Mitchell et al v. Faulkner et al

Filing 35

MEMORANDUM AND ORDER. For the reasons in this Memorandum and Order, Defendants' motion to dismiss Plaintiffs' Complaint in its entirety [dkt. no. 24] is granted. Granting 24 Motion to Dismiss. (Signed by Judge Loretta A. Preska on 1/14/2013) (rjm)

USDCSDNY
DOC~IT
ELEcn~ONICAu..y

FILED

DOC#:

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

DATE FiLED:~i - \ 1.-\ -

- -x
IAN MITCHELL, GORDON CLARK and
PAT MCGLYNN t

10 Civ. 8173

Plaintiffs t

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(LAP)

MEMORANDUM &

againstERIC FAULKNER t DUNCAN FAURE t
ALAN LONGMUIR t DEREK LONGMUIR t
LESLIE MCKEOWN t STUART WOOD and
ARISTA RECORDS LLC,
Defendants.
--x

LORETTA A. PRESKA, Chief United States District Judge:
Ian Mitchell t Gordon Clarkt and Pat McGlynn
("Plaintiffs ll ) bring this action against Defendants Eric
Faulkner, Duncan Faure, Alan Longmuir, Derek Longmuir, Leslie
McKeown, and Stewart Wood (the "Rollersll), formerly the band
"The Bay City Rollers ll , who in turn are plaintiffs in a
previously filed separate action against Defendant Arista
Records LLC ("Arista ll ) for royalties.

( 0 7 - cv - 2 3 18) .

Plaintiffs t each of whom at one time performed with the band,
assert the right to declaratory relief claiming anticipatory
breach of contract and unjust enrichment against the Rollers,
alleging a right to a proportionate share of any royalties paid
in the future to the Rollers by Arista. 1

The Rollers have filed

The Complaint had also included a claim for accounting t
(continued)

1

unjust enrichment should be dismissed."); see also Zeis
152 F. Supp. 2d at 345 (S.D.N.Y. 2001)

(dismissing unjust

enrichment and quantum meruit claims because they "depend upon
proof

an unenforceable contract") .
Because Plaintiffs have failed to allege facts

establishing a basis

a claim of unjust enrichment

independent from those supporting the breach of contract claim,
Plaintiffs' claim for unjust enrichment and any claim for
declaratory relief based on that claim are dismissed.

CONCLUSION
For the foregoing reasons, Defendants' motion to
dismiss

iffs' Compl

in its enti

[dkt. no. 24] is

GRANTED.

SO ORDERED.
Dated:

New York, New York
January ~, 2013

~t1,tktk

UNITED STATES DISTRICT JUDGE

20