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Palomo v. Demaio

United States District Court, N.D. New York

January 30, 2017

SERGIO FRANCISCO PUEBLA PALOMO, Plaintiff,
v.
JOSEPH G. “JOEY” DEMAIO, et al., Defendants.

          MEMORANDUM-DECISION AND ORDER

          Lawrence E. Kahn, U.S. District Judge

         I. INTRODUCTION

         Plaintiff Sergio Francisco Puebla Palomo commenced this action on December 28, 2015, against Defendants Joseph G. “Joey” DeMaio; Circle Song Music, LLC; God of Thunder Productions, Ltd.; Magic Circle Music Guitars, LLC; Magic Circle Music, Ltd. (“Magic Circle”); Caromark, LLC; and John Does 1-10 alleging conversion, trespass to chattels, replevin, conspiracy to commit conversion, conspiracy to commit trespass to chattels, and interference with prospective economic advantage. Dkt. No. 1 (“Complaint”) ¶ 4.[1] Presently before the Court is Defendants' motion to dismiss. Dkt. Nos. 13 (“Motion”), 13-1 (“Memorandum”). For the following reasons, Defendants' Motion is granted in part and denied in part.

         II. BACKGROUND

         Palomo is a professional musician, and from 1997 to 2005 he was the musical director and keyboard player for Cristal y Acero, a Mexican heavy metal band. Compl. ¶ 19. In 2005, Palomo moved to Auburn, New York, to work with the band HolyHell, which was produced by DeMaio and his production company, Magic Circle. Id. ¶ 21. In addition to his work with HolyHell, Palomo served as music director for Magic Circle. Id. ¶ 22. As music director, he recorded, performed keyboards, and coordinated musical arrangements for various Magic Circle artists. Id.

         In the summer of 2012, HolyHell went on a European tour with Manowar-the band for which DeMaio plays bass-and the bands were scheduled for an additional twenty-eight-date tour in Europe during the fall of 2012. Id. ¶¶ 29-30. But DeMaio, without consulting HolyHell, removed HolyHell from the fall tour. Id. ¶ 28. HolyHell, already frustrated with DeMaio's business practices, terminated its relationship with Magic Circle and DeMaio shortly afterward. Id. Palomo continued to work as music director for Magic Circle, but he was unable to obtain continued work authorization and resigned from his position in March 2013. Id. ¶ 22.[2]

         Palomo's musical equipment, however, remained in Europe until April 2013, when it was finally shipped back to the United States following the end of Manowar's European tour. Id. ¶ 33. When it arrived in the United States, DeMaio took possession of Palomo's it and refused to return it unless Palomo agreed to sign a waiver preventing Palomo from pursuing any legal action against Defendants, transferring ownership of various recordings and copyrights to Defendants, and “irrevocably appoint[ing] DeMaio as Mr. Palomo's attorney in fact.” Id. ¶ 36. Palomo declined to sign the agreement and, despite repeated requests, DeMaio refused to return the equipment. Id. ¶¶ 37-38. Palomo's musical equipment is valuable, unique, and essential to his work. Id. ¶ 25. Palomo spent $65, 000 to acquire the equipment, another $20, 000 to customize it, and hundreds of hours programming it. Id. There is no comparable equipment on the market that Palomo could purchase to serve as a replacement. Id.

         On December 28, 2015, Palomo initiated this lawsuit, seeking the value of the musical equipment, compensation for his lost income and career opportunities, return of the musical equipment, and punitive damages. Id. ¶ 81. Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Mem. at 1. Palomo opposes the Motion, Dkt. No. 14 (“Opposition”), and Defendants filed a reply, Dkt. No. 17 (“Reply”).

         III. LEGAL STANDARD

         To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court must accept as true the factual allegations contained in a complaint and draw all inferences in favor of the plaintiff. Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006). Plausibility, however, requires “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the alleged misconduct].” Twombly, 550 U.S. at 556.

         The plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555). Where a court is unable to infer more than the mere possibility of the alleged misconduct based on the pleaded facts, the pleader has not demonstrated that she is entitled to relief and the action is subject to dismissal. Id. at 678-79.

         IV. DISCUSSION

         In the Complaint, Palomo asserts claims of conversion, trespass to chattels, replevin, conspiracy to commit conversion, conspiracy to commit trespass to chattels, and interference with prospective economic advantage. Defendants move to dismiss those claims on the following grounds: (1) Palomo's allegations of trespass to chattels, conspiracy to commit trespass to chattels, and tortious interference with prospective economic advantage are deficient as a matter of law; (2) Palomo's conversion, conspiracy to commit conversion, and replevin claims are barred by the applicable statute of limitations; and (3) defendant Magic Circle must be dismissed because that entity did not exist during the relevant time period. Mem. at 1

         A. ...


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