United States District Court, N.D. New York
MEMORANDUM-DECISION AND ORDER
Lawrence E. Kahn, U.S. District Judge
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. 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.
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.
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.
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.
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”).
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.
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,
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.
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