its business, including financial harm,
lost time, and server crashes. ZooBuh regularly receives
customer complaints concerning spam email, and some customers
have stopped using ZooBuh because of the spam emails.
was served on November 1, 2017. See ECF No. 11. Although DGI
LLC initially appeared in this case, when its motion to
dismiss was denied, its attorneys withdrew from the case. The
court gave DGI LLC until July 23, 2018 to appear and file its
answer. DGI LLC failed to file an Answer and the time to
respond expired. On August 15, 2018, the clerk of court
entered a default certificate as to DGI LLC.
now seeks the entry of default judgment against DGI LLC for
24, 024 violations of 15 U.S.C. § 7704(a)(1).
moves the court pursuant to Fed.R.Civ.P. 55(b)(2) to enter a
default judgment against DGI LLC for its violations 15 U.S.C.
§ 7704(a)(1). ZooBuh has obtained a default certificate
as required by DUCivR 55-1(a). The court has subject matter
jurisdiction over the case under 15 U.S.C. § 1331
(federal question doctrine) and 15 U.S.C. § 7706(g)(1)
(authorizing original jurisdiction), and personal
jurisdiction over DGI LLC. The court now addresses whether ZooBuh
has standing to bring a claim for relief under 15 U.S.C.
§ 7704(a)(1) and then addresses whether ZooBuh has
successfully established that it is entitled to the relief it
seeks against DGI LLC.
Claim for Relief under 15 U.S.C. § 7704(a)(1)
bring private action to enforce the CAN-SPAM Act, ZooBuh must
have statutory standing. See Gordon v. Virtumundo,
Inc., 575 F.3d 1040, 1049 (9th Cir. 2009). Under 15 U.S.C.
§ 7706(g)(1), “[a] provider of Internet access
service adversely affected by a violation of section
7704(a)(1) . . . of this title, may bring a civil action in
any district court of the United States with jurisdiction
over the defendant.” The question of standing involves
two questions: “(1) whether the plaintiff is an
‘Internet access service' provider . . . and (2)
whether the plaintiff was ‘adversely affected by'
statutory violations.” Gordon, 575 F.3d at 1049; see
also XMission, L.C. v. Trimble, No. 2:17-CV-00013,
2018 WL 5045236, at *2 (D. Utah Aug. 24, 2018), report and
recommendation adopted, No. 2:17-CV-13, 2018 WL 5044237 (D.
Utah Oct. 17, 2018).
CAN-SPAM Act defines “Internet access service” as
“a service that enables users to access content,
information, electronic mail, or other services offered over
the Internet, and may also include access to proprietary
content, information, and other services as part of a package
of services offered to consumers. Such term does not include
telecommunications services.” See 15 U.S.C. §
7702(11) (cross-referencing 47 U.S.C. § 231(e)(4)).
ZooBuh alleges that it is a “service provider of email,
blog, and chat services.” ZooBuh also “owns all
the servers, routers, and switches on its network through
which it hosts and ...