MACHINE HEAD Seeks To Dismiss Former Bassist ADAM DUCE's Lawsuit

San Francisco Bay Area metallers MACHINE HEAD are seeking to dismiss the lawsuit that was filed against them by the band's former bassist, Adam Duce, claiming that that Duce has "failed to state a claim for federal trademark infringement" and "has failed to state any claim against [MACHINE HEAD's new bassist] Jared MacEachern or [MACHINE HEAD's new record label] Nuclear Blast," both of whom were listed as co-defendants in Adam's original complaint.

As first reported by Courthouse News, Duce sued MACHINE HEAD in January, alleging trademark infringement, breach of partnership agreement and defamation, among other things.

Duce was fired from MACHINE HEAD on February 11, 2013, a few months prior to the band signing a new deal with Nuclear Blast Entertainment.

In MACHINE HEAD's April 2 motion to dismiss Duce's lawsuit, the band's attorney, Dawn M. Coulson of Epps & Coulson, LLP, writes, in part: "This case concerns the claims of Plaintiff Adam Duce ('Plaintiff'),an expelled former partner of Defendant MACHINE HEAD, a California general partnership ('MH' or 'the Band'),for income and royalties associated with the Band's business as a recording act. In addition to the Band, Plaintiff names the individual Band members (including his replacement),the Band's touring company, the Band's managers and the Band's post-expulsion record label. The claims run the gamut from breach of fiduciary duty, breach of partnership agreement, interference with prospective economic advantage, and defamation to unfair competition. Curiously, they also include a claim for trademark infringement under the federal Lanham Act, 15 U.S.C. Section 1114(1),despite the fact — judicially admitted by Plaintiff in the Complaint — Plaintiff does not own any of the federally registered trademarks.

"Plaintiff was expelled from the Band on or about February 11, 2013. According to [Duce's] Complaint, MacEachern was hired to replace Plaintiff as bass player in or about June 2013, four (4) months after Plaintiff's expulsion. Even later, the Band signed with record label Nuclear Blast in or about October 2013.

"In the Complaint, Plaintiff alleges that [MACHINE HEAD guitarist/vocalist Robb] Flynn, [the band's manager, co-defendant Joseph W.] Huston and 'the other Band members' (presumably [drummer Dave] McClain and [guitarist Phil] Demmel, since MacEachern was not hired until afterwards),'sought to expel Plaintiff from the Band prior to entering into a new record deal in order to exclude him from any income to be derived as a result of the deal and to derive greater profit for the remaining Band members.' Plaintiff alleges that 'On information and belief, [Nuclear Blast] supported and aided Flynn, Huston, and the other Band members' efforts to expel Plaintiff from the Band.' He alleges '[i]n or around June 2013, the Band 'replaced' [Plaintiff] on bass and backup vocals with Defendant MacEachern.'

"Plaintiff complains he subsequently received no distributions from the Band or [Head Machine Touring, Inc.] He also complains that Flynn defamed him by allegedly publishing a blog saying that the Band technically fired Plaintiff on February 11, 2013, but that Plaintiff was 'sick of [the Band]' and effectively quit it over a decade before.

"Plaintiff, a former partner to the MACHINE HEAD partnership, 'the Band,' now sues the Band and the other Defendants for federal trademark infringement, alleging that the Band and the other Defendants have used 'a mark identical to MH's federally registered mark without Plaintiff's required consent, for and in connection with Defendants' musical recordings, live shows put on by the Band, and with merchandise including but not limited to clothing and headwear.' These allegations fail, however, because Plaintiff is not the registrant of the MACHINE HEAD trademarks — the Band is. Plaintiff admits as much in the Complaint."

"In the Complaint, only three of Plaintiff's claims are alleged against MacEachern, the Band's replacement bass player, the First Cause of Action for trademark infringement, the Seventh Cause of Action for negligence and the Ninth Cause of Action for unfair competition. All fail and should be dismissed as against MacEachern.

"The First Cause of Action for trademark infringement fails against MacEachern because (1) Plaintiff is not the registrant and (2) no Defendant is alleged to be using the MACHINE HEAD trademarks without the Band's consent.

"The Seventh Cause of Action for negligence fails because the only allegedly negligent actions are those Plaintiff alleges 'resulted in Plaintiff being unceremoniously and publicly 'fired' from the Band….' The elements of negligence are not alleged against MacEachern, and indeed they cannot be, considering the Complaint alleges he was hired by the Band some four (4) months after Plaintiff was expelled.

"In the Complaint, Plaintiff likewise alleges the First Cause of Action for trademark infringement, the Seventh Cause of Action for negligence and the Ninth Cause of Action for unfair competition against Nuclear Blast, the Band's post-expulsion record label. In addition, Plaintiff alleges the Fifth and Sixth Causes of Action for intentional and negligent interference with prospective economic advantage, respectively. These claims also fail, and should be dismissed as against Nuclear Blast.

"The First Cause of Action for trademark infringement fails against Nuclear Blast for the same reasons it fails as to the other Defendants. The Seventh Cause of Action for negligence fails because, again, Nuclear Blast is only alleged to have 'entered into a new record contract with' the Band sometime 'after the expulsion of Plaintiff….' The elements of negligence are not alleged, and the naked allegation that 'On information and belief, [Nuclear Blast] supported and aided Flynn, Huston, and the other Band members' efforts to expel Plaintiff from the Band' does not suffice. No duty, breach, causation or damages proximately caused by Nuclear Blast or can be alleged against Nuclear Blast, and the Seventh Cause of Action should be dismissed.

"The same is true for the Ninth Cause of Action for unfair competition. The naked allegation that 'On information and belief, [Nuclear Blast] supported and aided Flynn, Huston, and the other Band members' efforts to expel Plaintiff from the Band' does not amount to any unlawful, unfair or fraudulent business act or practice. The Ninth Cause of Action should be dismissed as well.

"The most Plaintiff alleges is that '[Nuclear Blast], Flynn and Huston wrongfully and with reckless disregard conspired to expel and then did expel Plaintiff from the Band prior to signing the Band's new record deal in an attempt to preclude Plaintiff from enjoying the profits of the new record deal. Even beyond the fact that only the Band could expel Plaintiff, none of Nuclear Blast's alleged conduct is independently wrongful."

A hearing on MACHINE HEAD's motion to dismiss Duce's lawsuit is scheduled for June 5 at the U.S. District Court in San Francisco, California.

In his original complaint, Duce claimed that although MACHINE HEAD formed a general partnership and a corporation under which each member owned 25 percent, the band's guitarist/vocalist, Robert Flynn, got a larger portion of the band's income.

MACHINE HEAD's 2009 tour, which included dates with METALLICA, grossed more than $2 million. A 2012 Europe tour grossed more than $3 million, according to Duce's complaint.

Flynn wrote about Duce's departure in a "diary entry" on MACHINE HEAD's web site by "directly attacking plaintiff's work ethic," Duce said in the complaint.

"Therein, Flynn stated, inter alia, 'We may have fired Adam on 2-11-13, but Adam quit MACHINE HEAD well over a decade ago. He just never bothered to tell anyone ... but we all knew it.' Flynn went on further in the diary entry, continuing to say about plaintiff, 'No matter how un-happy [sic] or fed up he got, quitting the band would be seen as 'losing' or a 'failure.' Truth be told, he was sick of it. Sick of touring, sick of recording, sick of practicing, sick of looking at album artwork, sick of being-on-a-team-but-never-getting-the-ball, sick of yearning-for-the-honeymoon-to-resume when 20 years deep it never does. Sick of never quite hitting the big-time, sick of carving the niche ... sick of caring.'" (Ellipses in complaint.)

Adam claimed that Flynn's "diary entry was libelous per se in that in contained untrue statements made to third parties that tended to harm [Duce] in his reputation and occupation." Duce added that "Flynn published this diary entry without making a reasonable effort to ascertain the truthfulness of its contents." In addition, "Flynn was not privileged to make such statements in the diary entry. As a direct, proximate result of this diary entry, [Duce] has been damaged in an amount to be proven at trial, but in any event in excess of $1,000,000."

Duce, who still holds interest in the band's partnership and company, claimed that no agreement was ever made about his share of future royalties and profits. He said the other bandmembers "simply kicked him out of the band and presumed he would forget about over two decades of hard work, dedication, and effort he put into the Band." Duce also said his likeness is used on the band's web site and in promotions without his authorization.

Jared MacEachern made his live debut with MACHINE HEAD on June 24, 2013 in Spokane, Washington.

Adam Duce photo above courtesy of FaceCulture.nl