In a new filing in federal court in Los Angeles, lawyers for the group say Spencer Elden’s second amended complaint filed Jan. 12 should be dismissed with prejudice, meaning he should be sent packing without a chance to try again.
“For Elden, this is strike three. This case must end,” the lawyers wrote in their motion obtained by Rolling Stone.
In his initial lawsuit filed last August, Elden claimed the band — along with co-defendants including Universal Music Group, the David Geffen Company, Courtney Love as executor of Kurt Cobain’s estate and photographer Kirk Weddle — intentionally “leveraged the shocking nature” of his image as a naked 4-month-old baby swimming toward a dollar bill on a fishhook to make millions of dollars “at his expense.”
After a judge dismissed the case Jan. 3, lawyers for Elden filed a second amended complaint a week later that dropped a claim related to sex trafficking while adding more language to address alleged conduct within the last 10 years that would restart the 10-year statute of limitations on the child pornography claims.
For example, Elden and his legal team said the band celebrated Nevermind‘s 30th anniversary by re-releasing the album last September while continuing “to feature a lascivious exhibition of Spencer’s genitals on the cover.”
In their new dismissal motion, Nirvana’s lawyers said Elden’s second amended complaint failed to “identify any new victimization” that Elden “reasonably discovered for the first time after August 2011.”
“The time has run,” the new filing states. “Elden’s decision to not sue these defendants for the past 30 years, despite his decades-long knowledge of their same and unvaried conduct, is dispositive of his claim. It is as simple as that.”
Elden’s lawyers did not immediately respond to Rolling Stone‘s request for comment on the dismissal motion Monday.
In their prior Dec. 22 motion to dismiss the first amended complaint, Nirvana’s lawyers argued that Elden’s willingness to associate himself with the Nevermind cover over the years — such as selling autographed copies of the cover and at one point recreating the photograph as an adult for a paying gig — proved he didn’t suffer any damages.