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)

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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 iC5 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 ' t ,4 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 Oipyrlglt 0*5»M»ut; Nk'iKjfeis Youiigson 15 (Jburch Road,, t,,iverpooi, L24 4AY, England Rights and Permissions lYantc: Kficfiolas Yotingson ...—................. Tckpfcoae; 1514255987 Address: 15 Church R Live!|j<s«} L24 4A5' England CertWcatlon Name: iJate; Copyrlflit Ollce ante: N Yoongson June 1(1^2016 .Basis far Registration; IJnpubiished colleciian Page I (tf EXHIBIT C Screenshots of Defendant's Use 0 ® r!>'traudcia!ms,coni/s' rOO i 'IS- Of SOBSORffil ciamis 01 iiaiia ano G ^ (D nyfrsudclaimsxDm « < LOCATIONS Si2 201 T« Wi Misrepres ^ Amount t " * jAXUAKy8,2018 Give us a call. 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Thomas Levin Quoted In LOCATIONS December 26.2017, Bico Kevin Schlosser Authors, A. Thomas Levin Quoted In it The Island Now, "North Hills The Island Now, tt Final Public Hearing Dote Set For Clover... ... „> Standards of Pleading and Proof For Various Claims of... Source: ww. nyfraudclaioTS'.com Denies Building Permit Extension... i & K, BG, $1,632 US POSTAi 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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