Infante v. Namecheap Incorporated

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Afonso Infante, No. CV-25-02537-PHX-DJH

10 Plaintiff, ORDER

11 v.

12 Namecheap Incorporated,

13 Defendant. 14 15 Pro se Plaintiff Afonso Infante (“Plaintiff”) initiated this action on July 21, 2025, 16 by filing a Complaint (Doc. 1) and an Application for a Temporary Restraining Order 17 (“TRO Motion”) against Defendant Namecheap Incorporated (“Defendant”). (Doc. 2). 18 Plaintiff also sought in forma pauperis (“IFP”) status, and on July 25, 2025, the Court 19 granted Plaintiff IFP status and screened his Complaint under 28 U.S.C. § 1915(e)(2). 20 (Doc. 12). The Court found Plaintiff plausibly alleged a claim for breach of contract 21 against Defendant. (Id.) The Court thus ordered Plaintiff to serve Defendant and set an 22 expedited briefing schedule and telephonic TRO hearing for August 1, 2025. (Id. at 12– 23 13). The TRO Motion is now fully briefed (Docs. 18 & 20). Defendant has also filed a 24 Request for Judicial Notice (Doc. 19) which Plaintiff has objected to (Doc. 22). Upon 25 consideration of the parties’ briefing, the Court will deny Plaintiff’s TRO Motion and 26 vacate the TRO hearing. 27 I. Background 28 Plaintiff brought several claims against Defendant for the suspension of six domains 1 he registered through it: vanessarallonza.com, vanessa-rallonza.com, vanessarallonza.net, 2 vanessa-rallonza.net, vanessarallonza.org and vanessa-rallonza.org. (Doc. 1 at 1, 4). These 3 sites are related to a “particular individual” who Plaintiff claims he has had “prior 4 interactions” with. (Id.) Plaintiff notes that Defendant suspended these domains because 5 of an ongoing legal proceeding in which a “third party” obtained a Civil Harassment 6 Restraining Order (“CHRO”) against him in California. (Id. at 5). Plaintiff avers that he 7 had appealed the CHRO and claims his appeal stays the Order under California Code of 8 Civil Procedure § 916(a). (Id.) 9 After Defendant suspended Plaintiff’s domains, Plaintiff brought claims against 10 Defendant for: (1) Conversion under California Law; (2) Breach of Contract; (3) Breach 11 of Implied Covenant of Good Faith and Fair Dealing under Nevada Law; (4) Unfair 12 Competition under California’s Unfair Competition Law (“UCL”), Business & Professions 13 Code §§ 17200 et seq.; and (5) Declaratory Judgment under 28 U.S.C. § 2201.1 14 (Doc. 1 at 10–19). The Court screened Plaintiff’s Complaint and found that only his breach 15 of contract claim could proceed. (Doc. 12).2 Plaintiff concurrently filed a TRO Motion 16 seeking “immediate reinstate[ment of] the domains and enjoining Namecheap from further 17 interference, and that the Court set a prompt hearing for a preliminary injunction to 18 maintain that relief during the litigation.” (Doc. 2 at 2). In its Response, Defendant has 19 provided the applicable Registration Agreement (“the Agreement”) between the parties. 20 (Doc. 18-1 at 5–28). The parties’ choice of law provision mandates that “any action 21 brought by you to enforce this Agreement . . . which relates to your use of the Services 22 shall be brought exclusively in the United States District Court of Arizona, or if there is no 23 jurisdiction in such court, then in a state court in Maricopa County[.]” (Id. at 25). The 24 Agreement also provides that:

25 1 Plaintiff also alleged a Tortious Interference with Contract claim against a Doe Defendant. (Doc. 1 at 17). 26 2 The Court allowed Plaintiff leave to amend his unfair competition and tortious 27 interference claims after it screened and dismissed those claims. (Doc. 12 at 11–12). Plaintiff has since filed a First Amended Complaint. (Doc. 16). Plaintiff bases his TRO 28 request upon his original Complaint (Doc. 1), so, the Court will not address these newly alleged claims herein and will screen these claims by separate Order. 1 we may terminate or suspend the Service(s) at any time for cause, which, without limitation, includes registration of prohibited domain name(s), abuse 2 of the Services, payment irregularities, material allegations of illegal 3 conduct, or if your use of the Services involves us in a violation of any Internet Service Provider’s (“ISP’s”) acceptable use policies, including the 4 transmission of unsolicited bulk email in violation of the law. 5 (Id. at 7). 6 Defendant has also provided the CHRO Order which restrains Plaintiff. (Id. at 30– 7 36). The Order mandates that Plaintiff stay 100 yards away from Ms. Rallonza, her home 8 and her job. (Id. at 31). The CHRO specifically mandates that Plaintiff: 9 [M]ust not create, [m]aintain, publish, advertise; or request, solicit, pay, or 10 otherwise cause any third party to create, maintain, publish, or advertise any 11 website or other social media content containing intimate images of protected party Vanessa Rallonza. For purposes of this order, “intimate 12 images” means any picture, drawing, photograph, motion picture, or other 13 pictorial representation depicting Ms. Rallonza full or partial state of undress or showing any intimate body part of Ms. Rallonza. An “intimate body part” 14 for purposes of this order means any portion of the genitals, anus, or portion of the breast below the top of the areola, that is either uncovered or clearly 15 visible through clothing. 16 (Id. at 36) (emphasis added). The CHRO does not expire until June 10, 2030. (Id. at 30). 17 It also details that a hearing was held on June 11, 2025, and that Plaintiff as well as Ms. 18 Rallonza’s attorney attended this hearing, but that Ms. Rallonza did not. (Id. at 31). It does 19 not appear that Ms. Rallonza’s substantive allegations of harassment listed in her CHRO 20 request (Doc. 19 at 7–12) were adopted by the state court. (See Doc. 18-1 at 5–28). 21 II. Legal Standard 22 A TRO preserves the status quo pending a hearing on a preliminary injunction 23 motion in order to avoid irreparable harm in the interim. See Ariz. Recovery Housing Ass’n 24 v. Ariz. Dep’t of Health Servs., 2020 WL 8996590, at *1 (D. Ariz. May 14, 2020); Bronco 25 Wine Co. v. U.S. Dept. of Treasury, 997 F. Supp. 1309, 1313 (E.D. Cal. 1996). The 26 standards governing temporary restraining orders and preliminary injunctions are 27 “substantially identical.” Washington v. Trump, 847 F.3d 1151, 1159 n.3 (9th Cir. 2017) 28 (citation omitted). Preliminary injunctive relief is an “extraordinary remedy never awarded 1 as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To obtain a 2 preliminary injunction, a plaintiff must show: (1) a likelihood of success on the merits, (2) 3 a likelihood of irreparable harm if injunctive relief were denied, (3) that the equities weigh 4 in the Plaintiff’s favor, and (4) that the public interest favors injunctive relief. Id. at 20. 5 The movant carries the burden of proof on each element of the test. See Los Angeles 6 Memorial Coliseum Comm’n v. National Football League, 634 F.2d 1197, 1203 (9th Cir. 7 1980). 8 The Ninth Circuit employs a “sliding scale” approach to preliminary injunctions, 9 under which “the elements of the preliminary injunction test are balanced, so that a stronger 10 showing of one element may offset a weaker showing of another.” All. for the Wild Rockies 11 v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). “The moving party may meet [its] burden 12 by showing either: (1) a combination of probable success on the merits and a possibility of 13 irreparable injury, or (2) the existence of serious questions going to the merits and that the 14 balance of hardships tips sharply in its favor.” Nouveau Riche Corp. v. Tree, 2008 WL 15 55381513, at *4 (D. Ariz. Dec. 23, 2008) (citing Earth Island Inst. v. U.S. Forest Serv., 16 351 F.3d 1291, 1298 (9th Cir. 2003)). “[C]ourts ‘must balance the competing claims of 17 injury and must consider the effect on each party of the granting or withholding of the 18 requested relief,’“ and should be particularly mindful, in exercising their sound discretion, 19 of the “public consequences in employing the extraordinary remedy of injunction.” Id. at 20 24 (citations omitted). 21 Injunctive relief is an equitable remedy, and “[t]he essence of equity jurisdiction is 22 the power of the court to fashion a remedy depending upon the necessities of the particular 23 case.” Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1022 (9th Cir. 2009) (citing United 24 States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 175 (9th Cir. 1987)). The 25 temporary restraining order “should be restricted to serving [its] underlying purpose of 26 preserving the status quo and preventing irreparable harm just so long as is necessary to 27 hold a hearing, and no longer.” Granny Goose Foods, Inc. v. Bhd. Of Teamsters & Auto 28 Truck Drivers Local No. 70, 415 U.S. 423, 439 (1974). 1 While courts “construe pro se filings liberally when evaluating them under Iqbal[,]” 2 Jackson v. Barnes, 749 F.3d 755, 763–64 (9th Cir. 2014) (citation omitted), “pro se 3 litigants in an ordinary civil case should not be treated more favorably than parties with 4 attorneys of record.” Abet Just. LLC v. First Am. Tr. Servicing Sols., LLC, 237 F. Supp. 5 3d 1059, 1062 (D. Nev. 2017) (quoting Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 6 1986)). 7 III. Discussion 8 In his TRO Motion, Plaintiff asks the Court to order Defendant to restore his access 9 to the six domains he alleges were unlawfully suspended. (Doc. 2 at 1). Plaintiff avers 10 that he is entitled to this relief under the Winter factors. (Id. at 5). Defendant argues, on 11 the other hand, that Plaintiff is not likely to succeed on the merits of his breach of contract 12 claim because Section 4 of the Agreement expressly provides that Namecheap “may 13 terminate or suspend the Service(s) at any time for cause, which, without limitation, 14 includes . . . material allegations of illegal conduct.” (Doc. 18 at 5). The Court agrees that 15 Plaintiff is not likely to succeed on the merits of his breach of contract claim, therefore, he 16 is not entitled to a TRO. 17 A. Judicial Notice 18 The Court will first address Defendant’s request to take judicial notice of Ms. 19 Rallonza’s CHRO Request. (Doc. 19). Defendant argues that the Request is “directly 20 relevant to the matters at issue because the Petition filed against Infante describes conduct 21 that violated the Terms and Conditions and led to the suspension of the domain names at 22 issue in this case.” (Id. at 3). Plaintiff does not object to the Court taking notice that the 23 CHRO Request was filed. (Doc. 22 at 1). He objects, however, to the Court taking notice 24 of the Request’s factual allegations as they are “heavily disputed.” (Id.) 25 Under Federal Rule of Evidence 201, a court may “judicially notice a fact that is not 26 subject to reasonable dispute because it: (1) is generally known within the trial court’s 27 territorial jurisdiction; or (2) can be accurately and readily determined from sources whose 28 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). The Court “must take 1 judicial notice if a party requests it and the court is supplied with the necessary 2 information.” Id. at 201(c) (emphasis added). Public records, such as a Court Order, are 3 proper subjects of judicial notice. See, e.g., United States v. Black, 482 F.3d 1035, 1041 4 (9th Cir. 2007). However, as Plaintiff argues, courts “cannot take judicial notice of the 5 contents of documents for the truth of the matters asserted therein when the facts are 6 disputed.” Matthews v. Apple, Inc., 769 F. Supp. 3d 999, 1007 (N.D. Cal. 2024) (quoting 7 Cal. Sportfishing Prot. All. v. Shiloh Grp., LLC, 268 F.Supp.3d 1029, 1038 (N.D. Cal. 8 2017)). This tracks the rule itself, which only allows a fact to be noticed if it is “not subject 9 to reasonable dispute.” Fed. R. Evid. 201(b). 10 It appears that Defendant agrees, as it has included the following parenthetical in its 11 Response: “judicial notice [is] proper for existence of legal documents and orders, though 12 not for disputed facts contained within.” (Doc. 19 at 3 (citing Lee v. City of Los Angeles, 13 250 F.3d 668, 689 (9th Cir. 2001)). The Court will take judicial notice of Ms. Rollanza’s 14 CHPO Request (Doc. 19 at 7–12), however, to the extent any facts in the Request are 15 subject to reasonable dispute, the Court will not take judicial notice of those facts. See Lee, 16 250 F.3d at 689; Matthews, 769 F. Supp. 3d at 1007. 17 B. Likelihood of Success on the Merits 18 Plaintiff argues that he is likely to succeed on the merits of all six claims he 19 originally brought. (Doc. 2 at 6–8). The Court will only analyze the likelihood of success 20 on the merits of Plaintiff’s active claim for breach of contract.3 The Court finds that 21 Plaintiff is not likely to succeed on this claim, so, Plaintiff is not entitled to a TRO. 22 A reasonable probability of success is all that need be shown for preliminary 23 injunctive relief—an overwhelming likelihood is not necessary. Candrian v. RS Indus., 24 Inc., 2013 WL 2244601, at *3 (D. Ariz. May 21, 2013) (citing Gilder v. PGA Tour, Inc., 25 936 F.2d 417, 422 (9th Cir. 1991)). “Serious questions are ‘substantial, difficult and 26 doubtful, as to make them a fair ground for litigation and thus for more deliberative 27 investigation.’ ” Gilder, 936 F.2d at 422 (quoting Hamilton Watch Co. v. Benrus Watch

28 3 Any new or amended claims Plaintiff brings in his First Amended Complaint (Doc. 16) have yet to be screened. 1 Co., 206 F.2d 738, 740 (2nd Cir. 1953)). “Serious questions need not promise a certainty 2 of success, nor even present a probability of success, but must involve a ‘fair chance of 3 success on the merits.’ ” Id. (quoting National Wildlife Fed’n v. Coston, 773 F.2d 1513, 4 1517 (9th Cir. 1985)). 5 Plaintiff argues that he is likely to succeed on his breach of contract claim because 6 the parties entered into a binding agreement, which Plaintiff complied with, and that 7 Defendant breached this agreement by suspending his domain access in an “arbitrary and 8 unfair” manner. (Doc. 2 at 7). To state a cognizable claim for breach of contract under 9 Arizona law, a plaintiff must allege that “(1) a contract existed, (2) it was breached, and 10 (3) the breach resulted in damages.” Riverwalk Condo. Unit Owners Ass’n v. Travelers 11 Indem. Co., 2018 WL 3774084, at *2 (D. Ariz. June 28, 2018) (citing Steinberger v. McVey 12 ex rel. Cty. of Maricopa, 234 Ariz. 125, 140 (Ariz. Ct. App. 2014)). 13 Defendant argues that Plaintiff cannot show that it breached the Agreement as the 14 Agreement allows it to suspend a domain “in its sole and unlimited discretion . . . to stop 15 or prevent any violations of any terms and conditions of [the] Agreement.” (Doc. 18 at 5). 16 Plaintiff argues that the Agreement only permits suspension for certain enumerated 17 grounds, such as “non-payment, clear policy abuse, binding legal order, etc.[,]” and that 18 Defendant identifies no such grounds. (Doc. 20 at 3). Plaintiff also argues that Defendant 19 suspended his domains without notice in defiance of the Agreement’s notice requirements. 20 (Id. at 2).4 21 Arizona courts construe the meaning of contract provisions from the language the 22 parties used and in view of all surrounding circumstances. Smith v. Melson, Inc., 659 P.2d 23 1264, 1266 (Ariz. 1983). Words will be given their ordinary meaning and courts should 24 interpret the contract “so as to make it effective and reasonable.” Phelps Dodge Corp. v. 25 Brown, 540 P.2d 651, 653 (Ariz. 1975). “It is a general rule that the construction of a 26 contract is a question for the court when its terms are plain and unambiguous on its face.”

27 4 Plaintiff states that the “ICANN Registrar Accreditation Agreement” requires registrars to “give registrants ‘reasonable time’ to respond before taking action.” (Doc. 20 at 3). This 28 provision does not appear to be adopted in the Agreement at issue here, however. (Doc. 18- 1 at 5–28). 1 Riverwalk Condo. Unit Owners Ass’n, 2018 WL 3774084, at *2 (citing Shattuck v. 2 Precision Toyota, Inc., 566 P.2d 1332, 1334 (Ariz. 1977)). “[W]here the provisions of the 3 contract are plain and unambiguous upon their face, they must be applied as written, and 4 the court will not pervert or do violence to the language used, or expand it [beyond] its 5 plain and ordinary meaning or add something to the contract which the parties have not put 6 there.” Ratchford v. Watford Specialty Ins. Co., 659 F. Supp. 3d 1032, 1038 (D. Ariz. 7 2023) (quoting D.M.A.F.B. Fed. Credit Union v. Emps. Mut. Liab. Ins. Co. of Wis., 396 8 P.2d 20, 23 (1964). 9 Here, the Agreement provides that Defendant “may terminate or suspend the 10 Service(s) at any time for cause, which, without limitation, includes material allegations 11 of illegal conduct.” (Doc. 18-1 at 7) (emphasis added). It does not require, as Plaintiff 12 argues, a “binding legal order.” (Compare id. with Doc. 20 at 3). Ms. Rallonza filed a 13 request for a CHRO wherein she alleged that Plaintiff harassed her. (Doc. 19 at 7–12). 14 Based on Ms. Rallonza’s allegations, a California state court granted her a CHRO until 15 June of 2030. (Doc. 18-1 at 30–36). The CHRO specifically mandates that Plaintiff “must 16 not create, [m]aintain, publish, advertise . . . any website or other social media content 17 containing intimate images of protected party Vanessa Rallonza.” (Id. at 36). 18 Though the CHRO is on appeal,5 its issuance allowed Defendant to find that there 19 have been material allegations of illegal conduct made against Plaintiff. (See Doc. 18- 20 1 at 7). An “allegation is “a statement, not yet proved, that someone has done something 21 wrong or illegal.” Allegation, BLACK’S LAW DICTIONARY (12th ed. 2024). A “material 22 allegation” is “an assertion that is essential to the claim, charge, or defense” in a “pleading.” 23 Material allegation, BLACK’S LAW DICTIONARY (12th ed. 2024). Ms. Rallonza alleged in 24 her CHRO request that Defendant had harassed her by “creat[ing] websites with intimate 25 images” of her and sending these sites to her family. (Doc. 19 at 7). While the Court will 26 5 Plaintiff argues that the appeal of the CHRO stays it under California Code of Civil 27 Procedure § 916(a) and thus cannot be used as a basis to suspend the Domains. (See e.g., Doc. 2 at 3). The Court finds this argument immaterial to the issue of whether Defendant 28 could find that “material allegations of illegal conduct” exist stemming from the issuance of CHRO. (Doc. 18-1 at 7). 1 refrain from taking judicial notice of these facts or accepting them as true, Fed. R. Evid. 2 201(b), Defendant was allowed to rely on these allegations and the CHRO entered against 3 Plaintiff to find that he violated the Agreement. (Doc. 18-1 at 7). The materiality of these 4 allegations violating the Agreement between the parties is underscored by the state court’s 5 admonishment that Plaintiff must not “publish . . . intimate images of protected party [Ms.] 6 Rallonza.” (Id. at 36). The plain language of the parties’ Agreement therefore puts 7 Defendant within its right to terminate or suspend Plaintiff’s Domains accordingly. (See id. 8 at 10 (“You agree that Namecheap reserves the right to suspend and/or delete your 9 registered name as a consequence of engaging in activity contrary to applicable law and 10 any related procedures.”). 11 In sum, Plaintiff cannot show that he has a fair chance of success on the merits of 12 his breach of contract claim, so, he is not entitled to a TRO. See Winter, 555 U.S. at 24; 13 Candrian, 2013 WL 2244601, at *3. 14 C. Fees 15 Defendant seeks fees and costs under A.R.S. § 12-341.01 and the Agreement. 16 (Doc. 18 at 9). It argues that, because this action arises out of allegations that Defendant 17 breached the Agreement, it is entitled to fees. See A.R.S. § 12-341.01 (“[i]n any contested 18 action arising out of a contract, express or implied, the court may award the successful 19 party reasonable attorneys’ fees.”). Plaintiff does not argue against fees in his Reply. 20 (See Doc. 20). The Court will not grant Defendant fees, as it is not a “successful party” 21 such that fees would be appropriate. 22 To award attorneys’ fees under Section 12-341 the Court must find that this action 23 “arises out of a contract, that Defendants are the ‘successful’ or prevailing party, that an 24 award of attorneys’ fees is appropriate, and that the requested fees are reasonable.” 25 Kaufman v. Warner Bros. Ent. Inc., 2019 WL 2084460, at *4 (D. Ariz. May 13, 2019) 26 (citing Lexington Ins. Co. v. Scott Homes Multifamily Inc., 2016 WL 5118316, at *2 (D. 27 Ariz. Sept. 21, 2016) (emphasis added)). “Ultimately, any award under A.R.S. § 12-341.01 28 ‘should be made to mitigate the burden of the expense of litigation to establish a just claim 1 or a just defense.’ ” Id. (quoting A.R.S. § 12-341.01(B)). “Trial courts “have broad 2 discretion when determining whether to award fees under § 12-341.01(A).” Karon v. 3 Safeco Ins. Co. of Am., 2021 WL 5416632, at *2 (D. Ariz. Nov. 19, 2021) (citing 4 Associated Indem. Corp. v. Warner, 694 P.2d 1181, 1184 (Ariz. 1985) (en banc)). 5 Fees are premature at this juncture. Defendant must show that it is the “prevailing 6 party” to be entitled to fees under Section 12-341. The Court has found that Plaintiff has 7 not established a reasonable probability of succeeding on his breach of contract claim. See 8 supra Section III.B. However, it has not had the opportunity to fully assess Plaintiff’s 9 breach of contract claim. If Plaintiff’s breach claim is ultimately found to not be plausibly 10 alleged or is otherwise dismissed, Section 12-341 provides Defendant an avenue to recover 11 its attorneys’ fees as the successful party since Plaintiff’s claim arises out of a contract. 12 See A.R.S. § 12-341.01. But simply defending against Plaintiff’s TRO Request does not 13 make Defendant the successful or prevailing party under Section 12-341—yet. See Drozda 14 v. McComas, 887 P.2d 612, 615 (Ariz. Ct. App. 1994) (“The term ‘successful party’ means 15 the party who wins the lawsuit.” ); see also prevailing party, BLACK’S LAW DICTIONARY 16 (12th ed. 2024) (defining “prevailing party” as the one “in whose favor a judgment is 17 rendered”). Because Plaintiff’s breach of contract claim has not been dismissed, the Court 18 declines to find that Defendant has ultimately prevailed in this matter, and the Court cannot 19 presently find that Defendant is entitled to fees under Section 12-341. Desert Mountain 20 Props. Ltd. P’ship v. Liberty Mut. Fire Ins. Co., 236 P.3d 421, 440 (Ariz. Ct. App. 2010), 21 aff’d, 250 P.3d 196 (Ariz. 2011) (“The successful party is the one that is the ‘ultimate 22 prevailing party’ in the litigation.”) (citation omitted). 23 Accordingly, 24 IT IS ORDERED that Plaintiff’s TRO Motion (Doc. 2) is DENIED and the TRO 25 Hearing set for Friday, August 1, 2025, is VACATED. 26 / / / 27 / / / 28 / / / 1 IT IS FURTHER ORDERED that Defendant’s request for Attorney’s Fees 2|| (Doc. 18 at 9) is DENIED without prejudice. 3 Dated this 31st day of July, 2025. 4 5 ZL we □ 6 norable'Diang/4. Huretewa 7 United States District Fudge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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