The opinion of the court was delivered by: Stengel, J.
SBG Global seeks to intervene and vacate the court's judgment affirming an arbitration award in favor of Olympic Sports Data, Inc. (Document #2). The award transferred ownership of two domain names*fn1 to Olympic; SBG believes they have been the rightful owners since 2004. After considering the parties' memoranda, I will grant the motion to intervene and deny the motion to vacate.
The domain names were initially registered on or about April 24, 1997, by Total Entertainment Canada, Ltd. and Sandy Maselli (collectively, the sellers). (Mot. to Intervene at 2.) On or about August 30, 2002, Olympic purchased the domain names.
(Id.) The Whois registration information,*fn2 which publicly identifies a domain name's registrant, was not updated and continued to list the sellers as the registered owners. (Id.)
In July 2003, SBG began to lease the domain names from the sellers and created websites for them. (Id.) In October 2004, SBG purchased the registrations for the domain names for $75,000.00 from the sellers, and used the Internet company Escrow.com to serve as the escrow agent. (Id. at 3.) SBG claims the sellers never disclosed the prior sale to Olympic and that the Whois information continued to list the sellers as the registrants. (Id. at 2S3.) After the purchase, SBG transferred the domain names to a new registrar and updated the Whois information. (Id. at 3.)
On July 14, 2005, Olympic filed an arbitration claim with the American Arbitration Association against the sellers to establish its ownership of the registrations of the domain names. (Id.) The arbitration was held pursuant to the Uniform Domain Name Dispute Resolution Policy (UDRP). (Mot. to Vacate at 1 (Document #4).) At least one attempt was made to serve process on SBG's owner and operator, Mr. Eduardo Agami, by ordinary mail; neither SBG nor Mr. Agami participated in the arbitration proceedings. (See Arbitrator's Decision on Liability at 1 (Document #3 Ex. 4).) On May 5, 2006, the arbitrator decided in favor of Olympic and directed that the registration for the domain names should be transferred to Olympic. (Id. at 2.) On February 22, 2007, the arbitrator confirmed the transfer and awarded Olympic a monetary award of $243,283.75. (Mot. to Intervene at 4.)
On July 26, 2007, Olympic filed its Petition to Affirm Arbitrator's Orders (Document #1). SBG alleges it was not included or notified of the action. I affirmed the arbitrator's award on August 15, 2007. Seven months later on March 18, 2008, SBG filed the pending Motion to Intervene and Motion to Vacate the Judgment. SBG challenges only the transfer of the domain names, not the monetary award.
A. Motion for intervention Federal Rule of Civil Procedure 24 provides:
On timely motion, the court must permit anyone to intervene who:
(2) claims an interest relating to the property or transaction which is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.
FED. R. CIV. P. 24(a)(2). The moving party must show that (1) its motion to intervene is timely, (2) it has an interest in the subject matter of the litigation, (3) its interest will be impaired or impeded, and (4) the existing parties do not adequately represent the movant's interest. See Kleisser v. United States Forest Serv., 157 F.3d 964, 969 (3d Cir. 1998). The burden is on the movant seeking to intervene, and failure to prove any one of the criteria is sufficient grounds to deny the motion. See 6 James W. Moore et al., Moore's Federal Practice--Civil § 24.03 (3d ed. 2008). The court is to accept the movant's motions and pleadings as true to the extent they are non-conclusory and well-pleaded. See Southwest Center for Biological Diversity v. Berg, 268 F.3d 810, 819--20 (9th Cir. 2001); Riech v. ABC/York-Estes Corp., 64 F.3d 316, 321 (7th Cir. 1995); Foster v. Gueory, 655 F.3d 1319, 1324 (D.C. Cir. 1981). ...