Russ McCullough et al v. World Wrestling Entertainment Inc

Filing 253

ORDER (1) denying 80 Motion for Sanctions; (2) granting 103 Motion to Dismiss; and (3) granting 104 Motion to Dismiss. The Frazier (3:15-cv-1229) and James (3:15-cv-1305) actions are hereby dismissed. See attached memorandum of opinion. Signed by Judge Vanessa L. Bryant on 11/10/2016. (Hoffman, S)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RUSS McCULLOUGH, a/k/a “Big Russ
McCullough”, et al,
Plaintiffs,

:
:
CIVIL ACTION NO.
:
3:15-cv-001074 (VLB)
:
Lead Case
v.
:
:
WORLD WRESTLING
:
ENTERTAINMENT, INC.,
:
Defendant.
:
______________________________________________________________________
MICHELLE JAMES, as mother and next
Friend of MATTHEW OSBORNE, a
Minor Child and TEAGAN OSBORNE, a
Minor Child,
Plaintiffs,

:
:
CIVIL ACTION NO.
:
:
:
3:15-cv-01305 (VLB)
:
Consolidated Case
v.
:
:
WORLD WRESTLING
:
ENTERTAINMENT, INC.,
:
Defendant.
:
______________________________________________________________________
CASSANDRA FRAZIER, individually
and as next of kin to her deceased
husband, NELSON LEE FRAZIER, JR., and
as personal representative of THE
ESTATE OF NELSON LEE FRAZIER, JR,
DECEASED,
Plaintiffs,

:
:
CIVIL ACTION NO.
:
:
:
3:15-cv-01229 (VLB)
:
Consolidated Case
:
:
v.
:
:
WORLD WRESTLING
:
ENTERTAINMENT, INC.,
:
Defendant.
:
______________________________________________________________________
November 10, 2016

1 

MEMORANDUM OF DECISION GRANTING DEFENDANTS’ MOTION TO DISMISS
THE FRAZIER ACTION [Dkt. 103] AND GRANTING DEFENDANT’S MOTION TO
DISMISS THE OSBORNE ACTION [Dkt. 104].
MEMORANDUM OF DECISION DENYING DEFENDANTS’ MOTION FOR
SANCTIONS [Dkt. 80]
Plaintiffs in the Frazer and James cases in this consolidated wrestling
concussion litigation are the decedents of former wrestlers who performed for
compensation for World Wrestling Entertainment Inc. (“WWE”), a Connecticut
entertainment company which produces televised wrestling programming.
Plaintiffs have brought wrongful death claims alleging that the decedents’ deaths
resulted from traumatic brain injuries sustained during their employment as
wrestlers for WWE, and that the negligence and/or fraudulent conduct of WWE
caused those injuries.
In a memorandum of opinion and accompanying Order dated March 21,
2016 (the “March 21 Opinion”), this Court dismissed similar claims brought by
other retired former wrestlers alleging that they were injured as a result of WWE’s
negligence in scripting violent conduct and failing to properly educate, prevent,
diagnose and treat them for concussions. Prior to the entry of the Court’s March
21 Opinion, WWE separately moved to dismiss the Complaints in both of the
instant wrongful death actions, arguing that the Plaintiffs’ claims are time-barred
and fail to state a claim under Connecticut’s wrongful death statute. [Dkt. 103,
104]. WWE also previously filed a motion to impose sanctions against Plaintiffs’
counsel, Konstantine Kyros (“Kyros”), Erica Mirabella (“Mirabella”), and R.
Christopher Gilreath (“Gilreath”) for their conduct, and in particular the conduct

2 

of attorney Kyros, in the filing of the James matter in Texas. [Dkt. 80].
Currently before the Court are WWE’s motions to dismiss the two wrongful
death actions in Frazier and James, as well as WWE’s motion for sanctions
related to the filing of the James matter. For the reasons stated below, WWE’s
motions to dismiss [Dkt. 103, 104] are GRANTED and the Frazier [3:15-cv-1229]
and James [3:15-cv-1305] actions are DISMISSED. WWE’s Motion for Sanctions
[Dkt. 80] is DENIED.

I.

Factual Background

The facts and allegations in the Amended Complaint in the action brought
by Michelle James [3:15-cv-01305-VLB, Dkt. 99] (hereinafter “JAC”)] are nearly
identical to the facts and allegations in the Amended Complaint brought by
Cassandra Frazier, et al. [3:15-cv-01229, Dkt. 98] (hereinafter “FAC”)]. Both
amended complaints are also nearly identical to the amended complaints brought
by several other former WWE wrestlers against WWE in this consolidated action,
including those brought by Russ McCullough [3:15-cv-01074, Dkt. 73], and Evan
Singleton [3:15-cv-00425, Dkt. 67]. All of the wrestlers alleged that they were
injured as a result of WWE’s negligence in scripting violent conduct and failing to
properly educate, prevent, diagnose and treat them for concussions.
In its March 21, 2016 Opinion, the Court exhaustively reviewed the factual
allegations asserted against WWE in the complaints brought by Plaintiffs
McCullough and Singleton. As those complaints are nearly identical to the
complaints brought by Plaintiffs in Frazier and James the Court incorporates that

3 

portion of its earlier Opinion describing the factual allegations against WWE.
Relevant to the instant motions are the following facts concerning the named
decedents in Frazier and James, which are taken from the Amended Complaints
in those respective actions.

a. Nelson Lee Frazier
Plaintiff Cassandra Frazier is the widow of Nelson Lee Frazier (“Frazier”), a
deceased former WWE wrestler. Frazier performed in at least 289 matches while
affiliated with WWE between June 14, 1993 and March 11, 2008, which was the
date of his last performance. [FAC ¶¶ 117-406]. Frazier maintained a weight of
approximately 500 pounds while wrestling for WWE. [Id. ¶ 172]. Frazier had an
admittedly “complicated medical history” that included “weight issues and heart
conditions.” [Id. ¶ 156]. Frazier vaguely alleges that he sustained “countless
head injuries” while wrestling in addition to “numerous other physical injuries.”
[Id.]. The Complaint does allege that Frazier “had large knots on his head, as the
scar tissue on his skull formed into permanent lumps” and also “evidenced
indentations in his skull,” but does not describe how Frazier acquired those
injuries or their medical significance. [Id. ¶ 157]. On six specific dates in 1993,
1995, 1999 and 2005 and 2006, Frazier is vaguely alleged to have “sustained head
injuries.” [Id. ¶¶ 184-190]. Plaintiff’s complaint does not identify the injuries
suffered. Like many of the other named Plaintiffs in this consolidated action,
Frazier generally describes the physical contact in each of the alleged incidents –
a fall to the mat, for example, or a blow to the head – without alleging any specific

4 

or medically-diagnosed physical injury or even alleging that he ever sought
medical treatment after the incident.
The Complaint alleges that toward the end of Frazier’s WWE wrestling
career, he sought medical treatment from his own physician. Frazier’s personal
physician told him he was an “idiot” for choosing to wrestle for a living and
encouraged WWE to release him from employment. [Id. at ¶¶ 168, 170]. Prior to
his death, Frazier sought medical attention from for severe depression and
severe migraines. [Id. ¶¶ 113, 114].
Frazier died of a heart attack on February 18, 2014, nearly six years after he
last performed for WWE. The official records of Tennessee identified the
immediate cause of death as “Hypertensive cardiovascular disease” and
“[m]orbid obesity, diabetes mellitus” as other significant contributing
conditions.1 Nonetheless, Frazier alleges in conclusory fashion that “[a]s a direct
and proximate result of the WWE’s negligence, Nelson Frazier was put in a worseoff state of well-being as evidenced by the above complications, which to a
reasonable degree of medical certainty, more likely than not attributed [sic] to
Nelson Frazier’s heart attack and his inability to survive the heart attack.” [FAC ¶
302]. This is the sole allegation raised by Plaintiff linking Frazier’s heart attack
with any wrongful act by WWE.
The official death certificate of Tennessee shows that no autopsy was

1

A certified copy of Frazier’s death certificate was attached to WWE’s Motion to
Dismiss as Exhibit A. The Court takes judicial notice of it with respect to this
motion to dismiss. See G-I Holdings, Inc. v. Baron & Budd, No. 01 Civ. 0216
(RWS), 2003 WL 193502, at *8 (S.D.N.Y. Jan. 29, 2003); Johnson v. Morgenthau,
160 F.3d 897, 898 (2d Cir. 1998).

5 

performed and that Frazier was cremated. Notably, unlike all of the other
complaints filed in the TBI cases against WWE, including the James Amended
Complaint, the Amended Complaint in Frazier omitted the allegation that CTE can
only be diagnosed post-mortem by direct tissue examination of the brain. [See,
e.g., Dkt. 73, McCullough Amended Complaint ¶ 35]

b. Matthew Osborne
Plaintiff Michelle James (“James”) brought suit as mother and next friend
of two of the children of a deceased former wrestler named Matthew Osborne
(“Osborne”). James does not allege facts suggesting that she has standing to
bring this action. She does not claim to have ever been married to Osborne or
that she is the executor of Osborne’s estate.
The Complaint alleges that Osborne had an “approximately 30 year
association as a wrestler with WWE” ending in 2007. [Dkt. 99, JAC ¶ 17]. WWE
argues, and Plaintiff did not contest, that publicly-available information
establishes that Osborne performed for WWE during two one-year stints from
1985-86 and again from 1992-93 and subsequently made a single ‘special guest’
appearance at a WWE program in 2007 “for a few minutes.” [Def.’s Mem. at 4, n.
4]. WWE therefore argues that the Complaint is misleading in suggesting that
Osborne had a thirty-year wrestling career with WWE and that Osborne’s
employment relationship with WWE was terminated in 1993.
In or around September 2007, WWE established a wellness program,
described in the Court’s March 21 Opinion. As part of the new wellness program,

6 

WWE offered to pay for rehabilitation services if any former wrestler needed help
for drug or alcohol abuse. WWE acknowledges that Osborne “sought such help,”
and that WWE paid for Osborne to obtain drug rehabilitation services from a third
party in 2008, which “he successfully completed.” [Def.’s Mem. at 5]. The
Complaint alleges that Osborne died of a drug overdose on June 28, 2013 at his
home in Plano, Texas. [JAC ¶¶ 4, 187, 277]. The official conclusion of the
Assistant County Medical Examiner for Collins County Texas was that his death
was accidental and caused by the toxic effects of high levels of opiates.2
The Plaintiffs allege that CTE can only be diagnosed post-mortem by direct
tissue examination of the brain, [JAC ¶ 58, 93]. While James suggests that “any
tissue samples of [Osborne’s] brain tissue collected during his autopsy can be
studied for the presence of Tau protein for a definitive diagnosis,” [id. ¶ 33] she
has not alleged that the medical examiner actually collected or examined such
samples. Consequently, James has failed to allege facts that would indicate on
what information she relied to determine that Osborne had CTE, or that
Osborne’s death from a drug overdose was caused by CTE.

2

An autopsy report concerning the death of Matthew Osborne was attached to
WWE’s Motion to Dismiss as Exhibit 1. The Court takes judicial notice of this
document as an official record. See Johnson v. Morgenthau, 160 F.3d 897, 898
(2d Cir. 1998) (holding that the court could take judicial notice of a party’s death
when provided with a death certificate); Valley Surgical Ctr. LLC v. Cty. of Los
Angeles, No. CV 13-02265 DDP AGRX, 2015 WL 3825310, at *6 n.1 (C.D. Cal. June
18, 2015) (taking judicial notice of a coroner’s report and its contents, where the
complaint alleged facts from the report, and where no party questioned the
report’s authenticity).

7 

II.

Procedural History

Frazier and James are the fourth and fifth carbon-copy concussion cases
against WWE, respectively, to be transferred to this District after originally having
been filed in other jurisdictions. In the first of these five cases to be filed,
Singleton, Plaintiffs did not oppose transfer on the basis of a binding forumselection clause in the employment contracts WWE signs with its wrestlers. [Dkt
6, 11]. In the second-filed case, McCullough, Plaintiffs argued that the forum
selection clauses were unconscionable under California law and therefore
unenforceable. [Dkt. 21]. McCullough was transferred to this District after a court
in the Central District of California found that the forum selection clauses were
valid and enforceable. [Dkt. 24].
Plaintiffs also opposed transfer of the third-filed case, Haynes, on the basis
that the named plaintiff in that action had not signed a contract with WWE
containing a forum-selection clause. A district court in the District of Oregon
nonetheless granted WWE’s motion to transfer the Haynes action to this District
pursuant to 28 U.S.C. § 1404(a) after finding that the plaintiff’s choice of forum
was entitled to little weight given obvious forum-shopping by Plaintiffs’ counsel
and considerations of forum non conveniens. [Dkt. 59].
On June 8, 2015, this Court ordered WWE and Plaintiffs’ lead and local
counsel to appear for a status conference in the Singleton/LoGrasso and
McCullough cases. Among other admonitions of counsel for inflammatory and
unprofessional conduct, the Court referred Plaintiff’s counsel, Konstantine Kyros,
to Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to

8 

consist of a short and plain statement of the facts which form the plaintiff's
claims, and specifically instructed him to "read the Federal Rule, give it some
close consideration, perhaps read some cases on the pleading standard, and
then file this complaint again in a week without any scrivener errors, without a lot
of superfluous, hyperbolic, inflammatory opinions and references to things that
don't have any relevance.” [Dkt. 73 at 60].
Haynes was subsequently transferred to this Court on June 25, 2015. [Id.]
The very next day, Attorney Kyros filed the last of the five consolidated wrestling
cases, James, in the Northern District of Texas. Kyros and the numerous other
counsel co-signing the James complaint on behalf of the Plaintiffs declined to
heed the Court’s admonition to edit the unnecessary verbiage, irrelevant
allegations, conclusory statements and inflammatory language in the original
complaints.
After numerous communications between various counsel for both parties
concerning the veracity of several assertions repeatedly included in the carboncopy wrestling complaints, WWE ultimately filed the instant Rule 11 motion while
the James case was pending in Texas. WWE did not serve a copy of the exact
Rule 11 motion ultimately filed in Texas twenty-one days in advance of filing that
motion – instead, a prior iteration of the motion was served on Kyros’ firm
bearing the case caption of the Haynes matter while that case was pending in
Oregon. Nonetheless, the instant Rule 11 motion seeks the imposition of
sanctions against Kyros on the basis of alleged falsehoods in the James
complaint, that WWE claims to have repeatedly pointed out to Plaintiffs’ counsel,l

9 

as well as on the basis of Plaintiffs’ pattern of forum shopping. [Dkt. 80].
The James case was transferred to this Court from Texas after Plaintiffs
withdrew their objection to transfer. WWE argues that Plaintiffs’ counsel,
however, failed to remove allegedly false assertions from the complaint when,
after lengthy delay, Plaintiffs finally filed amended complaints in both Frazier and
James, therefore underlining WWE’s case for the imposition of sanctions.
Moreover, in filing amended complaints in Frazier and James, Kyros and
numerous other co-signing counsel declined to heed this Court’s admonition to
edit the complaints to reduce their unnecessary length and irrelevant,
inflammatory allegations.
In its March 21 Opinion, the Court dismissed the negligence claims
asserted in McCullough, Singleton, and Haynes, and held that Plaintiffs’ only
plausible claim against WWE under Connecticut law was a single count of fraud
by omission for WWE’s alleged failure to disclose information linking wrestling
with long-term brain damage in the face of a plausible duty to disclose such
information. The Court found that such claims could only be brought by
wrestlers who performed for WWE after WWE was alleged to have acquired the
knowledge which it allegedly failed to disclose – which Plaintiffs alleged was on
or about the year 2005. The Court further found that it was plausible that this
fraud claim may not be barred by the operation of Connecticut’s statutes of
limitations and repose with respect to wrestlers who performed after 2005.

10 

III.

Legal Standard

“‘To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its
face.’” Sarmiento v. U.S., 678 F.3d 147 (2d Cir. 2012) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). While Rule 8 does not require detailed factual
allegations, “[a] pleading that offers ‘labels and conclusions’ or ‘formulaic
recitation of the elements of a cause of action will not do.’ Nor does a complaint
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Iqbal, 556 U.S. at 678 (citations and internal quotations omitted). “Where a
complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it
‘stops short of the line between possibility and plausibility of ‘entitlement to
relief.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). “A
claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citations omitted).
In considering a motion to dismiss for failure to state a claim, the Court
should follow a “two-pronged approach” to evaluate the sufficiency of the
complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A court ‘can
choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.’” Id. (quoting Iqbal, 556
U.S. at 679). “At the second step, a court should determine whether the ‘wellpleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an
entitlement to relief.’” Id. (quoting Iqbal, 556 U.S. at 679). “The plausibility

11 

standard is not akin to a probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678
(quotations omitted).
In general, the Court’s review on a motion to dismiss pursuant to Rule
12(b)(6) “is limited to the facts as asserted within the four corners of the
complaint, the documents attached to the complaint as exhibits, and any
documents incorporated in the complaint by reference.” McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court may also consider
“matters of which judicial notice may be taken” and “documents either in
Plaintiffs' possession or of which Plaintiffs had knowledge and relied on in
bringing suit.” Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993);
Patrowicz v. Transamerica HomeFirst, Inc., 359 F. Supp. 2d 140, 144 (D. Conn.
2005).

IV.

Discussion
a. Connecticut Law Applies to the Claims of Both Decedents

The Frazier and James Plaintiffs have not challenged WWE’s assertion that
Connecticut law applies to their claims by virtue of the forum-selection clauses in
the contracts between both wrestlers and WWE; and Plaintiffs in both cases have
submitted opposition briefing relying exclusively on Connecticut law. Moreover,
in the Court’s March 22, 2016 Opinion, the Court had previously determined that
Connecticut law applied to the claims brought by plaintiff William Haynes III, an
Oregon resident who had urged application of Oregon law to his negligence

12 

claims against WWE. For the reasons stated in that opinion, the Court applies
Connecticut law to the claims of the respective decedents in the two wrongful
death actions.

b. Wrongful Death Is the Exclusive Remedy for Both Plaintiffs Under
Connecticut Law
Connecticut’s wrongful death statute provides the exclusive remedy for
claims alleging injuries resulting in death. See Ladd v. Douglas Trucking Co., 203
Conn. 187, 195 (1987) (“Since its enactment our wrongful death statute has been
regarded as the exclusive means by which damages resulting from death are
recoverable.”). WWE therefore argues that all other counts of the James and
Frazier Amended Complaints must be dismissed.
Plaintiffs argue, without citation to relevant Connecticut authority, that
“multiple counts may be necessary to provide adequate relief, especially where
punitive and special damages are separate and distinct from statutory claims.”
[Pl.’s Mem. at 27, citing Caulfield v. Amica Mutual Ins. Co., 31 Conn. App. 781,
785, n. 3 (Conn. App. 1993)]. Caulfield, in which a Connecticut appellate court
found that statutory multiple damages were not recoverable under Connecticut’s
uninsured motorist statute, was not a wrongful death action brought under
Section 52-555, and does not even mention Section 52-555 or discuss the
availability of alternative causes of action thereunder.
Connecticut law is clear that because Section 52-555 provides the
exclusive remedy for injuries where death is a result of the wrongful act,

13 

administrators are therefore precluded from pleading alternative common law
causes of action arising from the alleged wrongful act. Lynn v. Haybuster Mfg.,
Inc., 226 Conn. 282, 295 (1993) (holding that Section 52-555 “is the sole basis
upon which an action that includes as an element of damages a person’s death or
its consequences can be brought.”); Floyd v. Fruit Indus., Inc., 144 Conn. 659, 669
(1957) (“[T]here cannot be a recovery of damages for death itself . . . in one action
and a recovery of ante-mortem damages, flowing from the same tort, in another
action brought under [the survival statute].”); Marsala v. Yale-New Haven Hosp.,
Inc., No. AANCV126010861S, 2013 WL 6171307, at *14 (Conn. Super. Ct. Oct. 30,
2013) (striking common law causes of action for assault and battery in action
brought under Section 52-555); Herbert v. Frontier of Northeast Conn., Inc., 2004
Conn. Super. LEXIS 229, at *8-11 (Conn. Super. Ct. 2004) (striking claims for
punitive damages and attorney’s fees). Plaintiffs make clear throughout their
opposition to the motions to dismiss that each decedent’s death is alleged to be
the direct result of the tortious acts of WWE, whether those acts constituted fraud
or negligence. Alternative causes of action arising from those wrongful acts
directly resulting in death are therefore barred. The common law claims asserted
by both Plaintiffs in Counts I-V of both Amended Complaints are DISMISSED.

c. The James Action Must Be Dismissed for Lack of Standing Under
Conn. Gen. Stat. 52-555
Under Connecticut law, “[s]tanding to bring a wrongful death action is . . .
conferred only upon either an executor or administrator.” Isaac v. Mount Sinai

14 

Hosp., 210 Conn. 721, 725-26 (1989) (citations omitted); see also Ellis v. Cohen,
118 Conn. App. 211, 216 (2009) (Ҥ 52-555 creates a cause of action for wrongful
death that is maintainable on behalf of the estate only by an executor or
administrator.”). Where, as in the case of Michelle James, the plaintiff is neither
the executor nor administrator of the decedent’s estate the plaintiff lacks
standing to bring a wrongful death action.
Plaintiffs do not contest Michelle James’ lack of standing. On the contrary,
Plaintiffs repeatedly request that this Court “out of equity and in the interests of
judicial economy and justice . . . permit the constructive refiling of the action
within a reasonable period of time after an estate has been established, an
administrator appointed, and Plaintiff serves WWE anew under the accidental
failure of suit statute, Conn. Gen. Stat. § 52-592.” [Pl.’s Mem. at 4, 42, 44].
In the alternative, Plaintiffs request “an extension of time under Rule 6(b) to
remedy any procedural inadequacies which might affect Plaintiff’s pursuit of her
valid, substantive claims.” [Id.].
After the James action was filed in Texas, Plaintiffs had nearly six months
to address these “procedural inadequacies” prior to the filing of WWE’s motion to
dismiss. Plaintiffs also had the opportunity to file an Amended Complaint, and an
extension of time was provided to plaintiffs’ counsel to accommodate the filing of
that Amended Complaint. At no time did counsel for Plaintiffs invest the minimal
effort and expense necessary to establish an estate and appoint an administrator
in order to confer standing to bring the instant suit.
Nonetheless, in the interests of equity and justice to the families of the

15 

decedents, the Court might have been inclined to dismiss the action without
prejudice to re-filing notwithstanding the conduct of the Kyros firm and its cocounsel, described above. However, for the reasons stated below, the Court
finds that leave to re-file would be futile as Plaintiffs have not pled a plausible
cause of action under the wrongful death statute. The James action is
DISMISSED.

d. Plaintiffs Fail to Allege A Plausible Causal Relationship Between
the Decedents’ Deaths and the Wrongful Acts Alleged
To state a claim under Connecticut’s wrongful death statute, the plaintiff
bears the burden “to prove an unbroken sequence of events that tied [his]
injuries to the [defendant’s conduct] . . . This causal connection must be based
upon more than conjecture and surmise.” Alexander v. Town of Vernon, 101
Conn. App. 477, 485 (2007) (citations omitted).
True to form, in over forty pages of briefing submitted in opposition to
WWE’s motion to dismiss, counsel for Plaintiffs could identify only four vague
and conclusory assertions of ‘fact’ to link Frazier’s death with the more than one
hundred pages of alleged wrongful conduct on the part of WWE detailed in the
prolix Amended Complaint. These four assertions are listed below:
I.
II.
III.
IV.

“WWE created and maintained a dangerous work environment
that caused Mr. Frazier to suffer serious injuries . . .”
“Mr. Frazier incurred many of these injuries. . . .”
“These injuries, along with the poor lifestyle Mr. Frazier was
forced to maintain throughout his employment, directly caused
his death.” (emphasis added)
“WWE continued, until Mr. Frazier’s death, to act and omit [sic]
information regarding Mr. Frazier’s injuries, health, and well-being
16 

which prevented Mr. Frazier from receiving necessary medical
treatment and which ultimately led to his death.”
[Pl.’s Mem. at 33]. The Court notes that Plaintiffs cited the exact same four
‘facts’ with respect to causation in opposition to WWE’s motion to dismiss the
James case. [Pl.’s Mem. at 34].
The bare requirements of Iqbal and Twombly, however, demand more than
these bald assertions, unsupported specific facts, that an individual was ‘injured’
many times and that those undetermined ‘injuries’ led to that individual’s death.
See Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1957 (2007) (“a district court
must retain the power to insist upon some specificity in pleading before allowing
a potentially massive factual controversy to proceed”), citing Associated Gen.
Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 528, n. 17 (1983).
The Court notes, in particular, the facially specious assertions by Plaintiffs’
counsel that, “upon information and belief,” both Frazier and Osborne “had CTE.”
[FAC ¶ 35]. The complaints contain no information from which such a belief
could be derived. In the first three carbon-copy wrestling complaints filed by
Kyros and his numerous co-counsel in these consolidated cases, Kyros
specifically alleged that CTE could only be diagnosed post-mortem through an
autopsy of the subject’s brain. There, the allegation that CTE could only be
diagnosed post-mortem was included to bolster the claims of the other named
Plaintiffs, who had to allege that they have been ‘injured’ due to being at greater
risk of developing CTE, because, by its very nature, the disease could not be
diagnosed without an autopsy. It is no wonder, then, as WWE points out, that

17 

Plaintiffs chose to remove the allegation regarding the diagnosis of CTE from the
Frazier’s complaint. Frazier’s brain has been destroyed and cremated, and James
has alleged no facts to indicate that Osborne’s autopsy included the relevant
analysis of his brain tissue or that any brain tissue samples from this autopsy
have been preserved. It is impossible to plausibly allege, much less prove that
either wrestler had CTE. Kyros and his co-counsels’ assertion that either wrestler
had the condition “upon information and belief” must therefore be knowingly
false.
Not only have Plaintiffs failed to plausibly allege that their decedent had
CTE, neither Plaintiff has alleged facts linking their decedent's death with CTE. In
a wrongful death action under Connecticut law, a plaintiff must allege specific
facts tending to show a plausible connection between the death of the decedent
and the wrongful conduct alleged against the defendant. See, e.g., Rose v. City of
Waterbury, Civil Action No. 3:12cv291 (VLB), 2013 WL 1187049, at *10 (D. Conn.
Mar. 21, 2013) (granting Rule 12(b)(6) motion where wrongful death Plaintiffs
failed “to allege any causal relationship between the Hospital’s conduct and
[plaintiff’s] death”). Here, yet again, counsel for Plaintiffs resort only to rank
speculation, alleging without any factual support that:
As a direct and proximate result of the WWE’s negligence, Nelson
Frazier was put in a worse-off state of well-being as evidenced by the
above complications, which to a reasonable degree of medical
certainty, more likely than not attributed [sic] to Nelson Frazier’s
heart attack and his inability to survive the heart attack.”
[FAC ¶ 302]. By Plaintiffs’ own admission, Frazier was a six-foot-nine-inch,
nearly 500-pound man who “suffered from diabetes, an enlarged heart, and

18 

obesity” and suffered a heart attack in the shower. [FAC ¶ 50, 160]. Even if the
Court assumes for the purposes of this motion that Plaintiffs’ unprovable
allegation that Frazier “had CTE” were true, the Amended Complaint does not
contain a single allegation that heart failure can be a symptom or consequence
attributable to a neurologically degenerative condition like CTE. Thus, counsel’s
allegation that Frazier’s “inability to survive the heart attack” can be “more likely
than not attributed” to his CTE is yet another bald and baseless allegation,
unprovable and unsupportable, which the Court deems unworthy of the barest
measure of credibility.
In sum, Plaintiffs have not pled specific facts tending to show that Frazier’s
death resulted from specific injuries sustained while wrestling for the WWE much
less that his death was the result of fraudulent conduct on the part of WWE but
for which Frazier would not have contracted CTE. The Frazier action is
DISMISSED.

e. The Court Denies WWE’s Request for Sanctions
Rule 11 sanctions may be properly assessed against (1) any attorney who
“present[s] to the court a pleading, written motion, or other paper – whether by
signing, filing, submitting, or later advocating it” that violates the requirements of
Rule 11, or (2) any attorney who is responsible for such violation. Fed. R. Civ. P.
11(b). An attorney violates Rule 11 when he “mak[es] false, misleading, improper,
or frivolous representations to the court.” Housatonic Habitat for Humanity, Inc.
v. General Real Estate Holdings, LLC, 3:13-01888, 2015 WL 3581242 at *2 (D.

19 

Conn. June 5, 2015) (quoting Williamson v. Recovery Ltd. P’ship, 542 F.3d 43, 51
(2d Cir. 2008)).
Rule 11 sanctions are also appropriate “when court filings are used for an
‘improper purpose.’” Ipcon Collections LLC v. Costco Wholesale Corp., 698 F.3d
58 (2d Cir. 2012). A pleading is filed for an improper purpose if it is used to
“harass, cause unnecessary delay, or needlessly increase the cost of litigation.”
Fed. R. Civ. P. 11(b)(1). Similarly, the Court may impose sanctions under 28
U.S.C. § 1927 on “[a]ny attorney or other person admitted to conduct cases in any
court of the United States . . . who so multiplies the proceedings in any case
unreasonably and vexatiously.” 28 U.S.C. § 1927. “Although the decision to
impose sanctions . . . is uniquely within the province of a district court . . . any
such decision must be made with restraint and discretion. Mantell v. Chassman,
512 Fed. Appx. 21, at *1 (2d. Cir. 2013) (citations omitted).
Fed. R. Civ. P. Rule 11(c)(1) provides a twenty-one day “safe harbor”
provision to Rule 11 and reads as follows:
(2) Motion for Sanctions. A motion for sanctions must be made
separately from any other motion and must describe the specific
conduct that allegedly violates Rule 11(b). The motion must be
served under Rule 5, but it must not be filed or be presented to the
court if the challenged paper, claim, defense, contention, or denial is
withdrawn or appropriately corrected within 21 days after service or
within another time the court sets. If warranted, the court may award
to the prevailing party the reasonable expenses, including attorney’s
fees, incurred for the motion.
Fed. R. Civ. P. Rule 11(c)(1).

The safe harbor provision is “a strict

procedural requirement” to the enforcement of Rule 11. Star Mark Mgmt. v. Koon
Chun Hing Kee Soy & Sauce Factory, Ltd., 682 F.3d. 170, 175 (2d. Cir. 2012).
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“[T]he plain language of the rule states explicitly that service of the motion itself
is required to begin the safe harbor clock,” and informal warnings or letters are
insufficient to trigger proper notice. Gal v. Viacom Int’l., Inc., 403 F. Supp. 2d 294,
309 (S.D.N.Y. 2005).
WWE first served Kyros with a Rule 11 motion in the Haynes action (the
“Haynes Motion”) on July 17, 2015, while that action was still pending in the
District of Oregon. After some, but not all, of the allegations that gave rise to the
Haynes Motion were removed following a pre-filing conference, the parties agreed
to delay WWE’s filing of a Rule 11 motion until WWE’s motion to dismiss the
Haynes case in its entirety was decided. It is undisputed that after Kyros caused
the James action to be filed in Texas, WWE filed the instant Rule 11 Motion
without serving it on Kyros and co-counsel for the purposes of satisfying the 21
day safe harbor period. Kyros thus argues that “WWE has failed to properly
serve Plaintiffs’ Counsel with the as filed Motion for Sanctions” and therefore
“the safe harbor period has not yet begun to run and this Motion should be
denied.” [Pls.’ Opp. at 10].
WWE responds that “the motion served by WWE fully disclosed the
grounds for the motion filed by WWE, which WWE argues “merely added some
procedural history.” [Def.’s Rep. at 1, n. 2]. WWE cites no authority for the
proposition that a substantially similar Rule 11 motion, identifying the allegedly
improper conduct at issue, but served in a case pending in the District of Oregon
and bearing the Oregon case caption, with at least some noticeable changes to
text, can satisfy Rule 11’s safe harbor provision with respect to another Rule 11

21 

motion filed in a separate case pending in the Northern District of Texas. On the
contrary, prior courts have strictly enforced Rule 11’s safe harbor provision even
where the allegedly offending party was served with a substantially similar
motion putting that party on notice of the conduct at issue. See, e.g., Intravaia v.
Rocky Point Union Free School Dist., 2014 U.S. Dist. LEXIS 176235, at *9 (E.D.N.Y.
Dec. 22, 2014) (holding that Rule 11 motion that was not prepared as a separate
motion did not satisfy Rule 11’s safe harbor provision even if it was served more
than 21 days prior to the filing of a separate motion for sanctions and put counsel
on notice of the improper conduct alleged).
Even if the Court were inclined to overlook the failure to serve an exact
copy of the instant Rule 11 motion, the Court finds that such relief is not
warranted on the grounds presented. “‘[D]istrict courts generally have wide
discretion in deciding when sanctions are appropriate.’” Morley v. Ciba-Geigy
Corp., 66 F.3d 21, 24 (2d Cir. 1995) (quoting Sanko Steamship Co. v. Galin, 835
F.2d 51, 53 (2d Cir. 1987)). However, “courts may issue Rule 11 sanctions only in
extraordinary circumstances,” and they should “always be a (very) last resort.”
Jackson v. Connecticut Dep't of Pub. Health, No. 3:15-CV-750 (CSH), 2016 WL
1531431, at *4 (D. Conn. Apr. 15, 2016) (citations omitted). Sanctionable conduct
is, therefore, often willful and the product of bad faith. Id. (denying motion for
sanctions where “no facts suggest [party] acted in bath faith” and party’s
“behavior fails to indicate the willful misconduct implicated by Rule 11.”) The
Court observes that there often exists a fine line between bad faith, willful
misconduct and overly zealous advocacy. At this stage of the litigation, it is

22 

difficult to determine on which side of the divide Kyros’ actions fall. WWE
presents five grounds for the imposition of Rule 11 sanctions, each of which
provide examples of Kyros’ habit of deceptive and inflammatory rhetoric in
Plaintiffs’ filings throughout these consolidated wrestling cases. However, none
of the five grounds presented merit further use of judicial resources for the
purpose of imposing a sanction.
First, WWE argues that Kyros misled the Court by alleging that Osborne
wrestled for WWE “beginning in 1985 and ending in 2007” as part of “an
approximately twenty-two year career and until his untimely death.” [JAC ¶ 2].
WWE argues that Osborne only performed for WWE from 1985-86 and from
October 1992 to October 1993. Osborne did not wrestle again for WWE until a
one-time appearance, literally for a few minutes, at a special anniversary show in
2007.” [Def.’s Mem. at 27]. Kyros’ allegation of a twenty two-year career is
deceptive and misleading – it suggests that Osborne wrestled for WWE for
twenty-two years as opposed to approximately two years. At best, the statement
is a half-truth, in that Osborne likely wrestled for other employers and events not
sponsored by WWE between 1993 and 2007. As discussed above, however, the
length of Osborne’s career does not impact the Court’s determination that the
wrongful death claim asserted by Michelle James must be dismissed. Kyros’
half-truths undermine his credibility and the credibility of the filings submitted by
Plaintiffs’ counsel. However, the Court does not deem this particular allegation
worthy of sanction because the duration of his career is superfluous—it is a
collateral matter not probative of his claim.

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WWE next argues that Kyros misled the Court with respect to the allegation
that WWE executive Stephanie McMahon concealed the concussion risks
involved in WWE wrestling in testimony before Congress. [JAC ¶¶ 59, 64-65]. In
its March 22 Opinion, the Court examined this allegation and found it to be
without merit, rebuking Kyros for “repeatedly misrepresent[ing] the substance
and meaning of [McMahon’s] testimony.” [Op. at 58]. WWE also argues that
Kyros misled the Court with respect to his allegation that WWE “attempted to
discredit” studies linking the deaths of two former NFL players with CTE. [JAC
¶¶ 70-73]. At the time of 2005 comments made by Dr. Joseph Maroon regarding
these studies, Dr. Maroon was not in the employ of WWE. Nonetheless, Kyros
goes on to allege that WWE “responded” to the studies on ESPN, quoting a WWE
statement contained in a ESPN article published in 2009, four years later. [JAC ¶
73]. Once again, Kyros’ deliberately misleading language suggesting that WWE
directly contested a specific CTE study in 2005 further undermines his and
Plaintiffs’ credibility, but does not merit the imposition of sanctions.
WWE argues that Kyros “instituted this case in violation of the valid,
enforceable mandatory forum-selection clause that Osborne agreed” in his 1992
contract with WWE. WWE cites to several cases in which prior courts have
sanctioned attorneys under Rule 11 for patently frivolous filings in jurisdictions
other than those named in presumptively valid forum-selection clauses. See,
e.g., Smith v. Martin, 02-1624, 2004 WL 5577682 at *4 (D.D.C. Jan. 28, 2004)
(imposing Rule 11 sanctions for “patently frivolous” claims that were barred by
forum-selection and arbitration clauses); Freeman v. Bianco, 02 Civ. 7525, 2003

24 

WL 179777 at *5-6 (S.D.N.Y. Jan. 24, 2003) (holding complaint filed in violation of
presumptively valid choice of forum clause violated Rule 11); Jayhawk
Investments, L.P. v. Jet USA Airlines, Inc., 98-2153, 1999 WL 588195 at *1 (D. Kan.
June 8, 1999) (imposing sanctions under Rule 11 where Plaintiffs filed suit in
Kansas despite a presumptively valid forum- selection clause mandating filing in
New York).
It is clear that Kyros filed the James action in Texas as part of a vexatious
and transparent attempt to circumvent two prior decisions by district courts in
Oregon and California either enforcing the forum-selection clauses or
nonetheless transferring WWE concussion litigation to this district. Kyros and
co-counsel apparently believed that they could convince a district court that
because the James action was a wrongful death action filed by a survivor of the
wrestler-decedent who, obviously, never signed their own contract with WWE, the
claims alleged in James were “extra-contractual.” [Dkt. 22 at 1]. Kyros was
wrong; Plaintiffs’ argument was not convincing, and the James action was
transferred to this district.
Ten months later, in July of 2016, Kyros filed a new action on behalf of fifty
named wrestlers against WWE in the District of Connecticut. It therefore appears
that Kyros and co-counsel have finally given up on their obvious and
unsupportable attempts to circumvent the jurisdiction of this Court. Although
Plaintiffs’ forum-shopping has forced multiple district courts to exert needless
effort to corral these cases to the proper forum, sanctions are not needed at this
time to prevent Plaintiffs from venturing into vexatious forum shopping with

25 

respect to future claims against WWE. The Court is open to reconsidering this
finding at a later date should Kyros revert to prior bad habits.
Finally, WWE notes that, contrary to this Court’s instructions at the June 8
status conference, Kyros and co-counsel declined to remove numerous
paragraphs from the Amended Complaint that bear little to no relevance to the
Osborne’s death. In particular, WWE points to “thirty-nine separate paragraphs
of allegations and color pictures” depicting former performers who have died but
which have no relevance or connection to the place, time or events surrounding
Osborne’s death. One such paragraph describes the death of a former wrestler,
Owen Hart, during a wrestling stunt that went awry in 1999. Plaintiffs have not
provided any explanation for how Hart’s death relates to Osborne’s or to CTE or
concussions generally. To the extent such pictures and specific prior injuries
sustained by other wrestlers are included to offer visual evidence that wrestling
involves violent contact and risk of injury, they are unnecessary and unduly
inflammatory.
Baseless claims that are included in a complaint as part of a media
campaign to pressure the defendant with negative public relations have been
found to evidence bad faith and improper purpose on the part of filing counsel.
See Galonsky v. Williams, 96 CIV. 6207, 1997 WL 759445 at *6 (S.D.N.Y. Dec. 10,
1997) (noting “baseless claims as part of a public relations campaign in order to
embarrass the defendants and thereby coerce a settlement”). And at least one
other district court has sanctioned counsel for the deliberate inclusion of
inflammatory content in a pleading after receiving a prior warning against doing

26 

so. See Marceaux v. Lafayette City-Parish Consol. Gov’t, Nos. 14-31043, 1431213, 2015 WL 3544648, at *1-3 (5th Cir. 2015) (affirming imposition of Rule 11
sanctions where counsel because asserted in an amended complaint “the same
impertinent, immaterial, and scandalous allegations . . . which they had been
warned” by the district court not to include).
The Court would be well within its broad discretion to sanction counsel for
their failure to adhere to the Court’s instructions and trim the inflammatory
content and unnecessary length of the carbon-copy complaints in these
consolidated cases. Their failure to do so forced the Court to needlessly expend
resources combing through hundreds of paragraphs of allegations, to find a
single shred of relevant factual content indicating whether Plaintiffs asserted a
plausible claim. In doing so, however, the Plaintiffs only further underlined for
the Court the lack of substantive factual content actually contained in these
complaints. Although it is perhaps a close question, the Court finds that no Rule
11 sanction is merited for counsel’s disregard of the Court’s comments at the
June 8 conference.
Kyros’ false and misleading statements, identified by WWE above, together
with other statements the Court has examined – including Kyros’ unprovable
claim that deceased and, in at least one case, cremated former wrestlers had CTE
“upon information and belief” – are highly unprofessional. These misleading,
deceptive, and baseless allegations are precisely the types of statements that
many state bar associations have targeted in promulgating rules of professional
conduct which demand that admitted attorneys speak with candor to the trier of

27 

fact. The Court admonishes Kyros and his co-counsel to adhere to the standards
of professional conduct and to applicable rules and court orders lest they risk
future sanction or referral to the Disciplinary Committee of this Court.

V.

Conclusion

For the reasons stated above, WWE’s motions to dismiss [Dkt. 103, Dkt.
104] are GRANTED and the Frazier [3:15-cv-1229] and James [3:15-cv-1305]
actions are DISMISSED. WWE’s Motion for Sanctions [Dkt. 80] is DENIED.

IT IS SO ORDERED.

________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: November 10, 2016

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