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DEAD KENNEDYS v. BIAFRA

February 8, 1999

DEAD KENNEDYS D/B/A DECAY MUSIC, A CALIFORNIA GENERAL PARTNERSHIP; EAST BAY RAY A/K/A RAY PEPPERELL; KLAUS FLOURIDE A/K/A GEOFFREY LYALL; D.H. PELIGRO A/K/A DARREN HENLEY PLAINTIFFS,
v.
JELLO BIAFRA A/K/A ERIC REED BOUCHER, INDIVIDUALLY AND D/B/A ALTERNATIVE TENTACLES RECORDS; MORDAM RECORDS, A CALIFORNIA BUSINESS ENTITY; AND DOES 1 THROUGH 30, INCLUSIVE DEFENDANTS.



The opinion of the court was delivered by: Jensen, District Judge.

ORDER

On February 3, 1999, the Court heard argument on plaintiffs' motion to remand this case to the state courts. David M. Given and Paul Karl Lukacs appeared on behalf of plaintiffs; Paul Raynor Keating appeared for defendant Jello Biafra. Having considered the arguments of counsel, the papers submitted, the applicable law, and the record in this case, the Court hereby GRANTS the motion.

I. BACKGROUND

A. Factual Background and Procedural History

Plaintiffs are Decay Music, a general partnership, and three of its four partners. The four partners in Decay Music once comprised the rock music band called the Dead Kennedys. The three individual plaintiffs are three of the former members of the Dead Kennedys and three of the partners in Decay Music: East Bay Ray, Klaus Flouride, and D.H. Peligro. Defendant is the fourth member and partner, Jello Biafra. All of the parties are California domicilaries. In 1986, the band ended its recording and touring activities because of differences among the band members.

Decay Music was formed as a California general partnership in 1981 by the four members of the Dead Kennedys. The four band members are equal partners, each having a one-quarter voting and ownership interest. Plaintiffs describe Decay Music as the "exclusive business and administrative entity for all Dead Kennedys business endeavors." Complaint ¶ 12. Plaintiffs claim Decay Music has exclusive rights over the Dead Kennedys' musical compositions and sound recordings ("the Catalog").

In 1979, the Dead Kennedys formed Alternative Tentacles to act as their own record label. An oral agreement in 1986 among the band members transferred ownership of Alternative Tentacles from Decay Music to Biafra individually. On September 30, 1998, plaintiffs met during a Decay Music partnership meeting and on a 3-0 vote terminated Alternative Tentacles' right to administer and exploit the Catalog, effective October 1, 1998. Biafra claims that he offered to send a proxy to the meeting, which he was unable to attend, but that his offer was refused. Around October 23, 1998, Biafra paid a sum of royalties into a trust account. He conditioned release of that money to the partnership and the individual partners on his approval or the existence of a court order requiring him to release the funds.

On October 29, 1998, plaintiffs brought an action in San Francisco Superior Court against Mordam Records and against Biafra, both in his status as an individual and as the owner of the sole proprietorship Alternative Tentacles Records.*fn1 The complaint alleges seven state law causes of action: (1) a declaratory judgment that Decay Music validly terminated Alternative Tentacles' right to exploit the Catalog; (2) breach of Biafra's fiduciary duties to his partners through self-dealing; (3) conversion by Biafra of income that rightfully belongs to the partnership; (4) breach of the oral agreement that transferred ownership of Alternative Tentacles to Biafra from Decay Music; (5) unjust enrichment of Biafra at the expense of his partners; (6) engagement in unfair business practices by Biafra and Mordam Records; and (7) injunctive relief to preserve Decay Music's exclusive rights to exploit the Catalog against Biafra and Mordam.

Defendant Mordam counter-claimed in interpleader for resolution of to whom it should pay royalties: Decay Music or Alternative Tentacles. Mordam distributes records at wholesale for Alternative Tentacles pursuant to an oral agreement with Biafra. Mordam has filed a notice of non-opposition to the motion to remand.

Defendant Biafra removed the case to federal court on the basis that the complaint, in particular counts one and seven, pled a claim arising under the Copyright Act. As one of his affirmative defenses, Biafra contends that plaintiffs' claims are barred in whole or in part by Biafra's rights as an author in the sound and video recordings and in the underlying musical compositions. According to Biafra, he retained individual title to his rights in the works and licensed his rights to Alternative Tentacles. Biafra claims that Decay Music merely acts as an administrator for the purposes of distributing royalties and that the partnership has no rights in the underlying works.

Biafra has counterclaimed with ten causes of action: (1) declaratory judgment that he is an author with rights in the works that have not been assigned or licensed and which he is free to exercise; (2) breach of fiduciary duty; (3) breach of contract; (4) conversion; (5) defamation; (6) intentional inducement of breach of contract; (7) intentional interference with prospective economic advantage; (8) conspiracy; (9) unfair competition under California Business and Professions Code § 17200; and (10) injunctive relief under the Copyright Act.

Plaintiffs now move to have the case remanded to state court for lack of federal subject matter jurisdiction.

B. Legal Standard

"Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant. Absent diversity of citizenship, federal-question jurisdiction is required." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 ...


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