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In Wahlhuetter, unlike here, there were no allegations of a licensing agreement with a New York entity that subsequently made the infringing photos available through a platform that licensees accessed in New York.
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19-CV-1501 (LGS) (BCM)
11-29-2021
SEBASTIAN WAHLHUETTER, Plaintiff, v. COLLEGEHUMOR.COM, LLC, Defendant.
REPORT AND RECOMMENDATION TO THE HON. LORNA G. SCHOFIELD
BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE.
Sebastian Wahlhuetter filed this action on February 18, 2019, alleging violations of the Copyright Act, 17 U.S.C. §§ 106, 501, and the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 1202(b), by CollegeHumor.com, LLC (CollegeHumor), for the "unauthorized reproduction and public display of a copyrighted photograph of a Himalayan Dog, owned and registered by Wahlheutter [sic], a professional photographer." Compl. (Dkt No. 1) ¶ 1. On May 29, 2019, the Honorable Lorna G. Schofield, United States District Judge, issued a Default Judgment (Dkt. No. 24) and referred the case to me for a damages inquest. (Dkt. No. 25.) For the reasons that follow, I recommend that the judgment be vacated, for lack of personal jurisdiction, and that the action be dismissed.
Wahlhuetter owned and registered the copyright, not the dog. See Compl. ¶¶ 7-10.
I. BACKGROUND
A. Factual Allegations
Except where otherwise indicated, the following facts are taken from the well-pleaded allegations in plaintiff's Complaint, which are deemed true for purposes of this inquest. See City of N.Y. v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (quoting Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004) ("It is an 'ancient common law axiom' that a defendant who defaults thereby admits all 'well-pleaded' factual allegations contained in the complaint.")); Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (after defendant's default, the "court is required to accept all of [plaintiff's] allegations as true and draw all reasonable inferences in its favor") (internal citation omitted).
Wahlhuetter is a professional photographer, based in Vienna, Austria, who is in the business of licensing his photographs. Compl. ¶ 5. CollegeHumor is a Delaware limited liability company, registered to do business in the State of New York, with "a place of business" at 225 Park Avenue South, 17th Floor, New York, NY 10003. Id. ¶ 6. Wahlhuetter is the author of a photograph (the Photograph) depicting a dog, with its back to the camera, sitting on a Himalayan mountain ridge and gazing towards a snowcapped range on the far side of a broad valley. Id. ¶ 7 & Ex. A. At all relevant times, plaintiff has been the sole owner of the copyright in the Photograph, which he registered with the United States Copyright Office as No. VA 2-076-821. Id. ¶¶ 7, 9-10 & Ex. A. Plaintiff published the Photograph on his own website, www.wahlhuetter.net, "with a credit to Wahlhuetter next to the Photograph." Id. ¶ 8 & Ex. B.
Plaintiff does not allege when he created the Photograph, when he registered the copyright, or when he published the Photograph on his website. Exhibit B to the Complaint, which appears to be a printout of a page from his website, is titled "WAHLHUETTER Visual Tales," followed by the byline, "by Sebastian Wahlhuetter." The printout bears the date 2/18/2019 (the same day the Complaint was filed) in the top margin, and the legend "Wahlhuetter © 2016" in the bottom margin. The page includes a copy of Photograph and an article beginning, "Things have gone wild recently regarding this photo of the, Himalayan Dog, aka, winter is coming, . And since thousands of people keep asking me questions about what happened to this dog, I set up this blog to give an answer." Compl. Ex. B (punctuation as in the original). Unfortunately, only the first page of the article (explaining that the dog "appeared out of nowhere and followed us for an entire week during our trekking trip in the Himalayan outback") is included in the exhibit. The Court thus does not know what happened to the dog.
On February 23, 2016, without obtaining a license or any other consent from plaintiff, CollegeHumor published a copy of the Photograph on its website, www.collegehumor.com, as part of a humorous article entitled "20 Random Reddit Photos Turned into Epic Movie Posters" (the CollegeHumor Article). Compl. ¶¶ 11-12 & Ex. C. Wahlhuetter alleges that defendant sourced the Photograph from plaintiff's website and removed the copyright management information (CMI) that identified him as the author of the Photograph before featuring the Photograph in the CollegeHumor Article. Id. ¶¶ 19-20.
The Complaint does not specify what portion of Exhibit B constituted CMI. Nor is it clear to this Court. Although it is a fair inference from the title of the web page, the byline, and the content of the article that plaintiff took the Photograph, there is no watermark on the Photograph, no "gutter credit" beneath it that expressly attributes it to him, and no allegation that the digital image of the Photograph on his website contained metadata constituting CMI.
B. Procedural History
Wahlhuetter filed his complaint on February 18, 2019, served it, along with a summons, on CollegeHumor's registered agent in Delaware on February 20, 2019, and filed proof of such service on April 4, 2019. (Dkt. No. 10.) CollegeHumor failed to appear or answer.
On April 18, 2019, at plaintiff's request, the Clerk of Court issued a Certificate of Default as to CollegeHumor. (Dkt. No. 14.) On May 2, 2019, Wahlhuetter moved by proposed order to show cause for a default judgment (Dkt. No. 17), and on May 6, 2019, Judge Schofield issued the requested Order to Show Cause (OSC) (Dkt. No. 21), directing CollegeHumor to show cause on May 28, 2019, why a default judgment should not be entered against it. On May 7, 2019, plaintiff served the OSC on defendant's registered agent. (Dkt. No. 22.) On May 28, 2019, Wahlhuetter appeared through counsel for the show-cause hearing, but CollegeHumor did not appear. The next day, Judge Schofield issued the Default Judgment and referred the case to me for an inquest.
On May 30, 2019, I issued a Scheduling Order (Dkt. No. 26), directing Wahlhuetter to file his Proposed Findings of Fact and Conclusions of Law (Prop. Findings) with respect to damages, supported by admissible evidence "sufficient to permit the Court to 'ascertain the amount of damages with reasonable certainty, '" no later than July 15, 2019. Scheduling Order ¶ 2 (quoting Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)). I also directed plaintiff to serve his inquest papers on CollegeHumor by mail "at its last known address." Scheduling Order ¶ 7. On July 22, 2019 (after obtaining a one-week extension, see Dkt. No. 28), plaintiff submitted his Proposed Findings (Dkt. No. 29), supported by the Declaration of Sebastian Wahlhuetter (Wahlhuetter Decl.) (Dkt. No. 30). On July 24, 2019, plaintiff served these documents, along with the Scheduling Order, on CollegeHumor's registered agent, and on November 19, 2019, he filed proof of such service. (Dkt. No. 32.) Defendant did not file any responding papers.
Plaintiff seeks:
(1) $3,000 in actual damages under the Copyright Act, see Prop. Findings ¶¶ 12-16;
(2) $10,000 in statutory damages under the DMCA, see Id. ¶¶ 17-18; and
(3) $4,037.50 in attorneys' fees and $475 in costs, see Id. ¶¶ 19-21.
Plaintiff's actual damages claim is supported only by his one-sentence attestation that he "would be reasonably entitled to charge up to $1500.00 to license the Photograph at [sic] for on-line editorial use." Wahlhuetter Decl. ¶ 3. Plaintiff does not allege that he ever licensed the Photograph (or any other photograph) for $1500.00, for online use or otherwise. Nor does he explain why his actual damages demand is twice his estimated license fee.
Plaintiff's claim for attorney's fees is supported only by the unsworn assertion of his then-counsel, Richard Liebowitz, that he spent 9.5 hours on this action at the rate of $425 per hour. Prop. Findings ¶¶ 19-21. Notwithstanding the Court's explicit instruction that any request for attorneys' fees "must be supported by contemporaneous time records authenticated by counsel," Scheduling Order ¶ 5, no such records were submitted.
II. JURISDICTION
This Court has subject matter jurisdiction over Wahlhuetter's claims pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1338(a) (copyright jurisdiction). Architectural Body Res. Found. v. Reversible Destiny Found., 335 F.Supp.3d 621, 634 (S.D.N.Y. 2018); Lombardi v. Suarés, 923 F.Supp. 51, 54 (S.D.N.Y. 1996). However, plaintiff has not demonstrated that this Court has personal jurisdiction over CollegeHumor, which is a "'necessary prerequisite to entry of a default judgment.'" Reilly v. Plot Commerce, 2016 WL 6837895, at *2 (S.D.N.Y. Oct. 31, 2016) (quoting Sheldon v. Plot Commerce, 2016 WL 5107072, at *6 (E.D.N.Y. Aug. 26, 2016), report and recommendation adopted, 2016 WL 5107058 (E.D.N.Y. Sept. 19, 2016)).
Plaintiff alleges that this Court "has personal jurisdiction over Defendant because Defendant resides in and/or transacts business in New York." Compl. ¶ 3. However, the only facts offered in support of this allegation are that CollegeHumor, which is a Delaware LLC, had "a place of business" on Park Avenue South in New York City and was "registered with the New York Department of State Division of Corporations to do business in the State of New York." Id. ¶ 6. Plaintiff does not allege that the premises on Park Avenue South were defendant's "principal" place of business; does not describe any of the business activity conducted by defendant in New York; and does not state or suggest that his claims arose out of anything that defendant did in New York. Nor, as shown in more detail below, are there any other allegations in the Complaint (or, for that matter, in the Proposed Findings) that could support this Court's assertion of either general or specific personal jurisdiction over CollegeHumor.
A. Standards
"[A] district court should not raise personal jurisdiction sua sponte when a defendant has appeared and consented, voluntarily or not, to the jurisdiction of the court[.]" Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corp., 619 F.3d 207, 213 (2d Cir. 2010) (emphasis in the original) (internal citations omitted). A non-appearing defendant, however, cannot be said to have consented to personal jurisdiction or waived its objections thereto. Moreover, "[a] judgment obtained in the absence of personal jurisdiction is void within the meaning of Rule 60(b)(4)," de Ganay v. de Ganay, 2012 WL 6097693, *4 (S.D.N.Y. Dec. 6, 2012) (citation and internal quotation marks omitted), and vulnerable to a later motion to vacate. Thus, before entering a damages judgment against a defaulting defendant, a district court may - and as a matter of judicial economy should - satisfy itself that it has personal jurisdiction over that defendant. See Sinoying Logistics, 619 F.3d at 213 (agreeing with "our sister circuits that before a court grants a motion for default judgment, it may first assure itself that it has personal jurisdiction over the defendant," and, where personal jurisdiction is lacking, "may dismiss an action sua sponte") (internal citations and quotation marks omitted); Miller v. Netventure24 LLC, 2021 WL 3934262, at *2-4 (S.D.N.Y. Aug. 6, 2021) (assessing personal jurisdiction before considering damages after default), report and recommendation adopted, 2021 WL 3931928 (S.D.N.Y. Sept. 2, 2021) (Schofield, J.); Hood v. Ascent Medical Corp., 2016 WL 1366920, at *6 (S.D.N.Y. Mar. 3, 2016) ("Where a plaintiff's filings raise questions as to whether a district court may permissibly exercise personal jurisdiction over a non-appearing defendant, the court may consider sua sponte whether the plaintiff has set forth facts justifying the assertion of personal jurisdiction.") (internal citation omitted), report and recommendation adopted, 2016 WL 3453656 (S.D.N.Y. June 20, 2016); Yao Wu v. BDK DSD, 2015 WL 5664256, at *2 (E.D.N.Y. Aug. 31, 2015) (it "preserves judicial economy for the court to assess personal jurisdiction from the outset and thereby avoid rendering a void judgment"), report and recommendation adopted, 2015 WL 5664534 (E.D.N.Y. Sept. 22, 2015).
The Copyright Act does not contain its own personal jurisdiction or service provisions. See Reilly, 2016 WL 6837895, at *2. Thus, I must first "determine whether the defendant is subject to jurisdiction under the law of the forum state - here - New York," and then "consider whether the exercise of personal jurisdiction over the defendant comports with the Due Process Clause of the United States Constitution." Sonera Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221, 224 (2d Cir. 2014) (internal citation omitted).
B. General Jurisdiction
New York's general jurisdiction statute, N.Y. C.P.L.R. (CPLR) § 301, "confers jurisdiction where a company 'has engaged in such a continuous and systematic course of "doing business" in New York that a finding of its "presence" in New York is warranted.'" Sonera Holding, 750 F.3d at 224 (quoting Landoil Res. Corp. v. Alexander & Alexander Servs., 77 N.Y.2d 28, 33 (1990)) (internal citations and alterations omitted). "The 'doing business' standard is a stringent one because a corporation which is amenable to the Court's general jurisdiction 'may be sued in New York on causes of action wholly unrelated to acts done in New York.'" Jacobs v. Felix Bloch Erben Verlag für Bühne Film und Funk KG, 160 F.Supp.2d 722, 731 (S.D.N.Y. 2001) (quoting Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 198 (2d Cir. 1990)); see also Ball, 902 F.2d at 198 ("Occasional or casual business in New York does not suffice under section 301.") Rather, "under 'modern jurisprudence,' New York typically exercises general jurisdiction only over individuals domiciled in New York and corporations that are either incorporated or have a principal place of business in New York." Hartford Fire Ins. Co. v. Maersk Line, 2019 WL 4450639, at *5 (S.D.N.Y. Sept. 17, 2019) (quoting Qudsi v. Larios, 173 A.D.3d 920, 922 (2d Dep't 2019)).
Plaintiff concedes that CollegeHumor was not formed in New York or under New York law, Compl. ¶ 6, and fails to allege that it has its principal place of business here. Id. His allegations that CollegeHumor has "a place of business" in New York, and is registered to do business here, id., are insufficient to sustain a finding of general jurisdiction. See Fifth Ave. of Long Island Realty Assocs. v. Caruso Mgmt. Co., Ltd., 2009 WL 412126, at *9 (E.D.N.Y. Feb. 17, 2009) (plaintiff's allegation that defendant maintained office space in New York was insufficient to establish jurisdiction under CPLR § 301); Aybar v. Aybar, 169 A.D.3d 137, 138 (2d Dep't 2019) ("A corporate defendant's registration to do business in New York and designation of the Secretary of State to accept service of process in New York does not constitute consent by the corporation to submit to the general jurisdiction of New York[.]"). Similarly, plaintiff's conclusory allegation that defendant "resides in and/or transacts business in New York," Compl. ¶ 3, fails to establish the requirements of general jurisdiction under CPLR § 301. See Nelson v. Wells Fargo Bank, N.A., 2019 WL 2514229, at *8 (S.D.N.Y. June 18, 2019) (allegation that "defendants are residents of [the Southern] District" was insufficient to establish general jurisdiction over the corporate defendant under § 301, and plaintiff further failed to allege that defendants "regularly do or solicit business in New York") (internal citations, quotation marks, and alterations omitted).
Nor can general jurisdiction rest on the allegation that defendant posted the Photograph on its website. Compl. ¶¶ 6, 11. Even assuming, arguendo, that the website was accessible within New York (which is not alleged) and had some interactive components (which is also not alleged), it is well-settled that the operation of such a website does not, standing alone, subject the website operator to general jurisdiction under § 301. See Mejia-Haffner v. Killington, Ltd., 119 A.D.3d 912, 913 (2d Dep't 2014) (rejecting contention that "a business's interactive website, accessible in New York, subjects it to suit in this State for all purposes"); UTC Fire & Sec. Ams. Corp. v. NCS Power, Inc., 844 F.Supp.2d 366, 371 (S.D.N.Y. 2012) ("It is well-established that a website accessible to New York residents - even a website with interactive components - is insufficient to support general jurisdiction.") (internal citations omitted); Allojet PLC v. Vantgage Assocs., 2005 WL 612848, at *5 (S.D.N.Y. Mar. 15, 2005) ("[W]hile a defendant's use of an interactive website, standing alone, may support a finding of specific jurisdiction, it generally will not confer general jurisdiction over a defendant.") (footnotes omitted).
The website appears to be defunct. As of the date of this Report and Recommendation, visitors to www.collegehumor.com are redirected to the CollegeHumor YouTube channel, https://www.youtube.com/collegehumor (last visited Nov. 29, 2021).
Because I conclude that Wahlhuetter has failed to allege facts sufficient for this Court to exercise general jurisdiction over CollegeHumor under New York law, I need not reach the question whether the exercise of such jurisdiction would comport with the Due Process Clause of the United States Constitution. I note, however, that in light of Daimler AG v. Bauman, 571 U.S. 117, 137 (2014) (declining to find corporation "at home," and therefore amenable to general personal jurisdiction, other than in the state where it is incorporated or the state where it has its "principal place of business"), subjecting ColllegeHumor to general jurisdiction in New York, based on the sparse jurisdictional allegations contained in the Complaint, "would be incompatible with due process." Sonera Holding, 750 F.3d at 225.
C. Specific Jurisdiction
New York's specific jurisdiction statute provides in relevant part that a non-domiciliary that "transacts any business within the state" is subject to personal jurisdiction in New York, so long as the cause of action "aris[es] from" the business transacted within the state. CPLR § 302(a)(1). "To determine the existence of jurisdiction under section 302(a)(1), a court must decide (1) whether the defendant 'transacts any business' in New York and, if so, (2) whether this cause of action 'aris[es] from' such a business transaction." Best Van Lines, Inc. v. Walker, 490 F.3d 239, 246 (2d Cir. 2007) (citing Deutsche Bank Sec., Inc. v. Mont. Bd. of Invs., 7 N.Y.3d 65, 71 (2006)) (alteration in the original).
A defendant "transacts business" within New York when it "purposefully avails itself of the privilege of conducting activities within New York[.]" Ehrenfeld v. Bin Mahfouz, 9 N.Y.3d 501, 508 (2007) (internal citations and alteration omitted). Purposeful availment is the "overriding criterion" necessary to establish personal jurisdiction pursuant to § 302(a)(1), and requires more than "random, fortuitous, or attenuated contacts[.]" Capitol Records, LLC v. VideoEgg, Inc., 611 F.Supp.2d 349, 357-58 (S.D.N.Y. 2009) (quoting Ehrenfeld, 9 N.Y.3d at 508; Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)). Instead, "[p]urposeful activities are those with which a defendant, through volitional acts, avails itself of the privilege of conducting activities within [New York], thus invoking the benefits and protections of its laws[.]" Fischbarg v. Doucet, 9 N.Y.3d 375, 380 (2007) (internal citations and quotation marks omitted).
A claim "arises from" a particular transaction "when there is 'some articulable nexus between the business transacted and the cause of action sued upon,' . . . or when 'there is a substantial relationship between the transaction and the claim asserted[.]'" Sole Resort, S.A. de C.V. v. Allure Resorts Mgmt., LLC, 450 F.3d 100, 103 (2d Cir. 2006) (quoting McGowan v. Smith, 52 N.Y.2d 268, 272 (1981); Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 467 (1988)). "A connection that is 'merely coincidental' is insufficient to support jurisdiction." Id. (citing Johnson v. Ward, 4 N.Y.3d 516, 520 (2005)). Because "jurisdiction under section 302(a)(1) requires consideration of whether a cause of action arose out of a party's transaction of business in New York, it is necessary to 'determine the issue of personal jurisdiction separately for each cause of action asserted[.]'" Allojet PLC, 2005 WL 612848 at *4 n.54 (quoting Cosmetech Int'l LLC v. Der Kwei Enter. & Co., 943 F.Supp. 311, 317 (S.D.N.Y. 1996)).
Here, plaintiff's allegations that CollegeHumor is registered to do business in the State of New York and maintains a place of business in New York City, Compl. ¶ 6, are sufficient to meet the "transacts business" prong of CPLR § 302(a)(1). See Corley v. Vance, 2019 WL 3841939, *5 (S.D.N.Y Aug. 15, 2019) (holding that a Delaware corporation plainly availed itself of the laws of New York and "transact[ed] . . . business" within the meaning of § 302(a)(1) by being registered to do business in New York and maintaining an office in the city). However, plaintiff fails to allege facts sufficient to show that either of his claims "arises from" any business transacted by CollegeHumor in New York.
Plaintiff's first claim alleges that defendant, by "reproducing and publicly displaying" the Photograph without his permission in the CollegeHumor Article, violated the Copyright Act, which confers on the copyright holder the "exclusive rights" to (among other things) reproduce or display the copyrighted work. 17 U.S.C. § 106. See Compl. ¶¶ 11-12, 14-15. However, plaintiff makes no claim that the Photograph was copied or uploaded in New York, that the infringement was directed or committed by any of defendant's New York-based personnel, or that the claim otherwise arose out of any of the - unspecified - business activities that defendant conducted in New York.
Plaintiff's second claim alleges that defendant unlawfully altered or removed the CMI identifying him as "the photographer of the Photograph" in violation of the DMCA, 17 U.S.C. § 1202(b). See Compl. ¶¶ 20-22. However, plaintiff does not allege that the alteration or removal took place in New York, does not claim that it was directed or committed by any of defendant's New York-based personnel, and does not otherwise articulate any nexus between the acts that allegedly violated the DMCA and the State of New York.
Once again, plaintiff's bare-bones allegations that defendant operated a website, Compl. ¶ 6, and that it posted the Photograph on that website, id. ¶¶ 11-12, 14, cannot support the assertion of personal jurisdiction over that defendant. Under New York law, "interactive" websites that are purposefully used to sell goods or services or charge membership fees to New Yorkers, in New York, can trigger specific personal jurisdiction under CPLR § 302(a)(1) - if the cause of action arises out of such purposeful activity. See, e.g., Mattel, Inc. v. Adventure Apparel, 2001 WL 286728, at *3 (S.D.N.Y. Mar. 22, 2001) (denying motion to dismiss where plaintiff "ordered allegedly infringing merchandise from [defendant] over its web site, using his credit card, and [defendant] shipped that merchandise into New York"); see also Energy Brands Inc. v. Spiritual Brands, Inc., 571 F.Supp.2d 458, 466 (S.D.N.Y. 2008) (collecting cases). However, plaintiff does not even allege that CollegeHumor's website was interactive, much less that it sold goods, services, subscriptions, or anything else to New Yorkers. Instead, plaintiff alleges only that defendant featured the Photograph as part of an article published on its website. This is an insufficient basis for sustaining specific jurisdiction over defendant. See Citigroup Inc. v. City Holding Co., 97 F.Supp.2d 549, 565 (S.D.N.Y. 2000) ("passive" websites, which merely make information available to viewers, have "been analogized to an advertisement in a nationally-available magazine or newspaper, and [do] not without more justify the exercise of jurisdiction over the defendant") (internal citations omitted). I therefore conclude that plaintiff has failed to allege facts sufficient to demonstrate that this Court could exercise specific jurisdiction over CollegeHumor under New York's long-arm statute and, as a result, need not reach the question whether the exercise of specific jurisdiction would comport with the Due Process Clause of the United States Constitution.
III. CONCLUSION
For the reasons set forth above, I respectfully recommend that the default judgment against defendant CollegeHumor.com, LLC be VACATED and that this action be DISMISSED, without prejudice, for lack of personal jurisdiction.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this report and recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Lorna G. Schofield at the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, New York 10007, and to the chambers of the undersigned Magistrate Judge. Any request for an extension of time to file objections must be directed to Judge Schofield. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 Fed.Appx. 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).