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

Filing 23

Letter from Weisneck to Court by RM Media Ltd., Nick Youngson (Weisneck, Jeanne)

Case 2:18-cv-03353-ADS-ARL Document 23 Filed 03/06/19 Page 1 of 2 PageID #: 368

Law Office of Jeanne M. Weisneck
485 Central Park West, Ste. 3A
New York, New York 10025
(T) [phone]
(F) [phone]
[e-mail]

March 6, 2019
FILED VIA ECF
Honorable Arthur D. Spatt
United States District Judge
United States District Court
100 Federal Plaza
P.O. Box 9014
Central Islip, New York 11722

Re:

Docket #
Title:

Limited Appearance by Defendants Nick Youngson and RM Media, Ltd.
for the purpose of filing a Motion to Vacate the Certificate of Default
and/or a Motion to Dismiss under FRCP 12(b)
2:18-cv-03353
Meyer, Suozzi, English & Klein, P.C. v. Mathew K. Higbee, Esq., Nick
Youngson, RM Media, Ltd. and Higbee & Associates

Dear Judge Spatt:
I am a solo practitioner and was recently retained by Defendants Nick Youngson and RM
Media, Ltd. [hereinafter “UK Defendants”] in the above-referenced matter. Due to the
circumstances set forth below, I am requesting guidance from your Honor as to how best to
proceed in manner that preserves my Clients’ defenses while also adhering to the Court’s Rules
and preferences.
The action seeks a Declaratory Judgment that Plaintiff did not infringe on a copyright
registered to RM Media, Ltd. and alleges that both UK Defendants violated a New York State
consumer protection statute. The UK Defendants were never served with the Summons and
Complaint, as it was sent to the wrong address, and have not appeared in the action. A
Certificate of Default was entered by the Clerk against the UK Defendants on February 20, 2019.
A Motion for Default Judgment was filed on March 4, 2019. As stated, supra, only RM Media
owns the copyright at issue. In addition, neither UK Defendant has a presence in New York, and
neither provides goods or services to the general public.
My Clients wish to make a limited appearance for the purpose of filing a Motion to
Vacate the Default entered on February 20, 2019, pursuant to FRCP 55(c), and to Quash Service
of Process, and to do so before a Default Judgment can be entered against them. However, as
alluded to supra, they also have numerous affirmative defenses under FRCP 12(b).
Page 1 of 2

Case 2:18-cv-03353-ADS-ARL Document 23 Filed 03/06/19 Page 2 of 2 PageID #: 369
As I was just retained, I am able to submit the Motion to Vacate/Quash this week, but due
to other commitments, am unable to submit a full Motion to Dismiss under 12(b) during that
timeframe. I am concerned that if I submit only the 55(c) Motion that I could be deemed to have
waived my Clients’ rights to file a 12(b) motion at a later date. On the other hand, if I must
combine the Motions, I will need additional time to prepare them and would like to ensure that
no Default Judgment is entered against my Clients before I have the opportunity to do so. As an
alternative to both, I suppose that an Order to Show Cause with a stay of the proceedings is also
an option.
Given the aforementioned, I respectfully request the Court’s guidance as to how to
proceed in a manner that is consistent with the Court’s Rules and preferences, while still
preserving my Clients’ defenses.

Respectfully,
/s/ Jeanne M. Weisneck. Esq.
_______________________
Attorney for Defendants Nick Youngson and RM Media, Ltd.

cc:

Kevin Schlosser
VIA ECF

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