Bozzio v. EMI Group Limited et al
Filing
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ORDER VACATING AND CONTINUING HEARING ON MOTION TO DISMISS. The Hearing on the pending Motion to Dismiss is VACATED AND RESET to October 2, 2012 at 2:00pm. Signed by Judge Yvonne Gonzalez Rogers on 8/27/12. (fs, COURT STAFF) (Filed on 8/27/2012)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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DALE BOZZIO, et al.,
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Plaintiffs,
Case No.: 12-cv-2421 YGR
ORDER VACATING AND CONTINUING
HEARING ON MOTION TO DISMISS
Northern District of California
United States District Court
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VS.
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EMI GROUP LIMITED, ET AL.
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Defendants.
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The Hearing on the pending Motion to Dismiss is VACATED and RESET to October 2, 2012,
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at 2:00 p.m. Counsel are directed to submit additional briefing of no more than 7 pages by
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September 11, 2012, addressed to the following questions:
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1. Has plaintiff pleaded facts sufficient to establish a basis for avoiding a specific contractual
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bar on proceeding directly against Capitol based upon waiver or estoppel? See Intel Corp. v.
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Hartford Acc. & Indem. Co., 952 F.2d 1551, 1559 (9th Cir. 1991). (“California courts will find
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waiver when a party intentionally relinquishes a right, or when that party's acts are so inconsistent
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with an intent to enforce the right as to induce a reasonable belief that such right has been
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relinquished.”) In Clinton, the Ninth Circuit affirmed the district court’s decision that a contractual
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limitation provision could not preclude a recording artist from seeking royalties directly against the
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recording company where the recording company had dealt directly with the artist by sending royalty
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checks addressed to him and by responding to his audit requests. Clinton v. Universal Music Group,
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Inc., 376 F. App'x 780, 781 (9th Cir. 2010). The Ninth Circuit held that, “[t]aken in the light most
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favorable to Clinton, the facts suffice to make Clinton either a third party beneficiary or a real party
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in interest [and the record company,] UMG is estopped, as a result of its own conduct, from relying
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on any purported waiver” of the artist’s right to proceed against the record company directly. Id.
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2. Even if plaintiff has pleaded facts sufficient to establish a basis for avoiding any
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contractual provisions that would preclude a direct lawsuit by plaintiff, should plaintiff be permitted
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to proceed directly against Capitol if the loan-out company that is the party to the agreements with
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Capitol is a suspended corporation? Kaufman & Broad Communities, Inc. v. Performance Plaster,
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Inc., 136 Cal. App. 4th 212, 218 (2006); Amesco Exports, Inc. v. Munisoglu, 977 F. Supp. 1014,
Mfg. & Sales, Inc., 87 F. Supp. 2d 1013 (C.D. Cal. 1997) (allowing individual to sue on written
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Northern District of California
1015 (C.D. Cal. 1997) order vacated on reconsideration Amesco Exports, Inc. v. Associated Aircraft
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United States District Court
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contract as to which he is not a party as a third party beneficiary would create a mechanism for
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avoiding obligations of corporate form, including bar on litigation by suspended corporation). If the
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loan-out corporation is controlled by plaintiff, why should plaintiff be allowed to sidestep the
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corporate form and obligations?
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IT IS SO ORDERED.
Date: August 27, 2012
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YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE
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