United States District Court, D. Nevada
NATHAN LEFTENANT, ARNETT LEFTENANT, JERYL BRIGHT and GREGORY JOHNSON, Plaintiff,
LAWRENCE “LARRY” BLACKMON, Defendants.
J. YOUCHAH UNITED STATES MAGISTRATE JUDGE
before the Court is Plaintiffs Nathan Leftenant, Arnett
Leftenant, Jeryl Bright, and Gergory Johnson's Motion for
Leave to Amend the Complaint (“Plaintiffs'
Motion”). ECF No. 22. The Court has reviewed
Plaintiffs' Motion, Defendant Lawrence Blackmon's
Opposition (ECF No. 25), and Plaintiffs' Reply (ECF No.
filed their original complaint on October 10, 2018, and
Defendant filed his Answer and Counterclaim on January 15,
2019. On April 30, 2019 the Plaintiffs filed their instant
motion seeking leave to amend their complaint, which was
fully briefed on May 31, 2019. The undersigned took the bench
on August 6, 2019, at which time Plaintiffs' Motion was
original complaint alleged three causes of action including
tortious interference with contract, conversion, and
declaratory relief. Plaintiffs' Amended Complaint seeks
to add a party, Tomi Jenkins, and to revise the causes of
action asserted. Specifically, Plaintiffs' Amended
Complaint seeks to assert four causes of action including
tortious interference with contract, breach of fiduciary
duty, promissory estoppel, and declaratory relief. Plaintiffs
contend that Defendant does not object to Plaintiff Tomi
Jenkins being added as a plaintiff for purposes of seeking
declaratory relief, but that Defendant objects to all
remaining proposed amendments.
Mr. Blackmon alleges he was “a founding member
of CAMEO” thereby signaling that he was not the only
founding member of this musical group. ECF No. 25 at 1:18-19
(emphasis added); see also ECF No. 30 at 2.
Plaintiffs N. Leftenant, A. Leftenant, Johnson and Jenkins
contend they too are founding members of CAMEO, and that
Plaintiff: (i) Jenkins appeared on all 18 of CAMEO's
albums as well as on its apparent current single
“El Paso”; (ii) N. Leftenant
“‘was considered the face of CAMEO' and
appeared on more than … 16 CAMEO albums”; (iii)
A. Leftenant “appeared on more than … 7 CAMEO
albums; (iv) Johnson “appeared on more than … 8
CAMEO albums [and] is credited for creating the name
‘CAMEO'”; and, (v) Bright “became a
featured member of CAMEO's horn section, and appeared on
more than … 5 CAMEO albums…” ECF No. 23-1
¶¶ 11-15, and 18.
allege that they, together with Defendant,
“agreed” that each current and future member of
CAMEO would receive an equal share of “record company
advances against future royalties and royalties for records
that featured their vocal performances, ” as well as an
equal share of live performance income. Id. ¶
The alleged agreement with Plaintiff Bright was that he
“would receive an equal share of the net artist
advances of future royalties, royalties and net live
performance income.” Id. ¶ 19. Defendant
is further alleged to have served as CAMEO's producer and
to have “administered and managed the recording
agreements, including recording funds, organized live
performances[, …] the branding activities of the
band[, ] … artist advances and … [payment of]
CAMEO expenses.” Id. ¶¶ 23 and 29.
various paragraphs of the proposed Amended Complaint,
Plaintiffs allege that a number of record distributing
entities had agreements with CAMEO (or Atlanta Artist Records
(“AAR”), discussed below) that required the
periodic payment of royalties for the benefit of the CAMEO
members. Id. ¶¶ 27, 30, 35, 38, 48, 49,
58. Plaintiffs contend that each of the agreements between
CAMEO and record distribution entities required CAMEO or AAR
to pay advances and royalties arising from CAMEO recordings
to those persons or entities entitled to such payments.
Id. ¶¶ 30, 39, 50, 58.
not disputed that Defendant served as CAMEO's
“producer” through, inter alia, AAR, a
company alleged to have been formed as a Georgia corporation
sometime after August 2, 1982. Id. ¶¶ 23
and 33. AAR is said to be owned by Plaintiffs N. Leftenant
and, potentially, Jenkins, as well as Defendant. Id.
¶¶ 33 and 34. AAR is also said to have done
business as “Better Days Music” and “Better
Nights Music” beginning in August 1982. Id.
¶ 44. Plaintiffs next state that AAR was
“administratively dissolved” on June 12, 1992,
due to Defendant's “failure to handle
administrative matters”; but then contend the entity
“continued to operate as a partnership[, ]” among
Plaintiffs N. Leftenant, A. Leftenant, Bright, and Jenkins,
together with Defendant, paying all CAMEO expenses from
“net artist advances against royalties, ”
royalties, and live performance income. Id.
¶¶ 51 and 52. At some unknown time, Plaintiffs
allege that only Plaintiffs N. Leftenant and Jenkins,
together with Defendant, continued to do business as a
partnership under the names Atlanta Artist Records, Better
Days Music, and Better Nights Music “in connection with
CAMEO's recordings and musical compositions.”
Id. ¶ 53. CAMEO is alleged to have produced its
last album in 2000, but continued to perform as CAMEO
“in the years following” this release up to the
present. Id. ¶¶ 57 and 60.
alleged that they “have never received their
representative share of periodic payment of royalties”
from any of the companies that distributed CAMEO's music.
Id. ¶ 61. Plaintiffs allege Defendant received
payment of royalties due AAR, but did not distribute
those royalties to the Plaintiffs as required. Id.
¶ 62. Plaintiffs also admit that “[n]o taxes were
withheld from any CAMEO distributions of net profits and no
w-2's [sic] were issued to Plaintiffs.”
Id. ¶ 42.
addition to the royalties and royalty advances paid by
various distributors, Plaintiffs alleges that, as CAMEO
“featured artists, ” they each entered into
membership agreements with SoundExchange, a national royalty
collection society that apparently collects and distributes
digital performance royalties to recording artists and owners
of music. Id. ¶¶ 70-75. Plaintiffs also
allege they entered into membership agreements with AARC.
Id. ¶ 97. Plaintiffs contend that Defendant had
knowledge of Plaintiffs' agreements with both AARC and
SoundExchange. Id. ¶ 100. While Plaintiffs
allege that “featured artists” receive quarterly
payments from SoundExchange and AARC upon entering into a
membership agreement, in or around 2010, Defendant is alleged
to have started collecting royalties from SoundExchange
“acting as Plaintiffs' agent.” Id.
¶¶ 76, 82, and 83. Plaintiffs do not state whether
Defendant's role as agent was approved or unapproved;
nevertheless, Plaintiffs state that Defendant represented to
SoundExchange that he would pay Plaintiffs their share of
royalties as featured artists. Id. ¶ 84. The
same allegation is not made as to AARC. Defendant is alleged
to have collected over $103, 000 of Plaintiffs'
SoundExchange royalties that he never distributed, and that
Defendant never paid them their share of royalties received
from AARC either. Id. ¶¶ 85-86.
an apparent failed attempt at mediation, that would have been
paid for by SoundExchange, this lawsuit was filed by
Plaintiffs. Id. ¶¶ 92-93.
Court has broad discretion to grant an amendment to a
complaint and may freely do so, “when justice so
requires.” Fed.R.Civ.P. 15(a)(2). Denial of a leave to
amend may be justified, however, if the proposed amendment
will cause undue delay, undue prejudice to the opposing
party, a request to amend is made in bad faith, a party has
repeatedly failed to cure deficiencies, or the amendment
would be futile. Leadsinger, Inc. v. BMG Music
Publ'g, 512 F.3d 522, 533 (9th Cir. 2008). Here,
Defendant's opposition to Plaintiffs' proposed
amended complaint is based solely on futility. ECF No. 25 at
1:12. The Court considers each of Defendant's arguments
Proposed Tortious Inference with Contractual Relations
tortious interference claim is based on their membership
agreements with SoundExchange and AAR, about which Defendant
was aware, and which agreements must have preceded the time
in 2010 when Defendant is alleged to have begun collecting
royalties on behalf of Plaintiffs as their agent. ECF No.
23-1 ¶¶ 75, 83, 97, and 100. Plaintiffs claim that
Defendant is wrongfully interfering with Plaintiffs'
“contractual rights to receive royalties by claiming
that he is solely entitled to” the SoundExchange and
AARC royalties. Id. at 101. Further, Plaintiffs
allege that their claims for royalties includes $103, 005.30
in royalties already paid to Defendant by SoundExchange and
the supposed $200, 000 in royalties SoundExchange “is
holding” for CAMEO as of March 2018. Id.
¶¶ 85 and 95. Plaintiffs do not allege that AARC is
holding any royalties for CAMEO.
order to state an intentional interference with contract
claim under Nevada law, a plaintiff must plead that there is
a valid and existing contract about which the defendant is
aware, the defendant's intent to disrupt or interfere
with that contract, actual disruption or interference, and
damages. Local Ad Link, Inc. v. AdzZoo, LLC, No.
2:09-cv-01564, 2009 WL 10694069 *12 (D. Nev., December 15,
2009) citing Sutherland v. Gross, 772 P.2d 1287,
1290 (Nev. 1990). The statute of limitations on an
intentional interference with contract claim is three years.
NRS 11.190(3)(c), Stalk v. Mushkin, 199 P.3d 18, 20
contends that Plaintiffs fail to plead that Defendant's
alleged activities actually disrupted their membership
agreements with SoundExchange or AARC, do not identify a
particular contract provision that was breached or any breach
of contract by SoundExchange or AARC, and that Plaintiffs
have not alleged that either SoundExchange or AARC failed to
pay them royalties. Finally, Defendant contends that