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

Filing 31

RESPONSE in Opposition re 30 MOTION for Service by Publication Requesting That Service of Process be Deemed Effectuated on Defendants Youngson and RM Media, 24 MOTION to Vacate 21 MOTION for Default Judgment filed by Meyer, Suozzi, English & Klein, P.C.. (Attachments: # 1 Exhibit A. Higbee Defendants May 9, 2018 letter and draft complaint to Plaintiff., # 2 Exhibit B. Acknowledgment of service by mail, # 3 Exhibit C. Defendant Nick Youngsons Copyright Registration filed with the United States Copyright Office, # 4 Exhibit D. Current printout of the information on file for the Copyright Registration filed with the United States Copyright Office, # 5 Exhibit E. Request for service sent to the Foreign Process Section of the Royal Courts of Justice Group, Queens Bench Division for service of process upon RM Media, # 6 Exhibit F. Response to request for service sent to the Foreign Process Section of the Royal Courts of Justice Group, Queens Bench Division, # 7 Exhibit G. Docket reports of prior cases in which Jeanne Weisneck has appeared as co-counsel with the Higbee Defendants) (Schlosser, Kevin)

EXHIBIT A

A NATIONAL LAW FIRM

5/9/2018

SENT VIA FIRST-CLASS MATL

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 [phone] or [phone],

Sincerely,

Mathew K. Higbee, Esq.
Attorney at Law
[e-mail]
Enclosure(s)

'l| 1504 Eirookhollovv Dr, Suite 112, Santa Ana, CA 92705
(800) 716'1245 Fax [phone] Web higbeeassociates.com/infririgements

RECFiVED
ffSl' 22 m 8: 56

1.1,E, & K., iG.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DIVISION OF BROOKLYN

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 “Defendant”), 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

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.

12.

Plaintiff is a well-loiown 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.

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
[phone]
FAX [phone]
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. Hisbee
Mathew K. Higbee, Esq.
(Pro Hac Vice Pending)
HIGBEE & ASSOCIATES
1504 Brookhollow Dr, Ste 112
Santa Ana, CA 92705-5418
[phone]
FAX [phone]
Attorney for Plaintiff

EXHIBIT A
Original Image

EXHIBIT B
Copyright Registration
Certificate

Certificate of Registration
T'his Ccriillcalv; issiKHi under I'he seal of the Copyrighs
Office in ai.:t:t)rdaiK:esviih HlJe s?, lliiited ShUes C0di>,
aurtsisi tl'Sit! fcgistratiijn has been made ftir Ihe work
iileniified below. 'S’h<? SctfortnaSlon on Ibis ceilificau* lias
been tnade a part of tlte Copyright Oflice reeonJs.

Riftoratitoii Nainfwr

VAu 1-248-878
EfTicfivc Date »f R«gisfrafi«ii:
June 10, 2016

f» 7 e •

United States Register of Copyright,s ami Director

Title
Tifie of Work;

siill'Unagcs* 16-(K>*! 0

Comptetton/Futiifcmton
V'«r of Co«ipte(teii.: 20 i 6

Author
Atithor;
A u 111 or Crea fed;
Domklled in;

Nicholas YoimgstM
photograph
lingland

Copyright Claimant
C'opyrlglif Oaimwaf:

Nicholas younpon
! 5 Church Road, Uvcr|xK)i, L24 4AV', England

Rights and Permissions
Name; Nicholas Youngson
................................................................. .
Tekphone: 1514255987
Addres.«; 15 Church Road
Liverpool L24 4AY Imgland

Certification
Name;
Date;

Copyright tJffice notes;

N Yotmgson
Juno 10,2016

Basis for Rcgjstnsfion: UnpuWfshed colIection

Page I of

EXHIBIT C
Screenshots of
Defendant's Use

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Higbee & Associates
1504 Brookhollow Drive, Suite 112
Santa Ana, CA 92705

071Maa98883l
92706
000016388

Meyer, Suozzi, English & Klein, P.C
990 Stewart Avenue, Suite 300
Carden City, NY 11530