Opinion
Case No. 6:10-cv-1904-Orl-31DAB.
September 27, 2011
ORDER
This matter comes before the Court on the Motion for Summary Judgment (Doc. 71) filed by the Defendant, John Patrick Ennis ("Ennis"). The instant dispute involves a number of domain names that incorporate the names of one or the other of the Plaintiffs. The Plaintiffs contend that the Defendant "knowingly purchased or acquired" the domain names "despite having no legitimate business reason for doing so." (Doc. 58 at 2-3). In a section of his answer (Doc. 59) to the Second Amended Complaint (Doc. 58), Ennis asserted that "at the time of the filing of the SECOND AMENDED COMPLAINT the whois record for the domains in this matter all show the Plaintiff Mark Ornstein is THE OWNER of all the domains." (Doc. 59 at 2) (emphasis in original).
In the instant motion, Ennis contends that the Plaintiffs failed to deny this assertion regarding Ornstein's purported ownership, and therefore there is now no dispute that someone other than the Defendant owns the domains in question. (Doc. 71 at 1-2). The assertion appeared in a section of Ennis's answer labeled "Defenses to Complaint" (Doc. 59 at 2). The Federal Rules do not require — or, in most cases, even permit — a plaintiff to file a response to an answer or to affirmative defenses. See Fed.R.Civ.P. 7(a). Accordingly, the Plaintiffs' purported failure to deny this assertion does not establish it as true. Moreover, the Defendant has failed to show that inclusion in the whois record for a particular domain necessarily equates to ownership or control of that domain.
In consideration of the foregoing, it is hereby
ORDERED that the Motion for Summary Judgment (Doc. 71) is DENIED. In addition, the Milburn order (Doc. 72), entered yesterday, is hereby VACATED. DONE and ORDERED in Chambers, Orlando, Florida.