Meyer, Suozzi, English & Klein, P.C. v. Higbee et al

Filing 10

AFFIDAVIT/DECLARATION in Opposition re #9 Motion to Dismiss for Failure to State a Claim filed by Meyer, Suozzi, English & Klein, P.C.. (Attachments: #1 Exhibit Plaintiffs Complaint, #2 Exhibit Printout of the Blue Gallery Website page, #3 Exhibit Printout of the recently-altered version of the Blue Gallery Website, #4 Exhibit Demonstration of how the Image previously could be obtained directly from a Google search, #5 Exhibit Demonstration of how the Image can, now, no longer be obtained directly from a Google search) (Schlosser, Kevin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEYER, SUOZZI, ENGLISH & KLEIN, P.C.,
Docket No.: 18-cv-3353 (ADS) (ARC)
Plaintiff,
-againstDECLARATION OF
KEVIN SCHLOSSER

MATHEW K. HIGBEE, Esq
NICK YOUNGSON,
RM MEDIA, LTD.,
And HIGBEE & ASSOCIATES,
Defendants.

KEVIN SCHLOSSER declares the following pursuant to 28 U.S.C. § 1746:
1.

I am a Member of Meyer, Suozzi, English & Klein, P.C., Plaintiff law firm in this

action. As such, I am fully familiar with the facts and circumstances set forth herein.
2.

I submit this declaration in opposition to the motion to dismiss of Defendants

Mathew K. Higbee and Higbee & Associates’ (together, “Higbee Defendants”) pursuant to
FRCP 12(b)(6) (the “Motion”).
3.

Annexed hereto as Exhibit 1 is Plaintiffs Complaint.

4.

As discussed in Plaintiffs accompanying memorandum of law in opposition, the

Higbee Defendants refer to, and rely on, extraneous factual matters that should not be considered
on their Motion. The following Exhibits (2-5) also show how such extraneous factual matters are
misleading and inaccurate.
5.

Annexed hereto as Exhibit 2 is a printout of the Blue Gallery Website page that

hosts hundreds of versions of the image at issue (the “Image”).
6.

Annexed hereto as Exhibit 3 is a printout of the recently-altered version of the

Blue Gallery Website page that hosts the Image.

7.

Annexed hereto as Exhibit 4 is a demonstration of how the Image previously

could be obtained directly from a Google search, without accessing the Blue Gallery Website,
and thereby used free without ever even seeing any mention of attribution or anything else at all
from the Blue Gallery Website.
8.

Annexed hereto as Exhibit 5 is a demonstration of how the Image can, now, no

longer be obtained directly from a Google search.
WHEREFORE, for the reasons stated in Plaintiffs accompanying Memorandum of Law,
it is respectfully submitted that the Higbee Defendants’ Motion be denied and Plaintiff be
granted such relief as the Court deems just and proper.
Dated: Garden City, New York
July 13,2018
/s/ Kevin Schlosser
KEVIN SCHLOSSER

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