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Case 3:15-cv-01074-VLB Document 233 Filed 10/19/16 Page 1 of 90

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF CONNECTICUT
RUSS McCULLOUGH, et al.,

vs.
WORLD WRESTLING
ENTERTAINMENT, INC.,

:
:
Plaintiffs, :
:
:
:
:
:
:
:

No. 3:15-cv-01074 (VLB)


Lead Case

Defendant.

JOSEPH M. LAURINAITIS, et al.,

:
:
Plaintiffs, :
vs.
:
:
WORLD WRESTLING
:
ENTERTAINMENT, INC., et al.,
:
:
Defendants.

No. 3:16-CV-01209 (VLB)


Consolidated Case

October 19, 2016

______________________________________________________________________
WORLD WRESTLING ENTERTAINMENT, INC.S MEMORANDUM OF LAW IN
SUPPORT OF MOTION TO DISMISS PLAINTIFFS COMPLAINT
______________________________________________________________________

Jonathan B. Tropp (ct11295)


Jeffrey P. Mueller (ct27870)
DAY PITNEY LLP
242 Trumbull Street
Hartford, CT 06103
Phone: (860) 275-0100
Fax: (860) 275-0343
Email: jbtropp@daypitney.com
Email: jmueller@daypitney.com

Jerry S. McDevitt (pro hac vice)


Curtis B. Krasik (pro hac vice)
K&L GATES LLP
K&L Gates Center
210 Sixth Avenue
Pittsburgh, PA 15222
Telephone: (412) 355-6500
Facsimile: (412) 355-6501
Email: jerry.mcdevitt@klgates.com
Email: curtis.krasik@klgates.com

Counsel for Defendants

Case 3:15-cv-01074-VLB Document 233 Filed 10/19/16 Page 2 of 90

TABLE OF CONTENTS
Page
I.

INTRODUCTION .................................................................................................. 1

II.

ARGUMENT ......................................................................................................... 6
A.

Standard of Review.................................................................................. 6

B.

Plaintiffs Claims are All Time-Barred .................................................... 7

C.

1.

All Tort Claims Are Time-Barred .................................................. 7

2.

All Negligence-Based Claims Are Time-Barred .......................... 9

3.

The Claim for a Declaratory Judgment on Liability Is TimeBarred .......................................................................................... 11

4.

The Medical Monitoring Claim Is Time-Barred ......................... 12

5.

Plaintiff Knightons Wrongful Death and Survival Claims Are


Time-Barred ................................................................................. 12

6.

The Claim Seeking a Declaratory Judgment of


Misclassification Is Time-Barred ............................................... 15

7.

The Claim Seeking a Declaratory Judgment that Plaintiffs


Contracts Were Unconscionable Is Time-Barred ..................... 18

8.

The Unjust Enrichment and Accounting Claims Are TimeBarred .......................................................................................... 19

9.

The Intentional Deprivation of Statutory Rights And Mandatory


Reporting Claims Are Time-Barred ........................................... 20

10.

The Complaint Fails to Allege Any Basis for Equitable


Estoppel Tolling .......................................................................... 22

In Addition to Being Time-Barred, All of Plaintiffs Misclassification


Claims Are Substantively Defective and Should Be Dismissed ........ 26
1.

There Is No Cause of Action for Misclassification (Count I),


Declaratory Relief-Liability (Count II), Intentional
Deprivation of Statutory Rights (Count XIII) or Mandatory
Reporting (Count XIV) ............................................................... 26
a.

Plaintiffs FICA Tax Claims Fail ....................................... 27

b.

Plaintiffs National Labor Relations Act Claims Fail...... 30

c.

Plaintiffs Occupational Safety and Health Act Claims


Fail ..................................................................................... 32

d.

Plaintiffs Family Medical Leave Act Claims Fail ........... 33


i

Case 3:15-cv-01074-VLB Document 233 Filed 10/19/16 Page 3 of 90

2.

3.

Plaintiffs Declaratory Judgment Claims Do Not Present A


Justiciable Case or Controversy ............................................... 34
a.

Plaintiffs Declaratory Judgment Claims Are Not


Supported By Sources of Substantive Rights ............... 34

b.

Plaintiffs Lack Standing Because The Declarations They


Seek Can Have No Effect on Existing Rights................. 36

c.

The Court Should Decline to Exercise Declaratory


Judgment Jurisdiction In Any Event .............................. 38

Count IV of Plaintiffs Complaint, Labeled Unconscionable


Contracts, Should Be Dismissed ............................................. 40
a.

There Is No Cause of Action for Unconscionable


Contracts........................................................................... 41

b.

Plaintiffs Have Not Adequately Pled a Plausible


Unconscionability Claim .................................................. 43

c.
4.

D.

i.

Plaintiffs Have Failed to Allege Procedural


Unconscionability .................................................. 45

ii.

Plaintiffs Likewise Fail to Allege Substantive


Unconscionability .................................................. 49

Plaintiffs Unconscionability Claim Is A Fraud .............. 51

Plaintiffs Unjust Enrichment (Count XVII) and


Accounting/Disgorgement of Unjust and Illegal Profits (Count
XVI) Claims Fail As A Matter Of Law ......................................... 53
a.

Accounting and Disgorgement Are Remedies and Not


Causes of Action Under Connecticut Law ..................... 53

b.

Plaintiffs Unjust Enrichment Claim Fails to State A


Cognizable Claim ............................................................. 54

c.

Plaintiffs Cannot Use Accounting/Disgorgement and


Unjust Enrichment Claims to Retroactively Seek Rights
in WWEs Copyrighted Works ......................................... 57

In Addition to Being Time-Barred, All of Plaintiffs TBI Claims Are


Substantively Defective and Should Be Dismissed ............................ 61
1.

Connecticut Does not Recognize Causes of Action for Medical


Monitoring (Count V), Fraudulent Concealment (Count VI), or
Civil Conspiracy to Commit Fraudulent Concealment (Count
XII) ................................................................................................ 61

ii

Case 3:15-cv-01074-VLB Document 233 Filed 10/19/16 Page 4 of 90

2.

Plaintiffs Fail to State Claims for Fraud (Count VIII) and


Negligent Misrepresentation (Count IX) .................................... 61

3.

Plaintiffs Negligence-Based Claims Fail As A Matter Of


Law ............................................................................................... 65

4.

E.
III.

a.

WWE Owed No Negligence-Based Duties to


Plaintiffs ............................................................................ 65

b.

Plaintiffs Fail to State Claims for Negligent Hiring


(Count X) and Negligent Retention (Count XI) ............... 68

c.

Plaintiffs Claims Based on the Alleged Negligence of


WWEs Medical Staff Fail to Comply with the
Requirements of C.G.S. 52-190a .................................. 70

Knightons Wrongful Death Claim Fails to Allege A Plausible


Causal Connection Between WWEs Conduct and the
Decedents Injury ........................................................................ 71

The Claims of 19 of the 53 Plaintiffs Are Barred By Contractual


Releases ................................................................................................. 74

CONCLUSION ................................................................................................... 75

iii

Case 3:15-cv-01074-VLB Document 233 Filed 10/19/16 Page 5 of 90

TABLE OF AUTHORITIES
Page(s)
Cases
118 E. 60th Owners, Inc. v. Bonner Props., Inc., 677 F.2d 200
(2d Cir. 1982) ............................................................................................... 11-12, 15
Ackoff-Ortega v. Windswept Pac. Entmt Co., 120 F. Supp. 2d 273
(S.D.N.Y. 2000)................................................................................................... 18-19
Alexander v. Town of Vernon, 101 Conn. App. 477, 923 A. 2d 748
(2007) ...................................................................................................................... 72
Alliance Grp. Servs., Inc. v. Grassi & Co., 406 F. Supp. 2d 157
(D. Conn. 2005) ....................................................................................................... 54
Allstate Ins. Co. v. Advanced Health Profls, P.C., 256 F.R.D. 49
(D. Conn. 2008) ....................................................................................................... 62
Allstate Ins. Co. v. Martinez, No. 3:11cv574 (VLB), 2012 WL 1379666
(D. Conn. Apr. 20, 2012)......................................................................................... 11
Alstom Power, Inc. v. Schwing Am., Inc., No. 3:04cv1311,
2006 WL 2642412 (D. Conn. Sept. 14, 2006)......................................................... 54
Am. Mfrs. Mutual Ins. Co. v. Sullivan, 526 U.S. 40 (1999)......................................... 26
Amalgamated Utility Workers v. Consolidated Edison Co.,
309 U.S. 261 (1940)................................................................................................. 31
Amoco Oil Co. v. Liberty Auto & Elec. Co., 262 Conn. 142,
810 A. 2d 259 (2002) ............................................................................................... 16
Angersola v. Radio. Assocs. of Middletown, P.C.,
No. MMXCV146012179, 2015 WL 5626267
(Conn. Super. Aug. 20, 2015) ................................................................................ 14
Arcari v. 46th St. Dev. LLC, No. 10 Civ. 3619(PKC), 2011 WL 832809
(S.D.N.Y. Mar. 2, 2011) ........................................................................................... 74
Argentinis v. Fortuna, 134 Conn. App. 538, 39 A. 3d 1207 (2012) ........................... 56
Baghdady v. Baghdady, No. 3:05-cv-1494 (AHN), 2008 WL 4630487
(D. Conn. Oct. 17, 2008) ......................................................................................... 20
Baltimore Orioles, Inc. v. Major League Baseball Players Assn,
805 F.2d 663 (7th Cir. 1986) ................................................................................... 58
iv

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Bedrick v. Bedrick, 300 Conn. 691, 17 A. 3d 17 (2011) ................................. 43, 44, 50


Bender v. Bender, 292 Conn. 696, 975 A. 2d 636 (2009)...................................... 41-42
Benefield v. Pfizer Inc., 103 F. Supp. 3d 449 (S.D.N.Y. 2015) .............................. 56-57
Bennett v. Behring Corp., 466 F. Supp. 689 (S.D. Fla. 1979).................................... 42
Bennett v. New Milford Hosp., Inc., 300 Conn. 1, 12 A. 3d 865 (2011)................ 70-71
Berera v. Mesa Med. Grp., PLLC, 779 F.3d 352 (6th Cir. 2015) ................................ 28
Berry v. Ford Motor Co., No. 11-10569, 2015 WL 1646657
(E.D. Mich. Apr. 14, 2015) ...................................................................................... 60
Bilodeau v. Vlack, No. 07-CV-1178 (JCH), 2009 WL 1505571
(D. Conn. May 20, 2009) ........................................................................................... 7
Bimler v. Stop & Shop Supermarket Co., 965 F. Supp. 292
(D. Conn. 1997) .................................................................................................. 31-32
Blood v. Titan Sports, Inc., No. 3:94CV307-P,
1997 U.S. Dist. LEXIS 24485 (W.D.N.C. May 13, 1997)......................................... 59
Blue Cross of Cal. v. Smithkline Beecham Clinical Labs., Inc.,
108 F. Supp. 2d 116 (D. Conn. 2000)..................................................................... 20
Braswell v. Cmty. Solutions, Inc., No. 3:11-CV-01043,
2012 U.S. Dist. LEXIS 188319 (D. Conn. Aug. 27, 2012) ........................................ 9
Bruno v. Casella Waste Sys., Inc., 616 Fed. Appx. 20 (2d Cir. 2015)....................... 11
Calderon v. Symeon, No. 3:06CV1130 (AHN), 2007 WL 2439445
(D. Conn. Jun. 18, 2007) .......................................................................................... 7
Carlin v. Carlin, No. DBDCV126009977, 2013 WL 951362
(Conn. Super. Feb. 7, 2013) ................................................................................... 56
Carson Optical Inc. v. eBay Inc., No. 15-CV-3793 (KAM) (SIL),
2016 WL 4385998 (E.D.N.Y. Aug. 17, 2016) .......................................................... 65
Cerbone v. Intl Ladies Garment Workers Union, 768 F.2d 45
(2d Cir. 1985) .................................................................................................... 22, 23
Certain Underwriters at Lloyds, London v. Cooperman,
289 Conn. 383, 957 A. 2d 836 (2008) ..................................................................... 19
Chalfin v. St. Josephs Healthcare Sys., 629 Fed. Appx. 367
(3d Cir. 2015) .......................................................................................................... 28
v

Case 3:15-cv-01074-VLB Document 233 Filed 10/19/16 Page 7 of 90

Cheshire Mortg. Serv., Inc. v. Montes, 223 Conn. 80, 612 A. 2d 1130
(1992) ...................................................................................................................... 43
Chevron Corp. v. Naranjo, 667 F.3d 232 (2d Cir. 2012) ............................................ 42
Chien v. Skystar Bio Pharm. Co., 623 F. Supp. 2d 255 (D. Conn. 2009).................... 8
Clark v. Knochenhauer, No. MMXCV146011914, 2015 WL 7941283
(Conn. Super. Nov. 12, 2015)................................................................................. 69
Collum v. Chapin, 40 Conn. App. 449, 671 A. 2d 1329 (1996) .................................... 8
Conklin v. Maidenbaum, No. 12-CV-3606 (ER), 2013 WL 4083279
(S.D.N.Y. Aug. 13, 2013)......................................................................................... 24
Cowin Equip. Co. v. Gen. Motors Corp., 734 F.2d 1581 (11th Cir. 1984) ................. 42
Cusanelli v. Minervini, No CV990430739, 2001 WL 1098148
(Conn. Super. Aug. 22, 2001) ................................................................................ 56
DAntuono v. Serv. Road Corp., 789 F.Supp.2d 308 (D. Conn. 2011) ................ 44, 46
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) ................................................ 37
DaimlerChrysler Ins. Co. v. Pambianchi, 762 F. Supp. 2d 410
(D. Conn. 2011) ....................................................................................................... 44
David Fuhrer Enters., LLC v. Add the Flavor, LLC,
No. FSTCV136018002S, 2013 WL 5879038
(Conn. Super. Oct. 9, 2013) ................................................................................... 53
Deleu v. Scaife, 775 F. Supp. 712 (S.D.N.Y 1991) ...................................................... 28
DiGiovanni v. City of Rochester, 680 F. Supp. 80 (W.D.N.Y. 1988).......................... 28
DiMuro v. Clinique Labs., 572 Fed. Appx. 27 (2d Cir. 2014) ..................................... 57
DiPonio Const. Co. Inc. v. Intl Union of Bricklayers and Allied
Craftworkers, 739 F. Supp. 2d 986 (E.D. Mich. 2010) .......................................... 36
DME Constr. Assoc., Inc. v. United States,
No. 15-cv-4322 (ADS) (SIL), 2016 WL 2992131
(E.D.N.Y. May 21, 2016).......................................................................................... 35
Donovan v. Occupational Safety & Health Review Commn,
713 F.2d 918 (2d Cir. 1983) .................................................................................... 32
Dow Jones & Co. v. Harrods Ltd., 346 F.3d 357 (2d Cir. 2003) .......................... 38, 39

vi

Case 3:15-cv-01074-VLB Document 233 Filed 10/19/16 Page 8 of 90

Dryer v. Natl Football League, 55 F. Supp. 3d 1181 (D. Minn. 2014) ...................... 58
Dryer v. Natl Football League, 814 F.3d 938 (8th Cir. 2016) .................................... 58
Dubay v. Irish, 207 Conn. 518, 542 A. 2d 711 (1988) ................................................. 66
E. Point Sys., Inc. v. Maxim, No. 3:13-CV-00215(VLB),
2014 WL 523632 (D. Conn. Feb. 7, 2014) .............................................................. 56
Ellul v. Congregation of Christian Bros., 774 F. 3d 791 (2d Cir. 2014) .......... 7, 23, 25
Estate of Axelrod v. Flannery, 476 F. Supp. 2d 188 (D. Conn. 2007) ......................... 9
Estate of Maroni v. Bobcat of Conn., Inc., No. CV054012196,
2007 WL 2390916 (Conn. Super. Aug. 7, 2007) ............................................... 13-14
F.T.C. v. Bronson Partners, LLC, 654 F.3d 359 (2d Cir. 2011) ................................. 53
FCT Elecs., LP v. Bank of Am., N.A., No. CV106002699,
2011 WL 4908850 (Conn. Super. Sept. 22, 2011) ................................................. 50
Ferro v. Metro. Ctr. for Mental Health, No. 13 Civ. 2347(PKC),
2014 WL 2039132 (S.D.N.Y. May 16, 2014) ..................................................... 28, 30
Fletcher v. City of New Haven Dept. of Police Servs.,
No. 3:10-CV-558(RNC), 2011 WL 1302247 (D. Conn. Mar. 31, 2011) ............. 69, 70
Floyd v. Fruit Indus., Inc., 144 Conn. 659, 136 A. 2d 918 (1957) ......................... 73-74
Fort Trumbull Conservancy, LLC v. City of New London,
265 Conn. 423, 829 A. 2d 801 (2003) ..................................................................... 14
Frank v. LoVetere, 363 F. Supp. 2d 327 (D. Conn. 2005) .......................................... 53
G-I Holdings, Inc. v. Baron & Budd, No. 01 Civ. 0216 (RWS),
2003 WL 193502 (S.D.N.Y. Jan. 29, 2003) ............................................................. 72
Gager v. Sanger, 95 Conn. App. 632, 897 A. 2d 704 (2006) ...................................... 19
Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015) .................................................. 60
Gifford v. Meda, No. 09-cv-13486, 2010 WL 1875096
(E.D. Mich. May 10, 2010) ...................................................................................... 29
Girard v. Weiss, 43 Conn. App. 397, 682 A. 2d 1078 (1996) ..................................... 15
Glanville v. Dupar, Inc., 727 F. Supp. 2d 596 (S.D. Tex. 2010) ......................... passim
Graziado v. Culinary Inst. of Am., 817 F.3d 415 (2d Cir. 2016) ........................... 33-34

vii

Case 3:15-cv-01074-VLB Document 233 Filed 10/19/16 Page 9 of 90

Greco v. United Techs. Corp., 277 Conn. 337, 890 A. 2d 1269 (2006) ............... 14, 24
Grody v. Tulin, 170 Conn. 443, 365 A. 2d 1076 (1976) .............................................. 73
In re Joint E. & S. Dist. Asbestos Litig., 14 F.3d 726 (2d Cir. 1993) ............. 11, 34, 40
In re MTBE Prod. Liab. Litig., 247 F.R.D. 420 (S.D.N.Y. 2007) .................................. 35
Inclusion First, LLC v. Macy, Civil No. 3:14-cv-1786 (AWT),
2015 WL 8476329 (D. Conn. Sept. 23, 2015)......................................................... 35
Intl Strategies Grp., Ltd. v. Ness, 645 F.3d 178 (2d Cir. 2011) .......................... 23, 26
J&N Elec., Inc. v. Notkins, No. CV085020144, 2009 WL 1607591
(Conn. Super. May 20, 2009) ................................................................................. 55
Jaiguay v. Vasquez, 287 Conn. 323, 948 A. 2d 955 (2008) ....................................... 13
Jaworski v. Kiernan, 241 Conn. 399, 696 A. 2d 332 (1997)............................... passim
Jessie v. Carter Health Care Ctr., Inc., 926 F. Supp. 613
(E.D. Ky. 1996) ........................................................................................................ 34
Johnson v. Morgenthau, 160 F.3d 897 (2d Cir. 1998) ............................................... 72
Johnson v. S. Farm Bureau Life Ins., No. 99-30808, 2000 WL 553958
(5th Cir. Apr. 10, 2000) ..................................................................................... 28, 30
Jules Jordan Video, Inc. v. 144942 Canada, Inc., 617 F.3d 1146
(9th Cir. 2010) ......................................................................................................... 58
Kidder v. Read, 150 Conn. App. 720, 93 A. 3d 599 (2014) ...................................... 8, 9
Kosiorek v. Smigelski, No. CV074014607S, 2008 WL 4779846
(Conn. Super. Oct. 9, 2008) ................................................................................... 54
Labow v. Rubin, 95 Conn. App. 454, 897 A. 2d 454 (2006) ......................................... 8
Ladd v. Douglas Trucking Co., 203 Conn. 187, 523 A. 2d 1301 (1987) .................... 73
Le Bouteiller v. Bank of N.Y. Mellon, No. 14 Civ. 6013 (PGG),
2015 WL 5334269 (S.D.N.Y. Sept. 11, 2015) ......................................................... 27
Lehman v. USAIR Grp., Inc., 930 F. Supp. 912 (S.D.N.Y. 1996) ................................ 28
Levy et al. v. World Wrestling Entertainment, Inc.,
No. 3:08-01289 (PCD), 2009 WL 455258 (D. Conn. Feb. 23, 2009) .............. passim
Lightfoot v. Union Carbide Corp., 110 F.3d 898 (2d Cir. 1997) ................................ 60

viii

Case 3:15-cv-01074-VLB Document 233 Filed 10/19/16 Page 10 of 90

Lindsay v. Assn of Profl Flight Attendants, 581 F.3d 47 (2d Cir. 2009) ................ 32
Litvack v. Lehrer, No. 3:06-cv-00767 (WWE), 2007 WL 322506
(D. Conn. Jan. 31, 2007)......................................................................................... 20
Local 282, Intl Bhd. of Teamsters, Chauffers, Warehousemen &
Helpers of Am., v. NLRB, 339 F.2d 795 (2d Cir. 1964) ......................................... 31
Loglisci v. Stamford Hosp., No. CV085009309S, 2011 WL 1026821
(Conn. Super Feb. 22, 2011) .................................................................................. 68
Lowers v. Valley Diagnostic Labs, Inc.,
Civil Action No. 2:16-cv-02785, 2016 WL 3211979
(S.D.W.Va. June 9, 2016) ................................................................................. 29, 30
Lugo v. N.Y. Hosp. of Queens, 16 Civ. 724 (AMD) (LB),
2016 U.S. Dist. LEXIS 21207 (E.D.N.Y. Feb. 22, 2016) ......................................... 43
Lyle v. James, No. 3:12-CV-00959 (VLB), 2014 WL 2881405
(D. Conn. June 25, 2016) ....................................................................................... 20
Macomber v. Travelers Prop. & Cas. Corp., 261 Conn. 620,
804 A. 2d 180 (2002) ......................................................................................... 53, 61
Mahon v. Ticor Title Ins. Co., 683 F.3d 59 (2d Cir. 2012) .................................... 36, 37
Makarova v. U.S., 201 F.3d 110 (2d Cir. 2000) ........................................................... 14
Martinelli v. Fusi, 290 Conn. 347, 963 A. 2d 640 (2009) ............................................ 10
Martinez v. Yale-New Haven Hosp., No. X02CV0404001227S,
2005 WL 2364901 (Conn. Super. Sept. 1, 2005) ................................................... 63
Matthew v. RCN Corp., No. 12 Civ. 0185(JMF), 2012 WL 5834917
(S.D.N.Y. Nov. 14, 2012) ......................................................................................... 28
Mayall v. USA Water Polo, Inc., No. SACV 15-1071 AG,
2016 WL 1254034 (C.D. Cal. Mar. 30, 2016) .................................................... 38, 67
McCullough v. World Wrestling Entm't, Inc., No. 3:15-cv-01074 (VLB),
2016 WL 1122016 (D. Conn. Mar. 21, 2016) .................................................. passim
McCullough v. World Wrestling Entmt, Inc., No. 3:15-cv-1074 (VLB),
2016 WL 3962779 (D. Conn. July 21, 2016) ............................................... 34-35, 38
McDermott v. Conn., 316 Conn. 601, 113 A. 3d 419 (2015) ...................................... 73
McDonald v. S. Farm Bureau Life Ins. Co., 291 F.3d 718
(11th Cir. 2002) ........................................................................................... 29, 30, 36
ix

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McElwee v. Wharton, 19 F. Supp. 2d 766 (W.D. Mich. 1998) .................................... 30


Meaney v. Conn. Hosp. Assn, Inc., 250 Conn. 500, 735 A. 2d 813
(1999) ...................................................................................................................... 54
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007) ....................................... 38
Mehr v. Fedn Intl de Football Assoc., 115 F. Supp. 3d 1035
(N.D. Cal. 2015) ........................................................................................... 37, 38, 67
Miller v. Edward Jones & Co., 355 F. Supp. 2d 629 (D. Conn. 2005) ....................... 69
Miller v. Ethan Allen Global, Inc.,
Civil No. 3:10-CV-1701 (JCH), 2011 WL 3704806
(D. Conn. Aug. 23, 2011) ........................................................................................ 69
Mountaindale Condo. Ass'n, Inc. v. Zappone, 59 Conn. App. 311,
757 A. 2d 608 (2000) ............................................................................................... 10
N. Am. Technical Servs. v. V.J. Techs, Inc., No. 10CV1384 (AWT),
2011 WL 4538069 (D. Conn. Sept. 29, 2011).................................................... 54-55
Natl Basketball Assn v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997) ................ 59, 60
Nazami v. Patrons Mut. Ins. Co., 280 Conn. 619, 910 A.2d 209 (2006) .................... 63
Nygaard v. Sioux Valley Hosps. & Health Sys., 731 N.W.2d 184
(S.D. 2007) .............................................................................................................. 42
OConnell v. Salon Shahin, Inc., No. FSTCV106003571S,
2013 WL 6925920 (Conn. Super. Dec. 3, 2013) .................................................... 68
OBG Technical Servs., Inc. v. Northrop Grumman Space & Mission
Sys. Corp., 503 F. Supp. 2d 490 (D. Conn. 2007) ......................................... passim
Okafor v. Yale Univ., No. CV980410320, 2004 WL 1615941
(Conn. Super. Jun. 25, 2004) ................................................................................. 41
Palenske v. Westar Energy, Inc., No. 04-4167-JAR, 2005 WL 2455750
(D. Kan. Oct. 5, 2005) ........................................................................................ 23-24
Pearsall Holdings, LP v. Mountain High Funding, LLC,
No. 3:13cv437 (JBA), 2014 WL 7270334 (D. Conn. Dec. 18, 2014)...................... 62
Pesserillo v. Natl Grid, 78 F. Supp. 3d 551 (E.D.N.Y. 2015) ..................................... 74
Pierce v. Fordham Univ., Inc., No. 15-CV-4589 (JMF),
2016 WL 3093994 (S.D.N.Y. June 1, 2016) ............................................................ 65

Case 3:15-cv-01074-VLB Document 233 Filed 10/19/16 Page 12 of 90

Pierscionek v. Ill. High Sch. Assn, No. 14-CH-19131,


2015 WL 6550826 (Ill. Cir. Ct. Cook Cnty. Oct. 27, 2015)..................................... 67
Porter v. N.Y. Univ. Sch. of Law, 392 F.3d 530 (2d Cir. 2004) .................................. 21
Priceline Com., Inc. v. Mayes, No. X08CV030196820, 2005 WL 896261
(Conn. Super. Mar. 16, 2005) ................................................................................. 53
Protegrity Corp. v. Paymetric, Inc.,
Civil Action No. 3:13-CV-01549 (VLB), 2014 WL 3849972
(D. Conn. Aug. 5, 2014) ............................................................................................ 7
Ray v. ESPN, Inc., 783 F.3d 1140 (8th Cir. 2015) .................................................. 57-58
Rose v. City of Waterbury, No. 3:12cv291(VLB), 2013 WL 1187049
(D. Conn. Mar. 21, 2013) .................................................................................. 71, 73
Salazar v. Brown, 940 F. Supp. 160 (W.D. Mich. 1996) ....................................... 29, 36
Schirmer v. Souzal, 126 Conn. App. 759, 12 A. 3d 1048 (2011) ............................... 56
Shukh v. Seagate Tech., LLC, No. 10-404(JRT/JJK), 2011 WL 1258510
(D. Minn. Mar. 30, 2011) .................................................................................... 60-61
Sigmon v. Southwest Airlines Co., 110 F.3d 1200 (5th Cir. 1997) ........................... 28
Smith v. Mitsubishi Motors Credit of Am., Inc., 247 Conn. 342,
721 A. 2d 1187 (1998) ..................................................................................... passim
Somerson v. World Wrestling Entmt, Inc., 956 F. Supp. 2d 1345
(N.D. Ga. 2012)................................................................................................... 58-59
Spilky v. Helphand, No. 91 CIV 3045 (PKL), 1993 WL 159944
(S.D.N.Y. May 11, 1993).......................................................................................... 28
Springfield Hosp. v. Hofmann, 488 Fed Appx. 534 (2d Cir. 2012)............................ 35
Stephens v. Norwalk Hosp., 162 F. Supp. 2d 36 (D. Conn. 2001) ...................... 13, 14
Super Glue Corp. v. Avis Rent A Car Sys., Inc., 132 A.D.2d 604
(N.Y. App. Div. 1987) .............................................................................................. 42
Thomas v. CM Secs., LLC, No. CV095033527S, 2010 WL 3038503
(Conn. Super. July 7, 2010) ................................................................................... 42
Town of New Hartford v. Conn. Res. Recovery Auth., 291 Conn. 433,
970 A. 2d 592 (2009) .......................................................................................... 55-56
Travelers Indem. Co. v. Rubin, 209 Conn. 437, 551 A. 2d 1220 (1988) ...................... 8
xi

Case 3:15-cv-01074-VLB Document 233 Filed 10/19/16 Page 13 of 90

Trefoil Park, LLC v. Key Holdings, LLC, No. 3:14-CV-00364 (VLB),


2015 WL 1138542 (D. Conn. Mar. 13, 2015) .......................................................... 62
Tromp v. City of. N.Y, 465 Fed. Appx. 50 (2d Cir. 2012) ........................................... 74
Twersky v. Yeshiva Univ., 993 F. Supp. 2d 429 (S.D.N.Y. 2014) ........................ 23, 24
U.S. ex. rel. Lissack v. Sakura Global Capital Mkts., Inc., 377 F.3d 145
(2d Cir. 2004) .......................................................................................................... 27
Umbach v. Carrington Inv. Partns, No. 3:08 CV 484 (EBB),
2009 WL 413346 (D. Conn. Feb. 18, 2009) ............................................................ 40
Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59 (3d Cir. 2008) ............................. 28
Ungerleider v. Fleet Mortg. Grp. of Fleet Bank, 329 F. Supp. 2d 343
(D. Conn. 2004) ....................................................................................................... 21
United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1 (2008) .................... 27-28
Valentin v. Bridgeport Police Dept, No. 3:13CV1859 (AWT),
2015 WL 1897398 (D. Conn. Apr. 27, 2015) ............................................................ 9
Von Maack v. Wyckoff Heights Med. Ctr., 15 Civ. 3951 ER,
2016 WL 3509338 (S.D.N.Y. Jun. 21, 2016) ..................................................... 31, 32
Ward v. Greene, 267 Conn. 539, 839 A. 2d 1259 (2004) ....................................... 71-72
Wells v. FedEx Ground Package Sys., Inc., No. 4:10CV2080 JCH,
2011 WL 1769665 (E.D. Mo. May 9, 2011) ............................................................. 16
Wilkins v. Conn. Childbirth & Womens Ctr., 314 Conn. 709,
104 A. 3d 671 (2014) ............................................................................................... 71
William Raveis Real Estate v. Cendant Mobility Corp.,
No. CV054002709S, 2005 WL 3623815 (Conn. Super. Dec. 6, 2005) .................. 55
Wilson v. Kelley, 224 Conn. 110, 617 A. 2d 433 (1992) ............................................. 11
Yerkovich v. MCA Inc., 11 F. Supp. 2d 1167 (C.D. Cal. 1997)................................... 19
Yurevich v. Sikorsky Aircraft Div., United Tech. Corp.,
51 F. Supp.2d 144 (D. Conn. 1999)........................................................................ 62
Statutes
18 U.S.C. 1961 (Racketeer Influenced & Corrupt Organzizations Act) ............ 4, 28
26 U.S.C. 1 (Internal Revenue Code)............................................................... passim

xii

Case 3:15-cv-01074-VLB Document 233 Filed 10/19/16 Page 14 of 90

26 U.S.C. 3111 (Federal Insurance Contributions Act) .................................. passim


28 U.S.C. 2201 (Declaratory Judgment Act) ................................................... passim
29 U.S.C. 151 (National Labor Relations Act) ................................................ passim
29 U.S.C. 651 (Occupational Safety and Health Act of 1970)........................ passim
29 U.S.C. 2601 (Family Medical Leave Act) .................................................... passim
CONN. GEN. STAT. 52-576 ................................................................................... passim
CONN. GEN. STAT. 52-577 ................................................................................... passim
CONN. GEN. STAT. 52-584 ................................................................................... passim
Other Authorities
29 C.F.R. 825.102 ...................................................................................................... 34
29 C.F.R. 825.500 ...................................................................................................... 34
Fed. R. Civ. P. 8 ........................................................................................................... 43
Fed. R. Civ. P. 9 ................................................................................................... passim
Fed. R. Civ. P. 11 ................................................................................................. passim
Fed. R. Civ. P. 12 ................................................................................................. passim
1 Dan B. Dobbs, Law of Remedies 1.1 at 5 (2d ed. 1993) ....................................... 56

xiii

Case 3:15-cv-01074-VLB Document 233 Filed 10/19/16 Page 15 of 90

I.

INTRODUCTION

This is the sixth case that Konstantine Kyros (Kyros) has instigated
against WWE since October 2014, following an internet based scheme to recruit
plaintiffs to sue WWE. During this cascade of solicited lawsuits, a total of 12
different complaints or amended complaints have now been filed, and every one
has been chock full of false allegations, frivolous claims, and incendiary
language. None have been the short and plain statement showing that each
Plaintiff has a claim entitling them to relief required by the Rules, and the
Complaint in this case is by far the worst one yet. Ignoring this Courts prior
admonitions about pleading requirements, misjoinder of claims, and the need to
do reasonable inquiry and investigation, the Complaint here gloms together 53
separate plaintiffs who performed for WWE over five decades spanning two
different centuries. The Complaint is 667 paragraphs long spread over 214 pages
with 17 different counts. One has to wade through 122 pages and 323 paragraphs
to arrive at the very first count, only to realize that there are no counts set forth
specifically for each plaintiff.
As demonstrated in the Rule 11 Motion filed on October 17, 2016, the
Complaint is crafted by massively plagiarizing from the Master Complaint filed by
plaintiffs in the NFL concussion litigation. See Dkt. 229. Allegations about the
actions and statements of the NFL and its personnel are lifted verbatim from that
lawsuit, except Plaintiffs counsel deceptively substituted WWE for the NFL in
the plagiarized allegations. By such deception, the authors and contents of
specific scientific reports are switched from being of and by the NFL to of and by

Case 3:15-cv-01074-VLB Document 233 Filed 10/19/16 Page 16 of 90

WWE. Statements that were in fact made by the Commissioner of the NFL are
falsely attributed to WWE, which is then falsely accused of making such
statements for wrestlers to rely upon. Allegations that the NFL had funded and
produced its own scientific research and then used that research to misrepresent
to its players, Congress and the public that there is no link between TBIs and
later-in-life cognitive issues were transformed into allegations that WWE did so
simply by changing NFL to WWE, even though WWE has never funded and
produced any of its own research or presented any research whatsoever to
Congress, performers or the public.1
Amidst such serial falsifications, which other federal courts treat as lying
to the Court when detected, the Complaint purports to assert two distinct
categories of claims. First, the Complaint asserts non-specific claims about TBIs
and assorted other injuries which, in the main, are more stale than the ones
dismissed in the McCullough action. Indeed, 35 of the Plaintiffs did not perform
for WWE in this century, with some going back to the 1970s. Only five Plaintiffs
performed after 2005, the date WWE was falsely alleged to have known about the
reported risks of neurodegenerative diseases in the prior cases. One of those
five Plaintiffs signed a release, and none of those five made specific allegations
unique to them establishing that they possess a claim, let alone a timely one, for
1

The pattern of parroting allegations made against the NFL which have no
relevance to WWE has been a consistent problem in the lawyer-driven litigation
campaign led by Attorney Kyros. Once done, WWE and the Court have had to
deal with compulsion orders aimed at ascertaining the basis for such allegations,
such as is the case in the sanctions motion filed in the Singleton/LoGrasso case.
See Dkt. 198 & Dkt. 226. In that case, despite compulsion orders, Kyros never did
identify the factual basis for key allegations. The only difference between the
falsified allegations in prior cases and this case is that Plaintiffs counsel has
been caught dead to rights in highly deceptive plagiarism here.
2

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TBIs or other injuries. The Complaint is littered with allegations regarding


extremely stale and time-barred injuries supposedly sustained by the various
Plaintiffs, such as broken bones, concussions and the like. Only three Plaintiffs
allege that they have a long-term neurodegenerative disease. These three include
Dave Hebner, who was not even a wrestler but a referee. See Compl. 69. He
last performed in 2005. See id. He is 66 and supposedly has dementia and
Parkinsons disease. See id. The second is Angelo Mosca, who played
professional football for over a decade and last performed for WWE in 1981, over
35 years ago. See id. at 69. He is 78 and allegedly was diagnosed with
Alzheimers in 2015. See id. The third is Larry Oliver, who is 63 and allegedly
disabled since 2000. See id. at 98. He performed for WWE for a brief period
between 1987-88, and is said to have Alzheimers. See id. On the reasoning
previously used by the Court to dismiss the Haynes and McCullough actions, all
three of these claims would be dismissed since all last performed well before
2005, the date WWE allegedly knew about the risks of such diseases being
associated with professional wrestling.
Instead of pleading individual claims which are not time-barred, there is
generally a paragraph about each Plaintiff of varying length describing various
alleged injuries and events dating as far back as the 1970s. There are no specific
allegations for each Plaintiff indicating any due diligence on their part, and no
specific tolling allegation as to each Plaintiff. Notably absent are any allegations
as to how these 53 Plaintiffs coincidentally all decided to file suit at the same
time. In reality, each Plaintiff was recruited to sue by Kyros through his internet

Case 3:15-cv-01074-VLB Document 233 Filed 10/19/16 Page 18 of 90

solicitation schemes without regard to whether any had verifiable and diagnosed
TBIs.2 Indeed, so lacking was the due diligence that suit was filed on behalf of 19
Plaintiffs who had signed releases covering the claims asserted on their behalf.
Even when that fact was brought to the attention of Plaintiffs counsel by a
supplemental Rule 11 motion served on them, they did not dismiss any of the
Plaintiffs from this lawsuit.
Second, the Complaint asserts a hodgepodge of defective claims seeking
to fulfill other inducements offered to Plaintiffs to sue, specifically, that they
would get royalties none of them are entitled to receive under their contracts with
WWE. Thus, all Plaintiffs now claim they were misclassified as independent
contractors instead of employees. Hoping to exert more pressure on WWE to pay
them off, Plaintiffs counsel expand the harassment by suing WWE Chairman
Vincent McMahon personally, together with certain family trusts engaged only in
estate planning, on frivolous RICO charges centered around the alleged
misclassification. None of the trusts are alleged to have anything to do with the
operation or management of WWE. The Complaint attempts to stack defective
claims on top of this misclassification allegation despite clear and controlling law
that the claims asserted do not exist in law. Indeed, as Plaintiffs counsel well
know (see Compl. 612), identical claims on behalf of three former-WWE
performers were previously dismissed by the Honorable Peter C. Dorsey seven
years ago in Levy et al. v. World Wrestling Entertainment, Inc., No. 3:08-01289
(PCD), 2009 WL 455258, at *1 (D. Conn. Feb. 23, 2009). In concert with the stale
2

Further evidencing the fraudulent nature of the claims, some of the Plaintiffs
have wrestled since filing this lawsuit and continue wrestling to this day.
4

Case 3:15-cv-01074-VLB Document 233 Filed 10/19/16 Page 19 of 90

and defective misclassification claims, all 53 Plaintiffs allege the legal conclusion
that their fully performed and terminated contracts were unconscionable. Once
again, however, there are no specific counts as to each Plaintiff as to why their
contract or contracts were unconscionable or exactly what provisions of their
contracts they hope to have declared unenforceable. Indeed, so nonexistent was
the diligence on this claim that 52 of the 53 Plaintiffs did not even attach a copy of
the contracts they seek to set aside nor allege anything of substance about their
contracts, including the amounts of money each was paid, which for some was
millions of dollars and for others hundreds of thousands of dollars. The only
Plaintiff who did attach his contracts was Salvador Guerrero IV a/k/a Chavo
Guerrero Jr., and those contracts belie the spurious allegations generically made.
His contracts indicate that he was represented by counsel, paid hundreds of
thousands of dollars, and was sophisticated enough that he did business as a
LLC hardly the brain damaged dullard portrayed by the Complaint.
Although the purpose of requesting this Court to declare fully performed
contracts, some decades old, to have been unconscionable is not expressly
stated, the apparent purpose can be gleaned from other aspects of the Complaint
seeking a financial windfall of 50% of the profits from WWEs exploitation of its
copyrighted works in which the Plaintiffs appear. Tellingly, these counts lack any
specific allegations establishing any intellectual property rights each Plaintiff is
asserting or how those alleged intellectual property rights entitle them to 50% of
the profits WWE earns from the exploitation of its copyrighted works. Although
not stated, the reality is that the contracts Plaintiffs now seek to set aside specify

Case 3:15-cv-01074-VLB Document 233 Filed 10/19/16 Page 20 of 90

that WWE exclusively owns all copyrights of its recorded works and specify
further what royalties are to be paid to Plaintiffs. None of those contracts entitle
any Plaintiff to royalties for the exploitation of WWEs copyrighted works on the
WWE Network, which is the real but unstated point of this exercise. Thus,
the reality is that Plaintiffs counsel seek to set aside fully performed contracts in
order to pursue a frivolous and preempted claim for 50% of the profits made by
WWE on the exploitation of copyrighted works exclusively owned by WWE.3
WWE respectfully submits that the Court should put an end to this serial
campaign of abusive litigation orchestrated by Mr. Kyros. For that reason, WWE
has also filed a Rule 11 motion related to the abuses involved in this lawsuit,
which follow on the heels of prior admonitions by the Court and pending
sanctions motions in both the James and Singleton/LoGrasso cases. As set forth
herein and in the Rule 11 brief, the Complaint was constructed by conduct that
amounts to lying to the Court, but also presents a collage of non-existent, timebarred, or foreclosed claims under controlling law. WWE therefore requests
dismissal, both under the standards governing Rule 12 motions and as a sanction
for misconduct.
II.
A.

ARGUMENT

Standard of Review
The Court is well familiar with the standard of review on a Rule 12(b)(6)

motion to dismiss which, in brief, requires the dismissal of claims that lack

At the same time that Plaintiffs counsel here seek to set aside contracts in an
effort to get royalties for the use of WWE works on the WWE Network, certain of
the same lawyers have filed a putative class action seeking to enforce the very
6

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factual allegations that plausibly give rise to an entitlement to relief. See


Protegrity Corp. v. Paymetric, Inc., Civil Action No. 3:13-CV-01549 (VLB), 2014 WL
3849972, at *2 (D. Conn. Aug. 5, 2014) (citation omitted). Likewise, a court should
dismiss an action pursuant to Rule 12(b)(1) where a plaintiffs exclusive remedy
for his alleged injury is through an administrative proceeding, because the court
lacks jurisdiction to adjudicate the plaintiffs claims. See Calderon v. Symeon,
No. 3:06CV1130 (AHN), 2007 WL 2439445, at *4-5 (D. Conn. Jun. 18, 2007).
B.

Plaintiffs Claims are All Time-Barred


[A] statute of limitations defense may be decided on a Rule 12(b)(6)

motion if the defense appears on the face of the complaint. Ellul v.


Congregation of Christian Bros., 774 F. 3d 791, 798 n.12 (2d Cir. 2014). When a
claim is time-barred on the face of the complaint, as is the case here, Plaintiffs
have the burden of pleading facts sufficient to establish that the statutes of
limitations should be tolled. OBG Technical Servs., Inc. v. Northrop Grumman
Space & Mission Sys. Corp., 503 F. Supp. 2d 490, 504-05 (D. Conn. 2007).
1.

All Tort Claims Are Time-Barred.4

Plaintiffs claims of fraudulent concealment (Count VII),5 fraud (Count VIII),


______________________
same Booking Contracts and claiming that those contracts require WWE to pay
such royalties.
4
A federal court sitting in diversity applies the choice of law rules of the forum
state, in this case, Connecticut. Bilodeau v. Vlack, No. 07-CV-1178 (JCH), 2009
WL 1505571, at *3 (D. Conn. May 20, 2009) (internal quotation marks and citations
omitted). [U]nder Connecticut law, the statute of limitations is considered
procedural and the Connecticut statute of limitations will govern if the underlying
claims existed at common law. McCullough v. World Wrestling Entm't, Inc., No.
3:15-cv-01074 (VLB), 2016 WL 1122016, at *11 (D. Conn. Mar. 21, 2016)
(McCullough I). Connecticut statutes of limitations and repose therefore apply
to Plaintiffs common law claims.
5
Fraudulent concealment is not an independent cause of action under
Connecticut law. See McCullough I, 2016 WL 1122016, at *27.
7

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and civil conspiracy/fraudulent concealment (Count XII) against WWE are all timebarred by the statute of repose in Connecticut General Statutes 52-577.6
C.G.S. 52-577, which governs tort actions generally, provides: No action
founded upon a tort shall be brought but within three years from the date of the
act or omission complained of. 52-577. [T]he three year limitation period of
52-577 applies to all actions based on a tort unless there has been a specific
statutory exclusion. Travelers Indem. Co. v. Rubin, 209 Conn. 437, 441 (1988).
Section 52-577 is a statute of repose in that it sets a fixed limit after which
the tortfeasor will not be held liable and in some cases will serve to bar an
action before it accrues. Labow v. Rubin, 95 Conn. App. 454, 468-69 (2006).
Section 52-577 is an occurrence statute, meaning that the time period within
which a plaintiff must commence an action begins to run at the moment the act or
omission complained of occurs. Collum v. Chapin, 40 Conn. App. 449, 451-52
(1996). Under 52-577, the only material facts are the date of the wrongful
conduct alleged in the complaint and the date the action was filed. Id. Being an
occurrence statute, [t]he three year limitation period of 52-577 begins with the
date of the act or omission complained of, not the date when the plaintiff first
discovers an injury. Id. Ignorance of his rights on the part of the person
against whom the statute has begun to run, will not suspend its operation.
Kidder v. Read, 150 Conn. App. 720, 727 (2014). For fraud claims, the three-year
period of repose runs from the date that the fraudulent misrepresentation or

These tort claims are all subject to the statute of repose in 52-577. See
McCullough I, 2016 WL 1122016, at *12 (fraud); Chien v. Skystar Bio Pharm. Co.,
623 F. Supp. 2d 255, 268-69 (D. Conn. 2009) (civil conspiracy).

Case 3:15-cv-01074-VLB Document 233 Filed 10/19/16 Page 23 of 90

omission occurred. Id.


Plaintiffs tort claims allege that WWEs acts or omissions caused them to
suffer long-term neurological injuries from head trauma they belatedly allege
occurred during their tenure with WWE. See Compl. 1-7, 499-526, 557-60.
Accordingly, the latest date on which WWE could have committed any act or
omission with respect to Plaintiffs is the last date on which they performed for
WWE.7 Since no Plaintiff has performed for WWE within three years of the filing
of the Complaint on July 18, 2016, each of their tort claims is time-barred most
by decades by the statute of repose in 52-577.8 See Exhibit A.
2.

All Negligence-Based Claims Are Time-Barred

Plaintiffs claims of negligent misrepresentation (Count IX), negligent hiring


(Count X), and negligent retention (Count XI) are all time-barred by the statute of
limitations and statute of repose in Connecticut General Statutes 52-584.9

The Complaint principally alleges an omissionthat WWE failed to disclose to


Plaintiffs information about the potential long-term risks of neurological
conditions from repeated head injuries. The alleged omission must have
occurred before the alleged injuries that Plaintiffs claim to have sustained during
their careers with WWE in order for Plaintiffs to plausibly allege that they
detrimentally relied upon such alleged omissions. Not surprisingly, therefore,
this Court previously found it was concede[d] that the acts or omissions that
form the bases of their suits occurred more than three years prior to the filing of
their suits. McCullough I, 2016 WL 1122016, at *17.
8
Based on the allegations in the Complaint, the last Plaintiff to have performed
for WWE, Guerrero Jr., most recently performed for WWE five years ago. See
Compl. 63.
9
Section 52-584 governs each of these negligence-based claims. See OBG
Technical Servs., 503 F. Supp. 2d at 504 (negligent misrepresentation); Braswell
v. Cmty. Solutions, Inc., No. 3:11-CV-01043, 2012 U.S. Dist. LEXIS 188319, at *3233 (D. Conn. Aug. 27, 2012) (negligent hiring); Valentin v. Bridgeport Police Dept,
No. 3:13CV1859 (AWT), 2015 WL 1897398, at *2-3 (D. Conn. Apr. 27, 2015)
(negligent retention). Although some courts have held that 52-577s three-year
statute of repose applies to negligent misrepresentation claims (see Estate of
Axelrod v. Flannery, 476 F. Supp. 2d 188, 203 (D. Conn. 2007)), Plaintiffs
negligent misrepresentation claims are time-barred by either statute.

Case 3:15-cv-01074-VLB Document 233 Filed 10/19/16 Page 24 of 90

C.G.S. 52-584, which governs negligence actions, provides that no such


action shall be brought but within two years from the date when the injury is first
sustained or discovered or in the exercise of reasonable care should have been
discovered, and except that no such action may be brought more than three
years from the date of the act or omission complained of. 52-584. [A]n injury
occurs when a party suffers some form of actionable harm. Mountaindale
Condo. Ass'n, Inc. v. Zappone, 59 Conn. App. 311, 323 (2000). Because only
some form of harm is needed, it is irrelevant whether the injury has fully
manifested. The focus is on the plaintiffs knowledge of facts, rather than on
discovery of applicable legal theories. Id.
If not barred by the two-year limitations period, negligence claims are
barred by the three-year repose period after the act or omission complained of.
[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, 355 (2009) (internal quotation marks and ellipses omitted). Therefore,
an action commenced more than three years from the date of the negligent act or
omission complained of is barred by the statute of limitations contained in 52584, regardless of whether the plaintiff had not, or in the exercise of [reasonable]
care, could not reasonably have discovered the nature of the injuries within that
time period. Id.
As with the other tort claims, Plaintiffs negligence-based claims allege that
WWEs acts or omissions caused them to suffer long-term neurological injuries

10

Case 3:15-cv-01074-VLB Document 233 Filed 10/19/16 Page 25 of 90

from head trauma that occurred during their tenure with WWE. See Compl. 17, 527-56. Again, the latest date on which WWE could have committed any act or
omission with respect to Plaintiffs is the last date on which they performed for
WWE. Since no Plaintiff performed for WWE within three years of the filing of the
Complaint, each of their negligence-based claims is time-barred by the three-year
statute of repose in 52-584.10 See Ex. A.
3.

The Claim for a Declaratory Judgment on Liability Is Time-Barred

Plaintiffs claim for a declaratory judgment that WWE is liable for their
injuries (Count II) is also time-barred by 52-577 and 52-584. The Declaratory
Judgment Act does not create an independent cause of action or contain a
specific statute of limitations.11 See In re Joint E. & S. Dist. Asbestos Litig., 14
F.3d 726, 731 (2d Cir. 1993). When the declaratory judgment sought by a plaintiff
would declare his entitlement to some affirmative relief, his suit is time-barred if
the applicable limitations period has run on a direct claim to obtain such relief.
What determines the applicable limitations period is the basic nature of the suit in
which the issues involved would have been litigated if the Declaratory Judgment
Act had not been adopted. 118 E. 60th Owners, Inc. v. Bonner Props., Inc., 677

10

The negligence claims would also be barred by the two-year limitations period
because Plaintiffs reasonably should have discovered actionable harm long
before July 18, 2014 based on widely publicized reports of a potential link
between any alleged neurological symptoms and head injuries, including public
reports that Chris Benoit was diagnosed with CTE in 2007 and Andrew Martin was
diagnosed with CTE in 2009. See, e.g., Compl. 127, 226-61, 275-78, 309.
11
The federal Declaratory Judgment Act rather than Connecticuts Declaratory
Judgment Act governs this diversity action. See Bruno v. Casella Waste Sys.,
Inc., 616 Fed. Appx. 20, 21 n.2 (2d Cir. 2015) (collecting cases); Allstate Ins. Co. v.
Martinez, No. 3:11cv574 (VLB), 2012 WL 1379666, at *6 (D. Conn. Apr. 20, 2012).
However, the analysis of whether such claims are time-barred would be similar
under Connecticut law. See Wilson v. Kelley, 224 Conn. 110, 116 (1992).

11

Case 3:15-cv-01074-VLB Document 233 Filed 10/19/16 Page 26 of 90

F.2d 200, 202 (2d Cir. 1982) (internal quotation marks and citations omitted).
Count II seeks a declaration that WWE is liable because it knew or
reasonably should have known of the potential long-term risks of
neurodegenerative conditions from repeated head trauma that Plaintiffs allegedly
sustained while performing for WWE and willfully and intentionally concealed
such information from Plaintiffs. Compl. 376. Because Count II is based on the
same allegations as Plaintiffs negligence and tort claims, it is time-barred for the
same reasons as those claims.
4.

The Medical Monitoring Claim Is Time-Barred

Even if it were an independent cause of action, which it is not, Plaintiffs


medical monitoring claim (Count V) would be time-barred by either 52-577 or
52-584.12 The medical monitoring claim alleges that WWE was negligent and
committed fraud by failing to advise Plaintiffs about the potential long-term risks
of neurodegenerative conditions from repetitive head trauma that Plaintiffs
allegedly sustained during their careers with WWE. See Compl. 475-78, 48183. Because the medical monitoring claim is based on the same allegations as
Plaintiffs tort claims, it is time-barred for the same reasons as those claims.
5.

Plaintiff Knightons Wrongful Death and Survival Claims Are TimeBarred___________________________________________________

Plaintiff Bernard Knightons decedent Brian Knighton last performed for


WWE over a decade ago, in 2005. The wrongful death claim on behalf of his

12

This Court has held that medical monitoring is not an independent cause of
action under Connecticut law. McCullough I, 2016 WL 1122016, at *34-35.

12

Case 3:15-cv-01074-VLB Document 233 Filed 10/19/16 Page 27 of 90

estate (Count VI) is time-barred under C.G.S. 52-555.13 Section 52-555 has two
different time restrictions, both of which must be satisfied for the Court to have
subject matter jurisdiction. The claim must be brought within two years from the
date of death; however, no such action may be brought more than five years
from the date of the act or omission complained of. See 52-555(a). Thus,
Section 52-555 provides for an outside time limitation period of two years from
the date of death but that two-year mark cannot be later than five years from the
date of the act or omission complained of, that is, the negligent act itself, as
opposed to the date of the injury sustained as a result of such negligence.
Estate of Maroni v. Bobcat of Conn., Inc., No. CV054012196, 2007 WL 2390916, at

13

Connecticut choice of law rules mandate application of the most significant


relationship test of the Restatement (Second) of Conflict of Laws to the wrongful
death claim. See Stephens v. Norwalk Hosp., 162 F. Supp. 2d 36, 42-43 (D. Conn.
2001); see also Jaiguay v. Vasquez, 287 Conn. 323, 348-51 (2008) (adopting most
significant relationship test of Restatement in tort actions). The Restatement test
requires the application of Connecticut law to Knightons wrongful death claim.
See McCullough I, 2016 WL 1122016, at *10-11 (finding Connecticut has the most
significant relationship to wrestlers claim that he had suffered long-term
neurological injuries from head trauma sustained while performing for WWE).
First, the place where the injury occurred is neutral. Knightons alleged death
from a drug overdose in Maryland is a fortuitous event that was unforeseen by
WWE and has no connection to his relationship with WWE over a decade earlier.
During his brief relationship with WWE, Brian Knighton performed at numerous
venues around the United States. Second, the place of the conduct causing the
injury favors Connecticut because Knightons estate alleges that his drug
overdose death was somehow caused by alleged acts or omissions of WWE
executives working in its Connecticut headquarters. Third, the residence and
place of business of the parties favors Connecticut. WWEs principal place of
business at all relevant times was in Connecticut. Although Brian Knighton died
in Maryland, he resided in Pennsylvania during the course of his relationship with
WWE and notices were sent to his address in Pennsylvania pursuant to his
Booking Contract. See Ex. B 13.6. In fact, his most recent address on file with
WWE was in Louisville, KY. Fourth, the relationship between the parties favors
Connecticut because WWEs headquarters are in Connecticut, Brian Knighton
dealt extensively with WWE personnel in Connecticut, and his Booking Contract
was made in Connecticut and governed by Connecticut law. See id. at 13.7.
Application of Connecticut law also would promote the forums policy of
protecting domiciliaries from stale claims and would protect the justified
expectations of WWE. See Stephens, 162 F. Supp. 2d at 43-44.
13

Case 3:15-cv-01074-VLB Document 233 Filed 10/19/16 Page 28 of 90

*2 (Conn. Super. Aug. 7, 2007). Section 52-555 may serve as a bar to a wrongful
death claim even if an injured victim could not have known that he or she had a
claim against the alleged tortfeasor until after the limitation period had expired.
Greco v. United Techs. Corp., 277 Conn. 337, 353 (2006).
[B]ecause there is no right to recovery for wrongful death at common law,
the statute of limitations provision of the . . . Connecticut wrongful death statute,
is a substantive element of the right itself. Stephens, 162 F. Supp. 2d at 42
(internal quotation marks omitted). The limitations period contained within 52555 is a jurisdictional prerequisite which cannot be waived and which must be
met in order to maintain an action under 52-555. Greco, 277 Conn. at 349-50
(citation omitted). As a jurisdictional condition of the cause of action, the
plaintiff bears the burden of showing that the wrongful death claims were
instituted within the limitation period of the statute. Angersola v. Radio. Assocs.
of Middletown, P.C., No. MMXCV146012179, 2015 WL 5626267, at *3 (Conn. Super.
Aug. 20, 2015); see also Fort Trumbull Conservancy, LLC v. City of New London,
265 Conn. 423, 430 n.12 (2003) ([P]laintiff bears the burden of proving subject
matter jurisdiction, whenever and however raised.). Plaintiffs make no such
showing here.14
Count VI alleges, implausibly, that WWEs acts or omissions during Brian
Knightons brief tenure with WWE ending in 2005 caused him to develop

14

Because a motion to dismiss for failure to file suit within the time limits of 52555 is a challenge to the Courts subject matter jurisdiction, the Court may
consider evidence outside the pleadings, like Knightons Booking Contract, in
resolving this Motion. See Makarova v. U.S., 201 F.3d 110, 113 (2d Cir. 2000) (In
resolving a motion to dismiss for lack of subject matter jurisdiction under Rule
12(b)(1), a district court . . . may refer to evidence outside the pleadings.).

14

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debilitating brain diseases and conditions which somehow led to his death from a
drug overdose a decade later. See Compl. 1-7, 495. The latest date on which
WWE could have committed any act or omission with respect to Brian Knighton
is in 2005. Id. 93.15 Because Knighton was required to bring any claim by 2010
at the latest, and the Complaint was not filed until July 18, 2016, his wrongful
death claim is time-barred.
Any survivor claims are also time-barred. Section 52-594, the survival
statute, provides that if the limit of time to bring the decedents action has not
elapsed at the time of the death, an action may be instituted within one year from
the date of death. Girard v. Weiss, 43 Conn. App. 397, 418 (1996). Because
Knightons claims were all time-barred prior to his death, there are no survivor
claims that can be asserted by his estate after his death.
6.

The Claim Seeking a Declaratory Judgment of Misclassification Is


Time-Barred______________________________________________

As noted, the applicable statute of limitations for a declaratory judgment


count is determined by the nature of the underlying claim asserted. See 118 E.
60th Owners, Inc., 677 F.2d at 202. Plaintiffs claim seeking a declaratory
judgment of misclassification (Count I) is time-barred by either the statute of
repose for tort actions in C.G.S. 52-577 or the statute of limitations for contract
actions in C.G.S. 52-576.
Count I alleges that WWE engaged in a scheme to defraud each of the
Plaintiffs by intentionally misclassifying them as independent contractors.

15

Knighton performed for WWE in 2005 without a Booking Contract and Knighton
did not perform in any WWE matches under his May 2006 Booking Contract.
15

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Compl. 325. To the extent the claim in Count I sounds in fraud, it is subject to
the three-year statute of repose in 52-577. See Wells v. FedEx Ground Package
Sys., Inc., No. 4:10CV2080 JCH, 2011 WL 1769665, at *8 (E.D. Mo. May 9, 2011)
(applying fraud limitations period to a claim seeking a declaratory judgment that
the defendant unlawfully classified the plaintiffs as independent contractors
based on alleged fraudulent misrepresentations). Plaintiffs allege that the
misclassification was achieved by the presentation to the Plaintiffs of boilerplate
Booking Contracts. Compl. 326. Since the Booking Contracts were executed
by Plaintiffs far more than three years before the filing of the Complaint, Count I
is time-barred. See Ex. A.
Even if Count I were deemed to be a contract-based claim, it still would be
time-barred. No action for an account, or on any simple or implied contract, or
on any contract in writing, shall be brought but within six years after the right of
action accrues. C.G.S. 52-576. [T]he cause of action is complete at the time
the breach of contract occurs, that is, when the injury has been inflicted. Amoco
Oil Co. v. Liberty Auto & Elec. Co., 262 Conn. 142, 153 (2002). Although the
application of this rule may result in occasional hardship, [i]t is well established
that ignorance of the fact that damage has been done does not prevent the
running of the statute, except where there is something tantamount to a
fraudulent concealment of a cause of action. Id. (internal quotation marks
omitted). The true test is to establish the time when the plaintiff first could have
successfully maintained an action. Id. Here, if the claims are contract claims,
______________________
Plaintiffs Complaint confirms this, alleging only that Knighton performed for
WWE in 2005. See Compl. 93.
16

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the alleged injuries occurred when the Booking Contracts classified Plaintiffs as
independent contractors. See Levy, 2009 WL 455258, at *4 (holding
misclassification claims arose at the inception of the plaintiffs contracts).16
Because the Booking Contracts were all executed more than six years before the
filing of the Complaint, Count I also would be time-barred under the statute of
limitations for contract-based claims.17 See Ex. A.
The Levy case is directly on point. In Levy, three former WWE performers
claimed that they were misclassified as independent contractors. This Court held
that their claims were barred by the six-year statute of limitations running from
the execution of their Booking Contracts.
With respect to the claim of lost incidents and benefits of
employment, the claim can be traced to the pleading that defendant
mischaracterized plaintiffs status. That occurred at the inception of
the three contracts . . . . As the mischaracterizations are pled, and
found, in the Booking Contracts, though the full import thereof may
not then have been apparent, from that date they knew of their status
from the Booking Contracts and that they knew they were not to be
regarded as employees. State law claims of breach of contract and
unjust enrichment accrue when injury is inflicted without regard to a
plaintiffs knowledge of injury being sustained. On these facts, none
of the inception of the rights claimed in the First and Second Counts,
as pled, occurred within the six years of the complaint and are
barred.
Id. at *4 (internal citations omitted). Here, Plaintiffs allege that misclassification

16

The Court can consider documents that are integral to the Complaint, including
Plaintiffs Booking Contracts, in connection with the limitations analysis. See
Levy, 2009 WL 455258, at *1.
17
The Complaint alleges that many Plaintiffs performed for WWE as jobbers or
enhancement talents without Booking Contracts. See, e.g., Compl. 71, 85,
107-09. These Plaintiffs obviously cannot plausibly allege that they were
misclassified as independent contractors in the Booking Contracts. Indeed, the
Complaint admits that many Plaintiffs were not wrestling under a Booking
Contract but under a handshake deal in which the only specified term was that
17

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occurred at the onset because the Booking Contract is devoted to controlling


every aspect of the Wrestlers work, thus rendering them unquestionably
employees. Compl. 632.A. Plaintiffs claim seeking a declaratory judgment of
misclassification therefore is time-barred for the same reasons as in Levy.18
Indeed the claims here are even more stale than in Levy. Most of these Plaintiffs
stopped performing for WWE before the plaintiffs in Levy. See Ex. A.
7.

The Claim Seeking a Declaratory Judgment that Plaintiffs Contracts


Were Unconscionable Is Time-Barred___________________________

Any claim seeking a declaratory judgment that Plaintiffs now-terminated


Booking Contracts were unconscionable (Count IV) is also time-barred. Count IV
alleges that the Booking Contracts were procured by fraud and duped Plaintiffs
into believing that they did not have the rights of employees under federal and
state statutes. See Compl. 471-72. Because Count IV sounds in fraud, it is
subject to the three-year statute of repose in 52-577 running at the latest from
the date of execution of the Booking Contracts. Because the Booking Contracts
were executed by Plaintiffs more than three years before the filing of the
Complaint, the unconscionability claim is time-barred. See Ex. A.
If Count IV were deemed to assert a contract-based claim, it would be
subject to the six-year statute of limitations in 52-576 running from the date of
execution of the Booking Contracts. See Ackoff-Ortega v. Windswept Pac. Entmt

______________________
a Wrestler would show up at the appointed time and place and perform as
directed for a specified payment. Id. 640.
18
Some Plaintiffs entered into multiple Booking Contracts with WWE over the
course of several years. However, under Levy, any claims arising out of
defendant[s] control of plaintiffs services accrued at the start of their services.
Levy, 2009 WL 455258, at *4. Accordingly, Plaintiffs claims began to accrue with
18

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Co., 120 F. Supp. 2d 273, 284 (S.D.N.Y. 2000) (unconscionability claim accrues
upon execution of the challenged agreement); Yerkovich v. MCA Inc., 11 F.
Supp. 2d 1167, 1173 (C.D. Cal. 1997) (unconscionability claim accrues at the
moment when the allegedly unconscionable contract is formed). Because the
Booking Contracts were all executed by Plaintiffs more than six years before the
filing of the Complaint, the unconscionability claim is time-barred regardless of
which statute of limitations applies. See Ex. A.
8.

The Unjust Enrichment and Accounting Claims Are Time-Barred

Plaintiffs unjust enrichment claim (Count XVII) and accounting claim


(Count XVI) are also time-barred under either 52-577 or 52-576. Plaintiffs
unjust enrichment and accounting claims are equitable claims that are timebarred because they are based on the same factual allegations as their timebarred legal claims. Certain Underwriters at Lloyds, London v. Cooperman, 289
Conn. 383, 407 (2008). [W]here a party seeks equitable relief pursuant to a cause
of action that would also allow that party to seek legal relief, concurrent legal and
equitable jurisdiction exists, and the statute of limitations that would be
applicable to bar the legal claim also applies to bar the equitable claim. Gager v.
Sanger, 95 Conn. App. 632, 641-42 (2006).
Count XVII alleges that Defendants were unjustly enriched by their practice
of misrepresenting Plaintiffs employment, fraudulently concealing and omitting
the long-term injuries the Plaintiffs suffered, and failing to uphold their duty to
provide Plaintiffs with necessary care and treatment. Compl. 666. Count XVI
______________________
the execution of their first Booking Contract from which they were on notice that
they would be treated as independent contractors.
19

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seeks an accounting and disgorgement of profits that Defendants earned from


the Booking Contracts because Plaintiffs claim that they were procured by fraud
and improper conduct. Id. 658, 662, 664.
Because these allegations sound in fraud, they are barred under the threeyear statute of repose in 52-577 for the same reasons as Plaintiffs legal claims.
See Blue Cross of Cal. v. Smithkline Beecham Clinical Labs., Inc., 108 F. Supp. 2d
116, 124-25 (D. Conn. 2000) (holding unjust enrichment claim time-barred under
three-year statute of repose for fraud); Litvack v. Lehrer, No. 3:06-cv-00767
(WWE), 2007 WL 322506, at *4 (D. Conn. Jan. 31, 2007) (holding unjust enrichment
claim barred under three-year statute of repose for tort claims).
Alternatively, these claims are at least time-barred under the six-year
statute of limitations for contract actions in 52-576. See Lyle v. James, No. 3:12CV-00959 (VLB), 2014 WL 2881405, at *7 (D. Conn. June 25, 2016) (Connecticut
courts have applied the six year statute of limitations for contract actions to
unjust enrichment claims.); Baghdady v. Baghdady, No. 3:05-cv-1494 (AHN),
2008 WL 4630487, at *9 (D. Conn. Oct. 17, 2008) (An action for an accounting is
governed by a six-year statute of limitations.).
Indeed, this Court in Levy found unjust enrichment claims time-barred
because such claims accrued at the start of the plaintiffs services and they
executed their Booking Contracts more than six years prior to filing suit. See
Levy, 2009 WL 455258, at *4. The unjust enrichment and accounting claims here
are time-barred for the same reason. See Ex. A.
9.

The Intentional Deprivation of Statutory Rights And Mandatory


Reporting Claims Are Time-Barred

20

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Among the statutory rights the Occupational Safety and Health Act
(OSHA), the National Labor Relations Act (NLRA), or Family and Medical
Leave Act (FMLA) of which Plaintiffs claim they were deprived (Count XIII),
only the FMLA provides for a private right of action.19 As discussed in Section
III.C.1.d infra, no Plaintiff has asserted such a specific claim under Section 107(a)
of the FMLA. But it would be time-barred in any event.
The FMLA provides that an action may be brought under this section not
later than 2 years after the date of the last event constituting the alleged violation
for which the action is brought. 29 U.S.C. 2617(c)(1). In the case of a willful
violation, such action may be brought within 3 years of the date of the last event
constituting the alleged violation for which such action is brought. Id. at
2617(c)(2). Thus, the two-year statute of limitations can be extended to three
years in the event of a willful violation. See Porter v. N.Y. Univ. Sch. of Law, 392
F.3d 530, 531-32 (2d Cir. 2004).
The Complaint generally asserts that unspecified Plaintiffs were deprived
of FMLA rights because their Booking Contracts misclassified them as
independent contractors. See Compl. 589. The latest date that an FMLA
violation could have occurred was the last day a Plaintiff performed for WWE.
See Ungerleider v. Fleet Mortg. Grp. of Fleet Bank, 329 F. Supp. 2d 343, 362 (D.
Conn. 2004) (limitations period began to run at the latest when plaintiff resigned).
Likewise, Plaintiffs claim seeking a declaratory judgment of mandatory

19

The substantive defects inherent in these non-existent causes of action,


including the lack of private rights of action to enforce these statutes, are
discussed in Section III.C.1 infra.

21

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reporting (Count XIV) is time-barred. As with Count XIII, Count XIV is a nonexistent cause of action brought in lieu of statutory claims arising from purported
misclassification. Plaintiffs allege that OSHA, the FMLA, and the Workers
Compensation Statutes provide that employees shall receive certain statutory
notices and that injuries and workplace conditions be reported but [t]hose
notices and the benefits which the Plaintiffs would have received but for the fraud
and deception of the Defendants, were never received. Compl. 603-04. Even if
this stated an independent cause of action, it would be time-barred because no
Plaintiff performed for WWE within three years of the filing of the Complaint.20
10.

The Complaint Fails to Allege Any Basis for Equitable Estoppel


Tolling________________________________________________

Since all of the claims asserted by Plaintiffs are time-barred on their face,
each Plaintiff must plead facts sufficient to establish that the applicable statutes
of limitation and repose should be tolled as to them. See OBG Technical Servs.,
503 F. Supp. 2d at 504-05. Plaintiffs implicitly acknowledge that all of their claims
are time-barred absent tolling in asserting equitable estoppel (Count XV). No
Plaintiff, however, has alleged facts sufficient to establish equitable estoppel and
none alleges any other basis for tolling.
Equitable estoppel is invoked in cases where the plaintiff knew of the
existence of his cause of action but the defendants conduct caused him to delay
in bringing suit. Cerbone v. Intl Ladies Garment Workers Union, 768 F.2d 45,

20

For the same reasons, the declaratory judgment claim in Count II would be
time-barred to the extent that it alleges that the Defendants intentionally
deprived the Plaintiffs of notices required by state and federal statutes which
would have afforded them a safer working environment and medical benefits.
See Compl. 376(e).

22

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49-50 (2d Cir. 1985). When raised to defeat limitations, equitable estoppel
requires a plaintiff to show that the defendant misrepresented the length of the
limitations period or in some way lulled the plaintiff into believing that it was not
necessary for him to commence litigation. Id. at 50.21
To invoke equitable estoppel, a plaintiff must show that: (1) the defendant
made a definite misrepresentation of fact, and had reason to believe that the
plaintiff would rely on it; and (2) the plaintiff reasonably relied on that
misrepresentation to his detriment. Ellul, 774 F.3d at 802 (internal quotation
marks omitted). [A] person who claims an estoppel must show that he has
exercised due diligence to know the truth, and that he not only did not know the
true state of things but also lacked any reasonably available means of acquiring
knowledge. Intl Strategies Grp., Ltd. v. Ness, 645 F.3d 178, 185 (2d Cir. 2011).22
Federal courts require a plaintiff to plead each element of equitable estoppel
with particularity. Twersky v. Yeshiva Univ., 993 F. Supp. 2d 429, 443 n.5
(S.D.N.Y. 2014).
Count XV alleges that the statutes of limitation should be tolled by
equitable estoppel because Defendants conduct was so egregious that to allow
the Defendants to assert the affirmative defense of any otherwise applicable
statute of limitations would create an unconscionable injustice and

21

Equitable estoppel applies in cases where, for example, the defendant lulls the
plaintiff into not filing suit with assurances that she will settle the case. Ellul,
774 F.3d at 802.
22

Equitable estoppel cannot toll the statute of limitations under the FMLA. See
Palenske v. Westar Energy, Inc., No. 04-4167-JAR, 2005 WL 2455750, at *2 (D. Kan.
Oct. 5, 2005) ([T]he FMLA does not provide for tolling of the statute of
23

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consequently reward the Defendants for conducting a carefully crafted and


wrongful course of fraudulent conduct intentionally duping the Plaintiffs into
believing that they had no rights available. Compl. 609. Unrestrained rhetoric,
however, is not a viable basis for equitable estoppel for multiple reasons.
First, not a single Plaintiff alleges that he/she knew of a cause of action.
On the contrary, Plaintiffs as a group claim that they did not know of their causes
of action. See Compl. 609-10, 644. Thus, equitable estoppel is unavailable.
See Conklin v. Maidenbaum, No. 12-CV-3606 (ER), 2013 WL 4083279, at *8
(S.D.N.Y. Aug. 13, 2013) ([T]he doctrine of equitable estoppel is unavailable to
Plaintiffs because they do not assert that they were aware of their claims but
delayed in bringing suit because of Defendants misconduct; rather, they assert
that they were not aware of their claims.).
Second, no Plaintiff can rely on the doctrine of equitable estoppel because
none alleges that Defendants made any misrepresentations regarding the
limitations period, that Defendants lulled any Plaintiff into refraining from filing
suit, or that any Plaintiff reasonably relied on any such misrepresentations.23
Plaintiffs could not plausibly assert such allegations in any event because WWEs
position that the statute of limitations had run on similar misclassification claims
was set forth in publicly available pleadings and a judicial decision from this
______________________
limitations.). Equitable estoppel also cannot modify the time limitations in the
Connecticut wrongful death statute. See Greco, 277 Conn. at 349.
23

The Complaint fails to make any particularized allegations concerning any


misrepresentation by Defendants. It only makes generalized allegations without
any specifics as to how each of the 53 plaintiffs was individually misled or
detrimentally relied on any such allegations. See Twersky, 993 F. Supp. 2d at 443
n.5 (requiring such allegations to be made with particularity).
24

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Court over seven years ago. See Levy, 2009 WL 455258, at *4.
Plaintiffs attempt to claim that the alleged misclassification was
egregious or an unconscionable injustice such that WWE should be equitably
estopped from asserting limitations. See Compl. 609, 633, 644-48, 654. The
Second Circuit rejected a similar argument in a case of incomparably far more
serious allegations of coercion and abuse. See Ellul, 774 F.3d at 802. In Ellul, the
defendants allegedly took plaintiffs away from their families as children, falsely
told them that their parents had died or abandoned them, and transported them to
Australia, where plaintiffs and other children were made to work essentially as
slaves, for long hours without pay, and were subjected to extreme physical and,
in some cases, sexual abuse. Id. at 793. The Second Circuit nevertheless
rejected arguments that the defendants should be equitably estopped from
asserting limitations defenses because the plaintiffs do not assert that
defendants made any misrepresentations that caused them to delay bringing this
lawsuit once the facts became or should have become known to them. Id. at
802.
Third, Plaintiffs have failed to adequately allege a basis for equitable
estoppel because they do not allege any due diligence in pursuing their claims.
Plaintiffs do not even generally allege when they discovered their causes of
action or what actions they took once discovered let alone specific allegations
of diligence by each Plaintiff. Ordinarily, one might wonder how it is that 53
former performers all discovered their causes of action at the same time despite
performing decades apart, and all managed to retain the same counsel to bring

25

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suit at the same time. Here, there is no need to do so because the answer is
obvious all were solicited to seek a pay day from WWE by Kyros. Significantly,
however, Plaintiffs do not allege any diligence for years or even decades after
they performed for WWE nor allege that WWE prevented them from exercising
such diligence. Equitable estoppel is, therefore, not available. See Intl
Strategies Grp., Ltd., 645 F.3d at 185 (rejecting equitable estoppel where
allegations of diligence were implausible).24
C.

In Addition to Being Time-Barred, All of Plaintiffs Misclassification Claims


Are Substantively Defective and Should Be Dismissed
_____
Counts I, II, XIII,25 and XIV of the Complaint allege that WWE violated certain

federal statutes by misclassifying Plaintiffs as independent contractors instead of


employees (Misclassification Claims). Plaintiffs Misclassification Claims fail
because (1) they are asserted under statutes that do not afford a private right of
action; (2) the declaratory judgment counts do not present a justiciable case or
controversy;26 and (3) the contracts at issue have been fully performed for years.
1.

There Is No Cause of Action for Misclassification (Count I),


Declaratory Relief-Liability (Count II), Intentional Deprivation of
Statutory Rights (Count XIII) or Mandatory Reporting (Count XIV)

There is no private right of action for Plaintiffs Misclassification Claims.

24

Although Plaintiffs assert a facially-defective substantive claim for fraudulent


concealment (Count VII), which this Court previously ruled is not a recognized
cause of action under Connecticut law, Plaintiffs do not even attempt to plead
fraudulent concealment as a basis for tolling, much less with the particularity
required by Rule 9(b). OBG Technical Servs., 503 F. Supp. 2d at 504-05.
25
Count XIII borrows its premise from 42 U.S.C. 1983, but lacks an allegation
that WWE operated under color of state law. See Am. Mfrs. Mutual Ins. Co. v.
Sullivan, 526 U.S. 40, 50 (1999) ([T]he under-color-of-state-law element of 1983
excludes from its reach merely private conduct, no matter how discriminatory or
wrongful.).
26
Counts I, II, and XIV seek declaratory relief under to 28 U.S.C. 2201.

26

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The statutorily-mandated administrative remedy applicable to such claims is a


jurisdictional bar and requires dismissal under Rules 12(b)(1) and 12(b)(6).
a.

Plaintiffs FICA Tax Claims Fail

Plaintiffs allege that WWE used Booking Contracts to dupe them into
believing that they had no right to [r]equire WWE to contribute to State and
Federal employment taxes as is required by law with respect to employees; thus
resulting in significant additional expense to Plaintiffs. Compl. 327. The
significant additional expense[s] Plaintiffs seek to recover are alleged
overpayments of Federal Insurance Contributions Act (FICA) taxes. Indeed, the
Complaint admits that Plaintiffs seek a refund of such taxes. See Compl.
612-13 (seeking the unjust measure of taxes the fraud cost the Plaintiffs,
together with appropriate interest thereon.) (emphasis added).
There is no private right of action, however, to enforce alleged violations of
the Internal Revenue Code. U.S. ex. rel. Lissack v. Sakura Global Capital Mkts.,
Inc., 377 F.3d 145, 153 (2d Cir. 2004) ([T]he IRS has exclusive jurisdiction over
tax matters.); Levy, 2009 WL 455258, at *2 ([T]here is no private action to
enforce the tax code.); Le Bouteiller v. Bank of N.Y. Mellon, No. 14 Civ. 6013
(PGG), 2015 WL 5334269, at *8 (S.D.N.Y. Sept. 11, 2015) ([C]ourts in this Circuit
have repeatedly held that there is no private right of action to enforce violations
of the [Internal Revenue Code].). As the U.S. Supreme Court has explained,
Section 7422(a) of the Internal Revenue Code provides:
[n]o suit . . . shall be maintained in any court for the recovery of any
internal revenue tax alleged to have been erroneously or illegally
assessed or collected, or of any penalty claimed to have been
collected without authority, or of any sum alleged to have been
excessive or in any manner wrongfully collected, until a claim for
27

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refund . . . has been duly filed with the IRS.


United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 7 (2008) (emphasis in
original) (internal quotations omitted) (Five anys in one sentence and it begins
to seem that Congress meant the statute to have expansive reach.). Section
7422 forecloses any state law cause of action that is, in substance, a claim for
overpayment of federal taxes.27 Likewise, courts in this Circuit have uniformly
dismissed claims irrespective of their labels that substantively seek to
recover overpaid taxes.28 Federal courts across the country are in accord.29

27

See Berera v. Mesa Med. Grp., PLLC, 779 F.3d 352, 354 (6th Cir. 2015) (affirming
dismissal of state law FICA claims in disguise which did not comply with
Section 7422(a)); Chalfin v. St. Josephs Healthcare Sys., 629 Fed. Appx. 367, 368
(3d Cir. 2015) (affirming dismissal of negligence claims under Section 7422 as
federal tax refund claim in state law garb.); Johnson v. S. Farm Bureau Life Ins.,
No. 99-30808, 2000 WL 553958, at *1 (5th Cir. Apr. 10, 2000) (holding that plaintiffs
state law claims must likewise fail, since the essence of his claims is that he
overpaid federal social security taxes as a result of misclassification); Sigmon v.
Southwest Airlines Co., 110 F.3d 1200, 1204 (5th Cir. 1997) (The exclusive
remedy provided by the Internal Revenue Code thus preempts the appellants
state-law claims against a private entity.); Umland v. PLANCO Fin. Servs., Inc.,
542 F.3d 59, 65 (3d Cir. 2008) (precluding state-law claims for damages based on
classification as an independent contractor rather than an employee.).
28
See Ferro v. Metro. Ctr. for Mental Health, No. 13 Civ. 2347(PKC), 2014 WL
2039132, at *3 (S.D.N.Y. May 16, 2014) (finding that plaintiffs lacked standing to
bring RICO, FICA, and state law fraud claims for alleged misclassification as
independent contractors because Section 7422 is an exclusive remedy a bar
[sic] to actions against private defendants.); Matthew v. RCN Corp., No. 12 Civ.
0185(JMF), 2012 WL 5834917, at *4 (S.D.N.Y. Nov. 14, 2012) (dismissing plaintiffs
state law claims as preempted because courts have made clear that the statute
[7422(a)] applies to any tax refund suit, whether or not labeled as such and
whether or not under federal law.); Lehman v. USAIR Grp., Inc., 930 F. Supp. 912,
916 (S.D.N.Y. 1996) (The state law claims [conversion and unjust enrichment]
against the airlines are expressly pre-empted by 7422 which prohibits such
suits for disguised refunds of the taxes.); Spilky v. Helphand, No. 91 CIV 3045
(PKL), 1993 WL 159944, at *4 (S.D.N.Y. May 11, 1993) (finding the plaintiffs claims
of misclassification under the Internal Revenue Code so patently without merit
as to warrant dismissal . . . for lack of subject matter jurisdiction.); Deleu v.
Scaife, 775 F. Supp. 712, 716-18 (S.D.N.Y 1991) (granting motion to dismiss for
lack of private right of action where plaintiff alleged misclassification resulted in
his employers failure to pay FICA and unemployment taxes on his behalf);
DiGiovanni v. City of Rochester, 680 F. Supp. 80, 82-83 (W.D.N.Y. 1988) (holding
FICA did not create private right of action for employee).

28

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Significantly, Judge Dorsey in Levy specifically addressed and rejected the


very same claims now being asserted against WWE by three former performers
seeking class action status. Judge Dorsey characterized their claim as alleging
that they are mischaracterized as independent contractors when by the nature of
the relationship they are, by operation of the law, employees. Levy, 2009 WL
455258, at *1. Judge Dorsey concluded that there is no private action to enforce
the tax code. Id. at *2.30
Against the weight of these authorities, Plaintiffs feebly attempt to
distinguish their claims by stating that we are not talking about a withholding
that would have occasioned a refund to Plaintiffs as in Levy, but an illegal shifting
of taxes mandated be paid by an employer, on behalf of an employee. Compl.
______________________
29
See McDonald v. S. Farm Bureau Life Ins. Co., 291 F.3d 718, 726 n.3 (11th Cir.
2002) (granting motion to dismiss because FICA affords no private right of action
to challenge employment classification); Lowers v. Valley Diagnostic Labs, Inc.,
Civil Action No. 2:16-cv-02785, 2016 WL 3211979, at *3 (S.D.W.Va. June 9, 2016)
(The plaintiff may not pursue his claim for FICA taxes against his employer
under the guise of a state law claim or otherwise.); Glanville v. Dupar, Inc., 727 F.
Supp. 2d 596 (S.D. Tex. 2010) (dismissing declaratory judgment and state law
claims of misclassification for lack of a private right of action, standing, and
preemption by Section 7422); Gifford v. Meda, No. 09-cv-13486, 2010 WL 1875096,
at *10 (E.D. Mich. May 10, 2010) ([T]he exhaustive regulatory scheme embodied
in the IRC, FICA and the SSA for resolution of employee misclassification claims
forecloses a private right of action for such claims.); Salazar v. Brown, 940 F.
Supp. 160, 163-64 (W.D. Mich. 1996) (dismissing request for declaratory judgment
of misclassification because workers had no private right of action under FICA,
noting Congress has established a comprehensive administrative system to
handle the very claims that plaintiffs seek, improperly, to bring in court.).
30
Judge Dorsey further found that there is no basis for finding resulting losses
from WWEs failure to withhold federal taxes because [b]y not withholding,
defendant left plaintiff in possession of the amount of any of their compensation
which, if obliged, an employer was required to turn over to the government and
plaintiffs benefitted thereby. Id. Indeed, Judge Dorsey pointedly criticized the
plaintiffs claims, in terms equally applicable here, noting [t]he allegation of a
deprivation of benefits paid for by such withholding is fabricated of whole cloth
as withholding is subtracted from an employers compensation and paid to the
government for application to an employees tax liability. It accrues no added
earnings which plaintiffs make no claim were not paid in full to them. Id. at *3.

29

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612 (citing Levy, 2009 WL 455258). There is no difference at all, as Plaintiffs


concede that they are seeking what amounts to a tax refund. Id. (The Plaintiffs
cannot now receive a refund of the taxes they were forced to improperly pay
because all requests for refunds must be filed within three years of the filing of
the return.) (emphasis added). Thus, Plaintiffs illegal shift theory has been
widely rejected. See Ferro, 2014 WL 2039132, at *1 (dismissing claim that
employer failed to pay its share of contributions under FICA); McDonald, 291
F.3d at 726 (dismissing claims that misclassification caused employer to not pay
its portion of plaintiffs FICA taxes, causing plaintiffs to overpay FICA taxes);
Johnson, 2000 WL 553958, at *1 (dismissing claim that plaintiffs taxes should
have been split between himself and his alleged employer.); Lowers, 2016 WL
3211979, at *2 (At root, the plaintiff is seeking to recover erroneously assessed
FICA taxes erroneous in the sense that the plaintiff overpaid in the amount his
employer should have paid on the plaintiffs behalf. However styled, such a claim
is squarely within the comprehensive regulatory scheme created by federal tax
statutes, which include numerous administrative procedures designed to
provide relief to individuals like the plaintiff.); Glanville, 727 F. Supp. 2d at 598
(dismissing plaintiffs claims that they paid amounts under FICA and FUTA that
[employer] should have paid and sought repayment.); McElwee v. Wharton, 19 F.
Supp. 2d 766, 768 (W.D. Mich. 1998) (dismissing claims of plaintiff who sued
seeking restitution for the payment of employment taxes which taxes
Defendants should have lawfully paid.).
b.

Plaintiffs National Labor Relations Act Claims Fail

Counts I and XIII allege that WWE violated Plaintiffs rights under the NLRA,
30

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29 U.S.C. 151, et. seq. See Compl. 362 (The Plaintiffs are of course also
deprived of the protections of the [NLRA] as long as they are misclassified as
independent contractors.); Compl. 579 (misclassification of the Plaintiffs . . .
deprived them of the ability to seek to organize and to bargain collectively.).
Plaintiffs NLRA-based claims fail for multiple reasons.
First, Plaintiffs have no private right of action under the NLRA for alleged
unfair labor practices. Local 282, Intl Bhd. of Teamsters, Chauffers,
Warehousemen & Helpers of Am., v. NLRB, 339 F.2d 795, 799 (2d Cir. 1964) (The
question whether the [NLRA] gave private rights to the victims of unfair labor
practices was authoritatively answered in the negative by Amalgamated Utility
Workers v. Consolidated Edison Co., 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738
(1940), only five years after the Act was passed.); Von Maack, 2016 WL 3509338
at *16 (The NLRA does not authorize such a private cause of action.).
Second, Plaintiffs claims are preempted by federal labor law. In San Diego
Bldg. Trades Council, Millmens Union, Local 2020 v. Garmon, the Supreme Court
held that:
Congress has entrusted administration of the labor policy for the
Nation to a centralized administrative agency, armed with its own
procedures, and equipped with its specialized knowledge and
cumulative experience: Congress did not merely lay down a
substantive rule of law to be enforced by any tribunal competent to
apply law generally to the parties. It went on to confide primary
interpretation and application of its rules to a specific and specially
constituted tribunal and prescribed a particular procedure for
investigation, complaint and notice, and hearing and decision,
including judicial relief pending a final administrative order.
359 U.S. 236, 242 (1959) (internal quotations omitted). In Garmon, the Supreme
Court articulated a doctrine of preemption that not only mandates substantive

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preemption by federal labor law in the areas to which it applies, but also protects
the exclusive jurisdiction of the NLRB over matters that are even arguably within
the reach of the NLRA. Bimler v. Stop & Shop Supermarket Co., 965 F. Supp.
292, 297 (D. Conn. 1997). The Complaint alleges that WWEs conduct violated
Section 8 of the NLRA. See Compl. 581-82. When an activity is arguably
subject to 7 or 8 of the Act, the States as well as the federal courts must defer
to the exclusive competence of the [NLRB] if the danger of state interference with
national policy is to be averted. Garmon, 359 U.S. at 245. Under Garmon, the
NLRA preempts Plaintiffs claims. It is inconsequential that Plaintiffs attempt to
recast their claims as torts, as Garmon preemption applies regardless of
whether the state law at issue was tort law of general application [or] specialized
labor relations statutes. Lindsay v. Assn of Profl Flight Attendants, 581 F.3d
47, 57 (2d Cir. 2009) (citing Garmon, 359 U.S. at 244 n.3).
c.

Plaintiffs Occupational Safety and Health Act Claims Fail

In Counts I, II, XIII, and XIV, Plaintiffs claim that their alleged
misclassification as independent contractors deprived them of rights under
OSHA, 29 U.S.C. 651, et seq. Plaintiffs allege that WWE violated OSHA by not
following the strict reporting requirements for injuries (Compl. 563) and not
posting OSHA-required notice posters in Plaintiffs workspaces. Compl.
376(e), 572. However, [u]nder OSHA, employees do not have a private right of
action. Donovan v. Occupational Safety & Health Review Commn, 713 F.2d 918,
926 (2d Cir. 1983); Von Maack v. Wyckoff Heights Med. Ctr., 15 Civ. 3951 ER, 2016
WL 3509338, at *17 (S.D.N.Y. Jun. 21, 2016) ([T]here is no private right of action
for employees to enforce OSHA.) (citing Donovan).
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d.

Plaintiffs Family Medical Leave Act Claims Fail

In Counts I, II, XIII, and XIV, Plaintiffs generically assert that WWE
misclassified them as independent contractors in violation of their FMLA rights.
29 U.S.C. 2601, et seq.; Compl. 327(f), 376(e), 587-99, 605. Plaintiffs FMLAbased claims again fail for at least three substantive reasons.31
First, the FMLA became effective in August 1993 (See Pub. L. 103-3 (Feb. 5,
1993) 405), which is after at least fifteen Plaintiffs had stopped wrestling with
WWE. See Compl. 71, 74, 78, 79, 82, 90, 91, 96, 98, 103, 105, 106, 109, 111, 112.
WWE cannot be liable on any theory under the FMLA as to the fifteen Plaintiffs
who stopped wrestling for WWE before its enactment.
Second, although 107(a) of the FMLA permits any eligible employee
affected to sue an employer for violating 105 which prohibits employers
from interfering with, or restraining the exercise of, any right guaranteed by the
FMLA no Plaintiff has asserted a claim under Section 107(a) because no
Plaintiff can meet the elements for a claim of interference under 105. Among
other things, this would require allegations that a specific Plaintiff (a) was an
eligible employee within the meaning of 107(a), defined as one who: (i) has
been employed by a covered employer for at least 12 months; (ii) worked at least
1,250 hours during the twelve-month period preceding a leave of absence; and
(iii) is employed at a worksite at which the employer has at least 50 employees
within a 75 mile radius; (b) gave notice of intention to take leave; and (c) was
denied benefits under the FMLA. See Graziado v. Culinary Inst. of Am., 817 F.3d

31

As noted, any private right of action under the FMLA is also time-barred.

33

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415, 424 (2d Cir. 2016); 29 U.S.C. 2611(2); 29 C.F.R. 825.102.


Third, instead of asserting a claim under 107(a), Plaintiffs FMLA-based
claims are improperly based on (a) attempting to enforce the FMLAs notice
requirement, and (b) WWEs alleged violation of certain record keeping
provisions of the FMLA. Compl. 327(g), 376(e), 592-98, 605. As to the former,
there is no private right of action to enforce the FMLA. See Jessie v. Carter
Health Care Ctr., Inc., 926 F. Supp. 613, 617 (E.D. Ky. 1996) ([A] private right of
action does not exist for a violation of the [FLMA] notice requirement.). As to
the latter, there is no requirement under FMLA for employers to regularly furnish
reports to the government. Instead, the FMLA requires an employer to provide
records when requested by the U.S. Department of Labor. See 29 C.F.R.
825.500(a) (These regulations establish no requirement for the submission of
any records unless specifically requested by a Departmental official.).
2.

Plaintiffs Declaratory Judgment Claims Do Not Present A Justiciable


Case or Controversy_________________________________________
a.

Plaintiffs Declaratory Judgment Claims Are Not Supported By


Sources of Substantive Rights___________________________

Plaintiffs declaratory judgment claims should be dismissed because they


lack supporting sources of substantive rights; as such, they do not present a
justiciable case or controversy. Article III is a limit on judicial power; the
existence of a case or controversy is a prerequisite to the exercise of that power.
In re Joint E. & S. Dist. Asbestos Litig., 14 F.3d at 730. The Declaratory
Judgment Act permits a district court to exercise jurisdiction over a proposed
declaratory judgment action when an actual controversy exists. McCullough v.
World Wrestling Entmt, Inc., No. 3:15-cv-1074 (VLB), 2016 WL 3962779, at *12 (D.
34

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Conn. July 21, 2016) (McCullough II). [A] request for relief in the form of a
declaratory judgment does not by itself establish a case or controversy involving
an adjudication of rights. Inclusion First, LLC v. Macy, Civil No. 3:14-cv-1786
(AWT), 2015 WL 8476329, at *8 (D. Conn. Sept. 23, 2015). [T]he Declaratory
Judgment Act itself is a procedural vehicle, and cannot form an independent
basis for subject matter jurisdiction. DME Constr. Assoc., Inc. v. United States,
No. 15-cv-4322 (ADS) (SIL), 2016 WL 2992131, at *3 (E.D.N.Y. May 21, 2016).
Accordingly, when seeking declaratory relief, in order to sustain its
threshold burden, the Plaintiff must demonstrate that the other statutes it relies
upon as sources of substantive federal rights . . . provide a sufficient
jurisdictional basis. Id. The claim, or the legal theory under which
[declaratory] relief is sought, must be based on other laws that the defendant
allegedly violated in order to receive this relief. In re MTBE Prod. Liab. Litig., 247
F.R.D. 420, 422-23 (S.D.N.Y. 2007).
This is because declaratory judgment is a remedy, not a cause of action or
independent source of substantive rights. Springfield Hosp. v. Hofmann, 488 Fed
Appx. 534, 535 (2d Cir. 2012) (holding that a plaintiff cannot maintain an action
for a declaratory judgment without an underlying federal cause of action).
Absent an underlying source of substantive rights, Plaintiffs declaratory relief
actions are merely prayer[s] for relief, standing alone which simply do[ ] not
satisfy the requirement that a case or controversy exist[s]. Id.
As discussed above, Plaintiffs Misclassification Claims assert federal tax
law, NLRA, OSHA and FMLA claims under statutes that do not confer Plaintiffs

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with any substantive rights. Such claims, therefore, cannot support declaratory
relief actions.32 See McDonald, 291 F. 3d at 722 (affirming dismissal of
declaratory action on the district courts reasoning that without the FICA claim . .
. there was no federal jurisdiction because the Declaratory Judgment Act does
not provide an independent source of jurisdiction.); Glanville, 727 F. Supp. 2d at
602 ([T]he plaintiffs cannot recast their claims of FICA and FUTA violations, for
which there is no private right of action, as one for declaratory judgment and
injunctive relief.); Salazar, 940 F. Supp. at 162 (dismissing misclassification suit
which sought declaratory judgment because FICA does not create a private right
of action); DiPonio Const. Co. Inc. v. Intl Union of Bricklayers and Allied
Craftworkers, 739 F. Supp. 2d 986, 993-94 (E.D. Mich. 2010) (dismissing
declaratory judgment action for lack of subject matter jurisdiction because claim
arguably implicated Section 8 of the NLRA, triggering Garmon preemption and
the NLRBs exclusive jurisdiction). Accordingly, the Court should dismiss
Plaintiffs declaratory relief claims.33
b.

Plaintiffs Lack Standing Because The Declarations They Seek


Can Have No Effect on Existing Rights

Standing is a jurisdictional limitation. See Mahon v. Ticor Title Ins. Co., 683
32

The Declaratory Judgment Act expressly excludes from its scope declarations
of rights with respect to Federal taxes other than actions brought under section
7428 of the Internal Revenue Code of 1986. 28 U.S.C. 2201. Section 7428 does
not apply here; it concerns declaratory judgments relating to the status and
classification of organizations under section 501(c)(3). 26 U.S.C. 7427.
33

In Count II, Plaintiffs essentially seek a declaration establishing the elements of


their substantive claims. Because Plaintiffs substantive claims are defective for
the reasons described herein, the request for declaratory relief equally must fail.
In granting WWEs motion to dismiss the Haynes case in its entirety, the Court
previously dismissed a similar declaratory judgment claim that was duplicative of
Haynes substantive counts.
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F.3d 59, 62 (2d Cir. 2012). To have standing, a plaintiff must demonstrate (1) a
personal injury in fact (2) that the challenged conduct of the defendant caused
and (3) which a favorable decision will likely redress. Id. It is well established
that a plaintiff must demonstrate standing for each claim [ ]he seeks to press.
Thus, with respect to each asserted claim, [a] plaintiff must always have suffered
a distinct and palpable injury to [him]self. Id. at 64 (citations omitted) (emphasis
in original). Each plaintiff bears the burden of establishing that he/she has
standing for each claim and for each form of relief claimed. Mehr v. Fedn Intl
de Football Assoc., 115 F. Supp. 3d 1035, 1055 (N.D. Cal. 2015) (citing
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)).
Here, Plaintiffs make no attempt to establish standing of each Plaintiff for
each claim, choosing instead a blunderbuss-style of pleading at odds with these
clear legal requirements. None of the Plaintiffs has wrestled for WWE in years
and, in some instances, decades. The last Plaintiff to have worked for WWE left
approximately 5 years ago. Consequently, Plaintiffs lack standing to seek a
declaration of their historical employment status when that declaration can have
no effect on any existing rights. See Chiste, 756 F. Supp. 2d at 407 (There is no
basis for declaratory relief where only past acts are involved.). Failing to allege
that the plaintiffs will again suffer injury from the defendants purportedly illegal
behavior deprives the plaintiffs of standing. Glanville, 727 F. Supp. 2d at 602.
Glanville is on all fours with this case. In Glanville, the plaintiffs alleged
that their misclassification as independent contractors resulted in an
overpayment of employment taxes to the IRS. The court dismissed plaintiffs

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misclassification claims because plaintiffs no longer ha[d] any employment


relationship with [employer], they [could not] allege future harm from the alleged
misclassification. Id.34
As in Glanville, all Plaintiffs in this case no longer perform for WWE and
never will again. See Compl. 60-112. There is no allegation that any Plaintiff
has any remaining performances due under a Booking Contract. Thus, no
Plaintiff has an existing relationship or current rights that hinges on a ruling as to
their employment classification. In the absence of any such existing relationship
or current rights, there is no actual or substantial controversy, between parties
having adverse legal interests, of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment. McCullough II, 2016 WL 3962779, at *12
(quoting MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007)).
c.

The Court Should Decline to Exercise Declaratory Judgment


Jurisdiction In Any Event

Even if Plaintiffs had alleged a justiciable case or controversy, this Court


should decline to exercise declaratory judgment jurisdiction. See id. (recognizing
that under the Declaratory Judgment Act, a district court must first determine
whether an actual controversy exists and then decide whether it will exercise
jurisdiction over that controversy) (citing Dow Jones & Co. v. Harrods Ltd., 346
F.3d 357, 359 (2d Cir. 2003)). The Second Circuit considers a number of factors in
deciding whether to exercise jurisdiction over a declaratory action, including

34

Similarly, two federal courts recently dismissed claims for injunctive relief
relating to alleged traumatic brain injuries for lack of standing because the
plaintiffs no longer were affiliated with the sports organizations they were suing.
See Mayall v. USA Water Polo, Inc., No. SACV 15-1071 AG, 2016 WL 1254034, at
*2-3 (C.D. Cal. Mar. 30, 2016); Mehr, 115 F. Supp. 3d at 1057-59.

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whether: (1) the judgment will serve a useful purpose in clarifying or settling the
legal issues involved; (2) a judgment would finalize the controversy and offer
relief from uncertainty; (3) the proposed remedy is being used merely for
procedural fencing or a race to res judicata; (4) the use of a declaratory
judgment would increase friction between sovereign legal systems or improperly
encroach on the domain of a state or foreign court; and (5) there is a better or
more effective remedy. Dow Jones, 346 F.3d at 359-60 (citation omitted). Under
these factors, the Court should exercise its discretion to decline declaratory
jurisdiction in this case.
First, a declaratory judgment will serve no useful purpose. A declaration
that WWE should have classified Plaintiffs as employees in the distant past would
be nothing other than an advisory opinion on relationships that ended long ago.
Second, a declaration as to Plaintiffs past employment status will not bring
finality to an ongoing dispute. There is no ongoing relationship between WWE
and any of these Plaintiffs. Litigating decades-old facts will change nothing
regarding the relationship between WWE and past performers.
Third, Plaintiffs declaratory judgment actions are pure procedural fencing.
As outlined above, Plaintiffs have no substantive rights under the statutes that
they claim WWE violated as a result of their misclassification. The fictional
causes of action Plaintiffs bring as action[s] for declaratory relief are being
asserted in an attempt to circumvent the same statutory, administrative, and
regulatory schemes which do not provide them a private remedy.
The fourth factor, concerning friction among sovereign schemes, is not

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implicated.
Fifth, there is not only a much better and more effective remedy, it is the
exclusive remedy. As discussed, Congress designed and implemented
comprehensive administrative and regulatory tax, labor, and workplace safety
schemes to address the precise misclassification-type griveances Plaintiffs bring
far too late in federal court. Entertaining Plaintiffs end-around of these
comprehensive schemes will only encourage future plaintiffs to follow suit. See
In re Joint E. & S. Dist. Asbestos Litig., 14 F.3d at 732 (Keenes [declaratory
judgment] argument . . . is a self-evident evasion of the exclusive legal system
established by Congress for debtors to seek relief. The adoption of Keenes
position would surely lead to further evasion of the Bankruptcy Code as other
debtors sought relief in mandatory class actions.).35
Because each of the factors either weighs in favor of dismissal or is
neutral, the Court should decline to exercise declaratory judgment jurisdiction.
3.

Count IV of Plaintiffs Complaint, Labeled Unconscionable


Contracts, Should Be Dismissed

In Count IV, Plaintiffs purport to pursue another cause of action under the
Declaratory Judgment Act somehow related to an amorphous contention that
certain contracts Plaintiffs entered into with WWE were in some unspecified way
or ways unconscionable. Although less than clear, it appears that the point of
this claim is to make some backdoor challenge to WWEs intellectual property

35

In Count II, Plaintiffs cannot seek a declaration establishing the elements of


their substantive claims. See Umbach v. Carrington Inv. Partns, No. 3:08 CV 484
(EBB), 2009 WL 413346, at *4 (D. Conn. Feb. 18, 2009) (finding declaratory
judgment did not serve[] a useful purpose or [was] the best way to finalize the
controversy where plaintiff alleged overlapping substantive causes of action).

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rights without squarely doing so. See Compl. 473. To the extent Plaintiffs
claims center on their Booking Contracts, under which these Plaintiffs were often
paid hundreds of thousands of dollars, and sometimes millions, those contracts
were all fully performed by Plaintiffs long ago. Aside from bombastic rhetoric,
there are no substantive facts in this count identifying any specific aspect or
provision of any Plaintiffs Booking Contract said to be unconscionable. No
Plaintiff alleges the existence of any specific remaining obligation under the
Booking Contracts they owe to WWE that they wish to avoid by a determination
of unconscionability. This count should be dismissed for numerous reasons,
including, at least, that (1) no unconscionability cause of action exists, (2) even if
unconscionability could support an affirmative cause of action, none of the
individual Plaintiffs have adequately pleaded a plausible claim of
unconscionability, and (3) even if Plaintiffs had pleaded a plausible
unconscionability claim, that claim in this case is demonstrably fraudulent.
a.

There Is No Cause of Action for Unconscionable Contracts

As a threshold matter, Count IV fails to allege an affirmative cause of


action. As noted previously, the DJA is only procedural and does not supply any
substantive cause of action. See supra, pp. 34-36. Plaintiffs must therefore
identify some other affirmative cause of action as a predicate for their claim in
Count IV. Yet, there is no affirmative claim for unconscionability at common law.
[U]nconscionability is a defense interposed against the enforcement of a
contract ; it does not provide an affirmative basis for relief. Okafor v. Yale
Univ., No. CV980410320, 2004 WL 1615941, at *11 (Conn. Super. Jun. 25, 2004)
(dismissing unconscionability claim) (internal citation omitted); Bender v. Bender,
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292 Conn. 696, 732 n.26 (2009) (observing unconscionability is itself a defense to
contract enforcement); Thomas v. CM Secs., LLC, No. CV095033527S, 2010 WL
3038503, *10 (Conn. Super. July 7, 2010) (recognizing unconscionability is a
defense to contracts generally); see also Super Glue Corp. v. Avis Rent A Car
Sys., Inc., 132 A.D.2d 604, 606 (N.Y. App. Div. 1987) (The doctrine of
unconscionability is to be used as a shield, not a sword, and may not be used as
a basis for affirmative recovery.). As the Eleventh Circuit has explained:
[T]he equitable theory of unconscionability has never been utilized to
allow for the affirmative recovery of money damages. The Court finds
that neither the common law of Florida, nor that of any other state,
empowers a court addressing allegations of unconscionability to do
more than refuse enforcement of the unconscionable section or
sections of the contract so as to avoid an unconscionable result.
Cowin Equip. Co. v. Gen. Motors Corp., 734 F.2d 1581, 1582 (11th Cir. 1984)
(emphasis changed) (quoting Bennett v. Behring Corp., 466 F. Supp. 689, 700
(S.D. Fla. 1979)). Rather, courts have consistently rejected the theory that
damages may be collected for an unconscionable contract provision. Nygaard
v. Sioux Valley Hosps. & Health Sys., 731 N.W.2d 184, 195 (S.D. 2007).
Because the sole gravamen of Plaintiffs unconscionability claim is that
they are purportedly entitled to damages (see Compl. 473 (A just amount
should be assessed for all of the damages caused by the unconscionable
booking contracts.), Plaintiffs have failed to state a claim. Indeed, Plaintiffs
have couched their claim as one for declaratory judgment precisely because
there is no affirmative cause of action for unconscionability. Reframing their
claim as one for declaratory relief cannot give rise to a cause of action that does
not exist. Chevron Corp. v. Naranjo, 667 F.3d 232, 244-45 (2d Cir. 2012).

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b.

Plaintiffs Have Not Adequately Pled a Plausible


Unconscionability Claim________________

Further, none of the individual Plaintiffs have adequately pled anything


unconscionable about the Booking Contracts. The classic definition of an
unconscionable contract is one which no man in his senses, not under delusion,
would make, on the one hand, and which no fair and honest man would accept,
on the other. Smith v. Mitsubishi Motors Credit of Am., Inc., 247 Conn. 342, 349
(1998). Plaintiffs here have the burden of pleading plausibly that each of their
contracts meets this test, notwithstanding that there are 53 different Plaintiffs, all
of whom saw fit to deal with WWE over a period of decades, with many paid very
substantial amounts. See Compl. 60-112.
Pursuant to Rule 8 of the Federal Rules of Civil Procedure, each plaintiff
must provide a short, plain statement of claim against each defendant named so
that they have adequate notice of the claims against them. Each plaintiff must
provide facts sufficient to allow each named defendant to have a fair
understanding of what each plaintiff is complaining about and to know whether
there is a legal basis for recovery. Lugo v. N.Y. Hosp. of Queens, 16 Civ. 724
(AMD) (LB), 2016 U.S. Dist. LEXIS 21207, *2-3 (E.D.N.Y. Feb. 22, 2016) (emphasis
added) (citations omitted). Compliance with Rule 8 is critical because the
determination of unconscionability is to be made on a case-by-case basis,
taking into account all of the relevant facts and circumstances. Bedrick v.
Bedrick, 300 Conn. 691, 705 (2011) (quoting Cheshire Mortg. Serv., Inc. v. Montes,
223 Conn. 80, 89 (1992)).
The unconscionability doctrine has both procedural and substantive

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elements, the former intended to prevent unfair surprise and the other intended
to prevent oppression. Smith, 247 Conn. at 349. Substantively, mere unfairness
or inequality alone does not render an agreement unconscionable; the question
instead is whether enforcement of the agreement would work an actual injustice.
Bedrick, 300 Conn. at 705-06. The procedural element focuses on the process
by which the allegedly offensive terms found their way into the agreement.
DAntuono v. Serv. Road Corp., 789 F.Supp.2d 308, 327 (D. Conn. 2011). In other
words, the party usually must show both that there was an absence of meaningful
choice on the part of that party, and that the terms of the agreement were
unreasonably favorable toward the other party. Id. It is rare that a contractual
provision is so outrageous as to warrant a courts refusal to enforce it based on
substantive unconscionability alone. Id. Likewise, no Connecticut court has
voided a contract based on procedural unconscionability alone. DaimlerChrysler
Ins. Co. v. Pambianchi, 762 F. Supp. 2d 410, 422 (D. Conn. 2011). Still further,
procedural unconscionability cannot be predicated solely on the failure by a
commercial party . . . to direct the individuals attention to specific terms of a
[form] contractual agreement. Smith, 247 Conn. at 352. Contractual choice
signifying procedural fairness may come from market competition, and need not
come from the contracting counter-partys own willingness to negotiate. See id.
(reaffirming the duty of a contracting party to read the terms of form contracts).
Thus, Connecticut courts have not found procedural unconscionability based
solely on take-it-or-leave it form contracts. D'Antuono, 789 F. Supp. 2d at 328.

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i.

Plaintiffs Have Failed to Allege Procedural


Unconscionability____________________

Notwithstanding the high bar for establishing unconscionability, Count IV


purports to assert unconscionability claims by 53 different Plaintiffs without so
much as identifying, in most cases, even whether they had a written agreement
with WWE, let alone unconscionable circumstances under which any contract
was entered or any specific provision contended to be unconscionable. For
example, in a prolix 667-paragraph Complaint comprising 214 pages, the firstnamed plaintiff Joseph Laurinaitis includes only a single sentence regarding his
entering into a contract with WWE that is insufficient under the foregoing
authorities: Laurinaitis asserts he was given a boilerplate contract in which
nothing was up for negotiation.36 Compl. 60. (None of the four exemplar
contracts attached to the Complaint is with Laurinaitis.) This bare allegation is
insufficient to establish procedural unconscionability, and does not remotely
establish substantive unconscionability. Smith, 247 Conn. at 352-55.
Laurinaitis, and the other Plaintiffs, do not meet their burden to allege
procedural unconscionability even if one considers allegations made by Plaintiffs
generally. Plaintiffs allege:
Here the drafter is clearly the WWE and its relentless army of
attorneys. Of the numerous unconscionable Booking Contracts
examined, there were no material deviations from the printed form
contract imposed by the WWE, which is testimony to the vast
36

Without exception, Plaintiffs do not plead the amounts of money each was paid
pursuant to the allegedly unconscionable contracts. Doing so would further
expose the Rule 11 violations upon which this lawsuit is based. For example,
Laurinaitis was paid over two million dollars under his contracts, and also signed
a release. WWE is not aware of a single reported case involving a personal
services contract where a person paid hundreds of thousands, and even millions,
of dollars obtained a ruling of unconscionability.

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discrepancy in bargaining power between the wrestlers and the


WWE, the coercive nature of the relationship, and the fact that the
significant majority of the wrestlers lacked both adequate (or even
any) representation or sufficient educational training to even begin
to comprehend the boilerplate Booking Contracts they signed, all as
known and relied upon by the WWE. Serious penalties were
imposed by the WWE for questioning any demand it made of
Plaintiffs as is elsewhere more particularly alleged.37
Compl. 329. Stripped of legal conclusions unsupported by factual allegations,
Plaintiffs allege no more than that WWE did not negotiate material departures
from form contract language drafted by its attorneys, such that Plaintiffs were left
no choice but to accept WWEs terms or to take their services elsewhere. Yet, the
law is clear that the refusal to modify a form agreement in these circumstances is
not unconscionable. DAntuono, 789 F.Supp.2d at 328 (rejecting the contention
that take it or leave it employment contracts written by relatively sophisticated
employers are procedurally unconscionable). Plaintiffs admit that other
wrestling promotions existed. See, e.g.,, Compl. 87 (admitting Plaintiff Martin
wrestled for other promotions), 93 (Plaintiff Knighton), 103 (Plaintiff Jones);
see also id. 158 (acknowledging existence of other independent federations).
In fact, most, if not all, of the Plaintiffs also wrestled for other organizations.
Therefore, each Plaintiff is required to allege facts to support their claim of
procedural unconscionability, such as that the substantively unconscionable
terms were somehow hidden in a maze of fine print. See DAntuono, 789
F.Supp.2d at 328-29. No such allegations appear. Although the Complaint
alleges WWE did not like to deal with wrestlers lawyers, it also affirmatively
37

Nowhere does the Complaint identify how many contracts were actually
reviewed, but only one Plaintiffs contracts were attached. Nothing about the
terms of the contracts evidence coercion or that the terms were not understood.

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alleges that the vast majority of Booking Agreements were sent to the Plaintiffs
through the utilization of the mails of the United States, and sometimes the wires
of the United States, with a request that the contracts be signed and returned
through the mails of the United States. Compl. 405. Thus, Plaintiffs had ample
time to review their proffered contracts with lawyers if they chose, and in reality
often did. Although their central thesis appears to be that WWE had superior
knowledge concerning the risks of long-term neurodegenerative injury from
wrestling, Plaintiffs fail to draw any connection between such allegations and any
unconscionability.38 In fact, Plaintiffs concede that the Booking Contracts spelled
out the obvious that the participation and activities required by WRESTLER in
connection with WRESTLERs performance in a professional wrestling exhibition
may be dangerous and may involve the risk of serious bodily injury. Compl. Ex.
A 9.12(b).
Indeed, most of the Plaintiffs have failed even to identify any contract
entered into with WWE at all. See Compl. 61 (though alleging that he is
illiterate and that the WWE had him sign stuff all the time, failing to allege any
written contract), 62, 64, 65, 66, 67, 68, 69 (Dave Hebner was a WWF employee
38

Plaintiffs allegations such as [r]epeated blows to the head and the


neurological consequences well known to the Defendants reduced a wrestlers
ability to comprehend the financial consequences of the Booking Contracts, is
both absurd and implausible. Compl. 410. Plaintiffs fail to explain how they
came to be impaired at the time they first entered their agreements with WWE at
or near the beginning of their WWE careers and prior to receiving any blows to
the head. Given that all but two Plaintiffs bring claims in their own names, and
not through a Next Friend or Personal Representative, any allegation that
Plaintiffs were unable to understand and enter into contracts with WWE years and
decades ago would prove too much and throw them out of court. If any Plaintiff
was truly so mentally incapacitated years ago that they could not understand
what they signed, they certainly would not be competent enough to knowingly
and intelligently decide to participate in litigation many years later.

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without a Booking Contract for 27 years), 71, 72, 73, 74, 75, 76, 78 (Green
wrestled with WWWF from 1971 to 1979 without a Booking Contract), 79 (Mosca
states he wrestled for WWF without a Booking Contract into the 1980s), 80, 81,
82, 83, 84, 85 (describing Majares as a jobber), 86-103, 105-111. Of those few
Plaintiffs who do specifically allege that they wrestled pursuant to a written
agreement, like Laurinaitis, none includes allegations sufficient to demonstrate
procedural unconscionability. See id. 60, 61, 63, 70 (while asserting he was
told the obvious hyperbole that the contract includes everything up to and
including your first born, Plaintiff Pallies alleges no more than that it was not
subject to negotiation), 77 (Plaintiff Brunzell alleges he needed to sign the
proffered agreement without negotiation or else he would be fired), 104 (while
asserting he was asked to sign a contract on a take it or leave it basis, Plaintiff
Johnson admits he was sophisticated enough to do his own taxes even though
his income was reported on a 1099), 112 (Plaintiff Zhukov alleges only that he
signed the boiler plate booking contract which you had to sign if you wanted to
work). None of the Plaintiffs alleges that any of the terms of the contract was
kept hidden, that any of them was forced to sign without reading, or that the
terms of their contracts were otherwise an unfair surprise.39

39

Plaintiffs assert that they were forced to agree in their contracts that they were
independent contractors, which they assert WWE misled them to believe to be the
case. However, this alleged fraud, which is not a fraud at all, is entirely
independent of the circumstances of entering the agreement. No Plaintiff alleges
(and certainly not with the specificity that Rule 9(b) requires) that there was ever
any discussion around this term, let alone misleading discussion. Procedurally,
each of the Booking Contracts attached to the Complaint (which Plaintiffs allege
to be representative of those that exist, Compl. 329), undeniably disclosed that
WRESTLER is an independent contractor and nothing in the agreement shall
be construed to constitute WRESTLER as an employee. Compl. Exs. A-D 13.1.
Indeed, the Booking Contract, across numerous provisions, made abundantly
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ii.

Plaintiffs Likewise Fail to Allege Substantive


Unconscionability

Plaintiffs also fail to sufficiently allege the basis for their claims of
substantive unconscionability either, for at least three distinct reasons.
First, Plaintiffs appear to assert that their misclassification as
independent contractors somehow renders their Booking Contracts
unconscionable. However, Plaintiffs do not contend that their contracts would
still be unconscionable if that classification is legally correct. This is a fatal
defect. Succinctly stated: If the Plaintiffs were properly classified, their
allegations fail; conversely, if Plaintiffs classifications as independent
contractors were incorrect because of regulatory requirements outside the
contracts, then the ultra vires classifications would simply have had no effect (if
they had been timely challenged). In other words, whatever legal obligations
might have flowed from Plaintiffs legal classification as employees would not
have rested upon their contracts at all, but on whatever background regulatory
provisions might have required the classification.
Second, the contracts included a savings clause. E.g., Compl. Ex. A 13.4
(If any provision or clause of this Agreement, or portion thereof, shall be held by
any court . . . to be illegal, invalid, or unenforceable in such jurisdiction, the
remainder of such provision shall not thereby be affected and shall be given full
effect, without regard to the invalid portion.). In the face of that language,

______________________
clear that the wrestlers were responsible for their own licensing (id. 9.1),
training (id. 9.2), federal, state and local income taxes, social security and
Medicare taxes (id. 9.11, 9.12), and insurance, including workers compensation
insurance and health, life and disability insurance (id. 9.12(a), 9.13). Far from
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Plaintiffs inadequately allege how or why their putatively incorrect employment


classification rendered other provisions of their contracts unconscionable. They
provide, for example, no plausible factual enhancement for their conclusory
allegation that their contracts were so egregious that to allow the Defendants to
claim the benefits of or to enforce any part of these contracts against the
Plaintiffs, including the forum selection clause and the choice of law clause
would create an unconscionable injustice. Compl. 471.
Third, substantive unconscionability exists only where the contract terms
are so one-sided as to shock the conscience. FCT Elecs., LP v. Bank of Am.,
N.A., No. CV106002699, 2011 WL 4908850, at *6 (Conn. Super. Sept. 22, 2011)
(internal quotation marks and citation omitted). Once again, the Complaint lacks
any individualized allegation as to each Plaintiff, including the consideration each
received, a critical factor in determining whether the contract shocks the
conscience. Instead, Plaintiffs present four contracts as exhibits to the
Complaint, Compl. Exs. A-D, and allege that there were no material differences
among whatever contracts they all might have entered, Compl. 329. Three of
those contracts are between WWE and one plaintiff, Salvador Guerrero IV a/k/a
Chavo Guerrero Jr. The fourth is of a non-party to this case, Nelson Frazier. By
withholding the other contracts from the Court, Plaintiffs counsel hope to
conceal the handsome amounts many of the Plaintiffs were paid.
Substantive unconscionability presents a question of law for the Court.
See Bedrick, 300 Conn. at 705. Thus, this Court should consider the contracts
______________________
being misleading, the contracts spell out in very precise detail the classification
to which they agreed.
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attached to the Complaint on this motion to dismiss. Certain provisions leap out.
First, and foremost, these were lucrative contracts. In his 2001 contract, Plaintiff
Guerrro Jr. was guaranteed minimum annual compensation of $100,000.00.
Compl. Ex. A 7.1. The initial contract term was three years. Id. 6.1. Further
compensation was possible for certain additional services. Id. 7.2. In addition,
he was promised royalties on various WWE revenue streams. Id. 7.3 - 7.7.
Certain royalties continued even after termination of the contract. Six years later,
in 2007, he signed another contract, this time with minimum annual
compensation of $175,000.00. Compl. Ex. B 7.1. Finally, in 2010, he signed
another three-year contract, this time with minimum annual compensation of
$200,000.00. Compl. Ex. D 7.1. Not incidentally, Guerrero Jr.s minimum
compensation doubled in 9 years, which belies the contention that Plaintiffs
lacked all bargaining power. Second, the contracts imposed various obligations
on WWE in addition to compensating the wrestlers, not least of which was to
endeavor to book WRESTLER as an individual or as a member of a group . . . in
wrestling matches and at various Events and bear all costs associated with
obtaining venues and producing televised events. Compl., Ex. A 1.2, 8.1-8.2.
c.

Plaintiffs Unconscionability Claim Is A Fraud

In reality, the unconscionability claims should be thrown out because


Plaintiffs are attempting to perpetrate a fraud on this Court. Significantly, by the
time of his 2007 Booking Contract, notwithstanding WWEs alleged antipathy to
lawyers, the notice provision of Guerrero Jr.s contract required a copy of any
notice under the agreement to be provided to his attorney. Compl. Ex. B 13.6;
see also Compl. Ex. D 13.6. This means that Guerrero Jr. received legal counsel
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in connection with entering into his Booking Contracts in 2007 and 2010, and is
fatal to his personal unconscionability claim on both procedural and substantive
grounds. Similarly, Guerrero Jr. entered into at least one of his Booking
Contracts through a LLC that he formed for doing business. See Compl., Ex. B.
Procedurally, it directly contradicts the fabrication that he was misled into
agreeing that he was an independent contractor, as well as the allegations that he
was duped out of his rights under various regulatory schemata, or coerced,
intimidated, or otherwise duped while in the throes of some otherwise
unidentified progressive disease. If WWE were trying to take advantage of some
brain damaged dope, which is the latest fabricated tale of Plaintiffs counsel, it
hardly did so by doubling his guaranteed compensation. Substantively,
moreover, it belies any contention that no man in his senses, not under
delusion, would make an agreement such as this. Smith, 247 Conn. at 349.
Guerrero Jr. entered this agreement with eyes wide open with the benefit of legal
counsel. Whether he may not have had a lawyer in 2001 when he first entered
such an agreement, moreover, is of no moment, for all three agreements are, as
Plaintiffs take pains to allege (e.g., Compl. 329), the same in material respects.
An agreement that is not unconscionable when Guerrero Jr. is guaranteed
$175,000 per year surely cannot have been unconscionable when he was
guaranteed $100,000, despite 6 years less experience.
The same reasoning eviscerates the claims of all of the other Plaintiffs as
well. If Guerrero Jr. was willing to enter the Booking Contract in 2007 upon
advice of counsel, then it simply cannot be gainsaid that reasonable men, not

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under delusion, would not do so.


4.

Plaintiffs Unjust Enrichment (Count XVII) and


Accounting/Disgorgement of Unjust and Illegal Profits (Count XVI)
Claims Fail As A Matter Of Law
a.

Accounting and Disgorgement Are Remedies and Not Causes


of Action Under Connecticut Law
_

The Connecticut Supreme Court has ruled that an accounting is a remedy


rather than an independent cause of action. See Macomber v. Travelers Prop. &
Cas. Corp., 261 Conn. 620, 623 n.3 (2002). Because an accounting is only a
remedy, a cause of action labeled as such fails to state a claim and must be
dismissed. See David Fuhrer Enters., LLC v. Add the Flavor, LLC, No.
FSTCV136018002S, 2013 WL 5879038, at *5-7 (Conn. Super. Oct. 9, 2013) (the
Connecticut Supreme Court acknowledges the position that accounting is a
remedy and not a cause of action); Priceline Com., Inc. v. Mayes, No.
X08CV030196820, 2005 WL 896261, at *5 (Conn. Super. Mar. 16, 2005) (granting
motion to strike because [a] constructive trust and an accounting are remedies
and are not specific or separate causes of action); Frank v. LoVetere, 363 F.
Supp. 2d 327, 345 (D. Conn. 2005) (At oral argument plaintiff agreed that an
accounting could be considered a remedy rather than a claim, and consented to
dismissal of Count Six as an independent cause of action.).
Likewise, disgorgement is a well-established remedy in the Second
Circuit used as a method of forcing a defendant to give up the amount by which
he was unjustly enriched. F.T.C. v. Bronson Partners, LLC, 654 F.3d 359, 372 (2d
Cir. 2011) (citation omitted). Thus, Connecticut courts have dismissed claims for
disgorgement where a plaintiff attempts to plead it as an independent cause of

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action. See Kosiorek v. Smigelski, No. CV074014607S, 2008 WL 4779846, at *2


(Conn. Super. Oct. 9, 2008).
b.

Plaintiffs Unjust Enrichment Claim Fails to State A Cognizable


Claim________________________________________________

To state a claim of unjust enrichment, a plaintiff must show (1) defendant


was benefited, (2) defendant unjustly failed to pay plaintiff for the benefits, and (3)
the failure to pay was to plaintiffs detriment. Additionally, lack of a remedy under
the contract is a precondition for recovery based on unjust enrichment. Alliance
Grp. Servs., Inc. v. Grassi & Co., 406 F. Supp. 2d 157, 166 (D. Conn. 2005) (internal
citation omitted). Plaintiffs unjust enrichment fails to state a cognizable claim.
Under Connecticut law, a claim for unjust enrichment cannot stand where
an express contract governs the relationship between the parties to the lawsuit
and covers the same subject-matter that forms the basis for the unjust
enrichment claim. Meaney v. Conn. Hosp. Assn, Inc., 250 Conn. 500, 517-18
(1999) (no unjust enrichment claim against employer for failure to pay certain
compensation when there existed express employment contract); Alstom Power,
Inc. v. Schwing Am., Inc., No. 3:04cv1311, 2006 WL 2642412, at *5 (D. Conn. Sept.
14, 2006) (where an express contract exists, restitution for unjust enrichment, a
quasi contractual remedy, is unavailable); Alliance Grp. Servs., 406 F. Supp. 2d
at 166 (The quasi-contractual remedy of unjust enrichment is only available
when no express contractual obligation exists.).40 Applying this principle, Judge

40

Paragraph 665 of the unjust enrichment count incorporate[s] by reference the


preceding paragraphs set forth above as if fully set forth herein, including the
paragraphs conceding their entry into the Booking Contracts. An unjust
enrichment claim must be dismissed when a plaintiff incorporates allegations of
an express contract between the parties. See N. Am. Technical Servs. v. V.J.
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Dorsey in Levy dismissed identical unjust enrichment claims asserted by three


former-wrestlers, holding that [w]here parties have an express contract which
delineates the rights and obligations with respect to services to be provided and
the compensation to be paid therefor, unjust enrichment does not lie. Levy,
2009 WL 455258, at *3. Plaintiffs here allege that their relationships with WWE
were governed by express Booking Contracts and their services were
performed pursuant to those contracts. Indeed, Plaintiffs try to have their cake
and eat it too they willingly accepted all benefits due to them under those
contracts but now belatedly claim that they are entitled to another payday.
Moreover, Plaintiffs did not confer any benefit on WWE. On the contrary,
Plaintiffs are claiming unjust enrichment based on alleged long-term injuries the
Plaintiffs suffered as a result of their purported misclassification by WWE. See
Compl. 666. Setting aside the specious allegation that ones employment
classification can cause long-term injuries, it is well settled that unjust
enrichment is a restitutionary measure that must be based on the defendants
gain, not on the plaintiffs loss. See Town of New Hartford v. Conn. Res. Recovery
Auth., 291 Conn. 433, 460-61 (2009) ([T]he money recovery called damages is
based upon the plaintiff's loss, and in that respect stands in bold contrast to the
______________________
Techs, Inc., No. 10CV1384 (AWT), 2011 WL 4538069, at *5-6 (D. Conn. Sept. 29,
2011) (Because lack of an express contract is a precondition to recovery based
on unjust enrichment, allegations to the contrary incorporated into the count
require dismissal); J&N Elec., Inc. v. Notkins, No. CV085020144, 2009 WL
1607591, at *1-2 (Conn. Super. May 20, 2009) (striking unjust enrichment count
that incorporated allegations of an express contract); William Raveis Real Estate
v. Cendant Mobility Corp., No. CV054002709S, 2005 WL 3623815, at *3 (Conn.
Super. Dec. 6, 2005) (In short, the plaintiff may plead unjust enrichment in the
alternative, but this is not accomplished by incorporating into this count all the
allegations of an express contract. Such a complaint does not involve alternative
pleading, but involves legally inconsistent pleading.).
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money recovery called restitution, which is based upon the defendant's gain.);
Schirmer v. Souzal, 126 Conn. App. 759, 765-66 (2011) (unjust enrichment is
grounded in the theory of restitution which is based upon the defendants gain);
see also 1 Dan B. Dobbs, Law of Remedies 1.1 at 5 (2d ed. 1993). Because
Plaintiffs unjust enrichment claim is based on their alleged personal injury loss
as opposed to any identified gain by WWE, the claim must be dismissed. See
Cusanelli v. Minervini, No CV990430739, 2001 WL 1098148, at *4 (Conn. Super.
Aug. 22, 2001) (dismissing unjust enrichment claim because the plaintiff has
focused on his claims of loss but has not shown or quantified any benefits to the
defendant.); see also Carlin v. Carlin, No. DBDCV126009977, 2013 WL 951362, at
*4 (Conn. Super. Feb. 7, 2013) (citing Argentinis v. Fortuna, 134 Conn. App. 538,
556-57 (2012)) (If the plaintiff claims the defendant has committed a tort, he may
proceed with a tort action, instead of an unjust enrichment action.).
Lastly, Plaintiffs unjust enrichment claim is pled insufficiently based
on alleged fraud. See Compl. 667 (The Defendants have obtained substantial
benefit as a direct result of their fraudulent misrepresentation, concealment, and
omission, which in equity and good conscience they should not be able to
keep.). A claim of unjust enrichment must be pled with particularity under Rule
9(b) when the underlying acts are allegedly fraudulent. See E. Point Sys., Inc. v.
Maxim, No. 3:13-CV-00215(VLB), 2014 WL 523632, at *7 (D. Conn. Feb. 7, 2014)
(holding that pleading requirements of Rule 9(b) applied to plaintiffs unjust
enrichment claim based on fraudulent misrepresentations); Benefield v. Pfizer
Inc., 103 F. Supp. 3d 449, 465 (S.D.N.Y. 2015) ([T]he basis for the alleged unjust

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enrichment claim is Defendants fraudulent conduct. Plaintiffs cannot avoid the


heightened pleading requirement of Federal Rule 9(b) by casting their fraud claim
as one for unjust enrichment.). [W]here an unjust enrichment claim is asserted
in concert with a claim sounding in fraud, as is present here, the unjust
enrichment claim must be dismissed if the fraud claim is dismissed for failure to
satisfy Rule 9(b). DiMuro v. Clinique Labs., 572 Fed. Appx. 27, 32 (2d Cir. 2014).
c.

Plaintiffs Cannot Use Accounting/Disgorgement and Unjust


Enrichment Claims to Retroactively Seek Rights in WWEs
Copyrighted Works

By their accounting/disgorgement and unjust enrichment claims, Plaintiffs


make the fanciful claim for equal rights with the WWE to the money earned from
their images and performances, and the use of their persona to generate
income. Compl. 659. Specifically, Plaintiffs retroactively claim that they have
equal copyright interests in their intellectual property with the WWE and are
entitled to a full and accurate accounting of money earned and a full and
equitable share of the profits earned. Compl. 662. According to Plaintiffs,
their fair share is 50% of the profits earned. Compl. 663. Plainly, Plaintiffs are
vexatiously using litigation in an attempt to renegotiate the terms of their fullyperformed contracts, which consistently spell out that WWE is the sole, exclusive
and perpetual owner of all of the copyrighted works produced by WWE in which
Plaintiffs appeared. Such abuse of process is foreclosed for three reasons.
First, it is well-established that where a plaintiff asserts state law claims
such as unjust enrichment against a defendants reproduction, distribution, or
display of a performance by the plaintiff captured on film, those claims are

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preempted by federal copyright law.41 See Ray v. ESPN, Inc., 783 F.3d 1140, 114244 (8th Cir. 2015) ([T]he crux of Rays case is that ESPN re-telecast Rays filmed
performances. Thus, because Rays state-law rights have been infringed by the
mere act of reproduction, performance, distribution or display of his
performances, his state-law rights are equivalent to the exclusive rights within
the general scope of copyright.) (citations omitted); Jules Jordan Video, Inc. v.
144942 Canada, Inc., 617 F.3d 1146, 1153-55 (9th Cir. 2010) (finding essence of
performers right of publicity claim was that defendants reproduced and
distributed the DVDs without authorization and thus claim was preempted by the
Copyright Act); Baltimore Orioles, Inc. v. Major League Baseball Players Assn,
805 F.2d 663, 674 (7th Cir. 1986) (The works in which the Players claim rights are
the telecasts of major league baseball games. . . . [T]he telecasts are fixed in
tangible form because they are recorded simultaneously with their transmission
and are audiovisual works which come within the subject matter of copyright.
The first condition for preemption is, therefore, satisfied.); Dryer v. Natl Football
League, 55 F. Supp. 3d 1181, 1201-02 (D. Minn. 2014), affd 814 F.3d 938 (8th Cir.
2016) ([T]he NFL has the right to exploit that copyrighted game footage in
expressive works such as the NFL Films productions at issue here. The NFLs
valid copyright in the game footage forecloses Plaintiffs publicity claims.);
Somerson v. World Wrestling Entmt, Inc., 956 F. Supp. 2d 1345, 1355-56 (N.D. Ga.

41

While Plaintiffs contend in this case that the Booking Contracts are not
enforceable in an attempt to burden WWEs exercise of its copyrights,
Connecticut counsel for Plaintiffs brought a putative class action claiming that
the very same Booking Contracts are enforceable and obligate WWE to pay
royalties for the use of performers images on the WWE Network. In that
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2012) (dismissing state-law claims as preempted because plaintiffs complaints


are based on WWE reproducing the video recordings depicting him, preparing
derivative works based on the video recordings of him, and distributing copies of
these video recordings to the public, all of which are encompassed by copyright
law.); Blood v. Titan Sports, Inc., No. 3:94CV307-P, 1997 U.S. Dist. LEXIS 24485,
at *33-34 (W.D.N.C. May 13, 1997) (granting WWE summary judgment because
plaintiffs state law claims were preempted by copyright law which governed the
videocassette tapes at issue).
Second, Plaintiffs have no factual or legal basis to claim any copyright
interest in WWEs copyrighted works. By Plaintiffs admission, the Booking
Contracts make clear that: All Works and WRESTLERs contributions thereto
shall belong solely and exclusively to PROMOTER in perpetuity notwithstanding
any termination of this Agreement . . . . [A]ll rights in and to the Works shall
belong exclusively to PROMOTER in perpetuity, notwithstanding any termination
of this Agreement. Compl., Ex.s A-D 2.5. Furthermore, Plaintiffs
performances in WWEs wrestling events did not involve the authorship of
anything by them. See Natl Basketball Assn v. Motorola, Inc., 105 F.3d 841, 846
(2d Cir. 1997) (What authorship there is in a sports event, moreover, must be
open to copying by competitors if fans are to be attracted. . . . Even where athletic
preparation most resembles authorshipfigure skating, gymnastics, and, some
would uncharitably say, professional wrestlinga performer who conceives and
executes a particularly graceful and difficultor, in the case of wrestling,
______________________
complaint, Plaintiffs counsel acknowledged that state law claims were
preempted. See Bagwell v. WWE, Inc. No. 3:16-cv-01350-JCH, Dkt. 1 at 48-53.
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seemingly painfulacrobatic feat cannot copyright it without impairing the


underlying competition in the future.); see also Garcia v. Google, Inc., 786 F.3d
733, 740-41 (9th Cir. 2015) (en banc) (rejecting actresses claim to a copyright in
her acting performance as it appears in film). Rather, the fixator of the broadcast
of an athletic event or motion picture in a tangible medium WWE with respect
to its wrestling programs owns the copyright in that work. See Natl Basketball
Assn, 105 F.3d at 847; Garcia, 786 F.3d at 743-44.
Third, the Second Circuit and courts in other jurisdictions have
consistently rejected unjust enrichment claims retroactively seeking
compensation for intellectual property that was the subject of a written contract.
See Lightfoot v. Union Carbide Corp., 110 F.3d 898, 905-06 (2d Cir. 1997)
(affirming dismissal of unjust enrichment claim because plaintiff agreed to an
unconditional assignment of any and all inventions created by him while working
for [defendant]. . . . Thus, while [defendant] may indeed have been enriched by
[plaintiffs] efforts, we cannot say that such enrichment was unjust.); Berry v.
Ford Motor Co., No. 11-10569, 2015 WL 1646657, at *3 (E.D. Mich. Apr. 14, 2015)
(granting defendant summary judgment on Plaintiffs unjust enrichment claim,
as all of the inventions at issue are governed by express contracts [with
defendant], all of which gave [defendant] exclusive ownership of the intellectual
property at issue . . . . As a result, all of the inventions at issue are subject to
[defendants] contractual rights; and there has been no unjust enrichment.);
Shukh v. Seagate Tech., LLC, No. 10-404(JRT/JJK), 2011 WL 1258510, at *11 (D.
Minn. Mar. 30, 2011) ([B]y its terms, [plaintiffs] employment agreement provides

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no right to profits, or licensing fees for inventions. Instead, [plaintiff] was paid a
salary and agreed to assign all of his inventions, and his rights to those
inventions, to [defendant]. There can be no claim for unjust enrichment.).
D.

In Addition to Being Time-Barred, All of Plaintiffs TBI Claims Are


Substantively Defective and Should Be Dismissed
1.

Connecticut Does not Recognize Causes of Action for Medical


Monitoring (Count V), Fraudulent Concealment (Count VI), or Civil
Conspiracy to Commit Fraudulent Concealment (Count XII)

Connecticut law does not recognize claims for medical monitoring and
fraudulent concealment. See McCullough I, 2016 WL 1122016, at *27, 34-35
(dismissing identical claims brought by the same counsel against WWE). Counts
V and VII must therefore be dismissed. Likewise, Plaintiffs attempt to assert
fraudulent concealment via a civil conspiracy claim fails because civil conspiracy
is not a stand-alone cause of action; it must be supported by another substantive
claim. Macomber, 894 A.2d at 254-55 (There is, however, no independent claim
of civil conspiracy . . . . Thus, to state a cause of action, a claim of civil
conspiracy must be joined with an allegation of a substantive tort.). Because
fraudulent concealment is not a substantive tort, Plaintiffs claim for conspiracy
to commit fraudulent concealment equally must fail.
2.

Plaintiffs Fail to State Claims for Fraud (Count VIII) and Negligent
Misrepresentation (Count IX)
_______

Identical claims for fraud and negligent misrepresentation have previously


been dismissed, with only a narrow claim for fraud by omission surviving with
respect to certain post-2005 allegations. See McCullough I, 2016 WL 1122016, at
*35. Although Plaintiffs here all were members of the putative classes in the
Haynes and McCullough cases and were represented by Kyros, they simply
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ignore the Courts prior rulings and attempt to resurrect rejected fraud and
negligence claims. Those attempts should be rejected.
Plaintiffs fraud and negligent misrepresentation claims must be pled with
particularity under Fed. R. Civ. P. 9(b). Allstate Ins. Co. v. Advanced Health
Profls, P.C., 256 F.R.D. 49, 52 (D. Conn. 2008); Pearsall Holdings, LP v. Mountain
High Funding, LLC, No. 3:13cv437 (JBA), 2014 WL 7270334, at *3 (D. Conn. Dec.
18, 2014) (applying Rule 9(b)s particularity requirement to negligent
misrepresentation claim); Yurevich v. Sikorsky Aircraft Div., United Tech. Corp.,
51 F. Supp.2d 144, 152 (D. Conn. 1999) (same). With specific regard to fraud by
omission:
a party must allege: the failure to make a full and fair disclosure of
known facts connected with a matter about which a party has
assumed to speak, under circumstances in which there was a duty to
speak. . . . A lack of full and fair disclosure of such facts must be
accompanied by an intent or expectation that the other party will
make or will continue in a mistake, in order to induce that other party
to act to her detriment. . . . The key element in a case of fraudulent
non-disclosure is that there must be circumstances which impose a
duty to speak.
In addition, in order to satisfy the requirements of Rule 9(b) a plaintiff
must detail the omissions made, state the person responsible for
the failure to speak, provide the context in which the omissions were
made, and explain how the omissions deceived the plaintiff.
McCullough I, 2016 WL 1122016, at *30 (citations omitted). The statement or
omission alleged to be fraudulent must be of a material fact, and statements of
opinion are not actionable. Trefoil Park, LLC v. Key Holdings, LLC, No. 3:14-CV00364 (VLB), 2015 WL 1138542, at *12 (D. Conn. Mar. 13, 2015).
Additionally, a plaintiff must allege facts that give rise to a strong
inference of fraudulent intent. McCullough I, 2016 WL 1122016, at *28.

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Allegations that the defendants knew or should have known are insufficient.
Nazami v. Patrons Mut. Ins. Co., 280 Conn. 619, 628 (2006); Martinez v. Yale-New
Haven Hosp., No. X02CV0404001227S, 2005 WL 2364901, at *2 (Conn. Super. Sept.
1, 2005) (The knew or should have known formulation is not sufficient for fraud,
which requires proof that a false representation was known to be untrue by the
party making it.).
The complaint is bereft of allegations sufficient to satisfy Rule 9(b). No
specific factual representation or omission by WWE to any of these Plaintiffs is
alleged. Nobody at WWE is identified as the speaker of any alleged
misrepresentation or omission or as the person with knowledge of some material
fact that supposedly was misrepresented to, or omitted from, any of these
Plaintiffs. There are no specific dates, places or circumstances pled as to when
any alleged misrepresentation or omission occurred as to any of the Plaintiffs, let
alone all 53 of them. Instead of pleading the requisite particulars, Plaintiffs fraud
claim generally alleges, for example, that WWE made these material
misrepresentations with the intent to defraud the Plaintiffs (Compl. 518)
(emphasis added), and that Plaintiffs justifiably and reasonably relied on the
WWEs omissions and misrepresentations to their detriment (Compl. 523)
(emphasis added). However, no such misrepresentations or omissions are
described with particularity as required by Rule 9(b). Similarly, the Complaint
alleges that WWE supposedly withheld and actually covered up the information
it knew about the risks of head injuries suffered during WWE performances
(Compl. 515) but again there are no specific allegations of what information

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WWE supposedly actually knew, when WWE supposedly learned that information,
what WWE supposedly did to cover up such unidentified information, or how
WWE even could have covered up information that, according to Plaintiffs, was
well-known and widespread for decades. Indeed, no plausible explanation is
given as to how WWE supposedly covered up publicly-available scientific
opinions to any of these Plaintiffs.
Plaintiffs negligent misrepresentation claim is worse still.42 In
McCullough, the Court observed that WWE is alleged in the various complaints
to have had knowledge of [a link between repeated head trauma and permanent
degenerative neurological conditions] as early as 2005. McCullough I, 2016 WL
1122016, at *34. Based on that allegation, this Court ruled that [b]ecause
Singleton and LoGrasso are alleged to have wrestled on or after 2005, when
WWEs knowledge of the non-disclosed facts is alleged to have begun, their
claims for fraudulent non-disclosure may proceed. Id. However, the fraud
claims of all other plaintiffs who wrestled before 2005 were dismissed. Id. Here,
42

Despite being previously advised of the utter falsity of certain allegations


against WWE, Plaintiffs counsel continue to plagiarize allegations made against
the NFL, such as: (a) WWE made, and continues to make, material
misrepresentations to its wrestlers, former wrestlers, and the public at large that
there was and is no scientifically proven link between repetitive traumatic head
impacts and later-in-life cognitive/brain injury, including CTE and its related
symptoms; (b) WWE made public statements, published articles, and issued
pamphlets and paraphernalia to its wrestlers; and (c) WWEs
misrepresentations included ongoing and baseless criticism of legitimate
scientific studies that set forth the dangers and risks of head impacts which WWE
wrestlers regularly sustained. Compl. 532, 534, 538. Plaintiffs counsel well
knew that these false allegations, directly plagiarized from the complaint in the
NFL lawsuit, are not true with respect to WWE which, for example, has never
published articles at all or issued public statements criticizing any scientific
studies or making any statement as to whether there is a scientifically-proven link
between repetitive head impacts and brain injury but once more asserted them
against WWE nonetheless. The full details of the plagiarism scheme are set forth
in WWEs Rule 11 Motion. See Dkt. 229.
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Plaintiffs plead at odds with the complaint filed by the same counsel in
McCullough that WWEs alleged actions and omissions and fraudulent
conduct began in 2006, though no basis for that allegation is specifically
identified. See Compl. 482.43 Moreover, even assuming Plaintiffs conclusory
allegation of 2006, the only plaintiffs who are alleged to have wrestled on or after
that date are Messrs. Brunk, Grenier, Guerrero IV, Harris, and Heidenreich
whose claims are otherwise defective for the reasons described herein. See
Compl. 63, 67, 72, 84, 95.
3.

Plaintiffs Negligence-Based Claims Fail As A Matter Of Law


a.

WWE Owed No Negligence-Based Duties to Plaintiffs

Just as in McCullough I, Plaintiffs negligence-based claims in Counts IX, X,


XI and Count V seeking medical monitoring due to WWEs alleged negligence,
fraud, and misrepresentations (Compl. 477), are barred by the Connecticut
Supreme Courts ruling in Jaworski v. Kiernan, 241 Conn. 399, 405-06 (1997).
Under Connecticut law, whether a defendant owes a duty to the plaintiff is a
question of law for the Court. Id. In Jaworski, the Connecticut Supreme Court
established the critical factors to consider when determining the existence and
extent of a duty in sporting-type activities, stating [t]he normal expectations of
43

Despite this allegation, the Complaint elsewhere inconsistently asserts without


a shred of factual basis that WWE supposedly has known for decades that TBI
can and does lead to long-term brain injury, including, but not limited to, memory
loss, dementia, depression, and CTE and its related symptoms. Compl. 264.
Such internally inconsistent allegations need not be accepted by the Court in
deciding WWEs Motion to Dismiss. See Pierce v. Fordham Univ., Inc., No. 15-CV4589 (JMF), 2016 WL 3093994, at * 2 n.1 (S.D.N.Y. June 1, 2016) ([W]here a
plaintiffs own pleadings are internally inconsistent, a court is neither obligated
to reconcile nor accept the contradictory allegations in the pleadings as true in
deciding a motion to dismiss.); Carson Optical Inc. v. eBay Inc., No. 15-CV-3793
(KAM) (SIL), 2016 WL 4385998, at *5 (E.D.N.Y. Aug. 17, 2016) (same).

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participants in contact team sports include the potential for injuries resulting
from conduct that violates the rules of the sport. These expectations, in turn,
inform the question of the extent of the duty owed by one participant to another.
Id. at 408. Thus, under Jaworski, a threshold determination that the specific harm
alleged by the plaintiff was foreseeable to the defendant does not mandate that
the defendant had a legal duty to plaintiff regarding such foreseeable harm. Id. at
406-07. Instead, Jaworski establishes that other factors determine whether a duty
exists to protect participants from injuries which are inherent to the activity.
Those factors include the normal expectations of participants in the activity in
which plaintiff and defendant were engaged, the avoidance of increased litigation
by participants in activities where injuries are an inherent part of the activity, the
public policy of encouraging participation in sporting activities, and decisions of
other jurisdictions regarding such matters. Id. at 407.
After considering such factors, the Connecticut Supreme Court ruled that
the duty owed plaintiff was not a negligence-based duty, but instead was to
refrain from reckless or intentional misconduct and left open the question of
whether any duty exists when physical contact is an integral part of the activity.
Id. at 409. Under Connecticut law, recklessness is more than negligence and
more than gross negligence, and requires both the action producing the injury
and the resulting injury to have been intentional. See Dubay v. Irish, 207 Conn.
518, 532-33 (1988).
Jaworskis holding that negligence concepts do not apply in sporting-type
situations was applied to allegations identical to those here. See McCullough I,

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2016 WL 1122016, at *26. In McCullough, this Court found that Plaintiffs were
professional wrestlers who were financially compensated to engage in an activity
in which physical violence was a known and even purposeful part of the activity.
They were injured by other participants in what the plaintiffs describe as a
scripted performance and thus in a manner that the plaintiff[s] knew or should
have reasonably anticipated. Id. Accordingly, their claims are well within the
type of claims for which Jaworski provides an exception to the general duty of
care. Id.
Three other courts have recently dismissed negligence claims for alleged
traumatic brain injuries, including CTE, arising from sporting-type activities
because there is no duty to protect participants against the risk of head injuries
inherent in the activities. See Mayall, 2016 WL 1254034; Mehr, 2015 WL 4366044;
Pierscionek v. Ill. High Sch. Assn, No. 14-CH-19131, 2015 WL 6550826 (Ill. Cir. Ct.
Cook Cnty. Oct. 27, 2015).
As in McCullough, Plaintiffs here repeatedly admit the inherent risk of head
injuries in their profession.

As such each of the Named Plaintiffs as a WWE performer sustained


neurological injuries by simply participating in WWE matches. (Compl.
6).

Such repetitive blows often result in WWE from punches, kicks, and
solid blunt objects striking the skull, or being forcefully thrown to the
ground onto the wrestlers head, neck, and back. For example, the body
slam is one of the most basic maneuvers in wrestling, and even when
correctly performed, results in the rapid deceleration of the brain within
the skull upon hitting the mat, causing injury. (Compl. 35 n.14)
(emphasis added).

The Named Plaintiffs sustained hundreds of blows to their heads and


damaging rapid deceleration during their careers with WWE. . . . [M]any
of these blows were routinely repeated as the most common moves

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resulted in head impacts and brain trauma. (Compl. 147) (emphasis


added).

The long-term effects of the repeated falls, bumps, blows, and rapid
deceleration to the head in routine and even correctly executed
maneuvers, the Named Plaintiffs sustained have resulted in long-term
degenerative neurological illnesses and diseases. (Compl. 148)
(emphasis added).

WWE wrestling, like professional football, involves repetitive head


impacts causing concussive and sub-concussive injuries. (Compl.
188).

These judicial admissions conclusively establish that Plaintiffs assumed the


inherent risks of professional wrestling precluding liability for negligence-based
claims under Jaworski.
b.

Plaintiffs Fail to State Claims for Negligent Hiring (Count X)


and Negligent Retention44 (Count XI)
__

As described at length in WWEs Rule 11 Motion (Dkt. 229), Plaintiffs


negligent hiring and negligent retention causes of action are completely
plagiarized from a lawsuit against the NFL. This has led to such ridiculous nonsequiturs in Plaintiffs Complaint as alleging in the negligent hiring count that
WWEs negligence allowed the MTBI Committee to use falsified industry-funded
research to mislead the Plaintiffs. Compl. 548. The NFL formed the Mild
Traumatic Brain Injury (MTBI) Committee; it has no relation whatsoever to
WWE. The assertion of this, and many similar false allegations, against WWE so
blatant on their face, is manifest bad faith in violation of Rule 11.
Being wholly plagiarized, it is not surprising that Plaintiffs fail to allege
44

The viability of a claim for negligent retention is in doubt. It has been


recognized by the Superior Court, but not by the appellate courts of the state.
Loglisci v. Stamford Hosp., No. CV085009309S, 2011 WL 1026821, at *8 (Conn.
Super Feb. 22, 2011); see also OConnell v. Salon Shahin, Inc., No.
FSTCV106003571S, 2013 WL 6925920, at *3 (Conn. Super. Dec. 3, 2013).

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sufficient facts to meet Connecticuts negligent hiring and retention pleading


requirements. Under Connecticut law, a negligent hiring claim requires a
plaintiff to plead and prove that he was injured by the defendant's own negligence
in failing to select as its employee a person who was fit and competent to perform
the job in question and that his injuries resulted from the employee's unfit or
incompetent performance of his work. Miller v. Edward Jones & Co., 355 F.
Supp. 2d 629, 648 (D. Conn. 2005). In a claim for negligent retention, a plaintiff
must plead and prove that an employer, during the course of employment,
became aware of problems that indicate a lack of fitness for the position, that the
unfitness was likely to cause the sort of harm incurred by the plaintiff; and that
the employer failed to take action. Clark v. Knochenhauer, No.
MMXCV146011914, 2015 WL 7941283, at *3 (Conn. Super. Nov. 12, 2015). In
granting a motion to dismiss negligent hiring claims, the court in Miller v. Ethan
Allen Global, Inc., Civil No. 3:10-CV-1701 (JCH), 2011 WL 3704806 (D. Conn. Aug.
23, 2011), pertinently held:
Miller has not alleged any facts identifying the individual responsible
for the alleged negligent hiring. Miller alleges that both [co-workers]
are responsible for causing her harm, but she does not identify what
harm is attributable to each individual, nor does she identify why
each individual was unfit for their respective positions. Miller fails to
give facts regarding the date or time that the alleged harm took
place. And finally, Miller has failed to allege any facts describing
how the individual doing the hiring was negligent.
Miller, 2011 WL 3704806, at *11. Similarly, in Fletcher, this Court granted a motion
to dismiss a negligent hiring claim where:
the complaint contain[ed] no allegations regarding the identity of the
person who was negligently hired or the identity of the person who
made the hiring decision. No facts [were] alleged to show that the
employee whose hiring [was] at issue was unfit or incompetent for
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his or her position. No facts [were] alleged to show that the person
who made the hiring decision was negligent. No facts [were] alleged
to show when or in what manner the unidentified employee whose
hiring [was] at issue caused harm to the plaintiff. And no facts [were]
alleged to show a causal link between the harm suffered by the
plaintiff and a hiring decision by any defendant.
Fletcher v. City of New Haven Dept. of Police Servs., No. 3:10-CV-558(RNC), 2011
WL 1302247, at *3 (D. Conn. Mar. 31, 2011).
This case is even worse than Miller and Fletcher since it involves 53
different people who performed in different eras, sometimes decades apart, when
different staff was employed by WWE. As in Miller and Fletcher, none of the 53
Plaintiffs allege: (1) the identity of the person who was negligently hired, (2)
why each individual was unfit for their respective positions, (3) what harm is
attributable to each individual, (4) the identity of the person who made the
hiring decision,(5) how the individual doing the hiring was negligent, or (6) a
causal link between the harm suffered by the plaintiff and a hiring decision by any
defendant. These deficiencies, which result from plagiarizing allegations made
against the NFL without investigation, mandate the dismissal of Plaintiffs
negligent hiring and retention claims.
c.

Plaintiffs Claims Based on the Alleged Negligence of WWEs


Medical Staff Fail to Comply with the Requirements of C.G.S.
52-190a

Counts V, VI, and IX-XI must be dismissed because Plaintiffs did not file a
certificate of good faith or an opinion letter from a health care provider stating
that medical negligence has occurred as required by C.G.S. 52-190a.
[D]ismissal is the mandatory remedy when a plaintiff fails to file an opinion letter
that complies with 52-190a(a). Bennett v. New Milford Hosp., Inc., 300 Conn. 1,

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28 (2011). Section 52-190a applies to any action in which injury or death is


allegedly caused by the negligence of a health care provider even if the party
sued is not a health care provider. The health care provider referenced in the
statute is the person who allegedly committed the medical malpractice, not the
person or institution that ultimately may be held liable for that malpractice.
Wilkins v. Conn. Childbirth & Womens Ctr., 314 Conn. 709, 722-23 (2014).
The requirements of Section 52-190a plainly apply to this case because
Plaintiffs repeatedly allege that they suffered injuries and death (as it applies to
Knighton) as a result of negligence by WWEs medical staff. See Complaint
20, 22, 161-62, 213, 281, 313-14, 495. Indeed, the Complaint alleges WWEs
doctors and medical personnel failed to properly monitor, diagnose, and treat
Plaintiffs before, during, and after the wrestling matches and Plaintiffs
reasonably relied on [WWEs] medical personnel in determining whether they
should return to the ring and continue fighting or practicing or had suffered
serious injury necessitating further medical treatment. Id. at 313-14. Expert
testimony would be required to establish these allegations. See Wilkins, 314
Conn. at 723 n.4 (If an expert is needed to establish the standard of care, a
fortiori, an opinion letter is required from a similar health care provider.).
Plaintiffs failure to comply with the requirements of 52-190a merits dismissal of
Counts V, VI, IX-XI. See Rose v. City of Waterbury, No. 3:12cv291(VLB), 2013 WL
1187049, at *8 (D. Conn. Mar. 21, 2013).
4.

Knightons Wrongful Death Claim Fails to Allege A Plausible Causal


Connection Between WWEs Conduct and the Decedents Injury

To state a claim under Connecticuts wrongful death statute, [t]he plaintiff

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must prove not only a violation of a standard of care as a wrongful act, but also a
causal relationship between the injury and the resulting death. Ward v. Greene,
267 Conn. 539, 546 (2004) (emphasis added). A causal relation between the
defendants wrongful conduct and the plaintiffs injuries is a fundamental element
without which a plaintiff has no case. Id. [I]t is the plaintiff who bears the
burden to prove an unbroken sequence of events that tied [his] injuries to the
[defendants conduct]. . . . This causal connection must be based upon more than
conjecture and surmise. Alexander v. Town of Vernon, 101 Conn. App. 477, 485
(2007) (citation omitted) (first emphasis added, second emphasis in original).
Here, Plaintiff Bernard Knighton alleges that WWE caused [Brian
Knighton] to develop the debilitating brain diseases and conditions . . ., which . . .
caused . . . the death[ ] of [Knighton]. No specific brain disease is identified.
Compl. 93, 495. In reality, Knightons official cause of death was that he died
of a drug overdose due to heroin intoxication.45 The official neuropathology
report states the brainstem and cerebellum are externally unremarkable and
concludes Knighton has a [n]ormal brain. See Ex. C.
Furthermore, given the years between when Knighton last performed for
WWE and his death from a drug overdose, there could never be an unbroken
sequence of events tying any injuries to his death. This is especially true
considering Knighton only performed in a handful of WWE matches and was only
under contract with WWE for one month out of his entire wrestling career.
45

The autopsy and neuropathology reports are attached hereto as Ex. C. The
Court can take judicial notice of these documents on a 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).

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Indeed, Plaintiffs admit that Knighton wrestled for Extreme Championship


Wrestling (ECW) which promoted an extreme style of wrestling which featured
hardcore matches. In hardcore wrestling, the participants use ladders, tables
and chairs as well as other objects to strike each other. Id. at 93. Thus,
Knightons short time in the WWE cannot possibly be said to have caused
Knighton to suffer a neurodegenerative disease which, as noted, is not even
alleged in the first place. See Grody v. Tulin, 170 Conn. 443, 448-49 (1976) ([i]f
the chain of causation of the damage, when traced from the beginning to the end,
includes an act or omission which. . . is or becomes of no consequence in the
results or so trivial as to be a mere incident of the operating cause, it is not such
a factor as will impose liability for those results.). Knighton simply did not die
from a brain injury but from a drug overdose which WWE has nothing to do with.
McDermott v. Conn., 316 Conn. 601, 616 (2015) (holding that the harm actually
suffered must be of the same general type as that which makes the defendants
conduct tortious in the first place); see also Rose, 2013 WL 1187049, at *9. This
Court has relied on the Grody rule of causation to dismiss wrongful death claims
at the motion to dismiss phase. See Rose, 2013 WL 1187049, at *9 (granting Rule
12(b)(6) motion because [p]laintiffs have failed to allege any causal relationship
between the Hospitals conduct and Browns death to maintain a wrongful death
claim against the Hospital).46

46

Connecticuts 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). Thus, claims for ante-mortem damages resulting from the same
conduct that allegedly caused the death must be brought under the wrongful
death statute. See 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
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E.

The Claims of 19 of the 53 Plaintiffs Are Barred By Contractual Releases


At least nineteen (19) Plaintiffs have executed releases barring the claims

alleged in the Complaint. A court may consider a release on a motion to dismiss.


See Tromp v. City of. N.Y, 465 Fed. Appx. 50, 52-53 (2d Cir. 2012) (affirming Rule
12(b)(6) dismissal based on general release); Pesserillo v. Natl Grid, 78 F. Supp.
3d 551, 554-55 (E.D.N.Y. 2015) (considering release on a motion to dismiss
because the release is integral to [plaintiffs] ability to pursue his cause of
action.); Arcari v. 46th St. Dev. LLC, No. 10 Civ. 3619(PKC), 2011 WL 832809, at
*4 (S.D.N.Y. Mar. 2, 2011) (considering termination agreements containing liability
releases on a motion to dismiss). The following Plaintiffs have signed releases
barring their claims in this lawsuit:

Carlene Moore-Begnaud (Dated January 18, 2007; 3, 3.1, 3.2, 5.2, 5.3, 6;
attached as Ex. D);

Rodney Begnaud (Dated January 18, 2007; 3, 3.1, 3.2, 5.2, 5.3, 6;
attached as Ex. E);

Mark Canterbury (Dated June 15, 2016; 3; attached as Ex. F);

Bryan Emmett Clark, Jr. (Dated January 9, 1996; 1, 4; attached as Ex. G);

Marc Copani (Dated September 20, 2005; 7; attached as Ex. H);

Michael Enos (Dated September 9, 1993; 6; attached as Ex. I);

Bill Eadie (Dated May 25, 2001; 2, 3, 4, 6, 7; attached as Ex. J);

Michael Halac (Dated July 24, 1997; 5; attached as Ex. K);

James Harrell (Dated February 28, 1991; 5; attached as Ex. L);

James Harris (Dated September 9, 1993; 5; attached as Ex. M);

Marty Jannetty (Dated February 9, 1993 & September 15, 1995; 5 (1993) &
______________________
of ante-mortem damages, flowing from the same tort, in another action brought
under [the survival statute].). Counts II, V, VII-XV, which allege that Knighton
suffered injuries resulting in death and seek damages for the consequences of
his death, could only be brought pursuant to the wrongful death statute and
therefore fail for the same reasons his wrongful death claim fails.

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1 (1995); attached as Ex. N);

Mark Jindrak (Dated July 12, 2005; 6; attached as Ex. O);

Rick Jones (Dated January 11, 1991; 6; attached as Ex. P);

Joseph Laurinaitis (Dated June 6, 2006; 1, 5.2, 5.3, 6); attached as Ex. Q);

Troy Martin (Dated December 19, 1995; 1, 6; attached as Ex. R);

John Nord (Dated January 15, 2016; 13; attached as Ex. S);

Anthony Norris (Dated March 6, 1998; 7; attached as Ex. T);

James W. Snuka-Reiher (Dated November 15, 1991; 5; attached as Ex. U);

Terry Szopinski (Dated May 18, 1992 & January 8, 2015; 1, 5 (1992) &
13 (2015); attached as Ex. V).
III.

CONCLUSION

For all of the foregoing reasons, Plaintiffs Complaint should be dismissed


in its entirety with prejudice.
DEFENDANT WORLD WRESTLING
ENTERTAINMENT, INC.,
By: _ /s/ Jerry S. McDevitt
_________
Jerry S. McDevitt (pro hac vice)
Curtis B. Krasik (pro hac vice)
K&L GATES LLP
K&L Gates Center
210 Sixth Avenue
Pittsburgh, PA 15222
Phone: (412) 355-6500
Fax: (412) 355-6501
Email: jerry.mcdevitt@klgates.com
Email: curtis.krasik@klgates.com
Jonathan B. Tropp (ct11295)
Jeffrey P. Mueller (ct27870)
DAY PITNEY LLP
242 Trumbull Street
Hartford, CT 06103
Phone: (860) 275-0100
Fax: (860) 275-0343
Email: jbtropp@daypitney.com
Email: jmueller@daypitney.com
Its Attorneys.
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CERTIFICATION
I hereby certify that on October 19, 2016 a copy of foregoing was filed
electronically and served by mail on anyone unable to accept electronic filing.
Notice of this filing will be sent by e-mail to all parties by operation of the Courts
electronic filing system or by mail to anyone unable to accept electronic filing as
indicated on the Notice of Electronic Filing. Parties may access this filing
through the Courts CM/ECF System.
_/s/ Jeffrey P. Mueller__________

76