In a, perhaps, surprising turn of events, the recent lawsuit against Nirvana filed by Spencer Elden (the baby on the cover of Nevermind) suffered a setback this week. In a ruling, Judge Fernando M Olguin ruled in favor of Nirvana in Nirvana's recent motion to dismiss the lawsuit. However, the ruling was not due to the substantive issues raised by either side, but because Elden's attorneys failed to respond to Defendant's motion.
Last month, Nirvana's attorneys filed a motion requesting that the court dismiss the lawsuit on the basis that the applicable statute of limitations had passed and that the image itself was not pornographic. Elden had until December 30 to file a response to the motion. Because neither Elden nor his attorneys filed a response, the court ruled in favor of Nirvana and other defendants without addressing the merits of arguments presented by either party. However, the judge granted Plaintiff until January 13 to amend the complaint (if it can be amended to avoid issues raised by Defendants). If Elden does not amend the complaint within that time, it will mean the end of the case. Even if he does amend and files an amended complaint, Defendants could again file a motion to dismiss for various reasons.