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

Filing 16

AFFIDAVIT/AFFIRMATION re 6 Summons Issued, 5 Notice of Report on Copyright Service of Foreign Process on RM Media Ltd. by Meyer, Suozzi, English & Klein, P.C. (Schlosser, Kevin)

HM Courts
& Tribunals
Service

ROYAL COURTS OF JUSTICE GROUP
Queen’s Bench Division
Foreign Process Section
Room E16
Royal Courts of Justice
Strand, London
WC2A2LL
DX 44450 Strand

Kevin Schlosser C/o Meyer Suozzi, English & Klein
990 Stewart Avenue
Suite 300
Garden City
NY 11530
USA

T 020 7947 7772
F 0870 324 0025
E
[e-mail]
Text Phone [phone] 7772
{Helpline for the deaf and hard of
hearing)
www.hmcourts-service.gov.uk

Our ref: SFP 2018-26592
Your ref:
Date; 05 January 2019

Dear Sir/Madam
Re: Service of Foreign Process on

Foreign Process Section

SFP: 2018-26592
Ref:

CERTIFICATE - ATTESTATION
The undersigned authority has the honour to certify, in conformity with article 6 of the Convention
L’autorite soussignee a I’honneur d’attester conformenent a Particle 6 de ladite Convention.
1) that the document has been served the (date) 02 January 2019
que le demande a ete executee
le (date)
-at (place, street, number)
-a (localite, rue, numero)

RM MEDIA LTD
CEO Nicholas Youugson
15 Church Road
Hale Village
LIVERPOOL
L24 4AY

- in one of the following methods authorised by article 5:
-daus une des formes suivantes prevues a Particle 5:
a) iu accordance with the provisions of sub-paragraph (a) of the first paragraph of article 5 of the
conventiou
selon les formes legates (article 5, alinea premier, lettre a)
b) in accordance with the following particular
method selon la forme particuliere suivante

The documents were served by posting them
through the letterbox at the company
address given.

c) by delivery to the addressee, who accepted it voluntarily
par remise simple
The documents referred to in the request have been delivered to:
Les documents mentionnes dans la demande ont ete remis a:
- (identity and description of person)
- (identite et qualite de la personne)
- relationship to the addressee (family, business or other)
- liens de parente de subordination ou autres avec
le desinataire de Pacts
2) that the document has not been served, by reason of the following facts:
que la demande n’a pas ete executee, en raison des faits suivants:
in conformity with the second paragraph of article 12 of the Convention, the applicant is requested to
pay the expenses details in the attached statement.
Conformement a Particle 12, alinea 2 de ladite Convention, le requerant est prie de payer ou de
rembourser les frais dont le detail figure au memoire ci-joint
Annexes
Documents returned
Pieces renvoyees

in appropriate cases, documents
establishing the service:
le cas echeant, les documents
justicatifs de Pexecution:

Done at London
fait a
the 5 January, 2019
le
Signature and/or stiimp:
Signature et/ou cachet: ^ 5

£lC<'
ZURUCKSENDEN - TO RETURN
SUMMARY OF THE DOCUMENT TO BE SERVED
ELEMENTS ESSENTIELS DE L'ACTE

Convention on the Service Abroad of Judicial and Extrajudicial Documents In
Civil or Commercial Matters, signed at The Hague, the 15th of November 1965 (Article 5, fourth
paragraph).
Convention relative a la signification et d la notification d l'6tranger des actes judiclaires ou
extrajudiciaires en mati^re civile ou commerciale, sign6e d La Haye le 15 novembre 1965
(article 5, alin6a 4).
Name and address of the requesting authority:
Nom et adresse de I'autodtd requdrante :

Kevin Schlosser ([e-mail])
c/o Meyer, Suozzi, English, & Klein
990 Stewart Avenue, Suite 300
Garden City, NY 11530

Particulars of the parties*:
Identity des parties*:

Meyer, Suozzi, English & Klein, P.C.,
V.

Mathew K. Higbee, Esq., Nick Youngson,
RM Media, Ltd., and Higbee & Associates.
S'll y a lieu, Identity et adresea de la personne Int^essde i la transmission da I'acte

□ JUDICIAL DOCUMENT**
ACTE JUDICIAIRE**
Nature and purpose of the document;
Nature et objet de I'acte :

These documents are to provide notice to the
defendant of the claims against it and that a response
is required within 21 days from the date of service.

All defendants have established and engaged In
Nature and purpose of the proceedings and,
a scheme to defraud users of the defendant's free
when appropriate, the amount in dispute:
Nature et objet de I'instance, le cas 6ch6ant, le montant images by falsely claiming copyright infringement,
knowing no such claim exists as a matter of law.
du litige :
Date and Place for entering appearance**:
Within 21 days from the date of sendee, the defendant must file Its
Date et lieu de la comparution** :
response with The District Court, Eastern District of New Yorir,
100 Federal Plaza Central Isllp, NY 11722, electronically at
httpy/www.uscourts.gov/courtrecords/electronlc-filing-cmecf

Court which has given Judgment**:
Juridiction qui a rendu la decision** :

N/A

Date of judgment**:
Date de la decision** :

N/A

Time limits stated in the document**:
Indication des d6lals figurant dans I'acte** :

■* if appropriate / s’ll y a lieu

□ EXTRAJUDICIAL DOCUMENT**
ACTE EXTRAJUDICIAIRE**
Nature and purpose of the document:
Nature et objet de I'acte

Time-limits stated in the document**:
Indication des d6lals figurant dans I'acte**:

jf appropn^Ld f S'll y a lieu

Permanent Bureau September 2011

The defendant must respond within 21 days from
the date of service. Otherwise, a default judgment
may be entered against it.

CIVIL COVER SHE

JS 44 (Rev. 12/12)

?^UCKSENDe« - TOHETURN

iexc pt as
The JS 44 civil cover sheet and tlie information contained herein neither replace nor supplement the ilinfSitfl semce of plea^ngs or otli^ papers as.aqutfeflliy
Court for t e
provided by local rules of court. This form, approved by the Judicial Conference of the United States in Septemtj^
purpose of initiating the civil docket sheet. (SEB lUSTRUCTio/iS ON NEXT PAGE OF THIS FORM.)

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

1. (a) PLAINTIFF
MEYER, SUOZZI, ENGLISH & KLEIN, P.C.
(b) County of Residence of First Listed Plaintiff

Nassau

(EXCEPTIN U.S. PLAINTIFF CASES)

County of Residence of First Listed Defendant

(c) Attorneys (Firm Name, Address, and Telephone Number)

Meyer, Suozzi, English & Klein, P.C,
990 Stewart Avenue
Garden City NY 11530
[phone]_________________________
11. BASIS OF JURISDICTION (Place an "X" in One Box Only)
I I 1

□

3 Federal Question
(U.S. Governmenl No! a Party)

U.S. Goveminenl
Plainliff

□4

2 U.S. Govemmenl
DefendanI

NOTE:

Attorneys (IfKnown)
III. CITIZENSHIP OF PRINCIPAL PARTIES (Place m "X-in One BoxforPlamm
and One Boxfor Defendant)
(For Diversity Cases Only)
PTF
DEF
PTF DEF
[] 4 I I 4
Cilizen of This State
□ 1 Incorporated or Principal Place
of Business In Tills Slate

Diversity
(Indicate Citizenship ofParties in item III)

Citizen of Another State
Citizen or Subject of a
Foreign Country

IV. NATURE OF SUIT (place an ‘X-ln One Box Only)
PERSONAL INJURY
I I 110 Insurance
I I 310 Airplane
120 Marine
O 315 Airplane Product
Q 130 Miller Act
Liability
I 1 140 Negotiable InsirumenI
I I 320 Assault, Libel &
d) 130 Recovery of Overpayment
Slander
& Enforcement of Judgment
I I 330 Federal Employers'
151 Medicare Act
Liability
n 132 Recovery of Defaulted
I I 340 Marine
Student Loans
345 Marine Product
(Exclueds Veterans)
Liability
I I 153 Recovery of Overpayment
350 Motor Vehicle
of Veteran's Benefits
□ 355 Motor Vehicle
I I 160 Stockholders'Suits
Product Liability
I I 190 Other Contract
I I 360 Other Personal
I I 195 Contract Product Liability
Injury
I I 196 Franchise
362 Personal Injury Medical Mabracltce

□

□

□
□

□

□2

□2

□3

□3

Incorporated and Principal Place
of Business In Another State
Foreign Nation

□ 5 DS

□ <>

.i;.ln:e)liFEl^R3E/PErl!At5iY-(^

PERSONAL INJURY
I I 365 Personal Injury Product Liability
□ 367 Health Care/
Pharmaceutical
Personal Injury
Product Liability
I I 368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
□ 370 Other Fraud
I
371 Truth in Lending
[U 380 Other Personal
Property Damage
I I 385 Property Damage
Product Liability

^pRisoNatigEariyicBMS'

I I 625 Drag Related Seizure
of Property 21 use 881
□ 690 Other

I I 710 Fair Labor Standards
Act
I I 720 Labor/Management,
Relations
n 740 Railway Labor Act
I I 751 Family and Medical
Leave Act
1 I 790 Other Labor Litigation
I I 791 Employee Retirement
Income Security Act

Habeas Carpus:
□ 463 Alien Detainee
f~l 510 Motions to Vacate
r~l 442 Employment
Sentence
r~1 443 Housing/
□ 530 General
Accommodations
i 1 462 Naturalization Application
r~l 445 Amer, w/Disabilities - □ 535 Death Penalty
I I 465 Other Immigration
Other:
Employment
Actions
I I 540 Mandamus & Otlier
I I 446 Amer. w/Disabilities □ 550 Civil Rights
Other
555 Prison Condition
I I 448 Education
560 Civil Detainee Conditions of
Confinement

0210 Land Condemnation
I 1220 Foreclosure
I I 230 Rent Lease & Ejectment
I I 240 Torts to Land
I I 245 Tort Product Liability
I I 290 All Other Real Property

Orange County, CA

(IN U.S. PLAINTIFF CASES ONLY)
IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

I 1 440 Other Civil Rights
I I 441 Voting

□ 375 False Claims Act
□ 400 State Reapportionment
□ 410 /Vntilriist
□ 430 Baidts and Banking
□ 450 Commerce
^ 820 Copyrights
□ 460 Deportation
□ 830 Patent
I 1470 Racketeer Influenced and
□ 840 Trademark
Comipt Organizations
□ 48O consumer Credit
□ 861 HIA(1395£f)
□ 490 Cable/Sat TV
□ 862 Black Lung (923)
□ 850 Securities/Coinmodities/
Exchange
□ 863 DIWC/DIWW (405(g))
□ 890 Other Statutory Actions
□ 864 SSID Title XVI
□ 891 Agricultural Acts
□ 865 RSI (405(g))
I I 893 Environmental Matters
□ 895 Freedom of Infonnstion
Act
□ 896 Arbitration
□ 870 Taxes (U.S, Plaintiff
□ 899 Administrative Procedure
or Defendant)
Act/Review or Appeal of
Agency Decision
□ 871 IRS—Third Party
26 use 7609
□ 950 Constitutionality of
State Statutes
□ 422 Appeal 28USC 158
O 423 Withdrawal
28 use 157

□
□

V.

ORIGIN (Place an ''X“ in One Bax Only)

^ 1 Original

□ 2 Removed from

VI. CAUSE OF ACTION
VII. REQUESTED IN
COMPLAINT:

□3

Remanded from

□ 4 Reinstated or

Transferred from
□ 5 Another District □ 6 Multidistrict

Cite the U.S. Civil Statute under which you are filing (Do not cUe jurlsdiciloiial slaliiies unless diversity):
17 U,S.C. 9? 101 etseq.
Brief description of cause: Declaratory judgment of non-infringement pursuant to Declaratory Judgment Act 28 U.S.C. §§ 2201
and 2202. the Convrieht Laws ofthe United Slates, 17 U.S.C. 55 101 et seq. and violation of N.Y. Gen. Bus. L, § 349.
CHECK VES only if demanded in complaint;
□ CHECK IF THIS IS A CLASS ACTION
DEMAND S
JURY DEMAND:
□ Yes S No
UNDER RULE 23, F.R.Cv.P.

Vin. RELATED CASE(S)
IF ANY

(See insiruclions):

JUDGE

DATE

6/6/18

DOCKET NUMBER

SIGNATURE OF ATTORNEY OF RECORD

/s/Kevin Schlosser

FOR OFFICE USE ONLY
RECEIPT H

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

CERTIFICATION OF ARBITRATION ELIGIBILITY
Local Arbitration Rule 83.10 provides that with certain exceptions, actions seeking money damages only in an amount not in excess of $150,000,
exclusive of interest and costs, are eligible for compulsory arbitration. The amount of damages is presumed to be beiow the threshold amount unless a
certification to the contrary is filed,
L Kevin Schlosser
, counsel for Plaintiff
, do hereby certify that the above captioned civil action is
ineligible for compulsory arbitration for the following reason(s):
O

monetary damages sought are in excess of $1,000,000, exclusive of interest and costs,

□

the complaint seeks injunctive relief,

^

the matter is otherwise ineligible for the following reason The action seeks a declaratory judgment.
DISCLOSURE STATEMENT - FEDERAL RULES CIVIL PROCEDURE 7.1
Identify any parent corporation and any publicly held corporation that owns 10% or more or its stocks:

No publicly held corporation owns 10% or more of Plaintiff s stock,
RELATED CASE STATEMENT f Section VIII on the Front of this Form)
Please list all cases that are arguably related pursuant to Division of Business Rule 50.3,1 in Section VIII on the front of this form. Rule 50.3.1 (a)
provides that "A civil case is "related" to another civil case for purposes of this guideline when, because of the similarity of facts and legal issues or
because the cases arise from the same transactions or events, a substantial saving ofjudicial resources is likely to result from assigning both cases to the
same judge and magistrate judge." Rule 50.3.1 (b) provides that" A civil case shall not be deemed "related" to another civil case merely because the civil
case: (A) involves identical legal issues, or (B) involves the same parties." Rule 50,3.1 (c) further provides that "Presumptively, and subject to the power
of a judge to determine otherwise pursuant to paragraph (d), civil cases shall not be deemed to be "related" unless both cases are still pending before the
court."
NY-E DIVISION OF BUSINESS RULE SO.Udim
1.)

Is the civil action being filed in the Eastern District removed from a New York State Court located in Nassau or Suffolk
County: NO_______ _____________

2.)

If you answered "no" above:
a) Did the events or omissions giving rise to the claim or claims, or a substantial part thereof, occur in Nassau or Suffolk
County? YES____________________
b) Did the events or omissions giving rise to the claim or claims, or a substantial part thereof, occur in the Eastern
District? YES______________

If your answer to question 2 (b) is "No," does the defendant (or a majority of the defendants, if there is more than one) reside in Nassau or
Suffolk County, or, in an interpleader action, does the claimant (or a majority of the claimants, if there is more than one) reside in Nassau
or Suffolk County?
(Note: A corporation shall be considered a resident of the County in which it has the most significant contacts),
BAR ADMISSION
I am currently admitted in the Eastern District of New York and currently a member in good standing of the bar of this court.

Kl

Yes

□

No

Are you currently the subject of any disciplinary action (s) in this or any other state or federal court?
□
Yes
(If yes, please explain)
No

I certify the accuracy of all information provided above.
Signature: /s/ Kevin Schlosser_________
4113283

Case 2:18-cv-03353-ADS-ARL Document 6 Filed 06/08/18 Page 1 of 2 PagelD #: 54
AO 440 (Rev. 06/12) Summons in a Civil Action

United States District Court
for the
Eastern District of New York
MEYER, SUOZZI, ENGLISH & KLEIN, P.C.,

Plaintiff(s)

Civil Action No. 18cv3353(ADS)(ARL)

V.

Mathew K. Higbee, Esq.,
Nick Youngson, RM Media, Ltd., and
Higbee & Associates,
Defendant(s)

SUMMONS IN A CIVIL ACTION
To: (Defendant's name and address)

Mathew K. Higbee, Esq.
1504 Brookhoilow Dr.
Suite 112
Santa Ana, CA 92705

RM Media, Ltd.
c/o Higbee & Associates
1504 Brookhoilow Dr.
Suite 112
Santa Ana, CA 92705

Nick Youngson
15 Church Road
Liverpooi L24 4A7
England

Higbee & Associates
1504 Brookhoilow Dr.
Suite 112
Santa Ana, CA 92705

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney,
whose name and address are:
Kevin Schlosser, Esq.
Meyer, Suozzi, English & Klein, P.C.
990 Stewart Avenue, Suite 300
Garden City, NY 11530-9194

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.

DOUGLAS C. PALMER
CLERK OF COURT

Date:

06/08/2018

'A
I li

^Decuttta^ IRodtn
Signature of Clerk or Deputy Clerk

Case 2:18-cv-03353-ADS-ARL Document 6 Filed 06/08/18 Page 2 of 2 PageiD #: 55
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)

Civil Action No. 18cv3353(ADS)(ARL)
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (1))
This summons for (name of individual and title, ifany)
was received by me on (date)
□ I personally served the summons on the individual at (place)
;or

on (date)
□ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,
on (date)

, and mailed a copy to the individual’s last known address; or
, who is

□ I served the summons on (name of individual)
designated by law to accept service of process on behalf of (name of organization)
on (date)

; or
;or

□ I returned the summons unexecuted because
□ Other (specify):

My fees are $

for travel and $

for services, for a total of $

I declare under penalty of perjury that this information is tme.

Date:
Server’s signature

Printed name and title

Server's address

Additional information regarding attempted service, etc:

o.OO

Case 2:18-cv-03353-ADS-ARL Document 5-1 Filed 06/08/18 Page 1 of 11 PagelD #: 32

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEYER, SUOZZI, ENGLISH & KLEIN, P.C.,
Docket No.:
Plaintiff,
COMPLAINT

-againstMATHEW K HIGBEE, Esq.,
NICKYOUNGSON,
RM MEDIA, LTD.,
And HIGBEE & ASSOCIATES,
Defendants.

Plaintiff Meyer, Suozzi, English & Klein, P.C., pro se, complaining of defendants Nicholas
“Nick” Youngson, RM Media, Ltd., Mathew K. Higbee, Esq., and Higbee & Associates
(collectively, the “Defendants”), alleges as follows:
NATURE OF ACTION
1,

Plaintiff brings this action as one of the unsuspecting victims of a fraudulent scheme

in which Defendants abuse the copyright laws by filing copyright registrations over effortless and
mundane photographs, making the photos freely available on the internet for no charge so that
Defendants can thereby catch innocent people unwittingly using the photos without an
“attribution” that is requested on Defendants’ purposefully convoluted website where the photos
are offered under “license,” and then, by using harassing scare tactics to extract money from their
victims to “settle” purported copyright claims with the specter of statutory damages of up to
$150,000 to which Defendants know fully that they are not entitled.
2.

Thus, upon information and belief, Defendants have conspired to orchestrate their

fraudulent scheme through the following deceptive tactics, among others:

Case 2:18-cv-03353-ADS-ARL Document 5-1 Filed 06/08/18 Page 2 of 11 PagelD #: 33

a. An individual who reportedly lives in England takes photographs of common text
printing.
b. A copyright registration is filed with the United States Copyright Office for the subject
photos.
c. The photos are then made available on the internet, and easily found through the use of
common search terms of the text in the photos, for anyone to copy the photos and use
such in whatever manner and for whatever purpose they wish, including for commercial
use.
d. On the website page where the photo is found, no charge or any fee is requested for use
of the photo as it appears, as Defendants know that no one would actually pay any
meaningful money for such mundane photos, yet Defendants have used this scheme to
extract thousands of dollars from unsuspecting victims as further described herein.
e. The website from which the photos can be easily copied has a convoluted configuration
by which the user would be forced to “click” through a series of different pages and
websites to try to decipher who is really entitled to the so-called copyright, under what
terms the photos can be used, what the “license” agreement is, who the actual licensor
is, what the attribution requested is and what connection the attribution has to the
copyright owner, if any, none of which is clearly set forth or even decipherable on
careful study.
f The deceptive website indicates the license is automatically given to the user, but then
requires the user to “click” through a series of hyperlinks that lead to a third-party
website where there is a different form of “license.”

Case 2:18-cv-03353-ADS-ARL Document 5-1 Filed 06/08/18 Page 3 of 11 PagelD #: 34

g. Although on the original website where the photo is located, the photo is offered free
under license, there is also a free “shared” ybm of license agreement on an entirely
different page and website (published by an independent company having nothing to
do with these photos or the copyrights) that does not even contain the names of the
parties to that form of license or any place in which either party can sign or agree to the
terms.
h. In their pursuit of catching innocent victims, Defendants then troll the internet by using
precise search criteria tied to the photos so that they can easily monitor who has copied
the photos on the internet.
i. Once Defendants identify someone who has used the photo(s) and unwittingly failed
to include the “attribution” that is requested on the convoluted website, Defendants
launch their extortionate tactics to harass, intimidate and scare the user into paying
thousands of dollars.
j. Although, in the website maze in which the photos appear, a party called “Blue
Diamond Gallery” is purportedly making the photos available. Defendants do not
purport to assert claims on behalf of “Blue Diamond Gallery” or the individual who
filed the actual copyright registration, or the entity for which an attribution is requested.
(On the website where the photo appears, there is no explanation of who or what “Blue
Diamond Gallery” is or what connection it has to the photos or any copyrights.)
k. As part of their extortionate tactics. Defendants send threatening letters through use of
a California lawyer and law firm to the unsuspecting victims demanding thousands of
dollars to “settle,” claiming that the use of the photo constitutes copyright infringement
and thereby exposes the user to statutory damages of up to $150,000.

Case 2:18-cv-03353-ADS-ARL Document 5-1 Filed 06/08/18 Page 4 of 11 PageiD #: 35

l.

Defendants’ demand letter does not provide any factual basis under which damages of
up to $150,000 would ever be awarded.

m. In fact, contrary to the assertions in the demand letter, there is no copyright
infringement under the circumstances because the photos are freely made available to
the user under a “license,” which thereby precludes a claim for copyright infringement
and simply renders the use subject to a mere alleged claim of breach of the “license,”
for which no such “statutory damages” are available and for which no actual damages
can be proved, certainly not the thousands of dollars deceptively demanded by
Defendants.
n. Defendants then continue their harassing conduct by repeatedly attempting to extract
some form of “settlement” money from their victims, including threatening suit, or in
some instances, bringing suit and then quickly settling and/or dismissing such suits.
3.

Asa result of the foregoing. Plaintiff brings this action for a declaratory judgment,

pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, determining and declaring
that (a) Defendants have no legitimate claim for copyright infringement because Plaintiff did not
infringe as a matter of law, and (b) Defendants have no cognizable or recoverable damages for
breach of contract or otherwise.
4.

Plaintiff also seeks relief, including damages, for Defendants’ false, fraudulent and

deceptive practices, which violate N.Y. Gen. Bus. L. § 349.
PARTIES AND JURISDICTION
5.

Plaintiff is a professional corporation duly organized and authorized to do business

in the State of New York, with a place of business at 990 Stewart Avenue, Suite 300, Garden City,
New York 11530.

Case 2:18-cv-03353-ADS-ARL Document 5-1 Filed 06/08/18 Page 5 of 11 PagelD #: 36

6.

Upon infonnation and belief, Defendant Nick Youngson is a natural person who

resides in the United Kingdom and who claims to be photographer by trade.
7.

Upon information and belief, Defendant RM Media, Ltd. is a foreign business

entity that operates out of the United Kingdom.
8.

Upon information and belief. Defendant Mathew K. Higbee is a natural person, and

an attorney licensed under the laws of the State of California.
9.

Upon information and belief. Defendant Higbee & Associates (the “Firm”) is a law

firm with a principal place of business in and formed under the laws of the State of California.
10.

Upon information and belief, the Firm is the agent for and conducts business

through and on behalf of Defendant RM Media, Ltd., including in and throughout the United
States, including the State of New York.
11.

An actual, antagonistic and justiciable controversy now exists between Plaintiff and

Defendants with respect to which Plaintiff is entitled to have a declaration of its rights and
protections, as well as relief, from Defendants’ unlawful conduct.
12.

This Court has original jurisdiction pursuant to Title 28 of the United States Code,

Section 1338(a) (federal question) because this action arises under the Copyright laws of the
United States (17 U.S.C. §§ 101 et seq.), and pursuant to the Declaratory Judgment Act (28 U.S.C.
§§2201 and 2202).
13.

This Court has personal jurisdiction over Defendants because they are doing

business, and/or transacting business within and directed to New York, and Plaintiffs claims
herein arise from those activities.
14.

At all relevant times hereto. Defendants’ acts and practices occurred in and

throughout the United States, including in the State of New York.

Case 2:18-cv-03353-ADS-ARL Document 5-1 Filed 06/08/18 Page 6 of 11 PagelD #: 37

15.

Defendants’ wrongful acts and practices, including those upon which the claims

herein are based, have crossed into and taken place in the State of New York.
16.

At all times relevant herein, upon information and belief. Defendants have acted in

concert with each other, with the knowledge and participation of each other, to commit the
wrongful acts alleged herein.
17.

Venue in this judicial district is proper pursuant to 28 U.S.C. § 1391(b)(2) because

a substantial part of the alleged events or omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of the action, is situated in this Judicial District.
FACTS
18.

On or about December 26, 2017, Plaintiff published, on one of its blogs, an article

(the “Article”).
19.

To accompany the Article, PlaintifiPs marketing personnel used a generic stock

photograph (the “Image”) from a website offering “[t]he burden-of-proof free pictures for your
web site.” (Emphasis added.).
20.

The Image was “offered” by the Blue Diamond Gallery and hosted on the following

website page: http://thebluediamondgallery.eom/b/burden-of-proof.html (the “Blue Diamond
Website”).
21.

Copies of the Blue Diamond Website and other related web pages, where the Image

was “offered,” are annexed hereto as Exhibit 1.
22.

On February 5,2018, Plaintiff received a letter from Defendants, dated January 30,

2018 (“Demand I”).
23.

Immediately upon receiving Demand I, Plaintiff removed the Image from its

website and discontinued such use.

Case 2:18-cv-03353-ADS-ARL Document 5-1 Filed 06/08/18 Page 7 of 11 PagelD #: 38

24.

Plaintiff has received no monetary benefit from the Image.

25.

Any failure by Plaintiff to provide any attribution with the Image was inadvertent,

innocent and unintentional.
26.

Any failure to provide any attribution with the Image has not resulted in any

monetary or other known damage to any of the Defendants.
27.

In Demand I, Defendants Higbee and the Firm claimed to represent Defendant RM

Media concerning the Image.
28.

The Image is a copyrighted work registered to Defendant Youngson.

29.

In Demand I, Defendants falsely contended that Plaintiff had infringed Defendant

RM Media’s alleged copyright in the Image and that “[i]f forced to go to court, [Defendants] will
ask for the maximum relief possible, which may include statutory damages under 17 U.S.C. If [sic]
504 for up to $150,000 for intentional infringement or $30,000 for unintentional infringement.”
30.

In Demand I, Defendants referenced an already-established online collection

account associated with Plaintiff to which payments were to be immediately made.
31.

In making these allegations against Plaintiff, Defendants did not set forth a good

faith basis to believe that Plaintiffs use of the Image constituted copyright infringement.
32.

In fact. Defendants sent Demand I to Plaintiff knowing that there was no claim of

copyright infringement as a matter of law because the Image was offered under license for free
including for commercial purposes.
33.

In Demand I, Defendants attempted to extract a “settlement” of $5,280 from

Plaintiff without ever explaining how Defendants arrived upon that amount, what the basis for
such amount could be, or any other explanation.

7

Case 2:18-cv-03353-ADS-ARL Document 5-1 Filed 06/08/18 Page 8 of 11 PagelD #: 39

34.

Upon information and belief, Defendants sent Demand I to Plaintiff as a means of

harassing and intimidating Plaintiff into thinking that it was exposed to such significant damages,
even though Defendants knew full well that there was no legal basis for their claim.
35.

Though Demand I provides that Plaintiff had thirty (30) days to respond, in

furtherance of their intimidation tactics. Defendants sent multiple communications to Plaintiff
within that time that were harassing and threatening.
36.

On February 13, 2018, Plaintiff responded to Defendants, informing them of the

inherent flaws in their claim, the innocent and de minimus nature of the use of the Image, that
Plaintiff had discontinued use of the Image and considered the matter closed, and requested that
Defendants likewise consider the matter closed.
37.

Defendants thereafter sent additional emails and repeatedly called Plaintiff to

extract money from Plaintiff, by falsely claiming copyright infringement and demanding
thousands of dollars.
38.

Defendants then sent an escalated communication dated May 9, 2018, which

Plaintiff received on May 22, 2018, which included a purported draft of a civil complaint
(“Demand 11”).
39.

In Demand II, Defendants falsely claimed again that Plaintiff “engaged in copyright

infringement when it posted [the] client’s copyrighted image on its website without a valid
licensing agreement.”
40.

However, Defendants were fully aware that the Image was made available by

license (albeit in the convoluted and confusing websites that Defendants used to trap unsuspecting
victims of its fraudulent and deceptive scheme).

Case 2:18-cv-03353-ADS-ARL Document 5-1 Filed 06/08/18 Page 9 of 11 PagelD #: 40

41.

In Demand II, Defendants again claimed that they are “entitled to recover Statutory

damages of up to $150,000 for each infringement and may also recover attorney fees and court
costs. See 17 U.S.C. §§ 504 & 505.”
42.

Demand II stated that the “offer will be open for fifteen (15) days from the date of

[the] letter, after which our client has instructed us to file the enclosed Complaint and seek damages
to the full extent of the law.”
43.

Upon information and belief. Defendants falsely and strategically claimed

entitlement to the maximum statutory damages, emphasized the discretionary fees and cost, and
marked Demand II with a period of urgency, to further pressure, intimidate, and frighten Plaintiff
into immediately paying the requested settlement amount.
44.

Defendants’ assertions of copyright infringement are false and deceptive for

various reasons, including, but not limited to, the fact that the Image was “offered” expressly under
license, and thus. Plaintiff had a license and did not infringe the copyright as a matter of law.
45.

Defendants are also guilty of fraudulent business practices in violation of N.Y. Gen.

Bus. L. § 349, for various reasons, including, but not limited to numerous wrongful and deceptive
acts as further set forth herein, including as alleged above and as follows:
a. promoting the Image as “free,” with no restriction on access and no requirement to agree
to terms before use, with the intent that it be so used;
b. trolling the Internet for users of the Image with intent to trap innocent and unsuspecting
victims, whom Defendants could then intimidate into unjustifiably paying thousands of
dollars;

Case 2:18-cv-03353-ADS-ARL Document 5-1 Filed 06/08/18 Page 10 of 11 PagelD #: 41

c. sending demand letters falsely claiming that Plaintiff does not have a license to use the
Image and that Plaintiff infringed the Image copyright, while knowing fully that there is
no infringement as a matter of law because the Image was “offered” under a license; and
d. sending the aforementioned demand letters with the intent and purpose to threaten and
intimidate Plaintiff into paying money that the Defendants are not entitled to, while
knowing fully that there was no good faith basis to believe any claim existed.
FIRST CLAIM FOR RELIEF
(For Declaratory Judgment of Non-Infringement)
46.

Plaintiff repeats and re-alleges each of the allegations of this complaint as though

fully set forth herein.
47.

There is a substantial controversy between Plaintiff and Defendants, and they have

adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory
judgment.
48.

By reason of Defendants’ wrongful allegations of infringement and other

wrongdoing committed by Defendants as alleged herein, a declaratory judgment is necessary to
resolve, clarify and settle the respective rights and legal positions of the parties.
49.

As such, the Court should issue a declaratory judgment that (a) Plaintiffs use of

the Image under license does not constitute copyright infringement as a matter of law, and (b)
Defendants cannot sustain any claim for breach of contract (any license) because there are no
resulting damages.
SECOND CLAIM FOR RELIEF
(For Defendants’ violation of N.Y. Gen. Bus. L. § 349)
50.

Plaintiff repeats and re-alleges each of the allegations of this complaint as though

fully set forth herein.
10

Case 2:18-cv-03353-ADS-ARL Document 5-1 Filed 06/08/18 Page 11 of 11 PagelD #: 42

51.

By reason of the Defendants’ deceptive practices of attempting to extort money

from Plaintiff under false claims of copyright infringement and as more fully described in this
complaint, the Defendants have violated N.Y. Gen. Bus. L. § 349 and thus, Plaintiff is entitled to
damages from Defendants, jointly and severally, in an amount established at trial.
WHEREFORE, Plaintiff Meyer, Suozzi, English & Klein, P.C., respectfully requests
Judgment as follows:
1)

Issuing a declaratory judgment that (a) Plaintiffs use of the Image under license

does not constitute copyright infringement as a matter of law, and (b) Defendants cannot sustain
any claim for breach of contract (the license) because there are no resulting damages.
2)

Awarding Plaintiff damages against Defendants, jointly and severally, including

Plaintiffs full costs of this litigation, including reasonable attorneys’ fees as provided for in 17
U.S.C. § 505 and N.Y. Gen. Bus. L. § 349(h); and
3)

Awarding Plaintiff such other relief as this Court may deem just and proper.

Dated: Garden City, New York
June 6, 2018
MEYER, SUOZZI, ENGLISH & KLEIN, P.C.
Pro Se
By:
/s/
_________,
Kevin Schlosser
990 Stewart Avenue, Suite 300
Garden City, New York 11530-9194
Tel.: [phone]
[e-mail]

11
4112009

Case 2:18-cv-03353-ADS-ARL Document 5-2 Filed 06/08/18 Page 1 of 11 PagelD #: 43

EXHIBIT 1

5/23/2018 Case 2:18-cv-03353-ADS-ARL Document 5-2BLi^^tistf©«/08/18 Page 2 of 11 PagelD #: 44
important “ Pieasi? Read
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or i;onimerciai ourposes subject to the terms of the license. Should you notbe familiar with Creati\« Commons licen.ses incIndiiiQ
Iheir attribution roauirements then plea.se read the license here

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