The lawsuit against Nirvana over the Nevermind cover brought by the cover baby Spencer Elden has been dismissed on a technicality.

The band, its label and the photographer that took the Nevermind cover shot filed a motion to have Elden’s suit dismissed just before Christmas, and the judge gave Elden until December 30th to file a response. Variety reports that because Elden missed that deadline, a US District Court judge in Central California dismissed the case Monday.

The dismissal was made “with leave to amend” so Elden can file a new complaint by January to address the “defects” Nirvana’s legal team identified in his original suit. If Elden misses that deadline, the suit will be dismissed and the case will be closed.

Elden filed suit last year claiming that the cover, which features him underwater at four months old with exposed genitals, was meant to be sexual in nature and that it was child pornography. The motion from the Nirvana camp, which includes surviving members Dave Grohl and Krist Novoselic and Kurt Cobain’s widow, Courtney Love, states that the suit was filed many years after the federal statute of limitations had run out and that Elden’s suit was not serious.