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UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
HARRY BALK, an individual,
Plaintiff,
v.
CLARENCE AVANT and
INTERIOR MUSIC, CORP.,
A California Corporation;

Case No. 14-cv-11767

Hon. Laurie J. Michelson
Magistrate Judge R. Steven Whalen

Defendants.
__________________________________________
INTERIOR MUSIC CORP.,
Third-Party Plaintiff,
v.
SIXTO RODRIGUEZ,
Third-Party Defendant.
________________________________________________________________

THIRD-PARTY DEFENDANT SIXTO RODRIGUEZS MOTION FOR

SUMMARY JUDGMENT
PURSUANT TO FED. R. CIV. P. 56

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THIRD-PARTY DEFENDANT SIXTO RODRIGUEZS MOTION FOR

SUMMARY JUDGMENT PURSUANT TO FED. R. CIV. P. 56
Third-Party Defendant, Sixto Rodriguez, by his undersigned counsel,
brings this Motion for Summary Judgment against Third-Party Plaintiff Interior
Music Corp. (Interior) pursuant to Fed. R. Civ. P. 56. Rodriguez requests that
this Court dismiss Interiors Failure to Cooperate claim for lack of material
factual support for the claim. When the facts are viewed in a light most
favorable to Interior, no reasonable juror can conclude that Rodriguez has failed
to cooperate during the pendency of this litigation.
Rodriguez also requests that this Court dismiss Interiors Breach of
Warranty claim, contingent on Plaintiff Balk establishing that Interior knew
that Rodriguez was not free to assign the rights to his music free and clear of his
agreement with Balk. The 6-year breach of contract statute of limitations on a
breach of warranty claim accrues at the time that the breach of warranty was or
reasonably should have been discovered. Mich. Comp. Laws 600.5833. If
Interior knew all along that Rodriguez had made a faulty warranty, then the
cause of action accrued in 1970, and the statute of limitations has long run.
Last, Rodriguez requests that this Honorable Court enter an order
limiting Interior to damages against Rodriguez to those specified in the
Exclusive Songwriters and Composers Agreement (ESCA).
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There was a conference between attorneys regarding the nature of the

motion and legal basis for the requested relief, and concurrence was not
obtained.
WHEREFORE, Third-Party Defendant Sixto Rodriguez respectfully
requests that this Honorable Court GRANT Rodriguezs Motion for Summary
Judgment and enter an order: 1) Dismissing Defendants Failure to Cooperate
claim; 2) Dismissing Defendants Breach of Warranty claim contingent on
Plaintiff Balk establishing that Interior knew about the alleged breach from the
inception of the ESCA, and 3) Limiting any damages assessed against
Rodriguez to those specified in the ESCA.
Respectfully submitted,

Dated: July 20, 2016

/s/ Sima G. Patel

GEOFFREY N. FIEGER (P-30441)
SIMA G. PATEL (P-69541)
Attorneys for Plaintiff
19390 W. 10 Mile Road
Southfield, MI 48075
(248) 355-5555
s.patel@fiegerlaw.com

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UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
HARRY BALK, an individual,
Plaintiff,
v.

Case No. 14-cv-11767

Hon. Laurie J. Michelson
Magistrate Judge R. Steven Whalen

CLARENCE AVANT and

INTERIOR MUSIC, CORP.,
A California Corporation;
Defendants.

__________________________________________
INTERIOR MUSIC CORP.,
Third-Party Plaintiff,
v.
SIXTO RODRIGUEZ,
Third-Party Defendant.
________________________________________________________________

BRIEF IN SUPPORT THIRD-PARTY DEFENDANT SIXTO

RODRIGUEZS MOTION FOR SUMMARY JUDGMENT PURSUANT
TO FED. R. CIV. P. 56

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CONCISE STATEMENT OF THE ISSUES PRESENTED

I.

Viewing the record in a light most favorable to Interior, has Interior

failed to establish a genuine issue of material fact as to whether
Rodriguez cooperated in the defense of Interiors case or that he
colluded with Plaintiff Harry Balk?
Third-Party Defendant Rodriguez answers:

II.

If Balk prevails and establishes that Interior and Avant knew that
Rodriguezs warranty that he was free to sell the rights his music was
untrue from the inception of the Exclusive Songwriter and
Composers Agreement (ESCA) in 1970, has the statute of limitations
for Interiors breach of warranty claim against Rodriguez long
expired?
Third-Party Defendant Rodriguez answers:

III.

Yes.

Yes.

Based on the plain and unambiguous language of the ESCA, is

Interior contractually limited to only withholding royalties to
reimburse itself for any damages putatively owed by Rodriguez as a
result of the underlying litigation?
Third-Party Defendant Rodriguez answers:

ii

Yes.

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INDEX OF AUTHORITY
Cases
Adickes v. S. H. Kress & Co.,
398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970) ................................. 4
Am. Fed'n of State, Cty. & Mun. Employees, AFL-CIO, Michigan Council 25
& Local 1416 Highland Park Sch. Dist. Bd. of Educ.,
457 Mich. 74, 577 N.W.2d 79 (1998) ............................................................ 7
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) ....................... 4, 5, 6
Celotex Corp. v. Catrett,
477 U.S. 317 (1986) ......................................................................................... 4
Darrah v. City of Oak Park,
255 F.3d 301 (6th Cir. 2001) .......................................................................... 5
Quality Products & Concepts Co. v. Nagel Precision, Inc.,
469 Mich. 362, 666 N.W.2d 251 (2003) ........................................................ 9
Wilkie v. Auto-Owners Ins. Co.,
469 Mich. 41, 664 N.W.2d 776 (2003) .......................................................... 9
Statutes
Mich. Comp. Laws 600.5807(8) .................................................................... 7
Mich. Comp. Laws 600.5827 ......................................................................... 7
Mich. Comp. Laws 600.5833 ............................................................... 1, 7, 10
Rules
Fed. R. Civ. P. 56 ..................................................................................... 1, i, 1, 4
Fed. R. Civ. P. 56(c) ........................................................................................... 4

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I.

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INTRODUCTION AND SUMMARY OF ARGUMENT

Third-Party Defendant Sixto Rodriguez moves this Court for summary

judgment pursuant to Fed. R. Civ. P. 56. Plaintiff requests that this Court
dismiss Interiors Failure to Cooperate claim for lack of material factual
support for the claim.

There are no facts to support Interiors claim that

Rodriguez has failed to cooperate. Rodriguez has participated in all discovery,

including a lengthy deposition. There is no factual support for this claim and
summary judgment is appropriate.
Plaintiff also requests that this Court dismiss Interiors Breach of
Warranty claim, contingent on Plaintiff Balk establishing that Interior knew
that Rodriguez was not free to assign the rights to his music free and clear of his
agreement with Balk from the inception of the Exclusive Songwriter and
Composers Agreement (ESCA).

The 6-year breach of contract statute of

limitations on a breach of warranty claim accrues at the time that the breach of
warranty was or reasonably should have been discovered. Mich. Comp. Laws
600.5833. If Interior knew from the inception of the ESCA that Rodriguez
had made a faulty warranty, then the cause of action accrued in 1970, and the
statute of limitations has long since expired.

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Last, plaintiff requests that this Honorable Court enter an order limiting
Interior to damages against Rodriguez to those specified in the Exclusive
Songwriters and Composers Agreement (ESCA).

II.

FACTS AND PROCEEDINGS

This case arises out of a dispute regarding who owns the music rights to

songs authored by Sixto Rodriguez, referred to in the pleadings as the Cold

Fact Compositions. These songs were featured in the 2012 Oscar-winning
documentary Searching for Sugarman. Rodriguez allegedly authored the songs
over 40 years ago, and they were credited to his brother on a record label owned
by Clarence Avants company, Interior Music. Until recently, Rodriguez did not
realize that while the songs never took off in the United States, they were a
commercial success in South Africa and became anthemic for the anti-apartheid
movement.
Plaintiff Harry Balk also did not know that the songs were a commercial
success, and he now claims that Rodriguez composed the songs while under an
exclusive songwriter agreement with his company, Gomba Music. After
learning of the songs success, Balk sued Interior and Avant in a multi-count
complaint, essentially claiming that Avant and Interior conspired with
Rodriguez to defraud him. In the now operative second amended complaint,
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Balk alleges that, to avoid Rodriguezs obligation to write songs exclusively for
Gomba Music, Interior and Avant perpetrated a scheme in which Rodriguez
would write songs for them but falsely attribute them to others. (Doc # 39,
Second Am. Compl.)
The second amended complaint includes claims for copyright
infringement, fraudulent misrepresentation, tortious interference with copyright
and fraud against Defendants Clarence Avant and Interior Music Corp.
(Interior). Defendant Interior, in turn under Rule 14, filed a third-party
complaint against Sixto Rodriguez on May 28, 2014, asserting that Rodriguez is
liable to Interior for any damages incurred as a result of Balks lawsuit against
Interior. (See Doc # 11).
Defendant Interior alleged two counts in the third-party complaint. In
Count I, Breach of Contract Warranties and Representations, Interior alleged
that Rodriguez was in breach by warranting under the Exclusive Songwriter and
Composers Agreement (ESCA) with Interior that all the rights to the
compositions were delivered free and clear of any and all claims, rights and
obligations whatsoever. In Count II, Breach of Contract Failure to
Cooperate, Interior alleged that Rodriguez failed to cooperate in the defense of
the underlying litigation and that Rodriguez colluded with plaintiff against
Interior.
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On July 24, 2016, Interior executed service of its Third-Party Complaint

through alternate means (Doc # 20) after the Court granted its request to do so
(Doc # 19). When Rodriguez did not answer the third-party complaint, Interior
requested the clerk to enter default on August 15, 2014 (Doc # 22), which the
clerk did that same day (Doc # 23). Interior moved for a default judgment soon
afterward. (Doc # 25). This Court granted the motion for default judgment on
January 5, 2015. Subsequently, on October 29, 2015, Rodriguez filed a motion
to set aside the default judgment (Doc # 60), which the Court granted on April
15, 2016. (Doc # 68).
Rodriguez now moves this Court for summary judgment of the Failure
to Cooperate and Breach of Warranty claims against him.

III.

STANDARD OF REVIEW
Third-Party Defendant Rodriguez brings his motion for summary

judgment pursuant to Fed. R. Civ. P. 56. Summary judgment is appropriate

only where the pleadings, affidavits, and responses to discovery show that
there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). In determining whether there is a genuine
issue of material fact, the record is viewed in the light most favorable to the
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nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.
Ct. 2505, 91 L. Ed. 2d 202 (1986). Under Rule 56(c), the moving party has the
burden of establishing that there are no genuine issues of material fact and that
he is entitled to a judgment as a matter of law. Adickes v. S. H. Kress & Co.,
398 U.S. 144, 159-160, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); Darrah v. City
of Oak Park, 255 F.3d 301 (6th Cir. 2001).
A material fact is one that might affect the outcome of the suit under the
governing law. Anderson, 477 U.S. at 248. A disputed fact presents a genuine
issue if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party. Id. The evidence of the nonmovant is to be believed, and
all justifiable inferences are to be drawn in the nonmovants favor. Id.

IV.

ARGUMENT

1. When the facts are viewed in a light most favorable to Interior, there
is no genuine issue of material fact regarding Rodriguezs
cooperation during this litigation.
In Count II of the TPC, Breach of Contract Failure to Cooperate,
Interior alleged that Rodriguez failed to cooperate in the defense of the
underlying litigation and that Rodriguez colluded with plaintiff against Interior.
There are no facts to support this allegation. The record shows that Rodriguez
has cooperated with Interior during the course of this litigation. Rodriguez has
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timely answered all discovery requests, has shown up for deposition and has
participated fully in his lengthy deposition. See Exhibit 1, Deposition of Sixto
Rodriguez.
There is also no record evidence to support that Rodriguez has colluded
with Balk against Interior. Rodriguez was questioned in detail in his deposition
about meeting with Balk at a concert at Wayne State University in 2008.
(Rodriguez Dep, pg 89). When asked whether he and Balk colluded, or talked
about Interior or Avant and the financial side of the music, Rodriguez answered
that he did not talk to Balk about these subjects. (Id. at pg. 89-92).
There is no factual support for Interiors claim that Rodriguez has failed
to cooperate in this litigation or that he has colluded with Plaintiff Balk in any
way. Count II of the TPC should be dismissed with prejudice.

2. Third-Party Plaintiff Interiors Claim for Breach of Warranty

Should be dismissed as untimely, contingent on Plaintiff Balk
establishing that Interior and Avant knew about the alleged faulty
warranty from the inception of the ESCA.
In Count I of the TPC, Breach of Contract Warranties and
Representations, Interior alleges that Rodriguez was in breach by warranting
under the Exclusive Songwriter and Composers Agreement (ESCA) with
Interior that all the rights to the compositions were delivered free and clear of
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any and all claims, rights and obligations whatsoever. The alleged breach of
warranty occurred over 40 years ago, and taking the allegations in Balks
Second Amended Complaint as true, occurred with the full knowledge and
collusion of Interior.
The statute of limitations for breach of contract claims in Michigan is six
years. Mich. Comp. Laws 600.5807(8). A breach of contract claim accrues at
the time the wrong upon which the claim is based was done regardless of the
time when the damage results. Mich. Comp. Laws 600.5827.

Put another

way, the statute of limitations begins to run on the date the contract is breached.
Am. Fed'n of State, Cty. & Mun. Employees, AFL-CIO, Michigan Council 25 &
Local 1416 Highland Park Sch. Dist. Bd. of Educ., 457 Mich. 74, 90, 577
N.W.2d 79, 85 (1998). The 6-year breach of contract statute of limitations on a
breach of warranty claim accrues at the time that the breach of warranty was or
reasonably should have been discovered. Mich. Comp. Laws 600.5833.
If Plaintiff Balk succeeds in establishing that Defendants Interior and
Avant knew, from the inception of the ESCA, that Rodriguez was making a
faulty warranty, then the breach of warranty claim accrued on the date that the
ESCA was allegedly entered into, March 2, 1970. (See TPC, Doc #11, pg 4 of
16, Page ID 37). As such, the statute of limitations on the breach of warranty
claim would have expired 6 years later, on March 2, 1976. Rodriguez requests
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that, if Plaintiff Balk prevails and proves that Defendant Interior and Avant
were complicit and knew that Rodriguez provided an allegedly faulty warranty
in 1970, then the breach of warranty claim against Rodriguez must be dismissed
as untimely.

3. Plaintiff requests that this Court enter an order limiting

damages assessed against Rodriguez to those explicitly
spelled out in the ESCA.
Finally, Rodriguez asks that this Court enter an order limiting any
damages assessed against Rodriguez under the TPC to those specified in the
ESCA. Clause 13 of the ESCA provides in relevant part:
If a claim is presented against Publisher in respect of any
musical composition hereunder, and because thereof Publisher is
jeopardized, Publisher shall have the right thereafter, until said
claim has been finally adjudicated or settled, to withhold any and
all royalties that may be or become due with respect to such
disputed compositions pending the final adjudication or
settlement of such claim. Publisher, in addition, may withhold
other royalties to be earned pursuant to this agreement or any
other agreement between Writer and Publisher, and its affiliated
or related companies, sufficient, in the opinion of Publisher, to
reimburse Publisher for any contemplated damages, including
court costs and attorneys fees and costs resulting therefrom.
Publisher shall advance the costs of litigation, if any, including
court costs and attorneys fees together with any damages which
may be paid as a result of the settlement or adjudication of a
claim in connection with a musical composition written or
composed by Writer. All such costs and damages shall be
deemed an advance against any royalties payable to Writer under
this or any other agreement between Writer and Publisher. Upon
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the final adjudication or settlement of each and every claim

hereunder, all moneys withheld shall then be disbursed in
accordance with the rights of the parties as provided hereinabove.
This provision of the ESCA controls Rodriguezs putative liability to Interior in
the event of any litigation: Interior has the right to withhold royalties to
reimburse itself for the costs associated with the litigation, including for the cost
of any contemplated damages. The agreement does not allow for a separate
money damages award to be assessed against Rodriguez.
The proper interpretation of a contract is a question of law. Wilkie v.
Auto-Owners Ins. Co., 469 Mich. 41, 47, 664 N.W.2d 776 (2003). In
interpreting a contract, this Courts obligation is to determine the intent of the
parties. Quality Products & Concepts Co. v. Nagel Precision, Inc., 469 Mich.
362, 375, 666 N.W.2d 251 (2003). This Court must examine the language of the
contract and accord the words their ordinary and plain meanings, if such
meanings are apparent. Wilkie, supra at 47. If the contractual language is
unambiguous, courts must interpret and enforce the contract as written. Quality
Products, supra at 375. Thus, an unambiguous contractual provision is
reflective of the parties intent as a matter of law. Id.
Rodriguez submits that the plain and ordinary meaning of the ESCA
controls as to damages. The damages clause of the contract is detailed. It sets
forth what type of damages Interior can claim as a result of litigation, and how
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and when the damages can be recovered. The contract specifically limits
Interior to damages of withholding royalties and reimbursing itself for any
damages, costs or fees. The contract goes so far as to state that [a]ll such costs
and damages shall be deemed an advance against any royalties payable to
Writer under this or any other agreement. The ESCA allows for royalties to be
withheld to reimburse Interior for any damages and costs of litigation. On the
other hand, the contract is silent regarding any separate money judgment
against Rodriguez. Given the details in the contract about how, when and how
much can be recovered/withheld, the silence is telling. The agreement does not
allow for a separate money judgment to be entered against Rodriguez.

V.

CONCLUSION AND RELIEF REQUESTED

Third-Party Defendant, Sixto Rodriguez, by his undersigned counsel,

requests that this Court dismiss Interiors Failure to Cooperate claim for lack
of material factual support for the claim. When the facts are viewed in a light
most favorable to Interior, there is no record evidence to support the claim that
Rodriguez has failed to cooperate during the pendency of this litigation.
Rodriguez also requests that this Court dismiss Interiors Breach of
Warranty claim, contingent on Plaintiff Balk establishing that Interior knew
that Rodriguez was not free to assign the rights to his music free and clear of his
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agreement with Balk. If Interior knew all along that Rodriguez had made a
faulty warranty, then the cause of action accrued in 1970, and the statute of
limitations has long run. Mich. Comp. Laws 600.5833.
Last, Rodriguez requests that this Honorable Court enter an order
limiting Interior to damages against Rodriguez to those specified in the
Exclusive Songwriters and Composers Agreement (ESCA).
WHEREFORE, Third-Party Defendant Sixto Rodriguez respectfully
requests that this Honorable Court GRANT Rodriguezs Motion for Summary
Judgment and enter an order: 1) Dismissing Defendants Failure to Cooperate
claim; 2) Dismissing Defendants Breach of Warranty claim contingent on
Plaintiff Balk establishing that Interior knew about the alleged breach from the
inception of the ESCA, and 3) Limiting any damages assessed against
Rodriguez to those specified in the ESCA.

Respectfully submitted,

Dated: July 20, 2016

/s/ Sima G. Patel

GEOFFREY N. FIEGER (P-30441)
SIMA G. PATEL (P-69541)
Attorneys for Plaintiff
19390 W. 10 Mile Road
Southfield, MI 48075
(248) 355-5555
s.patel@fiegerlaw.com

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PROOF OF SERVICE

On July 20, 2016, I served a copy of the foregoing upon

all counsel of record, and declare under penalty of
perjury that this statement is true to the best of my
knowledge, information and belief.
/s/ Sima G. Patel

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