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Author Topic: Mike Love's Lawsuit Dismissed  (Read 8691 times)
Dr. Tim
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« on: August 18, 2006, 02:41:31 PM »

OK kids, this is big.  What follows is the US District Court's docket entry from the C.D. California, case no. 05-7798:

MINUTES OF IN CHAMBERS ORDER held before Judge Audrey B. Collins RE: GRANTING MOTION to Dismiss Plaintiff's First Amended Complaint Pursuant to FRCP 12(B)(1) and 12(B)(6)[99], MOTION to Dismiss Plaintiff's First Amended Complaint Pursuant to FRCP Rules 21, 12(b)(6) and 12(b)(1)[100], MOTION for Joinder in MOTION to Dismiss Plaintiff's First Amended Complaint Pursuant to F.R.C.P. Rule 12(b)(6)[101], MOTION to Dismiss Plaintiff's First Amended Complaint Pursuant to F.R.C.P. Rules 12(b)(1) and 12(b)(6)[103], MOTION to Dismiss Plaintiff's First Amended Complaint Pursuant to F.R.C.P. Rules 12(b)(1) and 12(b)(6)[102], MOTION for Joinder in MOTION to Dismiss Plaintiff's First Amended Complaint Pursuant to F.R.C.P. Rules 12(b)(1) and 12(b)(6)[102][105], MOTION to Dismiss Plaintiff's First Amended Complaint Pursuant to F.R.C.P. Rule 12(b)(6)[101], MOTION to Dismiss Plaintiff's First Amended Complaint Pursuant to F.R.C.P. Rules 12(b)(1) and 12(b)(6)[102][106]. The Court also GRANTED the Sanctuary Defendants' motion, and DISMISSED the following parties from the action: Sanctuary Records Group, Inc., SanctuaryArtist Management., and Sanctuary Music Productions, Inc. The Court also DISMISSED Melinda Wilson from the action because Plaintiff never properly joined her as a party, and DENIED Plaintiff's request for leave to amend to join her. If Plaintiff choose to amend his Complant, he must do so in accordance with the Court's grant of leave, and within 21 days of the issuance of this order, that is by 9/5/06. *see document for further details* Court Reporter: none present. (pbap, ) (Entered: 08/16/2006)

What this means in layman's terms:  Mike is SOL.  The suit against David Leaf, Brian, Melinda, and their companies is dismissed for failure to state a claim.  The numbered brackets [ ] refer to the prior docket entries, which are the respective motions to dismiss of Brian, Melinda, et al.

The reasons for the dismissal are not indicated here -- yet.  I would not be surprised if a written opinion follows and is posted on line for download.   Don't rule out an appeal by Mike.  He has 30 days to file one.

While my commentary on the original complaint is not on the site now, I'll find it in my archive and repost it for you.  In short, what I surmised at the time was Mike faced an uphill battle on much of his complaint because many of his claims, particularly those claiming a BB interest in the SMiLE project, were not his personally to make, but BRI's as the corporate entity of the BB.  BRI was not and is not a party, so there it is.

Apparently the claimed infringement in his likeness, etc. on the UK promotional CD was dismissed for lack of jurisdiction; perhaps he can pursue those in the UK, where the acts he claims are the "infringement" occurred.

I'm about to head out on vacation for a few days, so I'll stir the merda here with this news and let all you folks comment on it.  For my part, I do not take a pro or anti-Mike slant on this, and all my comments on the merits of the case are based on what we've seen in the court record so far (which admittedly is not a lot).

Maybe others with a connection to the courts, like DJ M, can get and post some of the pleadings and motion papers leading up to this result.  (They're not available online for download so someone will have to go and look).  I'll bet it's a fascinating read.
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« Reply #1 on: August 18, 2006, 02:45:24 PM »

Very interesting news ! thank you !
Have a nice vacation!
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« Reply #2 on: September 06, 2006, 08:02:02 PM »

OK, update time.  Though the response to my prior post was underwhelming, here is the news for anyone who wants to know.

The judge's opinion dismissing the case was posted online.  From my first read of it, 90% of the suit is gone and won't be back.   This nicludes the suggestion that Brian "stole" Smile from the BB.   She's giving Mike one last chance to file a new complaint to try to flesh out a couple of claims:  that Brian violated some kind of agreement which Mike says allows him personal veto power over Brian's use of the songs on the Good Vibrations promo CD, and the possibly confusing use of the Beach Boys name on the Mail On Sunday CD.  Mike indeed did file an amended complaint, though that's not yet been posted.   But don't cheer for Mike yet: the clear import of the opinion is that the claims are weak.   She's allowing Mike to articulate his theories and facts better, but short of a miracle, you'll see another motion to dismiss very shortly, this time to dismiss the new claims for good.

Any of you lawyer types or just plain suffering souls who want a copy of the actual opinion, PM me and I'll send you the PDF of it.   That and a ball peen hammer upside the head should help you sleep very soundly.
« Last Edit: September 06, 2006, 08:28:55 PM by Dr. Tim » Logged

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« Reply #3 on: September 07, 2006, 01:51:31 AM »

Extremely interesting, Dr. Tim- thanks for posting.  I didn't respond before but I really appreciated your update and the legal insights.  You know I'm a legal junkie, so that's one more way the Beach Boys keep me on the hook between releases.  I'll post a few comments tomorrow...anyway, I hope this puts one more of the issues between Brian and Mike behind them.
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« Reply #4 on: September 07, 2006, 07:41:00 AM »

It looks like common sense is prevailing for a change. I can see how Mike might have had a case with the Beach Boys name and likeness used in the UK promo disc, but the rest of it seemed quite illogical. I remember when the suit was filed with bizarre accusations of Van Dyke Parks writing new lyrics to "Good Vibrations" and something or other about Al Jardine's "well-publicized emotional problems" which really made me question Mike's grasp of the situation!
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« Reply #5 on: September 07, 2006, 09:36:59 AM »

Thanks for the update Dr. Tim...ever since the MOD I've been curious as to whether or not Mike will file an amended complaint.  He'd better have some stronger points this time, or else (as you said) there will in all likelihood be another dismissal and that will be the end of it.  Seems like the first go-round, Mike was just throwing merda at the wall to see what stuck without much of a legal basis, and obviously that won't fly this time. 

I'll send you a PM about that pdf file too...thanks!
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« Reply #6 on: September 07, 2006, 02:15:59 PM »

Mike Love is a jerk.
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« Reply #7 on: September 07, 2006, 02:19:25 PM »

Thanks for the update, doctor ! I am still hoping that Mike let's that lawsuit down and have his peace with Brian (though it wasn't against Brian personally)
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a diseased bunch of mo'fos if there ever was one… their beauty is so awesome that listening to them at their best is like being in some vast dream cathedral decorated with a thousand gleaming American pop culture icons.

- Lester Bangs on The Beach Boys


PRO SHOT BEACH BOYS CONCERTS - LIST


To sum it up, they blew it, they blew it consistently, they continue to blow it, it is tragic and this pathological problem caused The Beach Boys' greatest music to be so underrated by the general public.

- Jack Rieley
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« Reply #8 on: September 07, 2006, 02:35:45 PM »

Believe me, I've been hanging on every word you've posted.  Thank you so much.  And I'd love to see the PDF, too.  I'll PM as requested.


         Love and merci,   Dan Lega
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« Reply #9 on: September 07, 2006, 05:16:48 PM »

You know another thing (my apologies in advance to the elderly on the board) that I never think about is, Mike Love is an old man.  He probably DOESN'T grasp the entire situation too clearly.  He's a grandpa.  My grandpa might sue somebody they know in a fit of rage too, or perhaps Mike just hired some asshole 30 year old lawyer who hates the Beach Boys.  Mike surely didn't write his own paperwork.  I guess I'll never understand it. 
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« Reply #10 on: September 07, 2006, 09:32:52 PM »

I just finished reading the opinion...Mike got smacked pretty good.  Out of his 18 alleged causes of action, the court either completely or almost completely shot down all but one.  And the few that they granted leave to amend are claims that Mike would have a very difficult time substantiating per the instructions of the court.  Overall, it seems to me that Mike's attorneys didn't do all their homework here, and it shows.  As I said before, it reads like they were just hashing out claims (whether they could substantiate a legal basis for them or not) in the hopes that a few of the claims might have a shot.  If Mike's attorneys thought that the claims were strong, they would have provided the evidence to back them up. 

Mike had until 9/5 to amend the claims that the court granted leave to, so I guess now we wait to see what he decided to do.  Dr Tim, what would you say the timeframe is for finding out whether or not Mike submitted any amended claims?
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« Reply #11 on: September 07, 2006, 09:40:55 PM »

The court docket says he did - right on 9/5, the last day to file.  There was not yet a hyperlink to that pleading so I don't yet know what new ground it covers.  He's already  been reprrimanded once for trying to "shoehorn" additional claims in that should not have been made in connection with prior grants of leave to amend his earlier complaint.  The other respondents will have 20 days to answer and I would not be surprised to see more motions to dismiss at that time.
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« Reply #12 on: September 08, 2006, 12:24:18 PM »

Thanks so much for sending me the whole kit and kaboodle.  It gave me a headache reading it, all the legalese, you know, but it's interesting to peruse.  Please keep us updated on further developments!


       Love and merci,   Dan Lega
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« Reply #13 on: September 08, 2006, 01:34:32 PM »

Interestingly, it seems that Mike's the one who's getting bad representation this time.  I wonder if he's with the same people as twelve years ago?
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« Reply #14 on: September 08, 2006, 04:02:08 PM »

When I saw him last night he seemed pretty OK. At least I could not detect that he was distracted.
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« Reply #15 on: September 08, 2006, 04:30:46 PM »

I'm not so sure you can chalk up this debacle to bad representation.  There are people who are "suit-happy" and insist on suing despite legal advice that they don't have a case - I suspect Mike demanded this suit be filed despite any lawyer's misgivings, and since Mike is paying the lawyers, they do what he wants, whether there is a case or not.
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« Reply #16 on: September 08, 2006, 10:31:30 PM »

Perhaps so; that could ell be the case; but even if those are the circumstances I got the impression that Mike's arguments could have been much better presented.  Maybe not- maybe there was just no meat on the bone, but along with everything else I thought Mike's guys did a poor job of showing how he had been damaged.

Lawsuits can be rooted in a lot of things- personal enmity, righteous indignation, protection of rights, or just plain ol' money.  I'd like to give Mike or any of the guys the benefit of the doubt whenever possible, and- with apologies to the esteemed Dr. Tim and others here- blame it all on lawyers.  But who knows what was at the root of this one?
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« Reply #17 on: September 09, 2006, 12:05:15 AM »

Perhaps so; that could ell be the case; but even if those are the circumstances I got the impression that Mike's arguments could have been much better presented.  Maybe not- maybe there was just no meat on the bone, but along with everything else I thought Mike's guys did a poor job of showing how he had been damaged.

Lawsuits can be rooted in a lot of things- personal enmity, righteous indignation, protection of rights, or just plain ol' money.  I'd like to give Mike or any of the guys the benefit of the doubt whenever possible, and- with apologies to the esteemed Dr. Tim and others here- blame it all on lawyers.  But who knows what was at the root of this one?

At the very least, Mike's lawyers could have filed an opposition to Sanctuary's motion.  "We really meant to oppose it" doesnt fly with most judges.
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« Reply #18 on: September 09, 2006, 05:26:39 AM »

The judge is probably a fan and won't give him any leeway.  Sue Brian Wilson will ya? Why... I oughta!!!
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« Reply #19 on: September 09, 2006, 07:13:51 AM »

At the very least, Mike's lawyers could have filed an opposition to Sanctuary's motion.  "We really meant to oppose it" doesnt fly with most judges.

Maybe Brian's attorneys should advocate for Mike against Mike's own attorneys as Mike did for Brian in a previous suit. Azn
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« Reply #20 on: September 10, 2006, 07:08:25 PM »

Cam, I had the same thought!
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« Reply #21 on: February 17, 2007, 01:28:14 PM »

Bumping up this old topic to report that Mike Love's federal court lawsuit against Brian shrinketh further.

The judge has now (2/9/07) dismissed two more of Mike's remaining claims against Brian, essentially alleging "confusion" and "unfair competition" under the federal Lanham Act and California state law.  Mike's counsel was sanctioned $1000 for filing a put-up affidavit from one of his other clients claiming he had bought the News On Sunday CD and was "confused" it was the BB.  Defense counsel did some homework on Lexis-Nexis and discovered the link between the "consumer" and Mike's lawyer; the court was none too pleased.  Mike himself was criticized first for saying he was a Nevada resident, then claiming in another pleading he was a California resident.  Lawyers who practice in federal court will tell you that kind of self-contradiction is a big mistake.

As the judge said at the end of her opinion, the only remaining claim in "this over-pled case" is where  Mike alleges Brian breached some kind of unwritten partnership agreement regarding the publication of some co-written songs without his permission.

As before, I have a PDF of the opinion which I can send to anyone via PM who wants their eyes to cross.  I know this is a lmited-interest topic but it may be of interest to some folk here.
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« Reply #22 on: February 17, 2007, 03:33:08 PM »

thanks for that Tim - nice to see it appears to be playing out exactly the way it should!
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« Reply #23 on: February 17, 2007, 04:51:37 PM »

Thanks for the update Tim.  Sounds like Mike's counsel is in some hot water, and rightfully so.  Allowing pleadings that allege Mike's citizenship in 2 different states?  No excuse for that.  Even worse is the affadavit that his counsel pretty much "manufactured".  I wouldn't be surprised if he ends up with a Rule 11 sanction for that one.  Doesn't sound like the last claim will fly either...an agreement with no documentation is pretty tough to prove.

If you get a chance, I'd like a copy of that PDF.  Thanks!
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« Reply #24 on: February 19, 2007, 11:22:31 AM »

Just in: The ghost of Murray Wilson is suing Mike Love for the use of his song "Two Step Side Step", and changing the words to "Two Wave Side Surf". Meanwhile, the ghost of Dennis Wilson has hooked up with Janis Joplin and Carl is playing poker with Elvis on the moon.
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