AFRICA: DCA Trust vs ICANN & ZACR Case Remanded To California Court

In a ruling sure to get the attention of those (governments, companies, organizations, and individuals) concerned with ICANN's jurisdiction in the United States, including the current WS2 ICANN jurisdiction working group, the federal court trial judge in the new gTLD .AFRICA case, DotConnectAfrica Trust (DCA) vs ICANN and ZA Central Registry (ZACR), has ruled: 1) ZACR is an indispensable party entitled to intervene; 2) ZACR's presence in the case as a foreign party (as is the Plaintiff), destroys the Court's federal diversity (subject matter) jurisdiction, and therefore, 3) the case must be remanded to California state court for further proceedings. Note that there is also an interlocutory appeal pending in the United States Court Of Appeals For The Ninth Circuit. The complete ruling of the U.S. District Court is embedded below, but here is the most relevant part:

"... Plaintiff DCA and Intervenor-Defendant ZACR are both foreign citizens. See Cheng v. Boeing Co., 708 F.2d 1406, 1412 (9th Cir. 1983) (holding “[d]iversity jurisdiction does not encompass foreign plaintiffs suing foreign defendants”); Faysound, Ltd. v. United Coconut Chems., Inc., 878 F.2d 290, 294–95 (9th Cir. 1989) (holding the presence of citizen defendant does not save diversity jurisdiction as to alien co-defendant in action brought by alien plaintiff because diversity must be complete); Nike, Inc. v. Comercial Iberica De Exclusivas Deportivas, S.A., 20 F.3d 987, 991 (9th Cir. 1994). As the Court has already found that ZACR is entitled to intervene as a matter of right, if ZACR is considered an indispensable party, ZACR’s presence would destroy complete diversity ....  the Court finds that ZACR is an indispensable party. As a nondiverse, indispensable party, ZACR destroys diversity jurisdiction, and remand of this action to state court is proper ..."--U.S. District Court, October 19, 2016 (emphasis added)

Ironically, this could be a BIG win for the plaintiff DCA (DotConnectAfrica Trust). Unlike U.S. federal courts where unanimous jury verdicts are required, in a California civil case, it only takes 9 of the 12 jurors to agree on a verdict (source pdf). The U.S. District Court Judge had previously assigned this case to a (10-12 days) jury trial beginning February 28, 2017. See Scheduling Order (pdf).

For more background on this case on Domain Mondo, see: New gTLD AFRICA Appeal: DCA Trust Answering Brief vs ICANN & ZACR, which has links to the other previous Domain Mondo posts.

Complete U.S. District Court ruling (pdf) embedded below (highlighting added):

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.AFRICA: DCA Trust v ICANN, ZACR Motion to Intervene & Opening Brief

UPDATE: DotConnectAfrica Trust v. ICANN -- the plot thickens --

"ZACR seeks to intervene pursuant to Fed. R. Civ. P. 24(a), or alternatively, under Fed. R. Civ. P. 24(b), as a defendant to the Ninth and Tenth causes of action to enforce its right to .Africa. Intervention is proper because ZACR has an interest in the Registry Agreement which may be impaired or impeded by the disposition of this action and ZACR’s interest is not adequately represented by the existing parties." --ZACR's Memorandum of Points and Authorities (pdf)

Dismissed defendant, ZA Central Registry, which filed an interlocutory appeal, has now filed its opening brief (embed below), and has also filed a motion to intervene as a party:

• ZACR's Notice of Motion and Motion to Intervene [PDF, 232 KB] scheduled for September 19, 2016 hearing;
• Memorandum of Points and Authorities [PDF, 166 KB] (embed below)
• Declaration of David W. Kesselman [PDF, 42 KB] 1 August 2016
• ZACR's Opening Appellate Brief [PDF, 275 KB] 22 July 2016 (embed below)

The DotConnectAfrica Trust answering brief is due August 19, 2016. The optional reply brief is due September 9, 2016.  Meanwhile the U.S. District Court has assigned the case to a 10-12 day jury trial beginning February 28, 2017. See Scheduling Order (pdf).  

See also: ICANN and Dot AFRICA: Dismissed Party ZACR Files Notice of Appeal | DomainMondo.com and the history and background of this case at .africa | Wikipedia.org.

ZACR's Opening Appellate Brief (embed below):


Memorandum of Points and Authorities in support of ZACR's motion to intervene:



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