STATEMENT OF THE ISSUES

1. Did the District Court err or abuse it’s discretion when ignoring that it lacked

personal and subject matter jurisdiction, and venue was improper?

2. Assuming there was no error or abuse of discretion, was it error or abuse of

discretion to claim that the court had quasi in rem jurisdiction although the

Supreme Court has stated that quasi in rem is archaic and found against it?

3. Did the District Court err or abuse it’s discretion when wrongly interpreting CA

law? Assuming that it did not, did it err or abuse it’s discretion by violating and

allowing violations of CA law?

4. Did the District Court err or abuse it’s discretion by ignoring/allowing that the

opposing party had committed the crime of conversion?

5. Did the District Court err or abuse it’s discretion when violating Appellant’s rights

to due process of law?

6. Did the District Court err or abuse of discretion to allow and participate in fraud

upon the court?

7. Is it err or abuse of discretion to have property, that has monthly income of almost

six thousand dollars a month, auctioned to satisfy an alleged debt?

8. Was it err or abuse of discretion for the Court to deny Appellant Preliminary

Injunction after being shown that property, taken for an alleged judgment had

auctioned and only 15-20% would go toward the alleged debt?

1
 STATEMENT OF THE CASE

Office Depot, was allegedly awarded Judgment1 against John Zuccarini in The

United States District Court for the Middle District of CA, December 2000. Mr.

Zuccarini, was living in Pennsylvania, was not served, had no knowledge of suit.

For (10) years, the alleged Judgment had not been registered in the US District

Court in Pennsylvania, or Florida where Mr. Zuccarini moved to in 2001.

Without attempting to collect the alleged judgment, by Registering the alleged

judgment in a Court of competent jurisdiction, and obtaining a Writ of Execution, Office

Depot2 October 2006, assigned the alleged Judgment to DS Holdings (DSH). December,

2006, DSH, Registered “Foreign Judgment” [Dkt.1] in US District Court, San Francisco

Division3 and obtained a Writ of Execution [Dkt.3]. To date, Mr. Zuccarini has never

been served with Process, or Notice for either action.

STATEMENT OF UNDISPUTED FACTS

February 2007, District Court signed an Order directed toward Mr. Zuccarini, and

1
According to Pacer Website, nothing was filed in the US District Court in Santa Ana
between 12/13/2000 until 10/5/2006 when “Notice of Assignment” was filed by Office
Depot, who won on Default.
2
Although the case is titled Office Depot v Zuccarini, Office Depot no longer has an
interest in this matter, has not been part of the current proceedings. The title of the case is
misleading and inappropriate, as Office Depot had no standing.
3
DSH claimed that the matter was filed in the US District Court for the Northern District
of California, San Francisco Division, because the domain names would have to be
transferred by Verisign, whose CA address is: 487 East Middlefield Road Mountain
View, CA 94043.
2
WHOIS4 to produce any/all documentation pertaining to any/all domain names

registered in Mr. Zuccarini’s name by Network Solutions, Inc.(NSI), and Computer

Services Langenback (Joker.com); and prohibiting the transfer of the Domain Names by

Mr. Zuccarini, NSI, or Joker.com to any other entity. The order further specifically

states:

“Proposed turnover order effectively transferring ownership and

control such domain names to the United States Marshall Service for
sale at auction… of a limited portion of John Zuccarini’s domain
name holdings” [Doc.9pg.5@13-14].

DSH claimed that Mr. Zuccarini owned more than 248 domain names registered

with Network Solutions, Inc (NSI)5, and moved to levy on all of the domain names,6 and

none of the domain names have ever gone to the US Marshal.

The same Order specifically, and without reason, threatened Mr. Zuccarini with

arrest: “John Zuccarini’s failure to comply …arrest and punishment …”

4
WHOIS located in Singapore at: 9A Jasmine Road, Singapore 576582 The Court
lacked jurisdiction to Order “third party” Whois to do anything.
5
Network Solutions, LLC. and Verisign, LLC are both in Virginia, not in CA as alleged
by DSH in order to fraudulently assert jurisdiction in the CA District Court; Mr.
Zuccarini is a resident of FL, not CA, whereby neither Mr. Zuccarini, nor any of his
property is, or has ever been located in, or had ties with CA.
6
DSH later lied that they only sought to levy on 190 .com domain names [doc.93 pg.1,
@7], evidenced by the fact that DSH attempted to have “Addition of Names To Writ of
Execution” [Doc.10] in which DSH sought to take over Six Thousand (6,000) of Mr.
Zuccarini’s domain names [Doc.11,pg.2*fn1]; and the fact that Blacksburg has illegally
converted to his name Mr. Zuccarini’s .eu, .org, .net, etc. which the District Court stated
“This Court did not order transfer of the .eu domain names…the Court would have
lacked jurisdiction to do so…however, there is no basis to order their return to Zuccarini”
[Doc.137,pgs.3@26-28;pg.4@3-5]
3
[Doc.9,pg.5@17-19], which was done to justify appointment of reciever. The statement

shows bias/prejudice by a Court having actual knowledge that Mr. Zuccarini had not

been served with process or Notice; actual knowledge the court lacked jurisdiction, was

an improper venue; actual knowledge that the alleged judgment had never been

registered, no attempts to obtain a Writ of Execution been made. Further that Mr.

Zuccarini had no knowledge of the events referenced in the order.

DSH filed an Ex Parte Motion for a Final Turnover Order April 27, 2007 [Dkt-

14,15,16], the Court Denied on May 15, 2007 [Doc.17,] because “requiring third parties

to transfer the property…is not appropriate” [Doc.17pg.3@3-5]:

“…turnover order that requires ‘the judgment debtor to transfer to the

levying officer’ the property sought. Id. (emphasis added) Here, in
contrast,…a turnover order requiring third parties to transfer the
property…” The CA code that addresses a third party, shows that a
turnover order, “is not appropriate”.

June 25, 2007, DSH filed Motion to Appoint Reciever [Dkt.18-23]; August 7,

2007 Mr. Zuccarini filed in Opposition [Dkt.25-28]; September 10, 2007 the Court

Granted appointment of receiver.[Dkt.30]. September 25, 2007, Mr. Zuccarini filed

Notice of Appeal [Dkt.34] and Motion to Stay [Dkt.35].

According to both the District Court, and this Court, Blacksburg was to seek

“specifically the ones that were ‘.com’”. “DSH targeted the “.com” domain names in its

levy.” [9th Cir. Ruling, pg. 3123, 2nd ¶ Feb. 26, 2010]. That statement was incorrect as

well, see Order Denying Addition of Names … [Doc.11,pg.2,*fn1];

4
 Mr. Zuccarini moved to have .eu, .org, etc domain names returned to him June 2,

2010 [Doc.101], which the Court denied July 12, 2010 [Doc.137@19-25].

Feb. 26, 2010: 9th Cir. Court No: 07-16788 Affirmed District Court’s Ruling;

May 12, 2010 [Dkt.t95] District Court Denied Defendant’s Motion to Stay Auction of

Domain Names, Granted Motion to Provide Monthly Revenue Reports.

April 20, 2010 Mr. Zuccarini filed Motion to Stay pending Petition for Writ of

Cert. to US Supreme Court [Dkt.88,89], to which DSH filed Opposition, making

fraudulent, unsubstantiated claims: “The enforcement of the Judgment – which

Zuccarini has now managed to stall for the last ten years…” [Doc.93,pg.4,@17-22];

Motion to Stay denied May 12, 2010 [Dkt.95].

May 25, 2010 Mr. Zuccarini discovered an article on a news website, that the

receiver (Blacksburg) was incapable of performing obligations [Doc.97,pgs.2,3; Doc.97-

Ex-A;Doc.100pg.4]. The article titled: “After 7 Hours of Bidding, GovermentGrants.com

Sells For $53K On NameJet”7 [Doc.97-Ex-A] The article discussed that one (1) domain

name converted from Mr. Zuccarini’s estate and mismanaged by Blacksburg, had

auctioned for Fifty-three Thousand Dollars ($53,000.00). The article shows that on one

day, Domain Names converted from Mr. Zuccarini’s Estate by Blacksburg, and

auctioned, under Blacksburg’s scheme to have domain names auctioned without the

7
http://www.thedomains.com/2010/05/25/after-5-hours-govermentgrants-com-sells-for-
53k-on-namejet-yes-its-a-typo/ This article was also attached as Exhibit A to Rule 60(b)
Motion filed in District Court [Docs.99,100].
5
court’s permission, auctioned for Sixty-five Thousand Dollars ($65,000.00), but the

receiver had not renewed the Domain Names, NSI received 80-85%; only 15-20% would

go toward Mr. Zuccarini’s alleged debt. The receiver’s gross negligence, caused Mr.

Zuccarini irreparable injury and harm. Had the property been properly managed, a large

portion of Mr. Zuccarini’s alleged debt would have been satisfied.

June 1, 2010 Mr. Zuccarini filed an Emergency Verified Petition for

TRO/Injunction [Doc.97]; Motion for Relief from Judgment under Rule 60(b)(1),(3),(4),

and (6) [Docs.99] and a Motion attempting to have returned to Mr. Zuccarini the

European domain names that Blacksburg had illegally converted to his own name [101];

name that are not .com or .net domain names, and not included in the District Court’s

Orders. The Court’s denial of the Motion for the return of domain names, because the

receiver already had them, [Doc.137,pg.3@26-28; pg.4@3-5] borders on being

ludicrous, unacceptable, unconscionable, and shows a conspiracy involving conversion

between DSH/Blacksburg and the Court of Mr. Zuccarini’s personal property

[Doc.137,pg.3@26-28; pg.4@3-5].

On May 12, 2010 the District Court Ordered that Blacksburg would provide Mr.

Zuccarini with “Monthly Revenue Reports” [Doc.95,pg.1@21-22], which Blacksburg is

in Contempt of to date. Further, it makes no sense to have auctioned property bringing in

proceeds of Five Thousand Eight Hundred Dollars ($5800.00) monthly, or Sixty-Nine

Thousand, Six Hundred Dollars ($69,600.00) annually. The income would satisfy the

6
debt without having to auction the domain names. Besides, Mr. Zuccarini would

normally be using that income to live on, auctioning the domain names has caused and

will continue to cause Mr. Zuccarini extreme undue hardship.8 The equivalent would be

garnishing a man’s full wages and leaving him nothing to live on, and as is shown by the

statutes in every state of this country, that simply is not done, all states have

“exemptions” in both garnishments and bankruptcies CA §§703.510-703.610.

The District and Appellate Courts cite many CA codes, but have continually

evaded any/all codes that would be in favor of Mr. Zuccarini. Further, “intangible

property” is exempt from levy in all matters concerning judgments in CA9. The Courts

incorrectly claimed that CA doesn’t specifically state “intangible property cannot be

levied upon”.

DSH also filed for Emergency TRO/Injunction, requests to freeze the domain

names, requested full accounting by receiver [Docs.104,105,106,107,109,110].

June 14, 2010, Network Solutions, Inc. (NSI) filed Ex Parte Application to

Immediately Intervene, Proposed Complaint, Proposed Order [Doc.113,116,117,118].

On June 15, 2010 the Court Denied Mr. Zuccarini’s Emergency Motion/Injunction,

DSH’s Emergency Injunction/accounting and NSI’s Intervention [Doc.119]. NSI’s

8
The Court claimed that Mr. Zuccarini failed to “provide any explanation”
[Doc.137,pg.3@15].
9
One minute the District Court agrees that third parties cannot be ordered to relinquish
intangible property to levy [Doc.17,pg.2@12-28; pg.3@1-5], then issues an Order six
months later to do so [Doc.30 generally], receivers are appointed for garnishments,
bankruptcies, Writs of Possession CAL. CCP. CODE § 712.060.
7
filings shows that not only did DSH/Blacksburg perpetrate a fraud upon the Court, but

that DSH/Blacksburg knowingly, willingly, wantonly, and maliciously misled the court,

with actual knowledge that the Court lacked jurisdiction.

June 22, 2010 Mr. Zuccarini sought a Stay Pending Appeal [Docs.124,125.126],

which was denied by the Court on June 25, 2010 [Doc.129]10.

Mr. Zuccarini filed Notice Of Appeal [Dkt.123], which Notice should have stated

that Mr. Zuccarini was seeking to Appeal: everything that had been ruled on since

February 26, 2010, not only the TRO/Injunction.

Further, a hearing had been scheduled for July 16, 2010 on Mr. Zuccarini’s Rule

60(b)(1),(3),(4) and (6) Motion; the court cancelled the hearing and denied the Rule 60(b)

Motion on July 12, 2010 [Doc.137]; which for judicial economy, and to prevent injustice,

Mr. Zuccarini requests, he be allowed to address in this Appeal.11

SUMMARY OF THE ARGUMENT

Office Depot obtained an alleged judgment against Mr. Zuccarini, without ever

effecting service upon him, granted by a Court that lacked personal and subject matter

jurisdiction, in an improper venue.

The matter before the District Court, DSH v Zuccarini, was brought six (6) years

NOTE: The Docket Report reflects “(Additional attachment(s) added on 6/29/10: # 1

10

Errata)”;.
11
Mr. Zuccarini filed Motion to Amend Notice of Appeal, requesting that he be allowed
to address this in the Appeal. At the time of preparing the Mr. Zuccarini’s Brief, there
had been no ruling, therefore Mr. Zuccarini addresses the issue in his Brief.
8
after Office Depot had allegedly been awarded an alleged judgment for which, they

neglected to attempt to collect, and assigned to DSH. After tacking on almost Sixty

Thousand Dollars ($60,000.00) to the alleged award, DSH Registered the alleged

judgment in an improper venue, with a court that lacked jurisdiction and filed for a Writ

of Execution, which the Court granted the following day. Mr. Zuccarini was never

served with Notice of Process.

Further, when an entity neglects to register an alleged judgment in a court of

competent jurisdiction, or to attempt to collect on an alleged judgment, there is no

justification for adding Sixty Thousand Dollars ($60,000.00), claiming it to be interest.

Facts show for six years, no attempt made to collect the alleged judgment.

Furthermore, Mr. Zuccarini has been a resident of the State of Florida since 2001,

and Mr. Zuccarini does not now, nor has he ever had any ties with, or property in

California. There is an issue of improper venue, lack of personal and subject matter

jurisdiction, as well as lack of jurisdiction over the intangible property (which in both CA

and VA cannot be levied upon to satisfy a judgment), which is not, in fact, in CA either.

Appointing Blacksburg receiver, did not dissolve the “third party” issue, which

under CA law, a “third party” cannot be ordered to overturn property [Doc.17pg.3@3-5]

NSI is a LLC, which if a “third party” is a LLC, and not named in the action, cannot be

ordered to give over property of a judgment debtor to satisfy a debt.

Newly discovered facts and evidence show, without a doubt that DSH, in Order

9
to obtain rulings in their favor, perpetrated a fraud upon the District Court, which led that

Court to believe that it had jurisdiction. The newly discovered facts and evidence, Mr.

Zuccarini could not have come across earlier, that supports Mr. Zuccarini’s claims that

the Court lacked jurisdiction [Doc.113pg.3@26-28;Doc.113pg.4@1-

25;Doc.113pg.5@8-18; Doc,113-Ex.A-5@4-10;Doc.113-Ex.A-6@15-24; Doc.113-

Ex.A-7@22-28;Doc.113-Ex.A-8@1-6;Doc.113 Ex.A-9@1-2], which the District Court

has refused to take into consideration; together with the fact that the CA District Court

lacked both personal and subject matter jurisdiction on other grounds, the District Court

has always lacked jurisdiction in this matter. Verisign may have headquarters in CA, but

the General Manager, the network, systems, computers, and personnel are in VA, which

is also where changes to domain names are made.

DSH is guilty of the crime of conversion. Blacksburg took many domain names

besides .com and .net, as was what DSH claimed they were seeking; and Blacksburg had

illegally converted into his own name many .eu, .org, and other extensions

[Doc.137@19-25].

After learning that Blacksburg had let the renewal of fourteen (14) domain names

lapse, which were auctioned with the proceeds going to Network Solutions, rather than

going toward Mr. Zuccarini’s alleged debt, both Mr. Zuccarini and DSH separately filed

for Emergency Injunctions, which the Court denied.

Should the District Court’s ruling stand, one can only conclude that the District

10
Court was part of a conspiracy with DSH/Blacksburg to steal through conversion, Mr.

Zuccarini’s other Domain names. Although DSH has prejudiced the courts against him,

Mr. Zuccarini is protected by the US Constitution, has the right to due process of

law,which have been grossly violated. The ruling is unconscionable, void on it’s face,

and must not be allowed to stand.

ARGUMENT AND CITATIONS OF AUTHORITY

A. JURISDICTION/VENUE

This Court has jurisdiction to examine the jurisdiction of the district court and is

conferred by 28 U.S.C. § 1291. Sederquist v. Court, 861 F.2d 554, 555 (9th Cir. 1988).

Jurisdiction is reviewed de novo. Id.

The district court’s determination regarding personal jurisdiction is reviewed de

novo. See Menken v. Emm, 503 F.3d 1050, 1056 (9th Cir. 2007); Dow Chemical Co. v.

Calderon, 422 F.3d 827, 830 (9th Cir. 2005); Schwarzenegger v. Fred Martin Motor

Co., 374 F.3d 797, 800 (9th Cir. 2004). Likewise, the district court’s decision whether

there is subject matter jurisdiction is reviewed de novo. See Atwood v. Fort Peck Tribal

Court Assiniboine, 513 F.3d 943, 946 (9th Cir. 2008); Schnabel v. Lui, 302 F.3d 1023,

1029 (9th Cir. 2002). The district court‟s factual findings on jurisdictional issues are

reviewed for clear error. See Schnabel, 302 F.3d at 1029.

Mr. Zuccarini moved from PA,to FL in 2001; was never served with process,

Summons/Complaint. Office Depot alleges that in 2000, the US District Court Central

11
CA, awarded them judgment against Mr. Zuccarini. Venue and jurisdiction were left

wanting, Mr. Zuccarini never resided in CA, had no property in CA, did no business

there. The Supreme Court has repeatedly held “Due process requires that the defendant

be given adequate notice of the suit”, Mullane v. Central Hanover Trust Co., 339 U. S.

306, 313-314 (1950), and be subject to the personal jurisdiction of the court,

International Shoe Co. v. Washington, 326 U. S. 310 (1945).

Office Depot assigned an alleged award to DSH, whose Appellee Brf shows held

four months, then registered “Foreign Judgment”12 in CA District Court. Without “…

serving notice, filing proof of notice, …”13 District Court issued the writ the following

day, enforcement proceedings” began.

Failure to serve Defendant deprived the Court of jurisdiction. FRCP Rule 4(c)(1);

“a federal court lacks jurisdiction over an improperly served defendant. Printed Media

Servs., Inc. v. Solna Web, Inc., 11 F.3d 838, 843 (8th Cir. 1993); If a defendant is

improperly served, a federal court lacks jurisdiction over the defendant. See Dodco, Inc.

v. American Bonding Co., 7 F.3d 1387 (8th Cir.1993); Sieg v. Karnes, 693 F.2d 803,

807 (8th Cir.1982)

Further, the statute expressly uses the word “shall” 14. The statute had to be
12
Common sense “Foreign Judgment” done to appear Zuccarini lived in CA.
13
CAL. CCP. CODE § 683.160
14
unmistakably mandatory character, requiring that certain procedures "shall," "will," or
"must" be employed Hewitt v. Helms, 459 US 460 - Supreme Court 1983; mandatory
language, the words “shall”, “must”, or “will” In sum, the use of "explicitly mandatory
language," …establishment of "specified substantive predicates" to limit discretion, ….
12
precisely followed, without a judge using it’s discretion.

CAL. CCP. CODE § 683.160:

(a) The judgment creditor shall serve a notice … shall be made
personally … proof of service shall be filed with the court clerk. The
notice …shall inform the judgment debtor that the judgment debtor
has 30 days within which to make a motion to vacate or modify…
(b) Until proof of service is filed…, no writ may be issued, nor …
enforcement proceedings be commenced …

The Judge issued the Writ and violated procedure, Mr. Zuccarini’s Rights to due

process of law were violated, the judgment is void. (A judgment rendered in violation of

due process is void in the rendering State and is not entitled to full faith and credit

elsewhere). Pennoyer v. Neff, 95 U. S. 714, 732-733 (1878)

DSH fraudulently conveyed CA had jurisdiction because of Verisign. 15

Obviously the FTC brought suit against Mr. Zuccarini where he lived, not in CA; anyone

with common sense would know the 2006 FTC action showed that venue would be

proper in PA. FTC v Zuccarini 2:01-cv-04854-BMS

Mr. Zuccarini has newly discovered evidence, facts showing that Verisign General

Manager, computer systems, all operations are performed in VA, through NSI. Further,

it has many times been held that only when the defendant cannot be located, can in rem

Hewitt v. Helms, 459 U. S., at 472.

15
Which the Court has stated: “DS Holding has not interacted with Verisign and does not
seek to do so.” [Doc.30, pg.6@7-10]; DSH has to date, including the conversion of Mr.
Zuccarini’s domain names to Blacksburg, never interacted with Verisign concerning Mr.
Zuccarini’s Domain Names. see e.g. Office Depot Inc. v Zuccarini, 596 F.3d 696, 701-
02 (9th Cir. 2010) (domain name subject to receivership in the district of the domain
name registrar.”
13
apply.

“No state can obtain in the tribunals of other jurisdictions full faith
and credit for its judicial proceedings if they are wanting in the due
process of law enjoined by the fundamental law. 'No judgment of a
court is due process of law, if rendered without jurisdiction in the
court, or without notice to the party.'” Scott v. McNeal, 154 U.S. 34,
46 , 38 S. L. ed. 896, 901, 14 Sup. Ct. Rep. 1108.” Old Wayne Mut.
L. Assoc. v McDonough, 204 U.S. 8, 27 S.Ct. 260 (1907)

The United States Supreme Court has held for well over one hundred (100) years,

When a Court rules and has no authority to do so, due process of law is violated; judicial

immunity no longer exists; and the judgments “are regarded as nullities”, “they are not

voidable, but simply void” See Williamson v Berry, 8 HOW. 945, 540 12 L. Ed. 1170,

1189 (1850)

"Courts are constituted by authority …If they act beyond that

authority, and certainly in contravention of it, their judgments and
orders are regarded as nullities ; they are not voidable, but simply
void, and this even prior to reversal."

See also:

“But if it act without authority, its judgments and orders are regarded
as nullities. They are not voidable, but simply void, …They constitute
no justification, and all persons concerned in executing such
judgments or sentences are considered in law as trespassers.” Elliott
v. Lessee of Piersol, 26 U.S. 1 Pet. 328 328 (1828)

The District Court claimed “quasi in rem jurisdiction”, of which The US Supreme

Court has held “abandoned the outworn rule of Harris v. Balk, 198 U.S. 215 (1905), that

the interest of the creditor…could be extinguished...by any state having transitory

jurisdiction over the debtor Schaffer v. Heitner, 433 U.S. 186 (1977). Having interred
14
the mechanical rule that a creditor’s amenability to a quasi in rem action …., we are

unwilling to endorse…” World-Wide Volkswagen Corp. v Woodson 444 US 286 –

Supreme Court 1980444 (1980)

“In a long and venerable line of cases, the Supreme Court has held
that, without proper jurisdiction, a court cannot proceed at all, but can
only note the jurisdictional defect and dismiss the suit. See, e.g.,
Capron v. Van Noorden, 2 Cranch 126; Arizonans for Official
English v. Arizona, 520 U.S. 43. Bell v. Hood, supra; National
Railroad Passenger Corp. v. National Assn. of Railroad Passengers,
414 U.S. 453, 465, n. 13; Norton v. Mathews, 427 U.S. 524, 531;
Secretary of Navy v. Avrech, 418 U.S. 676 , 678 (per curiam);
United States v. Augenblick, 393 U.S. 348; Philbrook v. Glodgett,
421 U.S. 707, 721; and Chandler v. Judicial Council of Tenth
Circuit, 398 U.S. 74, 86—88, distinguished.”

B. CALIFORNIA STATE LAW

A district court’s interpretation of state law is reviewed de novo. See Hauk v. JP

Morgan Chase Bank USA, 552 F.3d 1114, 1118 (9th Cir. 2009); Laws v. Sony Music

Entertainment, Inc., 448 F.3d 1134, 1137 (9th Cir. 2006); Rabkin v. Oregon Health

Sciences Univ., 350 F.3d 967, 970 (9th Cir. 2003).

The District Court, as well as this Court, have repeatedly referenced CA law

amazingly, both Courts picked only laws favorable to DSH, rather than actually use the

pertinent/appropriate, controlling laws. The Courts have twisted CA law to say

something other than what it says, and ruled contrary to that what CA law states.

According to The United States Supreme Court, “a federal court's interference with this

process constitutes undue interference with a state's legitimate activities.” Juidice v. Vail,

15
430 U.S. 327, 335-36, 97 S.Ct. 1211, 1217-18, 51 L.Ed.2d 376 (1977).

The United States Supreme Court held in Younger v. Harris, 401 U.S. at 53-54,

as required by "[o]ur Federalism['s]" notion of comity, that is, "a proper respect for state

functions" and "the belief that the National Government will fare best if the States and

their institutions are left free to perform their separate functions in their separate ways."

The U.S. Supreme Court has also held: “We recognize that, as a general proposition,

‘state courts shall remain free from interference by federal courts.’” Atlantic Coast Line

R.R. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 282, 90 S.Ct. 1739, 1741,

26 L.Ed.2d 234 (1970).

From the very beginning, when the Judge rather than the Clerk issued the Writ,

CA laws were violated. Right after the alleged Office Depot v Zuccarini case, there

should have been a Foreign Judgment entered in the US District Court where Mr.

Zuccarini was living when the alleged Ruling was made.

“After entry of a money judgment, a writ of execution shall be issued

by the clerk of the court …and shall be directed to the levying
officer in the county where the levy is to be made and to any
registered process server”.16

There was no registration of foreign judgment, no Writ of Execution filed for six years;

the Clerk, not the Judge, shall issue the Writ; the Writ “shall be direct to the levying

officer” and “registered process server” Mr. Zuccarini was never served.

Further, both Courts make several claims about “intangible property” and

16
CAL. CCP. CODE §699.510
16
that CA code says nothing about “intangible property” not being levied upon, and

so on, and the CA code doesn’t specify that domain names are “intangible

property”, but see CAL. CCP. CODE §695.030 (a).

CAL. CCP. CODE §695.030 (a)

“Except as otherwise provided by statute, property of the judgment
debtor that is not assignable or transferable is not subject to
enforcement of a money judgment”.

Clearly, domain names falls within this category. Nevertheless, whether or not intangible

property is subject to a Writ of Execution, this Court, for some unknown reason, refused

to have the question Certified to the CA Supreme Court, for clarification. Perhaps,

because the Court knows that CA law has been stated by CA; and in Zuccarini’s situation

this Court went against CA Court of Appeals’ ruling in Palacio Del Mar Homeowners

Association, Inc. v McMahon, 174 Cal. App. 4th 1386, 1391 (2009) Ҥ699.040 does not

authorize turnover order directed at third party registrars” by claiming the turnover was

directed to Verisign, which is false; in fact §708.205 “authorizes a turnover by third party

only when it is examined.” Neither NSI, nor the registrars for the European domain

names were ever examined, yet Blacksburg was allowed to take domain names by using

a Court order and fraudulently misrepresenting it, and District Court allowed it.

Furthermore, according to CA Code, there are forms of property exempt from

judgments, (704.210.) Property that is not subject to enforcement of a money judgment

is exempt without making a claim.)17 and Mr. Zuccarini has been denied the knowledge
17
One of the CA codes that both this court and the district court ignore.
17
and/or ability to get a copy of the exemptions.

CAL. CCP. CODE § 681.030:

(b) The Judicial Council may prescribe the form of the applications,
notices, orders, writs, and other papers…
(c) The Judicial Council shall prepare a form containing all of the
following:
(1) A list of each of the federal and this state's exemptions from
enforcement of a money judgment against a natural person.
(2) A citation to the relevant statute of the United States or this state
which creates each of the exemptions.

Domain names are “intangible property under California law”. Kremen v.

Cohen, 337 F.3d 1024, 1030 (9th Cir. 2003). In Palacio Del Mar Homeowners Ass’n,

Inc. v. McMahon, 174 Cal. App. 4th 1386, 1391 (2009), a California Court of Appeals

held that “domain names do not constitute property subject to a turnover order because

they cannot be taken into custody”.

Intangible property. Property that lacks a physical existence

Examples include bank account, stock options, and business
goodwill. Cf. tangible property.18

“Like the majority of states to have addressed the issue, California law

recognizes a property interest in domain names. Kremen v Cohen, 337 F.3d 1024, 1030

(9th Cir.2003). To this end, “courts generally hold that domain names are subject to the

same laws as other types of intangible property.” Johnathan D. Hart, Internet Law 120

(2008); see e.g. Office Depot Inc. v Zuccarini, 596 F.3d 696, 701-02 (9th Cir. 2010)

18
Black’s Law Dictionary, 7th Ed. page 1233.
18
 19
(domain name subject to receivership in the district of the domain name registrar.”

CRS Recovery, Inc. v. Laxton Court of Appeals 9th Cir. April 6, 2010 No.: 08-17306

Both the District Court, and this Court has stated that “domain names cannot be

levied upon”; [Doc.17,pg.2@12-28; pg.3@1-5] therefore, “not subject to enforcement of

a money judgment.” “Property that is not subject to enforcement of a money judgment

may not be levied upon.”20

Further, California law, “despite recognizing that domain names are intangible

personal property subject to a common law action for conversion, see Kremen, 337 F.3d

at 1024, does not authorize statutory turnover of domain names pursuant to the article

governing judgment debtor examinations”, see Palacio Del Mar Homeowners Ass'n,

Inc. v. McMahon, 95 Cal. Rptr. 3d 445, 447 (Ct. App. 2009).

CAL. CCP. CODE §683.170

(a) …a judgment pursuant to this, article may be vacated on any
ground that would be a defense to an action on the judgment,
including …the amount …entered … is incorrect, ….
(b) Not later than 30 days after service …, the judgment debtor may
apply by noticed motion under this section for an order of the court
vacating the renewal of the judgment. ..

19
Both the District Court, and this Court has continually insisted that jurisdiction in CA
was proper because of the REGISTRY, not the REGISTRAR. Now this case is being
cited because of the REGISTRAR. Courts don’t have the privilege of mis-citing their
own currently ruled on cases.
20
CAL. CCP. CODE §695.040 also states: If property that is not subject to enforcement
of a money judgment has been levied upon, the property may be released pursuant to the
claim of exemption procedure provided in Article 2 (commencing with Section 703.510)
of Chapter 4.
19
 Furthermore, there is still the problem with the “third party”, and the “types of

property” that are not subject to execution, which clearly CA law states property held by

a “limited liability company” when the limited liability company “is not a judgment

debtor”;21 and “other “property that is not vested”,22 is not subject to execution.

Vested: Accrued; fixed; settled; absolute; having the character or

giving rights of absolute ownership; See Scott v West 63 Wis. 529 24
N.W. 161; McGillis v McGillis. 11 App Div. 359 42 N.Y. Supp. 924;
Smith v Proskey 39 Misc.. Rep. 385 79 N.Y. Supp. 851.
Vested devise. Vested Estate. Any…interest is called “vested”…
not subject to any condition precedent and unperformed... present and
immediate… future but not uncontingent, and therefore transmissible
interest. Brown. See Tayloe v Gould, 10 Barb. (N.Y.) 388; Flanner
v Fellows, 206 Ill. 136, 68 N.E. 1057; Tindall v Tindall, 167 Mo.
218, 66 .W. 1092; Ward v Edge, 100 Ky. 757, 3§ (9 S.W. 44023

There is no “absolute ownership” of domain names, domain names cannot be

construed as property that is “vested”, thereby, “not subject to execution”.

The mere fact that Mr. Zuccarini replied in opposition at any time, the Writ could

not be acted upon, unless and until such time all appeals, including Petition for Cert to

US Supreme Court had been ruled on, effectively staying any actions on the Writ. 24

Amazingly, the Courts have continually denied Mr. Zuccarini’s Motions to Stay, in

violation of CA code. Further, the Writ is good for 180 days, at the end of such time, has

21
CAL. CCP. CODE §699.720(a)(2)
22
CAL. CCP. CODE §699.720(a)(9)
23
Black’s Law Dictionary 2nd Ed. page 1204.
24
CAL. CCP. CODE §699.720(a)(4)
20
to be renewed.25

C. FRAUD UPON THE COURT

Mr. Zuccarini was unable to find a “specific concise statement of the applicable

standard of review”, nevertheless, this Court has jurisdiction to review fraud upon the

Court. “ It is beyond question that a federal court may investigate a question as to

whether there was fraud in the procurement of a judgment.” Universal Oil Products Co.

v. Root Refining Co., 328 U.S. 575, 66 S.Ct. 1176, 90 L.Ed. 1447

The matter before this Court involves parties that are “Officers of the Court.”

“Since attorneys are officers of the court, their conduct, if dishonest, would constitute

fraud on the court." H.K. Porter Co., Inc. v. Goodyear Tire & Rubber Co., 536 F.2d at

119 (6th Cir.1976).

“The Ninth Circuit noted that ‘one species of fraud upon the court occurs when an

officer of the court' perpetrates fraud affecting the ability of the court or jury to

impartially judge a case." Pumphrey v. Thompson Tool Co., 62 F.3d 1128, 1130 (9th

Cir.1995); see also Weese v. Schukman, 98 F.3d 542, 553 (10th Cir.1996) (noting that

"fraud on the court should embrace only that species of fraud which does or attempts to,

subvert the integrity of the court itself, or is a fraud perpetrated by officers of the court")

(citation omitted); Kerwit Med. Prods., Inc. v. N. & H. Instruments, Inc., 616 F.2d 833,

837 (11th Cir.1980) (same).

25
CAL. CCP. CODE §699.510
21
 In order to meet the standard for proof of fraud upon the court, courts have

concluded that there must be: (1) an intentional fraud; (2) by an officer of the court; (3)

which is directed at the court itself; and (4) in fact deceives the court. Herring v. U.S.

424 F.3d 38426

Clearly, the pleadings filed by NSI, [Doc.113,116,117,118] supports that material

facts were misrepresented to the court that led the court to believe the court had quasi in

rem jurisdiction [June 14, 2010 NSI Ex Parte Application to Immediately Intervene,

Motion to Vacate, pg.3@26-28; pg.4@6-7; pg.5@13-18. NSI Complaint in Intervention

pgs.2@10-13; pg.3@16-21; pg.5@4-10; pg.7@22-28; pg.8@22-27; Motion to Intervene

pg.6@21-25]27. The Court relied upon the assertions made by DSH and their attorneys,

and rulings were obtained in favor of the opposition because of that fact.

Further, the court itself appears to have participated in the fraud by the comments

made to allow Blacksburg, who is also an attorney/officer of the court, to convert to his
26
Other United States Courts of Appeals expressly require that fraud upon the court must
involve an officer of the court. See Geo. P. Reintjes Co. v. Riley Stoker Corp., 71 F.3d
44, 48 (1st Cir.1995); Demjanjuk, 10 F.3d at 348. The Ninth Circuit noted that "one
species of fraud upon the court occurs when an `officer of the court' perpetrates fraud
affecting the ability of the court or jury to impartially judge a case." Pumphrey v.
Thompson Tool Co., 62 F.3d 1128, 1130 (9th Cir.1995); see also Weese v. Schukman,
98 F.3d 542, 553 (10th Cir.1996) (noting that "fraud on the court should embrace only
that species of fraud which does or attempts to, subvert the integrity of the court itself, or
is a fraud perpetrated by officers of the court") (citation omitted); Kerwit Med. Prods.,
Inc. v. N. & H. Instruments, Inc., 616 F.2d 833, 837 (11th Cir.1980) (same).

27
The Docket does not reflect the documents individually.
22
own name, and keep many domain names belonging to Mr. Zuccarini, and obtained by

Blacksburg’s having committed fraud by misusing the Court’s Order and directing it to

parties not within this country. The court agreed, that the court did not have jurisdiction

to Order an entity outside of the country to do anything, but since it had been done,

Blacksburg could keep those domain names as well. [Doc.137pg.3@25-27,pg.4@3-4].

D. CONVERSION

“California law, despite recognizing that domain names are intangible personal

property subject to a common law action for conversion, see Kremen, 337 F.3d at 1024,

does not authorize statutory turnover of domain names pursuant to the article governing

judgment debtor examinations, see Palacio Del Mar Homeowners Ass'n, Inc. v.

McMahon, 95 Cal. Rptr. 3d 445, 447 (Ct. App. 2009)” CRS Recovery, Inc. v Laxton.

No.: 08-17306 (9th Cir. April 6, 2010).

Blacksburg, is also an attorney, committed conversion by converting to his own

name, and keeping many domain names belonging to Mr. Zuccarini, obtained by

Blacksburg’s having committed fraud by misusing the Court’s Order and directing it to

parties not within this country. The court agreed, it did not have jurisdiction to Order an

entity outside of the country to do anything. [Doc.137pg.3@25-27,pg.4@3-4].

In understanding domain names as intangible property subject to conversion,

California seeks to protect the intangible property rights of the owners of domain names,

recognizing that control of a domain name "provide[s] a sense of identity and an

23
exclusive vehicle to market products and ideas." See Patrick T. Clendenen et al., Domain

Names as Property, in 1 Internet Law and Practice § 17:1, at 17-3 (2009). A domain

name is intangible property, subject to an action for conversion under California law.

Kremen, 337 F.3d at 1030.

E. RULINGS BY THE 3RD CIRCUIT

“The Due Process Clause entitles a person to an impartial and disinterested

tribunal in both civil and criminal cases.” This requirement of neutrality in adjudicative

proceedings safeguards the two central concerns of procedural due process, the

prevention of unjustified or mistaken deprivations and the promotion of participation and

dialogue by affected individuals in the decisionmaking process”. See Carey v. Piphus,

435 U.S. 247, 259-262, 266-267 (1978).

The District Court had previously held :

“The court is concerned, however, with DS Holdings' ultimate plan to
auction off the domain names at issue. As Zuccarini points out, many
of the domain names at issue are deliberate misspellings and
variations of legitimate domain names, both generic and proprietary.
Such names may have legitimate purposes, as counsel argued at the
hearing, but they may also be used to misdirect consumers, as
apparently Zuccarini himself did.”

While DSH argued that the domain names may have a legitimate purpose, which

the district court obviously believed, or ignored the arguments against, the fact remains

that, not only the FTC, but the 3rd Circuit Court of Appeals agreed, that “because of the

inherent nature of the domain names as misspellings and variations of other domain

24
names, there can be no legitimate use…can only do one thing, that is to redirect Internet

consumers through Internet navigational protocol away from their intended destinations.”

Further for the Appellees to claim that the very domain names that are to be

auctioned off will be bought by someone in good faith, and will not be used for

cybersquatting simply is not logical. In essence, the court is promoting cybersquatting,

which the Federal Trade Commission (FTC) has deemed as illegal.

December 21, 2006, the FTC filed in the Eastern District of Pennsylvania

Memorandum of Points and Authorities in Support of Plaintiff’s Ex Parte Motion for

Defendant Zuccarini to Show Cause Why He Should not be Held in Contempt(2:01-

cv-04854-BMS), on page 8:

“Zuccarini’s current business activities, which he manages from his

residence in Stuart, Florida, once again involve using numerous
misleading domain names to redirect consumers from their intended
destination…”
“…Zuccarini owns and operates domain names that are variations of
a wide range of popular domain names, including those targeting
consumers seeking online information about video fames, translation
services, government grants…”
The statement referred to the corresponding list of eighty(80) domain names that FTC

had provided to the District Court in Philadelphia, as “misspellings or variations of other

domain names”, which the Mr. Zuccarini included in the brief to the district court for the

hearing of September 7, 2007.

On September 25, 2001 the FTC filed in the Eastern District of Pennsylvania,

Memorandum of Points and Authorities in Support of Plaintiff’s Ex Parte Motion for

25
Temporary Restraining Order and Other Equitable Relief an essential part of the case

against Zuccarini, for the use of misspellings and variations of domain names used to

redirect Internet consumers away from their intended destinations. On page 18, the FTC

stated:

“Section 5 of the FTC Act states, in relevant part: “Unfair or

deceptive act or practices in or affecting commerce, are declared
unlawful.” 15 U.S.C. 45. In the present case, Defendant has engaged
in both deceptive and unfair business practices in violation of Section
5.”

The district court in the present action, totally disregarded rulings of the

Pennsylvania District Court, refusing to give the ruling full faith and credit. In essence,

holding that court’s ruling void. In that case, this Court must overrule the Pennsylvania

Court’s Judgment. One of the rulings must be set aside, if both are allowed to stand, it

would result in manifest injustice to Mr. Zuccarini and grossly violate his rights to due

process of law, and the finality of the court.

F. PRELIMINARY INJUNCTION

This Court has jurisdiction to review the denial of a preliminary injunction. See 28

U.S.C. Sec. 1292(a)(1). The order denying preliminary injunctive relief is reviewed to

determine whether the district court abused its discretion or based its decision on an

erroneous legal standard or clearly erroneous findings of fact. Miller ex. rel. NLRB v.

California Pacific Med. Ctr., 19 F.3d 449, 455 (9th Cir. 1994) (en banc); Stanley v.

University of Southern California, 13 F.3d 1313, 1319 (9th Cir. 1994).

26
 Both Plaintiff and Defendant moved for Emergency Injunctions, which the court

denied. Mr. Zuccarini had filed also for a Rule 60(b) Motion to set aside which too was

denied. DSH further neglects to state that Blacksburg illegally converted to his own

name, Defendant’s Domain Names that were registered in Europe and this Court

admitted to lack jurisdiction over; that Blacksburg had already cost Defendant around

Eighty Thousand Dollars ($80,000) toward the alleged judgment and the tax debt.

According to CA code, the Court is supposed to see to it that the Receiver deposits

enough security into the Court, to cover just this sort of incident. Defendant OBJECTS

to the missing Eighty Thousand Dollars ($80,000); this Court should have already sua

sponte made arrangements for either Blacksburg, NameJet, or NSI to cover the amount

squandered away from the alleged judgment.28

Further, the alleged judgment against Mr. Zuccarini was a money judgment;

neither Office Depot, nor DSH had ever sought “attachment or any other procedure to

attach” to Zuccarini’s domain names. Shaffer v. Heitner, 433 U.S. 186 (1977); the

Shaffer court had the property returned”. In “order to justify an exercise of jurisdiction

in rem, the basis for jurisdiction must be sufficient to justify exercising ‘jurisdiction over
28
On would presume that DSH had posted a bond for Blacksburg as they must, CA Civil
Procedure §566 (If a receiver is appointed…the court, before making the Order, must
require from the applicant an undertaking in an amount to be fixed by the court, to the
effect that the applicant will pay to the defendant all damages the defendant may sustain
by reason of appointment of receiver and the entry by the receiver upon the duties, in
case the applicant shall have procured the appointment wrongfully, maliciously or
without sufficient cause.”)

27
the interests of persons in a thing.’” “The standard for determining whether an exercise of

jurisdiction over the interests of person is consistent with the Due Process Clause, is the

minimum contacts standard elucidated in International Shoe” Shaffer v Heitner 433

U.S. 207; the presence of property alone would not support the State’s jurisdiction. If

those other ties did not exist…could not be brought in that forum” Shaffer @209.

The Shaffer court on page 215 went on “But we have rejected… ‘[The State] does not

acquire…jurisdiction by being the ‘center of gravity’…or the most convenient location

for litigation..issue is personal jurisdiction, not choice of law.’”Hanson v Denckla, 375

US 235, 357 US 254 (1958); Shaffer @215.

Domain Names that have income of almost Seventy Thousand Dollars

($70,000.00) annually should not be sold, they should be allowed to continue creating

revenue, and that would make it possible to have the alleged Office Depot judgment

satisfied. With the Eighty Thousand Dollars Blacksburg lost, and the Seventy Thousand

Dollars that the Domain Names created last year, the total comes to ONE HUNDRED

FIFTY THOUSAND DOLLARS, $150,000.00. So Defendant fails to understand the

logic behind auctioning the domain names; in less than six months, the alleged judgment

will be satisfied, unless Blacksburg or another party causes another great loss and injury.

Zuccarini showed that he had suffered injury, that he was not being afforded the

fair and impartial tribunal that he is guaranteed by two Constitutions and numerous state

and federal laws; he has continually been treated differently than others in the same or

28
similar circumstance (disparate treatment) in violation of his Fourteenth Amendment

Rights to Due Process of law in front of an unbiased tribunal, and Equal Protection.

CONCLUSION AND REQUEST FOR RELIEF

Appellant John Zuccarini, has made meritorious showing of this Court should

overturn it’s previous ruling, reverse the trial court’s ruling and remand with directions

that would be consistent with state and federal laws, regulations and procedures; and

directions to the trial Court to have returned to Mr. Zuccarini the Domain Names, the

Court lacked jurisdiction over; and direction to have Blacksburg’s Bond satisfy the

Eighty Thousand Dollars ($80,000.00) loss that should have been applied toward the

alleged judgment against Mr. Zuccarini; this Court should further direct the trial court

that with One Hundred Fifty Thousand Dollars ($150,000.00) of the less than One

Hundred Sixty-six Thousand Dollars ($166,000.00) satisfied, that an auction of Domain

Names that have income of almost Seventy Thousand Dollars ($70,000.00) annually, is

not justified. Blacksburg is in contempt of the Court’s Order to provide full accountings

of income from the Domain Names. This Court should direct the trial Court on that

matter as well.

Respectfully submitted, this _____ day of August, 2010.

Signed: ____________________________
JOHN ZUCCARINI, Pro Se
29
 190 SW Kanner Highway
Stuart, FL 34997
(772) 631-3887

Certificate of Compliance With Type-Volume Limitation,

Typeface Requirements, and Type Style Requirement

1. This Brief complies with the type-volume limitation of Fed. R. App. P. 32(a)

(7)(B) because this Brief contains 6717 words, excluding the parts of the

Brief exempted by Fed. R. App. B. 32(a)(7)(B)(iii).

2. This Brief complies with the typeface requirements of Fed. R. App. P. 32(a)

(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has

been prepared using Microsoft Office, using 14 Point Times New Roman.

30
 This _____ day of August, 2010

___________________________
John Zuccarini, Pro Se

CERTIFICATE OF SERVICE

John Zuccarini, Defendant/Appellant v. DS Holdings, Assignee/Appellee

9th Cir. Case No.: 10-16383

I certify that I have this ___ day of August, 2010 served a true and correct copy of

Appellant’s Brief and Record Excerpts, and any attachments, by First Class mail,

as listed below.

Name Address Served:

_________________________
John Zuccarini

31