Opinion
Civil Action No. 04-3262, Section: "J" (2).
April 12, 2005
Before the Court is Defendant's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 17. Rec. Doc. 24. Plaintiff opposes the motion. The motion, set for hearing on March 30, 2005, is before the Court on briefs without oral argument. For the reasons that follow, the Court finds that the Motion to Dismiss should be DENIED.
BACKGROUND
This suit involves a dispute over the domain name 1800 as Seenon TV.com. The plaintiff alleges that the defendant improperly transferred ownership of this domain name to a third party who is not the registered domain name holder of the website. Defendant has now filed this motion to dismiss pursuant to Federal Rule of Civil Procedure 17 and submits that the plaintiff, Thomas Delor, is not the real party in interest to bring this action. Defendant further submits that the proper party is Delor and Associates, Inc., a Georgia corporation. Defendant maintains that the plaintiff cannot maintain this action on behalf of a corporation since he is not a licensed attorney. Plaintiff maintains that he is the proper party to bring this action because he is the registered owner of 1800 as Seenon TV.com.ANALYSIS
Since this suit involves the ownership of the website, the proper party to bring this action is the registered domain name holder or owner of the website, 1800 as Seenon TV.com. The evidence in the record reveals the following relevant facts as to the owner of the website. The registrant of the website is identified as Delor Associates and was registered as such on March 19, 1999. Defendant's Exhibit B. Delor and Associates, Inc. is a Georgia Profit Corporation. Defendant's Exhibit A. Delor and Associates, Inc. was not in existence at the time the website was registered to Delor and Associates. Rather, Delor and Associates, Inc. came into existence on August 14, 2000 when Compuwill Express, Inc. changed its name to Delor and Associates, Inc. Plaintiff's Exhibit A. There is no evidence in the record that Delor and Associates has ever transferred its interest in the website to Delor and Associates, Inc. Plaintiff further maintains that the website was registered to Delor and Associates as a fictitious entity. Delor and Associates registered as a fictitious name with the State of Florida on February 23, 2005.
Since neither Delor and Associates, Inc. nor Delor and Associates as a registered fictitious entity were in existence at the time 1800 as Seen on TV.com was registered, neither can be the registered domain name holder of the website. Thus, Delor and Associates, a Florida unincorporated association, is the registered domain name holder of the website. Further, since Delor and Associates is an unincorporated association, it has no separate legal existence and therefore, no legal capacity to sue or be sued. Association de Perjudicados Por Inversiones Efectuadas en U.S.A. v. Citibank, F.S.B., 770 So. 2d 1267, 1269 (Fla.Dist.Ct.App. 3d Dist. 2000); Johnston v. Albritton, 134 So. 563, 565 (Fla. 1931). Rather, such an association must sue or be sued in the names of the individuals composing it rather than its firm name. Johnston v. Meredith, 840 So.2d 315, 316 (Fla.Dist.Ct.App. 3d Dist. 2003).
Since Plaintiff is a member of Delor and Associates, he has the capacity to sue for damages sustained to the association and thus, he is the proper party to bring this action. Therefore,
IT IS ORDERED that Defendant's Motion to Dismiss (Rec. Doc. 24) should be and is hereby DENIED.