Cesar Rodriguez Ramirez - Complaint PDF

Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 1 of 27
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7495 West Azure Drive, Suite 233

Las Vegas, Nevada 89130
Main (702) 541-7888 Fax (702) 541-7899
GIBSON & TREU LLP

Telephone 702.541.7888
Facsimile 702.541.7899
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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GIBSON & TREU LLP
STEVEN A. GIBSON, ESQ.

Nevada Bar No. 6656
sgibson@gibsontreu.com
JODI DONETTA LOWRY, ESQ.
Nevada Bar No. 7798
jlowry@gibsontreu.com
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CESAR RODRIGUEZ RAMIREZ, an

individual,
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COMPLAINT
Plaintiff,
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Case No.: 2:15-cv-2472
v.
(JURY TRIAL REQUESTED)
NUEVO ORDEN MUSIC LLC, a

California limited liability company;
NUEVO ORDEN MUSIC, a California
general partnership; MARTHA FRAILE,
an individual; JOS DAVID
HERNANDEZ, an individual; ENRIQUE
NARANJO, an individual; and DANIEL
FERNANDEZ, an individual,
Defendants.
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Plaintiff Cesar Rodriguez Ramirez (Plaintiff or Mr. Rodriguez), by and

through its counsel, GIBSON & TREU LLP, complains and alleges as follows against
Defendants Nuevo Orden Music LLC (NOM LLC), Nuevo Orden Music (NOM
Partnership), Martha Fraile (Ms. Fraile), Jos David Hernandez (Mr.
Hernandez), Enrique Naranjo (Mr. Naranjo), and Daniel Fernandez (Mr.
Fernandez) (collectively known herein as the Defendants), on information and
belief, that the following are and have been true at all times relevant to this lawsuit
unless otherwise indicated specifically to the contrary:
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NATURE OF ACTION

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This is an action brought under this Courts original jurisdiction for
declaratory judgment of copyright and trademark ownership by Plaintiff Cesar
Rodriguez Ramirez (Mr. Rodriguez), and under this Courts supplemental
jurisdiction for breach of contract under California law against Nuevo Orden Music,
a California general partnership (NOM Partnership), by and through its partners
Martha Fraile (Ms. Fraile), Jos David Hernandez (Mr. Hernandez), Enrique
Naranjo (Mr. Naranjo), and Daniel Fernandez (Mr. Fernandez); breach of the
covenant of good faith and fair dealing under California law by NOM Partnership;
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fraudulent inducement under Nevada law by NOM Partnership; breach of contract
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under California law against Nuevo Orden Music LLC, a California limited liability
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company (NOM LLC); breach of the covenant of good faith and fair dealing under
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California law by NOM LLC; fraudulent presentment under Nevada law by NOM
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LLC, Ms. Fraile, Mr. Hernandez, and Mr. Fernandez; and unjust enrichment under
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Nevada law of all Defendants.
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2.
This Court additionally has diversity jurisdiction over this entire
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matter, because Mr. Rodriguez is a resident of Nevada and all Defendants are
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residents of either California or Mexico.

PARTIES
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3.
Mr. Rodriguez is an individual domiciled in Nevada.
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4.
NOM Partnership is a general partnership with its principal place of
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business in California.
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5.
Ms. Fraile is a general partner in NOM Partnership.
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6.
Ms. Fraile is an individual domiciled in California.
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7.
Mr. Hernandez is a general partner in NOM Partnership.
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8.
Mr. Hernandez is an individual domiciled in California.
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9.
Mr. Naranjo is a general partner in NOM Partnership.
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10.
Mr. Naranjo is an individual domiciled in Mexico.

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Mr. Fernandez is a general partner in NOM Partnership.
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Mr. Fernandez is an individual domiciled in Mexico.
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NOM LLC is a California limited liability company.

SUBJECT-MATTER JURISDICTION
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This Court has subject-matter jurisdiction over this action under 28
U.S.C. 1338(a), because Plaintiffs First Cause of Action is dependent on this
Courts interpretation of the Copyright Act, and Plaintiffs Second Cause of Action is
dependent on this Courts interpretation of the Lanham Act, and Plaintiffs other
claims for relief are so related to such claims that they form part of the same case or
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controversy under Article III of the United States Constitution and are thus
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encompassed within this Courts supplemental jurisdiction pursuant to 28 U.S.C.
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1367.
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This Court has subject-matter jurisdiction over this action under 28
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U.S.C. 1332(a)(1), because Plaintiff is a citizen of Nevada and Defendants
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(including the general partners of NOM Partnership) are residents of other states
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and countries, and the amount in controversy in this action exceeds $75,000.
PERSONAL JURISDICTION
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This Court has personal jurisdiction over NOM Partnership, and thus
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NOM Partnerships general partners individually, because NOM Partnership
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fraudulently solicited Mr. Rodriguez, a Nevada citizen, to enter into a contract with
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NOM Partnership, through in-person communications taking place in Nevada and
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electronic communications directed to Mr. Rodriguez in Nevada.
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This Court has personal jurisdiction over NOM Partnership, and thus
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NOM Partnerships general partners individually, because NOM Partnerships
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general partners Ms. Fraile and Mr. Hernandez negotiated two of the contracts at
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issue in this matter with Mr. Rodriguez, a Nevada citizen, while Ms. Fraile and Mr.
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Hernandez were physically present in the State of Nevada.
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This Court has personal jurisdiction over NOM Partnership because
Defendant NOM Partnership entered or attempted to enter into a contract intended
to reach out beyond the state in which NOM Partnership had its principal place of
business and create a continuing relationship and obligation with Mr. Rodriguez, a
Nevada citizen.
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This Court has personal jurisdiction over NOM LLC because
Defendant NOM LLC entered or attempted to enter into a contract intended to
reach out beyond NOM LLCs state of organization and create a continuing
relationship and obligation with Mr. Rodriguez, a Nevada citizen.
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GIBSON & TREU LLP
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This Court has personal jurisdiction over NOM Partnership and NOM
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LLC because NOM Partnership and NOM LLC claim ownership of copyrights and a
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mark that NOM Partnership and NOM LLC knew were owned by a Nevada
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resident.
VENUE
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Venue is proper in this Court under 28 U.S.C. 1391(b)(2), because a
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substantial part of the events giving rise to the claims set forth herein occurred in
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the District of Nevada.

GENERAL ALLEGATIONS
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Mr. Rodriguez is a professional musician who performs in the genre of
popular Spanish-language music.

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No later than June 7, 2014, Mr. Hernandez, Ms. Fraile, Mr. Naranjo,
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and Mr. Fernandez, without limitation, were associated with one another to carry on
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as co-owners a business for profit under the trade name NUEVO ORDEN MUSIC.
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On or about April 9, 2014, Mr. Rodriguez met Mr. Hernandez in Las
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Vegas, Nevada, where Mr. Hernandez represented to Mr. Rodriguez that Mr.
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Hernandez was a music professional with extensive experience and professional
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contacts in the popular Spanish-language music industry who led a team for
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purposes of music production and promotion.

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25.
In the time period between April 9, 2014 and June 7, 2014 (the
Inducement Period), Mr. Hernandez represented to Mr. Rodriguez almost daily,
via telephonic and electronic communications, as follows: (a) that Mr. Hernandez
was in the process of creating a record label with full production and promotional
capabilities from which Mr. Rodriguez could benefit, (b) that Mr. Hernandez and
others, including without limitation Ms. Fraile, Mr. Naranjo, and Mr. Fernandez
(collectively the Relevant Professionals) had the experience, knowledge, and
professional contacts in the popular Spanish-language music industry, in (at a
minimum) the United States and in Mexico, to obtain significant professional
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exposure, performance bookings, and record sales for Mr. Rodriguez, and (c) that if
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Mr. Rodriguez signed an exclusive contract with Mr. Hernandezs to-be-formed
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record label, the Relevant Professionals, who would be actively involved in
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promoting Mr. Rodriguezs performances and music would remain so involved for
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the duration of any such exclusive contract (the Inducement Period
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Misrepresentations).
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On or about May 15, 2015, Mr. Rodriguez met Ms. Fraile in person in
Las Vegas, Nevada (the May 15 Las Vegas Meeting).

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During the May 15 Las Vegas Meeting, Ms. Fraile represented to Mr.
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Rodriguez that the Relevant Professionals had the experience, knowledge, and
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professional contacts in the popular Spanish-language music industry, in (at a
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minimum) the United States and Mexico, to obtain significant professional
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exposure, performance bookings, and record sales for Mr. Rodriguez (the May 15
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On June 7, 2014, at the request of Mr. Hernandez and Ms. Fraile, Mr.
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Rodriguez traveled from Las Vegas to Riverside, California, where Mr. Rodriguez
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met in person with the Relevant Professionals at Mr. Hernandezs, Ms. Frailes, Mr.
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Naranjos, and Mr. Fernandezs invitation (the June 7 Riverside Meeting).
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During the June 7 Riverside Meeting, Mr. Hernandez, Ms. Fraile, Mr.
Naranjo, and Mr. Fernandez represented to Mr. Rodriguez that the Relevant
Professionals, who would be working under the auspices of an entity to be doing
business as Nuevo Orden Music, (a) had the experience, knowledge, and
professional contacts in the popular Spanish-language music industry, in the
United States and Mexico at a minimum, to obtain significant professional
exposure, performance bookings, and record sales for Mr. Rodriguez, and (b) would
remain actively involved with promotion of Mr. Rodriguezs performances and music
for the duration of any exclusive contract Mr. Rodriguez signed with the entity to be
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doing business as Nuevo Orden Music (the June 7 Capability Misrepresentations).
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During the June 7 Riverside Meeting, Mr. Hernandez, Ms. Fraile, Mr.
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Naranjo, and Mr. Fernandez represented to Mr. Rodriguez that if Mr. Rodriguez
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entered into an exclusive recording contract with the recording label owned and
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operated by Mr. Hernandez, Ms. Fraile, Mr. Naranjo, and Mr. Fernandez, the
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Relevant Professionals would, jointly and severally, make best efforts to ensure that
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Mr. Rodriguez obtained significant professional exposure, performance bookings,
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and record sales for Mr. Rodriguez (the June 7 Best Efforts Misrepresentations;
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collectively with the June 7 Capability Misrepresentations, the June 7
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During the June 7 Riverside Meeting, in reliance on the Inducement
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Misrepresentations, the May 15 Misrepresentations, and the June 7
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Misrepresentations, Mr. Rodriguez entered into an Artist-Agent Agreement
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(attached hereto as Exhibit 1) with NOM Partnership, by and through NOM
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Partnerships general partners Mr. Hernandez and Ms. Fraile.
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32.
Among the provisions of the Artist-Agent Agreement, in the
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unnumbered section entitled Agency (page 1), is the following (the Best Efforts
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Covenant):
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The Agent agrees to use his or her best efforts in
submitting the Artists work for purpose of securing
assignments, sales and shows for the Artist. The
Agent shall negotiate the terms of any assignment,
sale or booking that is offered, but the Artist shall
have the right to reject any assignment if the Artist
finds the terms thereof unacceptable only in the
case a valid reason is determined.

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33.
During the June 7 Riverside Meeting, in reliance on the Inducement
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Misrepresentations, the May 15 Misrepresentations, and the June 7
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Misrepresentations, Mr. Rodriguez entered into a Recording Contract (the June
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Recording Contract, attached hereto as Exhibit 2) on which the other contracting
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party is identified as NUEVO ORDEN MUSIC (herein the Company) (page 1).
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34.
As of June 7, 2014, NOM LLC had not been formed.
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35.
The June Recording Contract binds Mr. Rodriguez for seven years to
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record exclusively on NOM Partnerships label, absent NOM Partnerships
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permission.
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36.
The June Recording Contract requires the making of at least 14
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master recordings in seven years, including, at least once per year, one master
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recording of at least between 45 minutes and 120 minutes. minutes duration [sic].
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The June Recording Contract provides that NOM Partnership shall be:
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the sole owner and will have perpetual use and
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control of all masters and CDs, tapes, and other
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audio or visual recording produced under this
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Agreement.
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38.
The June Recording Contract does not contain the word copyright.
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39.
The June Recording Contract provides that Mr. Rodriguez:
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will permit the use of CESAR RODIGUEZs [sic]
likeness or other identifying characteristics by
NUEVO ORDEN MUSIC for the promotion of sales
of records produced under this Agreement. During
the term of this Agreement, NUEVO ORDEN
MUSIC will have the sole right to the use of
CESAR RODIGUEZs name, voice, likeness, sound,
Visual [capitalization sic] and similar
characteristics for the purpose of advertising,
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promoting, selling, and otherwise merchandising
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CDs, tapes, and other audio, Visual recordings [all
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sic] from the masters produced by CESAR
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RODIGUEZ under the terms of this Agreement.
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40.
The June Recording Contract does not contain the words trademark,
service mark, or assignment.

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On or about August 26, 2014, NOM LLC filed an application with the
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United States Patent and Trademark Office for registration of the mark CESAR
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RODRIGUEZ Y SU BANDA MIX (the Mark).
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In August and September 2014, Mr. Hernandez, Ms. Fraile, Mr.
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Naranjo, Mr. Fernandez, and NOM LLC made arrangements for Mr. Rodriguez to
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go on a promotional tour in Mexico (the Mexico Tour).
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In reliance on representations made by Mr. Hernandez, Ms. Fraile, Mr.
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Naranjo, and Mr. Fernandez regarding the promotional support that would be
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provided to Mr. Rodriguez on the Mexico Tour, and in acceding to the express
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request of Mr. Hernandez, Mr. Rodriguez resigned from Mr. Rodriguezs job in Las
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Vegas, Nevada in order to be able to travel for several weeks on the Mexico Tour.
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While Mr. Rodriguez was on the Mexico Tour, Mr. Rodriguez stayed at
the home of Mr. Fernandez in Tonala, Jalisco, Mexico.

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Fraile, and Mr. Fernandez asked Mr. Rodriguez, over the course of multiple
teleconferences conducted via the WhatsApp telemessaging service, during the last
week of August 2014 and the first week of September 2014 (the Calls To Mexico),
to sign a new proposed contract (the New Proposed Contract) with NOM LLC.
46.
During the Calls To Mexico, Mr. Hernandez, Ms. Fraile, and Mr.
Fernandez represented that the purpose of the New Proposed Contract would be to
decrease the number of master recordings over seven years from fourteen, as
required in the June Recording Contract, to seven.
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While Mr. Rodriguez was on the Mexico Tour, Mr. Hernandez, Ms.
GIBSON & TREU LLP
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Fernandez represented that the New Proposed Contract contained a provision
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mandating a payment of $2 million from any other record label with whom Mr.
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Rodriguez signed during the term of the New Proposed Contract.
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48.
During the time period of the Calls To Mexico, Mr. Rodriguez was
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outside the United States and had no opportunity to consult with counsel or
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independent business advisors regarding the New Proposed Contract.
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49.
During the time period of the Calls To Mexico, Mr. Rodriguez was so
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concerned about the low attendance and lack of revenue generated to date by the
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Mexico Tour that Mr. Rodriguez feared that NOM LLC would not have funds to
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ensure Mr. Rodriguez was able to return to the United States.
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Fernandez represented that time was of the essence for Mr. Rodriguez to sign the
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New Proposed Contract and that Mr. Rodriguez could not wait to sign the New
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Proposed Contract until after Mr. Rodriguez had returned to the United States from
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the Mexico Tour.
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51.
On or about September 3, 2014, via teleconference conducted through
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WhatsApp from Tonala, Jalisco, Mexico, Mr. Rodriguez agreed to sign the New
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Proposed Contract.
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Mr. Rodriguez a document written in Spanish and entitled Contrato y Acuerdo de
grabacin (capitalization sic; the September Contract, attached hereto as Exhibit
3; uncertified English translation attached hereto as Exhibit 4), via facsimile
transmission to Tonala, Jalisco, Mexico.

53.
On or about September 3, 2015, Mr. Fernandez delivered the
September Contract to Mr. Rodriguez and, after Mr. Rodriguez had signed the
September Contract, returned the signed September Contract to Ms. Fraile and Mr.
Hernandez via facsimile.
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On or about September 3, 2014, an unknown person at NOM LLC sent
GIBSON & TREU LLP
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On or about September 3, 2014, Mr. Rodriguez relied on the
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representations of Mr. Hernandez, Ms. Fraile, and Mr. Fernandez regarding the
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difference between the June Recording Contract and the September Contract and
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signed the September Contract.
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55.
In fact, the September Contract does not change Mr. Rodriguez or
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NOM Partnerships recording obligation from fourteen master recordings over seven
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years to seven master recordings over seven years.
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56.
In fact, the September Contract provides that if Mr. Rodriguez violates
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the September Contract in any way, Mr. Rodriguez himself must pay NOM LLC
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liquidated damages of at least two million dollars (the Misrepresented Liquidated
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Damages Provision).
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57.
The September Contracts terms regarding ownership of master
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recordings are not materially different from those set forth in the June Recording
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Contract.
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58.
The September Contract does not contain the Spanish phrases
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derechos de autor (rights of the author), propriedad literaria (literary
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property), propriedad artistica (artistic property), or any other Spanish word or
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phrase that approximates the English word copyright.
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name and likeness are not materially different from those set forth in the June
Recording Contract.
60.
The September Contract does not contain the Spanish word marca
(trademark) or any other Spanish word or phrase that approximates the English
word trademark or phrase service mark.
61.
The Mexico Tour was a money-losing endeavor for Mr. Rodriguez.
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Mr. Rodriguez gained no income from participating in the Mexico Tour.
63.
Mr. Rodriguez actually had to provide his own funds in support of the
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The September Contracts terms regarding use of Mr. Rodriguezs
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Mexico Tour.
64.
On or about September 22, 2015, the United States Patent and
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Trademark Office issued registration on the Principal Register of Trademarks to
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NOM LLC for the Mark in International Class 9 with respect to Digital materials,
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namely, cds, dvds, downloadable music featuring Regional Mexican music (all
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capitalization sic), and in International Class 41 with respect to Entertainment in
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the nature of live performances by a musical band.
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65.
The registration issued by the United States Patent and Trademark
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Office with respect to the Mark reflects a date of first use of January 1, 2014 with
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respect to all scopes of use recited in that registration.
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66.
On or about August 4, 2015 and on or about September 10, 2015, Mr.
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Rodriguez, through counsel, demanded the transfer to Mr. Rodriguez from NOM
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LLC of all right, title, and interest to Mr. Rodriguezs copyrights and to the Mark.
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On or about September 23, 2015, NOM LLC, through counsel, refused
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to transfer Mr. Rodriguezs right, title, and interest to Mr. Rodriguezs copyrights
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and to the Mark without significant extracontractual payments.
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68.
In the eighteen months following Mr. Rodriguez entry into the Artist-
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Agent Agreement and the June Recording Contract, none of the Defendants ever
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effectuated Mr. Rodriguez recording of a master recording between 45 and 120

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minutes long, as required by the June Recording Contract and the September
Contract.
69.
Agent Agreement and the June Recording Contract, many of the Relevant
Professionals, including without limitation Ms. Fraile, Mr. Naranjo, and Mr.
Fernandez (the Departing Relevant Professionals), ceased to be actively involved
with NOM Partnership and NOM LLC, in contravention of the Inducement Period
Misrepresentations and the June 7 Capability Misrepresentations.

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70.
The Departing Relevant Professionals ceased to be actively involved
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with NOM Partnership and NOM LLC because of Mr. Hernandezs mismanagement
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of NOM Partnership and NOM LLC.
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71.
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Agent Agreement and the June Recording Contract, Mr. Rodriguez has not obtained
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meaningful professional exposure, performance bookings, or record sales.
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72.
Mr. Rodriguez has not obtained meaningful professional exposure,
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performance bookings, or record sales, at least in part, because of the cessation of
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active involvement of the Departing Relevant Professionals with NOM Partnership
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and NOM LLC.
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73.
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performance bookings, or record sales, at least in part, because of Mr. Hernandez
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mismanagement and undercapitalization of NOM Partnership and NOM LLC.
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74.
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performance bookings, or record sales, at least in part, because of the Relevant
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Professionals inappropriate marketing of Mr. Rodriguez as a Regional Mexican
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musician only.
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performance bookings, or record sales, at least in part, because the exclusivity
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clauses contained within the Artist-Agent Agreement, the June Recording Contract,
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and the September Contract prevent Mr. Rodriguez from being able to engage in
Mr. Rodriguezs own marketing efforts or to engage new, competent marketing
representation.
76.
All Defendants gained a benefit from being able to claim that Mr.
Rodriguez was under contract with the record label owned and operated by NOM
Partnership and NOM LLC, because the enhancement of Defendants reputations
and portfolios provided a professional benefit to Defendants and allowed
Defendants to recruit more clients.
FIRST CLAIM FOR RELIEF
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DECLARATORY JUDGMENT REGARDING MR. RODRIGUEZS
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OWNERSHIP OF COPYRIGHTS UNDER FEDERAL LAW
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(AGAINST NOM PARTNERSHIP AND NOM LLC)
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77.
Mr. Rodriguez reincorporates and realleges all the allegations set forth
78.
NOM Partnership maintains that the June Recording Contract
above.
transfers copyrights from Mr. Rodriguez to NOM Partnership.

79.
NOM LLC maintains that the September Contract transfers
copyrights from Mr. Rodriguez to NOM LLC.

80.
The language of the June Recording Contract does not comply with the
requirements of 17 U.S.C. 204 regarding effectuation of copyright transfers.

81.
The language of the September Contract does not comply with the
requirements of 17 U.S.C. 204 regarding effectuation of copyright transfers.

82.
The ownership of copyrights under the terms of the June Recording
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Contract presents a case or controversy with respect to which this Court may enter
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declaratory judgment.
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83.
The ownership of copyrights under the terms of the September
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Contract presents a case or controversy with respect to which this Court may enter
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declaratory judgment pursuant to 28 U.S.C. 2201.

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copyrights to which the June Recording Contract and/or the September Contract
purport to transfer title to any of the Defendants are actually the property of Mr.
Rodriguez, with title owned by Mr. Rodriguez.
SECOND CLAIM FOR RELIEF
DECLARATORY JUDGMENT REGARDING MR. RODRIGUEZS
OWNERSHIP OF MARKS UNDER FEDERAL LAW
(AGAINST NOM PARTNERSHIP AND NOM LLC)
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Mr. Rodriguez requests an order of this Court declaring that all
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85.
86.
At least as early as January 1, 2014, Mr. Rodriguez provided goods and
above.
services under the Mark.

87.
The June Recording Contract contains no provision assigning the Mark
to NOM Partnership.
88.
The June Recording Contract contains no provision transferring
ownership of the Mark to NOM Partnership.

89.
The June Recording Contract contains no provision assigning or
otherwise transferring goodwill associated with the Mark to NOM Partnership.

90.
The June Recording Contract does not contain or constitute a written
assignment or other transfer of the Mark as required by 15 U.S.C. 1060.

91.
The June Recording Contract does not establish any ownership
interest on the part of NOM Partnership in the Mark.

92.
The September Contract contains no provision assigning the Mark to
NOM LLC.
93.
The September Contract contains no provision transferring ownership
of the Mark to NOM LLC.

94.
The September Contract contains no provision assigning or otherwise
transferring goodwill associated with the Mark to NOM LLC.

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assignment or other transfer of the Mark as required by 15 U.S.C. 1060.

96.
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the part of NOM LLC in the Mark.

97.
NOM LLC maintains that NOM LLC is the rightful owner of the Mark.
98.
The ownership of the Mark presents a case or controversy with respect
to which this Court may enter declaratory judgment pursuant to 28 U.S.C. 2201.
99.
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Mr. Rodriguez requests an order of this Court declaring that Mr.
Rodriguez is the sole owner of the Mark, with title owned by Mr. Rodriguez.
100.
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The September Contract does not establish any ownership interest on
GIBSON & TREU LLP
The September Contract does not contain or constitute a written
Mr. Rodriguez requests an order of this Court certifying to the Director
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of the United States Patent and Trademark Office pursuant to 15 U.S.C. 1119
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that the Principal Register of Trademarks should be rectified to reflect Mr.
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Rodriguezs sole ownership of the Mark.
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THIRD CLAIM FOR RELIEF
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BREACH OF CONTRACT (ARTIST-AGENT AGREEMENT) UNDER
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CALIFORNIA LAW
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(AGAINST NOM PARTNERSHIP)
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101.
102.
The Artist-Agent Contract embodied a bilateral offer and acceptance
above.
by Mr. Rodriguez and by NOM Partnership.

103.
The Artist-Agent Contract reflected a transaction of bilateral
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consideration whereby Mr. Rodriguez was exclusively obligated to use NOM
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Partnerships services to market, sell, and distribute Mr. Rodriguezs artistic works
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and to pay NOM Partnership, ostensibly by and through Ms. Fraile and Mr.
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Hernandez, a commission based on such activities.
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104.
The Artist-Agent Contract reflected a transaction of bilateral
consideration.
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105.
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respect to the Artist-Agent Agreement.

106.
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Covenant as required by the Artist-Agent Agreement.

107.
NOM Partnership thus breached the Artist-Agent Agreement.
108.
Mr. Rodriguez did not excuse NOM Partnership from meeting the
requirements of the Best Efforts Covenant.

109.
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NOM Partnership failed to meet the requirements of the Best Efforts
GIBSON & TREU LLP
Mr. Rodriguez has performed all of Mr. Rodriguezs obligations with
No condition was unsatisfied that excused NOM Partnership from
meeting the requirements of the Best Efforts Covenant.
10
110.
The Artist-Agent Agreement was for a lawful purpose.
11
111.
Mr. Rodriguez is entitled to compensatory and consequential damages
12
arising out of NOM Partnerships breach of the Artist-Agent Agreement.
13
FOURTH CLAIM FOR RELIEF
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BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING
15
(ARTIST-AGENT AGREEMENT) UNDER CALIFORNIA LAW
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17
18
19
112.
113.
NOM Partnership had the obligation under the Artist-Agent
above.
20
Agreement to do nothing that would injure Mr. Rodriguezs right to receive the
21
benefits of the Artist-Agent Agreement.
22
23
24
114.
NOM Partnerships acts and omissions injured Mr. Rodriguezs right to
receive the benefits of the Artist-Agent Agreement.

115.
25
arising out of NOM Partnerships breach of the covenant of good faith and fair
26
dealing implied in the Artist-Agent Agreement.
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FIFTH CLAIM FOR RELIEF
FRAUDULENT INDUCEMENT (ARTIST-AGENT AGREEMENT) UNDER
NEVADA LAW
(AGAINST NOM PARTNERSHIP, MS. FRAILE, MR. HERNANDEZ,
MR. NARANJO, AND MR. FERNANDEZ)
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7
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GIBSON & TREU LLP
116.
117.
NOM Partnership, by and through Ms. Fraile, Mr. Hernandez, Mr.
above.
Naranjo, and Mr. Fernandez, made false representations to Mr. Rodriguez in the
10
course of inducing Mr. Rodriguez to enter into the Artist-Agent Agreement,
11
including, without limitation, the June 7 Misrepresentations.
12
118.
NOM Partnership, by and through Ms. Fraile, made false
13
representations to Mr. Rodriguez in the course of inducing Mr. Rodriguez to enter
14
into the Artist-Agent Agreement, including, without limitation, the May 15
15
Misrepresentations.
16
119.
NOM Partnership, by and through Mr. Hernandez, made false
17
18
into the Artist-Agent Agreement, including, without limitation, the Inducement
19
Period Misrepresentations.
20
120.
21
Naranjo, and Mr. Fernandez, knew that Ms. Fraile and Mr. Hernandez had an
22
insufficient basis for making the June 7 Misrepresentations.
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121.
NOM Partnership, by and through Ms. Fraile, knew that Ms. Fraile
had an insufficient basis for making the May 15 Misrepresentations.

122.
NOM Partnership, by and through Mr. Hernandez, knew that Mr.
26
Hernandez had an insufficient basis for making the Inducement Period
27
Misrepresentations.
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17
123.
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2
Naranjo, and Mr. Fernandez, made the June 7 Misrepresentations with the
intention to therewith induce Mr. Rodriguez to consent to the formation of the
Artist-Agent Agreement.
124.
Misrepresentations with the intention to therewith induce Mr. Rodriguez to consent
to the formation of the Artist-Agent Agreement.
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125.
12
Rodriguez to consent to the formation of the Artist-Agent Agreement.

126.
127.
128.
129.
130.
Mr. Rodriguez has been damaged as a result of Mr. Rodriguezs
reliance on the May 15 Misrepresentations.

131.
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reliance on the June 7 Misrepresentations.
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20
Mr. Rodriguez justifiably relied on the Inducement Period
Misrepresentations in deciding to enter into the Artist-Agent Agreement.
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18
Mr. Rodriguez justifiably relied on the May 15 Misrepresentations in
deciding to enter into the Artist-Agent Agreement.
15
16
Mr. Rodriguez justifiably relied on the June 7 Misrepresentations in
deciding to enter into the Artist-Agent Agreement.
13
14
NOM Partnership, by and through Mr. Hernandez, made the
Inducement Period Misrepresentations with the intention to therewith induce Mr.
11
Main (702) 541-7888 Fax (702) 541-7899
NOM Partnership, by and through Ms. Fraile, made the May 15
GIBSON & TREU LLP
reliance on the Inducement Period Misrepresentations.
23
SIXTH CLAIM FOR RELIEF
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BREACH OF CONTRACT (JUNE RECORDING CONTRACT) UNDER
25
CALIFORNIA LAW
26

132.
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above.
18
133.
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acceptance by Mr. Rodriguez and by NOM Partnership.

134.
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135.
136.

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NOM Partnership failed to meet NOM Partnerships obligations under
the June Recording Contract.
137.
NOM Partnership thus breached the June Recording Contract.
10
138.
Mr. Rodriguez did not excuse NOM Partnership from meeting the
11
GIBSON & TREU LLP
Mr. Rodriguez has performed or attempted to perform all of Mr.
Rodriguez obligations with respect to the June Recording Contract.
7
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The June Recording Contract reflected a transaction of bilateral
consideration.
5
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The June Recording Contract embodied a bilateral offer and
requirements of the June Recording Contract.

139.
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No condition was unsatisfied that excused NOM Partnership from
meeting the requirements of the June Recording Contract.
14
140.
The June Recording Contract was for a lawful purpose.
15
141.
16
arising out of NOM Partnerships breach of the June Recording Contract.
17
SEVENTH CLAIM FOR RELIEF
18
19
(JUNE RECORDING CONTRACT) UNDER CALIFORNIA LAW
20
21
22
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142.
143.
NOM Partnership had the obligation under the June Recording
above.
24
Contract to do nothing that would injure Mr. Rodriguezs right to receive the
25
benefits of the June Recording Contract.
26
27
144.
NOM Partnerships acts and omissions injured Mr. Rodriguezs right to
receive the benefits of the June Recording Contract.
28
19
145.
1
2
arising out of NOM Partnerships breach of the covenant of good faith and fair
dealing implied in the June Recording Contract.
EIGHTH CLAIM FOR RELIEF
FRAUDULENT INDUCEMENT (JUNE RECORDING CONTRACT) UNDER
NEVADA LAW
(AGAINST NOM PARTNERSHIP, MS. FRAILE, MR. HERNANDEZ,
MR. NARANJO, AND MR. FERNANDEZ)
9
10

Main (702) 541-7888 Fax (702) 541-7899
11
GIBSON & TREU LLP
146.
147.
above.
12
Naranjo, and Mr. Fernandez, made false representations to Mr. Rodriguez in the
13
course of inducing Mr. Rodriguez to enter into the June Recording Contract,
14
including, without limitation, the June 7 Misrepresentations.
15
148.
NOM Partnership, by and through Ms. Fraile, made false
16
17
into the June Recording Contract, including, without limitation, the May 15
18
Misrepresentations.
19
149.
NOM Partnership, by and through Mr. Hernandez, made false
20
21
into the June Recording Contract, including, without limitation, the Inducement
22
Period Misrepresentations.
23
150.
NOM Partnership knew that Ms. Fraile, Mr. Hernandez, Mr. Naranjo,
24
and Mr. Fernandez had an insufficient basis for making the June 7
25
Misrepresentations.
26
27
151.
NOM Partnership knew that Ms. Fraile had an insufficient basis for
making the May 15 Misrepresentations.
28
20
1
2
3
for making the Inducement Period Misrepresentations.

153.
Naranjo, and Mr. Fernandez, made the June 7 Misrepresentations with the
intention to therewith induce Mr. Rodriguez to consent to the formation of the June
Recording Contract.
154.
NOM Partnership, by and through Ms. Fraile, made the May 15
Misrepresentations with the intention to therewith induce Mr. Rodriguez to consent
to the formation of the June Recording Contract.
10

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NOM Partnership knew that Mr. Hernandez had an insufficient basis
GIBSON & TREU LLP
152.
155.
NOM Partnership, by and through Mr. Hernandez, made the
11
Inducement Period Misrepresentations with the intention to therewith induce Mr.
12
Rodriguez to consent to the formation of the June Recording Contract.
13
14
15
16
17
18
19
20
21
22
23
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156.
Mr. Rodriguez justifiably relied on the June 7 Misrepresentations in
deciding to enter into the June Recording Contract.

157.
Mr. Rodriguez justifiably relied on the May 15 Misrepresentations in
deciding to enter into the June Recording Contract.

158.
Mr. Rodriguez justifiably relied on the Inducement Period
Misrepresentations in deciding to enter into the June Recording Contract.

159.
reliance on the June 7 Misrepresentations.

160.
reliance on the May 15 Misrepresentations.

161.
reliance on the Inducement Period Misrepresentations.
25
26
27
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21
NINTH CLAIM FOR RELIEF
BREACH OF CONTRACT (SEPTEMBER CONTRACT) UNDER
CALIFORNIA LAW
(AGAINST NOM LLC)
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The September Contract reflected a transaction of bilateral
consideration.
165.
Mr. Rodriguez has performed or attempted to perform all of Mr.
Rodriguez obligations with respect to the September Contract.

166.
13
14
The September Contract embodied a bilateral offer and acceptance by
164.
11
12
163.
Mr. Rodriguez and by NOM LLC.
9
10
above.
7
8
162.
NOM LLC failed to meet NOM LLCs obligations under the September
Contract.
15
167.
NOM LLC thus breached the September Contract.
16
168.
Mr. Rodriguez did not excuse NOM LLC from meeting the
17
requirements of the September Contract.

169.
18
19
No condition was unsatisfied that excused NOM LLC from meeting the
requirements of the September Contract.
20
170.
The September Contract was for a lawful purpose.
21
171.
22
arising out of NOM LLCs breach of the September Contract.
23
TENTH CLAIM FOR RELIEF
24
25
(SEPTEMBER CONTRACT) UNDER CALIFORNIA LAW
26
(AGAINST NOM LLC)

172.
27
28
above.
22
173.
1
2
nothing that would injure Mr. Rodriguezs right to receive the benefits of the
September Contract.
174.
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5

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NOM LLCs acts and omissions injured Mr. Rodriguezs right to receive
the benefits of the September Contract.

175.
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NOM LLC had the obligation under the September Contract to do
arising out of NOM LLCs breach of the covenant of good faith and fair dealing
implied in the September Contract.
ELEVENTH CLAIM FOR RELIEF
10
FRAUDULENT PRESENTMENT (SEPTEMBER CONTRACT) UNDER
11
NEVADA LAW
12
(AGAINST NOM LLC, MS. FRAILE, MR. HERNANDEZ, AND
13
MR. FERNANDEZ)
14
15
16
176.
177.
NOM LLC, Ms. Fraile, Mr. Hernandez, and Mr. Fernandez, made false
above.
17
representations to Mr. Rodriguez with respect to the September Contract, including,
18
without limitation, that the September Contract diminished Mr. Rodriguezs yearly
19
obligation to make recordings on NOM LLCs record label (the Recording
20
Obligation Misrepresentation).
21
178.
NOM LLC, Ms. Fraile, Mr. Hernandez, and Mr. Fernandez, made false
22
representations to Mr. Rodriguez with respect to the September Contract, including,
23
without limitation, that the September Contract would only impose $2 million in
24
liquidated damages on another record label in the event Mr. Rodriguez signed a
25
contract with another record label during the term of the September Contract (the
26
Liquidated Damages Misrepresentation).
27
28
23
the Recording Obligation Misrepresentation was not actually embodied in the terms
of the September Contract that was presented to Mr. Rodriguez for signing.
180.
NOM LLC, Ms. Fraile, Mr. Hernandez, and Mr. Fernandez knew that
the September Contract that was presented to Mr. Rodriguez for signing did not
contain any change to Mr. Rodriguezs recording obligation from that set forth in
the June Contract.
8
9
10
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179.
181.
the Liquidated Damages Misrepresentation was not actually embodied in the terms
of the September Contract that was presented to Mr. Rodriguez for signing.
182.
12
the September Contract that was presented to Mr. Rodriguez for signing contained
13
a liquidated damages provision imposing $2 million in liquidated damages on Mr.
14
Rodriguez for any breach of the terms of the September Contract under any
15
circumstances.
16
183.
NOM LLC, Ms. Fraile, Mr. Hernandez, and Mr. Fernandez, made the
17
Recording Obligation Misrepresentation with the intention to obtain Mr.
18
Rodriguezs signature on the September Contract.
19
184.
NOM LLC, Ms. Fraile, Mr. Hernandez, and Mr. Fernandez, made the
20
Liquidated Damages Misrepresentation with the intention to obtain Mr.
21
Rodriguezs signature on the September Contract.
22
185.
In entering into the September Contract, Mr. Rodriguez justifiably
23
relied on NOM LLCs, Ms. Frailes, Mr. Hernandezs, and Mr. Fernandezs
24
representations regarding the contents of the September Contract that Mr.
25
Rodriguez was presented for signature on September 3, 2014, including, without
26
limitation, the Recording Obligation Misrepresentation and the Liquidated
27
Damages Misrepresentation.
28
24
186.
1
2
reliance on the Recording Obligation Misrepresentation and the Liquidated
Damages Misrepresentation.
187.

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NOM LLCs, Ms. Frailes, Mr. Hernandezs, and Mr. Fernandezs
procurement of Mr. Rodriguezs entry into the September Contract through
fraudulent presentation makes the September Contract voidable at Mr. Rodriguezs
election.
TWELFTH CLAIM FOR RELIEF
UNJUST ENRICHMENT UNDER NEVADA COMMON LAW
10
(AGAINST ALL DEFENDANTS)
11
GIBSON & TREU LLP
12
13
188.
189.
Defendants benefited from Mr. Rodriguezs performance and
above.
14
attempted performance under the Artist-Agent Agreement, the June Recording
15
Contract, and the September Contract.
16
190.
Defendants retained such benefits at Mr. Rodriguezs expense.
17
191.
The benefit retained by Defendants in equity and good conscience
18
19
belonged to Mr. Rodriguez.

192.
Mr. Rodriguez has sustained damages as a direct and proximate result
20
of Defendants acts as alleged herein, and Defendants are liable to Mr. Rodriguez
21
for such damages.

PRAYER FOR RELIEF
22
23
Mr. Rodriguez prays for judgment against Defendants as follows:
24
a. An order of this Court declaring that all copyrights with respect to Mr.
25
26
27
Rodriguezs music, broadly construed, are the property of Mr. Rodriguez;

b. An order of this Court declaring that the Mark is the property of Mr.
Rodriguez;
28
25
c. An order of this Court certifying to the Director of the United States
Patent and Trademark Office pursuant to 15 U.S.C. 1119 that the
Principal Register of Trademarks should be rectified to reflect Mr.
Rodriguezs sole ownership of the Mark;
5
6
and the June Recording Contract, and/or voiding of the Artist-Agent
Agreement and the June Recording Contract as having been procured via
fraud in the inducement;

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GIBSON & TREU LLP
d. Damages for NOM Partnerships breaches of the Artist-Agent Agreement
e. Damages for NOM LLCs breaches of the September Contract, and/or
10
voiding of the September Contract as having been procured via fraud in
11
the presentment;
12
f. Punitive and exemplary damages against NOM Partnership, Ms. Fraile,
13
Mr. Hernandez, Mr. Naranjo, and Mr. Fernandez for fraud in the
14
inducement of the June Recording Contract;
15
g. Punitive and exemplary damages against NOM LLC, Ms. Fraile, Mr.
16
Hernandez, and Mr. Fernandez for fraud in the presentment of the
17
September Contract;
18
h. Compensation for Defendants unjust enrichment;
19
i. Attorney fees as provided for by the June Recording Contract and/or the
20
21
September Contract, and by law; and

j. Costs of suit as provided by law.
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24
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26
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1
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DEMAND FOR JURY TRIAL

Mr. Rodriguez requests trial by jury on all causes of action so triable.
3
4
Signed this December 24, 2015.

GIBSON & TREU LLP
5
6
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9
By
/s/ J.D. Lowry

STEVEN A. GIBSON
Nevada Bar No. 6656
JODI DONETTA LOWRY, ESQ.
Nevada Bar No. 7798
10

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Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 1 of 27

7495 West Azure Drive, Suite 233

GIBSON & TREU LLP

UNITED STATES DISTRICT COURT

GIBSON & TREU LLP

STEVEN A. GIBSON, ESQ.

CESAR RODRIGUEZ RAMIREZ, an

Case No.: 2:15-cv-2472

(JURY TRIAL REQUESTED)

NUEVO ORDEN MUSIC LLC, a

Plaintiff Cesar Rodriguez Ramirez (Plaintiff or Mr. Rodriguez), by and

Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 2 of 27

7495 West Azure Drive, Suite 233

GIBSON & TREU LLP

This is an action brought under this Courts original jurisdiction for

declaratory judgment of copyright and trademark ownership by Plaintiff Cesar

Rodriguez Ramirez (Mr. Rodriguez), and under this Courts supplemental

a California general partnership (NOM Partnership), by and through its partners

fraudulent inducement under Nevada law by NOM Partnership; breach of contract

Nevada law of all Defendants.

This Court additionally has diversity jurisdiction over this entire

residents of either California or Mexico.

Mr. Rodriguez is an individual domiciled in Nevada.

NOM Partnership is a general partnership with its principal place of

Ms. Fraile is a general partner in NOM Partnership.

Ms. Fraile is an individual domiciled in California.

Mr. Hernandez is a general partner in NOM Partnership.

Mr. Hernandez is an individual domiciled in California.

Mr. Naranjo is a general partner in NOM Partnership.

Mr. Naranjo is an individual domiciled in Mexico.

Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 3 of 27

Mr. Fernandez is a general partner in NOM Partnership.

Mr. Fernandez is an individual domiciled in Mexico.

NOM LLC is a California limited liability company.

7495 West Azure Drive, Suite 233

GIBSON & TREU LLP

This Court has subject-matter jurisdiction over this action under 28

U.S.C. 1338(a), because Plaintiffs First Cause of Action is dependent on this

encompassed within this Courts supplemental jurisdiction pursuant to 28 U.S.C.

This Court has subject-matter jurisdiction over this action under 28

U.S.C. 1332(a)(1), because Plaintiff is a citizen of Nevada and Defendants

NOM Partnerships general partners individually, because NOM Partnership

NOM Partnership, through in-person communications taking place in Nevada and

electronic communications directed to Mr. Rodriguez in Nevada.

NOM Partnerships general partners individually, because NOM Partnerships

Hernandez were physically present in the State of Nevada.

Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 4 of 27

7495 West Azure Drive, Suite 233

This Court has personal jurisdiction over NOM Partnership because

Defendant NOM Partnership entered or attempted to enter into a contract intended

This Court has personal jurisdiction over NOM LLC because

Defendant NOM LLC entered or attempted to enter into a contract intended to

relationship and obligation with Mr. Rodriguez, a Nevada citizen.

GIBSON & TREU LLP

Venue is proper in this Court under 28 U.S.C. 1391(b)(2), because a

the District of Nevada.

Mr. Rodriguez is a professional musician who performs in the genre of

popular Spanish-language music.

On or about April 9, 2014, Mr. Rodriguez met Mr. Hernandez in Las

Hernandez was a music professional with extensive experience and professional

purposes of music production and promotion.

Case 2:15-cv-02472 Document 1 Filed 12/24/15 Page 5 of 27

7495 West Azure Drive, Suite 233