A few weeks ago, Nirvana fired back at Spencer Elden over his lawsuit alleging child pornography on the Nevermind album art. The band’s estate sought to have the case dismissed, saying that Elden had “spent three decades profiting from his celebrity as the self-anointed ‘Nirvana Baby.'” In U.S. District Court in Central California on Monday, Judge Fernando M. Olguin dismissed the case “with leave to amend.”

In short, Judge Olguin dismissed the case because Elden’s legal team had until last Thursday (December 30) to file an opposition to the Nirvana estate’s request. Elden’s team missed that deadline. Now, they have until January 13 to refile a second complaint, which the court said it will “grant defendants’ Motion and give plaintiff one last opportunity to amend his complaint.”

However, if Elden’s team doesn’t make that deadline, which is in 10 days, then he won’t have the opportunity to refile. If they make the deadline, then Nirvana’s estate has until January 27 to reply to the refiled suit.

“Failure to timely file a Second Amended Complaint shall result in this action being dismissed without prejudice for failure to prosecute and/or failure to comply with a court order,” the ruling, in paperwork viewed by SPIN, said.

In their initial filing, and in addition to saying Elden profited from his celebrity, the Nirvana estate also said that the statute of limitations for the suit expired over a decade ago. They also argued that this isn’t a case of child pornography either.

“Elden’s claim that the photograph on the Nevermind album cover is ‘child pornography’ is, on its face, not serious,” the Nirvana estate also said. “A brief examination of the photograph, or Elden’s own conduct (not to mention the photograph’s presence in the homes of millions of Americans who, on Elden’s theory, are guilty of felony possession of child pornography) makes that clear.”

The initial suit filed by Elden came a month before Nevermind‘s 30th anniversary. There, Elden alleged that as a four-month-old baby, he could not give permission for his image to be used on the cover and that his legal guardians didn’t give consent for its use either.

Elden’s suit stirred emotions from many fans and pop culture personalities. Bill Maher on his HBO show said that Elden should “stop being such a fucking baby.”

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