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McCullough v. World Wrestling Entertainment Inc.

United States District Court, D. Connecticut

September 29, 2017

RUSS MCCULLOUGH, et al. Plaintiffs,


          Hon. Vanessa L. Bryant United States District Judge

         I. Introduction

         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.

         II. Background

         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 allegations.

         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.

         III. L ...

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