Case 1:18-cv-08171-PKC Document 1 Filed 09/07/18 Page 1 of 5

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
:
PROPER MEDIA, LLC, :
:
Plaintiff, : 1:18-cv-8171
:
- against - :
:
DEFY MEDIA, LLC, :
:
Defendant. :
:
---------------------------------------------------------X

COMPLAINT

Plaintiff PROPER MEDIA, LLC (“Proper Media”), by and through its

undersigned counsel, as and for its Complaint against Defendant DEFY MEDIA, LLC

(“Defy”), alleges as follows:

INTRODUCTION

1. Proper Media brings this breach-of-contract action to recover amounts

owed by Defy pursuant to the terms of the Non-Exclusive Online Advertising

Representation Agreement dated May 2, 2016 (the “Agreement”).

2. Under the terms of the Agreement, Proper Media granted Defy the non-

exclusive right to represent Proper Media in connection with the solicitation, sale, and

placement of advertising on Proper Media’s publisher websites.

3. Pursuant to the terms of the Agreement, Defy is required to pay Proper

Media for any such advertising within 45 days after the end of the applicable calendar

COMPLAINT BY PLAINTIFF 1 Civil Action No.: 1:18-cv-8171

PROPER MEDIA, LLC.
 Case 1:18-cv-08171-PKC Document 1 Filed 09/07/18 Page 2 of 5

month. Defy has refused to pay the amounts owed under the Agreement since December

2017. Defy’s failure to pay Proper Media constitutes a material breach of the Agreement

for which Proper Media is entitled to recover all amounts owed, plus statutory pre-

judgment interest of 9% per year.

PARTIES

4. Proper Media is a California limited liability company with its principal

place of business at 4150 Mission Blvd., Suite 220, San Diego, California, 92109.

5. Upon information and belief, Defy is a Delaware limited liability company,

with a principal place of business at 366 5th Avenue, 4th Floor, New York, New York

10001. Upon information and belief, Defy is registered with the New York Department

of State, Division of Corporations, to do business in the State of New York.

JURISDICTION AND VENUE

6. This Court has jurisdiction pursuant to 28 U.S.C. § 1332. There is

complete diversity of citizenship and the amount in controversy exceeds $75,000,

exclusive of interest and costs.

7. Venue is proper in this judicial district based on 28 U.S.C. § 1391 (b)(2) in

that a substantial part of the events giving rise to Proper Media’s claim occurred in this

District. Moreover, under Section 12 of the Agreement, the parties agreed and

“consent[ed] to the exclusive jurisdiction of the courts of the State of New York for

resolutions of all claims, difference[s] and disputes which the parties may have regarding

this Agreement.”

COMPLAINT BY PLAINTIFF 2 Civil Action No.: 1:18-cv-8171

PROPER MEDIA, LLC.
 Case 1:18-cv-08171-PKC Document 1 Filed 09/07/18 Page 3 of 5

FACTS

8. Proper Media is a digital-media company that operates and represents web

properties that provide a variety of unique and compelling news and entertainment-based

content.

9. Upon information and belief, Defy is a digital-media company that

produces online content through its owned and operated brands.

10. On or about May 2, 2016, Proper Media entered into the Agreement with

Defy. A true and correct copy of the Agreement is attached as Exhibit A. The parties’

rights and obligations under the Agreement are outlined in the agreement. See Exhibit A.

11. In consideration for Proper Media’s services under the Agreement, Defy

agreed to pay Proper Media a monthly fee, as defined in paragraph 2 of the Agreement.

See id. at ¶ 2.

12. The Agreement requires Defy to remit payment to Proper Media within 45

days after the end of the applicable calendar month. See id. at ¶ 2.

13. Defy suspended the Agreement by e-mail on May 14, 2018.

14. At all relevant times, Proper Media performed its obligations under the

Agreement.

15. Defy has an outstanding balance under the Agreement of $118,039.02.

This includes the past-due amount of $35,520.10 for January 2018, the past-due amount

of $43,840.09 for February 2018, the past-due amount of $38,475.54 for March 2018,

and the past due amount of $203.29 for April 2018.

COMPLAINT BY PLAINTIFF 3 Civil Action No.: 1:18-cv-8171

PROPER MEDIA, LLC.
 Case 1:18-cv-08171-PKC Document 1 Filed 09/07/18 Page 4 of 5

16. Since receiving notification of the outstanding amounts owed under the

Agreement, Defy repeatedly has refused to pay Proper Media any of the amounts owed.

17. Defy’s steadfast refusal to pay the amounts owed to Proper Media under the

Agreement constitutes a material breach of contract.

18. As a result of Defy’s breach, Proper Media has been damaged in an amount

to be proven at trial.

CLAIM FOR RELIEF

(BREACH OF CONTRACT)

19. Proper Media repeats and realleges the allegations contained in paragraphs

1 through 18 as if fully set forth herein.

20. The Agreement is a valid and enforceable contract between Proper Media

and Defy.

21. Proper Media has fully and/or materially performed its obligations under

the Agreement and has satisfied all conditions precedent.

22. In breach of the Agreement, Defy has failed to pay Proper Media as

required.

23. As a direct result of Defy’s breaches of the Agreement, Proper Media has

been damaged in an amount to be determined at trial.

WHEREFORE, Proper Media demands judgment against Defy as follows:

(a) Damages in an amount to be determined at trial.

(b) Statutory prejudgment interest of 9% per year; and

(c) For such other and further relief as this Court deems just and proper.

COMPLAINT BY PLAINTIFF 4 Civil Action No.: 1:18-cv-8171

PROPER MEDIA, LLC.
 Case 1:18-cv-08171-PKC Document 1 Filed 09/07/18 Page 5 of 5

Respectfully submitted,

Dated: September 7, 2018 LAW OFFICE OF ERIN M. HICKEY, ESQ.

By: /s/ Erin M. Hickey

Erin M. Hickey (EH5665)
Law Office of Erin M. Hickey, Esq.
888 Prospect Street, Suite 200
La Jolla, CA 92037
Telephone: (858) 263-2872
erin@hickey.law
Attorney for Plaintiff
PROPER MEDIA, LLC

COMPLAINT BY PLAINTIFF 5 Civil Action No.: 1:18-cv-8171

PROPER MEDIA, LLC.