The opinion of the court was delivered by: Ware, United States District Judge
ORDER GRANTING DEFENDANT NETWORK SOLUTION,
INC.'S MOTION FOR SUMMARY JUDGMENT
Defendant Network Solutions, Inc., ("NSI") filed a motion for summary
judgment and noticed it for hearing on January 24, 2000. In response,
Plaintiff Gary Kremen filed a motion pursuant to Federal Rule of Civil
Procedure 56(f). The Court granted the Rule 56(f) motion in part,
permitting Plaintiff to conduct further discovery and allowing the parties
to submit supplemental briefing. Based upon all papers filed to date and
the oral argument of counsel, the Court grants Defendant's motion for
Plaintiff Gary Kremen registered the domain name sex.com with NSI on
May 9, 1994. Plaintiff identified Online Classified, Inc. ("Online
Classified") as the registering organization.*fn1 Plaintiff never
constructed a Web site or otherwise commercially exploited the domain
name. In a letter dated October 15, 1995, Sharon Dimmick, purportedly on
behalf of Online Classified, informed Defendant Stephen Cohen that Online
Classified had "decided to abandon the domain name sex.com" and requested
that Mr. Cohen "notify the internet registration on our behalf, to delete
[their] domain name sex.com." Graves Decl.Ex. C. It further stated that
"we have no objection to your use of the domain name sex.com and this
letter shall serve as our authorization to the internet registration to
transfer sex.com to your corporation." Id. The letter was on Online
Classified letterhead and was signed by Ms. Dimmick, who represented
herself as the President of the company. Shortly thereafter, Mr. Cohen
registered sex.com in the name of a company he operated.
Summary judgment is proper "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law." Fed.
The moving party "always bears the initial responsibility of informing
the district court of the basis for its motion, and identifying those
portions of `the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any' which it
believes demonstrate the absence of a genuine issue of material fact."
Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). If he meets this burden, the moving party is then entitled to
judgment as a matter of law when the non-moving party fails to make a
sufficient showing on an essential element of his case with respect to
that which he bears the burden of proof at trial. See id. at 322-23, 106
S.Ct. 2548. To defeat summary judgment, the nonmoving party "must set
forth specific facts showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56(e). The facts brought forth must be material, i.e.,
"facts that might affect the outcome of the suit under the governing
law. . . . Factual disputes that are irrelevant or unnecessary will not
be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986).
It is the court's responsibility "to determine whether the `specific
facts' set forth by the nonmoving party, coupled with undisputed
background or contextual facts, are such that a rational or reasonable
jury might return a verdict in its favor based on that evidence." T.W.
Elec. Service v. Pacific Elec. Contractors, 809 F.2d 626, 631 (9th Cir.
1987). "[S]ummary judgment will not lie if the dispute about a material
fact is `genuine,' that is if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
However, "[w]here the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party, there is no `genuine
issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio,
475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
A party must prove the following to establish a claim for breach of
contract: the existence and terms of the contract, plaintiffs
performance, defendant's breach, and damages. See Student Loan Marketing
Ass'n v. Hanes, 181 F.R.D. 629, 633 (S.D.Cal. 1998). The essential
elements required to demonstrate the existence of a contract are: "(1)
parties capable of contracting, (2) their consent, (3) a lawful object,
and (4) a sufficient cause or consideration." Cal.Civ.Code § 1550.
"Consideration is a benefit conferred or agreed to be conferred upon the
promisor or prejudice suffered or agreed to be suffered `as an inducement'
to the promisor." Conservatorship of O'Connor, 48 Cal.App.4th 1076,
56 Cal.Rptr.2d 386 (1996); see also Cal.Civ.Code § 1605.