Enerflex Ltd. v. Ryan Garvey
Claim Number: FA2007001904623
Complainant is Enerflex Ltd. (“Complainant”), represented by John H Barr, Jr. of Patterson + Sheridan, LLP, United States. Respondent is Ryan Garvey (“Respondent”), United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <enerflex.org>, registered with Domain.com, LLC.
The undersigned certify that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelists in this proceeding.
Nathalie Dreyfus, Steven M. Levy and Alan L. Limbury as Panelists.
Complainant submitted a Complaint to the Forum electronically on July 16, 2020; the Forum received payment on July 16, 2020.
On July 17, 2020, Domain.com, LLC confirmed by e-mail to the Forum that the <enerflex.org> domain name is registered with Domain.com, LLC and that Respondent is the current registrant of the name. Domain.com, LLC has verified that Respondent is bound by the Domain.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On July 22, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 11, 2020 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@enerflex.org. Also on July 22, 2020, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On August 18, 2020, pursuant to Complainant's request to have the dispute decided by a three-member Panel, the Forum appointed Nathalie Dreyfus, Steven M. Levy and Alan L. Limbury as Panelists.
The Panel issued an Order For Additional Submissions and Extending Time For Rendering A Decision dated August 24, 2020. In response thereto, Complainant filed an Additional Submission on August 25, 2020.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
On August 13, 2020, Complainant notified the Forum, pursuant to Paragraph 18(b) of the Rules, that on July 31, 2020 Complainant filed a lawsuit in the United States District Court for the Southern District of Texas with respect to the domain name dispute that is the subject of this administrative proceeding: Enerflex Energy Systems Inc.; Enerflex Ltd., v. Unknown Registrant a/k/a Ryan Garvey; Choopa, LLC, case number 4:20-cv-02696.
By Procedural Order dated August 24, pursuant to Rule 12 of the Policy, the Panelists requested Complainant to provide a copy of its lawsuit and have it e-mailed to the FORUM and Respondent no later than August 28, 2020. Complainant did so the next day.
Complainant’s lawsuit seeks, inter alia, the same relief as Complainant seeks in this administrative proceeding, namely an order that the domain name be transferred to Complainant. Under these circumstances, pursuant to paragraph 18(a) of the Rules, the Panelists consider that they should refrain from proceeding to a decision in this case so as to avoid a potential conflict with the litigation process wherein more robust evidentiary tools are available for reaching a decision on a more fully developed record.
DECISION
Pursuant to paragraph 18(a) of the Rules, the Panel decides to TERMINATE the present proceeding, without prejudice to any filing of a future complaint under the Policy after conclusion of the proceedings in the United States District Court for the Southern District of Texas.
Alan L. Limbury, Panel Chair
Nathalie Dreyfus, Panelist
Steven M. Levy, Panelist
Dated: August 26, 2020
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