Meyer, Suozzi, English & Klein, P.C. v. Higbee et al
Filing
28
MOTION for Hearing re 18 Clerk's Entry of Default, 14 Letter, 15 Affidavit, 12 Reply in Support, 9 Motion to Dismiss for Failure to State a Claim , 20 Notice of Appearance, 11 Memorandum in Opposition, 10 Affidavit in Opposition to Motion,, 16 Affidavit, 25 Reply in Support,, 22 Order on Motion for Default Judgment,, Order Referring Motion, 21 MOTION for Default Judgment , 17 Request for Certificate of Default, 27 Reply in Support, 23 Letter, 24 MOTION to Vacate 21 MOTION for Default Judgment Request for Oral Argument and/or Conference by Meyer, Suozzi, English & Klein, P.C.. (Schlosser, Kevin)
Kevin Schlosser
Meyer, Suozzi, English & Klein, P.C.
990 Stewart Avenue, Suite 300
P.O. Box 9194
Garden City, New York 11530-9194
Direct Dial: 516-592-5709 Office: 516-741-6565
Fax: 516-741-6706
kschlosser@msek.com
www.msek.com
March 15, 2019
BY ECF
The Honorable Arthur D. Spatt
United States District Judge
c/o Clerk’s Office
United States District Court for the Eastern District of New York
100 Federal Plaza, Courtroom 1020
Central Islip, New York 11722-9014
Re:
Meyer, Suozzi, English & Klein, P.C. v. Higbee et al.
18-CV-03353 (ADS) (ARL)
Dear Judge Spatt:
We are plaintiff (pro se) in the above matter. We are writing pursuant to Your
Honor’s Rule IV.B(ii) to request oral argument and/or a conference concerning the
motion by defendants Mathew K. Higbee and Higbee & Associates (“Higbee
Defendants”) to dismiss the complaint pursuant to FRCP 12(b)(6) (DE 9).
I explain briefly below why we believe oral argument and/or a conference would
be essential to protect our rights and, in fact, helpful to the Court, given the Higbee
Defendants’ latest “reply” filings (DE 25 and 27) as well as the other very recent court
filing of defendants Nick Youngson and RM Media Ltd. (“RM Media”)(DE 24.)
As is clear from the Complaint in this matter, this action involves the deceitful
scheme orchestrated by and among the defendants to abuse the United States
Copyright laws to “catch” unsuspecting and innocent victims and thereby extort
unjustified payments to settle bogus claims of “copyright infringement” that the
GARDEN CITY
990 Stewart Avenue, Suite 300
P.O. Box 9194
Garden City, New York 11530-9194
Tel: 516-741-6565 I Fax: 516-741-6706
NEW YORK CITY
1350 Broadway, Suite 501
P.O. Box 822
New York, New York 10018-0026
Tel: 212-239-4999 I Fax: 212-239-1311
WASHINGTON, D.C.
1300 Connecticut Avenue, N.W.
Suite 600
Washington, DC 20036
Tel: 202-887-6726 I Fax: 202-223-0358
The Honorable Arthur D. Spatt
March 15, 2019
Page 2
purported copyright owners never intended to pursue in any event. See Complaint,
DE 1. The Higbee Defendants purported to move to dismiss the complaint under FRCP
12(b)(6), but, as noted in our opposition (DE 10, 11), the Higbee Defendants improperly
sought to reference and rely upon materials and extraneous information beyond the four
corners of the Complaint and its exhibits. The Higbee Defendants have continued that
improper pattern in their so-called “reply” papers – submitting yet further extraneous
materials outside the scope of FRCP 12(b)(6).
Plaintiff requests an opportunity to address in oral argument these extraneous
materials, particularly, those submitted in the Higbee Defendants’ latest reply on
March 15, 2019 (DE 27).
Moreover, the latest events in this matter, to which the Court may take judicial
notice, graphically support the theory of this case and the extortionate, improper
scheme perpetrated by defendants. Indeed, based upon these recent events, it may be
appropriate for plaintiff to amend its complaint, including adding, potentially, claims
under the Racketeer Influenced and Corrupt Organizations Act, 18 USC §§ 1961-1968,
Ch. 96.
I will explain what I mean:
Before plaintiff instituted this action, the Higbee
Defendants threatened to institute an action in this Court in the Eastern District of New
York (EDNY) against plaintiff on behalf of defendant RM Media, Ltd. for “copyright
infringement” claiming that RM Media “is 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.” (See letter attached hereto)(emphasis original). In that
The Honorable Arthur D. Spatt
March 15, 2019
Page 3
letter, the Higbee Defendants specifically claimed that plaintiff “engaged in copyright
infringement when it posted our client’s copyrighted image on its website without a valid
licensing agreement.” (Id. emphasis added.) This directly contradicts the arguments the
Higbee Defendants are now asserting in the motion, which we can explain further during
oral argument.
Further, the Higbee Defendants attached to that threatening letter a “draft”
complaint on behalf of RM Media against plaintiff claiming that they would file that action
here in the EDNY within 15 days if they were not paid the extortionate amount they
were demanding from plaintiff. A copy of that “draft” complaint is with the annexed
letter. This is extremely significant in light of the latest submissions to this Court filed by
defendants Nick Youngson and RM Media, in which they claim this Court has no
jurisdiction over them. (DE 24.) That is, after the Higbee Defendants threatened plaintiff
with that lawsuit claiming copyright infringement on behalf of RM Media, Ltd. (and
apparently Nick Youngson who appears to be an unnamed individual copyright owner
alleged in that draft complaint), plaintiff instituted this declaratory judgment action to,
among other things, declare that there was no claim for “copyright infringement” on
behalf of RM Media and therefore the Higbee Defendants were part of a deceptive
scheme to extort money by abusing the Copyright law. Thus, plaintiff named as
defendants in this action not only the Higbee Defendants, but also Nick Youngson and
RM Media – the purported owners and/or assignee of the alleged copyright material that
was the subject of the Higbee Defendants’ extortionate threats.
The Honorable Arthur D. Spatt
March 15, 2019
Page 4
Shockingly, although the Higbee Defendants threatened to bring an action on
behalf of RM Media against plaintiff for copyright infringement in this Court in the EDNY,
now, after plaintiff has instituted this declaratory judgment action concerning precisely
the same disputed “copyright infringement,” both Nick Youngson and RM Media are
seeking to dodge service of process and contest this Court’s jurisdiction over them.
This proves the very deceptive scheme that is at the heart of plaintiff’s complaint in this
matter. That is, the Higbee Defendants obviously intended to intimidate and scare
plaintiff into paying an extortionate amount to settle claims they threatened to bring in
this Court on behalf of RM Media, but now, when the very subject matter of those claims
is precisely at the heart of this action, RM Media is trying to avoid the issues being
decided and has thereby sought to evade the jurisdiction of this Court. In short, how
can the defendants threaten suit in this very Court, and then when an action is instituted
to resolve that very subject matter, they claim the Court does not have jurisdiction over
them because they reside in England and they are trying to circumvent service?
The underhanded practices of defendants have also been continued through the
Higbee Defendants’ submissions to Your Honor in this lawsuit. While they purport to
appear by an attorney admitted to this Court, their papers reflect either a reckless failure
to read the basic rules that Your Honor has promulgated as well as the Local Rules of
this Court, or an intentional violation of such Rules. As the Court is aware, the Higbee
Defendants have violated the Rules not just once, but twice.
The first time, they
blatantly violated Your Honor’s Rules by including footnotes and far exceeding the page
limitation on reply memoranda. (DE 12.) While Your Honor was generous enough to
The Honorable Arthur D. Spatt
March 15, 2019
Page 5
give them a second bite at the apple notwithstanding their flagrant violation of the Rules
in the first reply, they violated the Rules in a more deceptive manner in the revised
reply, by narrowing their text to less than the required “double space” as explicitly set
forth in Local Rule 11.1(b)(3). Since the Higbee Defendants were given yet another
opportunity to revise their reply again, they have taken advantage of their own violation
of Rules to re-craft their arguments. We trust that the Court’s intent in allowing the
Higbee Defendants two chances to conform their papers to the Rules was not to provide
them with eight more months to submit a revamped reply (after their motion to dismiss
was submitted back in July of 2018). This is another topic that we would like to address
at oral argument and/or a Court conference.
We thank Your Honor for considering this request for oral argument and/or a
court conference concerning the motion to dismiss and the recent filings.
Respectfully yours,
/s/ Kevin Schlosser
KS:jr
Attachment
cc: Defense Counsel of Record (by ECF)
4227783
ATTACHMENT TO LETTER OF MARCH 15, 2019
riiaD
A
A,iO
'll
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A NATiONAL LAV'/ FIRM
5/9/2018
SENT VIA FIRST-CLASS MAIL
RE:
RM Media. Ltd. - v. Meyer, Suozzi, English & Klein, P.C. - Our Case No.
509950
Dear Sir or Madam:
Higbee & Associates has been retained to represent RM Media, Ltd. in regards to
Meyer, Suozzi, English & Klein, P.C. copyright infringement under Title 17 of the
United State Code.
Meyer, Suozzi, English & Klein, P.C. engaged in copyright infringement when it
posted our client’s copyrighted image on its website without a valid licensing
agreement. We have attempted to settle this matter to no avail. Please see the enclosed
Complaint and Exhibits for further information.
Our client is 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.
In an effort to keep costs down, our client is willing to accept a firm settlement of
$5,280 to resolve this matter amicably and avoid litigation. This offer will be open for
fifteen (15) days from the date of this letter, after which our client has instructed us to
file the enclosed Complaint and seek damages to the full extent of the law.
If you have questions you may contact us at (714) 617-8350 or (800) 716-1245.
Sincerely,
Mathew K. Higbee, Esq.
Attorney at Law
infringements@higbeeassociates.com
Enclosure(s)
Csrporate HQ 1504 Brookhollow/ Dr. Suite 11.2 Santa Ana CA 92705
Ptisne (800) 716-1245 Fax (714)
a sociate c 0 rn /in f r i n ge m e n t r
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DIVISION OF BROOKEYN
RM MEDIA, LTD.
CASE NO.
Plaintiff,
COMPLAINT FOR DAMAGES
AND INJUNCTIVE RELIEF
V.
DEMAND FOR JURY TRIAL
MEYER, SUOZZI, ENGLISH
& KLEIN, P.C.,
Defendant.
Plaintiff, RM Media, Ltd., for his Complaint against Meyer, Suozzi,
English & Klein, P.C., Defendant, alleges as follows:
INTRODUCTION
1.
RM Media, Ltd. (hereinafter “Plaintiff’), by Plaintiffs attorneys,
brings this action to challenge the actions of Meyer, Suozzi, English &
Klein, P.C. (hereinafter “Defendanf’), with regard to the unlawful use of a
copyrighted image (hereinafter “Image”) owned by Plaintiff, and this
conduct caused Plaintiff damages.
2.
For the purposes of this Complaint for Damages, unless otherwise
indicated, “Defendant” includes all agents, employees, officers, members.
directors, heirs, successors, assigns, principals, trustees, sureties, subrogates.
representatives and insurers of Defendant(s) named in this caption.
JURISDICTION AND VENUE
3.
This is a civil action seeking damages and injunctive relief for
copyright infringement under the Copyright Act of the United States, 17
U.S.C. § 101, whereby the Defendant violated Plaintiffs exclusive rights as
copyright owner pursuant to 17 U.S.C. § 106.
4.
This Court has subject matter jurisdiction over Plaintiffs claims for
copyright infringement pursuant to 28 U.S.C. § 1331 and 28 U.S.C. §
1338(a).
5.
This Court has personal jurisdiction over Defendant because
Defendant is a business entity incorporated in the State of New York
Defendant’s acts of infringement complained of herein occurred in the State
of New York, and Defendant has caused injury to Plaintiff in his intellectual
property within the State of New York.
6. Venue is proper pursuant to 28 U.S.C. § 1391(b) because the Defendant
resides in this judicial district and a substantial part of the events
3
giving rise to Plaintiffs claim occurred in this judicial district.
Alternatively, venue is also proper pursuant to 28 U.S.C. § 1400(b) because
the Defendant committed the acts of infringement and has a regular and
established place of business in this judicial district.
PARTIES
7.
Plaintiff is a natural person and is a professional photographer by
trade.
8.
Plaintiff is a “copyright owner” who holds “exclusive rights” to the
copyrighted work[s]” pursuant to 17 U.S.C. §§ 101 and 106.
9.
Plaintiff is informed and believes, and thereon alleges, that Defendant
is a business entity operating in the City of Garden City, in the State of New
York, and conducted business within the City of Garden City, in the State of
New York.
10.
Plaintiff is informed and believes, and thereon alleges, that Defendant
unlawfully published Plaintiffs copyrighted works without Plaintiffs
express or implied authority, by the method of a license.
FACTUAL ALLEGATIONS
11.
Plaintiff is informed and believes, and thereon alleges, that at all
times relevant. Defendant was a business entity residing within the State of
New York.
4
12.
Plaintiff is a well-known professional photographer. He sells or
licenses photographs to people and companies seeking to make use of the
photographs for advertisements and pecuniary gain. Plaintiffs livelihood is
dependent on receiving compensation for the photographs he produces.
13.
Plaintiff took the original image, see Original Image(s) attached
hereto as Exhibit A.
14.
Plaintiff has ownership rights and copyrights to the Image(s).
15.
Plaintiff has registered the Image(s) with the United States Copyright
Office under registration number(s) Vau 1-248-878, see Registration
Certificate(s) attached hereto as Exhibit B.
16.
Plaintiff did not consent to authorize, permit, or allow in any manner
the use of the Image by Defendant.
17.
Plaintiff is informed and believes that Defendant used Plaintiffs
copyrighted works without his permission and that it published.
communicated, benefited through, posted, publicized and otherwise held
out to the public, the original and unique work of Plaintiff without
Plaintiffs consent or authority.
18.
Plaintiff is informed and believes that Defendant used the Image on
Defendant’s website from December 26, 2017 to January 19, 2018, see
Screenshots of Defendant’s use attached hereto as Exhibit C.
5
19.
Defendant uses the Image to promote the Defendant’s website.
20.
Plaintiff did not consent to the use of his Image.
FIRST CAUSE OF ACTION
COPYRIGHT INFRINGEMENT
Title 17 of the United States Code
21.
Plaintiff incorporates by reference all of the above paragraphs of this
Complaint as though fully stated herein.
22.
Plaintiff did not consent to, authorize, permit, or allow in any manner
the said use of Plaintiff s unique and original materials and/or work.
23.
Plaintiff is informed and believes and thereon alleges that said
Defendant breached Title 17 of the U.S. Code in that it published.
communicated, benefited through, posted, publicized, and otherwise held
out to the public for commercial benefit, the original and unique work of
the Plaintiffs consent or authority and acquired monetary gain and market
benefit as a result.
24.
As a result of each and every Defendant’s violations of Title 17 of
the U.S. Code, Plaintiff is entitled to any actual damages pursuant to 17
U.S.C. §504(b) or statutory damages in an amount up to $150,000.00 if
willful or up to $30,000.00 if unintentional pursuant to 17 U.S.C. § 504.
25.
As a result of the Defendant’s violations of Title 17 of the U.S. code.
the court in its discretion may allow the recovery of full costs as well as
reasonable attorney’s fees and costs pursuant to 17 U.S.C §505 from
Defendant.
6
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays that judgment be entered against
Defendant
Awarding statutory damages pursuant to 17 U.S.C. § 504(c) or actual
damages pursuant to (504)(b).
Awarding costs of litigation and reasonable attorney’s fees, pursuant to
17 U.S.C. § 505;
Enjoining the Defendant from further infringement of all copyrighted
works of the Plaintiff pursuant to 17 U.S.C. § 502(a); and
Providing such other and further relief the Court deems just and proper
under the circumstances.
Dated;
Respectfully submitted.
/s/ Mathew K. Higbee
Mathew K. Higbee, Esq.
(Pro Hac Vice Pending)
HIGBEE & ASSOCIATES
1504 Brookhollow Dr, Ste 112
Santa Ana, CA 92705-5418
(714)617-8350
FAX (714) 597-6729
Attorney for Plaintiff
7
DEMAND FOR JURY TRIAL
Plaintiff, RM Media, Ltd., hereby demands a trial by jury in the above
matter.
Dated:
Respectfully submitted.
/s/ Mathew K. Higbee
Mathew K. Higbee, Esq.
(Pro Hac Vice Pending)
HIGBEE & ASSOCIATES
1504 Brookhollow Dr, Ste 112
Santa Ana, CA 92705-5418
(714) 617-8350
FAX (714) 597-6729
Attorney for Plaintiff
EXHIBIT A
Original Image
EXHIBIT B
Copyright Registration
Certificate
Certificate of
ist ration
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This (hnliticaie issued ynder
; seal ssf the (Jopyriglti
s United StMet i.Mkn
.wtesis ihai .feghiralion Jws bem made for the work
identified beiow. Tire ififormation on lids eeFlific,tte li.as
Iseen made a part of the C eright Office recoids.
Office in uecordiince with titk
Refistratioij Nmiitrer
VAu 1-248-878
Effective Dale »jf Refistrafiont
June 10, 20! 6
United States Rcgisler ol'Oopyriglus and Direelor
Title
Title ®f Work:
stif I'imagcs* 11 f)
Coifipfetton/Fobllcitloii
2016
Author
Aiitli#rt
Aafhnr CrMfcd:
Nfdioias Yoiingson
photograjjh
England
Copyright Claimant
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Nk'iKjfeis Youiigson
15 (Jburch Road,, t,,iverpooi, L24 4AY, England
Rights and Permissions
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Hiigbee & Associates
FIRST-CLASS
1504 Brookhollow Drive, Suite 112
Santa Ana, CA 92705
071M0098983I
92706
000016386
Meyer, Suozzi, English & Klein, P.C
990 Stewart Avenue, Suite 300
Carden City, NY 11530
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