Russ McCullough et al v. World Wrestling Entertainment Inc
ORDER re: 205 Motion for Judgment on the Pleadings, 262 Motion for Sanctions, 266 Motion to Dismiss, and 269 Motion to Dismiss; ORDER denying as moot 228 Motion for Sanctions and 291 Motion to Stay; and ORDER denying 326 Motion to Strike and 327 Motion to Strike for the reasons stated in the attached ruling on WWE's Motions to Dismiss, for Sanctions, and for Judgment on the Pleadings. Signed by Judge Vanessa L. Bryant on 9/29/2017. (Hoffman, S)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RUSS MCCULLOUGH, et al.
CIVIL ACTION NO.
ROBERT WINDHAM, THOMAS
BILLINGTON, JAMES WARE, and
JOSEPH M. LAURINAITIS, et al.,
ENTERTAINMENT, INC. and
VINCENT K. MCMAHON
CIVIL ACTION NO.
CIVIL ACTION NO.
September 29, 2017
ORDER REGARDING WWE’S MOTION FOR JUDGMENT ON THE PLEADINGS
[DKT. NO. 205] AND WWE AND VINCENT K. MCMAHON’S
MOTIONS TO DISMISS AND FOR SANCTIONS [DKT. NOS. 262, 266, 269]
Declaratory Judgment Plaintiff World Wrestling Entertainment, Inc.,
(“WWE”), brings an action for declaratory judgment (“DJ”) against DJ Defendants
Robert Windham, Thomas Billington, James Ware, and Oreal Perras (the
“Windham Defendants”). WWE has moved for judgment on the pleadings on the
grounds that the Windham Defendants’ tort claims are time-barred under
applicable statutes of limitation and repose.
Additionally, Defendants in the Laurinaitis action, WWE and Vincent
McMahon, have moved to dismiss the claims of the numerous wrestlers in a sixth
consolidated case before the Court. Plaintiffs in this action (the “Laurinaitis
Plaintiffs”) have filed a nineteen count complaint that spans 335 pages and
includes 805 paragraphs. WWE and McMahon have moved to dismiss this
complaint arguing, inter alia, that the complaint is rife with inaccurate allegations
and frivolous claims, and should be dismissed both on its merits and as a
sanction for failing to comply with Federal Rule of Civil Procedure 11.
For the reasons set forth below, the Court reserves judgment on these
motions pending the filing of amended pleadings consistent with this Order.
A. Windham Action Facts
WWE brought a DJ action against Robert Windham and three other
wrestlers in this Court on June 29, 2015, after having first been sued over a
period of months in five separate actions, three of which were class actions, in
five different venues (the “Prior Actions”). On June 2, 2015, the Windham
Defendants’ counsel sent WWE “Notice of Representation” letters on behalf of
each wrestler to WWE’s corporate headquarters in Stamford, Connecticut.
[Compl. ¶ 72]. The letters stated that “the undersigned have been retained by [DJ
Defendants Windham, Billington, Ware, or Perras], a former WWE wrestler . . .
who was allegedly injured as a result of WWE’s negligent and fraudulent
conduct.” Id. ¶ 73. The letters went on to state that “in light of the possible
litigation involving this matter,” WWE should refrain from communicating directly
with the Windham Defendants and should preserve relevant data. Id. ¶ 73. The
Windham Defendants do not deny these allegations. [Answer ¶¶ 72-73].
Three of the Windham Defendants are former-professional wrestlers who
previously performed for WWE. [Compl. ¶ 5]. Specifically, DJ Defendant
Windham last performed for WWE in or around 1986; DJ Defendant Billington last
performed for WWE in or around 1988; and DJ Defendant Ware last performed for
WWE in or around 1999. Id. ¶ 5. The Windham Defendants do not deny WWE’s
allegations setting the timeframes in which each DJ Wrestler performed. [See
Answer ¶¶ 5, 16-19]. DJ Defendant Perras last performed for an entity known as
Capitol Wrestling Corporation. [Compl. ¶ 5]. While the Windham Defendants
deny that Perras “last performed for an entity other than WWE and its
predecessors, they offer no factual basis for this denial. [Answer ¶ 5]. The
specifically named Windham Defendants had not complained to WWE regarding
any alleged injuries in the decades since they last performed until the June 2,
2015 letters. [Compl. ¶ 74].
The Windham Defendants do not allege that the WWE knew of the
possibility that repeated head trauma could cause permanent neurological injury
while the wrestlers were performing, but fraudulently failed to inform them of this
danger. Moreover, even though the Windham Defendants are represented by the
same attorneys who represent the plaintiff wrestlers six other actions, and even
though all six actions (seven including the Windham action) have been
consolidated, the Windham Defendants repeatedly deny that they have sufficient
information regarding the other wrestlers’ claims to respond to WWE’s
WWE moves for judgment on the pleadings arguing that the Windham
Defendants’ claims are barred by Connecticut’s statutes of limitation and repose.
The Windham Defendants counter that additional discovery is necessary before
the Court can choose to apply Connecticut law, and before the Court can
determine whether the statutes of limitation and repose have been tolled.
B. Windham and Laurinaitis Procedural History
The Laurinaitis action is one of six separate lawsuits against WWE filed 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 verbose and inflammatory complaints in each of the first five cases are
virtually identical. Five of these lawsuits were filed in different districts in an
effort to avoid adjudication before this Court. The Laurinitis action was filed in
this district but upon assignment to Judge Eginton, the Laurinitis Plaintiffs
attempted to prevent the case from being transferred to this Court. All six cases
were transferred to this Court and consolidated to prevent courts in different
districts, and judges within this district, from coming to disparate conclusions
regarding common questions of law and fact, particularly in light of the fact that
the lead case in this matter, which has now been dismissed, purported to be a
class action. Common facts and issues include (1) the extent of WWE’s
knowledge about the consequences of repeated head injuries; and (2) the extent
to which this knowledge was concealed from wrestlers.
The Court considered these questions in its March 21, 2016 decision on
WWE’s motions to dismiss the complaints of plaintiffs Russ McCullough, Ryan
Sakoda, Matthew Robert Wiese, William Albert Haynes, III, Vito LoGrasso, and
Evan Singleton. It held that the statutes of limitations and repose may be tolled
only as to the fraudulent omission claim and only to the extent that the complaint
raises questions of fact regarding whether WWE owed a continuing duty to
disclose, or fraudulently concealed, information pertaining to a link between
WWE wrestling activity and permanent degenerative neurological conditions.
[Dkt. No. 116 at 25]. The Court further held that the plaintiffs had “plausibly
alleged that WWE knew as early as 2005 about research linking repeated brain
trauma with permanent degenerative disorders and that such brain trauma and
such permanent conditions could result from wrestling.” [Dkt. No. 116 at 39].
The Court then dismissed the claims of McCullough, Sakoda, Wiese, and Haynes
on the grounds that they did not allege that they wrestled for WWE on or after
2005. [Dkt. No. 116 at 68].
Concurrently, the Windham Defendants filed a motion to dismiss the
instant DJ action. In their motion, the Windham Defendants argued that the Court
lacked subject matter jurisdiction to issue a declaratory judgment, because the
anticipated lawsuits that WWE identified were too remote and speculative to
create a justiciable case or controversy. The Court granted the Windham
Defendants’ motion to dismiss on the grounds that it had denied WWE’s motion
to dismiss LoGrasso’s complaint.
WWE filed a motion for reconsideration of this dismissal, arguing in part
that the Court erred when it presumed that the tolling doctrines which permitted
LoGrasso’s suit to move forward also applied to the declaratory judgment action.
In particular, WWE argued:
“The Court’s conclusion that Plaintiff LoGrasso plausibly alleged a basis
for tolling under the continuing course of conduct and fraudulent
concealment exceptions was based on his allegations that WWE knew of
information concerning a link between repeated head trauma and
permanent neurological conditions in 2005 or later. By 2005, all of the tort
claims threatened by the named Defendants in the Windham action would
have been foreclosed for years because none of them had performed for
WWE since at least 1999.”
[Dkt. No. 119-1 at 15 (citations omitted)]. The Court granted WWE’s motion for
reconsideration in part, holding that a case or controversy existed with respect to
the named DJ defendants, and holding that the application of Connecticut
procedural law was appropriate given that several related cases were already
pending in Connecticut, and that even if the Windham Defendants filed their
cases in different districts, they would likely be transferred to Connecticut. [Dkt.
No. 185 at 39-42]. The Court did not decide whether tolling the statutes of
limitation or repose would be appropriate as to the Windham Defendants.
The Court’s March 21, 2016 decision also criticized the wrestlers’ counsel
Konstantine Kyros for filing “excessively lengthy” complaints that included
“large numbers of paragraphs that offer content unrelated to the Plaintiffs’
causes of action” and which “appear aimed at an audience other than this Court.”
[Dkt. No. 116 at 13]. This was not the first time that the Court admonished Kyros
for his failure to comply with the pleading standard set forth in the Federal Rules
of Civil Procedure, which requires “a short and plain statement of the claim
showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2). For example,
at a June 8, 2015 scheduling conference in the Singleton action, the Court told
Kyros that the complaint was neither concise nor accurate, as it contained
language copied from other lawsuits filed by other attorneys on behalf of athletes
who played other sports, and that it included “superfluous, hyperbolic,
inflammatory opinions and references to things that don’t have any relevance,”
[Dkt. No. 263-2 at 60]. The Court further instructed Kyros to “read the federal rule,
give it some close consideration, perhaps read some cases on the pleading
standards” before filing an amended complaint. Id.
In spite of these instructions, Kyros has now filed a 335 page complaint
with 805 paragraphs that includes numerous allegations that a reasonable
attorney would know are inaccurate, irrelevant, or frivolous. See, e.g., Dkt. No.
252 ¶¶ 51 (referencing a study published in October 2015 despite the fact that
none of the Laurinaitis Plaintiffs were still performing at that time), 108 (noting
that WWE instructed a female wrestler not to report a sexual assault she endured
while on a WWE tour despite the fact that this has no relevance to her claims
about neurological injuries or the enforceability of her booking contract), 130
(noting that WWE is a monopoly that earns $500 million annually), 157 (quoting
general observations from the book of a wrestler who is not a party to this
lawsuit), 159-161 (noting that the WWE does not provide wrestlers with health
insurance), 289-93 (describing a fictional storyline in which a doctor claimed on
television that a wrestler who is not a Laurinaitis Plaintiff suffered a serious
concussion, when in fact he “did not have post concussion syndrome” and the
storyline was intended only to “create dramatic impact for the fans”), 302 (stating
that “100% of the four wrestlers studied to date” showed signs of chronic
traumatic encephalopathy (“CTE”) when a publicly available study published by
Bennet Omalu, a neuropatholgist mentioned elsewhere in the complaint, stated
that he examined the brains of four wrestlers and founds signs of CTE in only two
of them and therefore Plaintiffs knew that only 50% of a statistically insignificant
number of former wrestlers were found to have had CTE). Additionally, while the
Complaint devotes one long paragraph to each plaintiff, it does not specify which
claims apply to which plaintiffs or how or why they do.
A. Motion for Judgment on the Pleadings
“After the pleadings are closed, but early enough not to delay trial, a party
may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “A motion
for judgment on the pleadings is decided on the same standard as a motion to
dismiss under Fed. R. Civ. P. 12(b)(6).” Barnett v. CT Light & Power Co., 900 F.
Supp. 2d 224, 235 (D. Conn. 2012) (citing Hayden v. Paterson, 594 F.3d 150, 159
(2d Cir. 2010)).
B. Motion to Dismiss
“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, 152 (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 conclusion’ 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. 662, 678 (2009) (citations 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. (internal citations 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
documents of which the Plaintiffs had knowledge and relied upon in bringing suit,
Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993), so
long as these documents are “integral” to the complaint and the record is clear
that no dispute exists regarding the documents’ authenticity or accuracy,
Faulkner v. Beer, 463 F.3d 130, 133-35 (2d Cir. 2006). Due to the related claims in
the consolidated cases, and the fact that the same counsel was involved in the
filing of each consolidated case, the allegations put forward in the consolidated
cases, as well as information uncovered during discovery in those cases, is
relevant to the Court’s decision in the DJ action and on WWE’s and McMahon’s
motions to dismiss.
C. Motion for Sanctions
Federal Rule of Civil Procedure 11 states that “an attorney who presents ‘a
pleading, written motion, or other paper’ to the court thereby ‘certifies’ that to the
best of his knowledge, information, and belief formed after a reasonable inquiry,
the filing is (1) not presented for any improper purpose, ‘such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation’; (2) ‘warranted by
existing law or by a nonfrivolous argument for extending, modifying, or reversing
existing law or for establishing new law’; and (3) supported in facts known or
likely to be discovered on further investigation.” Lawrence v. Richman Grp. of CT
LLC, 620 F.3d 153, 156 (2d Cir. 2010) (emphasis added) (quoting Fed. R. Civ. P.
11(b)). “If . . . the court determines that Rule 11(b) has been violated, the court
may impose an appropriate sanction on any attorney, law firm, or party that
violated the rule or is responsible for the violation.” Fed. R. Civ. P. 11(c)(1).
“[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., Ltd. v. Galin, 835 F.2d 51, 53 (2d Cir. 1987)). However,
“Rule 11 sanctions should be imposed with caution,” Knipe v. Skinner, 19 F.3d
72, 78 (2d Cir. 1994), and “district courts [must] resolve all doubts in favor of the
signer,” Rodick v. City of Schenectady, 1 F.3d 1341, 1350 (2d Cir. 1993).
“[N]ot all unsuccessful arguments are frivolous or warrant sanction,” and
“to constitute a frivolous legal position for purposes of Rule 11 sanction, it must
be clear under existing precedents that there is no chance of success and no
reasonable argument to extend, modify or reverse the law as it stands.” See
Mareno v. Rowe, 910 F.2d 1043, 1047 (2d Cir. 1990). With regard to factual
contentions, “sanctions may not be imposed unless a particular allegation is
utterly lacking in support.” Storey v. Cello Holdings, L.L.C., 347 F.3d 370, 388 (2d
Cir. 2003) (quoting O’Brien v. Alexander, 101 F.3d 1479, 1489 (2d Cir. 1996)).
“[T]he standard for triggering the award of fees under Rule 11 is objective
unreasonableness and is not based on the subjective beliefs of the person
making the statement.” Star Mark Mgmt., Inc. v. Koon Chun Hing Kee Soy &
Sauce Factory, Ltd., 682 F.3d 170, 177 (2d Cir. 2012) (quoting Storey, 347 F.3d at
388). This objective standard is “intended to eliminate any ‘empty-head pureheart’ justification” for patently unsupported factual assertions or frivolous
arguments. See Hochstadt v. New York State Educ. Dep’t, 547 F. App’x 9, 11 (2d
Cir. 2013) (quoting Gurary v. Winehouse, 235 F.3d 792, 797 (2d Cir. 2000)).
A. DJ Choice of Law
The Court applies Connecticut procedural law for the reasons set forth in
its decision on WWE’s motion for reconsideration of the Court’s order dismissing
the Windham action. [See Dkt. No. 185 at 38-40].
In addition to the arguments addressed in that decision, the Windham
Defendants maintain that “[i]t is impossible for the Court to make a substantive
determination as a matter of law without knowing whether booking contracts
exist for these named wrestlers, whether the purported contracts contain forum
selection clauses or choice of law provisions, and whether WWE has engaged in
any conduct that would toll the Connecticut statutes of limitation and repose
were Connecticut law to apply.” [Dkt. No. 217 at 8].
While WWE argues that any booking contracts that exist have Connecticut
choice of law clauses, the choice of Connecticut procedural law does not depend
on the existence of such clauses. “Connecticut courts consider a statute of
limitation to be procedural, and therefore, Connecticut federal courts apply
Connecticut’s statute of limitation to common law diversity actions commenced
in Connecticut district court.” State Farm Fire & Cas. Co. v. Omega Flex, Inc., No.
14CV1456 (WWE), 2015 WL 6453084, at *2 (D. Conn. Oct. 21, 2015) (citing Doe No.
1 v. Knights of Columbus, 930 F. Supp. 2d 337, 353 (D. Conn. 2013)). The
Windham Defendants cannot in good faith assert that any booking contracts
relevant to this case would require that the procedural law of any state other than
Connecticut should apply. They similarly offer no legal authority stating that the
Court may not decide which state’s procedural law should apply before contracts
mentioned in a pleading are produced. Because in the absence of any contract,
Connecticut procedural law applies, and because the Windham Defendants
cannot deny that any contracts which do exist choose Connecticut law, the
Connecticut statutes of limitation and repose must apply.
B. Applicability of Connecticut’s Statutes of Limitation and Repose
Section 52-584 of the Connecticut General Statutes bars a plaintiff from
bringing a negligence claim “more than three years from the date of the act or
omission complained of.” Conn. Gen. Stat. § 52-584. “[T]he relevant date of the
act or omission complained of, as that phrase is used in § 52-584, is the date
when the negligent conduct of the defendant occurs and . . . not the date when
the plaintiff first sustains damage.” Martinelli v. Fusi, 290 Conn. 347, 354 (2009).
Therefore, any action commenced more than three years from the date of the
negligent act or omission is barred by Section 52-584, “regardless of whether the
plaintiff could not reasonably have discovered the nature of the injuries within
that time period.” Id. (internal quotation marks omitted).
Similarly, Section 52-577 allows a tort action to be brought within three
years “from the date of the act or omission complained of.” Conn. Gen. Stat. §
52-577. And, as with Section 52-584, operation of Section 52-577 cannot be
delayed until the cause of action has accrued, “which may on occasion bar an
action even before the cause of action accrues.” Prokolkin v. Gen. Motors Corp.,
170 Conn. 289, 297 (1976). Thus, even if the Windham Defendants did not
discover the actionable harm alleged until recently, their claims may still be
barred by the operation of the statutes of repose.
Nonetheless, the Connecticut Supreme Court has recognized that Section
52-584 “may be tolled under the continuing course of conduct doctrine.”
Neuhaus v. DeCholnoky, 280 Conn. 190, 201 (2006). In addition, Conn. Gen. Stat.
§ 52-595 tolls any statute of limitations or repose, including Section 52-584 and
Section 52-577, if a defendant fraudulently conceals a cause of action from a
plaintiff. See Connell v. Colwell, 214 Conn. 242, 245 n.4 (1990) (concluding that
“the exception contained in § 52-595 constitutes a clear and unambiguous
general exception to any Connecticut statute of limitations that does not
specifically preclude its application.”).
The Connecticut statutes of repose may be tolled under the continuing
course of conduct doctrine if 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 Med.
Ctr., 252 Conn. 363, 370 (2000). Where Connecticut courts have found a duty
“continued to exist after the cessation of the act or omission relied upon, there
has been evidence of either a special relationship between the parties giving rise
to such a continuing duty or some later wrongful conduct of a defendant related
to the prior act.” Macellaio v. Newington Police Dep’t, 145 Conn. App. 426, 435
This Court considered the applicability of Sections 584 and 577 as they
applied to consolidated case plaintiffs Singleton, LoGrasso, McCullough, Haynes,
Sakoda, and Wiese. The Court held:
[T]he complaints plausibly allege the existence of a continuing course of
conduct that may toll the statutes of repose on the basis of an initial
concern about possible long-term effects of head injuries sustained while
wrestling that was ongoing and never eliminated. The Court also finds the
possible existence of a special relationship based on the complaints’
allegations of WWE’s superior knowledge as well as later wrongful conduct
related to the initial failure to disclose. Thus, the statutes of repose may
tolled by virtue of a continuing duty.
[Dkt. No. 116 at 42].
The Court also held that the statutes of repose could be tolled because of
alleged fraudulent concealment pursuant to Section 52-595, which provides that
“[i]f any person, liable to an action by another, fraudulently conceals from him the
existence of the cause of such action, such cause of action shall be deemed to
accrue against such person so liable therefor at the time when the person entitled
to sue thereon first discovers its existence.” 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 (2007). The
Court held that the complaint alleged that in 2005 or later, WWE became aware of
and failed to disclose to its wrestlers information concerning a link between
repeated head trauma and permanent degenerative neurological conditions, as
well as specialized knowledge concerning the possibility that its wrestlers could
be exposed to a greater risk for such conditions.
The Court ultimately dismissed all negligence claims to which either
exception to the statutes of limitation or repose would apply, on the grounds that
the WWE could only be held liable for reckless and intentional conduct, and not
ordinary negligence. [Dkt. No. 116 at 53-54]. The Court also dismissed the
negligent misrepresentation and fraudulent deceit claims on the grounds that the
plaintiffs failed to plead specific facts indicating that WWE made any specific
statement that it knew or should have known to be false at the time, upon which
plaintiffs reasonably relied. [Dkt. No. 116 at 61]. As the Windham Defendants
have not alleged facts to support a claim of reckless and intentional conduct or
constituting false representations on which the Windham Defendants may have
relied, the Court considers only whether the Windham Defendants’ claims for
fraudulent omission are time barred.
In the instant case, the Windham Defendants argue that they are not
required to put forward facts sufficient to show that the statutes of repose should
be tolled in their responsive pleading. Specifically, they argue that discovery is
required before they can identify any of the WWE’s fraudulent omissions and
whether they occurred while the Windham Defendants were still performing for
WWE. The Windham Defendants are incorrect. Pursuant to Rule 11, by filing the
DJ answer, Attorney Kyros certified that to the best of his knowledge,
information, and belief formed after a reasonable inquiry, the pleading was
supported in facts known or facts likely to be discovered on further investigation.
A pleading cannot be filed without any factual support on vague hopes that
discovery will possibly unearth helpful facts, and the DJ answer does not
articulate any facts suggesting that discovery will uncover of facts which would
support the defenses asserted. The Court cannot consider WWE’s motion for
judgment on the pleadings in a vacuum; the Court must consider the motion in
the context of the sufficiency of the allegations of the complaints in all of the
consolidated cases. In that regard, counsel for the Windham Defendants has
been involved in the filing of six separate actions, some of which named plaintiff
wrestlers who had ceased performing for WWE well before 2005. Despite being
hundreds of pages long, in none of the complaints filed before Defendants filed
the DJ action did the wrestlers’ counsel plausibly allege that before 2005, WWE
knew of a link between repeated head trauma and permanent degenerative
neurological conditions and fraudulently failed to disclose this link to its
performers. Nor do the Windham Defendants.
By order entered nearly two years ago dated January 15, 2016, the Court
lifted the discovery stay and directed the parties to conduct discovery on the
questions of (1) whether WWE had or should have had knowledge of, and owed a
duty to disclose the risks of, long-term degenerative neurological conditions
resulting from concussions or mild traumatic brain injuries to wrestlers who
performed for WWE in the year 2005 or later, (2) whether and when WWE may
have breached that duty, and (3) whether such a breach, if any, continued after
Singleton, who wrestled for WWE from 2012 to 2013, and LoGrasso, who retired
in 2006, ceased performing for WWE. [Dkt. No. 107]. The Court also ordered the
parties to file dispositive motions on the issue of liability by August 1, 2016. [Dkt.
No. 107]. Thereafter, on March 21, 2016, the Court granted in part WWE’s motion
to dismiss explaining the legal standard for a continuing duty to warn, fraudulent
concealment, fraud by omission, contact sports exception, negligent
misrepresentation, and tolling the statutes of limitations and repose.
Notwithstanding having had the opportunity to conduct discovery on the
issue of liability, and in particular if and when WWE became aware of a wrestler's
risk of contracting CTE, having filed lengthy complaints asserting innumerable
facts in the consolidate cases, and having the benefit of the court’s explication on
the applicable legal standards, the Windham Defendants have not moved to
amend their DJ answer to assert facts sufficient to support a defense that the
statutes of limitation and repose should be tolled. Nor have they stated with any
specificity what additional discovery they need to do so. While discovery was
limited to the period which post-dated the time the Windham Defendants ceased
to wrestle for WWE, it is reasonable to conclude that if WWE did not know after
2005 that concussions or mild traumatic brain injuries sustained by wrestlers
caused long-term degenerative neurological conditions, they would not have
known it before 2005.1 Indeed in a separate lawsuit asserting the same claims,
summary judgment is fully briefed following completion of discovery, and the
56(a)(2) statement filed by plaintiffs’ counsel is devoid of any admissible evidence
that a particular agent of WWE knew before 2005 that wrestling could cause a
long-term degenerative neurological condition.
With respect to jurisdiction and venue, the Wrestlers are in possession of
all of the information they would need to deny that they have not performed with
WWE since 1999. They presumably have their contracts, tax statements and tax
returns, and other records and documentation of their own activity. A party is not
entitled to information from an opposing party if he already has it. See Fed. R.
Civ. P. 26(b)(1) (limiting discovery to non-privileged, relevant, information that is
“proportional to the needs of the case, considering . . . the parties’ relative access
to relevant information.”); Ramos v. Town of E. Hartford, No. 3:16-CV-166 (VLB),
2016 WL 7340282, at *5 (D. Conn. Dec. 19, 2016) (denying a motion to compel
where the discovery sought was “equally available to both parties.”). The
While the Laurinaitis complaint appears to assert that WWE knew before 2005 of
the risks of repeated head trauma, for the reasons discussed in Section V., infra,
the Court defers judgment on whether such allegations are legally sufficient to
permit the cases of wrestlers who retired before 2005 to proceed.
Windham Defendants have asserted no facts establishing that they are entitled to
discovery from WWE on this issue.
Because (1) the Court has already thoroughly evaluated the issues
presented in the consolidated cases, determining that the claims of wrestlers who
had stopped performing for WWE prior to 2005 are barred; (2) the Windham
Defendants have not offered any indication in their answer to WWE’s declaratory
judgment complaint that their anticipated claims would deviate from the claims
asserted by the plaintiffs in the earlier consolidated cases; and (3) because
additional discovery would be wasteful and unnecessary, the Court is inclined to
grant WWE’s Motion for Judgment on the Pleadings. However, in an abundance
of deference to the Windham Defendants, the Court reserves judgment on the
motion pending submission of an amended answer consistent with this order.
C. Laurinaitis Complaint
Despite repeatedly requesting that plaintiffs’ counsel exclude irrelevant
allegations and ensure that each claim in each consolidated case had a
reasonable factual and legal basis, this Court has, in an abundance of deference
to the wrestler plaintiffs and to the detriment of WWE, applied a liberal pleading
standard more suited to a pro se plaintiff than to a licensed attorney asserting
claims on behalf of an entire class. See Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(“A document filed pro se is to be liberally construed,” and “a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.”). While the Laurinaitis complaint is,
mercifully, not a carbon copy of the complaint filed in the first five consolidated
cases, it remains unnecessarily and extremely long, with an overwhelming
number of irrelevant allegations. Parsing each of the Laurinaitis Plaintiffs’
asserted claims to figure out exactly which claims might be legally and factually
supportable would be both a waste of judicial resources. It would also be unduly
prejudicial to the WWE and McMahon, because the precise contours of the
Laurinaitis Plaintiffs’ claims are so amorphous that the WWE and McMahon
would be at a loss to determine how to defend against them.
In the interests of justice, fairness to WWE and McMahon, the efficient and
effective management of the Court’s docket, in an abundance of deference to the
Windham Defendants and Laurinaitis Plaintiffs in their heretofore unsuccessful
efforts to file pleadings in conformity with the Federal Rules of Civil Procedure,
and finally, to assure disposition of this case on the merits, it is hereby ordered
that within 35 days of the date of this Order, the Windham Defendants and
Laurinaitis Plaintiffs shall file amended pleadings which comply with Federal
Rules of Civil Procedure 8 and 9 and which set forth the factual basis of their
claims or defenses clearly and concisely in separately numbered paragraphs.
Also within 35 days of the date of this Order, each of the Windham Defendants
and Laurinaitis Plaintiffs shall submit for in camera review affidavits signed and
sworn under penalty of perjury, setting forth facts within each plaintiff’s or DJ
defendant’s personal knowledge that form the factual basis of their claim or
defense, including without limitation:
1. the date or dates on which they wrestled for WWE or any or its
agents or affiliates (including the first and last date);
2. if they wrestled for more than one person and or entity, for whom
they wrestled, and for what period of time;
3. whether they ever signed any agreement or other document in
connection with their engagement to wrestle by or for WWE or any of
its agents or affiliates;
4. whether they were ever or are now in possession of any document
relating to their engagement to wrestle by or for WWE or any of its
agents or affiliates, including without limitation W-4s, W-2s or 1099s;
5. what specific WWE employees or agents said or did that forms the
basis of each and every one of the claims or defenses in the
wrestler’s pleading, including:
a. a reference to the specific paragraph of the complaint;
b. when and where such act occurred or such statement was
c. the identities of any and all the persons present at the time of
the act or statement; and
d. any and all other facts personally known to the affiant that
form the basis of their belief that WWE or any or its agents or
affiliates knew or should have known that wrestling caused
any traumatic brain injuries, including CTE.
The Court assumes that Attorney Kyros had a good faith belief that the
allegations in the Laurinaitis complaint and Windham answer were true based on
interviews with his clients, in which each revealed information about his or her
relationship with WWE. Counsel should therefore have no difficulty producing
these affidavits within 35 days.
If the Windham Defendants or Laurinaitis Plaintiffs fail to comply with the
Court’s order, as set forth in the preceding paragraphs, and for the foregoing
reasons: (1) WWE’s Motion for Judgment on the Pleadings will be GRANTED,
and declaratory judgment as to the fraudulent omission claim will be entered in
favor of WWE; (2) the Laurinaitis complaint will be DISMISSED with prejudice
pursuant to Federal Rule of Civil Procedure 41(b); and (3) pursuant to Rule
11(c)(3), the Court will sua sponte revisit whether to award attorney’s fees as a
sanction on the Laurinaitis Plaintiffs’ counsel.
IT IS SO ORDERED.
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: September 29, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?