IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

GOMBA MUSIC INC., and 

HARRY BALK, Case No. 14-cv-11767 

 Plaintiffs, District Judge Hon. Laurie J. Michelson 

v. Magistrate Judge R. Steven Whalen 

CLARENCE AVANT 

and INTERIOR MUSIC CORP.,

 Defendants/Third-Party 

Plaintiffs.

__________________________________________________________________/ 

INTERIOR MUSIC CORP., 

 Third-Party Plaintiff, 

v. 

SIXTO RODRIGUEZ, 

 Third-Party Defendant. 

__________________________________________________________________/ 

DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ AMENDED 

COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6)

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1 

Defendants/Third-Party Plaintiffs Clarence Avant (“Avant”) and Interior 

Music Corp. (“Interior,” and together with Avant, “Defendants”), by their 

undersigned counsel, move pursuant to Fed. R. Civ. P. 12(b)(6) for an order 

dismissing with prejudice the Amended Complaint filed by Plaintiffs Gomba Music 

Inc., a company incorporated on June 25, 2014 (“New Gomba”), and Harry Balk 

(“Balk,” and together with New Gomba, “Plaintiffs”), for failure to state a claim upon 

which relief can be granted. In support of the motion, Defendants state the following: 

 1. After the original Complaint failed to state a viable claim for relief, New 

Gomba, now joined by its alleged principal Balk, has filed a somewhat revised 

Amended Complaint that not only fails to cure the fatal defects of the previous 

iteration, but confirms those defects and adds new ones. Plaintiffs assert some new 

and different claims and facts, but have only dug themselves a deeper hole, as it is 

now even clearer that they do not have a valid claim against Defendants. As before, 

Plaintiffs have failed to state a claim on which relief can be granted. Their Amended 

Complaint should, therefore, be dismissed with prejudice under Fed. R. Civ. P. 

12(b)(6). 

 2. It is also now clear that the filing of the original Complaint included an 

attempt to commit a fraud on this Court. This lawsuit focuses on rights in the 

musical compositions on an album by the artist Sixto Rodriguez entitled Cold Fact. 

The Original Complaint, brought on behalf of an apparently no longer existing 

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Gomba Music Inc. (“Old Gomba”), claimed ownership of the copyrights in these 

compositions and alleged in no uncertain terms that the Plaintiff had obtained a 

copyright registration from the U.S. Copyright office for all of the compositions on 

Cold Fact: “Gomba has filed with the Register of Copyrights, and has received a 

certificate of registration for the compositions contained in the album Cold Fact.” 

[Complaint, Dkt. No. 1, ¶ 9 (emphasis added).] Old Gomba, however, failed to 

attach the purported registration certificate to the Complaint, or even identify the 

registration number and date of issuance. Because Defendants’ investigation was 

unable to find any registration for the compositions in the name of Gomba, 

Defendants challenged the veracity of this allegation in their first motion to dismiss 

under Rule 12(b)(6). 

 3. In the Amended Complaint, Plaintiffs have expressly admitted their 

prior misrepresentation regarding the issuance of this non-existent registration. 

Plaintiffs confess, in direct contradiction to the allegation made in the first 

Complaint, that “[c]opyright applications have been filed but registrations have not 

yet been issued.” See Dkt. No. 15, Amended Complaint ¶ 13 (emphasis added). 

(Plaintiffs, however, have once again failed to attach a copy of the application(s) or 

provide any information regarding the alleged application(s)). Plaintiffs have thus 

been forced to withdraw their previously asserted copyright infringement claim. 

 4. While the issue of New Gomba or Old Gomba’s failure to obtain a 

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registration has been flushed out and confirmed, the Amended Complaint raises new 

questions regarding Plaintiffs’ deceptiveness. An entity identified as “Gomba Music 

Inc.” -- alleged to be a “corporation incorporated under the laws of the State of 

Michigan...”, Dkt. No. 1, ¶ 1 -- filed the original Complaint on May 2, 2014, 

claiming rights in the Cold Fact compositions under an agreement entered into with 

Sixto Rodriguez on July 25, 1966 (the “Rodriguez Agreement”). Despite diligent 

inquiry, Defendants could find no record of any Michigan corporation active on May 

2, 2014 called “Gomba Music Inc.” It is now apparent that the reason Defendants 

could find no record of this purported entity is because it did not exist as of that date. 

 5. Information publicly available through the State of Michigan’s website 

demonstrates that there is now one active Michigan corporation bearing the name 

“Gomba Music, Inc.,” and that this entity was incorporated on June 25, 2014 by 

Plaintiffs’ counsel of record in this action – nearly two months after the lawsuit was 

filed and only two days before Plaintiffs filed their Amended Complaint. Exhibit 1, 

Articles of Incorporation for Gomba Music, Inc . Whatever became of the Old 

Gomba that allegedly entered into the agreement with Rodriguez 48 years ago? Its 

corporate existence apparently ceased long ago, as Plaintiffs felt compelled to form a 

new entity with the same name and identify that entity as the Plaintiff in order to 

pursue the claims alleged in the Amended Complaint. Plaintiffs chose not to reveal 

this to the Court or Defendants. 

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6. The newly formed “Gomba Music, Inc.” identified as the Plaintiff in this 

matter, and which is the only extant Gomba, cannot be the Gomba that entered into 

the agreement with Rodriguez 48 years ago, and there are no facts alleged 

demonstrating that New Gomba has any rights in the Rodriguez Agreement. Without 

any demonstrable rights in the Rodriguez Agreement, New Gomba has no basis to 

pursue any of the claims alleged in the Amended Complaint, as they are all 

predicated on the Rodriguez Agreement to which Old Gomba was allegedly a party. 

7. On a motion to dismiss under Rule 12(b)(6), a court is required to accept 

as true all well pleaded factual allegations. As cited in the accompanying brief, 

however, a court is not required to turn a blind eye to obvious contradictions and 

inconsistencies between the allegations of the Complaint and the public record, let 

alone that a newly formed entity is a party to a 48-year old contract. The New 

Gomba Articles of Incorporation, taken together with the allegations of and materials 

attached to the Amended Complaint, demonstrate that New Gomba – the only 

existing “Gomba Music” entity – was not a party to and could not have been a party 

to the 48-year old Rodriguez Agreement. There is nothing alleged in the Amended 

Complaint showing that New Gomba has any rights in the Rodriguez Agreement; and 

without rights in the Rodriguez Agreement, New Gomba cannot pursue any of the 

claims alleged in the Amended Complaint. Accordingly, the Amended Complaint 

should be dismissed in its entirety as to New Gomba pursuant to Fed. R. Civ. P. 

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5 

12(b)(6). 

8. Plaintiffs have also added Balk as a co-plaintiff, but likewise fail to state 

an actionable claim on his behalf. He is alleged to be the sole owner and in control 

of “Gomba,” but he was not a party to the Rodriguez Agreement and thus has no 

individual right to enforce its terms. Further, Michigan law is well-settled that, 

absent an independent duty owed to him, a corporate officer or shareholder lacks the 

capacity to bring suit individually to redress alleged wrongs suffered by the 

corporation. Thus, Balk cannot sue individually to redress any wrong done to Old 

Gomba or New Gomba; and the Amended Complaint contains no allegations 

demonstrating that Balk sustained a cognizable injury based on any duty owed to him 

individually that would permit him to seek enforcement of any alleged rights under 

the Rodriguez Agreement. Therefore, Balk has no basis for pursuing any of the 

claims alleged in the Amended Complaint. Accordingly, the Amended Complaint 

should be dismissed as to Balk as well, pursuant to Rule 12(b)(6). 

9. The Court’s analysis could end there, but there are additional grounds 

for dismissal of each of the claims alleged in the Amended Complaint. In Count I, 

Plaintiffs allege “Fraud on the Copyright Office,” claiming that Defendants registered 

certain Cold Fact compositions with the Copyright Office and submitted false 

information in doing so. While Defendants dispute these allegations, this claim fails 

as a matter of law because it is well established in the case law that there is no private 

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right of action for fraud on the Copyright Office. This form of fraud can be raised as 

an affirmative defense to a claim of copyright infringement, but cannot be brought as 

an affirmative claim, as Gomba attempts to do here. Defendants have, to this point, 

not alleged a claim of copyright infringement, or any other claim for that matter, 

against Plaintiffs. Accordingly, there is no basis for Plaintiffs to assert fraud on the 

Copyright Office, either as an affirmative claim or even as an affirmative defense. 

For this reason, Count I fails to state a claim on which relief can be granted as a 

matter of law and should therefore be dismissed. 

10. Counts II and III of the Amended Complaint mirror the claims alleged in 

Counts II and III of the original Complaint. Count II is a claim for declaratory relief, 

by which Plaintiffs seek a declaration of ownership of all of the Cold Fact

compositions, except for the song “Forget It,” which was the subject of a registration 

by Old Gomba in 1967. Count III is a hodge-podge, three-in-one claim for 

“Fraudulent Concealment/Tortious Interference With Contract and Fraud,” similar to 

Count III alleged in the original Complaint. Plaintiffs assert fraudulent concealment 

in the Amended Complaint in an attempt to avoid dismissal of the underlying fraud 

and tortious interference claims under the applicable statutes of limitation. 

11. Defendants argued in the first 12(b)(6) motion that the 1970 release of 

the Cold Fact record was sufficient to put Old Gomba on notice of the alleged 

fraudulent and tortious conduct of Defendants and, therefore, that the statutes of 

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7 

limitation on Gomba’s substantive claims expired decades ago. Plaintiffs themselves, 

now admit that Old Gomba and Balk were aware of Cold Fact, along with the 

information included on the record’s label, at the time of its release in 1970. 

Plaintiffs also admit that, despite knowledge of the Cold Fact release, Old Gomba 

and Balk did absolutely nothing to investigate whether Old Gomba’s alleged rights 

under the Rodriguez Agreement had been violated. 

12. While these admissions by Plaintiffs alone compel the dismissal of 

Counts II and III as time-barred under the applicable statutes of limitation, there is 

more. Plaintiffs allege that they were deceived because the credits for some of the 

Cold Fact songs listed the songwriter as “Jesus Rodriguez” rather than Sixto 

Rodriguez. While that put them on inquiry notice, they omit that Cold Fact included 

as a “Jesus Rodriguez” song the composition “Forget It,” which Old Gomba itself 

registered for copyright less than three years earlier, identifying the author as Sixto 

Rodriguez. Thus, the very credits Plaintiffs allege Balk reviewed in 1970 showed 

that “Jesus Rodriguez” was credited on a composition Old Gomba and Balk knew 

had been written by Sixto Rodriguez, which clearly put them on notice of a potential 

claim. 

13. Under Michigan’s fraudulent concealment statute, MCL § 600.8555, 

which applies to both Count II and Count III, Plaintiffs had two years from the date 

they either knew or should have known of the existence of their fraud and tortious 

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interference claims to assert those claims in a lawsuit. Here, Plaintiffs clearly knew 

or should have known of the existence of their purported claims well over 40 years 

ago and failed to take action at that time. Having sat on their alleged rights for nearly 

45 years, Plaintiffs are barred from pursuing the claims based on the applicable 

statutes of limitation. 

14. Pursuant to LR 7.1(a), on July 11, 2014, Defendants’ counsel sought 

concurrence in the relief sought herein from Plaintiffs’ counsel, explaining the nature 

of the motion and its legal bases, but Plaintiffs’ counsel stated that they would not 

concur. 

WHEREFORE, Defendants respectfully request that the Court GRANT this 

motion and dismiss with prejudice Plaintiffs’ Amended Complaint for failure to state 

a claim on which relief can be granted. 

Date: July 11, 2014 Respectfully submitted, 

By: /s/ Peter M. Falkenstein 

 Peter M. Falkenstein (P61375) 

 David S. McDaniel (P56994) 

JAFFE RAITT HEUER & WEISS, PC 

201 S. Main St., Suite 300 

 Ann Arbor, Michigan 38104 

 (734) 222-4776 

 pfalkenstein@jaffelaw.com

 Attorneys for Defendants

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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

GOMBA MUSIC, INC., Case No. 14-cv-11767 

 Plaintiff, District Judge Hon. Laurie J. Michelson 

v. Magistrate Judge R. Steven Whalen 

CLARENCE AVANT

and INTERIOR MUSIC CORP.,

 Defendants.

__________________________________________________________________/ 

INTERIOR MUSIC CORP., 

 Third Party Plaintiff, 

v. 

SIXTO RODRIGUEZ, 

 Third Party Defendant. 

__________________________________________________________________/ 

DEFENDANTS’ BRIEF IN SUPPORT OF THEIR MOTION 

TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT 

PURSUANT TO FED. R. CIV. P. 12(b)(6)

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i 

TABLE OF CONTENTS 

Page

TABLE OF AUTHORITIES ....................................................................................... ii

ISSUES PRESENTED ................................................................................................. v

INTRODUCTION ....................................................................................................... 1

STATEMENT OF FACTS .......................................................................................... 2

A. OLD GOMBA FILES SUIT ................................................................... 2

B. NEW GOMBA AND BALK FILE AN AMENDED 

COMPLAINT .......................................................................................... 4

ARGUMENT ............................................................................................................... 8

I THE COMPLAINT SHOULD BE DISMISSED IN ITS 

ENTIRETY AS TO PLAINTIFF GOMBA BECAUSE 

THE AMENDED COMPLAINT CONTAINS NO FACTS 

DEMONSTRATING THAT THE NEWLY FORMED 

GOMBA HAS ANY RIGHTS IN THE RODRIGUEZ 

AGREEMENT ........................................................................................ 8

II. THE COURT SHOULD DISMISS THE AMENDED 

COMPLAINT IN ITS ENTIRETY AS TO PLAINTIFF 

BALK BECAUSE IT ALLEGES NO FACTS 

DEMONSTRATING THAT ANY DUTIES OWED BALK 

AS AN INDIVIDUAL HAVE BEEN VIOLATED ............................. 11

III. THE COURT SHOULD DISMISS COUNT I OF THE 

AMENDED COMPLAINT (FRAUD ON THE 

COPYRIGHT OFFICE) BECAUSE THERE IS NO 

PRIVATE RIGHT OF ACTION TO ASSERT SUCH A 

CLAIM. ................................................................................................. 13

IV. THE COURT SHOULD DISMISS COUNTS II AND III 

OF THE AMENDED COMPLAINT BECAUSE THEY 

ARE TIME-BARRED ........................................................................... 16

CONCLUSION ............................................................................................................ 25

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ii 

TABLE OF AUTHORITIES 

Page(s) 

Cases 

Amini v. Oberlin College, 

259 F. 3d 493 (6th Cir. 2001) ................................................................................. 10 

Ashcroft v. Iqbal, 

556 U.S. 662 (2009) .............................................................................................. 4, 9 

Ashton-Tate Corp. v. Ross, 

728 F. Supp. 597 (N.D. Cal. 1989), aff’d, 916 F.2d 516 (9th Cir. 

1990) ....................................................................................................................... 16 

Barnhart v. Federated Dep’t Stores, Inc., 

2005 U.S. Dist. LEXIS 3631 (S.D.N.Y. Mar. 8, 2005) .......................................... 16 

Bell Atl. Corp. v. Twombly, 

550 U.S. 544 (2007) .................................................................................................. 9 

Blue Cross & Blue Shield of Michigan v. Folkema, 

174 Mich. App. 476 (1988) .................................................................................... 18 

Cambron v. Starwood Vacation Ownership, Inc., 

945 F. Supp. 2d 1133 (D. Haw. 2013) ...................................................................... 9 

Estate of Abdullah ex rel. Carswell v. Arena, 

2014 WL 1304725 (E.D. Mich., March 28, 2014) ................................................. 23 

Directv, Inc. v. Treesh, 

487 F. 3d 471 (6th Cir. 2007) ................................................................................... 9 

Doe v. Roman Catholic Archbishop of Archdiocese of Detroit, 

264 Mich. App. 632 (2004) .............................................................................. 19, 22 

Donald Frederick Evans & Assocs., Inc. v. Continental Homes, 

Inc., 785 F.2d 897 (11th Cir. 1986) ........................................................................ 16 

Esbin & Alter, LLP v. Zappier, 

2011 U.S. Dist. LEXIS 27881 (S.D.N.Y. Mar. 17, 2011) ................................ 15, 16 

2:14-cv-11767-LJM-RSW Doc # 18 Filed 07/11/14 Pg 12 of 41 Pg ID 194
iii 

Fonar Corp. v. Domenick, 

105 F.3d 99 (2d. Cir. 1997) .................................................................................... 15 

Int'l Ass'n of Machinists & Aerospace Workers v. Tennessee Valley 

Auth., 

108 F.3d 658 (6th Cir. 1997) .................................................................................. 17 

James v. Logee, 

150 Mich. App. 35 (1986) ...................................................................................... 18 

Kwan v. Schlein, 

2008 U.S. Dist. LEXIS (S.D.N.Y. Oct. 30, 2008) .................................................. 15 

Lemson v. General Motors Corp., 

66 Mich. App. 94 (1975) .................................................................................. 19, 24 

Lennon v. Seaman, 

84 F. Supp. 2d 522 (S.D.N.Y. 2000) ...................................................................... 15 

Malibu Media, LLC v. Doe 1, 

2013 WL 5603275 (D. Md. Oct. 10, 2013) ............................................................ 16

McNaughten v. Rockford State Bank, 

261 Mich. 265 (1933) ............................................................................................. 23 

Meathe v. Ret, 

547 Fed. Appx. 683 (6th Cir. 2013) ........................................................................ 13 

Michigan Nat. Bank v. Mudgett, 

178 Mich. App. 677 (1989) .................................................................................... 13 

Moll v. Abbott Laboratories, 

444 Mich. 1 (1993) ................................................................................................. 23 

Nearstar, Inc. v. Waggoner, 

2011 WL 817374 (E.D. Tex. Mar. 2, 2011) ........................................................... 16

Prentis Family Found. v. Barbara Ann Karmanos Cancer Inst., 

266 Mich. App. 39 (2005) ...................................................................................... 19 

Servo Kinetics, Inc. v. Tokyo Precision Instruments Co. Ltd., 

475 F.3d 783 (6th Cir. 2007) .................................................................................. 11 

2:14-cv-11767-LJM-RSW Doc # 18 Filed 07/11/14 Pg 13 of 41 Pg ID 195
iv 

Sprewell v. Golden State Warriors, 

266 F. 3d 979 (9th Cir. 2001) ................................................................................... 9 

Toledo Museum of Art v. Ullin, 

477 F. Supp. 2d 802 (N.D. Ohio 2006) .................................................................. 17 

Walker v. Gen. Tel. Co., 

25 Fed. App'x 332 (6th Cir. 2001) .......................................................................... 13 

Rules 

Fed. R. Civ. P. 12(b)(6) .................................................................................... 2, 4, 9, 25 

Statutes 

17 U.S.C. § 506(e) ....................................................................................................... 16 

M.C.L. § 600.5805(10) ................................................................................................ 18 

M.C.L. § 600.5813 ....................................................................................................... 18 

M.C.L. § 600.5855 ................................................................................................ passim

MCL § 450.1911 ............................................................................................................ 5 

Other Authorities 

http://www.dleg.state.mi.us/bcs_corp/sr_corp.asp ........................................................ 5 

Patry on Copyright § 17:126 ....................................................................................... 16 

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v 

ISSUES PRESENTED 

I. Should the Court dismiss the Amended Complaint in its entirety as to 

Plaintiff Gomba Music, Inc., where public records show that the 

company was incorporated on June 25, 2014, just two days before the 

filing of the Amended Complaint, and there are no allegations in the 

Amended Complaint demonstrating that the company has standing to 

assert any of the claims alleged in the Amended Complaint? 

Defendants answer “yes.” 

II. Should the Court dismiss the Amended Complaint in its entirety as to 

Plaintiff Harry Balk, suing in his individual capacity, where the 

allegations of the Amended Complaint demonstrate that all claims 

asserted are those of the company, and there are no allegations that 

Defendants violated any duty independently owed to Balk? 

Defendants answer “yes.” 

III. Should the Court dismiss Count I of the Amended Complaint (Fraud on 

the Copyright Office), where settled precedent dictates that there is no 

private right of action to assert an affirmative claim of fraud on the 

Copyright Office? 

Defendants answer “yes.” 

IV. Should the Court dismiss Count II (For Declaratory Judgment) and 

Count III (Fraudulent Concealment/Tortious Interference with Contract 

and Fraud) of the Amended Complaint as time-barred, where Plaintiffs 

failed to assert them within two years after being placed on inquiry 

notice nearly 45 years ago of the possibility that those claims existed, 

and Plaintiffs’ utter failure to further investigate and assert the claims? 

Defendants answer “yes.” 

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1 

INTRODUCTION 

 Clarence Avant (“Avant”) has long been one of the most prominent figures in 

the music industry. Known as “the Godfather of Black Music,” he has been 

instrumental in nurturing and introducing musical talent to the public for nearly 60 

years. He is a former president of Motown Records and has owned his own record 

companies and music publishing companies over the years. He is also known for his 

philanthropic activities and has been given numerous awards for his public service 

and service to the entertainment industry. 

 In the late 1960s, Avant became aware of the talents of a young Detroit folk 

singer-songwriter named Sixto Rodriguez p/k/a/ “Rodriguez.” In conjunction with 

receiving written warranties and representations from Rodriguez that all of the songs 

he would deliver to Avant’s company would be free and clear of all claims, rights, 

and obligations as to third parties, Avant’s company, Interior Music Corp. (“Interior” 

and together with Avant “Defendants”), signed Rodriguez to an Exclusive 

Songwriter’s and Composer’s Agreement. Another of Avant’s companies, Sussex 

Records, signed Rodriguez to an exclusive recording agreement and released two 

albums of Rodriguez’s featured performances, the first of which was Cold Fact. 

 Nearly 45 years after Cold Fact was first distributed, this action was initially 

filed in the name of “Gomba Music Inc.” (“Old Gomba”), claiming an exclusive 

songwriter agreement with Rodriguez. Given leave to amend, and apparently 

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2 

because Old Gomba no longer exists, counsel have now filed on behalf of another 

“Gomba Music, Inc.” (“New Gomba”) -- an entity that was formed just three weeks 

ago by Plaintiffs’ counsel of record. This new entity has been joined by its purported 

principal Harry Balk (“Balk”) as a co-plaintiff for the first time. These Plaintiffs 

have abandoned the copyright claim alleged in Count I of the original Complaint 

filed on behalf of the non-existent Old Gomba because they are now forced to admit 

that the original Complaint falsely alleged the existence of an issued certificate of 

copyright registration for the subject compositions. That claim has been replaced by 

a new Count I, which is a claim for fraud on the Copyright Office. As in the original 

Complaint, Counts II and III of the Amended Complaint are claims for a declaration 

of ownership of the Cold Fact songs (Count II), and a “kitchen sink” claim for 

“fraudulent concealment/ tortious interference with contract and fraud” (Count III). 

 For the reasons stated in Defendants’ motion, and in further detail below, all of 

the claims of the Amended Complaint fail as a matter of law. Accordingly, it should 

be dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(6). 

STATEMENT OF FACTS 

A. OLD GOMBA FILES SUIT 

 A Complaint was filed on May 2, 2014 on behalf of an entity purported to be 

“Gomba Music Inc.” See Dkt. No. 1, (the “Original Complaint”). The Complaint 

asserted that in 1966, Old Gomba and Sixto Rodriguez (Rodriguez”) entered into an 

exclusive songwriter agreement (the “Rodriguez Agreement”) that required 

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3 

Rodriguez to “write and compose musical compositions exclusively for Gomba” for a 

period of five years. Orig. Comp. ¶ 7. Old Gomba alleged that Avant wanted to 

enter into recording and songwriting contracts with Rodriguez and, upon learning that 

Rodriguez was signed to Gomba, embarked on a plan to “fraudulently conceal the 

writing of compositions by Sixto Rodriguez . . . [whereby] . . . compositions written 

by Rodriguez would falsely, fraudulently, and wrongly be credited and attributed to 

other individuals with whom Gomba had no agreements.” Id. ¶ 8. Old Gomba 

claimed that in March 1970, Avant’s record label1

 released the Rodriguez album 

entitled Cold Fact, id., and that Avant falsely attributed the authorship of the 

compositions on this album to persons other than Sixto Rodriguez, id. ¶ 11. 

 Based on these allegations, Old Gomba asserted claims for copyright 

infringement (Count I), declaration of ownership of the copyrights in the Cold Fact

compositions (Count II), and a claim for “fraudulent concealment/tortious 

interference with contract and fraud” (Count III). Old Gomba alleged in the Original 

Complaint that it had “received a certificate of registration for the compositions 

contained in the album Cold Fact”, Orig. Comp. ¶ 9, but failed to attach the 

registration to the Original Complaint or provide any information about the 

registration, such as the title, registration number, date of registration, etc. 

 

1

 Although the Amended Complaint alleges that Cold Fact was released by Venture 

Records, it was, in fact, released by Sussex Records, as the record label indicates. 

See Am. Comp. Exhibit B. 

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Defendants could locate no record of Old Gomba having obtained a registration for 

each of the Cold Fact compositions. 

 On June 3, 2014, Defendants filed a motion to dismiss the Original Complaint 

under Fed. R. Civ. P. 12(b)(6). See Dkt. No. 13. With respect to the copyright 

claims alleged in Counts I and II, Defendants sought dismissal on the grounds that 

(a) Old Gomba had failed to adequately plead ownership of a registration for the Cold 

Fact compositions; (b) the claims were time-barred; and (c) Old Gomba had failed to 

plead a basis for recovery of statutory damages and attorney’s fees under the 

Copyright Act. As to Count III, Defendants argued that Old Gomba failed to plead 

fraud with particularity and that the claims alleged in Count III were time-barred. 

 On June 9, 2014, the Court issued an Order Regarding Motion to Dismiss. See

Dkt. No. 14. Without opining on the merits of the motion, the Order, “afford[ed] 

Plaintiff an opportunity to cure the purported pleading defects by granting Plaintiff 

leave to file an amended complaint.” Id. at 1. The Court further stated that “[a]ny 

amended complaint...must state a ‘plausible claim for relief’ by pleading specific 

factual allegations that, if true, would ‘plausibly give rise to an entitlement to relief.’” 

Id. at 2 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009)). 

B. NEW GOMBA AND BALK FILE AN AMENDED COMPLAINT 

 When Old Gomba filed suit, Defendants sought, but could not find, any 

information regarding the existence of an active Michigan corporation in good 

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5 

standing that included the term “Gomba Music” in its name. The on-line corporate 

database maintained by the State of Michigan Department of Licensing and 

Regulatory Affairs (“LARA”) had no record of any such company.2

 As Defendants 

subsequently learned, the only records maintained by the State of Michigan regarding 

a “Gomba Music” entity were (a) a document appearing to show that a “Gomba 

Music Inc.” was incorporated on November 2, 1965 (the document also contained 

other basic information about this entity), and (b) a document appearing to show that 

“[r]eports” -- presumably annual reports -- were filed in 1966, 1967 and 1968, and 

which contained a note, dated 1971, that there were no other documents available 

regarding the entity because the records “were destroyed by fire at Record Center.” 

Exhibit 2, materials on file with State of Michigan. If Old Gomba were still in 

existence and in good standing when this action was filed, there would doubtless 

have been some evidence of its filing with the State of an annual report or other 

corporate document at some point over the last 43 years since Record Center fire.3

 

There are, however, no annual reports or other documents whatsoever on file with the 

State relating to Old Gomba; the only reasonable conclusion being that Old Gomba 

was abandoned or ceased to exist decades ago. 

 On June 27, 2014, Defendants received the Amended Complaint that is the 

 

2 This database can be accessed at http://www.dleg.state.mi.us/bcs_corp/sr_corp.asp. 

3 MCL 450.1911 requires a corporation to file an annual report with the State by May 

15 of each year. 

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6 

subject of this motion to dismiss. Dkt. No. 15. As before, the caption identified 

“Gomba Music Inc.” as a plaintiff, and Balk was added as a plaintiff. Defendants 

checked the LARA records again and learned, to their surprise, that a new entity 

named “Gomba Music, Inc.” had just been incorporated by Plaintiffs’ counsel of 

record on June 25, 2014, just two days before the filing of the Amended Complaint. 

The Amended Complaint does not disclose the recent formation of the nominal 

Plaintiff or the abandonment of Old Gomba, the party that contracted with Rodriguez. 

 The Amended Complaint is based upon essentially the same operative factual 

allegations as the Complaint: In 1966, Old Gomba and Rodriguez entered into a 

contract (the Rodriguez Agreement) whereby Rodriguez agreed to write musical 

compositions exclusively for Old Gomba for a period of five years, Am. Comp. ¶ 8; 

that Avant unlawfully circumvented the terms of the Rodriguez Agreement by 

attributing songs composed by Rodriguez to others, id. ¶ 9; and that this alleged 

scheme was evidenced by Rodriguez’s Cold Fact record, released in 1970, on which 

all of the songs are credited to persons or entities other than Rodriguez, including a 

“Jesus Rodriguez,” who was “purportedly Sixto Rodriguez’s brother.” Id. 

 The Amended Complaint does, however, differ from the Original Complaint in 

several ways. As noted, Balk was added as a party, and Plaintiffs have admitted that 

the Original Complaint’s allegation that Gomba had obtained a certificate of 

registration for the Cold Fact compositions was false. Compare Orig. Comp. ¶ 9 to 

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7 

Am. Comp. ¶ 12. And while it was apparent from the Original Complaint that Old 

Gomba and Balk knew about the release of Cold Fact in 1970, that was not explicitly 

stated there. Plaintiffs now acknowledge not only that they knew of the 1970 release 

of the album; but that Balk was concerned and suspicious and reviewed the album’s 

credits at the time. Am. Comp. ¶ 14. Plaintiffs further acknowledge that the sum 

total of Balk’s inquiry in 1970 into whether the Cold Fact songs might be covered by 

the Rodriguez Agreement was to read the album credits: “When Cold Fact was 

released, Balk, knowing Sixto Rodriguez was the performer on the album, tried to 

determine whether Sixto was an author of the Cold Fact Compositions by reviewing 

the credits on the album.” Id. Thus, in reality, Balk did absolutely nothing to 

determine whether the very information – contained in the album credits – that had 

raised his suspicion that Old Gomba’s alleged rights in the Rodriguez Agreement had 

been violated, was in fact true. 

 Since Old Gomba had signed Rodriguez to a songwriter agreement, Balk knew 

Rodriguez was a singer/songwriter. Therefore, the issuance of the Cold Fact album 

featuring Rodriguez, during the five-year term of the Rodriguez Agreement, but 

attributing none of the songs to this songwriter, was more than enough to put Balk 

and Old Gomba on notice of the possible violation of Old Gomba’s alleged rights to 

Rodriguez’s songs under the Rodriguez Agreement. But that was not the only 

information of which Balk and Old Gomba were aware that would have put them on 

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8 

notice of a potential violation of Old Gomba’s alleged contractual rights. 

 In addition, Plaintiffs omit that the 1970 Cold Fact album includes Sixto 

Rodriguez’s performance of a composition, “Forget It,” for which Old Gomba had 

obtained a copyright registration in 1967. See Exhibit 3, original registration Eu 

991131 and renewal registration RE 697-482, procured from U.S. Copyright. These 

show the author as Sixto Rodriguez and the original copyright claimant as Gomba 

Music Inc. Thus, by 1967, Old Gomba (and Balk) clearly knew that Sixto Rodriguez 

was the author of “Forget It,” yet the 1970 album credited the song to “Jesus 

Rodriguez.” As Plaintiffs have alleged, Balk saw the Cold Fact credits when the 

album came out and thus undoubtedly saw that it contained a song that Balk knew 

was written by Sixto Rodriguez but was being attributed to “Jesus Rodriguez.” Yet, 

Balk still did no investigation, instead waiting 44 years to file this lawsuit. 

ARGUMENT 

I THE COMPLAINT SHOULD BE DISMISSED IN ITS 

ENTIRETY AS TO PLAINTIFF GOMBA BECAUSE THE 

AMENDED COMPLAINT CONTAINS NO FACTS 

DEMONSTRATING THAT THE NEWLY FORMED GOMBA 

HAS ANY RIGHTS IN THE RODRIGUEZ AGREEMENT 

Each of the claims alleged in the Amended Complaint is predicated on the 

1966 Rodriguez Agreement, without which Plaintiffs would have no claim to any of 

the Cold Fact songs. But, the “Gomba Music” identified as the Plaintiff in the 

Amended Complaint, i.e. New Gomba, is not a party to the Rodriguez Agreement, 

and there are no facts alleged in the Amended Complaint demonstrating that New 

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9 

Gomba has any rights in the Agreement. Thus, New Gomba has no basis for 

pursuing any of the claims alleged in the Amended Complaint, which should be 

dismissed for failure to state any valid claim as to New Gomba. 

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of 

the complaint. To withstand a Rule 12(b)(6) motion, the plaintiff must plead facts 

sufficient to “raise a right to relief above the speculative level” and must “state a 

claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

555, 570 (2007). Generally, a court deciding a Rule 12(b)(6) motion must accept all 

well-pleaded allegations as true. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009). A court, however, is not required to accept as true legal conclusions or to 

draw unwarranted inferences. Directv, Inc. v. Treesh, 487 F. 3d 471, 476 (6th Cir. 

2007). Neither is a court required to give credence to “allegations that contradict 

matters properly subject to judicial notice or allegations contradicting the exhibits 

attached to the complaint.” Cambron v. Starwood Vacation Ownership, Inc., 945 F. 

Supp. 2d 1133, 1138-39 (D. Haw. 2013) (citing Sprewell v. Golden State Warriors, 

266 F. 3d 979, 988 (9th Cir. 2001)). In ruling on a motion to dismiss, a court may 

consider, in addition to the allegations of the complaint, “matters of public record, 

orders, items appearing in the record of the case, and exhibits attached to the 

complaint. . . .” Amini v. Oberlin College, 259 F. 3d 493, 502 (6th Cir. 2001). 

The Rodriguez Agreement that forms the basis of each of the claims alleged in 

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10 

the Amended Complaint was entered into on July 25, 1966 between “Gomba Music 

Inc.” and Rodriguez. (See Am. Comp. Exhibit A.) The public records maintained by 

LARA demonstrate that there is only one active Michigan corporation bearing the 

name “Gomba Music”, i.e., New Gomba, and that this entity was formed on June 25, 

2014 – just two days before the filing of the Amended Complaint in this matter and 

nearly 48 years after the Rodriguez Agreement was executed. (See Exhibit 1.) 

Having been in existence for barely two weeks, New Gomba cannot be the 

Gomba entity that entered into the Rodriguez Agreement in 1966. Therefore, New 

Gomba cannot seek enforcement of any rights emanating from the Rodriguez 

Agreement as a purported party to the Agreement. There are also no facts alleged in 

the Amended Complaint showing that New Gomba somehow obtained any right to 

pursue claims arising from the terms of the Rodriguez Agreement, upon which each 

of the claims alleged in Amended Complaint is based. Accordingly, the Amended 

Complaint fails to state a claim on which relief should be granted as to New Gomba. 

Further, in its June 9, 2014 order granting leave to file an amended complaint, 

the Court authorized the “Gomba” that filed suit, plainly not New Gomba, to file an 

amended pleading. The Court did not authorize the formation of a new corporate 

entity and the substitution in of that entity as the plaintiff in place of the defunct Old 

Gomba. On the face of the Articles of Incorporation, New Gomba is a separate and 

distinct corporate entity that must be treated as such. See, e.g., Servo Kinetics, Inc. v. 

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Tokyo Precision Instruments Co. Ltd., 475 F.3d 783, 798 (6th Cir. 2007) (“Under 

Michigan law, there is a presumption that the corporate form will be respected.”) 

Plaintiffs cannot confer rights on a new corporate entity simply by giving it the same 

name. This new entity was not a party to the lawsuit at its inception, and no order 

was entered allowing a new corporate entity to substitute in as plaintiff to replace Old 

Gomba. The Court should dismiss all claims asserted on behalf of New Gomba. 

II. THE COURT SHOULD DISMISS THE AMENDED 

COMPLAINT IN ITS ENTIRETY AS TO PLAINTIFF BALK 

BECAUSE IT ALLEGES NO FACTS DEMONSTRATING 

THAT ANY DUTIES OWED BALK AS AN INDIVIDUAL 

HAVE BEEN VIOLATED 

 The Complaint in this action was filed solely on behalf of Old Gomba. The 

Amended Complaint, however, seeks to add Balk as a plaintiff. The allegations of 

the Amended Complaint, however, fail to allege any facts upon which any of the 

stated claims can be established on behalf of Balk in his individual capacity. 

 There were only two parties to the Rodriguez Agreement, namely Old Gomba 

and Rodriguez, as the first paragraph of the Rodriguez Agreement establishes: 

AGREEMENT made this 25th day of July, 1966, between Sixto Rodriguez, 

558 W. Grand Blvd., Detroit, Mich. (hereinafter referred to as the “Writer”) 

and GOMBA MUSIC INC., 17111 THIRD AVE., DETROIT, MICH. 48203 

(hereinafter referred to as the “Publisher”). 

See Exhibit A to Amended Complaint. Balk executed the Rodriguez Agreement in 

his capacity as the president of Old Gomba, but he was not a party to the Agreement 

and there is nothing in the Agreement that confers any rights on Balk in his 

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individual capacity. All of the rights and obligations under the Rodriguez 

Agreement are ascribed to either the “Writer,” i.e. Rodriguez, or the “Publisher,” i.e. 

Old Gomba. The allegations of the Amended Complaint confirm that the Rodriguez 

Agreement was between Rodriguez and Old Gomba only. See Am. Comp. ¶ 8. 

 The only references to Balk in the Amended Complaint are in relation to the 

factual allegations of fraudulent concealment by Defendants of authorship of the 

Cold Fact compositions. See, e.g., Am. Comp. ¶¶ 14-16, 26. But the Amended 

Complaint states no cause of action on behalf of Balk individually, as all of the 

alleged rights described in the Amended Complaint arise from the Rodriguez 

Agreement and belong to Old Gomba. 

 Neither does Balk’s alleged capacity as the president and sole shareholder of 

“Gomba Music” permit him to assert claims in his own name, as it is well 

established that: 

In general, a suit to enforce corporate rights or to redress or prevent 

injury to the corporation, whether arising out of contract or tort, must 

be brought in the name of the corporation and not that of a 

stockholder, officer or employee. 

The general rule is inapplicable where the individual shows a 

violation of a duty owed directly to him. This exception does not 

arise, however, merely because the acts complained of resulted in 

damage both to the corporation and to the individual, but is limited to 

cases where the wrong done amounts to a breach of duty owed to the 

individual personally. Thus, where the alleged injury to the 

individual results only from the injury to the corporation, the injury 

is merely derivative and the individual does not have a right of 

action against the third party. 

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Michigan Nat. Bank v. Mudgett, 178 Mich. App. 677, 679-80 (1989) (citations 

omitted) (emphasis added); see also Meathe v. Ret, 547 Fed. Appx. 683, 688 (6th Cir. 

2013) (affirming dismissal of corporate shareholder’s claims where complaint 

“fail[ed] to allege any injury distinct from that of [the corporation].”) Accord Walker 

v. Gen. Tel. Co., 25 Fed. App'x 332, 335 (6th Cir. 2001) (“An officer may bring suit 

in his own name only where he can show that the breach of contract violated a duty 

owed directly to him as an individual.”)

There is nothing alleged in the Amended Complaint that even suggests a duty 

owed to Balk independent of any duties allegedly owed by Defendants to Old 

Gomba. Even if the allegations of fraud proved to be true, which they are not, that 

fraud would have affected no interests of Balk other than indirectly as the owner of 

Old Gomba. It is only the company’s interests that would have been directly harmed. 

 Because the Amended Complaint alleges no facts upon which any duties owed 

to Balk individually were violated, Balk has no standing as a plaintiff in this action. 

Accordingly, as to Balk, the Amended Complaint fails to state a claim upon which 

relief can be granted and should therefore be dismissed. 

III. THE COURT SHOULD DISMISS COUNT I OF THE 

AMENDED COMPLAINT (FRAUD ON THE COPYRIGHT 

OFFICE) BECAUSE THERE IS NO PRIVATE RIGHT OF 

ACTION TO ASSERT SUCH A CLAIM. 

In its original Complaint, Old Gomba asserted a claim for copyright 

infringement, purportedly founded on the fact, as stated in the Complaint, that 

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“Gomba has filed with the Register of Copyrights, and has received a certificate of 

registration for the compositions contained in the album Cold Fact.” Orig. Comp. 

¶ 9 (emphasis added). Defendants, however, could find no evidence of any such 

registration. Defendants thus attacked Old Gomba’s infringement claim, in part on 

that basis, in their motion to dismiss the Original Complaint. Old Gomba’s claim of 

possession of a certificate of registration for the Cold Fact songs was, in fact, a 

knowing, deliberate, and blatantly false statement. In their Amended Complaint 

Plaintiffs were forced to concede that “Copyright applications have been filed but 

registrations have not yet been issued.” Am. Comp. ¶ 12. Based on that admission, 

Plaintiffs deleted the copyright infringement claim from the Amended Complaint. Id. 

In lieu of an infringement claim, the Amended Complaint asserts a claim for 

Fraud on the Copyright Office (Count I). However, while fraud on the Copyright 

Office may be asserted as an affirmative defense to a claim of infringement, there is 

no legal basis upon which an affirmative claim for fraud on the Copyright Office 

may be brought, as Plaintiffs attempt to do here. 

“Courts ‘have considered challenges to the presumption of [copyright] validity 

where a showing has been offered – by way of a defense to an infringement claim – 

that there has been fraud on the copyright office.” Esbin & Alter, LLP v. Zappier,

2011 U.S. Dist. LEXIS 27881, *4 (S.D.N.Y. Mar. 17, 2011) (emphasis added) 

(quoting Fonar Corp. v. Domenick, 105 F.3d 99, 105 (2d. Cir. 1997)). See also 

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Lennon v. Seaman, 84 F. Supp. 2d 522, 525 (S.D.N.Y. 2000) (“An allegation of fraud 

on the Copyright Office is typically brought in an infringement action as an 

affirmative defense to the enforcement of a registered copyright certificate.”) 

However, “there is no precedent supporting the use of a claim for fraud on the 

Copyright Office as an affirmative cause of action, rather than as a defense to a 

copyright certificate’s validity.” Esbin & Alter, 2011 U.S. Dist. LEXIS 27881 at *5 

(quoting Kwan v. Schlein, 2008 U.S. Dist. LEXIS, *2 (S.D.N.Y. Oct. 30, 2008)). 

 In Esbin, the plaintiff had asserted a claim for copyright infringement. The 

defendant alleged fraud on the Copyright Office as an affirmative defense, and also 

attempted to assert it as a counterclaim. Based on the analysis provided above, the 

court ruled that “[t]he counterclaim is dismissed, no private right of action having 

been established. The affirmative defense remains, leaving the same issues open for 

discovery.” Esbin, 2011 U.S. Dist. LEXIS 27881 at *6. Thus, even where it had 

been sued for copyright infringement, the defendant could not assert an affirmative 

cause of action for fraud on the Copyright Office. See also Malibu Media, LLC v. 

Doe 1, 2013 WL 5603275 (D. Md. Oct. 10, 2013) (“‘Fraud on the Copyright Office is 

not an independent claim but, rather, an attack on the prima facie validity provided 

under Section 410(c).’”) (quoting Patry on Copyright § 17:126)); Nearstar, Inc. v. 

Waggoner, 2011 WL 817374, *2 n. 1 (E.D. Tex. Mar. 2, 2011) (“The parties agree 

that there is no claim for fraud on the Copyright Office and that this counterclaim 

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should be dismissed.”)4

 Here, Plaintiffs have not been sued for copyright infringement by Defendants; 

neither have Defendants even asserted any claims of any kind against them to this 

point. Plaintiffs simply chose to assert an affirmative claim for fraud on the 

Copyright Office in the Amended Complaint as a substitute for their failed copyright 

infringement claim. Based on the cited precedent, this is impermissible, and Count I 

of the Amended Complaint for Fraud on the Copyright Office must be dismissed. 

IV. THE COURT SHOULD DISMISS COUNTS II AND III 

OF THE AMENDED COMPLAINT BECAUSE THEY 

ARE TIME-BARRED 

Count III of the Complaint is a hodge-podge of legal theories titled 

“Fraudulent Concealment/Tortious Interference With Contract and Fraud.” 

Fraudulent concealment is alleged solely as a purported basis for tolling the statutes 

of limitation applicable to the substantive claims. Plaintiffs invoke this theory 

 

4 Section 506 of the Copyright Act, 17 U.S.C. § 506(e) makes it a crime for any 

person to “knowingly make[] a false representation of a material fact in the 

application for copyright registration ..., or in any written statement filed in 

connection with the application.” But, as noted in Esbin, “Courts in this district and 

elsewhere have definitively concluded, however, ‘that Congress intended that section 

506 serve as a criminal statute and not give rise to private actions.’” Id., 2011 U.S. 

Dist. LEXIS 27881 at *6-7 (quoting Donald Frederick Evans & Assocs., Inc. v. 

Continental Homes, Inc., 785 F.2d 897, 913 (11th Cir. 1986) (citing legislative 

history)). See also Barnhart v. Federated Dep’t Stores, Inc., 2005 U.S. Dist. LEXIS 

3631 (S.D.N.Y. Mar. 8, 2005) (“There is no corresponding private right of action . . . 

under 17 U.S.C. § 506(e) for making false claims to the Copyright Office.”); AshtonTate Corp. v. Ross, 728 F. Supp. 597, 602 (N.D. Cal. 1989) (“Section 506(e) is solely 

a criminal statute that does not provide a private cause of action”), aff’d, 916 F.2d 

516 (9th Cir. 1990). 

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because the alleged acts that form the basis of the tortious interference and fraud 

claims occurred well over 40 years ago. Additionally, with respect to Count II for a 

declaratory judgment, that claim rises or falls with the underlying substantive claims, 

i.e., the tortious interference and fraud claims. As the Sixth Circuit stated in Int'l 

Ass'n of Machinists & Aerospace Workers v. Tennessee Valley Auth., 108 F.3d 658, 

668 (6th Cir. 1997) (citation omitted): 

A request for declaratory relief is barred to the same extent that the claim 

for substantive relief on which it is based would be barred.... A contrary 

rule would allow a plaintiff to “mak[e] a mockery of the statute of 

limitations by the simple expedient of creative labeling.”5

 

With the statute of limitations having long since run on these claims, they are 

time-barred unless Plaintiffs can establish that the claims were fraudulently concealed 

and that Plaintiffs filed suit within two years of when they discovered or should have 

discovered the existence of the claim, as required under Michigan’s fraudulent 

concealment statute, M.C.L. § 600.5855. As shown below, via the release of Cold 

Fact, Plaintiffs were placed on notice of potential claims against Defendants, but sat 

on their hands for over 40 years before filing this lawsuit in 2014. Even if, arguendo, 

 

5

See also Toledo Museum of Art v. Ullin, 477 F. Supp. 2d 802, 806 (N.D. Ohio 2006) 

(“‘Actions for declaratory judgment are neither legal nor equitable claims, but are 

considered to be sui generis’ and ‘must accompany the substantive claim for which 

the declaratory judgment is sought.”) (citation omitted). Here, the substantive claims 

are Defendants’ alleged fraud in misattributing the Cold Fact compositions to authors 

other than Rodriguez and allegedly inducing Rodriguez to breach the Rodriguez 

Agreement, which allegedly deprived Old Gomba of its rights in the compositions 

under that Agreement. Under the cited case law, the dismissal of Count III as timebarred would also warrant the dismissal of Count II. 

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Defendants had engaged in fraudulent concealment, Plaintiffs’ claims are time-barred 

because Plaintiffs failed to file suit within the two-year limitations period M.C.L. § 

600.5855. 6 Counts II and III should therefore be dismissed for this additional 

reason. 

 Under Section 600.5855, a statute of limitations may be tolled where the 

defendant has fraudulently concealed the existence of a claim from the plaintiff. The 

statute requires the plaintiff to file suit within two years of when it either discovered 

or should have discovered the claim: 

If a person who is or may be liable for any claim fraudulently conceals 

the existence of the claim ... from the knowledge of the person entitled 

to sue on the claim, the action may be commenced at any time within 2 

years after the person who is entitled to bring the action discovers, or 

should have discovered, the existence of the claim ..., although the 

action would otherwise be barred by the period of limitations. 

M.C.L. § 600.5855. 

 A plaintiff asserting fraudulent concealment as grounds for tolling a statute of 

limitations must demonstrate that the defendant “‘[employed an] artifice, planned to 

prevent inquiry or escape investigation, and mislead or hinder acquirement of 

information disclosing a right of action.’” Lemson v. General Motors Corp., 66 

Mich. App. 94, 97 (1975) (citation omitted). “‘The acts relied on must be of an 

 

6

 Fraud claims are subject to a six-year statute of limitations. M.C.L. § 600.5813; see 

also Blue Cross & Blue Shield of Michigan v. Folkema, 174 Mich. App. 476, 481 

(1988). The applicable limitations period for a claim of tortious interference with 

contract is three years. M.C.L. § 600.5805(10); see also James v. Logee, 150 Mich. 

App. 35, 36 (1986). 

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affirmative character and fraudulent.’” Id. Where a plaintiff does not diligently 

pursue inquiry into a possible cause of action, the plaintiff cannot seek refuge in the 

fraudulent concealment statute because Michigan law provides that “‘[a] party will be 

held to know what he ought to know ... by the exercise of ordinary diligence[.]” Id. 

 Absolute certitude regarding the existence of a cause of action is not required 

to trigger the running of the 2-year limitations period of § 600.5855. Rather, “[f]or a 

plaintiff to be sufficiently apprised of a cause of action, a plaintiff need only be 

aware of a ‘possible cause of action.’” Doe v. Roman Catholic Archbishop of 

Archdiocese of Detroit, 264 Mich. App. 632, 643 (2004) (citation omitted) (emphasis 

added). Accordingly, “[i]f liability were discoverable from the outset, then MCL 

600.5855 will not toll the applicable period of limitations.” Prentis Family Found. v. 

Barbara Ann Karmanos Cancer Inst., 266 Mich. App. 39, 48 (2005). 

 As alleged in the Amended Complaint, Gomba Music (certainly not New 

Gomba, as it did not exist) entered into the Rodriguez Agreement on or about July 

25, 1966. Amended Complaint ¶ 8. Under the terms of this Agreement, Rodriguez 

was to “write and compose musical compositions exclusively for Gomba during a 

five year period expiring July 25, 1971.” Id. “[A]ll musical compositions written 

during the term” of the Rodriguez Agreement were to be “owned and controlled by 

Gomba, including the worldwide copyrights therein.” Id. One of the compositions 

that Rodriguez wrote during the term of the agreement was the song “Forget It.” Old 

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Gomba obtained a certificate of registration for this song from the Copyright Office 

on April 20, 1967; the registration identified Sixto Rodriguez as the author of the 

song and Gomba Music as the original copyright claimant.” Exhibit 3. 

Thus, Balk and Old Gomba obviously knew as of 1967 that Sixto Rodriguez 

authored the song “Forget It.” When Sixto Rodriguez’s album Cold Fact was 

released in March of 1970, one of the songs on the album was “Forget It.” See

Amended Complaint Exhibit B. Sixto Rodriguez was identified as the performer of 

the songs, but others were identified as the songwriters. Id. “Forget It” was credited 

to “Jesus Rodriguez” as the songwriter. Id. The album identified the publisher of all 

of the songs as Defendant Interior Music, and the album bore the name “Sussex,” a 

record company that, like Interior Music, was owned by Defendant Avant. Id. The 

alleged attribution of these songs by Avant and Interior to writers other than Sixto 

Rodriguez is the foundation of Plaintiffs’ claims for fraud and tortious interference, 

as well as their claim for tolling of the statute of limitations under § 600.5855. 

 Plaintiffs admit in paragraphs 14 and 15 of the Amended Complaint that they 

were aware of all of this information at the time the album was released in 1970 

because Balk knew about its release and reviewed the album credits at that time: 

 14. Avant specifically represented that the Cold Fact

Compositions were written by Jesus Rodriguez and Sixth Prince Inc., 

intentionally leaving the true writer, Sixto Rodriguez, off of the credits, 

and the credits published by Defendants on the Cold Fact album so 

confirmed. (Attached hereto as Exhibit b). When Cold Fact was 

released, Balk, knowing Sixto Rodriguez was the performer on the 

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album, tried to determine whether Sixto was an author of the Cold Fact

Compositions by reviewing the credits on the album. The credits stated 

that Jesus Rodriguez and Sixth Prince were the writers, and Sixto 

Rodriguez was not an author of the Cold Fact Compositions and 

therefore Balk did not pursue at that time. 

 15. These intentional misrepresentations were communicated to 

Balk and Gomba by Avant and Interior Music through the false 

information on the Cold Fact album at the time of the album’s release. 

 The mere release during the term of the Rodriguez Agreement of an album 

containing songs performed by Sixto Rodriguez – all identified as having been 

written by someone else – was itself enough to alert Old Gomba and Balk to the 

possibility of legal issues relating to authorship. However, the album Balk admits 

reviewing in 1970 also contained a song – “Forget It” –written by Sixto Rodriguez 

which Old Gomba registered for copyright less than three years earlier. Thus, Balk’s 

admitted review clearly showed him that “Jesus Rodriguez” had been credited for a 

Sixto Rodriguez song. This put him on further notice that a possible violation of Old 

Gomba’s alleged rights under the exclusive Rodriguez Agreement had occurred. 

Doe, 264 Mich. App. at 643 (2004) (“For a plaintiff to be sufficiently apprised of a 

cause of action, a plaintiff need only be aware of a ‘possible cause of action.’”) 

 Plaintiffs admit as much in their Amended Complaint, as they allege that 

Balk’s suspicions were piqued by the release of the Cold Fact album: “When Cold 

Fact was released, Balk, knowing Sixto Rodriguez was the performer on the album, 

tried to determine whether Sixto was an author of the Cold Fact Compositions ....” 

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Amended Complaint ¶ 14. Moreover, the album credits that Balk admits reviewing 

included a song – “Forget It” – credited to “Jesus Rodriguez,” but which Balk knew 

was written by Sixto Rodriguez, Old Gomba having obtained a copyright registration 

for that song in Sixto Rodriguez’s name less than three years earlier. 

Plaintiffs further admit that despite Balk’s concerns, he did nothing to 

investigate any possible cause of action. The sum total of Balk’s actions was 

“reviewing the credits on the album.” Id. Balk made no attempt to contact Avant or 

anyone at Interior (the publisher) or Sussex (the record company); Balk made no 

attempt to investigate or contact any of the individuals or entities identified in the 

credits as the songwriters; Balk made no attempt to contact the production company 

identified in the album credits; and most glaringly, Balk made no attempt to address 

the matter with his own client at the center of this dispute – Sixto Rodriguez. Balk 

should have inquired not only as to the authorship of “Forget It,” but also why every 

song on the album was credited to someone other than the creative songwriter with 

whom he had signed an exclusive songwriter agreement. 

 When Cold Fact was released in 1970, Old Gomba either knew or should have 

known that it had a possible cause of action where the album contained a song – 

“Forget It” – that Old Gomba and Balk knew was written by Sixto Rodriguez during 

the term of the Rodriguez Agreement, and which Old Gomba had recently registered 

with the Copyright Office. The information known to Old Gomba and Balk was 

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clearly sufficient to trigger a duty to investigate the existence of a cause of action. As 

recently stated in Estate of Abdullah ex rel. Carswell v. Arena, 2014 WL 1304725, *5 

(E.D. Mich., March 28, 2014), regarding Michigan’s fraudulent concealment statute: 

[t]he question of whether a plaintiff has sufficient knowledge to bring a 

claim is not based on “whether the plaintiff has knowledge of sufficient 

facts to prevail on a claim, but whether the plaintiff has knowledge of 

sufficient facts to cause a reasonable person to pursue an investigation 

that could uncover the evidence needed to lead to an ultimate victory.” 

Id. (quoting Moll v. Abbott Laboratories, 444 Mich. 1, 21 n. 25 (1993); see also 

McNaughten v. Rockford State Bank, 261 Mich. 265, 269 (1933) (“‘[A] plaintiff 

cannot excuse his delay in instituting suit on the ground of fraudulent concealment of 

his cause of action if his failure to discover is attributable to his own neglect.’”) 

Upon the release of Cold Fact, Old Gomba and Balk had more than enough 

facts to “‘cause a reasonable person to pursue an investigation....’” Estate of 

Abdullah, 2014 WL 1304725 at *5. However, as the allegations of the Amended 

Complaint show, they did not diligently investigate whether Old Gomba had a 

possible cause of action. In fact, they did no more than read the very credits which 

they now claim were included on Cold Fact to conceal Sixto Rodriguez’s authorship 

of the songs. In Lemson, 66 Mich. App. at 97, the Michigan Court of Appeals stated 

with respect to the fraudulent concealment statute that “[a] party will be held to know 

what he ought to know ... by the exercise of ordinary diligence[.]” There is no 

interpretation of “ordinary diligence” under which Balk’s mere review of the Cold 

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Fact credits as his sole form of “investigation” could be deemed satisfactory. 

 Old Gomba and Balk had every opportunity at the time Cold Fact was released 

to determine that a possible cause of action existed relating to Old Gomba’s alleged 

rights under the Gomba Agreement. But instead of pursuing these purported rights, 

or at least a diligent investigation, they did nothing for more than 44 years. Because 

Old Gomba either discovered or should have discovered its alleged claims well more 

than 40 years ago, there is no basis for tolling of the applicable statutes of limitation 

under § 600.5855. The claims alleged in Counts II and III are, therefore, time-barred. 

 There is more, however. The Cold Fact album was reissued in 2008 by 

Seattle-based record company Light in the Attic. (Exhibit 4.) The album was, and 

remains, widely available for purchase through many major internet outlets, including 

Amazon. Id. The back cover of the Reissue clearly states: 

All songs by Sixto Rodriguez 

Except (5, 10) by Gary Harvey, Mike Theodore & Dennis Coffey 

All songs published by Interior Music (BMI) 

Licensed courtesy of Hey Day Entertainment, LLC 

Originally Released on Sussex Records, March 1970 as SXBS7000 

Thus, Sixto Rodriguez is clearly identified as the author of all but two of the Cold 

Fact songs appearing on the original issue of March 1970. 7 The identification of 

Sixto Rodriguez as the author of the songs was directly contrary to the identification 

 

7 As the Cold Fact album is the most central item to the Amended Complaint, and 

Plaintiff attaches as an exhibit the label to the first printing, the Court should be 

entitled to review subsequent editions of that identical album as to the information 

contained thereon. 

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of Jesus Rodriguez (or other entities) as the author of the songs on the 1970 Cold 

Fact release. (Cf. Exhibit 4 with Am. Comp. Exhibit B.) This information – widely 

available in the public domain in 2008 – was more than enough to once again place 

Gomba on notice of a duty to inquire as to potential causes of action, six years before 

it ultimately filed suit, which is all that is required to trigger the two-year limitations 

period under § 600.5855. Thus, Gomba received more than ample notice of the 

possible existence of the claims alleged in Counts II and III on several occasions 

more than two years before it filed suit. Accordingly, those claims are time barred. 

CONCLUSION 

For the reasons stated above, Defendants request that the Court enter an order 

dismissing the Amended Complaint in its entirety pursuant to Fed. R. Civ. P. 

12(b)(6). 

Date: July 11, 2014 Respectfully submitted,

By: /s/ Peter M. Falkenstein 

Peter M. Falkenstein (P61375) 

David S. McDaniel (P56994) 

JAFFE RAITT HEUER & WEISS, PC 

201 S. Main St., Suite 300 

Ann Arbor, Michigan 38104 

(734) 222-4776 

Attorneys for Defendants 

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CERTIFICATE OF SERVICE 

I CERTIFY that on July 11, 2014, I filed a copy of the 

foregoing pleading via the ECF system, which will 

provide electronic notice of the filing to all attorneys of 

record in this matter. 

Date: July 11, 2014 /s/ Jacqueline D. Delevie 

 Jacqueline D. Delevie 

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