Opinion
20-CV-7687 (JGK) (BCM)
01-26-2024
CENTER FOR AMERICAN DANCE, INC., et el., Plaintiffs, v. CHRISTOPHER D'ADDARIO, et al., Defendants.
TO THE HON. JOHN G. KOELTL
REPORT AND RECOMMENDATION
BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE.
Plaintiffs Center for American Dance, Inc. d/b/a Joffrey Ballet School (CAD) and Joffrey Ballet Center for American Dance Inc. (JBC) (collectively the Joffrey Ballet School) assert claims for common-law conversion and violation of the Anti-Cybersquatting Consumer Protection Act (ACPA), 15 U.S.C. § 1125(d), against defendants Christopher D'Addario and Great River Properties, LLC (Great River). In broad outline, plaintiffs allege that while D'Addario served as the Joffrey Ballet School's Executive Director, from August 2009 through March 2020, he obtained control of the school's primary domain name, <JoffreyBalletSchool.com>, as well as several additional domain names belonging to plaintiffs (collectively the Joffrey Domain Names), and their associated websites. After his resignation in March 2020, D'Addario claimed that he "owned" the Joffrey Domain Names, refused to return control to plaintiffs, disabled plaintiffs' primary website (briefly), and threatened worse unless he were paid a substantial sum in cash.
Plaintiffs commenced this action on September 17, 2020. Along with their Complaint, they filed a motion for a temporary restraining order (TRO), which was granted, and thereafter converted to a preliminary injunction, which remains in effect. The preliminary injunction mandates that six Joffrey Domain Names remain in plaintiffs' possession and control during the pendency of this action, and bars defendants from further "interfering with [p]laintiffs' registration or use" of those domain names.
On November 23, 2020, plaintiffs obtained a Certificate of Default against both defendants, neither of whom ever appeared or answered the Complaint, and thereafter moved for a default judgment. By Order dated February 22, 2021, the Hon. John G. Koeltl, United States District Judge, ruled that plaintiffs were entitled to a default judgment and referred the action to me for inquest.
For the reasons that follow, I respectfully recommend that judgment be entered against defendant D'Addario for conversion; that nominal damages be awarded on that claim; and that a permanent injunction be entered prohibiting D'Addario from interfering with, encumbering, or in any way disturbing plaintiffs' possession and control of the seven Joffrey Domain Names now at issue. However, plaintiffs' conversion claim against Great River should be dismissed, because they do not allege that Great River committed any wrongdoing, and their ACPA claim should be dismissed entirely, for failure to state a claim upon which relief can be granted.
I. FACTS
By virtue of defendants' default, the Court accepts as true all well-pleaded allegations contained in plaintiffs' Complaint, except as to damages, and draws all reasonable inferences in plaintiffs' favor. See City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) ("It is an 'ancient common law axiom' that a defendant who defaults thereby admits all 'well-pleaded' factual allegations contained in the complaint.") (quoting Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004)); accord Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009).
A. Plaintiffs' Ballet School and Mark
Plaintiff CAD is a New York corporation formed in 1976. Compl. (Dkt. 1) ¶ 8. Plaintiff JBC is a New York not-for-profit corporation formed in 2008. Id. ¶ 9. Plaintiffs jointly operate the Joffrey Ballet School in New York City. Id. ¶ 01. The school is "known across the United States and the World," particularly for its "'Trainee Program,' through which students train intensively with the school for the academic year." Id. ¶ 11. Plaintiffs allege that they have "common law trademark rights to JOFFREY BALLET dating back to 1976," the year of CAD's formation, "in association with training students in classical ballet." Id. ¶ 12.
Defendant D'Addario is a resident of McKinney Texas. Id. ¶ 3. Defendant Great River is a Colorado limited liability company (LLC). Id. ¶ 4.
B. Plaintiffs' Domain Names and Websites
Plaintiffs registered the domain name <JoffreyBalletSchool.com> in 1997, and have used it to host their primary website since approximately 2004. Compl. ¶ 13 & Ex. 4 (WHOIS record for <JoffreyBalletSchool.com>). The website is "a significant marketing and information tool" for the Joffrey Ballet School. Id. ¶ 14. Most of the Joffrey Ballet School's students find the school, apply to it, schedule auditions, and (if accepted) enroll and pay their tuition through the primary website. Merwin Aff. (Dkt. 1-4) ¶¶ 3(a)-(d).
Domain names are registered with commercial domain name registrars such as Network Solutions, LLC (Network Solutions) or GoDaddy.com, LLC (GoDaddy). Storey v. Cello Holdings, L.L.C., 347 F.3d 370, 374 n.2 (2d Cir. 2003). The registrars assign available domain names "primarily on a first-come, first-served basis upon payment of a small registration fee." Sporty's Farm L.L.C. v. Sportsman's Mkt., Inc., 202 F.3d 489, 493 (2d Cir. 2000). They "do not generally inquire into whether a given domain name request matches a trademark held by someone other than the person requesting the name." Id. Thus, registration of a domain name does not establish who (if anyone) has trademark rights to the name. See Storey, 347 F.3d at 373 (domain name registration is a "first-come, first-serve process that does not consider trademark rights").
The Merwin affidavit, together with the affidavits of Wan Maria Elena Wan Zamri (Zamri Aff.) (Dkt. 1-8), Shannon Monticiollo-Davis (Monticiollo-Davis Aff.) (Dkt. 1-9), Lori Byrne (Byrne Aff.) (Dkt. 1-10) and Enrico Schaefer (Schaefer Aff.) (Dkt. 1-11), were filed as attachments to plaintiffs' Complaint.
Plaintiffs originally registered and managed the domain name <JoffreyBalletSchool.com> through Account No. 21899433 (the '433 Account) at Network Solutions. Compl. ¶ 15 & Ex. 4. The registrant was Joffrey Ballet School, and the registrant's address was 434 Avenue of the Americas, New York, NY 10011, which is the street address of the Joffrey Ballet School. Id. Ex. 4, at ECF p. 4. In 2006, the "primary contact" on the '433 Account became Frank Lee Merwin, who was then the school's Director of Operations. Compl. ¶ 16; see also Merwin Aff. ¶ 3 & Ex. A (Network Solutions Primary Account Contact Change Form). Merwin reported to Gail D'Addario (defendant D'Addario's mother), who was then the Joffrey Ballet School's Executive Director. Merwin Aff. ¶ 2.
In March 2009, Merwin resigned as Director of Operations, and in August of that year Gail D'Addario hired defendant D'Addario, through defendant Great River, to become Executive Director, assuming both his mother's duties and Merwin's. Merwin Aff. ¶ 4; Compl. ¶ 18 & Ex. 6 (employment agreement). Merwin's position was eliminated, and Gail D'Addario became "President of the Corporation, a role without day to day management responsibilities." Merwin Aff. ¶ 4. Two years later, however, D'Addario rehired Merwin, initially as the Director of International Programming. Id. ¶ 5. Thereafter, Merwin's responsibilities expanded, "to the point where [he became] the de facto Director of Operations, which was made official, contractually, in September of 2014." Id. Defendant D'Addario served as plaintiffs' Executive Director until March 2020, when he resigned. Compl. ¶ 19.
The employment agreement, dated August 1, 2009, ran between JBC and Great River, which agreed to provide JBC with D'Addario's services as Executive Director, in exchange for a salary (beginning at $150,000 per year, and increasing thereafter) payable to Great River. Compl. Ex. 6 ¶¶ 1, 4(a), 4(d)-(f), & Ex. A. The contract was signed by Gail D'Addario on behalf of JBC, and by Christopher D'Addario on behalf of Great River. Id. at ECF p. 6.
While employed by plaintiffs, D'Addario was responsible for maintaining their domain name registrations and websites. Compl. ¶ 20. Consequently, in 2014 he was given the login credentials, including the password, to access plaintiffs' Network Solutions account, which held the primary domain name <JoffreyBalletSchool.com>. Id. ¶ 21; see also Merwin Aff. ¶ 6; & Ex. B. Additionally, during his tenure as Executive Director, D'Addario registered other domain names on plaintiffs' behalf, including <JoffreyBalletSchool.net>, which was registered through the Network Solutions account, and several domain names registered through an account that D'Addario created at GoDaddy, as follows:
<JoffreyBalletSchool.org>
<JoffreySchool.com>
<JoffreyTrainee.com>
<JoffreyAcademy.com>
<JoffreyRentals.com>
<Summer.JoffreyBalletSchool.com>Compl. ¶¶ 22-23.
In their inquest papers, plaintiffs clarify that although <JoffreyBalletSchool.net> was originally registered through Network Solutions, it was transferred, sometime after June 9, 2020, to D'Addario's GoDaddy account. See 3/25/21 Zamri Decl. (Dkt. 47-5) ¶¶ 4-5.
As of the date of the Complaint, <JoffreyBalletSchool.net>, <JoffreyBalletSchool.org>, <JoffreyTrainee.com>, and <JoffreyAcademy.com> redirected to plaintiffs' primary website, <JoffreyBalletSchool.com>. Compl. ¶ 23. <JoffreySchool.com> was a "parked page," used for customer support, while <JoffreyRentals.com> and <Summer.JoffreyBalletSchool.com> were used for renting plaintiffs' studios and for plaintiffs' summer program, respectively. Id. All eight of the Joffrey Domain Names were owned and operated by plaintiffs and were "paid for by the Joffrey Ballet School on a [debit] card issued and owned by Plaintiffs." Id. ¶¶ 24-25; see also Merwin Aff. ¶ 7 & Exs. C-E (showing that defendant charged over $6,000 on plaintiffs' corporate debit card to pay GoDaddy and Network Solutions invoices).
The GoDaddy account, No. 5375044, was billed to Christopher D'Addario, at an address in Zephyr Cove, Nevada, but the fees were all paid with plaintiffs' debit card. See Merwin Decl. Ex. C, at ECF p. 14.
C. D'Addario's Misconduct
After he resigned as Executive Director of the Joffrey Ballet School, defendant D'Addario "changed the contact information associated with the Joffrey Ballet School's Network Solutions Account and eliminated some Joffrey Ballet School employees - such as creative director Maria Zamri - from having access." Compl. ¶ 29; see also Zamri Aff. ¶ 10 (attesting that on August 16, 2020, Network Solutions notified her that she had been removed as an administrator of the '433 Account). Plaintiffs did not authorize D'Addario's conduct. Compl. ¶ 27.
Zamri also attests that she "discovered," on an unspecified date, that the "the Joffrey Domain Names were no longer contained within the Network Solutions account," and that when she contacted D'Addario about this discovery, he "instructed [Zamri] to not tell anyone that the Joffrey Domain Names were registered under a new #Account Number: 21899433 controlled by Defendant D'Addario." Zamri Aff. ¶ 4. In fact, this is the same account number that plaintiffs used to register and manage <joffreyballetschool.com> since 1997. It thus appears that, rather than transfer the domain name to a wholly new account, D'Addario used his control of the '433 Account to substitute his personal information (including his residential address in McKinney, Texas) for the account information originally supplied by plaintiffs. See Merwin Aff. Ex. D, at ECF pp. 18-24 (Network Solutions invoice showing that <JoffreyBalletSchool.net> was held in the '433 Account, linked to plaintiffs' debit card, but listing the "account name" as Christopher D'Addario, with an address in McKinney, Texas); id. at ECF p. 25 (Network Solutions auto-renew form showing that <JoffreyBalletSchool.com> was held in the '433 Account, linked to plaintiffs' debit card, but listing the "account holder" as Christopher D'Addario).
D'Addario told Zamri that he had renewed that domain name for "many years" to come, and that "the Joffrey Ballet School would have to pay a lot of money to get it from him." Zamri Aff. ¶ 5. At around the same time, he told plaintiffs' freelance developer, Lori Byrne, by email, "I own the Joffrey website and we shall have a conversation this week on what will transpire with that site." Byrne Aff. ¶ 4 & Ex. A. On September 2, 2020, D'Addario asked Zamri to assist him "with the sale of Joffrey Ballet merchandise through a new domain name, Joffreywear.com." Zamri Aff. ¶ 11. D'Addario offered her commissions if she assisted with advertising that merchandise through the school's main website, <JoffreyBalletSchool.com>. Id.
It is unclear from the Zamri affidavit when this conversation took place. Similarly, although the Complaint acknowledges that defendant D'Addario "previously told certain employees and contractors that he owned the Joffrey Domain Names, including the Joffrey Ballet School's primary domain <JoffreyBalletSchool.Com>," Compl. ¶ 30, it does not specify when these communications occurred.
On September 3, 2020, Merwin asked D'Addario for "login access" to all of plaintiffs' domain name accounts, but defendant replied that he "did not trust" Merwin with that information, and refused to provide access. Compl. ¶ 31(a)(iii); Merwin Aff. ¶ 8. On September 16, 2020, Merwin received a text message from D'Addario reading, in relevant part, "Say goodbye to your website a******." Merwin Aff. ¶ 17. Merwin then discovered that plaintiffs' main website, <JoffreyBalletSchool.com>, had been taken down. Id.; see also Compl. ¶ 32; Schaefer Aff. ¶¶ 1-2 & Ex. A (screenshots of disabled website, informing viewers that "this page is under construction" and suggesting other ballet-related internet searches).
Enrico Schaefer, one of plaintiffs' attorneys, emailed D'Addario on September 16, 2020, demanding that the website be restored, only to receive a profane return email stating, among other things, that defendant D'Addario was "happy to bankrupt the school in court." Schaefer Aff. ¶¶ 4-5 & Ex. B. By September 17, 2020, when plaintiffs filed this action, the website had been "temporarily restored," but defendant D'Addario had threatened to take it down again unless he was paid $450,000 and given exclusive control of plaintiffs' domain names. Compl. ¶ 34; see also Schaefer Aff. ¶ 6 ("Defendant D'Addario has provided the school 24 hours to agree to pay him $450,000 and further agree that the Plaintiff's domain names remain in his exclusive control, or suffer further website interruptions.").
II. PROCEDURAL HISTORY
Plaintiffs filed this action on September 17, 2020, alleging common law conversion and violation of the ACPA. Simultaneously, they moved for a TRO (Dkt. 5), which the Court granted on September 18, 2020, setting a show-cause hearing for October 1, 2020, and directing defendants, in the interim, to "restore the Plaintiff's primary website"; to make no other changes to the DNS (domain name settings) for <JoffreyBalletSchool.com>; and to "immediately transfer" all eight Joffrey Domain Names listed in the Complaint to plaintiffs' control. OSC (Dkt. 8) ¶¶ 1-3. Plaintiffs personally served D'Addario with process, at his home in McKinney, Texas, on September 21, 2020. (Dkt. 12.)
Plaintiffs also served D'Addario, at his residence, on behalf of Great River. (Dkt. 13.)
Defendants did not appear at the show-cause hearing on October 1, 2020. See Tr. of Oct. 1, 2020 Hr'g (Dkt. 22) at 2:2-10. Plaintiffs informed the Court that since the OSC was issued they had obtained control of all but one domain name - <JoffreyBalletSchool.net>. Id. at 4:13-24. Judge Koeltl extended the TRO until October 15, 2020, see Id. at 6:10-16, and scheduled a further telephonic hearing for that day. (Dkt. 20.)
On October 7, 2020, plaintiffs moved for a preliminary injunction. Defendants did not file any opposition papers. On October 15, 2020, Judge Koeltl converted the TRO to a preliminary injunction, mandating that six of the Joffrey Domain Names "remain in Plaintiffs' possession and control during the pendency of this action." (Dkt. 29 ¶ 1). Additionally, the Court precluded defendants from "interfering with Plaintiffs' registration or use of the Joffrey Domain Names"; required them to "immediately cooperate with Plaintiffs and the registrar to complete the transfer of the domain name <JoffreyBalletSchool.net> to Plaintiffs' control"; and prohibited them from "transferring, dissipating, encumbering, or diminishing any of Plaintiffs' assets - including Plaintiffs' Joffrey Domain Names; websites; and social media accounts - during the pendency of this action." Id. ¶¶ 2-4.
In their motion papers, plaintiffs requested that the preliminary injunction cover six of the eight Joffrey Domain Names listed in the Complaint and the TRO. See Prelim. Inj. Mem. (Dkt. 26-1) at 11; Proposed Order (Dkt. 26-6) ¶ 1. Plaintiffs did not explain, at that time, why they no longer included <JoffreySchool.com> or <Summer.JoffreyBalletSchool.com> on the list.
The six Joffrey Domain Names subject to the preliminary injunction are: <JoffreyBalletSchool.com> <JoffreyBalletSchool.net> <JoffreyBalletSchool.org> <JoffreyTrainee.com> <JoffreyAcademy.com> <JoffreyRentals.com>
On November 20, 2020, plaintiffs applied for, and the Clerk of Court issued, a certificate of default as to both defendants. (Dkts. 32, 34-35.) On December 29, 2020, plaintiffs moved for a default judgment against defendants pursuant to Fed.R.Civ.P. 55(b), and served their motion papers on defendants. (Dkts. 37-38.) Although plaintiffs asked for a default judgment against both defendants, on both of their causes of action, they opted not to seek damages on their conversion claim. Pl. Default Mem. (Dkt. 37-1) at 9. Instead, they requested the "maximum statutory damages," id. at 12, under the ACPA, which provides for an award of "not less than $1,000 and not more than $100,000 per domain name, as the court considers just." 15 U.S.C. § 1117(d). Additionally, plaintiffs requested prejudgment interest, id. at 18, and attorneys' fees and costs in the amount of $72,198. Id. at 21. Finally, plaintiffs requested a permanent injunction on substantially the same terms as the existing preliminary injunction, but covering all seven Joffrey Domain Names listed in their default papers. Id. at 22-24; see also Prop. Default Jmnt. (Dkt. 37-4) ¶ 4.
In their default papers, plaintiffs sought damages with respect to seven of the Joffrey Domain Names, explaining that <Summer.JoffreyBalletSchool.com>, which was listed in the Complaint and covered by the OSC, "was subsequently determined to only be a subdomain of <JoffreyBalletSchool.Com>." Pl. Default Mem. at 2 n.1. The seven Joffrey Domain Names at issue on default are: <JoffreyBalletSchool.com> <JoffreyBalletSchool.net> <JoffreyBalletSchool.org> <JoffreySchool.com> <JoffreyTrainee.com> <JoffreyAcademy.com> <JoffreyRentals.com>.
Judge Koeltl directed defendants to respond to the default motion by February 12, 2021. (Dkt. 39.) Although defendants were served with that order (Dkt. 40), they did not submit any responding papers. On February 19, 2021, plaintiffs filed a "reply" memorandum (Dkt. 41), reiterating their position and advising the Court that they did not believe a hearing was necessary.
On February 22, 2021, Judge Koeltl issued an order finding that plaintiffs are "entitled to a default judgment as to defendants Christopher D'Addario and Great River Properties, LLC," and referred the matter to me for an inquest "with respect to the nature of the default judgment to be entered." (Dkt. 43.). To date, no judgment has been entered.
On February 24, 2021, I issued a Scheduling Order for Damages Inquest (Scheduling Order) (Dkt. 45), directing plaintiffs to submit proposed findings of fact and conclusion of law, together with supporting papers, by March 26, 2021, and to serve them, along with a copy of the Scheduling Order, on defendants at their last known addresses. Scheduling Order ¶¶ 1, 7. The Scheduling Order gave defendants a deadline of April 16, 2021, to file any opposition. Id. ¶ 8. On March 2, 2021, plaintiffs served the Scheduling Order on defendants, by email (Dkt. 46), and on March 25, plaintiffs timely filed their Proposed Findings of Fact and Conclusions of Law (Prop. Findings) (Dkt. 47), which they served on defendants via Federal Express (along with another copy of the Scheduling Order) the same day. (Dkt. 47-6.)
In their Proposed Findings, as in their default motion, plaintiffs seek the maximum statutory damages award for each of the seven Joffrey Domain Names now at issue, totaling $700,000, plus prejudgment interest, attorneys' fees and costs (now totaling $91,315.86, including the time spent preparing the Proposed Findings), and a permanent injunction. Prop. Findings at pp. 5-9, ¶¶ 19-23, 28-43. At a minimum, plaintiffs seek $450,000 in statutory damages, which is "the amount which Defendant tried to extort from plaintiffs." Id. ¶ 26.
Defendants did not submit any responding papers.
Since no party has requested a hearing on the issue of damages, and since defendants did not submit any written materials, I have conducted the inquest based solely upon the materials submitted by plaintiffs. See Bricklayers & Allied Craftworkers Local 2 v. Moulton Masonry & Constr., LLC, 779 F.3d 182, 189 (2d Cir. 2015) (holding that Fed.R.Civ.P. 55(b)(2), which governs the determination of damages following default, "allows but does not require the district judge to conduct a hearing") (citations omitted).
III. ANALYSIS
A. Subject-Matter Jurisdiction
Because plaintiffs brought this action under the ACPA, which is part of the Lanham Act, subject-matter jurisdiction is properly based on 28 U.S.C. § 1331 (federal question jurisdiction) and 15 U.S.C. § 1121(a) (Lanham Act jurisdiction). This Court has supplemental jurisdiction over the state law conversion claim because it is "so related to the [federal] claim that they form part of the same case or controversy." 28 U.S.C. § 1367(a).
B. Personal Jurisdiction
Personal jurisdiction, like subject-matter jurisdiction, is "a necessary prerequisite to entry of a default judgment." Sheldon v. Plot Commerce, 2016 WL 5107072, at *6 (E.D.N.Y. Aug. 26, 2016), report and recommendation adopted, 2016 WL 5107058 (E.D.N.Y. Sept. 19, 2016). The test is for personal jurisdiction is twofold. The court must first "determine whether the defendant is subject to jurisdiction under the law of the forum state," and then "consider whether the exercise of personal jurisdiction over the defendant comports with the Due Process Clause of the United States Constitution." Sonera Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221, 224 (2d Cir. 2014). Where, as here, the issue of personal jurisdiction is analyzed "on the pleadings and without discovery, the plaintiff need show only a prima facie case" that jurisdiction exists. Volkswagenwerk Aktiengesellschaft v. Beech Aircraft Corp., 751 F.2d 117, 120 (2d Cir. 1984). At this stage, moreover, the pleadings "are construed in the light most favorable to plaintiff," and any doubts are resolved in favor of jurisdiction. Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985).
I am satisfied that both defendants are subject to New York's long-arm jurisdiction. Although D'Addario resides in Texas, both of plaintiffs' claims arise out of his employment as the Executive Director of a ballet school in New York City; specifically, his management and alleged theft of its Domain Names. Consequently, even if D'Addario worked remotely during his tenure as plaintiffs' Executive Director (the Complaint is unclear on this point), this Court may exercise specific personal jurisdiction over him pursuant to N.Y.C.P.L.R. (CPLR) § 302(a)(1), which applies where the defendant has transacted any business in New York, or has contracted "anywhere" to supply goods or services within the state, as to any cause of action arising from that conduct. See Belabbas v. Inova Software Inc., 2017 WL 3669512, at *3 (S.D.N.Y. Aug. 24, 2017) (in employment discrimination action by New York-based employee, court could exercise personal jurisdiction over company's global CEO, who lived and worked in France but "has managed the operations of the New York office since 2010"); Peeq Media, LLC v. Buccheri, 2016 WL 5947295, at *3 (S.D.N.Y. Oct. 13, 2016) ("Courts in this District have held that out-of-state employees who typically (even exclusively) work from home 'transacted business in New York' within the meaning of [CPLR] § 302(a)(1).").
As for defendant Great River, it too contracted to supply goods or services within New York - specifically, the services of defendant D'Addario. Thus, Great River is likewise subject to personal jurisdiction pursuant to § 302(a)(1). Moreover, "[b]ecause the New York long-arm statute is more restrictive than the federal due process requirements, by virtue of satisfying the long-arm statute the minimum contacts and reasonableness requirements of due process have similarly been met." Chatwal Hotels & Resorts LLC v. Dollywood Co., 90 F.Supp.3d 97, 108 (S.D.N.Y. 2015); accord Bonacasa v. Standard Chartered PLC, 2023 WL 2390718, at *5 (S.D.N.Y. Mar. 7, 2023), reconsideration denied, 2023 WL 7110774 (S.D.N.Y. Oct. 27, 2023).
C. Service
"Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). Thus, where the defendant has defaulted, the plaintiff must establish adequate service in order to obtain a default judgment. See Sheldon, 2016 WL 5107072, at *6 ("failure to adequately prove proper service of court documents under [Fed. R. Civ. P.] 4 bars the entry of a default judgment"); Lliviganay v. Cipriani 110 LLC, 2009 WL 1044606, at *1 (S.D.N.Y. Apr. 14, 2009) (lack of proof of proper service "is an independent obstacle to a default judgment").
Under federal law, service may be made on an individual defendant by delivering a copy of the summons and complaint to the individual personally. Fed.R.Civ.P. 4(e)(2)(A). Service may be made on a domestic or foreign corporation, partnership, or other unincorporated association by following state law in the state where the district court is located. Fed.R.Civ.P. 4(h)(1)(A), 4(e)(1). New York law permits service on a domestic or foreign LLC by personal delivery of the required papers to any "agent" of the LLC "authorized by appointment to receive process," or to "any other person designated by the limited liability company to receive process." CPLR §§ 311-a(a)(iii), (iv).
As to defendant D'Addario, plaintiffs complied with Rule 4(e)(2)(A) when they personally served him with process at his home in McKinney, Texas on September 20, 2020. However, plaintiffs have not established that personal service on D'Addario constituted adequate service on Great River. Other than identifying Great River as a Colorado LLC, see Compl. ¶ 4, plaintiffs say nothing about it in their pleading (or in their affidavits). They nowhere assert - or provide facts from which the Court can conclude - that when he was served, in September 2020, D'Addario was an "agent" of Great River "authorized by appointment to receive process," or that he was "designated by the limited liability company to receive process," as required by CPLR §§ 311-a(a)(iii) and (iv). According to the website of the Colorado Secretary of State, Great River was formed in 2007, with Gail D'Addario as its registered agent, and was dissolved in 2013. See https://www.sos.state.co.us/biz/BusinessEntityCriteriaExt.do (all webpages last visited January 26, 2024). Thus, I cannot conclude that service on D'Addario constituted effective service on Great River.
D. Liability
As noted above, "a default is an admission of all well-pleaded allegations against the defaulting party." Vermont Teddy Bear Co., 373 F.3d at 246. Thus, after default, the court accepts all well-pleaded factual allegations in the complaint as true, except those relating to damages. Finkel, 577 F.3d at 84; Cotton v. Slone, 4 F.3d 176, 181 (2d Cir. 1993); Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). However, a default "only establishes a defendant's liability if those allegations are sufficient to state a cause of action against the defendants." Gesualdi v. Quadrozzi Equip. Leasing Corp., 629 Fed.Appx. 111, 113 (2d Cir. 2015) (summary order). If "the well-pleaded factual allegations in the complaint fail to state a claim upon which relief can be granted, no damages can be awarded, even if the post-default inquest submissions supply the missing information." Mondragon v. Keff, 2019 WL 2551536, at *4 (S.D.N.Y. May 31, 2019) (collecting cases), report and recommendation adopted, 2019 WL 2544666 (S.D.N.Y. June 20, 2019).
Because the standard used to evaluate a pleading after default is "identical" to the standard used on a motion to dismiss made pursuant to Fed.R.Civ.P. 12(b)(6), see Steginsky v. Xcelera Inc., 741 F.3d 365, 368 (2d Cir. 2014), a court assessing the sufficiency of a pleading after default may also consider documents "attached to the [pleading], incorporated by reference, or integral to the [pleading]." United States ex rel. Foreman v. AECOM, 19 F.4th 85, 106 (2d Cir. 2021). Where, as here, plaintiffs have attached affidavits to their complaint, they are considered part of the pleading and are also accepted as true after default. See, e.g., Nelson v. Beechwood Org., 2004 WL 2978278, at *1 n.4 (S.D.N.Y. Dec. 21, 2004) (relying on plaintiff's complaints "and the various documents attached to them," including affidavits, for purposes of a motion to dismiss made pursuant to Fed.R.Civ.P. 12(c)).
1.Conversion
To establish liability for conversion under New York law, a plaintiff must demonstrate its ownership, possession or control of the property at issue before its conversion and that the defendant "exercised unauthorized dominion over the thing in question, to the alteration of its condition or to the exclusion of the plaintiff's rights." Am. Lecithin Co. v. Rebmann, 2020 WL 4260989, at *5 (S.D.N.Y. July 24, 2020); accord Ellington Credit Fund, Ltd. v. Select Portfolio Servicing, Inc., 837 F.Supp.2d 162, 204 (S.D.N.Y. 2011); Moses v. Martin, 360 F.Supp.2d 533, 541 (S.D.N.Y. 2004). It is by now well-settled that "intangible property such as websites and account information" are specific identifiable things that "can be the object of conversion under New York law." Brown v. Twitter, Automattic Inc., 2021 WL 3887611, at *10 (S.D.N.Y. Aug. 31, 2021); see also Salonclick LLC v. SuperEgo Mgmt. LLC, 2017 WL 239379, at *4 (S.D.N.Y. Jan. 18, 2017) ("The Court holds that Plaintiff has stated a claim for conversion of its domain name and social media accounts under New York law").
As to defendant D'Addario, both requirements are satisfied. The well-pleaded allegations of the Complaint, accepted as true, demonstrate that plaintiffs owned the Joffrey Domain Names prior to defendant's exercise of unauthorized dominion over them. This is true not only for <JoffreyBalletSchool.com>, but also for the Domain Names created by D'Addario while employed by plaintiffs, because he created them in his capacity as plaintiffs' Executive Director, for use by plaintiffs, and paid for them with plaintiffs' funds. Compl. ¶¶ 13, 15-17, 24-25. The Complaint further demonstrates that defendant D'Addario exercised unauthorized dominion over the Domain Names by retaining control of them after his employment ended; using that control to threaten and extort plaintiffs; and refusing to provide the necessary account credentials to plaintiffs, or otherwise relinquish control, until plaintiffs were required to seek judicial intervention. Id. ¶¶ 21, 26-30. This is the same species of misconduct that the Salonclick court found actionable as conversion. See 2017 WL 239379, at *4; see also Ardis Health, LLC v. Nankivell, 2011 WL 4965172, at *3 (S.D.N.Y. Oct. 19, 2011) (holding that defendants' "unauthorized retention" of login information for plaintiff's websites and other accounts could "form the basis of a claim of conversion" under New York law).
However, the Complaint and its attachments state no facts from which the Court could conclude that Great River played any role in D'Addario's conversion of the Joffrey Domain Names. Insofar as the record reveals, Great River did nothing after contracting with plaintiffs for D'Addario's services. Consequently, while plaintiffs have adequately alleged liability as to D'Addario for converting the Joffrey Domain Names - and are entitled to a default judgment against him on that claim - they have failed to state a conversion claim against Great River, and consequently are not entitled to a default judgment of conversion against it.
Great River is mentioned only twice in plaintiff's pleading. See Compl. ¶ 4 (alleging that Great River is a Colorado LLC); id. ¶ 18 (alleging that in 2009, Great River contracted with plaintiffs for Christopher D'Addario's services).
2. Cybersquatting
"Cybersquatting," made actionable under federal law by the ACPA, typically refers to "the practice of procuring 'the registration as domain names of well-known trademarks by non-trademark holders who then try to sell the names back to the trademark owners.'" Stephens v. Trump Org. LLC, 205 F.Supp.3d 305, 307-08 (E.D.N.Y. 2016) (quoting Mattel, Inc. v. Barbie-Club.com, 310 F.3d 293, 295 (2d Cir. 2002)) (alteration in original). The purpose of the ACPA is to provide "clarity in the law for trademark owners by prohibiting the bad-faith and abusive registration of distinctive marks as Internet domain names with the intent to profit from the goodwill associated with such marks[.]" Sporty's Farm, 202 F.3d at 495 (quoting S. Rep. No. 106-140, at 4 (1999)).
To establish liability for cybersquatting under the ACPA, a plaintiff must demonstrate three things: (1) that its trademark is a distinctive or famous mark; (2) that defendant's domain name is identical or confusingly similar to that mark; and (3) that defendant registered, trafficked in, or used the domain name with the bad faith intent to profit from it. See Sporty's Farm, 202 F.3d at 496-99; accord Salvatore Ferragamo S.p.A. v. Does 1-56, 2020 WL 774237, at *3 (S.D.N.Y. Feb. 18, 2020); McAllister Olivarius v. Mermel, 298 F.Supp.3d 661, 669 (S.D.N.Y. 2018).
Here, the second element is met, in that three of the Joffrey Domain Names include the entire mark JOFFREY BALLET, while the others use JOFFREY in conjunction with another word evocative of the services offered by the Joffrey Ballet School. For present purposes, I assume that the third element is met as well, in that D'Addario "used" and "trafficked in" the Joffrey Domain Names, with the bad faith intent to profit from them, by wrongfully taking control of the registrar accounts in which they were held and using that control in an attempt to profit personally from the sale of Joffrey Ballet School-themed merchandise or - more directly - by extorting a cash payment from plaintiffs.
The drafters of the ACPA focused on abusive registration of domain names incorporating or mimicking well-known marks, which remains "ACPA's heartland." Gioconda L. Grp. PLLC v. Kenzie, 941 F.Supp.2d 424, 433 (S.D.N.Y. 2013) (noting that the "clearest case for a finding of bad faith intent to profit typically arises when a defendant 'register[s] a domain name of an established entity in bad faith' and then 'offer[s] to sell the domain name to the entity at an exorbitant price'") (quoting Target Advert., Inc. v. Miller, 2002 WL 999280, at *10 (S.D.N.Y. May 15, 2002)). However, the statute imposes liability where the defendant, acting with the requisite bad faith intent, "registers," "traffics in," or "uses" a domain name that is identical or confusingly similar to the plaintiff's distinctive or famous mark. 15 U.S.C. § 1125(d)(1)(A)(ii)(I)-(II). Thus, district courts have held that the ACPA reaches cases where - as here - the defendant took control of the plaintiff's existing domain name rather than registering a new one. See, e.g., Blackshore Properties, Inc. v. EQN.com, 2019 WL 338884, at *1 (E.D. Va. Jan. 28, 2019) (granting default judgment under ACPA where defendant "unlawfully hijacked plaintiff's domain name" by gaining unauthorized access to plaintiff's registrar account, transferring the domain name another registrar, and "prevent[ing] plaintiff from accessing or controlling the domain name or the website associated with it"); Lipang Huang v. Yinzhong Xie, 2015 WL 13036677, at *1-2 (E.D. Va. April 9, 2015) (granting default judgment where defendant, "through a phishing scheme," stole the password for plaintiff's domain name registration accounts, transferred plaintiff's domain names to a different account, and disabled plaintiff's websites).
However, the Complaint founders on the first element. Plaintiffs nowhere allege (even in conclusory terms) that their unregistered mark, JOFFREY BALLET, is either distinctive or famous, as required by 15 U.S.C. § 1124(d)(1)(A)(ii)(I)-(II). Nor do they allege any facts which, taken as true, would allow the Court to draw the necessary conclusion. This is a fatal deficiency. See Mashantucket Pequot Tribe v. Redican, 403 F.Supp.2d 184, 195 (D. Conn. 2005) ("Application of the statute requires that the finder of fact first determine if the mark is either distinctive or famous and, therefore, protected by the statute."); Renzello v. Nelson, 2006 WL 8431563, at *7 (D. Vt. July 11, 2006) (denying preliminary injunctive relief under the ACPA because, inter alia, plaintiff did not show that his common-law PORTA RINX mark was distinctive).
A "famous" mark is a mark that has "achieved a high degree of recognition by the United States consumer public as the designator of the plaintiff's goods." Prime Publishers, Inc. v. American-Republican, Inc., 160 F.Supp.2d 266, 277 (D. Conn. 2001) (quoting Sporty's Farm, 202 F.3d at 497 n.10). Plaintiffs do not contend that their mark is famous. See Pl. Default Mem. at 10; Prop. Findings at pp. 17-18, ¶¶ 15-16.
A "distinctive" mark is a mark that "identifies the source of the product rather than the product itself." Daniel R. Kaufman, CPA, LLC v. Vertucci, 2011 WL 6001632, at *3 (D. Conn. Nov. 30, 2011). An unregistered mark is not entitled to any presumption of distinctiveness, see Reese Pub. Co. v. Hampton Int'l Commc'ns, Inc., 620 F.2d 7, 11 (2d Cir. 1980); Cross Com. Media, Inc. v. Collective, Inc., 841 F.3d 155, 166 (2d Cir. 2016), but may be shown to be distinctive - and thus protectable under the Lanham Act - "in one of two ways." Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205, 210 (2000). "First, a mark is inherently distinctive if '[its] intrinsic nature serves to identify a particular source.'" Id. (quoting Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768 (1992)). Second, a "merely descriptive" mark, although not inherently distinctive, may "acquire[] distinctiveness" if it has "developed secondary meaning, which occurs when, 'in the minds of the public, the primary significance of a [mark] is to identify the source of the product rather than the product itself.'" Id. at 211 (quoting Inwood Laby's, Inc. v. Ives Laby's, Inc., 456 U.S. 844, 851 (1982)); see also Park ‘N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 194 (1985) ("A 'merely descriptive' mark . . . describes the qualities or characteristics of a good or service, and this type of mark may be registered only if the registrant shows that it has acquired secondary meaning[.]"). "The classification of a mark is a factual question," turning on "how the purchasing public views the mark." Lane Cap. Mgmt., Inc. v. Lane Cap. Mgmt., Inc., 192 F.3d 337, 344 (2d Cir. 1999).
Plaintiff's mark consists of the generic term "ballet," modified by the surname of the school's co-founder, Robert Joffrey. "Marks that are 'primarily merely surnames' constitute a specific subcategory of descriptive marks, in that they describe the fact that the named individual is affiliated with the firm." Lane Cap. Mgmt., 192 F.3d at 345 (quoting Pirone v. MacMillan, Inc., 894 F.2d 579, 583 (2d Cir. 1990)). These marks are not distinctive "unless they have acquired secondary meaning." Id.; see also Parks LLC v. Tyson Foods, Inc, 863 F.3d 220 (3d Cir. 2017) (plaintiff's unregistered mark PARKS, which was the surname of its founder, was "not inherently distinctive," such that plaintiff was "required to demonstrate that the mark had secondary meaning" by the time its competitor, Tyson, began selling PARK'S FINEST sausage); 815 Tonawanda St. Corp. v. Fay's Drug Co., 842 F.2d 643, 648-49 (2d Cir. 1988) (unregistered mark FAY'S, used to identify a drugstore, was descriptive, such that plaintiff "bore the burden of proving secondary meaning"); McAllister Olivarius, 298 F.Supp.3d at 670 (unregistered mark MCALLISTER OLIVARIUS, composed of the surnames of a law firm's founding partners, warranted protection "only as a descriptive mark," requiring a showing of secondary meaning).
On their principal website, plaintiffs explain that the Joffrey Ballet School was founded by Robert Joffrey and Gerald Arpino in 1953. See https://www.joffreyballetschool.com/about/.
Plaintiffs implicitly concede that their mark is merely descriptive, arguing that it is nonetheless distinctive because it has acquired secondary meaning. Pl. Default Mem. at 10; Prop. Findings at p. 17, ¶ 16(a). But the only documents they cite for this proposition are their own briefs, in which they assert - without reference to any fact alleged in the Complaint or its attachments - that the "JOFFREY BALLET Mark has undoubtedly acquired secondary meaning over the decades since 1967 [sic] in association with its classical ballet school and prestigious 'Trainee Program.'" Pl. Default Mem. at 10; Pl. TRO Mem. (Dkt. 5-1) at 9.
"The existence of secondary meaning is a question of fact, with the burden of proof on the party claiming exclusive rights in the designation." Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 973 F.2d 1033, 1041 (2d Cir. 1992). The Second Circuit has identified six non-exclusive factors that bear on this inquiry: "(1) advertising expenditures, (2) consumer studies linking the mark to a source, (3) unsolicited media coverage of the product, (4) sales success, (5) attempts to plagiarize the mark, and, (6) length and exclusivity of the mark's use." Christian Louboutin S.A. v. Yves Saint Laurent American Holdings, Inc., 696 F.3d 206, 226 (2d Cir. 2012) (quoting Genesee Brewing Co. v. Stroh Brewing Co., 124 F.3d 137, 143 n.4 (2d Cir. 1997)). To survive a motion to dismiss, the complaint must show that these factors weigh in favor of a finding of secondary meaning. See, e.g., McAllister Olivarius, 298 F.Supp.3d at 670 (denying motion to dismiss plaintiff's ACPA claim where the complaint alleged that the firm "used its mark exclusively for over two decades," that it "engag[ed] in substantial advertising and marketing of its legal services under the McAllister Olivarius brand through traditional media and the internet," that it "received significant media coverage as a result of its work and reputation," and that its "advertising and press has generated substantial traffic to [its] social media account").
Here, by contrast, the Complaint and its attachments are silent as to five and one-half of the six factors, alleging only that plaintiffs have used the mark since 1976. Compl. ¶¶ 8, 12. There are no factual allegations concerning plaintiffs' advertising expenditures, consumer attitudes, media coverage, sales, plagiarism, or "exclusive" use of the mark. Plaintiffs' confident assertion that their mark has "undoubtedly" acquired secondary meaning - made only in their briefs - cannot substitute for the facts necessary to support the conclusion they wish this Court to draw. Because plaintiffs have failed to allege facts showing that their mark is either famous or distinctive, they are not entitled to relief under the ACPA.
And for good reason. In 1956, Joffrey and Arpino - same two dance pioneers who founded the Joffrey Ballet School - founded the Joffrey Ballet, a well-known classical dance company which, since 1995, has been resident in Chicago. See https://joffrey.org/about/mission-history/. The Joffrey Ballet registered the mark JOFFREY BALLET with the U.S. Patent and Trademark Office on May 24, 2005, on the Principal Register, where it remains. See <JOFFREY BALLET>, Registration No. 2,954,504. The Joffrey Ballet operates its own ballet school, called the Joffrey Academy of Dance, which (according to its website) is "the only school that follows the organizational mission, training syllabi, and artistic vision of The Joffrey Ballet, and is not affiliated with any other dance training or school programs, including the Joffrey Ballet School in New York." https://joffrey.org/education/academy/about/.
E. Monetary Relief
"The entry of a default, while establishing liability, 'is not an admission of damages.'" Mickalis Pawn Shop, 645 F.3d at 128 (quoting Finkel, 577 F.3d at 83 n.6). Thus, "[e]ven in connection with a default judgment, the court has an obligation to ensure that damages are appropriate and determined with reasonable certainty." Healing Power, Inc. v. Ace Cont'l Exports, Ltd., 2008 WL 4693246, at *5 (E.D.N.Y. Oct. 17, 2008). This means, among other things, that the damages sought must be recoverable under applicable law as a remedy for the defaulted claims, and, if actual damages are sought, the amount must be established with "reasonable certainty," Gucci Am., Inc. v. Tyrrell-Miller, 678 F.Supp.2d 117, 121 (S.D.N.Y. 2008) (quoting Langenberg v. Sofair, 2006 WL 3518197, at *1 (S.D.N.Y. Dec. 7, 2006)), and "based on admissible evidence." House v. Kent Worldwide Mach. Works, Inc., 359 Fed.Appx. 206, 207 (2d Cir. 2010) (summary order).
Plaintiffs seek monetary relief - both statutory damages and an award of fees and expenses - only on their ACPA claim. Prop. Findings at pp. 22-23, ¶¶ 33-38. They opted not to seek damages under state law, id. at pp. 18-20, ¶¶ 19-27, and consequently make no evidentiary showing that could support an award of actual damages for conversion. Nor are they entitled to fees in connection with their conversion claim. See East 2 West Product Grp., LLC v. Henry Brown, LLC, 2010 WL 2891190, at *2 (S.D.N.Y. July 15, 2010) ("Under New York law, '[a]ttorney's fees are incidents of litigation and a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule.'") (quoting Hooper Assocs., Ltd. v. ASG Computers, Inc., 74 N.Y.2d 487, 491, 548 N.E.2d 903, 904 (1989)).
Because plaintiffs have established that defendant D'Addario is liable for conversion, but have submitted no evidence concerning their actual damages, the Court is limited to awarding nominal damages for conversion. See MacGuire v. Elometa Corp., 189 A.D.2d 708, 708, 592 N.Y.S.2d 730, 730 (1st Dep't 1993) (holding that nominal damages may be awarded for conversion, even where there are no actual damages). Consequently, I recommend an award of $1,000 on the conversion claim. See, e.g., Robertson v. Doe, 2010 WL 11527317, *3 (S.D.N.Y. May 11, 2010) (awarding "the nominal amount of $1,000 in general damages" where plaintiff "failed to offer evidence of actual harm" and thus the court was "in no position to choose any speculative figure"); Anglo-Iberia Underwriting Mgmt. Co. v. Lodderhose, 282 F.Supp.2d 126, 133 (S.D.N.Y. 2003) (declining to "engage in speculative guesswork" and awarding "a nominal amount of $1,000," where plaintiffs failed to introduce evidence demonstrating "that the award should be more than nominal").
F. Permanent Injunction
A plaintiff seeking a permanent injunction must demonstrate "actual success on the merits" as well as four prerequisites:
(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.Allstar Marketing Grp. LLC v. andnov73, 2023 WL 5208008, at *5 (S.D.N.Y. Aug. 14, 2023) (quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)). "A court may grant a permanent injunction on a motion for default judgment." Rovio Ent., Ltd. v. Allstar Vending, Inc., 97 F.Supp.3d 536, 546 (S.D.N.Y. 2015).
Here, although plaintiffs failed to state a claim under the ACPA, they have succeeded on the merits of their conversion claim, and have further established that the conversion of their domain names constitutes an irreparable injury for which money damages would not adequately compensate them:
As the primary point of information, scheduling, marketing and contact with its students and community, the Joffrey Ballet School remains at serious financial and reputational risk without control of the Joffrey Domain Names. Disabling the
<JoffreyBalletSchool.Com>, and continued threats to disable other domains, has caused and will continue to cause irreparable harm to Plaintiffs.Compl. ¶ 37; see also Monticciollo-Davis Aff. ¶¶ 7-8 (describing the "devastating" reputational damage that plaintiffs would suffer if their main domain name "was redirected elsewhere," making it impossible for dancers to sign up for the school's fall audition tour). Defendant D'Addario will not suffer any hardship, nor would the public interest be disserved, by an injunction prohibiting him from converting property that does not belong to him. A permanent prohibitory injunction is therefore appropriate. However, since plaintiffs regained control of all of their domain names before they moved for the entry of a default judgment, there is no need to make permanent the mandatory requirement that D'Addario "transfer" any of them now.
IV. CONCLUSION
For the reasons set forth above, I respectfully recommend that a default judgment be entered against defendant D'Addario on plaintiffs' claim for conversion; that nominal damages of $1,000 be awarded on that claim; and that the Court issue a permanent injunction prohibiting D'Addario, and all those acting in concert with him, from interfering with, encumbering, or in any way disturbing plaintiffs' possession and control of the seven Joffrey Domain Names now at issue:
<JoffreyBalletSchool.com>
<JoffreyBalletSchool.net>
<JoffreyBalletSchool.org>
<JofreySchool.com>
<JoffreyTrainee.com>
<JoffreyAcademy.com>
<JoffreyRentals.com>
The $5,000 bond previously posted by plaintiffs (Dkt. 11) should be discharged. Plaintiffs' claims against Great River Properties LLC, as well as their claims under the ACPA, should be dismissed.
Plaintiff is directed to promptly serve a copy of this Report and Recommendation on defendants at their last known mailing addresses and to file proof of such service on the docket.
The Clerk of Court is respectfully directed to amend the caption of this action to include the apostrophe in defendant D'Addario's name.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this report and recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. John G. Koeltl at 500 Pearl Street, New York, NY 10007. Any request for an extension of time to file objections must be directed to Judge Koeltl. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 Fed.Appx. 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).