ICANN withdraws Motion to Dismiss in dotAfrica case against DCA

ICANN on April 20, 2016, withdrew its Motion to Dismiss against DCA Trust’s First Amended Complaint filed on 26 February 2016.

In its stipulation to the Court, ICANN moved to withdraw its dismissal citing the following reason: “In view of the Court’s order on DCA’s motion for Preliminary Injunction, ICANN has elected to withdraw its Motion to Dismiss”.

Instead DCA has agreed for ICANN to file a response to its First Amended complaint by May 9, 2016, today.

A Motion to Dismiss is often filed with the court at the earliest stages of the lawsuit, typically before either party has conducted their discovery. This is done when the defendant believes a claim in the lawsuit is legally invalid, or there are legitimate grounds for throwing the case out of court.

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The motion to dismiss hearing was scheduled for April 25, 2016 and ICANN’s arguments for dismissal relied heavily on the litigation waiver that the court found ineffective in the injunction rulings.  The court has found amongst other things that the injunctions were appropriate because DCA raised serious questions on the merits; that dotAfrica (.africa) is a unique asset and DCA could suffer irreparable harm without an injunction and that ICANN’s broad litigation waiver, which includes intentional and fraudulent behavior, is likely unenforceable under California law.

DCA’s attorney Ethan Brown, partner at Brown Neri Smith & Khan LLP in Los Angeles told Bloomberg BNA on April 13, 2016  that “That finding now means that, at the very least, the substantial majority of DCA’s case will survive the Motion to Dismiss and the case against ICANN will move forward to full litigation and discovery.”

DotConnectAfrica Trust began its legal disputes against ICANN when it filed for an Independent Review Panel (IRP) filing in October 2013  to challenge an ICANN Board decision at the American Arbitration Association (AAA), New York, USA.   The decision of the IRP panel at the International Center for Dispute Resolution (ICDR) came in June 10, 2015.   Finally, the panel unanimously ruled that both the actions and inaction of ICANN violated its own Bylaws and Articles of Incorporation.  The IRP is the accountability review processes set out in the ICANN Bylaws.

DotConnectAfrica Trust then sued ICANN for breach of contract, fraud and declaratory relief that ICANN should refrain from processing ZACR’s application and that it shouldn’t have required a new geographic names evaluation.   After filing its case in California court, DCA has this far won two injunctions (temporary, March 4, 2016 and preliminary, April 12, 2016 making sure  the .Africa domain is not going to be delegated to ZACR until the Court hears its case. ICANN’s withdrawal of its Motion to Dismiss on DCA’s complaint is yet another victory for DCA.