Oh Well, Whatever, Nevermind: Baby Model’s Lawsuit Against Nirvana (Temporarily) Ends With a Whimper

In a January 3, 2022 Order in Elden v. Nirvana, L.L.C. et al, C.D. Cal., No. CV 21-6836, a California federal court dismissed plaintiff Spencer Elden’s lawsuit against Nirvana L.L.C. et al.

In this lawsuit, plaintiff – whose image (as a baby) appears on Nirvana’s 1991 “Nevermind” album – alleged, inter alia, that he was entitled to damages as a victim of violation of federal criminal ch–d p–nogr—y statutes pursuant to 18 U.S.C. § 2255.

The court did not, however, dismiss the case on the merits, but rather because plaintiff stayed away from complying with a court-imposed deadline. Specifically, on December 22, 2021, defendants filed a Motion to Dismiss plaintiff’s first amended complaint, which was set for oral argument on January 20, 2022, and which required plaintiff to file his Opposition papers no later than December 30, 2021. Plaintiff did not do so; in response the court vacated the hearing date and granted Defendants’ motion.

The case is not “finally” over, however. The court gave plaintiff an opportunity to amend his complaint. Judge Olguin wrote:

[G]iven the policy favoring amendment of complaints, the court will grant defendants’ Motion and give plaintiff one last opportunity to amend his complaint. In preparing the Second Amended Complaint, plaintiff shall carefully evaluate the contentions set forth in defendants’ Motion, including defendants’ assertions that plaintiff’s claims pursuant to 18 U.S.C. § 2255 and 18 U.S.C. § 1595 are time-barred. [Citation omitted.]

The court gave plaintiff until January 13, 2022 – i.e., invited him to take his time, but hurry up – to file a Second Amended Complaint “attempting to cure, to the extent he believes is warranted by existing law, the alleged defects outlined in defendants’ Motion.”

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