MEMORANDUM OF DECISION & ORDER On June 7, 2018, plaintiff Meyer, Suozzi, English & Klein, P.C. (the “Plaintiff”) brought this action against defendants Nicholas Youngson (“Youngson”), RM Media, Ltd., Mathew K. Higbee, Esq. (“Higbee”), and Higbee & Associates (collectively, the “Defendants”) seeking: (1) a declaratory judgment, pursuant to the Declaratory Judgment Act, 28 U.S.C. §§2201 and 2202; and (2) damages and other relief for alleged false, fraudulent and deceptive practices by the Defendants in violation of N.Y. Gen. Bus. L. §349.Presently before the Court is a motion by Higbee and Higbee & Associates (the “Higbee Defendants”), pursuant to Federal Rule of Civil Procedure (“FED. R. CIV. P.” or “Rule”) 12(b)(6), to dismiss the Complaint for failure to state a claim upon which relief may be granted. For the following reasons, the Court grants the Higbee Defendants’ motion.I. BACKGROUNDUnless otherwise stated, the following facts are drawn from the Complaint, and construed in a light most favorable to the Plaintiff.The Plaintiff is a law firm in Garden City, New York. Youngson is a photographer who resides in the United Kingdom. RM Media, Ltd. is a foreign business entity that operates in the United Kingdom. Higbee is a California-licensed attorney, and Higbee & Associates is a law firm with a principal place of business in California.On or about December 26, 2017, the Plaintiff published an article (the “Article”). To accompany the Article, the Plaintiff used a generic stock photograph (the “Image”) taken from a website hosted by a party called the Blue Diamond Gallery. After the Plaintiff used the Image, the Higbee Defendants sent a number of letters, e-mails and calls claiming to represent RM Media, Ltd. concerning the Image, which is a copyrighted work registered to Youngson. According to the Plaintiff, these communications threatened to bring claims for copyright infringement asserting damages in excess of $150,000 unless the Plaintiff agreed to a settlement amount of $5,280.The Plaintiff claims that the Defendants sent these demands knowing that they lacked a good faith basis for claiming copyright infringement, and solely as a means for harassing and intimidating the Plaintiff into paying an unjustified settlement. Specifically, the Plaintiff believes that there can be no claim of copyright infringement as a matter of law because the Defendants offered the Image under license free of charge, including for commercial purposes.Based on these facts, on June 7, 2018, the Plaintiff brought the instant suit asserting two causes of action. In the first cause of action, the Plaintiff seeks a declaratory judgment that (a) its use of the Image under license does not constitute copyright infringement as a matter of law, and (b) the Defendants cannot sustain any claim for breach of the license because there are no resulting damages. In the second cause of action, the Plaintiff asserts it is entitled to damages under N.Y. Gen. Bus. L. §349 due to the Defendants’ supposed attempt to extort money from the Plaintiff under false claims of copyright infringement.On June 29, 2018, the Higbee Defendants filed a motion to dismiss claiming the Complaint failed to state a claim upon which relief can be granted.On April 2, 2019, the Plaintiff submitted a notice of voluntary dismissal withdrawing its claims against Youngson and RM Media, Ltd. pursuant to Rule 41(a)(1)(A)(i).II. DISCUSSIONA. THE LEGAL STANDARD.In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the Plaintiff. See Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013); Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006); Bold Elec., Inc. v. City of N.Y., 53 F.3d 465, 469 (2d Cir. 1995); Reed v. Garden City Union Free School Dist., 987 F. Supp. 2d 260, 263 (E.D.N.Y. 2013).Under the now well-established Twombly standard, a complaint should be dismissed only if it does not contain enough allegations of fact to state a claim for relief that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed. 2d 929 (2007). The Second Circuit has explained that, after Twombly, the Court’s inquiry under Rule 12(b)(6) is guided by two principles:First, although a court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss and [d]etermining whether a complaint states a plausible claim for relief will…be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 664, 129 S.Ct. 1937, 1940, 173 L.Ed. 2d 868 (2009)).Thus, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and…determine whether they plausibly give rise to an entitlement of relief.” Iqbal, 556 U.S. at 679.B. AS TO THE PLAINTIFF’S CLAIM FOR A DECLARATORY JUDGMENT.The Plaintiff seeks a declaration that “(a) Plaintiff’s 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.” ECF 1 49. The Higbee Defendants contend that the Plaintiff cannot state a claim for declaratory relief against them because they do not own any interest in the copyrighted work, which deprives the Court of jurisdiction to issue a declaratory judgment. The Court agrees.The Declaratory Judgment Act permits a federal court to hear actions for a declaratory judgment when there is “a case of actual controversy within its jurisdiction.” 28 U.S.C. §2201. The Declaratory Judgment Act does not expand jurisdiction. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72, 70 S.Ct. 876, 879 (1950). Nor does it provide an independent cause of action. Its operation is procedural only — to provide a form of relief previously unavailable. Aetna Life Ins. Co. v. Hayworth, 300 U.S. 227, 240, 57 S.Ct. 461, 463 (1937).“[T]he phrase ‘case of actual controversy’ in the [Declaratory Judgment] Act refers to the type of ‘Cases’ and ‘Controversies’ that are justiciable under Article III.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007) (quoting Aetna Life Ins. Co, 300 U.S. at 240, 57 S.Ct. 461). “[T]he question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” MedImmune, Inc., 549 U.S. at 127, 127 S.Ct. 764.“Throughout the litigation, the party seeking relief must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” United States v. Juvenile Male, 564 U.S. 932, 936, 131 S.Ct. 2860, 180 L.Ed.2d 811 (2011). “As with any federal action, courts may not entertain actions for declaratory judgment ‘when the parties are asking for an advisory opinion, when the question sought to be adjudicated has been mooted by subsequent developments, and when there is no standing to maintain the action.’” Velvet Underground v. Andy Warhol Found. for the Visual Arts, Inc., 890 F.Supp.2d 398, 403 (S.D.N.Y.2012) (quoting Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968)).The determination of whether an actual case or controversy exists is made on a case-by-case basis. Hendrix v. Poonai, 662 F.2d 719, 721-22 (11th Cir. 1981). However, even if an actual controversy exists, the decision to grant declaratory relief is purely discretionary. Cohen v. Loeb Partners Corp., No. 90-cv-5175, 1992 WL 84535, at *3 (S.D.N.Y. April 13, 1992). A court should entertain a declaratory judgment action “when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and…when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.” Broadview Chemical Corp. v. Loctite Corp., 417 F.2d 998, 1001 (2d Cir. 1969).Here, no case of actual controversy exists because the Higbee Defendants possess no adverse legal interests against the Plaintiff. As detailed in the Complaint, the Higbee Defendants are merely agents of the copyright holders, Youngson and RM Media, Ltd. ECF 1
