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UNITED STATES DISTRICT COURT

IN THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
HARRY BALK,
Plaintiff,
v.

Case No. 14-11767

Dist. Judge: Hon. Laurie J. Michelson

CLARENCE AVANT and

INTERIOR MUSIC CORP.,
Defendants,
__________________________________________________________________/
INTERIOR MUSIC CORP.,
Third-Party Plaintiff,
v.
SIXTO RODRIGUEZ,
Third-Party Defendant.
_________________________________________________________________/

DEFENDANT INTERIOR MUSIC CORP.S

RESPONSE IN OPPOSITION TO SIXTO RODRIGUEZS
MOTION FOR PARTIAL SUMMARY JUDGMENT

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TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii
ISSUES PRESENTED............................................................................................. iii
INTRODUCTION .....................................................................................................1
INTERIORS COUNTER-STATEMENT OF MATERIAL FACTS .......................3
INTERIORS AFFIRMATIVE STATEMENT OF ADDITIONAL
MATERIAL FACTS REQUIRING DENIAL OF RODRIGUEZS
MOTION FOR SUMMARY JUDGMENT ..............................................................5
Additional Facts Relating to Count I .....................................................................5
Additional Facts Relating to Count II ....................................................................7
ARGUMENT ...........................................................................................................10
I.

II.

THE COURT SHOULD DENY RODRIGUEZS MOTION FOR

SUMMARY JUDGMENT AS TO COUNT I OF THE TPC
(BREACH OF CONTRACT - WARRANTIES AND
REPRESENTATIONS) ..............................................................................10
A.

Rodriguezs Motion is Procedurally Defective .................................10

B.

Interiors Claim for Breach of Warranty Did not Accrue in 1970 ....12

THE COURT SHOULD DENY RODRIGUEZS MOTION FOR

SUMMARY JUDGMENT ON COUNT II OF THE TPC
(BREACH OF CONTRACT -- FAILURE TO COOPERATE) ................14

III. SECTION 13 OF THE ESCA IS NOT AN EXCLUSIVE

REMEDY PROVISION .............................................................................20
CONCLUSION ........................................................................................................23

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TABLE OF AUTHORITIES
Cases

Page(s)

Accord Pioneer Inv. Servs. Co. v. Brunswick Associates Ltd. P'ship,

507 U.S. 380, 396 (1993).................................................................................... 16
Assoc. Gen. Contractors of Amer. v. City of Columbus,
147 F. Supp. 2d 864 (S.D. Ohio 2001) ............................................................... 12
Douglas v. Cty. of Jackson,
804 F. Supp. 944 (E.D. Mich. 1992) .................................................................. 14
Mead Corp. v. ABB Power Generation, Inc.,
319 F.3d 790 (6th Cir. 2003) .............................................................................. 21
Muskegon Cent. Dispatch 911 v Tiburon, Inc.,
462 Fed. Appx. 517 (6th Cir. 2012).................................................................... 21
People v. Konrad,
449 Mich. 263 (1995) ......................................................................................... 16
Pioneer Inv. Servs. Co. v. Brunswick Associates Ltd. Pship,
507 U.S. 380 (1993) ............................................................................................ 16
S. Elec. Corp. v. Utilities Bd. of City of Foley, Ala.,
643 F. Supp. 2d 1302 (S.D. Ala. 2009) .............................................................. 11
In re Settlement Facility Dow Corning Trust,
2012 WL 4711725 (E.D. Mich. Sept. 28, 2012) ................................................ 16
Short v. Hollingsworth,
291 Mich. 271 (Mich. 1939) ............................................................................... 21
Wade v. Life Ins. Co. N. Am.,
245 F. Supp. 2d 182 (D. Me. 2003) .................................................................... 11
Rules
Federal Rule of Civil Procedure 56 ...............................................................1, 11, 14
Other Authorities
Article III of the U.S. Constitution .................................................................iv, 1, 11
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ISSUES PRESENTED
1.
Should the Court DENY Rodriguezs motion for summary judgment
on Interiors claim for breach of warranty; where:
Rodriguez is seeking an advisory opinion based on hypothetical facts,
which is impermissible under both the Federal Rules of Civil
Procedure and Article III of the U.S. Constitution; and
Even addressing the merits, Rodriguez cannot establish that the breach
of warranty claim could have accrued in 1970?
Interior answers yes.
2.
Should the Court DENY Rodriguezs motion for summary judgment
on Interiors breach of contract claim for Rodriguezs failure to cooperate with
Interior, per the requirements of the ESCA; where the undisputed evidence shows
that Rodriguez, through his agents, attorney Levinsohn and consultant Martin,
aided, abetted, and colluded with Balk and his counsel both before and after the
filing of this action, and ignored express requests by Interior for his cooperation?
Interior answers yes.
3.
Should the Court DENY Rodriguezs request for an order limiting
Interior to remedies available pursuant to the 13 indemnification clause of the
ESCA; where:
The ESCA does not state that 13 is the exclusive remedy available
under the agreement;
Section 13, by its terms, applies only to third-party claims brought
against Interior; and
The ESCA expressly envisions independent claims being brought by
Interior against Rodriguez and provides for remedies apart from 13?
Interior answers yes.

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INTRODUCTION
In its Third-Party Complaint (TPC) against Sixto Rodriguez, Interior Music
Corp. (Interior) alleges claims for breach of Rodriguezs warranty in his Exclusive
Songwriter and Composer Agreement (ESCA) with Interior that the compositions
he provided would be free, for all time, of any adverse claims (Count I); for breach
of his obligations under the ESCA to cooperate with Interior regarding any
controversy which may arise or litigation which may be brought concerning the
compositions he provided (Count II); and for indemnification under 13 of the
ESCA as to Plaintiff Balks claims against Interior. Rodriguez moves for partial
summary judgment. His motion should be denied.
As to Interiors Count I for Rodriguezs breach of his warranty that the
compositions will be free for all time of any adverse claims, Rodriguez concedes he
made such representations. But, he argues that if Plaintiff Balk succeeds in
establishing that Defendants . . . knew from the inception of the ESCA that Rodriguez
was making a made a faulty warranty, then the cause of action accrued . . .[in 1970],
and the statute of limitations would have expired six years later. (Rodriguez Brf. at
7.) That, however, is not a request for summary judgment; it is a request for an
advisory opinion as to facts that Balk may or may not establish in the future. Federal
Rule of Civil Procedure 56 does not authorize such an advisory ruling, which is also
prohibited under Article III of the U.S. Constitution.
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Further, even if the ruling Rodriguez seeks were not procedurally barred, his
request would still have to be denied. The evidence is undisputed that Rodriguez
could not have been in breach of his warranty in 1970 because, in 1969, he sent Balk
a Notice of Rescission of, inter alia, the 1966 Songwriter Agreement. Interior was
provided a contemporaneous copy of that Notice. Rodriguez then represented in
writing that he was free to enter into an agreement with Interior. And, the evidence is
undisputed that neither Balk nor Gomba asserted a claim then -- waiting until 2014.
Interior had no basis to sue Rodriguez for breach of warranty in 1970 (or at any time
prior to Balks assertion of his claim). As to Count I, Rodriguezs motion is both
procedurally and substantively flawed and should therefore be denied.
As to Count II for Rodriguezs breach of his obligation to cooperate with
Interior, Rodriguez argues that he cooperated by appearing for his deposition and
responding to discovery requests. But, there is conclusive documentary evidence
demonstrating that Rodriguez not only failed to cooperate with Interior, but that his
failure to cooperate extended to actively aiding and abetting Balk in the conception
and prosecution of Balks claims even going so far as helping to draft Balks
pleadings.
Finally, Rodriguez argues that because Section 13 of the ESCA authorizes
Interior to withhold royalties in the event of a third party claim, Section 13 also limits
Interior to that remedy and precludes a separate monetary recovery against him
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personally. (Rodriguez Brf. at 8-10.) But, under Michigan law contractual remedies
are deemed cumulative unless the contract expressly says that they are exclusive.
The remedies provided in 13 are permissive; and nowhere does the ESCA state that
Interiors sole remedy is to withhold royalties. Moreover, the language of 13
specifically limits its application to third-party claims brought against Interior it
does not govern remedies for affirmative claims that Interior might bring against
Rodriguez for breaches of his contract with Interior. Accordingly, Rodriguezs
motion should be denied in its entirety.
INTERIORS COUNTER-STATEMENT OF MATERIAL FACTS
Rodriguez did not number the paragraphs in the Facts and Proceedings
section of his brief. For ease of reference, Interior will number these paragraphs from
Rodriguezs brief, for purposes of this response, as paragraphs 1 through 6.
Par. 1: Entire paragraph.
Response: Paragraph 1 is pure attorney argument, containing no citations to
any documents of record or any other competent evidence, and should be disregarded.
Specific Dispute: Rodriguez allegedly authored the songs over 40 years
ago, and they were credited to his brother on a record label owned by
Clarence Avants company, Interior Music.
Response: Only six of the songs on Cold Fact were credited to Jesus
Rodriguez. Four others were credited to Sixth Prince as the author. (Ex. 1, Cold
Fact album label.) Moreover, Sussex Records, not Interior, produced the record.

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There is no evidence that Sussex Records was owned by Interior or had any formal
affiliation with Interior.
Par. 2: Entire paragraph.
The entirety of 2 is a characterization of what allegedly is stated in Balks
Second Amended Complaint (the SAC). The document speaks for itself, and
Interior would refer the Court to the SAC to determine what Balk has alleged
allegations that Interior disputes.
Par. 3: Entire paragraph.
Response: The entirety of 3 is a characterization of what is allegedly stated
in the SAC and the TPC. Interior would refer the Court to those pleadings to
determine what has been alleged. Going further, Interior alleges that Rodriguez is
liable under 13 of the ESCA not only for any damages that may be awarded to Balk,
but also for Interiors fees and costs in defending this matter. The TPC also asserts
affirmative claims for breach of contract under which Rodriguez may be
independently liable to Interior. (Ex. 2, ESCA.)
Par. 4: Entire paragraph.
Response: The entirety of paragraph 4 is merely a characterization of what
allegedly is stated in the TPC. That document speaks for itself, and Interior would
refer the Court to the TPC to determine what Interior has alleged.
Specific Dispute: Interior alleged that Rodriguez failed to cooperate in the
defense of the underlying litigation and that Rodriguez colluded with
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plaintiff against Interior.

Response: Rodriguezs obligation was to cooperate with Interior when any
claim was presented against Interior with respect to the songs, which would have
included pre-litigation cooperation, once Interior received a demand letter in 2013.
Par. 5: Entire paragraph.
Response: Interior does not dispute the facts stated in 5. Interior adds,
however, that in authorizing alternate service, the Court found that Rodriguez had
been evading service. (Ex. 3, Opinion and Order, [Dkt. No. 19]). Rodriguez also
refused to authorize his attorney to accept service and or to even provide Rodriguezs
correct address. (Ex. 4, Email of Levinsohn to Salomon, dated June 26, 2014.)
Par. 6: Entire paragraph.
Response: Interior does not deny that Rodriguez is seeking summary judgment
on Counts I and II of the TPC. Interior maintains, however, that Rodriguez is not
entitled to summary judgment on either count.
INTERIORS AFFIRMATIVE STATEMENT OF
ADDITIONAL MATERIAL FACTS REQUIRING DENIAL OF
RODRIGUEZS MOTION FOR SUMMARY JUDGMENT
Interior submits the following additional facts for consideration by the Court in
opposition to Rodriguezs motion for summary judgment.
Additional Facts Relating to Count I
9.

Nearly a year prior to the 1970 release of Cold Fact, Avant received a

letter from Rodriguezs attorney, Robert McCall, detailing the various ways in which
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Balk had failed to perform, and was not performing, under any of his companys
contracts with Rodriguez. McCall asked Avant to have his companys attorneys
review those agreements and give their opinion. (Ex. 5, Letter dated Apr. 30, 1969.)
10.

On May 8, 1969, Avant wrote to McCall informing him that his

companys attorneys had reviewed the Balk contracts and advised Avant that the
contracts were worthless. (Ex. 6, Letter dated May 8, 1969.)
11.

On May 28, 1969, McCall sent Balk, with a copy to Avant, a Notice of

Rescission executed by Rodriguez, rescinding, inter alia, the Songwriter Agreement

due to breach based on non-performance and/or impossibility of performance.
(Ex. 7, Letter and Notice of Rescission, dated May 28, 1969).
12.

There is no evidence in the record that at any time in the following ten

months before the March 26, 1970 release of the Cold Fact album on March 26,
1970, did Balk or Jobete take any legal action to challenge Rodriguezs express,
written rescission of the Songwriter Agreement.
13.

There is no evidence in the record that Jobete has ever made a claim

asserting ownership of the Cold Fact compositions at any time.

14.

Balk admits he did nothing in terms of making any claim asserting

ownership of the Cold Fact compositions prior to 2013, and there is no evidence that
he did so.

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Additional Facts Relating to Count II

(Discussed in Greater Detail in the Argument)
15.

In 2013, Rodriguez hired Joel Martin and attorney Mark Levinsohn as

his agents to represent him with respect to, inter alia, his
rights, interests and entitlements with respect to [his] musical compositions and
recordings, including possible recovery of copyrights and/or royalties for the
prior use and exploitation thereof, as well as potential re-negotiation and
improvement of existing contracts.
(Ex. 8, Martin Engagement Letter dated January 2, 2013; Ex. 9, Levinsohn
Engagement Letter dated January 2, 2013) (each containing this provision).
16.

In the ensuing months, Rodriguezs agents Martin and Levinsohn

worked closely with lawyers for Harry Balk/Gomba, Inc., assisting them in crafting
and presenting their claims against Interior and Avant with respect to the
compositions Rodriguez provided. (See, e.g., Ex. 10, Levinson email to Busch, with
draft letter attached, dated May 6, 2013; Ex. 11, Finalized letter from Busch to
Passman, dated May 8, 2013).
17.

Also, when Interiors counsel asked Rodriguez lawyer, Levinsohn, for

documents, Balks lawyer responded by sending Interiors counsel documents that

could only have come from Rodriguez because they were 1960s correspondence
between Rodriguezs former counsel and Avant. (Ex. 12, email chain on July 11 and
12, 2013, see p. 3 of 4.)
18.

Further, the documents Balks counsel provided in response to Interiors

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request to Rodriguez were heavily redacted. (Ex. 13, redacted documents.) When
Interiors counsel asked for unredacted versions because the redactions of the letters
are so extensive were not able to evaluate their effect. (Ex.12, Passman email to
Andrew W. Coffman dated July 12, 2013). Rodriguez lawyer, Levinsohn responded,
refusing to cooperate by providing unredacted materials:
If your client wants to know what else is contained in these and other
documents that he wrote or signed, I suggest he should find them in his own
files.
When Interiors counsel persisted in again asking for the unredacted documents,
Levinsohn again refused to provide them, telling Interiors counsel that you are free
to form your own impressions. . . . Id. Clearly, however, Rodriguez had
unredacted versions of those documents, as both he and Martin later produced
unredacted versions in response to discovery requests served by Interior. (See, e.g.,
Ex. 14, unredacted versions of documents, ultimately produced by Rodriguez.)
19.

On March 25, 2014, Rodriguezs lawyer, Levinsohn, even drafted a

letter for Balks lawyer to send to Interior, reiterating Gombas claim that it was the
rightful owner of the Cold Fact compositions and advising, as in the previous letter,
that Interior and Avant must cease and desist from any further exploitation of the
compositions. Rodriguezs lawyer also followed up with an email to Balks lawyer
suggesting minor changes. (Ex. 15, Levinsohn email to Martin and Busch, dated
March 25, 2014). The next day, a verbatim copy of the draft letter written by
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Rodriguez lawyer was put on the letterhead of Balks lawyer, signed by Balks
lawyer and sent to Interiors lawyer. (Ex. 16, Busch letter to Passman dated March
26, 2014).
20.

Levinsohn and Martin also reviewed, commented on and/or drafted parts

of the Complaint that Balk then filed in this Court two weeks later. (Exs. 17 and 18,
Busch email dated April 19, 2014, with draft complaint attached; Email chain dated
April 20, 2014; Complaint [Dkt. 1])
21.

On May 19, 2014, Interiors counsel wrote to Rodriguez counsel and,

among other things, reminded him that:

Pursuant to paragraph 13 of the [ESCA], your client is required to cooperate
fully with Interior Music in any litigation concerning our clients rights in
compositions subject to the Agreement. Please consider this letter our clients
request that your client do so. Please advise us by the close of business on
Wednesday whether or not your client intends to comply with his obligations
under the [ESCA].
(Ex. 19, Salomon letter to Levinsohn dated May 19, 2014).
22.

Rodriguez and his lawyer never responded to Interiors demand that

Rodriguez cooperate. Instead Rodriguez, through his consultant and lawyer,

continued to assist Balks counsel in prosecuting Balk/Gombas claims against
Interior and Avant, and, e.g., participated in the drafting and review of Balk and
Gombas amended complaint against Interior and Avant. (Ex. 20, June 26 and 27,
2014 email chain, showing Levinsohn and Martin deeply involved in finalizing
Balks SAC).
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23.

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After Interior filed its TPC against Rodriguez, Rodriguez evaded service

of the summons and complaint. Rodriguez lawyer also advised Interior that
Rodriguez declined to authorize him to accept service and Levinsohn refused to
reveal Rodriguezs address. (Ex. 4, emails between Salomon and Levinsohn dated
June 26, 2014). Interior was required to obtain an order for alternate service from the
Court. (See Ex. 3, Order Granting Motion for Alternate Service.) Until the Court
obtained jurisdiction over him via alternate service, Rodriguez in no way cooperated
with Interior. And, from that point on, his cooperation amounted to nothing more
than complying with his legally compelled discovery obligations.
ARGUMENT
I.

THE COURT SHOULD DENY RODRIGUEZS MOTION FOR

SUMMARY JUDGMENT AS TO COUNT I OF THE TPC
(BREACH OF CONTRACT - WARRANTIES AND
REPRESENTATIONS)
A.

Rodriguezs Motion is Procedurally Defective

It is undisputed that in the 1970 ESCA, Rodriguez, represented by counsel at

the time, warranted that all compositions he provided would be free and clear of any
and all claims, rights and obligations whatsoever. (Ex. 2, 5.) See also Id. at 3
(emphasis added): Writer does hereby represent that [the compositions] are and
shall at all times be Publishers sole and exclusive property as the sole owner
thereof, free from any adverse claims or rights therein by any other person, firm or
corporation.
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Rodriguez seeks a contingent summary judgment ruling, arguing that if Balk

prevails in establishing that Interior knew of the falsity of the warranty at the time it
was given, then Interiors claim for breach of this warranty would be barred by
Michigans 6-year breach of contract statute of limitations. (Docket #81 at 7).
Rodriguez request is both procedurally improper and substantively unsustainable.
Federal Rule of Civil Procedure 56 does not authorize an advisory ruling based
on facts that might, or might not, be established at a later date. In S. Elec. Corp. v.
Utilities Bd. of City of Foley, Ala., 643 F. Supp. 2d 1302, 1313 (S.D. Ala. 2009)
(emphasis added), the court rejected the plaintiffs attempt to obtain an advisory
ruling under similar circumstances, stating,
the . . . partial judgments that SEC requests would not be, if granted,
judgments at all. If the court were to issue such judgments, it would simply
be pronouncing its interpretation of the law based on hypothetical facts. Rule
56 is appropriate when there is no genuine issue as to any material fact. It
is not a vehicle for obtaining an advisory ruling based on facts that the
moving party may, or may not, establish at a later date. The motion,
therefore, is DENIED insofar as SEC asks the court to rule that it would be a
breach of warranty if SEC could prove that the project could not be built
according to certain specifications and insofar as SEC asks the court to rule
that, if it proves a breach of warranty, it may recover all damages
proximately resulting from the breach.
Indeed, Article IIIs case or controversy requirement prohibits Courts from
issuing advisory rulings, on summary judgment or otherwise. Wade v. Life Ins. Co. N.
Am., 245 F. Supp. 2d 182, 188 (D. Me. 2003) (Defendant's request for partial
summary judgment... represents nothing more than a request for an advisory opinion.
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The Court lacks the power under Article III to issue such an opinion and, therefore,
declines to do so.) See also Assoc. Gen. Contractors of Amer. v. City of Columbus,
147 F. Supp. 2d 864, 871 (S.D. Ohio 2001) (citations omitted):
a court's judgment must resolve a real and substantial controversy admitting
of specific relief through a decree of a conclusive character, as distinguished
from an opinion advising what the law would be upon a hypothetical set of
facts.
Rodriguezs ifthen argument regarding the timeliness of the breach of
warranty claim is a procedurally and constitutionally improper request for an advisory
ruling. It must therefore be rejected.
B.

Interiors Claim for Breach of Warranty Did not Accrue in 1970

As set forth above, this Court cannot grant Rodriguezs request for an advisory
ruling. Thus, the Court need not address the merits of his motion to dismiss Count I.
In any event, however, Rodriguez fails to establish on the merits his entitlement to
summary judgment.
Without any meaningful analysis, Rodriguez asks the Court to rule that if
Avant and Interior were on notice from the inception of the ESCA in 1970 that
Rodriguez was making a faulty warranty, then the statute of limitations on the
breach of warranty accrued at that time (Dkt. No. 81 at 7). Exactly what facts would
constitute Interiors knowledge of a faulty warranty are never spelled out in
Rodriguezs motion and are, instead, left to the readers imagination.
Moreover, Rodriguez ignores the undisputed facts demonstrating that
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Rodriguez had both rescinded his contracts with Balk and represented and warranted
he was free to enter into the ESCA (Addl SOF 11, Ex. 7)); the undisputed fact that
Interiors lawyers concluded Gombas 1966 agreement with Rodriguez was
worthless (Addl SOF 10, Ex. 6); and the undisputed fact that neither Balk nor
Jobete took any legal action to challenge the rescission. Between Rodriguezs May
28, 1969 Notice of Rescission and his March 2, 1970 ESCA with Interior, no legal
challenge to Rodriguez rescission was brought by Balk, Jobete, or anyone else.
Indeed, no legal challenge was made to the ownership of the Cold Fact compositions
until 2014, when Balk filed this case.
Given the unchallenged Notice of Rescission; Balks failure to assert a claim;
and Avants counsels conclusion that Gombas agreement was worthless, Interior
could not have reasonably known in 1970 that Rodriguez was in breach of his
warranty. Indeed, Interior had no basis to sue Rodriguez for breach of warranty at
least until Balk filed this case and, for the first time, asserted his claim to ownership
of the compositions. Further, only upon a judicial determination that the Notice of
Rescission is invalid and, therefore, that Jobete or Balk have a viable claim, could a
breach of the warranty of title contained in 5 of the ESCA (or of the representations
contained in 3) actually occur; and no such determination has been made as of this
writing. Therefore, the six-year accrual period for any claim of breach of warranty

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has not yet started to run and, if Balk were to prevail, would start to run on that date. 1
II.

THE COURT SHOULD DENY RODRIGUEZS MOTION FOR

SUMMARY JUDGMENT ON COUNT II OF THE TPC
(BREACH OF CONTRACT -- FAILURE TO COOPERATE)

Under Rule 56(c), summary judgment may be granted

if the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.
Rodriguez has failed to satisfy these requirements. Moreover, [t]he movant bears the
burden of demonstrating the absence of all genuine issues of material fact. Douglas v.
Cty. of Jackson, 804 F. Supp. 944, 94748 (E.D. Mich. 1992).
Rodriguez has done little more than announce that he must have cooperated in
the litigation because he showed up for his deposition and responded to discovery
requests (Rodriguez Brf. at 5-6), which he was legally compelled to do. But, the mere
fact that Rodriguez did not act in contempt of legal process in no way impacts the
substance of Interiors claim against Rodriguez for failing to cooperate with Interior
and, in fact, colluding with Balk against Interior outside of the formal proceedings, as
conclusively shown by the evidence cited in the Additional Statement of Material
Facts (paragraphs 15-22) and the argument below.

In the TPC, Interior disputes Balks assertions that he owned the Cold Fact
compositions. Interior asserted a breach of warranty claim against Rodriguez only
because, at that point in the proceedings, the Balk allegations had to be accepted as
true. (TPC [Dkt. No. 11], 25.)
14
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Rodriguez cites in his deposition testimony that, in a coincidental conversation

with Balk in 2008, they did not discuss colluding. (Rodriguez Brf. at 6, citing
Rodriguez Dep. at 89-92.) But, Rodriguezs testimony as to one conversation in 2008
does not refute the substantial and undisputed evidence that Rodriguez colluded with
Balk five years later, in 2013-14. In contrast to Rodriguezs paltry showing, the facts
set forth in paragraphs 15-22 of the Counter-Statement of Facts conclusively establish
Rodriguezs breach of the ESCA.2
On or about January 2, 2013, Rodriguez engaged Joel Martin to act as
a consultant for the initial purpose of advising you in connection with your
rights, interests and entitlements with respect to your musical compositions
and recording, including possible recovery of copyrights and/or royalties
for the prior use and exploitation thereof, as well as potential renegotiation and improvement of existing contracts.
(Ex. 8, Martin Engagement Letter dated January 2, 2013). The engagement letter
stated that Rodriguez intended to hire Levinsohn Associates, P.C., as his
transactional attorney with respect to this matter. Id., 4. Rodriguez did, in fact,
engage Levinsohn, executing an agreement with the firm on or about the same day he
executed the agreement with Martin. (Ex. 9, Levinsohn Engagement Letter dated
January 2, 2013.) Thus, from January 2, 2013 going forward, Rodriguez, through his
agents, Martin and Levinsohn, actively colluded with Balk in pursuing claims against
Interior. In agency law, the principal and his agent share a legal identity; it is a
2

The documents cited by Defendants are all in Rodriguezs possession; and Rodriguez was
represented by counsel at the deposition of Joel Martin, where most of them were submitted
as exhibits.

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fundamental rule that the principal is bound and liable for, the acts of his agent done
with the actual or apparent authority of the principal. People v. Konrad, 449 Mich.
263, 280281 (1995) (citations omitted).3
In the ensuing months, Rodriguez lawyer and consultant, Levinsohn and
Martin, worked closely with Balks lawyers, assisting them in crafting and presenting
their claims against Interior and Avant. For example, on May 6, 2013, Rodriguez
lawyer drafted a letter for Balks lawyer to send to Interiors lawyer, asserting that
Gomba owned the Cold Fact compositions and accusing Avant of having participated
in the false attribution of the Cold Fact compositions contentions that were (and
are) at the heart of the Balks suit against Avant and Interior. (Ex. 10, Levinsohn
email to Busch, with draft letter attached, dated May 6, 2013). On May 8, 2013,
Balks lawyer sent Interiors lawyer a virtual carbon copy of the draft letter that
Rodriguez lawyer drafted. (Ex. 11, Letter from Busch to Passman dated May 8,
2013). Rodriguezs agents were working directly against Interior in the dispute with
Balk regarding the Cold Fact compositions.
On May 13, 2013, Interiors counsel wrote back to Balks counsel, requesting a

More specifically, a client, having chosen a particular attorney to represent him in a

proceeding, cannot avoid the consequences of the acts or omissions of this freely selected
agent, [and] . . . each party is deemed bound by the acts of his lawyer-agent and is
considered to have notice of all facts, notice of which can be charged upon the attorney. In
re Settlement Facility Dow Corning Trust, 2012 WL 4711725, at *2 (E.D. Mich. Sept. 28,
2012) (citation omitted). Accord Pioneer Inv. Servs. Co. v. Brunswick Associates Ltd.
P'ship, 507 U.S. 380, 396 (1993).

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copy of the Gomba/Rodriguez publishing agreement and a copy of a letter that Busch
referenced in his May 6 correspondence. (Ex. 20, Salomon letter to Busch dated May
13, 2013). On July 11, 2016, Balks counsel responded by sending Interiors counsel
copies of several letters between Avant and Rodriguezs former lawyer, which were
heavily redacted and which Balks counsel could only have gotten from Rodriguez.
(Ex. 12, email chain on July 11 and 12, 2013, see p. 3 of 4; Ex. 13, redacted
documents). Interiors counsel emailed Buschs office the following day, with
Rodriguezs counsel ccd, requesting unredacted materials and noting, among other
things, that the redactions of the letters are so extensive were not able to evaluate
their effect. Id. (Passman email to Andrew W. Coffman dated July 12, 2013, p. 2 of
4). Rodriguezs counsel responded, snidely refusing to provide the unredacted
materials; first responding:
If your client wants to know what else is contained in these and other
documents that he wrote or signed, I suggest he should find them in his own
files.
In response to a repeated request for the unredacted documents, he refused to
provide them, telling Interiors counsel that you are free to form your own
impressions . . . . Id. Levinsohn thus refused a direct and entirely reasonable
request from Interiors counsel for cooperation from Rodriguez the provision of
unredacted correspondence which would have allowed Interior and its attorneys to
better evaluate the allegations Balk was making regarding the Cold Fact
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compositions. Rodriguez, in fact, produced those unredacted letters many months

later in responding to Interiors discovery requests. (Ex. 14.)
Rodriguezs support and encouragement of Balk and Gomba in their pursuit of
claims against Interior and Avant continued thereafter. On March 25, 2014,
Rodriguezs lawyer prepared another cease-and-desist letter that he sent Balks
lawyer to send to Interior, copying Martin. (Ex. 15, Levinsohn email to Busch dated
March 25, 2014).4 That new draft reiterated Gombas claim that it was the rightful
owner of the Cold Fact compositions and again demanded that Interior and Avant
cease and desist from any further exploitation of the compositions. Id. Rodriguez
lawyer subsequently made changes to the letter based on input provided by Martin
and re-sent the draft to Balks lawyer. Id. The next day, a verbatim copy of the draft
letter was put on the letterhead of Balks lawyers firm and sent to Interior over
Balks lawyers signature. (Ex. 16, Busch letter to Passman dated March 26, 2014).
Rodriguezs agents also participated in reviewing, commenting on and/or
drafting pleadings that Balk eventually filed in this matter. On April 19, 2014, Balks
counsel circulated to Levinsohn and Martin a draft of a complaint against Interior and
Avant, asserting claims based on the same allegations included in the letters
Levinsohn and Martin provided to Balks lawyer to send to Interior; and shared
comments with them about the complaint the following day. (Exs. 17 and 18, Busch

Martins email address is mrsound@54sound.com.

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email dated April 19, 2014, with draft complaint attached; Email chain dated April
20, 2014). Two weeks later, on May 2, 2014, Balks counsel filed the complaint
parroting the allegations Rodriguezs agents had provided.
Remarkably, Rodriguezs assistance to Balk in prosecuting claims against
Interior and Avant continued even after Interior reminded Rodriguez of his
contractual obligation to cooperate with Interior. On May 19, 2014, Interiors
counsel wrote to Rodriguezs lawyer regarding the litigation initiated by Gomba,
stating, among other things:
Pursuant to paragraph 13 of the [ESCA], your client is required to cooperate
fully with Interior Music in any litigation concerning our clients rights in
compositions subject to the Agreement. Please consider this letter our clients
request that your client do so. Please advise us by the close of business on
Wednesday whether or not your client intends to comply with his obligations
under the [ESCA].
(Ex. 19, Salomon letter to Levinsohn dated May 19, 2014).
Rodriguez and his counsel never responded to this letter. Instead, Rodriguezs
agents continued to assist Balk in prosecuting the claims against Interior and Avant.
For example, they participated in the drafting and review of the amended complaint
that Gomba and Balk eventually filed against Interior and Avant. (Ex. 20, June 26
and 27, 2014 email chain). Buschs office circulated a draft amended complaint on
June 26, 2014. Id.5 The following day, Levinsohn and Martins associate Sarah
5

On the same date that Ellis circulated the amended complaint, Salomon asked Levinsohn
if he would accept service of Interiors Third Party Complaint, filed on May 28, 2014. (Ex.
19, emails between Salomon and Levinsohn dated June 26, 2014). Levinsohn would not

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Catlett reviewed the amended complaint and provided their input, resulting in
changes to the pleading. Id. Martin was ccd on these emails as well, and thus
presumably reviewed and weighed in on the contents of the amended complaint.
Gomba and Balk filed the Amended Complaint on June 27, 2014 (Dkt. No. 15).
This evidence conclusively establishes that Rodriguezs actions via his agents
were the antithesis of cooperation with Interior with respect to Balks claims. They
rejected Interiors direct request for information that would have assisted Interior in
evaluating Gombas claims, and Rodriguezs agents, Levinsohn and Martin, actively
colluded with counsel for Gomba and Balk in preparing and prosecuting their claims
against Interior. Far from cooperating, they continued to actively collude with Balk
even after Interior directly demanded that Rodriguez comply with his obligation to
cooperate under the ESCA. This evidence mandates the denial of Rodriguezs
request for summary judgment on Interiors failure to cooperate claim.
III.

SECTION 13 OF THE ESCA IS NOT AN EXCLUSIVE REMEDY

PROVISION

As his final argument, Rodriguez asks the Court for an order limiting Interiors
remedies to those provided for in 13 of the ESCA (Dkt. No. at 8). Rodriguez does
not contest that Interiors indemnification obligation under 13 remains in force
(Dkt. No.81 at 9). Instead, he asks the Court to interpret 13 as providing Interiors
exclusive remedy for Rodriguezs breach of the ESCA, regardless of whether the
accept service and would not even confirm Rodriguezs home address to permit Interior to
serve Rodriguez. Id.

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claim against him is brought under 13 of the ESCA itself or some other provision of
the ESCA, such as a breach of warranty claim arising under 5. Id. at 9. However,
Interiors permissive right to withhold royalties under 13 in anticipation of potential
liability to Balk, does not preclude interior from recovering a monetary award against
Rodriguez.
Rodriguezs argument that Interior cannot obtain a monetary recovery against
him because 13 is silent regarding a separate money judgment against Rodriguez,
(id. at 10), is simply wrong. Under Michigan law, all contractual remedies remain
available to a party unless it is clear that the intention of the parties was to make a
particular contractual provision the exclusive remedy. Muskegon Cent. Dispatch 911
v Tiburon, Inc., 462 Fed. Appx. 517, 526 (6th Cir. 2012) (finding that there was no
language in the parties contract expressly limiting the parties to particular remedies;
thus the remedy stated in the agreement was not exclusive); citing Short v.
Hollingsworth, 291 Mich. 271, 274 (Mich. 1939). See also Mead Corp. v. ABB
Power Generation, Inc., 319 F.3d 790, 796 (6th Cir. 2003) (where a contract fails to
expressly exclude the owner's common law remedies, or to limit plaintiff's remedies
to those expressly stipulated in the contract, all remedies remain available.)
First, Rodriguez mischaracterizes the ESCA by claiming that 13 controls
Rodriguezs putative liability to Interior in the event of any litigation . . . .
(Rodriguez Brf. at 9)(emphasis added). That is simply false. Instead, 13 refers
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solely to third-party claims against Interior: If a claim is presented against

Publisher in respect of any musical composition hereunder . . . the indemnification
obligation is triggered. Thus, 13 is applicable solely to third-party claims brought
against Interior, and not to claims that Interior might bring against Rodriguez.
Second, 13 is permissive in authorizing Interior to withhold royalties in the
event of a third-party claim, in anticipation of potential liability to a third-party.
There is nothing in the ESCA stating that 13 is Interiors exclusive remedy,
precluding a monetary award against him.
Third, Rodriguez ignores that Interior has asserted affirmative claims against
him for breaches of his contract, to which 13 simply does not apply. Nowhere does
the ESCA expressly or even implicitly provide that Interiors remedies for
Rodriguezs breaches of his contract are subject to or limited by 13.6
While Interior maintains its right to the remedies available under the 13
indemnification provisions as to Balks claims -- including the right to withhold
royalties that does not limit Interiors right to a monetary recovery from Rodriguez
personally. Accordingly, Rodriguezs motion should be denied.
6

Indeed, under 20 of the ESCA, Interior is entitled to recover its costs and attorney fees
in any action brought by Interior against Rodriguez in which Interior prevails. Given that
13 already provides for Interiors recovery of costs and attorney fees, 20 would be
rendered superfluous if 13 were read to apply to anything other than third-party claims
against Interior. Moreover, while 20 permits costs and fees to be awarded on Interiors
claims against Rodriguez which under the American Rule must be specifically provided
for nothing in 20, or anywhere else in the ESCA, limits Interiors rights to its standard
remedies, including money damages, on any affirmative claims it has against Rodriguez.

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CONCLUSION
For all the foregoing reasons, the Court should deny Rodriguezs motion for
partial summary judgment as to Interiors Third-Party Complaint.
Respectfully submitted,
JAFFE, RAITT, HEUER & WEISS, P.C.
Dated: August 22, 2016

By:

/s/ R. Christopher Cataldo

Peter M. Falkenstein (P61375)
R. Christopher Cataldo (P39353)
David S. McDaniel (P56994)
535 W. William St., Suite 400S
Ann Arbor, Michigan 48103
(734) 222-4776
pfalkenstein@jaffelaw.com
ccataldo@jaffelaw.com
dmcdaniel@jaffelaw.com
Counsel for Defendant Interior Music Corp.

CERTIFICATE OF SERVICE
I CERTIFY that on August 22, 2016, I filed a copy of the foregoing document
with the Clerk of the Court via the ECF system, which will provide electronic
notice of the filing to all attorneys of record in this case.
Date: August 22, 2016

/s/ Jacqueline D. Delevie

Jacqueline D. Delevie

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