cesar rodriguez ramirez - complaint.pdf
TRANSCRIPT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
GIBSO
N &
TR
EU
LLP
7495
Wes
t Azu
re D
rive
, Sui
te 2
33
Las
Veg
as, N
evad
a 8
9130
M
ain
(702
) 541
-788
8 •
Fax
(702
) 541
-789
9
STEVEN A. GIBSON, ESQ.
Nevada Bar No. 6656
JODI DONETTA LOWRY, ESQ.
Nevada Bar No. 7798
GIBSON & TREU LLP 7495 West Azure Drive, Suite 233
Las Vegas, Nevada 89130 Telephone 702.541.7888 Facsimile 702.541.7899
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
CESAR RODRIGUEZ RAMIREZ, an individual,
Plaintiff,
v. NUEVO ORDEN MUSIC LLC, a California limited liability company; NUEVO ORDEN MUSIC, a California general partnership; MARTHA FRAILE, an individual; JOSÉ DAVID HERNANDEZ, an individual; ENRIQUE NARANJO, an individual; and DANIEL FERNANDEZ, an individual,
Defendants.
Case No.: 2:15-cv-2472
COMPLAINT
(JURY TRIAL REQUESTED)
Plaintiff Cesar Rodriguez Ramirez (“Plaintiff” or “Mr. Rodriguez”), by and
through its counsel, GIBSON & TREU LLP, complains and alleges as follows against
Defendants Nuevo Orden Music LLC (“NOM LLC”), Nuevo Orden Music (“NOM
Partnership”), Martha Fraile (“Ms. Fraile”), José David Hernandez (“Mr.
Hernandez”), Enrique Naranjo (“Mr. Naranjo”), and Daniel Fernandez (“Mr.
Fernandez”) (collectively known herein as the “Defendants”), on information and
belief, that the following are and have been true at all times relevant to this lawsuit
unless otherwise indicated specifically to the contrary:
Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 1 of 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
GIBSO
N &
TR
EU
LLP
7495
Wes
t Azu
re D
rive
, Sui
te 2
33
Las
Veg
as, N
evad
a 8
9130
M
ain
(702
) 541
-788
8 •
Fax
(702
) 541
-789
9
NATURE OF ACTION
1. This is an action brought under this Court’s original jurisdiction for
declaratory judgment of copyright and trademark ownership by Plaintiff Cesar
Rodriguez Ramirez (“Mr. Rodriguez”), and under this Court’s supplemental
jurisdiction for breach of contract under California law against Nuevo Orden Music,
a California general partnership (“NOM Partnership”), by and through its partners
Martha Fraile (“Ms. Fraile”), José David Hernandez (“Mr. Hernandez”), Enrique
Naranjo (“Mr. Naranjo”), and Daniel Fernandez (“Mr. Fernandez”); breach of the
covenant of good faith and fair dealing under California law by NOM Partnership;
fraudulent inducement under Nevada law by NOM Partnership; breach of contract
under California law against Nuevo Orden Music LLC, a California limited liability
company (“NOM LLC”); breach of the covenant of good faith and fair dealing under
California law by NOM LLC; fraudulent presentment under Nevada law by NOM
LLC, Ms. Fraile, Mr. Hernandez, and Mr. Fernandez; and unjust enrichment under
Nevada law of all Defendants.
2. This Court additionally has diversity jurisdiction over this entire
matter, because Mr. Rodriguez is a resident of Nevada and all Defendants are
residents of either California or Mexico.
PARTIES
3. Mr. Rodriguez is an individual domiciled in Nevada.
4. NOM Partnership is a general partnership with its principal place of
business in California.
5. Ms. Fraile is a general partner in NOM Partnership.
6. Ms. Fraile is an individual domiciled in California.
7. Mr. Hernandez is a general partner in NOM Partnership.
8. Mr. Hernandez is an individual domiciled in California.
9. Mr. Naranjo is a general partner in NOM Partnership.
10. Mr. Naranjo is an individual domiciled in Mexico.
Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 2 of 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
GIBSO
N &
TR
EU
LLP
7495
Wes
t Azu
re D
rive
, Sui
te 2
33
Las
Veg
as, N
evad
a 8
9130
M
ain
(702
) 541
-788
8 •
Fax
(702
) 541
-789
9
11. Mr. Fernandez is a general partner in NOM Partnership.
12. Mr. Fernandez is an individual domiciled in Mexico.
13. NOM LLC is a California limited liability company.
SUBJECT-MATTER JURISDICTION
14. This Court has subject-matter jurisdiction over this action under 28
U.S.C. § 1338(a), because Plaintiff’s First Cause of Action is dependent on this
Court’s interpretation of the Copyright Act, and Plaintiff’s Second Cause of Action is
dependent on this Court’s interpretation of the Lanham Act, and Plaintiff’s other
claims for relief are so related to such claims that they form part of the same case or
controversy under Article III of the United States Constitution and are thus
encompassed within this Court’s supplemental jurisdiction pursuant to 28 U.S.C. §
1367.
15. This Court has subject-matter jurisdiction over this action under 28
U.S.C. § 1332(a)(1), because Plaintiff is a citizen of Nevada and Defendants
(including the general partners of NOM Partnership) are residents of other states
and countries, and the amount in controversy in this action exceeds $75,000.
PERSONAL JURISDICTION
16. This Court has personal jurisdiction over NOM Partnership, and thus
NOM Partnership’s general partners individually, because NOM Partnership
fraudulently solicited Mr. Rodriguez, a Nevada citizen, to enter into a contract with
NOM Partnership, through in-person communications taking place in Nevada and
electronic communications directed to Mr. Rodriguez in Nevada.
17. This Court has personal jurisdiction over NOM Partnership, and thus
NOM Partnership’s general partners individually, because NOM Partnership’s
general partners Ms. Fraile and Mr. Hernandez negotiated two of the contracts at
issue in this matter with Mr. Rodriguez, a Nevada citizen, while Ms. Fraile and Mr.
Hernandez were physically present in the State of Nevada.
Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 3 of 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
GIBSO
N &
TR
EU
LLP
7495
Wes
t Azu
re D
rive
, Sui
te 2
33
Las
Veg
as, N
evad
a 8
9130
M
ain
(702
) 541
-788
8 •
Fax
(702
) 541
-789
9
18. This Court has personal jurisdiction over NOM Partnership because
Defendant NOM Partnership entered or attempted to enter into a contract intended
to reach out beyond the state in which NOM Partnership had its principal place of
business and create a continuing relationship and obligation with Mr. Rodriguez, a
Nevada citizen.
19. This Court has personal jurisdiction over NOM LLC because
Defendant NOM LLC entered or attempted to enter into a contract intended to
reach out beyond NOM LLC’s state of organization and create a continuing
relationship and obligation with Mr. Rodriguez, a Nevada citizen.
20. This Court has personal jurisdiction over NOM Partnership and NOM
LLC because NOM Partnership and NOM LLC claim ownership of copyrights and a
mark that NOM Partnership and NOM LLC knew were owned by a Nevada
resident.
VENUE
21. Venue is proper in this Court under 28 U.S.C. § 1391(b)(2), because a
substantial part of the events giving rise to the claims set forth herein occurred in
the District of Nevada.
GENERAL ALLEGATIONS
22. Mr. Rodriguez is a professional musician who performs in the genre of
popular Spanish-language music.
23. No later than June 7, 2014, Mr. Hernandez, Ms. Fraile, Mr. Naranjo,
and Mr. Fernandez, without limitation, were associated with one another to carry on
as co-owners a business for profit under the trade name NUEVO ORDEN MUSIC.
24. On or about April 9, 2014, Mr. Rodriguez met Mr. Hernandez in Las
Vegas, Nevada, where Mr. Hernandez represented to Mr. Rodriguez that Mr.
Hernandez was a music professional with extensive experience and professional
contacts in the popular Spanish-language music industry who led a team for
purposes of music production and promotion.
Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 4 of 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
GIBSO
N &
TR
EU
LLP
7495
Wes
t Azu
re D
rive
, Sui
te 2
33
Las
Veg
as, N
evad
a 8
9130
M
ain
(702
) 541
-788
8 •
Fax
(702
) 541
-789
9
25. In the time period between April 9, 2014 and June 7, 2014 (the
“Inducement Period”), Mr. Hernandez represented to Mr. Rodriguez almost daily,
via telephonic and electronic communications, as follows: (a) that Mr. Hernandez
was in the process of creating a record label with full production and promotional
capabilities from which Mr. Rodriguez could benefit, (b) that Mr. Hernandez and
others, including without limitation Ms. Fraile, Mr. Naranjo, and Mr. Fernandez
(collectively the “Relevant Professionals”) had the experience, knowledge, and
professional contacts in the popular Spanish-language music industry, in (at a
minimum) the United States and in Mexico, to obtain significant professional
exposure, performance bookings, and record sales for Mr. Rodriguez, and (c) that if
Mr. Rodriguez signed an exclusive contract with Mr. Hernandez’s to-be-formed
record label, the Relevant Professionals, who would be actively involved in
promoting Mr. Rodriguez’s performances and music would remain so involved for
the duration of any such exclusive contract (the “Inducement Period
Misrepresentations”).
26. On or about May 15, 2015, Mr. Rodriguez met Ms. Fraile in person in
Las Vegas, Nevada (the “May 15 Las Vegas Meeting”).
27. During the May 15 Las Vegas Meeting, Ms. Fraile represented to Mr.
Rodriguez that the Relevant Professionals had the experience, knowledge, and
professional contacts in the popular Spanish-language music industry, in (at a
minimum) the United States and Mexico, to obtain significant professional
exposure, performance bookings, and record sales for Mr. Rodriguez (the “May 15
Misrepresentations”).
28. On June 7, 2014, at the request of Mr. Hernandez and Ms. Fraile, Mr.
Rodriguez traveled from Las Vegas to Riverside, California, where Mr. Rodriguez
met in person with the Relevant Professionals at Mr. Hernandez’s, Ms. Fraile’s, Mr.
Naranjo’s, and Mr. Fernandez’s invitation (the “June 7 Riverside Meeting”).
Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 5 of 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
GIBSO
N &
TR
EU
LLP
7495
Wes
t Azu
re D
rive
, Sui
te 2
33
Las
Veg
as, N
evad
a 8
9130
M
ain
(702
) 541
-788
8 •
Fax
(702
) 541
-789
9
29. During the June 7 Riverside Meeting, Mr. Hernandez, Ms. Fraile, Mr.
Naranjo, and Mr. Fernandez represented to Mr. Rodriguez that the Relevant
Professionals, who would be working under the auspices of an entity to be doing
business as Nuevo Orden Music, (a) had the experience, knowledge, and
professional contacts in the popular Spanish-language music industry, in the
United States and Mexico at a minimum, to obtain significant professional
exposure, performance bookings, and record sales for Mr. Rodriguez, and (b) would
remain actively involved with promotion of Mr. Rodriguez’s performances and music
for the duration of any exclusive contract Mr. Rodriguez signed with the entity to be
doing business as Nuevo Orden Music (the “June 7 Capability Misrepresentations”).
30. During the June 7 Riverside Meeting, Mr. Hernandez, Ms. Fraile, Mr.
Naranjo, and Mr. Fernandez represented to Mr. Rodriguez that if Mr. Rodriguez
entered into an exclusive recording contract with the recording label owned and
operated by Mr. Hernandez, Ms. Fraile, Mr. Naranjo, and Mr. Fernandez, the
Relevant Professionals would, jointly and severally, make best efforts to ensure that
Mr. Rodriguez obtained significant professional exposure, performance bookings,
and record sales for Mr. Rodriguez (the “June 7 Best Efforts Misrepresentations”;
collectively with the June 7 Capability Misrepresentations, the “June 7
Misrepresentations”).
31. During the June 7 Riverside Meeting, in reliance on the Inducement
Misrepresentations, the May 15 Misrepresentations, and the June 7
Misrepresentations, Mr. Rodriguez entered into an “Artist-Agent Agreement”
(attached hereto as Exhibit 1) with NOM Partnership, by and through NOM
Partnership’s general partners Mr. Hernandez and Ms. Fraile.
32. Among the provisions of the Artist-Agent Agreement, in the
unnumbered section entitled “Agency” (page 1), is the following (the “Best Efforts
Covenant”):
Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 6 of 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
GIBSO
N &
TR
EU
LLP
7495
Wes
t Azu
re D
rive
, Sui
te 2
33
Las
Veg
as, N
evad
a 8
9130
M
ain
(702
) 541
-788
8 •
Fax
(702
) 541
-789
9
The Agent agrees to use his or her best efforts in
submitting the Artist’s work for purpose of securing
assignments, sales and shows for the Artist. The
Agent shall negotiate the terms of any assignment,
sale or booking that is offered, but the Artist shall
have the right to reject any assignment if the Artist
finds the terms thereof unacceptable only in the
case a valid reason is determined.
33. During the June 7 Riverside Meeting, in reliance on the Inducement
Misrepresentations, the May 15 Misrepresentations, and the June 7
Misrepresentations, Mr. Rodriguez entered into a “Recording Contract” (the “June
Recording Contract,” attached hereto as Exhibit 2) on which the other contracting
party is identified as “NUEVO ORDEN MUSIC (herein the Company)” (page 1).
34. As of June 7, 2014, NOM LLC had not been formed.
35. The June Recording Contract binds Mr. Rodriguez for seven years to
record exclusively on NOM Partnership’s label, absent NOM Partnership’s
permission.
36. The June Recording Contract requires the making of at least 14
master recordings in seven years, including, at least once per year, “one master
recording of at least between 45 minutes and 120 minutes. minutes duration” [sic].
37. The June Recording Contract provides that NOM Partnership shall be:
… the sole owner and will have perpetual use and
control of all masters and CDs, tapes, and other
audio or visual recording produced under this
Agreement.
38. The June Recording Contract does not contain the word “copyright.”
39. The June Recording Contract provides that Mr. Rodriguez:
Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 7 of 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8
GIBSO
N &
TR
EU
LLP
7495
Wes
t Azu
re D
rive
, Sui
te 2
33
Las
Veg
as, N
evad
a 8
9130
M
ain
(702
) 541
-788
8 •
Fax
(702
) 541
-789
9
will permit the use of CESAR RODIGUEZ’s [sic]
likeness or other identifying characteristics by
NUEVO ORDEN MUSIC for the promotion of sales
of records produced under this Agreement. During
the term of this Agreement, NUEVO ORDEN
MUSIC will have the sole right to the use of
CESAR RODIGUEZ’s name, voice, likeness, sound,
Visual [capitalization sic] and similar
characteristics for the purpose of advertising,
promoting, selling, and otherwise merchandising
CDs, tapes, and other audio, Visual recordings [all
sic] from the masters produced by CESAR
RODIGUEZ under the terms of this Agreement.
40. The June Recording Contract does not contain the words “trademark,”
“service mark,” or “assignment.”
41. On or about August 26, 2014, NOM LLC filed an application with the
United States Patent and Trademark Office for registration of the mark CESAR
RODRIGUEZ Y SU BANDA MIX (the “Mark”).
42. In August and September 2014, Mr. Hernandez, Ms. Fraile, Mr.
Naranjo, Mr. Fernandez, and NOM LLC made arrangements for Mr. Rodriguez to
go on a promotional tour in Mexico (the “Mexico Tour”).
43. In reliance on representations made by Mr. Hernandez, Ms. Fraile, Mr.
Naranjo, and Mr. Fernandez regarding the promotional support that would be
provided to Mr. Rodriguez on the Mexico Tour, and in acceding to the express
request of Mr. Hernandez, Mr. Rodriguez resigned from Mr. Rodriguez’s job in Las
Vegas, Nevada in order to be able to travel for several weeks on the Mexico Tour.
44. While Mr. Rodriguez was on the Mexico Tour, Mr. Rodriguez stayed at
the home of Mr. Fernandez in Tonala, Jalisco, Mexico.
Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 8 of 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9
GIBSO
N &
TR
EU
LLP
7495
Wes
t Azu
re D
rive
, Sui
te 2
33
Las
Veg
as, N
evad
a 8
9130
M
ain
(702
) 541
-788
8 •
Fax
(702
) 541
-789
9
45. While Mr. Rodriguez was on the Mexico Tour, Mr. Hernandez, Ms.
Fraile, and Mr. Fernandez asked Mr. Rodriguez, over the course of multiple
teleconferences conducted via the WhatsApp telemessaging service, during the last
week of August 2014 and the first week of September 2014 (the “Calls To Mexico”),
to sign a new proposed contract (the “New Proposed Contract”) with NOM LLC.
46. During the Calls To Mexico, Mr. Hernandez, Ms. Fraile, and Mr.
Fernandez represented that the purpose of the New Proposed Contract would be to
decrease the number of master recordings over seven years from fourteen, as
required in the June Recording Contract, to seven.
47. During the Calls To Mexico, Mr. Hernandez, Ms. Fraile, and Mr.
Fernandez represented that the New Proposed Contract contained a provision
mandating a payment of $2 million from any other record label with whom Mr.
Rodriguez signed during the term of the New Proposed Contract.
48. During the time period of the Calls To Mexico, Mr. Rodriguez was
outside the United States and had no opportunity to consult with counsel or
independent business advisors regarding the New Proposed Contract.
49. During the time period of the Calls To Mexico, Mr. Rodriguez was so
concerned about the low attendance and lack of revenue generated to date by the
Mexico Tour that Mr. Rodriguez feared that NOM LLC would not have funds to
ensure Mr. Rodriguez was able to return to the United States.
50. During the Calls To Mexico, Mr. Hernandez, Ms. Fraile, and Mr.
Fernandez represented that time was of the essence for Mr. Rodriguez to sign the
New Proposed Contract and that Mr. Rodriguez could not wait to sign the New
Proposed Contract until after Mr. Rodriguez had returned to the United States from
the Mexico Tour.
51. On or about September 3, 2014, via teleconference conducted through
WhatsApp from Tonala, Jalisco, Mexico, Mr. Rodriguez agreed to sign the New
Proposed Contract.
Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 9 of 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10
GIBSO
N &
TR
EU
LLP
7495
Wes
t Azu
re D
rive
, Sui
te 2
33
Las
Veg
as, N
evad
a 8
9130
M
ain
(702
) 541
-788
8 •
Fax
(702
) 541
-789
9
52. On or about September 3, 2014, an unknown person at NOM LLC sent
Mr. Rodriguez a document written in Spanish and entitled “Contrato y Acuerdo de
grabación” (capitalization sic; the “September Contract,” attached hereto as Exhibit
3; uncertified English translation attached hereto as Exhibit 4), via facsimile
transmission to Tonala, Jalisco, Mexico.
53. On or about September 3, 2015, Mr. Fernandez delivered the
September Contract to Mr. Rodriguez and, after Mr. Rodriguez had signed the
September Contract, returned the signed September Contract to Ms. Fraile and Mr.
Hernandez via facsimile.
54. On or about September 3, 2014, Mr. Rodriguez relied on the
representations of Mr. Hernandez, Ms. Fraile, and Mr. Fernandez regarding the
difference between the June Recording Contract and the September Contract and
signed the September Contract.
55. In fact, the September Contract does not change Mr. Rodriguez’ or
NOM Partnership’s recording obligation from fourteen master recordings over seven
years to seven master recordings over seven years.
56. In fact, the September Contract provides that if Mr. Rodriguez violates
the September Contract in any way, Mr. Rodriguez himself must pay NOM LLC
liquidated damages of at least two million dollars (the “Misrepresented Liquidated
Damages Provision”).
57. The September Contract’s terms regarding ownership of master
recordings are not materially different from those set forth in the June Recording
Contract.
58. The September Contract does not contain the Spanish phrases
“derechos de autor” (“rights of the author”), “propriedad literaria” (“literary
property”), “propriedad artistica” (“artistic property”), or any other Spanish word or
phrase that approximates the English word “copyright.”
Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 10 of 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11
GIBSO
N &
TR
EU
LLP
7495
Wes
t Azu
re D
rive
, Sui
te 2
33
Las
Veg
as, N
evad
a 8
9130
M
ain
(702
) 541
-788
8 •
Fax
(702
) 541
-789
9
59. The September Contract’s terms regarding use of Mr. Rodriguez’s
name and likeness are not materially different from those set forth in the June
Recording Contract.
60. The September Contract does not contain the Spanish word “marca”
(“trademark”) or any other Spanish word or phrase that approximates the English
word “trademark” or phrase “service mark.”
61. The Mexico Tour was a money-losing endeavor for Mr. Rodriguez.
62. Mr. Rodriguez gained no income from participating in the Mexico Tour.
63. Mr. Rodriguez actually had to provide his own funds in support of the
Mexico Tour.
64. On or about September 22, 2015, the United States Patent and
Trademark Office issued registration on the Principal Register of Trademarks to
NOM LLC for the Mark in International Class 9 with respect to “Digital materials,
namely, cds, dvds, downloadable music featuring Regional Mexican music” (all
capitalization sic), and in International Class 41 with respect to “Entertainment in
the nature of live performances by a musical band.”
65. The registration issued by the United States Patent and Trademark
Office with respect to the Mark reflects a date of first use of January 1, 2014 with
respect to all scopes of use recited in that registration.
66. On or about August 4, 2015 and on or about September 10, 2015, Mr.
Rodriguez, through counsel, demanded the transfer to Mr. Rodriguez from NOM
LLC of all right, title, and interest to Mr. Rodriguez’s copyrights and to the Mark.
67. On or about September 23, 2015, NOM LLC, through counsel, refused
to transfer Mr. Rodriguez’s right, title, and interest to Mr. Rodriguez’s copyrights
and to the Mark without significant extracontractual payments.
68. In the eighteen months following Mr. Rodriguez’ entry into the Artist-
Agent Agreement and the June Recording Contract, none of the Defendants ever
effectuated Mr. Rodriguez’ recording of a master recording between 45 and 120
Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 11 of 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12
GIBSO
N &
TR
EU
LLP
7495
Wes
t Azu
re D
rive
, Sui
te 2
33
Las
Veg
as, N
evad
a 8
9130
M
ain
(702
) 541
-788
8 •
Fax
(702
) 541
-789
9
minutes long, as required by the June Recording Contract and the September
Contract.
69. In the eighteen months following Mr. Rodriguez’ entry into the Artist-
Agent Agreement and the June Recording Contract, many of the Relevant
Professionals, including without limitation Ms. Fraile, Mr. Naranjo, and Mr.
Fernandez (the “Departing Relevant Professionals”), ceased to be actively involved
with NOM Partnership and NOM LLC, in contravention of the Inducement Period
Misrepresentations and the June 7 Capability Misrepresentations.
70. The Departing Relevant Professionals ceased to be actively involved
with NOM Partnership and NOM LLC because of Mr. Hernandez’s mismanagement
of NOM Partnership and NOM LLC.
71. In the eighteen months following Mr. Rodriguez’ entry into the Artist-
Agent Agreement and the June Recording Contract, Mr. Rodriguez has not obtained
meaningful professional exposure, performance bookings, or record sales.
72. Mr. Rodriguez has not obtained meaningful professional exposure,
performance bookings, or record sales, at least in part, because of the cessation of
active involvement of the Departing Relevant Professionals with NOM Partnership
and NOM LLC.
73. Mr. Rodriguez has not obtained meaningful professional exposure,
performance bookings, or record sales, at least in part, because of Mr. Hernandez’
mismanagement and undercapitalization of NOM Partnership and NOM LLC.
74. Mr. Rodriguez has not obtained meaningful professional exposure,
performance bookings, or record sales, at least in part, because of the Relevant
Professionals’ inappropriate marketing of Mr. Rodriguez as a “Regional Mexican”
musician only.
75. Mr. Rodriguez has not obtained meaningful professional exposure,
performance bookings, or record sales, at least in part, because the exclusivity
clauses contained within the Artist-Agent Agreement, the June Recording Contract,
Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 12 of 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13
GIBSO
N &
TR
EU
LLP
7495
Wes
t Azu
re D
rive
, Sui
te 2
33
Las
Veg
as, N
evad
a 8
9130
M
ain
(702
) 541
-788
8 •
Fax
(702
) 541
-789
9
and the September Contract prevent Mr. Rodriguez from being able to engage in
Mr. Rodriguez’s own marketing efforts or to engage new, competent marketing
representation.
76. All Defendants gained a benefit from being able to claim that Mr.
Rodriguez was under contract with the record label owned and operated by NOM
Partnership and NOM LLC, because the enhancement of Defendants’ reputations
and portfolios provided a professional benefit to Defendants and allowed
Defendants to recruit more clients.
FIRST CLAIM FOR RELIEF
DECLARATORY JUDGMENT REGARDING MR. RODRIGUEZ’S
OWNERSHIP OF COPYRIGHTS UNDER FEDERAL LAW
(AGAINST NOM PARTNERSHIP AND NOM LLC)
77. Mr. Rodriguez reincorporates and realleges all the allegations set forth
above.
78. NOM Partnership maintains that the June Recording Contract
transfers copyrights from Mr. Rodriguez to NOM Partnership.
79. NOM LLC maintains that the September Contract transfers
copyrights from Mr. Rodriguez to NOM LLC.
80. The language of the June Recording Contract does not comply with the
requirements of 17 U.S.C. § 204 regarding effectuation of copyright transfers.
81. The language of the September Contract does not comply with the
requirements of 17 U.S.C. § 204 regarding effectuation of copyright transfers.
82. The ownership of copyrights under the terms of the June Recording
Contract presents a case or controversy with respect to which this Court may enter
declaratory judgment.
83. The ownership of copyrights under the terms of the September
Contract presents a case or controversy with respect to which this Court may enter
declaratory judgment pursuant to 28 U.S.C. § 2201.
Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 13 of 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14
GIBSO
N &
TR
EU
LLP
7495
Wes
t Azu
re D
rive
, Sui
te 2
33
Las
Veg
as, N
evad
a 8
9130
M
ain
(702
) 541
-788
8 •
Fax
(702
) 541
-789
9
84. Mr. Rodriguez requests an order of this Court declaring that all
copyrights to which the June Recording Contract and/or the September Contract
purport to transfer title to any of the Defendants are actually the property of Mr.
Rodriguez, with title owned by Mr. Rodriguez.
SECOND CLAIM FOR RELIEF
DECLARATORY JUDGMENT REGARDING MR. RODRIGUEZ’S
OWNERSHIP OF MARKS UNDER FEDERAL LAW
(AGAINST NOM PARTNERSHIP AND NOM LLC)
85. Mr. Rodriguez reincorporates and realleges all the allegations set forth
above.
86. At least as early as January 1, 2014, Mr. Rodriguez provided goods and
services under the Mark.
87. The June Recording Contract contains no provision assigning the Mark
to NOM Partnership.
88. The June Recording Contract contains no provision transferring
ownership of the Mark to NOM Partnership.
89. The June Recording Contract contains no provision assigning or
otherwise transferring goodwill associated with the Mark to NOM Partnership.
90. The June Recording Contract does not contain or constitute a written
assignment or other transfer of the Mark as required by 15 U.S.C. § 1060.
91. The June Recording Contract does not establish any ownership
interest on the part of NOM Partnership in the Mark.
92. The September Contract contains no provision assigning the Mark to
NOM LLC.
93. The September Contract contains no provision transferring ownership
of the Mark to NOM LLC.
94. The September Contract contains no provision assigning or otherwise
transferring goodwill associated with the Mark to NOM LLC.
Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 14 of 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15
GIBSO
N &
TR
EU
LLP
7495
Wes
t Azu
re D
rive
, Sui
te 2
33
Las
Veg
as, N
evad
a 8
9130
M
ain
(702
) 541
-788
8 •
Fax
(702
) 541
-789
9
95. The September Contract does not contain or constitute a written
assignment or other transfer of the Mark as required by 15 U.S.C. § 1060.
96. The September Contract does not establish any ownership interest on
the part of NOM LLC in the Mark.
97. NOM LLC maintains that NOM LLC is the rightful owner of the Mark.
98. The ownership of the Mark presents a case or controversy with respect
to which this Court may enter declaratory judgment pursuant to 28 U.S.C. § 2201.
99. Mr. Rodriguez requests an order of this Court declaring that Mr.
Rodriguez is the sole owner of the Mark, with title owned by Mr. Rodriguez.
100. Mr. Rodriguez requests an order of this Court certifying to the Director
of the United States Patent and Trademark Office pursuant to 15 U.S.C. § 1119
that the Principal Register of Trademarks should be rectified to reflect Mr.
Rodriguez’s sole ownership of the Mark.
THIRD CLAIM FOR RELIEF
BREACH OF CONTRACT (ARTIST-AGENT AGREEMENT) UNDER
CALIFORNIA LAW
(AGAINST NOM PARTNERSHIP)
101. Mr. Rodriguez reincorporates and realleges all the allegations set forth
above.
102. The Artist-Agent Contract embodied a bilateral offer and acceptance
by Mr. Rodriguez and by NOM Partnership.
103. The Artist-Agent Contract reflected a transaction of bilateral
consideration whereby Mr. Rodriguez was exclusively obligated to use NOM
Partnership’s services to market, sell, and distribute Mr. Rodriguez’s artistic works
and to pay NOM Partnership, ostensibly by and through Ms. Fraile and Mr.
Hernandez, a commission based on such activities.
104. The Artist-Agent Contract reflected a transaction of bilateral
consideration.
Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 15 of 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
16
GIBSO
N &
TR
EU
LLP
7495
Wes
t Azu
re D
rive
, Sui
te 2
33
Las
Veg
as, N
evad
a 8
9130
M
ain
(702
) 541
-788
8 •
Fax
(702
) 541
-789
9
105. Mr. Rodriguez has performed all of Mr. Rodriguez’s obligations with
respect to the Artist-Agent Agreement.
106. NOM Partnership failed to meet the requirements of the Best Efforts
Covenant as required by the Artist-Agent Agreement.
107. NOM Partnership thus breached the Artist-Agent Agreement.
108. Mr. Rodriguez did not excuse NOM Partnership from meeting the
requirements of the Best Efforts Covenant.
109. No condition was unsatisfied that excused NOM Partnership from
meeting the requirements of the Best Efforts Covenant.
110. The Artist-Agent Agreement was for a lawful purpose.
111. Mr. Rodriguez is entitled to compensatory and consequential damages
arising out of NOM Partnership’s breach of the Artist-Agent Agreement.
FOURTH CLAIM FOR RELIEF
BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING
(ARTIST-AGENT AGREEMENT) UNDER CALIFORNIA LAW
(AGAINST NOM PARTNERSHIP)
112. Mr. Rodriguez reincorporates and realleges all the allegations set forth
above.
113. NOM Partnership had the obligation under the Artist-Agent
Agreement to do nothing that would injure Mr. Rodriguez’s right to receive the
benefits of the Artist-Agent Agreement.
114. NOM Partnership’s acts and omissions injured Mr. Rodriguez’s right to
receive the benefits of the Artist-Agent Agreement.
115. Mr. Rodriguez is entitled to compensatory and consequential damages
arising out of NOM Partnership’s breach of the covenant of good faith and fair
dealing implied in the Artist-Agent Agreement.
Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 16 of 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
17
GIBSO
N &
TR
EU
LLP
7495
Wes
t Azu
re D
rive
, Sui
te 2
33
Las
Veg
as, N
evad
a 8
9130
M
ain
(702
) 541
-788
8 •
Fax
(702
) 541
-789
9
FIFTH CLAIM FOR RELIEF
FRAUDULENT INDUCEMENT (ARTIST-AGENT AGREEMENT) UNDER
NEVADA LAW
(AGAINST NOM PARTNERSHIP, MS. FRAILE, MR. HERNANDEZ,
MR. NARANJO, AND MR. FERNANDEZ)
116. Mr. Rodriguez reincorporates and realleges all the allegations set forth
above.
117. NOM Partnership, by and through Ms. Fraile, Mr. Hernandez, Mr.
Naranjo, and Mr. Fernandez, made false representations to Mr. Rodriguez in the
course of inducing Mr. Rodriguez to enter into the Artist-Agent Agreement,
including, without limitation, the June 7 Misrepresentations.
118. NOM Partnership, by and through Ms. Fraile, made false
representations to Mr. Rodriguez in the course of inducing Mr. Rodriguez to enter
into the Artist-Agent Agreement, including, without limitation, the May 15
Misrepresentations.
119. NOM Partnership, by and through Mr. Hernandez, made false
representations to Mr. Rodriguez in the course of inducing Mr. Rodriguez to enter
into the Artist-Agent Agreement, including, without limitation, the Inducement
Period Misrepresentations.
120. NOM Partnership, by and through Ms. Fraile, Mr. Hernandez, Mr.
Naranjo, and Mr. Fernandez, knew that Ms. Fraile and Mr. Hernandez had an
insufficient basis for making the June 7 Misrepresentations.
121. NOM Partnership, by and through Ms. Fraile, knew that Ms. Fraile
had an insufficient basis for making the May 15 Misrepresentations.
122. NOM Partnership, by and through Mr. Hernandez, knew that Mr.
Hernandez had an insufficient basis for making the Inducement Period
Misrepresentations.
Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 17 of 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
18
GIBSO
N &
TR
EU
LLP
7495
Wes
t Azu
re D
rive
, Sui
te 2
33
Las
Veg
as, N
evad
a 8
9130
M
ain
(702
) 541
-788
8 •
Fax
(702
) 541
-789
9
123. NOM Partnership, by and through Ms. Fraile, Mr. Hernandez, Mr.
Naranjo, and Mr. Fernandez, made the June 7 Misrepresentations with the
intention to therewith induce Mr. Rodriguez to consent to the formation of the
Artist-Agent Agreement.
124. NOM Partnership, by and through Ms. Fraile, made the May 15
Misrepresentations with the intention to therewith induce Mr. Rodriguez to consent
to the formation of the Artist-Agent Agreement.
125. NOM Partnership, by and through Mr. Hernandez, made the
Inducement Period Misrepresentations with the intention to therewith induce Mr.
Rodriguez to consent to the formation of the Artist-Agent Agreement.
126. Mr. Rodriguez justifiably relied on the June 7 Misrepresentations in
deciding to enter into the Artist-Agent Agreement.
127. Mr. Rodriguez justifiably relied on the May 15 Misrepresentations in
deciding to enter into the Artist-Agent Agreement.
128. Mr. Rodriguez justifiably relied on the Inducement Period
Misrepresentations in deciding to enter into the Artist-Agent Agreement.
129. Mr. Rodriguez has been damaged as a result of Mr. Rodriguez’s
reliance on the June 7 Misrepresentations.
130. Mr. Rodriguez has been damaged as a result of Mr. Rodriguez’s
reliance on the May 15 Misrepresentations.
131. Mr. Rodriguez has been damaged as a result of Mr. Rodriguez’s
reliance on the Inducement Period Misrepresentations.
SIXTH CLAIM FOR RELIEF
BREACH OF CONTRACT (JUNE RECORDING CONTRACT) UNDER
CALIFORNIA LAW
(AGAINST NOM PARTNERSHIP)
132. Mr. Rodriguez reincorporates and realleges all the allegations set forth
above.
Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 18 of 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
19
GIBSO
N &
TR
EU
LLP
7495
Wes
t Azu
re D
rive
, Sui
te 2
33
Las
Veg
as, N
evad
a 8
9130
M
ain
(702
) 541
-788
8 •
Fax
(702
) 541
-789
9
133. The June Recording Contract embodied a bilateral offer and
acceptance by Mr. Rodriguez and by NOM Partnership.
134. The June Recording Contract reflected a transaction of bilateral
consideration.
135. Mr. Rodriguez has performed or attempted to perform all of Mr.
Rodriguez’ obligations with respect to the June Recording Contract.
136. NOM Partnership failed to meet NOM Partnership’s obligations under
the June Recording Contract.
137. NOM Partnership thus breached the June Recording Contract.
138. Mr. Rodriguez did not excuse NOM Partnership from meeting the
requirements of the June Recording Contract.
139. No condition was unsatisfied that excused NOM Partnership from
meeting the requirements of the June Recording Contract.
140. The June Recording Contract was for a lawful purpose.
141. Mr. Rodriguez is entitled to compensatory and consequential damages
arising out of NOM Partnership’s breach of the June Recording Contract.
SEVENTH CLAIM FOR RELIEF
BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING
(JUNE RECORDING CONTRACT) UNDER CALIFORNIA LAW
(AGAINST NOM PARTNERSHIP)
142. Mr. Rodriguez reincorporates and realleges all the allegations set forth
above.
143. NOM Partnership had the obligation under the June Recording
Contract to do nothing that would injure Mr. Rodriguez’s right to receive the
benefits of the June Recording Contract.
144. NOM Partnership’s acts and omissions injured Mr. Rodriguez’s right to
receive the benefits of the June Recording Contract.
Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 19 of 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
20
GIBSO
N &
TR
EU
LLP
7495
Wes
t Azu
re D
rive
, Sui
te 2
33
Las
Veg
as, N
evad
a 8
9130
M
ain
(702
) 541
-788
8 •
Fax
(702
) 541
-789
9
145. Mr. Rodriguez is entitled to compensatory and consequential damages
arising out of NOM Partnership’s breach of the covenant of good faith and fair
dealing implied in the June Recording Contract.
EIGHTH CLAIM FOR RELIEF
FRAUDULENT INDUCEMENT (JUNE RECORDING CONTRACT) UNDER
NEVADA LAW
(AGAINST NOM PARTNERSHIP, MS. FRAILE, MR. HERNANDEZ,
MR. NARANJO, AND MR. FERNANDEZ)
146. Mr. Rodriguez reincorporates and realleges all the allegations set forth
above.
147. NOM Partnership, by and through Ms. Fraile, Mr. Hernandez, Mr.
Naranjo, and Mr. Fernandez, made false representations to Mr. Rodriguez in the
course of inducing Mr. Rodriguez to enter into the June Recording Contract,
including, without limitation, the June 7 Misrepresentations.
148. NOM Partnership, by and through Ms. Fraile, made false
representations to Mr. Rodriguez in the course of inducing Mr. Rodriguez to enter
into the June Recording Contract, including, without limitation, the May 15
Misrepresentations.
149. NOM Partnership, by and through Mr. Hernandez, made false
representations to Mr. Rodriguez in the course of inducing Mr. Rodriguez to enter
into the June Recording Contract, including, without limitation, the Inducement
Period Misrepresentations.
150. NOM Partnership knew that Ms. Fraile, Mr. Hernandez, Mr. Naranjo,
and Mr. Fernandez had an insufficient basis for making the June 7
Misrepresentations.
151. NOM Partnership knew that Ms. Fraile had an insufficient basis for
making the May 15 Misrepresentations.
Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 20 of 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
21
GIBSO
N &
TR
EU
LLP
7495
Wes
t Azu
re D
rive
, Sui
te 2
33
Las
Veg
as, N
evad
a 8
9130
M
ain
(702
) 541
-788
8 •
Fax
(702
) 541
-789
9
152. NOM Partnership knew that Mr. Hernandez had an insufficient basis
for making the Inducement Period Misrepresentations.
153. NOM Partnership, by and through Ms. Fraile, Mr. Hernandez, Mr.
Naranjo, and Mr. Fernandez, made the June 7 Misrepresentations with the
intention to therewith induce Mr. Rodriguez to consent to the formation of the June
Recording Contract.
154. NOM Partnership, by and through Ms. Fraile, made the May 15
Misrepresentations with the intention to therewith induce Mr. Rodriguez to consent
to the formation of the June Recording Contract.
155. NOM Partnership, by and through Mr. Hernandez, made the
Inducement Period Misrepresentations with the intention to therewith induce Mr.
Rodriguez to consent to the formation of the June Recording Contract.
156. Mr. Rodriguez justifiably relied on the June 7 Misrepresentations in
deciding to enter into the June Recording Contract.
157. Mr. Rodriguez justifiably relied on the May 15 Misrepresentations in
deciding to enter into the June Recording Contract.
158. Mr. Rodriguez justifiably relied on the Inducement Period
Misrepresentations in deciding to enter into the June Recording Contract.
159. Mr. Rodriguez has been damaged as a result of Mr. Rodriguez’s
reliance on the June 7 Misrepresentations.
160. Mr. Rodriguez has been damaged as a result of Mr. Rodriguez’s
reliance on the May 15 Misrepresentations.
161. Mr. Rodriguez has been damaged as a result of Mr. Rodriguez’s
reliance on the Inducement Period Misrepresentations.
Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 21 of 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
22
GIBSO
N &
TR
EU
LLP
7495
Wes
t Azu
re D
rive
, Sui
te 2
33
Las
Veg
as, N
evad
a 8
9130
M
ain
(702
) 541
-788
8 •
Fax
(702
) 541
-789
9
NINTH CLAIM FOR RELIEF
BREACH OF CONTRACT (SEPTEMBER CONTRACT) UNDER
CALIFORNIA LAW
(AGAINST NOM LLC)
162. Mr. Rodriguez reincorporates and realleges all the allegations set forth
above.
163. The September Contract embodied a bilateral offer and acceptance by
Mr. Rodriguez and by NOM LLC.
164. The September Contract reflected a transaction of bilateral
consideration.
165. Mr. Rodriguez has performed or attempted to perform all of Mr.
Rodriguez’ obligations with respect to the September Contract.
166. NOM LLC failed to meet NOM LLC’s obligations under the September
Contract.
167. NOM LLC thus breached the September Contract.
168. Mr. Rodriguez did not excuse NOM LLC from meeting the
requirements of the September Contract.
169. No condition was unsatisfied that excused NOM LLC from meeting the
requirements of the September Contract.
170. The September Contract was for a lawful purpose.
171. Mr. Rodriguez is entitled to compensatory and consequential damages
arising out of NOM LLC’s breach of the September Contract.
TENTH CLAIM FOR RELIEF
BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING
(SEPTEMBER CONTRACT) UNDER CALIFORNIA LAW
(AGAINST NOM LLC)
172. Mr. Rodriguez reincorporates and realleges all the allegations set forth
above.
Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 22 of 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
23
GIBSO
N &
TR
EU
LLP
7495
Wes
t Azu
re D
rive
, Sui
te 2
33
Las
Veg
as, N
evad
a 8
9130
M
ain
(702
) 541
-788
8 •
Fax
(702
) 541
-789
9
173. NOM LLC had the obligation under the September Contract to do
nothing that would injure Mr. Rodriguez’s right to receive the benefits of the
September Contract.
174. NOM LLC’s acts and omissions injured Mr. Rodriguez’s right to receive
the benefits of the September Contract.
175. Mr. Rodriguez is entitled to compensatory and consequential damages
arising out of NOM LLC’s breach of the covenant of good faith and fair dealing
implied in the September Contract.
ELEVENTH CLAIM FOR RELIEF
FRAUDULENT PRESENTMENT (SEPTEMBER CONTRACT) UNDER
NEVADA LAW
(AGAINST NOM LLC, MS. FRAILE, MR. HERNANDEZ, AND
MR. FERNANDEZ)
176. Mr. Rodriguez reincorporates and realleges all the allegations set forth
above.
177. NOM LLC, Ms. Fraile, Mr. Hernandez, and Mr. Fernandez, made false
representations to Mr. Rodriguez with respect to the September Contract, including,
without limitation, that the September Contract diminished Mr. Rodriguez’s yearly
obligation to make recordings on NOM LLC’s record label (the “Recording
Obligation Misrepresentation”).
178. NOM LLC, Ms. Fraile, Mr. Hernandez, and Mr. Fernandez, made false
representations to Mr. Rodriguez with respect to the September Contract, including,
without limitation, that the September Contract would only impose $2 million in
liquidated damages on another record label in the event Mr. Rodriguez signed a
contract with another record label during the term of the September Contract (the
“Liquidated Damages Misrepresentation”).
Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 23 of 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
24
GIBSO
N &
TR
EU
LLP
7495
Wes
t Azu
re D
rive
, Sui
te 2
33
Las
Veg
as, N
evad
a 8
9130
M
ain
(702
) 541
-788
8 •
Fax
(702
) 541
-789
9
179. NOM LLC, Ms. Fraile, Mr. Hernandez, and Mr. Fernandez knew that
the Recording Obligation Misrepresentation was not actually embodied in the terms
of the September Contract that was presented to Mr. Rodriguez for signing.
180. NOM LLC, Ms. Fraile, Mr. Hernandez, and Mr. Fernandez knew that
the September Contract that was presented to Mr. Rodriguez for signing did not
contain any change to Mr. Rodriguez’s recording obligation from that set forth in
the June Contract.
181. NOM LLC, Ms. Fraile, Mr. Hernandez, and Mr. Fernandez knew that
the Liquidated Damages Misrepresentation was not actually embodied in the terms
of the September Contract that was presented to Mr. Rodriguez for signing.
182. NOM LLC, Ms. Fraile, Mr. Hernandez, and Mr. Fernandez knew that
the September Contract that was presented to Mr. Rodriguez for signing contained
a liquidated damages provision imposing $2 million in liquidated damages on Mr.
Rodriguez for any breach of the terms of the September Contract under any
circumstances.
183. NOM LLC, Ms. Fraile, Mr. Hernandez, and Mr. Fernandez, made the
Recording Obligation Misrepresentation with the intention to obtain Mr.
Rodriguez’s signature on the September Contract.
184. NOM LLC, Ms. Fraile, Mr. Hernandez, and Mr. Fernandez, made the
Liquidated Damages Misrepresentation with the intention to obtain Mr.
Rodriguez’s signature on the September Contract.
185. In entering into the September Contract, Mr. Rodriguez justifiably
relied on NOM LLC’s, Ms. Fraile’s, Mr. Hernandez’s, and Mr. Fernandez’s
representations regarding the contents of the September Contract that Mr.
Rodriguez was presented for signature on September 3, 2014, including, without
limitation, the Recording Obligation Misrepresentation and the Liquidated
Damages Misrepresentation.
Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 24 of 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
25
GIBSO
N &
TR
EU
LLP
7495
Wes
t Azu
re D
rive
, Sui
te 2
33
Las
Veg
as, N
evad
a 8
9130
M
ain
(702
) 541
-788
8 •
Fax
(702
) 541
-789
9
186. Mr. Rodriguez has been damaged as a result of Mr. Rodriguez’s
reliance on the Recording Obligation Misrepresentation and the Liquidated
Damages Misrepresentation.
187. NOM LLC’s, Ms. Fraile’s, Mr. Hernandez’s, and Mr. Fernandez’s
procurement of Mr. Rodriguez’s entry into the September Contract through
fraudulent presentation makes the September Contract voidable at Mr. Rodriguez’s
election.
TWELFTH CLAIM FOR RELIEF
UNJUST ENRICHMENT UNDER NEVADA COMMON LAW
(AGAINST ALL DEFENDANTS)
188. Mr. Rodriguez reincorporates and realleges all the allegations set forth
above.
189. Defendants benefited from Mr. Rodriguez’s performance and
attempted performance under the Artist-Agent Agreement, the June Recording
Contract, and the September Contract.
190. Defendants retained such benefits at Mr. Rodriguez’s expense.
191. The benefit retained by Defendants in equity and good conscience
belonged to Mr. Rodriguez.
192. Mr. Rodriguez has sustained damages as a direct and proximate result
of Defendants’ acts as alleged herein, and Defendants are liable to Mr. Rodriguez
for such damages.
PRAYER FOR RELIEF
Mr. Rodriguez prays for judgment against Defendants as follows:
a. An order of this Court declaring that all copyrights with respect to Mr.
Rodriguez’s music, broadly construed, are the property of Mr. Rodriguez;
b. An order of this Court declaring that the Mark is the property of Mr.
Rodriguez;
Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 25 of 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
26
GIBSO
N &
TR
EU
LLP
7495
Wes
t Azu
re D
rive
, Sui
te 2
33
Las
Veg
as, N
evad
a 8
9130
M
ain
(702
) 541
-788
8 •
Fax
(702
) 541
-789
9
c. An order of this Court certifying to the Director of the United States
Patent and Trademark Office pursuant to 15 U.S.C. § 1119 that the
Principal Register of Trademarks should be rectified to reflect Mr.
Rodriguez’s sole ownership of the Mark;
d. Damages for NOM Partnership’s breaches of the Artist-Agent Agreement
and the June Recording Contract, and/or voiding of the Artist-Agent
Agreement and the June Recording Contract as having been procured via
fraud in the inducement;
e. Damages for NOM LLC’s breaches of the September Contract, and/or
voiding of the September Contract as having been procured via fraud in
the presentment;
f. Punitive and exemplary damages against NOM Partnership, Ms. Fraile,
Mr. Hernandez, Mr. Naranjo, and Mr. Fernandez for fraud in the
inducement of the June Recording Contract;
g. Punitive and exemplary damages against NOM LLC, Ms. Fraile, Mr.
Hernandez, and Mr. Fernandez for fraud in the presentment of the
September Contract;
h. Compensation for Defendants’ unjust enrichment;
i. Attorney fees as provided for by the June Recording Contract and/or the
September Contract, and by law; and
j. Costs of suit as provided by law.
Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 26 of 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
27
GIBSO
N &
TR
EU
LLP
7495
Wes
t Azu
re D
rive
, Sui
te 2
33
Las
Veg
as, N
evad
a 8
9130
M
ain
(702
) 541
-788
8 •
Fax
(702
) 541
-789
9
DEMAND FOR JURY TRIAL
Mr. Rodriguez requests trial by jury on all causes of action so triable.
Signed this December 24, 2015.
GIBSON & TREU LLP
By /s/ J.D. Lowry
STEVEN A. GIBSON Nevada Bar No. 6656 JODI DONETTA LOWRY, ESQ. Nevada Bar No. 7798 7495 West Azure Drive, Suite 233 Las Vegas, Nevada 89130
Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 27 of 27