Dluhos v. Strasberg , 321 F.3d 365 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
2-20-2003
Dluhos v. Strasberg
Precedential or Non-Precedential: Precedential
Docket 01-3713
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PRECEDENTIAL
Filed February 20, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-3713
ERIC DLUHOS,
Plaintiff-Appellant,
v.
ANNA STRASBERG; MARK ROESLER, Esquire, JANE
DOE, a/k/a Marilyn.cmgworldwide.com; CMG
WORLDWIDE, INC.; THE ESTATE OF LEE STRASBERG;
THE LEE STRASBERG THEATRE INSTITUTE; NETWORK
SOLUTIONS, INC., and JOHN DOES/JANE DOES (1-10),
Defendants-Appellees.
Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 00-CV-03163)
District Judge: The Honorable John C. Lifland
Argued: January 16, 2003
Before: ROTH, FUENTES and ALDISERT, Circuit Ju dges,
(Filed: February 20, 2003)
Eric Dluhos (argued)
One Tremont Avenue
Belleville, New Jersey 07109
PRO SE
Randy M. Mastro (argued)
Peter M. Skinner
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166-0193
ATTORNEY FOR APPELLEES
Anna Strasberg, the Estate of Lee
Strasberg, the Lee Strasberg
Theatre Institute, Mark Roesler,
Esq., and CMG Worldwide, Inc.
Sheri Claire Lewis (argued)
Rivkin Radler LLP
EAB Plaza
200 Park Avenue
Uniondale, New York 11556
Philip L. Sbarbaro
VeriSign, Inc.
21355 Ridgetop Circle
Dulles, Virginia 20166
ATTORNEY FOR APPELLEE
Network Solutions, Inc.
OPINION OF THE COURT
ALDISERT, Circuit Judge.
This appeal requires us to decide whether a dispute
resolution under the Internet Corporation for Assigned
Names and Numbers’ Uniform Domain Name Dispute
Resolution Policy ("UDRP") is entitled to the extremely
deferential standard of judicial review set forth in the
Federal Arbitration Act ("FAA"), 9 U.S.C.S 10(a)(2)-10(a)(3).
After Appellant Eric Dluhos registered the domain name
invoking the name of the
renowned acting coach, representatives of Lee Strasberg’s
widow, his eponymous acting institute and his estate
instituted administrative proceedings culminating in a
National Arbitration Foundation dispute resolution that
shifted the domain name from Dluhos to the Strasberg
2
parties. Dluhos simultaneously sought relief in the district
court, which applied the FAA standards to the NAF panel’s
order and dismissed the complaint. Dluhos appealed, and
we now reverse.
Among Appellant’s various contentions, he appeals from
the district court’s refusal to vacate an order under the
UDRP. Constitutional issues are presented, but we must
first decide whether the district court properly chose to
review the NAF panel’s decision under the Federal
Arbitration Act’s deferential standards for judicial review of
arbitration decisions and a separate "manifest disregard for
the law" standard, or whether a UDRP dispute resolution
proceeding does not qualify as "arbitration" under the FAA
and instead falls under broader category of review.
I.
In the district court, Dluhos had filed a complaint against
Anna Strasberg, the Estate of Lee Strasberg and the Lee
Strasberg Theatre Institute (the "Strasberg defendants");
Mark Roesler and CMG Worldwide Inc. (the "CMG
defendants"); and Network Solutions, Inc. The court ruled
that he failed to state a claim for which relief may be
granted. Rule 12(b)(6) Federal Rules of Civil Procedure.
The United States District Court for the District of New
Jersey had jurisdiction of the underlying action pursuant to
28 U.S.C. S 1331 based on Appellant’s constitutional claims
and his challenge to the constitutionality of the arbitration
process1 brought under 42 U.S.C.S 1983, and his sundry
state law claims pursuant to 28 U.S.C. S 1367(a). As will
become clear, the court also had jurisdiction under the
Anticybersquatting Consumer Protection Act ("ACPA"), 15
U.S.C. S 1114(2)(D)(v). We have appellate jurisdiction
pursuant to 28 U.S.C. S 1291.
Pursuant to a Cooperative Agreement with the federal
National Science Foundation (NSF), one of the Appellees,
_________________________________________________________________
1. The Federal Arbitration Act itself does not create federal question
jurisdiction. Roadway Package Sys. v. Kaiser, 257 F.3d 287, 291 n.1 (3d
Cir. 2001) (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,
460 U.S. 1, 25 n.32 (1983)).
3
Network Solutions, Inc. (NSI), a private entity, is the
exclusive provider of Internet domain name registration
services to the public.2 On June 25, 1999, pro se plaintiff
Eric Dluhos entered into a domain-name registration
agreement with NSI to register the domain name
. The registration agreement
required Dluhos to abide by NSI’s ever-evolving dispute
resolution policy, which incorporated the Internet
Corporation for Assigned Names and Numbers’ Uniform
Domain Name Dispute Resolution Policy as it developed.
The UDRP -- and thus Dluhos’ agreement with NSI--
requires a domain-name registrant to submit to a
"mandatory administrative proceeding" before an approved
dispute resolution service provider to resolve a third party’s
complaint concerning the registration and use of a
particular registered domain name. Uniform Domain Name
Dispute Resolution Policy 4(a) (Oct. 24, 1999), available at
http://www.icann.org/dndr/udrp/policy.htm. The National
Arbitration Forum is one such approved provider. See
Approved Providers for Uniform Domain Name Dispute
Resolution Policy, available at http://www.icann.org/
dndr/udrp/approved-providers.htm (listing the National
Arbitration Foundation as an approved resolution provider).
_________________________________________________________________
2. In 1990, the Department of Defense handed over its administration of
the Advanced Research Projects Agency Net (ARPANET), the predecessor
to the modern Internet, to the National Science Foundation -- an agency
created by Congress in 1950 for the purpose of promoting science and
engineering through programs in research and education projects. See
42 U.S.C. S 1861 et seq. (authorizing the establishment of the NSF); NSF
and Domain Names, available at http://www.nsf.gov/od/lpa/news/
media/fsdomnames.htm (providing an "Early History" of the NSF ’s
involvement with the registration of domain names). In 1993,
telecommunications-services provider NSI -- a wholly owned subsidiary
of VeriSign, Inc. -- won a competitively awarded Cooperative Agreement
from the NSF to register second-level domain-names on the Internet. Id.
The domain-name registration process is largely automated and
involves the registrant’s transmission of a registration application to NSI.
If accepted by NSI, the application becomes the Registration Agreement,
and the domain name is simply entered into a registry database.
Following entry, NSI has no knowledge or input as to how or if the
domain name will be used. Appellee Network Solutions, Inc.’s Brief at 1;
NSI-NSF Cooperation Agreement (Jan. 1, 1993), available at http://
www.icann.org/nsi/coopagmt-01jan93.htm.
4
Anna Strasberg -- the widow of actor and acting coach
Lee Strasberg -- owns and directs the Lee Strasberg
Theatre Institute and serves as the executrix of the Estate
of Lee Strasberg. As executrix, she is responsible for Estate-
owned trademarks and service marks, which include"The
Lee Strasberg Institute" and "Actor by Lee Strasberg." CMG
Worldwide, Inc. represents and manages Internet sites for
the Estate, the Institute and Anna Strasberg. CMG
maintains an official Web sites for the Institute, the Estate
and Anna Strasberg at .
Dluhos’ registration of came
to the attention of Mark Roesler, CMG’s chief executive
officer. In May 2000, Roesler sent four letters to Dluhos,
informing him that his use of the domain name
violated the Strasberg trademarks
and that CMG would take action to have the domain name
transferred, potentially through UDRP dispute resolution, if
Dluhos would not rescind it.
Having heard nothing from Dluhos, CMG submitted a
complaint to the National Arbitration Foundation on June
2, 2000. The complaint requested a UDRP dispute
resolution proceeding and formally disputed Dluhos’ right
to use the domain name, alleging that the domain name
was "identical or confusingly similar to" a trademark owned
by the Estate; that Dluhos had "no rights or legitimate
interests" in the name; and that he had registered and used
the name "in bad faith." Dluhos had until June 26, 2000 to
respond. Rather than participating in the dispute resolution
process to which he had agreed when he registered the
domain name with NSI a year earlier, Dluhos submitted a
letter of limited appearance to the NAF to explain that he
would not submit to dispute resolution because he
contested the NAF ’s jurisdiction over the matter. He added
that he would instead file a complaint in federal court. On
June 27, 2000, he did just that. He filed a complaint
against the Strasberg defendants and the CMG defendants
with the district court challenging the constitutionality of
the dispute resolution process.
Three days later on June 30, 2000, a one-member NAF
panel issued an order suspending the NAF/UDRP
proceeding in light of the pending federal lawsuit. See
5
UDRP S 18 (giving panel "the discretion to decide whether to
suspend or terminate the administrative proceeding, or to
proceed to a decision" while a lawsuit is pending). Because
Dluhos failed to serve properly either the Strasberg
defendants or the CMG defendants, CMG formally
requested in August 2000 that the NAF lift the suspension
order and proceed with UDRP dispute resolution. NAF lifted
the order when CMG served notice of its request on Dluhos
and paid a $150 fee to remove the suspension order.
On October 26, 2000, the NAF panel issued a decision
against Dluhos -- without his participation -- and directed
that the domain name be
transferred to the Estate. See UDRP S 5(e) (mandating that
the panel "decide the dispute based upon the complaint" if
a registrant declines to participate in the UDRP
proceedings).
Dluhos filed an amended complaint in the district court
on October 31, 2000, alleging harassment, breach of
contract, and violations of his First, Fifth and Fourteenth
Amendment rights. Essentially, he challenged the
constitutionality of the dispute resolution process, raised
First Amendment arguments against enforcement of
NSI’s dispute resolution policy and asked the district
court to restore his right in the domain name
. All defendants promptly filed
motions to dismiss for failure to state a claim, and in an
August 31, 2001 memorandum and order, the district court
granted the defendants’ motions. After dismissing all
constitutional and S 1983 claims against the defendants for
want of state action, the district court dismissed the
various state law claims against all parties for failure to
state a claim for which relief may be granted.
The court then proceeded to review the NAF ’s decision in
favor of the Strasberg and CMG defendants under: 1) 9
U.S.C S 10(a)(2)-10(a)(3) of the Federal Arbitration Act,
which authorizes a district court to vacate an arbitration
decision if there is "evident partiality or corruption in the
arbitrator[ ]," or if "the arbitrators were guilty of misconduct
. . . in refusing to hear evidence pertinent and material to
the controversy"; and 2) the judicially created"manifest
disregard of the law" standard, which allows a district court
6
to vacate an arbitration award that "evidences manifest
disregard of the law rather than an erroneous
interpretation." See Local 863 Int’l Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America v. Jersey Coast Egg Producers, Inc., 773 F.2d 530,
533 (3d Cir. 1985) (trotting out the standard but holding
that a union arbitration judgment did not rise to the level
of "manifest disregard"). The district court reviewed and
upheld the NAF ’s decision under both deferential
standards.
Dluhos filed a timely Notice of Appeal.
II.
We review a district court’s denial of a motion to vacate
a commercial arbitration award de novo. Kaplan v. First
Options, 19 F.3d 1503, 1509 (3d Cir. 1994). We also note
that because Dluhos has filed his complaint pro se, we
must liberally construe his pleadings, and we will apply the
applicable law, irrespective of whether the pro se litigant
has mentioned it by name. Higgins v. Beyer, 293 F.3d 683,
688 (3d Cir. 2002) (internal quotations omitted).
III.
The Federal Arbitration Act explicitly permits the use of
arbitration and specifically authorizes individuals in
commercial transactions to contract for arbitration. 9
U.S.C. SS 1-10. Congress enacted the FAA in 1925 to offset
the "hostility of American courts to the enforcement of
arbitration agreements." Circuit City Stores, Inc. v. Adams,
532 U.S. 105, 111 (2001). As the FAA evinces the"liberal
federal policy favoring arbitration," Moses H. Cone Mem’l
Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983), the
legislation "compels judicial enforcement of a wide range of
written arbitration agreements." Circuit City , 532 U.S. at
111.
Federal courts primarily invoke the FAA to give effect to
contracting parties’ expectations for resolving disputes.
Accordingly, the FAA revolves around contract
interpretation. See Harrison v. Nissan Motor Corp., 111 F.3d
7
343, 350 (3d Cir. 1997) ("[A]rbitration is creature of
contract, a device of the parties rather than the judicial
process. If the parties have agreed to submit a dispute for
a decision by a third party, they have agreed to
arbitration.") (quoting AMF Inc. v. Brunswick Corp., 621 F.
Supp. 456, 460 (E.D.N.Y. 1985) (Weinstein, J.)). Because
the FAA does not define the term "arbitration," "courts and
commentators have struggled to do so." Harrison, 111 F.3d
at 350. Broadly, this Court has essentially concluded that
"the essence of arbitration . . . is that, when the parties
agree to submit their disputes to it, they have agreed to
arbitrate these disputes through to completion, i.e. to an
award made by a third-party arbitrator. Arbitration does
not occur until the process is completed and the arbitrator
makes a decision." Id. at 350.
Admittedly, this definition does little to assist us in
determining which types of dispute resolution fall under the
FAA and which do not. The Court of Appeals for the Fourth
Circuit has distinguished "mandatory arbitration, as a
prerequisite to litigation" from "binding arbitration, where
the parties must accept an award or decision of the
arbitrator." United States v. Bankers Ins. Co., 245 F.3d 315,
322 (4th Cir. 2001). But the real debate has occurred "in
the context of whether the FAA applies to nonbinding
arbitration[.]" Harrison, 111 F.3d at 350. Although the
precise identity of nonbinding arbitration is itself perhaps
no less murky than the definition of "arbitration" under the
FAA, we have previously looked to Judge Weinstein’s
discourse in AMF, Inc. v. Brunswick Corp., 620 F. Supp.
456 (E.D.N.Y. 1985), for guidance. Judge Weinstein did not
contend that the FAA applies to all forms on nonbinding
arbitration, but he looked to S 2 of the FAA, which states
that the FAA applies to "contracts . . . to settle disputes by
arbitration." 9 U.S.C. S 2. Accordingly, Judge Weinstein
centered the inquiry for a classification of nonbinding
arbitration on "whether the arbitration at issue . . . might
realistically settle the dispute." Harrison , 111 F.3d at 349.
In his eyes, then, a dispute-resolution mechanism would
fall under the FAA if "viewed in light of the reasonable
commercial expectations the dispute will be settled by this
arbitration." Id. (quoting AMF, 620 F. Supp. at 461)). By
way of an example, a lawsuit that halts in a "stay . . . so
8
that arbitration can be had" before litigation may proceed
means that a dispute-resolution proceeding constitutes
"arbitration." 9 U.S.C. S 3; see also Parisi v. Netlearning,
Inc., 139 F. Supp. 2d 745, 751 (E.D. Va. 2001) ("[T]here is
no reason to ‘stay’ litigation under S 3[where a proceeding]
contemplates parallel litigation.").
If a dispute-resolution mechanism indeed constitutes
arbitration under the FAA, then a district court may vacate
it only under exceedingly narrow circumstances. 9 U.S.C.
S 10. It may vacate it where there is "evident partiality or
corruption in the arbitrator[ ]," or because "the arbitrators
were guilty of misconduct . . . in refusing to hear evidence
pertinent and material to the controversy." 9 U.S.C.
SS 10(a)(2)-10(a)(3). A district court may also vacate an
arbitrator’s decision where the arbitrator’s decision
"evidence[s] a manifest disregard for the law rather than an
erroneous interpretation of the law." Local 863 Int’l
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America v. Jersey Coast Egg Producers, Inc., 773
F.2d 530, 534 (3d Cir. 1985). The net result of a court’s
application of this standard is generally to affirm easily the
arbitration award under this extremely deferential standard
-- a result that is squarely in line with the purpose behind
the FAA where courts are tasked with reviewing an
arbitration decision.
If, however, a dispute-resolution mechanism does not
constitute arbitration under the FAA, then a district court
has no jurisdiction to review the result absent an
independent jurisdictional hook. See Roadway Package
Sys. v. Kaiser, 257 F.3d 287, 291 n.1 (3d Cir. 2001) (citing
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp. , 460
U.S. 1, 25 n.32 (1983) (explaining that the FAA does not
independently provide federal jurisdiction); Harrison, 111
F.3d at 352 (dismissing a request for lack of appellate
jurisdiction, where the dispute resolution proceeding did
not constitute arbitration under the FAA).
At issue before us then is whether the nonbinding
domain name resolution policy (UDRP) proceeding that
shifted Appellant’s registered domain name to the Strasberg
defendants constitutes arbitration under the FAA. If this
proceeding qualifies as arbitration under the FAA, then the
9
dispute resolution is subject to extremely limited review. If
it does not fall under the FAA umbrella, then the district
court lacked jurisdiction to examine -- and thus to affirm
-- the result under the lax FAA review standards.
IV.
We begin our analysis of the FAA’s applicability by
examining the specific arbitration agreement at issue, a
contract-based arrangement for handling disputes between
domain name registrants and third parties who challenge
the registration and use of their trademarks. In our view,
the UDRP’s unique contractual arrangement renders the
FAA’s provisions for judicial review inapplicable.
A.
First, the UDRP obviously contemplates the possibility of
judicial intervention, as no provision of the policy prevents
a party from filing suit before, after or during the
administrative proceedings. See UDRP S 4(k) (stating that
domain-name resolution proceedings shall not stop either
party from "submitting the dispute to a court of competent
jurisdiction for independent resolution"); Sallen v.
Corinthians Licenciamentos Ltda., 273 F.3d 14, 26 (1st Cir.
2001) (discussing the likelihood that the "judicial outcome
will override the UDRP one"). In that sense, this mechanism
would not fall under the FAA because "the dispute will [not
necessarily] be settled by this arbitration." Harrison, 111
F.3d at 349. (quoting AMF, 620 F. Supp. at 461)).
The UDRP was intended to ensure that the parties could
seek independent judicial resolution of domain name
disputes, regardless of whether its proceeding reached a
conclusion. See World Intellectual Property Organization,
The Management of Internet Names and Addresses:
Intellectual Property Issues: Final Reporter of the WIPO
Internet Domain Name Process 139, 150(iv), at http://
wipo2.wipo.int/process1/report/finalreport .html (Apr. 30,
1999) (remarking that the parties should be permitted to
seek "de novo review" of a UDRP-based dispute resolution);
see also Sallen, 273 F.3d at 26 (affording independent
complete review of a UDRP proceeding rather than
10
addressing it under the FAA); Weber-Stephen Prods. Co. v.
Armitage Hardware & Bldg. Supply, Inc., 2000 U.S. Dist
LEXIS 6335 (N.D. Ill. May 3, 2000) (concluding that the
UDRP takes account of the possibility of parallel litigation
in federal court, and that federal courts are "not bound by
the outcome of the administrative proceedings").
Indeed, unlike methods of dispute resolution covered by
the FAA, UDRP proceedings were never intended to replace
formal litigation. See Parisi, 139 F. Supp. 2d at 752 (citing
the FAA’s requirement that parties to arbitration"agree[ ]
that a judgment of the court shall be entered upon the
award made pursuant to the arbitration," 9 U.S.C.S 9, and
noting the absence of such an agreement in the UDRP);
David E. Sorkin, Judicial Review of ICANN Domain Name
Dispute Decisions, 18 SANTA CLARA COMPUTER & HIGHTECH L.J.
35, 51-52 (2001) ("Unlike conventional arbitration, the
UDRP is not meant to replace litigation, but merely to
provide an additional forum for dispute resolution, with an
explicit right of appeal to the courts."). Rather, the UDRP
contemplates truncated proceedings. It "is fashioned as an
‘online’ procedure administered via the Internet," Parisi,
139 F. Supp. 2d at 747, which does not permit discovery,
the presentation of live testimony (absent exceptional
circumstances), or any remedy other than the transfer or
cancellation of the domain name in question. See UDRP
S 4(i); David H. Bernstein, The Alphabet Soup of Domain
Name Dispute Resolution: The UDRP and ACPA, 716 PLI/Pat
251, 299-300 (2002).
To shove Dluhos’ square-peg UDRP proceeding into the
round hole of the FAA would be to frustrate this aim, as
judicial review of FAA-styled arbitration proceedings could
be generously described only as extremely deferential.
B.
Second, because the trademark holder or the trademark
holder’s representative is not required to avail itself of the
dispute resolution policy before moving ahead in the district
court, these proceedings do not qualify as the type that
would entail a court’s compelling party participation prior
to independent judicial review -- thus removing the
11
proceeding from the warmth of the FAA blanket. UnderS 4
of the FAA, a district court may "stay the trial of the action
until such arbitration has been had in accordance with the
terms of the agreement." 9 U.S.C. S 4. Although "[s]ome
courts, relying in part on their inherent equitable powers,
have stayed litigation and compelled participation in non-
binding procedures so long as there are ‘reasonable
commercial expectations’ that the procedures would‘settle’
disputed issues," Parisi, 139 F. Supp. 2d at 750 n.10
(quoting AMF, 621 F. Supp. at 460-461), a UDRP
proceeding settles a disputed proceeding only to the extent
that a season-finale cliffhanger resolves a sitcom’s storyline
-- that is, it doesn’t. It is true that the language of the
resolution policy describes the dispute-resolution process
as "mandatory," but "the process is not‘mandatory’ in the
sense that either disputant’s legal claims accrue only after
a panel’s decision." Parisi, 139 F. Supp. 2d at 751 (quoting
Bankers Ins. Co., 245 F.3d at 319). Only the domain-name
registrant is contractually obligated to participate in the
proceeding if a complaint is filed. Even then, the panel may
"decide the dispute based on the complaint" if the
registrant declines to participate. UDRP S 5(e). That Dluhos
could do precisely that by eschewing the NAF proceeding
and filing suit in district court only demonstrates the
dispute resolution policy’s outcome’s relative hollowness.
Indeed, it is not the district court litigation that could be
stayed pending dispute resolution, but rather the dispute-
resolution mechanism itself. See UDRP S 18 (giving
arbitration panel "the discretion to decide whether to
suspend or terminate the administrative proceeding, or to
proceed to a decision" while a lawsuit is pending). And that
is exactly what the NAF panel did.
C.
The bottom line is that a registrant who loses a domain
name to a trademark holder "can effectively suspend [a]
panel’s decision by filing a lawsuit in the specified
jurisdiction and notifying the registrar in accordance with
[UDRP S 4(k)]." Parisi, 139 F. Supp. 2d at 752. From that
provision, it is evident that the UDRP provides" ‘parity of
appeal,’ affording a ‘clear mechanism’ for ‘seeking judicial
12
review of a decision of an administrative panel canceling or
transferring the domain name.’ " Id. (quoting ICANN, Staff
Report on Implementation Documents for the Uniform
Dispute Resolution Policy (Sept. 29, 1999)).
Accordingly, we hold that UDRP proceedings do not fall
under the Federal Arbitration Act. More specifically, judicial
review of those decisions is not restricted to a motion to
vacate arbitration award under S 10 of the FAA, which
applies only to binding proceedings likely to "realistically
settle the dispute." The district court erred in reviewing the
domain name proceeding under limitations of FAA
standards.
V.
Because the UDRP -- a private covenant -- cannot confer
federal jurisdiction where none independently exists, the
remaining question is whether the Congress has provided a
cause of action to challenge its decisions. In the
Anticybersquatting Consumer Protection Act, we hold that
it has.
The ACPA, 15 U.S.C. S 1114(2)(D)(v), "provide[s]
registrants . . . with an affirmative cause of action to
recover domain names lost in UDRP proceedings." Sallen,
273 F.3d at 27. Under this modern amendment to the
Lanham Act, a registrant whose domain name has been
"suspended, disabled, or transferred" may sue for a
declaration that the registrant is not in violation of the Act,
as well as for an injunction returning the domain name. 15
U.S.C. S 1114(2)(D)(v). Congress’ authorization of the federal
courts to "grant injunctive relief to the domain name
registrant, including the reactivation of the domain name or
transfer of the domain name to the domain name
registrant" gives the registrant an explicit cause of action
through which to redress the loss of a domain name under
the UDRP. Id.
Once again, we must liberally construe the pro se
litigant’s pleadings, and we will apply the applicable law,
irrespective of whether he has mentioned it by name.
Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (internal
quotations omitted). Although Dluhos did not expressly
13
invoke the ACPA, his allegations and demand for the return
of the domain name can reasonably be construed as such
a request; Dluhos’ end goal is the return of
to him, bringing his cause of
action squarely under the ACPA. Dluhos is a registrant,
and the domain name has been transferred to the Strasberg
defendants via a complaint by the CMG defendants and
resulting arbitration.
Accordingly, as to the CMG and Strasberg defendants, we
will reverse and remand the case for further proceedings
consistent with this opinion. This decision in no way
reflects an intimation that the NAF panel erred in its
judgment, but merely that UDRP resolutions do not fall
under the limited judicial review of arbitrators of the FAA.
VI.
As to the remaining claims, this Court will affirm the
dismissal of the constitutional claims against all parties --
including, inter alia, Appellee Network Solutions, Inc. -- for
want of state action and for failure to state a claim for
which relief may be granted, as well as the state law claims
against all parties. We adopt the reasoning of the district
court in this regard. Appendix at 7-23. We need not
address Dluhos’ claims of antitrust and federal labor law
violations, as he has raised them for the first time on this
appeal. See Harris v. City of Philadelphia, 35 F.3d 840, 845
(3d Cir. 1994) ("This court has consistently held that it will
not consider issues that are raised for the first time on
appeal.").
VII.
We have considered all contentions presented by the
parties and conclude that no further discussion is
necessary.
We will reverse that portion of the district court’s
judgment against the Strasberg and CMG defendants that
affirms the NAF-driven UDRP proceeding under FAA
standards, and remand with a direction that the court
review the dispute-resolution award de novo under the
14
Anticybersquatting Consumer Protection Act. We will affirm
that portion of the district court’s judgment that dismissed
all remaining claims against all parties.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
15