Russ McCullough et al v. World Wrestling Entertainment Inc

Filing 185

ORDER denying 118 Motion for Reconsideration of the Court's Order with respect to Singleton and LoGrasso; granting 119 Motion for Reconsideration of the Court's Order with respect to Windham, et al. See attached Memorandum of Opinion. For the reasons stated in the attached Opinion, the Courts Order at Docket Number 117 dismissing the Windham action is VACATED. Signed by Judge Vanessa L. Bryant on 7/21/16. (Shechter, N.)

Case 3:15-cv-01074-VLB Document 185 Filed 07/21/16 Page 1 of 44

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RUSS McCULLOUGH, a/k/a “Big Russ
McCullough”, RYAN SAKODA, and
MATTHEW R. WEISE, a/k/a “Luther
Reigns,” individually and on behalf of all
Others similarly situated,
Plaintiffs,

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:
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CIVIL ACTION NO.
:
3:15-cv-001074 (VLB)
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Lead Case
v.
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WORLD WRESTLING
:
ENTERTAINMENT, INC.,
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Defendant.
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______________________________________________________________________
EVAN SINGLETON and
VITO LOGRASSO
Plaintiffs,

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CIVIL ACTION NO.
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3:15-cv-00425 (VLB)
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Consolidated Case
v.
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WORLD WRESTLING
:
ENTERTAINMENT, INC.,
:
:
Defendant.
:
_____________________________________________________________________
WILLIAM ALBERT HAYNES III,
Individually and on behalf of all Others
similarly situated,
Plaintiffs,

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CIVIL ACTION NO.
:
:
3:15-cv-01156 (VLB)
:
Consolidated Case
v.
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:
WORLD WRESTLING
:
ENTERTAINMENT, INC.,
:
:
Defendant.
:
_____________________________________________________________________
WORLD WRESTLING
ENTERTAINMENT, INC.,
Plaintiff,

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1 

CIVIL ACTION NO.
3:15-cv-0994 (VLB)

Case 3:15-cv-01074-VLB Document 185 Filed 07/21/16 Page 2 of 44

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v.

Consolidated Case

ROBERT WINDHAM, THOMAS
BILLINGTON, JAMES WARE, OREAL
PERRAS, and VARIOUS JOHN DOE’S,
:
Defendants.
:
_____________________________________________________________________
July 21, 2016
MEMORANDUM OF DECISION DENYING DEFENDANT’S MOTION FOR
RECONSIDERATION [Dkt. 118] OF THE COURT’S ORDER [Dkt. 116] GRANTING IN
PART AND DENYING IN PART DEFENDANT’S MOTIONS TO DISMISS THE
SINGLETON AND MCCULLOUGH ACTIONS
MEMORANDUM OF DECISION GRANTING DEFENDANT’S MOTION FOR
RECONSIDERATION [Dkt. 119] OF THE COURT’S ORDER DISMISSING THE
WINDHAM ACTION AND DENYING AS MOOT WWE’S MOTION TO EXPEDITE
DISCOVERY AS TO THE IDENTITIES OF THE JOHN DOE DEFENDANTS [Dkt. 117].
MEMORANDUM OF DECISION DENYING DEFENDANTS’ MOTION TO DISMISS
THE WINDHAM ACTION [Dkt. 72] AND DENYING WWE’S MOTION FOR
EXPEDITED DISCOVERY OF THE JOHN DOE DEFENDANTS IN THE WINDHAM
ACTION [Dkt. 82].

Plaintiffs in this consolidated action are former wrestlers for World
Wrestling Entertainment Inc. (“WWE”), a Connecticut entertainment company
which produces televised wrestling programming. Plaintiffs allege that they are
either suffering from symptoms of permanent degenerative neurological
conditions resulting from traumatic brain injuries sustained during their
employment as wrestlers for WWE or are at increased risk of developing such
conditions.
In its March 21, 2016, memorandum of opinion and accompanying Order
(the “Opinion”), the Court dismissed plaintiffs’ claims that they were injured as a

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result of WWE’s negligence in scripting violent conduct and failing to properly
educate, prevent, diagnose and treat them for concussions.
However, plaintiffs also claimed that WWE had knowledge of evidence
suggesting a link between head trauma that could be sustained during WWE
events and permanent degenerative neurological conditions such as CTE and
either concealed such evidence or failed to disclose it in the face of a duty to
disclose. Although the Court dismissed plaintiffs’ claim that WWE fraudulently
misrepresented the risks of wrestling in its performances in a series of public
statements, the Court held that plaintiffs LoGrasso and Singleton plausibly stated
a claim that WWE fraudulently omitted known facts regarding a link between
wrestling activity and permanent brain damage resulting from traumatic brain
injuries. The Court further found that this fraud claim may not be tolled by the
operation of Connecticut’s statutes of limitations and repose.
The Court thereafter entered an Order dismissing WWE’s countersuit
against Robert Windham, et al on the basis that the complaint failed to state a
claim upon which relief could be granted as the Court could not, for the reasons
stated in its Opinion, issue a declaration that WWE was not liable on the basis of
Connecticut’s statute of limitations. The Court denied as moot WWE’s motion to
discover the identities of the unknown John Doe defendants in Windham.
Currently before the Court are WWE’s Motions to Reconsider [Dkt. 118, Dkt.
119] its March 22, 2016 Opinion and the subsequent dismissal of the Windham
action. WWE argues that the Court misapplied the applicable law and alleged
facts in determining that LoGrasso’s claims were not time-barred and in finding

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that Singleton and LoGrasso plausibly stated a claim for fraud by omission.
WWE also argues that dismissal of the Windham action was premature and that
the stated basis – failure to state a claim for relief – was not the basis of the
Windham defendants’ Motion to Dismiss [Dkt. 72] which argued for dismissal on
the sole grounds of lack of subject matter jurisdiction.
For the reasons stated below, WWE’s Motion for Reconsideration of the
Court’s Order [Dkt. 116] Granting In Part and Denying In Part Defendant’s Motions
to Dismiss the Singleton and McCullough Actions [Dkt. 118] is DENIED.
WWE’s Motion for Reconsideration of the Court’s Order [Dkt. 117]
Dismissing the Windham Action [Dkt. 119] is GRANTED and, upon
reconsideration, the Court’s Order at Docket Number 117 dismissing the
Windham action for failure to state a claim is hereby VACATED for the reasons
articulated below. Having vacated its dismissal of the Windham action, the Court
considers the substantive arguments raised in the Windham defendants’ Motion
to Dismiss [Dkt. 72] for lack of subject matter jurisdiction and that motion is
GRANTED IN PART AND DENIED IN PART. WWE’s Motion for Expedited
Discovery of the John Doe Defendants [Dkt. 82] is DENIED AS MOOT.
I.

Standard of Review

The standard for granting a motion for reconsideration “is strict, and
reconsideration will generally be denied unless the moving party can point to
controlling decisions or data that the court overlooked — matters, in other words,
that might reasonably be expected to alter the conclusion reached by the court.”
Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). “A motion for

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reconsideration is justified only where the defendant identifies an intervening
change in controlling law, the availability of new evidence, or the need to correct
a clear error or prevent manifest injustice.” Ayazi v. United Fedn. of Teachers
Local 2, 487 F. App'x 680, 681 (2d Cir. 2012) (internal citation and quotation marks
omitted); Ensign Yachts, Inc. v. Arrigoni, 3:09–CV–209 (VLB), 2010 WL 2976927
(D. Conn. July 23, 2010) (same). A “motion to reconsider should not be granted
where the moving party seeks solely to relitigate an issue already decided.”
Shrader, 70 F.3d at 257. Further, Local Rule of Civil Procedure 7(c) requires
parties seeking reconsideration to “set[] forth concisely the matters or controlling
decisions which counsel believes the court overlooked in the initial decision or
order.” D. Conn. Loc. Civ. R. 7(c).

II.

Reconsideration of the Court’s Ruling With Respect to the Claims of
Singleton and LoGrasso
1. Singleton Plausibly Alleges Harm from WWE’s Conduct

WWE first argues that the Court erred in holding that Plaintiff Evan
Singleton could plausibly have been harmed by WWE’s alleged fraudulent
omission. In its Opinion, the Court found that, with regard to possible harm to the
named plaintiffs, “information about a link to permanent degenerative conditions
could plausibly have informed plaintiffs’ own choices about whether and when to
re-enter the ring after sustaining a head injury and could plausibly have
prevented permanent brain damage.” [Dkt. 116 at 67-68].
WWE argues that “[u]nder the Court’s reasoning . . . if a plaintiff never ‘re-

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enter[ed] the ring after sustaining a head injury’ he could not have been harmed
by WWE’s alleged fraud by omission.” [Def.’s Mem. at 6]. WWE notes that
Plaintiff Singleton alleged that he never wrestled again for WWE after sustaining a
single serious head injury on September 27, 2012. Therefore, WWE argues,
Singleton could not have plausibly been harmed by the omission of facts which
would have affected any decision to re-enter the wrestling ring.
The Court’s Opinion should not be read to identify every basis for liability
which the complaint could be construed to assert. The Court held that this
allegation of harm was sufficiently plausible that both plaintiffs’ claims for
fraudulent omission stated a claim for relief under Rule 12(b) of the Federal Rules
of Civil Procedure. The plaintiff's decision to re-enter the ring after sustaining an
injury was not the sole basis for liability asserted by the complaint. Rather,
Singleton also alleged that WWE was aware of the risks of wrestling in 2005,
failed to disclose the risks to its wrestlers, and that he was injured wrestling for
WWE in 2012. Thus the complaint also alleges that WWE failed to disclose to
Singleton information which could have prevented him from entering WWE's
simulated wrestling ring and wrestling for WWE in the first instance. The
complaint further alleges that WWE's failure to disclose the risks of wrestling
could have impacted Singleton’s medical decisions. To be clear, Singleton has
plausibly alleged that WWE failed to disclose information which could
conceivably have prevented him from wrestling, could have enabled him to
mitigate the risks of wrestling and could have prompted him to obtain medical
treatment promptly after wrestling.

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WWE’s Motion for Reconsideration on this basis is DENIED.

2. Allegations Satisfying the Particularity Requirements of Rule 9(b)
WWE next argues that “none of the three alleged facts relied on by the
Court” in determining that plaintiffs had adequately plead the “who” and “when”
– the specific speaker(s) and the context of the alleged omissions – required by
Rule 9(b) are sufficient to satisfy the requirements of Rule 9 “based on the very
legal principles on which the Court relied in dismissing plaintiffs’ affirmative
misrepresentation claims.” [Def.’s Mem. at 9]. In its Opinion, the Court had
identified three paragraphs in the Second Amended Complaint of plaintiffs
Singleton and LoGrasso (the “SAC”) that shed sufficient light on both the
speakers and the context of the alleged omissions:
55. “. . . WWE continues to understate the risks and dangers of CTE, as
evidenced by Dr. Joseph Maroon‘s statements to the NFL Network, Total
Access in March 2015, ‘The problem of CTE, although real, is its being
over-exaggerated.’
73. “In a joint interview for the 2007 CNN documentary Death Grip: Inside
Pro Wrestling, WWE CEO Vincent K. McMahon and former WWE CEO Linda
McMahon attacked Dr. Omalu and Dr. Bailes‘s finding that Benoit had
suffered from CTE. This was part of a larger plan to deny that Benoit had
suffered from CTE and to discredit the research suggesting he had.”
125. “During his training and wrestling career with WWE, Mr. LoGrasso was
told by WWE employees and at the time believed that injuries he suffered
were part of ‘paying his dues’, and believed that having ‘your bells rung’, or
receiving ‘black and blues’ and bloody noses only resulted in the
immediate pain and injury with no long-term ramifications or effects.”
[SAC ¶¶ 55, 73, 125]. WWE argues that Dr. Maroon’s statements to NFL
Network in March of 2015 cannot form the basis of a fraudulent omission claim
because plaintiffs could not reasonably have relied upon a statement made after
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plaintiffs “commenced this lawsuit, and years after they last performed for WWE.”
While this may be true, the March 2015 comments were not the only statements
cited by the plaintiffs. Further, they were cited by plaintiffs as illustrative of a
continuing effort by WWE to downplay the risks of permanent brain damage to
WWE wrestlers.
The Opinion referenced other statements as well. For example, the Court
noted WWE’s statements to ESPN in 2009 in regards to allegations that former
wrestlers Chris Benoit and Andrew Martin could have sustained permanent brain
damage from wrestling. In 2009, WWE stated that it was “unaware of the
veracity” of tests conducted by Dr. Omalu which purported to diagnose Benoit
with CTE, that WWE had “been asking to see the research and tests results in the
case of Mr. Benoit for years and has not been supplied with them” and mocked
Benoit’s ability, prior to his death, to find “his way to an airport, let alone . . .
remember all the moves and information that is required to perform in the ring.”
[SAC ¶ 69]. The Court held that the 2009 statement could not form the basis of an
affirmative misrepresentation claim, but noted that “one could accuse the WWE
of having made the statement perhaps with the intent of downplaying a link
between wrestling and CTE.” [Opinion at 60].
The Court cited Dr. Maroon’s 2015 statement as illustrative of the “what” –
the context of the alleged omissions – because the 2015 statement, along with the
2009 statement to ESPN and other statements discussed in the Opinion, provide
adequate notice to WWE under Rule 9(b) of the instances in which it allegedly
failed to disclose a known link between wrestling and CTW: specifically, its public

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statements to the media downplaying and discrediting such risks. The 2007
interview by Vincent and Linda McMahon is cited by the Court as yet another
example of such public statements.
Similarly, in the NHL concussion litigation cited in the Court’s Opinion,
Judge Nelson noted the NHL’s alleged response to questions surrounding
concussions in professional hockey that the league needed “more data, more
research, we cannot say anything conclusive.” 2008 WL 4307568 at *13. NHL
Commissioner Bettman was alleged to have said of fighting that “[m]aybe it is
[dangerous] and maybe it's not.” Id. at *10. The statements identified by plaintiffs
here are in sum and substance similar to those that Judge Nelson found to have
supported a fraud claim in the NHL litigation.
WWE argues, however, that “because Mr. McMahon merely expressed his
‘opinion or skepticism as to the truth’ of a specific aspect of Dr. Omalu’s and Dr.
Bailes’ findings,” and that the Court’s Opinion earlier held such opinions could
not form the basis of an affirmative misrepresentation claim, that it is therefore
“implausible that omitting that same matter could somehow become a fraud by
omission.” [Def.’s Mem. at 10]. In other words, WWE argues:
. . . . under the Court’s reasoning, had WWE actually stated to
LoGrasso that it did not believe Dr. Omalu’s and Dr. Bailes’ findings
established a link between head trauma and long-term
neurodegenerative disease, which it never said, it could not be fraud.
But if WWE said nothing to LoGrasso because WWE did not believe
that a link had been established between head trauma and long-term
neurodegenerative disease based on Dr. Omalu’s and Dr. Bailes’
findings or because it did not know if such findings were correct, it
then would become fraud.
[Id. at 11]. While the Court is sensitive to the need to prevent a legal

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quandary as troubling as that which WWE proposes, no such quandary has been
created here. Rather, WWE has mistakenly conflated the nuanced analysis of the
claims of fraudulent omission and fraudulent misrepresentation.
The Court’s held that plaintiffs had plausibly alleged that WWE may have
had an independent duty to disclose information linking its simulated wrestling
performances with CTE and other neurological conditions and may have
breached that duty by failing to disclose such information in public statements.
Such a breach may have occurred if WWE had publicly stated that it did not
believe Dr. Omalu’s findings. Or it may have occurred if WWE had privately
stated to Plaintiff LoGrasso, personally, that it needed more time to study Dr.
Omalu’s findings. Or it may have occurred if WWE had remained entirely silent
on the issue. If WWE knew and failed to disclose information which credibly
refuted or seriously undermined the opinions and other statements of fact it
expressed, it may have failed to disclose information in breach of its duty to its
former wrestlers.
Wholly separate and apart from the allegation that WWE had a duty to
disclose, and failed to disclose, known information linking WWE wrestling with
CTE, are the plaintiffs’ now-dismissed allegations that WWE executives, in
several specific public statements, fraudulently misrepresented the risk of CTE to
current and former wrestlers. The Court’s Opinion rejected these fraudulent
misrepresentation claims on the basis that the specific statements cited were
either expressions of opinion or statements that were not alleged to be false.
While WWE could not be held liable for fraudulent misrepresentation if it had

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stated to LoGrasso, personally, that it did not believe Dr. Omalu’s findings, it
could plausibly be held liable on that same theory if it had stated to LoGrasso
that it did not believe those findings because the findings were published in the
National Enquirer and only peer reviewed by a panel of podiatry students.
The Court reaffirms its holding that the 2007, 2009 and 2015 statements
both provide adequate context and adequately identify the specific WWE
executives who are alleged to have breached their duty to disclose. WWE’s
Motion for Reconsideration on this basis is DENIED.

3. Plausible Inference of Fraudulent Intent
WWE next urges that the Court “overlooked the complete absence of any
allegation giving rise to strong [sic] inference of fraudulent intent.” [Def.’s Mem.
at 13]. In its Opinion, the Court noted that “[p]laintiffs simultaneously argue on
the one hand that studies and data linking [head injuries] with permanent
degenerative neurological conditions were both widespread and widelypublicized, and on the other hand that plaintiffs had no knowledge of any of this
widely-publicized information.” WWE argues that “[i]n light of the Court’s astute
observation regarding this “inherent contradiction” underlying plaintiffs’ fraud
claims, it is respectfully submitted that . . . [t]he admitted widespread publicity
about the very information supposedly omitted renders any suggestion of
fraudulent intent highly implausible.” [Def.’s Mem. at 14].
The Court has already considered and rejected this argument, in an earlier
portion of the Court’s Opinion finding that plaintiffs had pled an adequate basis

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for tolling the statutes of repose due to fraudulent concealment of their
underlying cause of action. The Court noted, in particular, that “the Wellness
Program was created for WWE by an attorney in response to the death of a
former wrestler and appears to have immediately embraced a critic of some
aspects of recent CTE studies.” [Opinion at 47]. The Court also noted that
WWE’s 2009 statement to ESPN was in response to allegations concerning the
deaths of two specific former wrestlers who may have had claims similar to those
raised by the named plaintiffs. The Court held that these facts allow for the
plausible inference that “any concealment was for the specific purpose of
delaying” possible litigation. [Id.]
Inherent in the Court’s finding that the facts alleged raise a plausible
inference of fraudulent concealment of plaintiffs’ cause of action to delay
litigation is a finding that WWE could have plausibly intended to conceal
information from the plaintiffs at all. The Court reaffirms its holding that WWE
could plausibly have intended to conceal known facts from the plaintiffs for the
purpose of delaying or avoiding litigation, for the purpose of delaying or avoiding
the expense of greater concussion prevention effort, or perhaps for the purpose
of delaying or avoiding safety measures which might negatively impact the
ratings of its television programming.
The Court also discussed the reasons for its holding that plaintiffs claim
for fraudulent omission could proceed despite the allegation that much of the
information allegedly concealed was in the public domain. The Court held that
WWE may have had a duty to disclose publicly available information. [Id. at 67].

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But the Court also noted that WWE was also alleged to have “superior
knowledge” by virtue of its Wellness Program, trained medical staff and wrestler
injury reports and that “factual development could shed light on whether WWE
possessed information outside the public domain that was omitted or
concealed.” [Id.] WWE has now had the opportunity to build a factual record
demonstrating whether information it is alleged to have failed to disclose was
reasonably discoverable by Singleton and LoGrasso. The Court will consider this
factual record at the appropriate time. WWE’s Motion for Reconsideration on this
basis is DENIED.

4. A Continuing Course of Conduct May Toll the Statute of Repose
WWE next argues that the Court misapplied Connecticut law in determining
that Connecticut’s statute of repose, Conn. Gen. Stat. Sec. 52-577, could be tolled
with respect to LoGrasso’s fraudulent omission claim by virtue of the continuing
course of conduct doctrine. For the continuing course of conduct exception to
apply, the plaintiff must show the defendant: “(1) committed an initial wrong upon
the plaintiff; (2) owed a continuing duty to the plaintiff that was related to the
original wrong; and (3) continually breached that duty.” Witt v. St. Vincent's
Medical Center, 746 A.2d 753, 762 (Conn. 2000). Any continuing duty owed by a
defendant must “rest on the factual bedrock of actual knowledge.” Neuhaus v.
DeCholnoky, 905 A.2d 1135, 1142 (Conn. 2006)
In its Opinion, the Court examined the Connecticut cases cited by the
parties – all of which concerned failure-to-warn cases brought against medical

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care providers – and found that under Connecticut law a “continuing duty arises
when the medical care provider has reason to suspect that further treatment is
needed at the time of treatment.” [Opinion at 38]. However, “once treatment is
provided a medical care provider” there is no duty “to advise a patient in
perpetuity about medical discoveries, risks and treatment for any possible
condition that a patient might reasonably develop.” [Id.]. The Court held that it
was “at least plausibly alleged under Neuhaus that WWE may have had both the
requisite initial and continuing concern about the long-term health of its wrestlers
such that it owed a continuing duty to warn those wrestlers about the long-term
risks of head trauma sustained in the ring even after they had retired.” [Id. at 3839]. Noting that the WWE was alleged to have created its Wellness program in
2006 on the advice of its attorney after the deaths of several former wrestlers and
to have hired a noted neurosurgeon and head injury specialist for the NFL, the
Court held that “this fact alone, indeed to WWE’s credit, plausibly suggests WWE
had knowledge causing it to have an early and strong concern[] about the health
effects of wrestling.” [Id.]
WWE argues that the continuing course of conduct exception cannot apply
here, because “there is no allegation that WWE ever rendered treatment to
LoGrasso for any alleged head injury.” [Def.’s Mem. at 17]. And, WWE argues,
“[s]ince there was no treatment, there could not have been an initial suspicion ‘at
the time of treatment.’” [Id. at 18]. WWE argues that the Court “substituted an
alleged initial concern about wrestlers generally for actual knowledge about, and
treatment of, LoGrasso specifically,” contrary to the requirement under

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Connecticut law that a provider’s concern is “based on actual knowledge specific
to the plaintiff.” [Def.’s Mem. at 19, citing Hernandez v. Cirmo, 787 A.2d 657, 66263 (Conn. App. 2002)].
WWE’s arguments parse language in a manner which imposes a legal
requirement which does not exist. In particular, WWE misplaces the word
“specific” in arguing that Connecticut law requires a medical provider to have
had knowledge “of a risk specific to the plaintiff” in order for the continuing
course of conduct exception to apply with respect to a medical provider in a
failure-to-warn case. What Connecticut law actually requires is that the provider
have had knowledge “of a specific risk to the plaintiff.” See Hernandez, 787 A.2d
at 662 (emphasis added). That specific risk may be a specific risk to a particular
known individual, or it may be a specific risk to a group of individuals who are
identifiable by the defendant. In fact, in its Opinion, the Court examined the
Connecticut Supreme Court’s opinions in Sherwood I and Sherwood II, which
held that a hospital may have had a continuing duty to warn thousands of former
patients who received transfusions of untested blood after the Center for Disease
Control advised the hospital of a risk of HIV transfer, but only if the hospital had
knowingly administered untested blood and thus had knowledge of a specific
risk. Sherwood v. Danbury Hosp., 896 A.2d 777, 797 (Conn. 2006) (Sherwood II).1

1

Consistent with this holding in Sherwood, other Connecticut cases, including
Hernandez, Witt and Neuhaus make clear that a medical provider cannot be held
liable for failing to warn a plaintiff of a risk that a defendant “should have known”
about. Rather, in requiring a “factual bedrock of actual knowledge,” Connecticut
law provides that the statute of repose may be tolled in a failure-to-warn case
against a medical provider based upon either: (i) an “initial concern” about a
specific risk that had “never been eliminated” or (ii) evidence that the defendant
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The “actual knowledge” requirement does not, as WWE suggests, require
knowledge of a risk “specific to the plaintiff.” In Sherwood, as alleged here, the
duty arose based on a known risk to an identifiable group of individuals. In
Sherwood, the court held that the defendants had a duty to disclose a known risk
of HIV exposure to patients who defendants infused with untested blood. Here,
plaintiffs allege the defendant had a duty to disclose a known risk of CTE to
former wrestlers which it knew to be uniquely susceptible to CTE because of the
trauma inherent in performing wrestling stunts under the guidance and direction
of WWE and on whose behalf it undertook to implement a Wellness Program.
The Court further notes, as it already noted in its Opinion, that while these
cases concerning medical providers are helpful to the analysis of this issue, and
“somewhat analogous” to the case at bar, the facts here vary to some degree in
that WWE can both be characterized as a medical provider and as an
entertainment company and employer. Further, the omissions here are alleged to
have been made by both WWE doctors and by non-medical-providers, including
television executives. In its capacity as a production company and employer,
WWE does not “treat” anyone. WWE’s argument would mean that, in the absence
of a Wellness Program, doctors and trainers, the statute of repose could never be
tolled on the basis of a continuing course of conduct in a fraud claim against
WWE because no litigant would ever have received medical care from the
company. This is not the outcome compelled by Connecticut law.

“subsequently learned that his diagnosis was incorrect.” Neuhaus, 905 A.2d at
1144-45.
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The Court reaffirms its holding that plaintiffs have plausibly alleged that
WWE: (i) committed an initial wrong by omitting information in public statements
and communications with its wrestlers that it was under a duty to disclose, (ii)
that this duty continued with respect to current and former wrestlers at risk of
CTE and other degenerative brain conditions and (iii) that the breach of this duty
has been ongoing. WWE’s Motion for Reconsideration on this basis is DENIED.

5. Fraudulent Concealment May Toll the State of Repose
In its Opinion, the Court held that LoGrasso’s allegations that WWE
concealed information suggesting a link between repeated concussive trauma
and permanent degenerative neurological conditions may implicate the tolling
provision for fraudulent concealment codified by statute in Conn. Gen. Stat. § 52–
595 (“Section 52-595”). In order to rely on Section 52-595 to toll the statutes of
limitations and repose, a plaintiff must demonstrate that “the defendant: (1) had
actual awareness, rather than imputed knowledge, of the facts necessary to
establish the cause of action, (2) intentionally concealed those facts from the
plaintiff and (3) concealed those facts for the purpose of obtaining delay on the
part of the plaintiff in filing a cause of action against the defendant.” Falls
Church Grp., Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 105, 912 A.2d
1019, 1033 (2007).
WWE urges the Court to reverse its holding by arguing that the “allegation
that WWE generally knew about research into brain trauma and a potential link to
wrestling falls far short of clear and convincing evidence that WWE knew that

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LoGrasso, specifically, had a cause of action related to brain trauma and
intentionally concealed those facts from him.” [Def.’s Mem. at 21]. First, the clear
and convincing evidence standard is not the standard applicable on a motion to
dismiss. Moreover, the Court noted in its Opinion that plaintiffs “also allege that
by virtue of its Wellness Program, begun in 2007, WWE possessed superior
knowledge regarding a link between participation in WWE wrestling events and
such permanent conditions.” [Opinion at 68]. Thus, LoGrasso’s claim cannot be
reduced merely to the allegation that WWE ‘generally knew about research into
brain trauma.’
WWE argues that fraudulent concealment “expressly requires that the
defendant know that the plaintiff has a cause of action, and the knowledge must
be actual rather than imputed” and that plaintiffs failed to set forth “clear and
convincing evidence that WWE knew that LoGrasso, specifically, had a cause of
action.” [Id. citing Falls Church Grp., 912 A.2d at 1032-33]. Connecticut law
imposes no such requirement. The Court is mystified as to how WWE can argue
that the doctrine expressly requires the defendant to have “knowledge of the
plaintiff’s cause of action” when the very case cited by WWE, Falls Church
Group, sets forth a test which expressly requires a defendant only to have actual
knowledge “of the facts necessary to establish” a cause of action, as opposed to
the ‘facts necessary to prove by clear and convincing evidence a cause of action
at the pleading stage of a case before the commencement of discovery.’ 912 A.2d
at 1033. Furthermore, WWE cites no authority for the proposition that the facts
necessary to a cause of action refer only to facts which are specific to a single

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plaintiff and not an affected group of individuals. While factual development may
ultimately reveal that WWE had no actual knowledge of the facts necessary to
LoGrasso’s cause of action, and the possible causes of action of other similarlysituated wrestlers, the allegation is nonetheless plausible.
WWE also argues that LoGrasso did not exercise due diligence to discover
the cause of action WWE allegedly concealed from him. [Id.] The extent to which
due diligence on the part of LoGrasso to discover could reasonably have led to
discovery of his cause of action depends, in part, on whether WWE possessed
superior knowledge outside the public domain regarding a link between wrestling
and CTE. The reasonableness of any efforts on LoGrasso’s part may also depend
on the extent to which a lay person could have appreciated the information that
was in the public domain prior to 2012. Both issues are fact specific and may be
ripe for examination at a later stage in this case, but the Court cannot determine
from the face of the SAC that LoGrasso failed to exercise reasonable diligence.
The Court reaffirms its holding that LoGrasso has plausibly alleged that
WWE fraudulently concealed his cause of action pursuant to Section 52-595.
WWE’s Motion for Reconsideration on this basis is DENIED.

6. Conclusion
WWE's linguistic feats with respect to the ‘express’ requirements of
Connecticut law as to actual knowledge and specific risks do not suffice for the
kinds of “controlling decisions or data that the court overlooked” which WWE is
required to set forth in order to obtain relief from the Court's prior Order. See

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Shrader, 70 F.3d at 257. WWE’s arguments with respect to intent and particularity
seek only to re-litigate issues that the Court has already painstakingly decided.
WWE’s Motion for Reconsideration of the Court’s Order granting in part and
denying in part the defendant’s Motion to Dismiss the Complaint of Evan
Singleton and Vito LoGrasso is DENIED.

III.

Reconsideration of the Court’s Order Dismissing WWE’s CounterSuit Against Windham, et al

After entry of the Court’s Opinion and Order [Dkt. 116] granting in part and
denying in part WWE’s Motions to Dismiss in this consolidated action, the Court
entered a subsequent Order [Dkt. 117] dismissing WWE’s declaratory judgment
countersuit against Robert Windham, Thomas Billington, James Ware, Oreal
Perras and “Various John Does” (the “Windham” action). [Dkt. No. 3:15-cv-0994
(VLB)]. The Court’s Order noted that, having found that a continuing course of
conduct or fraudulent concealment on the part of WWE may have tolled the
Connecticut statute of repose with respect to the claims brought by Vito
LoGrasso, the Court could not afford WWE the relief it sought in the form of a
judgment declaring that all of the named and “Various John Doe” defendants’
claims against WWE were time-barred by the Connecticut statutes of limitations
and repose. The Court thereafter denied as moot WWE’s Motion to Expedite
Discovery as to the identities of the “John Doe” defendants. [Dkt. 82].
WWE separately urges reconsideration of the Order dismissing the
Windham action on the grounds that the Order denied WWE its right to notice and
an opportunity to be heard. [Dkt. 119-1, Pl.’s Mem. at 9, citing Thomas v. Scully,
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943 F.2d 259, 260 (2d Cir. 1991)]. WWE argues that the Court’s Order entered
dismissal for a stated reason – that the Court could not grant WWE the relief it
sought – that was never raised by the Windham defendants’ in their Motion to
Dismiss [Dkt. 72]. Indeed, the Windham defendants’ sole argument raised in
favor of dismissal was that the Court lacked subject matter jurisdiction over the
Windham action because no actual case or controversy existed between the
parties. [Dkt. 72-1].2
The Plaintiff is correct that a district court cannot dismiss a complaint sua
sponte for failure to state a claim on which relief can be granted without giving
the plaintiff an opportunity to be heard. Thomas, 943 F.2d at 260; see also Perez
v. Ortiz, 849 F.2d 793, 797 (2d Cir. 1988) (“[T]he general rule is that a district court
has no authority to dismiss a complaint for failure to state claim upon which relief
can be granted without giving the plaintiff an opportunity to be heard.”). Thomas
concerned a district court’s sua sponte dismissal of a pro se complaint without
having provided the pro se litigant an opportunity to be heard. 943 F.2d at 259.
And in Perez, none of the consolidated defendants – police officials and
municipalities in the State of Connecticut – had yet moved to dismiss on any
basis prior to the district court’s dismissal of the state law claims brought against

2

The header of Section B of the Windham defendants’ memorandum in support
of dismissal is “Because The Complaint Does Not Present a Case or Controversy,
and Because The Complaint Seeks Relief in Violation of the U. S. Constitution, it
Fails to State a Claim Upon Which Relief Can be Granted.” That section does
argue that because “there is no record providing evidence that the named
wrestlers are time-barred by Connecticut law . . . any declaratory judgment would
not resolve the purported controversy.” However, this argument is presented as
part of an argument that the Court lacks subject matter jurisdiction over the case.
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the police defendants in their official capacities. 849 F.2d at 794.
The Court is not entirely convinced that WWE has indeed been deprived of
an opportunity to be heard with respect to dismissal of the Windham counter-suit
for failure to state a claim. On the issue of the applicability of the Connecticut
statutes of limitations and repose to the concussion-related negligence and fraud
claims of former WWE wrestlers, the Court has now examined hundreds of pages
of combined briefing submitted by WWE and the affected wrestlers in three
different consolidated actions brought by Vito LoGrasso, William Haynes and
Russ McCullough and has now devoted dozens of pages of its own memoranda
of opinions setting forth, and then setting forth a second time, the Court’s
determinations of applicable law. In such circumstances, it is perhaps more
appropriate to question whether WWE’s arguments concerning Connecticut’s
statutes of limitations have been heard too much, rather than too little.
However, WWE also argues that “[t]he Court’s conclusion that Plaintiff
LoGrasso plausibly alleged a basis for tolling the statute of repose in the
Singleton Action cannot justify dismissal [of the Windham action],” and on this
basis the Court agrees that reconsideration is necessary. WWE notes that the
Windham defendants “have not yet asserted any basis for tolling the statute of
repose” in the Windham action as they have yet to answer WWE’s complaint.
[Pl.’s Mem. at 12]. Moreover, the Court notes that the four named defendants in
the Windham action are residents of Florida, Tennessee, North Carolina and the
United Kingdom. In addition, the named defendants dispute whether they have
signed booking contracts with WWE that contained forum-selection clauses

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mandating application of Connecticut law to any claims arising from their
wrestling careers. As to each named defendant against WWE, the Court would
first need to undertake a factual review and to determine whether Connecticut law
applies by virtue of a forum-selection clause in a contract, or whether another
state’s statute of limitations should be applied by virtue of a choice-of-law
analysis. Only then would the Court be in a position in which it could determine
whether the declaratory judgment sought by WWE – that the claims of the named
defendants are time-barred – should issue.
As WWE correctly points out, the Court would then need to determine
whether each defendant has asserted facts sufficient to toll the applicable statute
of limitations and/or repose. Although the Court has concluded that LoGrasso
plausibly alleged a basis for tolling under Connecticut law by virtue of fraudulent
concealment and a continuing course of conduct alleged to have begun in 2005,
that same basis for tolling the statute of limitations may not similarly apply to the
named plaintiffs, who retired from WWE wrestling in 1999 or earlier. Finally, even
if the defendants to the Windham action have a plausible basis for tolling the
applicable statutes of limitations and repose, WWE is correct that discovery
would be then necessary to determine whether evidence existed to support the
defendants’ allegations that a tolling doctrine or provision was applicable.
For the reasons stated above, WWE’s Motion for Reconsideration of the
Court’s Order dismissing the Windham action [Dkt. 119] is GRANTED. The
Court’s Order entered at docket number 119 is hereby VACATED.

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IV.

Opinion Denying Defendants’ Motion to Dismiss the Windham Action

Having vacated the Court’s Order dismissing the Windham action on the
basis of a failure to state a claim upon which relief may be granted, the Court now
considers the Windham defendants’ arguments, raised in their Motion to Dismiss
[Dkt. 72], that the Court lacks subject matter jurisdiction over the action. For the
following reasons, defendants’ Motion is GRANTED IN PART AND DENIED IN
PART.

1. Factual Background
From October, 2014 to June, 2015, five separate lawsuits against WWE
were filed in different jurisdictions on behalf of former professional wrestlers
asserting claims that they have sustained traumatic brain injuries. The parties
dispute the extent to which each of the lawsuits was “filed or caused to be filed”
by Attorney Konstantine Kyros, though the lengthy and inflammatory complaints
in each case are virtually identical. All five of these lawsuits were subsequently
transferred to the District of Connecticut and consolidated before this Court.
On June 2, 2015, Attorney Konstantine Kyros sent letters to WWE
threatening similar claims on behalf of four additional professional wrestlers who
performed for WWE. On June 29, 2015, WWE commenced the Windham
declaratory judgment counter-suit against these former wrestlers seeking a
declaration that the claims of Kyros’ wrestling clients relating to traumatic brain
injuries are time-barred by the applicable statutes of limitations and repose under
Connecticut law. WWE also sought a declaration that the claims of wholly

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unidentified former wrestlers, described only as “Various John Does,” are also
barred for the same reasons. These “Various John Does” are not reputed to have
threatened to sue WWE.

2. The Windham Action Presents an Actual Case or Controversy
Only as to the Named Defendants
The Declaratory Judgment Act permits a district court to exercise
jurisdiction over a proposed declaratory judgment action when an actual
controversy exists. See 28 U.S.C. § 2201(a). A district court has broad discretion
when considering whether to exercise its jurisdiction under the Declaratory
Judgment Act (“DJA”). Dow Jones & Co. v. Harrods Ltd., 346 F.3d 357, 359 (2d
Cir. 2003). Thus, under the Declaratory Judgment Act, a district court must first
determine whether an actual controversy exists and then decide whether it will
exercise jurisdiction over that controversy. Id.
An actual controversy is one where “the facts alleged, under all
circumstances, show that there is a substantial controversy, between parties
having adverse legal interests, of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment.” MedImmune, Inc. v. Genentech, Inc., 549
U.S. 118, 127, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007) (quoting Md. Cas. Co. v. Pac.
Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941)). Any analysis
of the immediacy and reality of a legal dispute is guided by “whether the
declaratory relief sought relates to a dispute where the alleged liability has
already accrued or the threatened risk occurred, or rather whether the feared
legal consequence remains a mere possibility, or even probability of some
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contingency that may or may not come to pass.” Dow Jones & Co., Inc. v.
Harrods, Ltd., 237 F.Supp.2d 394, 406–07 (S.D.N.Y.2002) (citing Thomas v. Union
Carbide Agric. Prod. Co., 473 U.S. 568, 580–81, 105 S.Ct. 3325, 87 L.Ed.2d 409
(1985)), aff'd, 346 F.3d 357 (2d Cir. 2003).
The Windham defendants argue, without citation to authority in this
jurisdiction, that the “letters of representation and preservation” sent to WWE on
behalf of the four named defendants “did not institute litigation, nor . . . provide
sufficient immediacy and reality to warrant the issuance of a declaratory
judgment” because the letters provided “for the possibility [that] litigation would
never be initiated” and did not state “what claims might be brought against
WWE.” [Def.’s Mem. at 11]. According to the Windham defendants, such letters
must state with particularity the legal claims at issue in order to present an actual
case or controversy. Defendants cite Kegler v. United States DOJ, 436 F. Supp.
1204 (D. Wyo. 2006), in which an individual was found to lack standing in a suit
brought against the Department of Justice seeking a declaratory judgment that a
Wyoming expungement statute restored his right to own and transport a firearm
across state lines notwithstanding the prohibition outlined in 18 U.S.C. Sec.
922(g) rescinding such rights for individuals serving sentences of probation. The
Wyoming court found that an opinion letter authored by the United States Bureau
of Alcohol, Tobacco, Firearms and Explosives (ATF) which informed the
Wyoming Attorney General that, in the view of ATF, the Wyoming statute would
have “[no] effect whatsoever on Federal law” did not by itself present any
“genuine threat of imminent prosecution against the plaintiff.” Id. at 1206, 1216.

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Plaintiff’s purported injury resulting from this letter was found to be “wholly
conjectural and hypothetical.” Id. at 1218.
WWE notes that the Second Circuit has found an actual case or
controversy exists where one party notifies the other of its intent to file a lawsuit.
Kidder, Peabody & Co. v. Maxus Energy Corp., 925 F.2d 556, 559 (2d Cir. 1991)
(defendant notified declaratory judgment plaintiff that it intended to file a lawsuit
after a ten day “standstill agreement” had passed). WWE also argues that a
“history of fierce litigation between parties strongly evidences a justiciable
controversy.” [Pl.’s Mem. at 29, citing Broadview Chem. Corp. v. Loctite Corp.,
417 F.2d 998, 1000 (2d Cir. 1969)]. Finally, WWE argues that because the duty to
preserve documents only attaches at the time that litigation is reasonably
anticipated, Kyros’ preservation letters must therefore present WWE with the
reasonable anticipation of litigation. See Zubulake v. UBS Warburg LLC, 230
F.R.D. 212, 217 (S.D.N.Y. 2003) (“The duty to preserve attached at the time that
litigation was reasonably anticipated.”).
A “representation and preservation” letter” need not necessarily state the
specific legal claims that a Plaintiff intends to pursue in order to present a party
in receipt of such a litter with a sufficiently-accrued liability and a sufficientlyimmediate risk as to present an actual case or controversy. In circumstances
where, as here, the declaratory judgment plaintiff has been informed by a
particular individual or by an identified class or group of individuals of an intent
to file suit identifying the subject matter of the dispute and the time period and
alleged injury involved, there is an actual case or controversy presented and a

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declaratory judgment action may be appropriate under the DJA, particularly
where the plaintiff has already been sued on identical claims by other plaintiffs
represented by the same counsel that authored the representation letter. See
PharmaNet, Inc. v. DataSci Liab. Co., No. CIV. 08-2965 (GEB), 2009 WL 396180, at
*10 (D.N.J. Feb. 17, 2009) (actual case or controversy presented where letter sent
from defendant’s attorney “explicitly raised” an offer for plaintiff to license a
specific patent, “mention[ed] by name four of the companies against whom
Defendant had filed infringement suits,” and “requested an answer by a date
certain,” as it was “objectively reasonable for a reader to perceive that failure to
respond by that date would result in the filing of an infringement suit”)
This finding only resolves the case or controversy requirement as to the
named defendants on whose behalf Kyros has sent “representation and
preservation” letters to WWE. Separately, however, the Court finds that WWE’s
suit against unnamed “John Does” on whose behalf Kyros has not threatened
suit is impermissibly preemptive. WWE’s request for a declaratory judgment
against wholly unidentified persons WWE describes as "Various John Does" who
are presumed to be clients of Attorney Kyros, but for whom no specific threat of
imminent litigation has been established, has little support under the cases
interpreting the requirements of the DJA. WWE argues that “Kryos’ public
statements that he represented dozens of former wrestlers” and his statement
that “if every wrestler who believes that they’d been harmed by the WWE right
now decided to file a lawsuit against the WWE, this would surely decide I think an
outcome” suggest that it is “reasonable to assume that such other wrestlers who

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have retained Kyros — i.e., the John Doe Defendants — intend to sue WWE.”
[Pl.’s Mem. at 30]. In fact, WWE argues that “there would be no other reason for
them to have retained Kyros except to sue WWE.” [Id.].
WWE cites to three opinions finding an actual case or controversy at least
in part on the basis of threatening public statements made by counsel for a
declaratory judgment defendant. None of the three cases were brought against
unnamed and unidentified “John Doe” defendants. See Micron Tech., Inc. v.
Mosaid Techs., Inc., 518 F.3d 897, 901 (Fed. Cir. 2008) (finding an actual case or
controversy based, in part, on named defendant’s “recent public statements . . .
[that] confirm its intent to continue an aggressive litigation strategy”);
PharmaNet, Inc. v. DataSci Ltd. Liab. Co., Civ. No. 08-2965 (GEB), 2009 WL
396180, at *8 (D. N.J. Feb. 17, 2009) (actual case or controversy based in part on a
named defendant’s public statements announcing a “strategy to sue”); Shell Oil
Co. v. Hickman, 716 F. Supp. 931, 934 (W.D. Va. 1989) (“based on the . . . actions
and representations of the defendants’ counsel, the plaintiffs’ fears of an
impending suit filed on behalf of [named decedent] were real and immediate.”).
The Court does not dispute WWE’s argument that public statements may
contribute to a court’s finding of an actual case or controversy between two
parties. The Court notes, however, that the cited Kyros statements are too vague
to threaten any immediate or specific future suit. Kyros hints at the mere
possibility of future claims from his unidentified clients, and not real and
immediate controversies. Kyros does not purport to represent all former WWE
wrestlers, yet WWE seeks a declaration of the rights of all former wrestlers.

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Moreover, the Kyros statements do not constitute a threat of suit. Instead he
states what might occur "if every wrestler who believes that they’d been harmed
by the WWE" filed suit. By its express terms, the Kyros statement does not state
that every former wrestler would bring suit, nor does he state that every former
wrestler believes he or she suffered harm. Such statements are too equivocal to
create a case or controversy.
If there are circumstances in which a court could find that a DJA action
against unidentified persons, not constituting members of a class action,
presents a dispute of “sufficient immediacy and reality” as to present an actual
case or controversy, even though the declaratory plaintiff does not even know the
identity of the class members,3 it is the view of this Court that such a class would
likely be defined by a common injury alleged, specific and narrow in scope, that
has already accrued and not merely a common attorney or common legal
representation. WWE urges the Court to take on faith and logic that a former

3

In In re Joint E. & S. Dist. Asbestos Litig., 14 F.3d 726 (2d Cir. 1993), the Second
Circuit vacated a district court’s finding that an actual case or controversy was
presented where a declaratory judgment plaintiff, Keene, sought to file a
mandatory class action against all present or future asbestos claimants against
it. Keene argued that a global settlement with such a mandatory class would be
“most efficient” and that after reaching such a settlement, it could obtain a
declaratory judgment of non-liability against future claimants seeking
compensation outside the confines of the global settlement. Id. at 731. The
Second Circuit did not explicitly examine the issue of whether a declaratory
judgment countersuit against an unnamed class of defendants can ever be an
appropriate use of the DJA, and instead found that an actual controversy was not
presented as “the existence of the settlement is an essential element entitling
Keene to a declaratory judgment of non-liability.” Id. The court further noted that
the suit was essentially an attempt to avoid application of the Bankruptcy Code
and reminiscent of a “reorganization plan and ‘cram down’ . . . followed by a
discharge.” Id.

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WWE wrestler would not retain the Kyros law firm unless they intended a real and
immediate suit against WWE for the same concussion-related causes of action as
that claimed by Singleton, LoGrasso and others. In the court’s view, even
assuming one or more of the "Various John Does" had retained Kyros to advise
them whether to bring suit against WWE, any assumption that they actually
intended to file suit, however logical, would be a presumptuous invasion of the
sanctity and privacy of the attorney-client relationship as well as an infringement
of a Plaintiff’s sole right to determine whether to litigate a claim at all and the full
extent of his or her damages giving rise to such a claim. See Cunningham Bros.
v. Bail, 407 F.2d 1165, 1169 (7th Cir. 1969) (declaratory judgment action improper
where plaintiff sought to “force an injured party to litigate a claim which he may
not have wanted to litigate at a time which might be inconvenient to him or which
might precede his determination of the full extent of his damages”).
The Court lacks subject matter jurisdiction over WWE’s claim for
declaratory relief as against the “Various John Doe” defendants. All claims
against the John Doe defendants are DISMISSED. The Court now considers
whether, in the exercise of its broad discretion, the Court should exercise
jurisdiction as to WWE’s claims against the named defendants.

3. The Court Will Exercise Jurisdiction Over the Named Defendants
Despite WWE's Procedural Fencings
Even where an actual controversy exists, the Court nonetheless retains
broad discretion to exercise jurisdiction over a declaratory judgment action. In
1969, the Second Circuit articulated a two-pronged test to guide district courts in
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the exercise of this discretion, asking: (1) whether the judgment will serve a
useful purpose in clarifying or settling the legal issues involved, and (2) whether
a judgment would finalize the controversy and offer relief from uncertainty” and
further stating that “if either of these objectives can be achieved the action
should be entertained.” Broadview Chem. Corp., 417 F.2d 1000. In recent years,
however, the Second Circuit has noted that “[o]ther circuits have built upon this
test, to ask also: (3) whether the proposed remedy is being used merely for
“procedural fencing” or a “race to res judicata;” (4) whether the use of
declaratory judgment would increase friction between sovereign legal systems or
improperly encroach on the domain of a state or foreign court; and (5) whether
there is a better or more effective remedy. Dow Jones & Co. v. Harrods Ltd., 346
F.3d 357, 359-60 (2d Cir. 2003).
WWE essentially argues that the Second Circuit has never explicitly
abrogated its language in Broadview Chem. Corp. that if either of the first two
factors are met a district court must not decline to exercise jurisdiction, and
therefore it is only the first two factors which “control[] this Court’s discretion.”
[Pl.’s Mem. at 39]. The reason for WWE’s argument is clear, as the Court later
explains – WWE does not wish this Court to consider “procedural fencing” as a
factor in examining whether the exercise of jurisdiction over this matter is
appropriate.
The Court disagrees with WWE’s statement of the controlling Second
Circuit test. WWE overstates Broadview. There, the Second Circuit stated that
the district court should entertain the matter, not that it must. It stands to reason

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that there are circumstances in which the Broadview test is met and yet
providence dictates that the district court not entertain a case. In noting the
factors it did in Dow Jones, the Second Circuit signaled its expectation that
district courts would exercise their discretion prudently and in the spirit of the
Declaratory Judgment Act. Clearly a declaratory judgment may serve a useful
purpose or finalize a controversy but yet counterbalancing negative
consequences outweigh these benefits. The factors identified in Dow Jones are
among those which may suggest such improvidence.
WWE also understates Dow Jones. There, the Second Circuit affirmed a
district court’s decision to decline jurisdiction over a declaratory judgment action
after examining all five of the combined factors described above, and rejected the
declaratory plaintiff’s argument on appeal that “the district court should have
balanced the various factors differently” and further stated that the district
court’s decision was not “premised on an erroneous view of the law.” Dow Jones
& Co., 346 F.3d at 360. When the Second Circuit next examined a district court’s
decision to decline jurisdiction over a declaratory judgment action in New York v.
Solvent Chem. Co., 664 F.3d 22, 26 (2d Cir. 2011), the court did not cite the twopronged test from Broadview Chem. Corp. and simply stated that “[w]hen faced
with a request for a declaratory judgment pursuant to . . . 28 U.S.C. § 2201(a), a
district court must inquire” into all five of the above listed factors. See Solvent
Chem. Co., 664 F.3d at 26 (emphasis added) (citing Dow Jones & Co., 346 F.3d at
359–60). Thus, the law is clear that not only should the Court consider all five
factors from Dow Jones, the Court is indeed required to do so.

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The Windham defendants raise no argument that the instant matter would
increase friction between sovereigns or encroach on the domain of a state court
and raise no argument that there is a more effective remedy available to WWE.
Defendants also raise no specific arguments that the Windham action would not
serve a useful purpose in settling the issues involved, finalizing the controversy,
and offering all parties relief from uncertainty.4 Therefore, the sole question
presented is whether WWE engaged in procedural fencing and if so whether its
procedural fencing is so foul and improper as to alone warrant dismissal in the
exercise of the Court’s broad discretion. As the Court explains below, although
WWE did engage in procedural fencing, its conduct is outweighed by the ability
of the Windham action to fully and finally settle the issues between the named
plaintiffs and the defendant, relieve the parties of uncertainty and preserve
limited judicial resources.
The Windham defendants argue in support of dismissal that declaratory
judgments should not be used to “anticipate [an] affirmative defense.” [Pl.’s
Mem. at 27]. Plaintiffs cite to BASF Corp. v. Symington, 50 F.3d 555 (8th Cir.
1995), in which the Eighth Circuit held after surveying numerous cases that
“where a declaratory plaintiff raises chiefly an affirmative defense, and it appears
that granting relief could effectively deny an allegedly injured party its otherwise

4

The Windham defendants raise a series of arguments that do not directly
address any of the five listed factors. The defendants argue that it is improper to
“preemptively litigate state-law tort claims,” that it is improper to deprive an
injured party of his or her right to determine the forum and timing of a suit, that it
is improper to use the DJA to litigate statute of limitations defenses and that
WWE seeks to “improperly leverage” a ruling against one wrestler as to all
others. [Def.’s Mem. at 23-29].
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legitimate choice of the forum and time for suit, no declaratory judgment should
issue.” Id. at 558-559. However, WWE notes that the Eighth Circuit’s survey
found that courts, including the Second Circuit itself, have “regularly
consider[ed] the merits of affirmative defenses raised by declaratory plaintiffs.”
Id. at 558, citing, e.g., Hoelzer v. City of Stamford, 933 F.2d 1131, 1135–37 (2d Cir.
1991) (examining declaratory plaintiff’s affirmative defense based upon New
York’s statute of limitations).
The Windham defendants also argue, almost in passing, that WWE’s action
has engaged in procedural fencing by denying “the wrestlers the right to
determine the place and timing of suit.” [Def.’s Mem. at 27]. Indeed, courts are
reluctant to entertain efforts by an alleged tortfeasor to use the DJA in a race-tothe-courthouse effort to shop for a forum with the most favorable statute of
limitations. See Dow Jones & Co., 237 F. Supp. 2d at 440 (rejecting Dow Jones’
“rush to file first” in anticipation of litigation in the United Kingdom and in order
to apply United States law to the declaratory defendant’s potential defamation
claim). And the Eighth Circuit in BASF Corp. declined to exercise jurisdiction
where the declaratory action by BASF in North Dakota, filed one day after the
declaratory defendant had already filed in New Jersey, was “chiefly calculated to
take advantage of favorable statute of limitations” in North Dakota and was “a
misuse of the declaratory judgment act.” 50 F.3d at 559. The Eighth Circuit
surveyed a number of cases and found that in the instances in which courts have
permitted a declaratory judgment action on the basis of an affirmative defense,
including the cases cited by WWE, the declaratory action did not “involve[] a

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threat to an injured party's right to choose its forum.” Id. Other circuits are in
agreement with this holding in BASF. See AmSouth Bank v. Dale, 386 F.3d 763,
790 (6th Cir. 2004) (finding abuse of discretion where declaratory action was “an
effort to engage in procedural fencing to secure the Banks’ choice of forum”);
Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 10 F.3d 425, 431 (7th Cir. 1993) (“a
suit for declaratory judgment aimed solely at wresting the choice of forum from
the “natural” plaintiff will normally be dismissed and the case allowed to proceed
in the usual way”); Pac. Employers Ins. Co. v. M/V Capt. W.D. Cargill, 751 F.2d
801, 804 (5th Cir. 1985) (no abuse of discretion in declining jurisdiction where
district court found that declaratory plaintiff sought merely to control the forum of
the natural plaintiff’s cause of action).
WWE does not squarely address the procedural fencing factor in briefing,
stating only the mere truism that the “proposed remedy is not procedural fencing,
but rather goes to the important policy of repose and involves a pure legal issue
that is involved in every other case filed by Kyros.” [Pl.’s Mem. at 39]. However,
an examination of the very cases cited by WWE in favor of finding an actual case
or controversy reveals the extent to which the procedural fencing in the instant
matter must be distinguished as procedurally improper.
In Shell Oil, the declaratory plaintiff had been sued by counsel for the
declaratory defendants on behalf of another Mississippi resident in the District of
Mississippi in an obvious attempt to take advantage of Mississippi’s six-year
statute of limitations for wrongful death actions despite that individual’s claims
having accrued in Virginia, where they were time barred. 716 F. Supp. at 932-333.

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The first Mississippi action was transferred to Virginia, but counsel then
threatened to file another action in Mississippi on behalf of the declaratory
defendants. Id. Plaintiff filed a DJA action in Virginia seeking a determination
that the Virginia statute of limitations applied to the declaratory defendants’
claims and that such claims were time-barred. Id. at 933. The Virginia district
court held that “declaratory relief is an appropriate remedy” in part because
“entry of declaratory judgment for the plaintiffs would promote judicial
economy.” Id. at 934. However, key to the Virginia district court’s finding that
declaratory relief would be appropriate was its holding that the two-year Virginia
statute of limitations would apply and bar defendants’ claims regardless of
whether the action was filed in Mississippi or Virginia under Mississippi’s choiceof-law rules. Id. The Court further noted that counsel for defendants admitted at
oral argument that counsel would not have opposed transfer to Virginia had
defendants filed first in Mississippi. Id.
Similarly, the Second Circuit in Hoelzer v. City of Stamford, also cited by
WWE, examined an appeal brought by a New York resident and art restorer who
had filed a declaratory judgment action to quiet title to a series of murals in his
possession based upon the statute of limitations having run on the City of
Stamford’s delayed demand for the return of those murals. 933 F.2d at 1131-1135.
Applicability of New York’s statute of limitations was not disputed on appeal
given that demand for the return of the artwork was made in New York, the
artwork resided in New York and therefore the claim accrued in New York. Id. at
1136. Furthermore, the Second Circuit affirmed the district court’s holding that

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the New York statute of limitations did not bar defendant’s claim, and therefore
the declaratory plaintiff’s choice of forum did not appear to affect the outcome of
the matter. Id. at 1137-1138.
These cases illustrate that where a declaratory judgment plaintiff seeks a
declaration of non-liability on the basis of an affirmative defense and the use of
the DJA does not impact the application of the law to the parties claims,
notwithstanding the deprivation of the declaratory plaintiff’s traditional right to
determine the time and place of the suit, exercising jurisdiction over the action
may be appropriate. See, e.g., Hoelzer, 933 F.2d at 1136. However, where
exercising jurisdiction over a declaratory judgment action would affect the
application of one or more state’s laws to the claims of the parties through, for
example, the enforcement of a stricter statute of limitations in a forum where the
natural plaintiff’s claim may not have actually accrued, obvious procedural
fencing may outweigh the benefits of exercising jurisdiction over the suit. See
BASF Corp., 50 F.3d at 559; Dow Jones & Co., 237 F. Supp. 2d at 440
It cannot be disputed here that via the Windham action WWE seeks to
preemptively apply Connecticut’s statutes of limitations and repose to bar the
claims of four named defendants, who reside in four different domestic and
foreign jurisdictions other than the State of Connecticut, who likely wrestled in a
number of jurisdictions other than Connecticut, without presenting evidence that
any of the four wrestlers signed contracts with WWE selecting Connecticut as the

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exclusive forum for claims arising out of their performances for WWE.5 In effect,
WWE seeks to hale Messrs. Windham, Billington, Ware and Perras into a ring they
have built here in the District of Connecticut in order to use the Connecticut
statutes of limitations to potentially constrain claims that these wrestlers have yet
to even state with specificity.6 Use of the DJA for such a pre-emptive strike is
suspect on its face.
However, in its March 21, 2016 Opinion, this Court already undertook a
choice-of-law analysis to determine whether to apply Connecticut or Oregon law
to the claims in the Haynes action, as there was no evidence that plaintiff Haynes
had signed a booking contract with WWE. [Opinion at 20-24]. First, the Court
noted Attorney Kyros’ own pattern of obvious forum-shopping in prior suits
against WWE. [Id. at 18, 23-24]. The Court determined that under Connecticut
law, the applicable statutes of limitations are considered procedural where the
underlying cause of action existed at common law, and therefore Connecticut’s
statute of limitations applied to Haynes’ common law fraud and negligence claims
notwithstanding his Oregon residency and the filing of his action in Oregon. [Id.

5

WWE argues that the counsel for the Windham defendants, in several of the
previously-filed suits against WWE, agreed to transfer those cases to Connecticut
and that one such case was a purported class action that would have
encompassed the Windham defendants as class members. However, prior suits
were transferred to Connecticut in part on the basis of evidence that the named
plaintiffs had signed contracts with WWE containing forum-selection clauses
limiting such claims to this jurisdiction. [Opinion at 17].
6
The Court notes that while, up to this point, all of the complaints filed by Kyros'
wrestling clients have been virtual carbon copies and have raised identical
claims, the Windham action would restrict the claims of the named plaintiffs
based solely on the litigation choices of the wrestlers who have already filed.
This point might have more significance had the prior plaintiffs not filed ten-count
complaints raising virtually every plausible cause of action.
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at 24]. The Court also found that because plaintiff LoGrasso’s claim for fraud by
omission also plausibly implicated the tolling doctrine of fraudulent concealment
and continuing course of conduct, LoGrasso’s claims were not necessarily timebarred. [Id. at 35-47]. It is these three determinations that militate against
dismissal of the Windham action, notwithstanding WWE’s procedural fencing.
First, in cases such as the instant matter, where the subject matter of the
litigation is nationwide in scope, where the declaratory judgment defendants have
their own history of abusive forum shopping and procedural fencing and where
similar actions were already pending in the same forum chosen by the
declaratory judgment plaintiff, the Court’s nominal concern for the declaratory
defendant’s own choice of forum and its effect on the application of the law to the
claims presented is more circumscribed. Unlike the declaratory plaintiffs in
BASF Corp. and Dow Jones, the declaratory plaintiff here is not attempting to use
the DJA to introduce a new and rival forum into the equation, but rather is
seeking merely to prevent the inefficient and time-consuming forum-shopping in
which Kyros has engaged at the expense of the judicial resources of a number of
district courts.
Second, even if Messrs. Windham, Billington, Ware and Perras had elected
to file suit in the loci of their choice, it is likely, based upon the same factors
which led three different courts to transfer the Haynes, Frazier and Osborne
actions to the District of Connecticut from three different judicial districts, that
their suits would similarly be transferred here and face application of Connecticut
procedural law, including the Connecticut statutes of limitations.

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Third, and perhaps most importantly, the Court suspects that application of
the Connecticut statutes of limitations in particular – as opposed to the statutes
of limitations of another jurisdiction – is unlikely to have an impact on the
eventual determination of whether WWE is liable to any of the Windham
defendants. Specifically, if there is sufficient evidence for a trier of fact to
conclude that WWE fraudulently omitted material information from LoGrasso
concerning permanent head injuries, it is likely that WWE has also fraudulently
concealed LoGrasso’s cause of action, as LoGrasso’s discovery of his cause of
action would have been thwarted by the fraudulent omissions.7 The same logic
applies to the Windham defendants. By contrast, if no such evidence exists with
respect to LoGrasso, it is unlikely that the Windham defendants can state any
claim for relief for fraud, regardless of whether such claims are time-barred under
the laws of different jurisdictions.
Because WWE’s procedural fencing is not likely to impact the ultimate
disposition of the claims of the Windham defendants, the Court finds that this
factor is outweighed by the other factors articulated in Dow Jones and Broadview
Chem. Corp.8 Specifically, the Court finds that the Windham action will assist in

7

WWE will soon be filing a dispositive motion as to its liability with respect to
Singleton and Lograsso. After months of extensive discover and depositions of
witnesses by Singleton and LoGrasso, the evidence will either show that a
reasonable trier of fact could find that WWE was under a duty to disclose
knowledge in its possession or readily obtainable and failed to do so in a
continuing course of fraudulent conduct, or that WWE had no such duty or
knowledge or that the conduct was not continuous after the initial wrong.

8

The Court emphasizes, however, the limited and fact-specific nature of its
finding that exercising jurisdiction is appropriate here despite WWE’s obvious
procedural fencing and the precedent set by numerous prior courts in refusing to
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clarifying and settling the legal issues involved by helping to identify whether
WWE is liable to any active or former wrestlers and, if so, continuing to refine the
possible group of persons to whom WWE could be liable. In addition, a judgment
in favor of WWE would provide finality with respect to the named defendants’
claims and would relieve WWE of the uncertainty it has faced since it received the
“representation and preservation” letters from the four defendants. WWE may
also elect to amend its Windham complaint and seek a declaration of non-liability
on grounds other than the statutes of limitations should the progression of the
Singleton and LoGrasso matter indicate that WWE’s non-liability is ultimately
premised on a different legal or factual theory.
Finally, the exercise of jurisdiction over the Windham action would
preserve limited judicial resources by avoiding, with respect to the named
defendants, the tortuous path to the District of Connecticut that Attorney Kyros’
other clients have been forced to walk. In continuing to file carbon-copy
concussion suits on behalf of former wrestlers in other jurisdictions, only to have
those suits eventually transferred to this District upon WWE’s motion, Kyros is
only delaying his own clients’ potential recovery and wasting limited judicial
resources. Against a defendant as well-represented as WWE, such tactics are

entertain such actions where a declaratory plaintiff seeks to pre-emptively apply a
stricter state law than that which would be applicable in the declaratory
defendant’s natural choice of forum. Because it is likely that the declaratory
defendants’ claims in this action would have been transferred to this district,
where other similar claims were already pending, that Connecticut law would
likely have been applied, and that application of Connecticut law instead of the
law of another state will not determine the outcome of this matter, WWE’s
procedural fencing is not likely to bear a significant role in this case.
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unlikely to increase, and certain to delay, his clients’ own chances of a recovery.
Although, in dismissing the John Doe defendants, the Court declines to hale all of
Kyros’ wrestling clients to Connecticut as a class, it is possible – even probable –
that the Court will hear the claims of these clients in this District at some point in
the future.
Once all of the lawyers, entertainers, and lawyer-entertainers involved in
this case have entered the proper ring, perhaps then the parties will stop dancing
around the ropes with one another and begin to wrestle these cases toward a fair
and just resolution.
For the foregoing reasons, Defendants’ Motion to Dismiss the Windham
action for lack of subject matter jurisdiction is GRANTED with respect to the
claims against the unknown “John Does” and DENIED with respect to the claims
against the four named defendants. The John Does are DISMISSED. Messrs.
Windham, Billington, Ware and Perras are to be REINSTATED as defendants in
this consolidated action.

V.

WWE’s Motion to Expedite Discovery in the Windham Action

As the John Doe defendants have been dismissed, WWE’s Motion for
Expedited Discovery of the John Doe Defendants is DENIED AS MOOT.

VI.

Conclusion

In conclusion, WWE’s Motion for Reconsideration of the Court’s Order [Dkt.
116] Granting In Part and Denying In Part Defendant’s Motions to Dismiss the

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Singleton and McCullough Actions [Dkt. 118] is DENIED. WWE’s Motion for
Reconsideration of the Court’s Order [Dkt. 117] Dismissing the Windham Action
[Dkt. 119] is GRANTED. The Court’s Order at Docket Number 117 is hereby
VACATED.
Defendants’ Motion to Dismiss the Windham Action [Dkt. 72] is GRANTED
IN PART AND DENIED IN PART. The John Doe defendants are DISMISSED.
Messrs. Windham, Billington, Ware and Perras are to be REINSTATED as
defendants in this consolidated action.
WWE’s Motion for Expedited Discovery of the John Doe Defendants [Dkt.
82] is DENIED AS MOOT.

IT IS SO ORDERED.

________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: July 21, 2016

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