Case 2:17-cv-06979-VAP-GJS Document 1 Filed 09/21/17 Page 1 of 23 Page ID #:1 JOSEPH S. LEVENTHAL (SBN 221043) 1 [email protected] ANDREW K. PULS (SBN 273672) 2 [email protected] DINSMORE & SHOHL LLP 3 655 West Broadway, Suite 800 San Diego, CA 92101 4 Ph: (619) 400-0500 Fx: (619) 400-0501 5 Attorneys for Plaintiff 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 GEORGE E. SCHWINDT, an Case No. 12 individual, COMPLAINT FOR: 13 Plaintiff, 14 v. (1) FEDERAL COPYRIGHT INFRINGEMENT; 15 FLOGGING MOLLY, INC., an Ohio corporation; MOLLYWOOD, INC., a 16 Nevada corporation; BORSTAL (2) BREACH OF FIDUCIARY BEAT RECORDS, LLC, a Delaware DUTY TO MINORITY 17 limited liability company; SALTY DOG MUSIC, LLC, a Delaware SHAREHOLDER; 18 limited liability company; THE QUIET MAN, LLC, a Delaware (3) ACCOUNTING; 19 limited liability company; BEGGARS BUSH, INC., a Delaware corporation; (4) FRAUD; 20 SALTY DOG CRUISE, LLC, business entity, form unknown; 21 DAVID R. KING, an individual; (5) DEFAMATION; BRIDGET A. REGAN, an individual; 22 DENNIS J. CASEY, an individual; (6) COMMON LAW MATTHEW A. HENSLEY, an MISAPPROPRIATION; AND 23 individual; NATHEN A. MAXWELL, an individual; and ROBERT A. 24 SCHMIDT, JR., an individual, (7) VIOLATION OF CAL. BUS. & PROF. CODE § 17200, ET. SEQ. 25 Defendants. 26 JURY TRIAL DEMANDED 27 28 1 COMPLAINT DINSMORE & SHOHL LLP SAN D IEGO Case 2:17-cv-06979-VAP-GJS Document 1 Filed 09/21/17 Page 2 of 23 Page ID #:2 1 Plaintiff GEORGE E. SCHWINDT (“Schwindt”), by his attorneys, alleges, 2 with personal knowledge as to his own actions, and upon information and belief as 3 to those of others, as follows: 4 NATURE OF ACTION 5 1. Schwindt files this action against Defendants for, among other things, 6 willful copyright infringement under federal law, pursuant to 17 U.S.C. § 101, et 7 seq. and 28 U.S.C. §§ 1331, 1338(a), and 1367. 8 2. Schwindt is a professional musician and a founding member of the 9 seven-person Celtic rock band Flogging Molly (the “Band”). During his 20 years 10 as the Band’s drummer, it grew from a small, part-time, Los Angeles bar-band 11 into a band of worldwide prominence with multi-million dollar annual revenues. 12 During that same time, Schwindt – without any additional compensation – handled 13 most of the Band’s business and legal matters and acted as the primary corporate 14 officer for the Band’s entire enterprise. Schwindt also designed and is the only 15 Band member who owns the copyright to the Band’s now iconic “Phoenix Clover 16 Snakes” logo. 17 3. In October 2015, however, the other six members of the Band 18 blindsided Schwindt and told him that his services as the Band’s drummer would 19 no longer be needed. Not only was Schwindt fired as the drummer of the Band 20 that he loved – without being specifically told why – but he also stopped receiving 21 the income and distributions that belong to him as a 1/7 owner in the Band’s 22 corporate entities, despite the other members’ acknowledgement that Schwindt 23 was still an equity owner of the Band’s enterprises, and their continued prominent 24 use of Schwindt’s copyrighted logo. 25 4. After Schwindt was no longer the Band’s drummer, the other six 26 members of the Flogging Molly enterprise created separate companies and 27 diverted funds and corporate opportunities to those new companies with the 28 2 COMPLAINT DINSMORE & SHOHL LLP SAN D IEGO Case 2:17-cv-06979-VAP-GJS Document 1 Filed 09/21/17 Page 3 of 23 Page ID #:3 1 specific intent of hiding monies that rightfully belong to Schwindt. Adding insult 2 to injury, at least one member of the Band publicly defamed Schwindt. Through 3 this Complaint, Schwindt seeks monetary damages, permanent injunctive relief, 4 and access to the Flogging Molly business enterprises to which he is legally 5 entitled. 6 THE PARTIES 7 5. Schwindt is an individual who, at all relevant times, was a resident of 8 the State of California, County of Los Angeles. 9 6. Defendant FLOGGING MOLLY, INC. (“FMI”) is a corporation 10 organized under the laws of Ohio, with a principal place of business in Los Angeles, 11 California. 12 7. Defendant MOLLYWOOD, INC. (“Mollywood”) is a corporation 13 organized under the laws of Nevada, with a principal place of business in Los 14 Angeles, California. 15 8. Defendant BORSTAL BEAT RECORDS, LLC (“Borstal Beat”) is a 16 limited liability company organized under the laws of Delaware, with a principal 17 place of business in Los Angeles, California. 18 9. Defendant SALTY DOG MUSIC, LLC (“SD Music”) is a limited 19 liability company organized under the laws of Delaware, with a principal place of 20 business in Los Angeles, California. 21 10. FMI, Mollywood, Borstal Beat, and SD Music may be referred to 22 collectively herein as the “Original FM Entities.” 23 11. Defendant THE QUIET MAN, LLC (“Quiet Man”) is a limited 24 liability company organized under the laws of Delaware, with a principal place of 25 business in Los Angeles, California. 26 12. Defendant BEGGARS BUSH, INC. (“Beggars Bush”) is a corporation 27 organized under the laws of Delaware, with a principal place of business in Los 28 3 COMPLAINT DINSMORE & SHOHL LLP SAN D IEGO Case 2:17-cv-06979-VAP-GJS Document 1 Filed 09/21/17 Page 4 of 23 Page ID #:4 1 Angeles, California. 2 13. Defendant SALTY DOG CRUISE, LLC (“SD Cruise”) is a business 3 organization, form unknown, with a principal place of business in Los Angeles, 4 California. 5 14. Quiet Man, Beggars Bush, and SD Cruise may be referred to 6 collectively herein as the “New FM Entities.” The Original FM Entities and the 7 New FM Entities may be referred to collectively herein as the “Flogging Molly 8 Entities.” 9 15. Defendant DAVID R. KING (“King”) is an individual who, at all 10 relevant times, was a citizen of the state of Michigan, residing in Detroit, and who 11 does business in Los Angeles. 12 16. Defendant BRIDGET A. REGAN (“Regan”) is an individual who, at 13 all relevant times, was a citizen of the state of Michigan, residing in Detroit, and who 14 does business in Los Angeles. 15 17. Defendant DENNIS J. CASEY (“Casey”) is an individual who, at all 16 relevant times, was a citizen of the state of New York, residing in Greenlawn, and 17 who does business in Los Angeles. 18 18. Defendant MATTHEW A. HENSLEY (“Hensley”) is an individual 19 who, at all relevant times, was a citizen of the State of California, residing in 20 Carlsbad, and who does business in Los Angeles. 21 19. Defendant NATHEN A. MAXWELL (“Maxwell”) is an individual 22 who, at all relevant times, was a citizen of the state of Colorado, residing in Denver, 23 and who does business in Los Angeles. 24 20. Defendant ROBERT A. SCHMIDT, JR. (“Schmidt”) is an individual 25 who, at all relevant times, was a citizen of the state of Colorado, residing in Boulder, 26 and who does business in Los Angeles. 27 21. King, Regan, Casey, Hensley, Maxwell, and Schmidt may be referred 28 4 COMPLAINT DINSMORE & SHOHL LLP SAN D IEGO Case 2:17-cv-06979-VAP-GJS Document 1 Filed 09/21/17 Page 5 of 23 Page ID #:5 1 to collectively herein as the “Other Members.” All references to “Defendants” 2 herein include both the Other Members and the Flogging Molly Entities. 3 22. Schwindt is further informed and believes and on that basis alleges that 4 there exists, and at all times herein mentioned there existed, a unity of interest and 5 ownership between the Other Members and the Flogging Molly Entities, such that 6 any individuality and separateness between the Other Members and Flogging Molly 7 Entities has ceased, and that certain of the Flogging Molly Entities are also the alter 8 egos of each other. Adherence to the fiction of the separate existence of the 9 defendant entities as distinct from each other would permit an abuse of the corporate 10 privilege and would sanction fraud and promote injustice. 11 JURISDICTION AND VENUE 12 23. This is a civil action seeking damages and injunctive relief for 13 copyright infringement under the United States Copyright Act. This Court has 14 jurisdiction under 17 U.S.C. § 101, et seq.; 28 U.S.C. § 1331 (federal question 15 jurisdiction), and 28 U.S.C. § 1338(a) (jurisdiction over copyright actions). The 16 Court has supplemental jurisdiction over Schwindt’s state law claims under 28 17 U.S.C. § 1367. 18 24. Defendants are subject to the personal jurisdiction of this Court because 19 they do business in and/or reside in Los Angeles, California. 20 25. Venue is proper in this district under 28 U.S.C. §§ 1391(b) and (c) 21 because a substantial part of the events giving rise to the claims in this action 22 occurred within this district. 23 FACTS 24 Flogging Molly: The Early Years 25 26. When Flogging Molly was founded in the mid-1990s, it was a fledgling 26 band playing shows at Molly Malone’s bar in Los Angeles every week. There were 27 no corporate entities, the Band did not have a record deal, and it did not tour. 28 5 COMPLAINT DINSMORE & SHOHL LLP SAN D IEGO Case 2:17-cv-06979-VAP-GJS Document 1 Filed 09/21/17 Page 6 of 23 Page ID #:6 1 27.