McCullough v. World Wrestling Entm't, Inc.

• Decision Date: 17 September 2018
• Docket Number: CIVIL ACTION NO. 3:15-CV-1074 (VLB) LEAD CASE,CIVIL ACTION NO. 3:15-CV-994 (VLB) CONSOLIDATED CASE,CIVIL ACTION NO. 3:16-CV-1209 (VLB) CONSOLIDATED CASE
• Court: U.S. District Court — District of Connecticut
• Parties: RUSS MCCULLOUGH, et al. Plaintiffs, v. WORLD WRESTLING ENTERTAINMENT, INC., Defendant. WORLD WRESTLING ENTERTAINMENT, INC., Plaintiff, v. ROBERT WINDHAM, THOMAS BILLINGTON, JAMES WARE, and OREAL PERRAS, Defendants. JOSEPH M. LAURINAITIS, et al., Plaintiffs, v. WORLD WRESTLING ENTERTAINMENT, INC. and VINCENT K. MCMAHON Defendants.

RUSS MCCULLOUGH, et al. Plaintiffs, v. WORLD WRESTLING ENTERTAINMENT, INC., Defendant.

WORLD WRESTLING ENTERTAINMENT, INC., Plaintiff, v. ROBERT WINDHAM, THOMAS BILLINGTON,JAMES WARE, and OREAL PERRAS, Defendants.

JOSEPH M. LAURINAITIS, et al., Plaintiffs, v. WORLD WRESTLING ENTERTAINMENT, INC.and VINCENT K. MCMAHON Defendants.

CIVIL ACTION NO. 3:15-CV-1074 (VLB) LEAD CASE

CIVIL ACTION NO. 3:15-CV-994 (VLB) CONSOLIDATED CASE

CIVIL ACTION NO. 3:16-CV-1209 (VLB) CONSOLIDATED CASE

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

September 17, 2018

MEMORANDUM OF DECISION GRANTING DEFENDANTS' MOTIONS FOR JUDGMENT ON THE PLEADINGS [DKT. NO. 205] AND TO DISMISS [DKT. NOS. 266, 269] AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SANCTIONS [DKT, NO. 262]

I. Introduction

On September 29, 2017, this Court issued an order (the "Order") regarding a motion for judgment on the pleadings and motions to dismiss and for sanctions filed by World Wrestling Entertainment, Inc. ("WWE") and Vincent McMahon (collectively, Defendants). The Order directed counsel for the Plaintiffs in the Laurinaitis action ("Laurinaitis Plaintiffs") and declaratory judgment Defendants in the Windham action ("DJ Defendants" or "Windham Defendants") (collectively, "Plaintiffs" or the "Wrestlers") to "file amended pleadings which comply with Federal Rules of Civil Procedure 8 and 9 and which set forth the factual basis of their claims or defenses clearly and concisely in separately numbered paragraphs." [Dkt. No. 362 at 20]. In order to assist Plaintiffs' counsel to meet their theretofore unsatisfied pleading obligation—as noted in the Court's prior rulings—and to mitigate any potential further prejudice to the Defendants, the Court also required the Wrestlers' counsel to demonstrate that they had conducted factual due diligence in preparation for filing an amended complaint by:

submitting for in camera review affidavits signed and sworn under penalty of perjury, setting forth facts within each plaintiff's or [declaratory judgment] defendant's personal knowledge that form the factual basis of their claim and defense, including without limitation:

1. the date or dates on which they wrestled for WWE or any or its agents or affiliates (including the first and last date);

2. if they wrestled for more than one person and or entity, for whom they wrestled, and for what period of time;

3. whether they ever signed any agreement or other document in connection with their engagement to wrestle by or for WWE or any of its agents or affiliates;

4. whether they were ever or are now in possession of any document relating to their engagement to wrestle by or for WWE or any of its agents or affiliates, including without limitation W-4s, W-2s or 1099s; and

5. what specific WWE employees or agents said or did that forms the basis of each and every one of the claims or defenses in the wrestler's pleading, including:

a. a reference to the specific paragraph of the complaint;b. when and where such act occurred or such statement was made;

c. the identities of any and all the persons present at the time of the act or statement; and

d. any and all other facts personally known to the affiant that form the basis of their belief that WWE or any or its agents or affiliates knew or should have known that wrestling caused any traumatic brain injuries, including CTE.

Id. at 20-21. The Court reserved its judgment on pending motions to dismiss, for judgment on the pleadings, and for sanctions, to give the Wrestlers a final opportunity to file pleadings that complied with both the Federal Rules of Civil Procedure and the Order.

The Wrestlers filed a Second Answer in the Windham action [Dkt. No. 364] and a Second Amended Complaint ("SAC") in the Laurinaitis action [Dkt. No. 363] on November 3, 2017. The Wrestlers' counsel also submitted for in camera review affidavits from each Wrestler. After reviewing each of these submissions, and for the reasons that follow, the Court finds that Wrestlers' counsel did not comply with the Order and that declaratory judgment, dismissal, and sanctions are warranted.

II. Background

On January 16, 2015, Plaintiff's counsel, Konstantine Kyros filed the first of six lawsuits on behalf of former WWE wrestlers, alleging they are either suffering from symptoms of permanent degenerative neurological conditions resulting from traumatic brain injuries sustained during their employment, or are at increased risk of developing such conditions. As set forth below, this case has been characterized by Attorney Kyros' repeated failures to comply with the clear, and unambiguous provisions of the Federal Rules of Civil Procedure and thisCourt's repeated instructions and admonitions, which has resulted in a considerable waste of the Court's and the Defendants' time and resources.

A. Attorney Kyros' Attempts to Evade the Court's Jurisdiction

The first of the consolidated cases, with lead plaintiffs Evan Singleton and Vito LoGrasso, purported to be a class action and was transferred to this Court from the Eastern District of Pennsylvania pursuant to a forum selection clause in contracts signed by each of the plaintiffs. [Dkt. No. 6]. Thereafter, Attorney Kyros filed several purported class actions in districts other than Connecticut, each seeking the same or similar redress for the same alleged conduct as the purported class action pending before this Court. Each of these cases was subsequently transferred to this Court, with the District of Oregon noting that counsel's choice of forum showed evidence of forum shopping. Attorney Kyros them filed the Laurinitis action in this district but which was randomly assigned to Judge Eginton, thereupon Attorney Kyros attempted to prevent the case from being transferred to this Court, despite the clear and unambiguous language of this district's related case rule.

WWE sought sanctions against Kyros due to his persistence in filing suit in courts outside of this district. In the exercise of utmost restraint the Court denied this motion, but noted that Kyros' actions appeared to be "part of a vexatious and transparent attempt to circumvent two prior decisions by district courts in Oregon and California either enforcing the forum-selection clauses or nonetheless transferring WWE concussion litigation to this district." [Dkt. No. 253 at 25]. The Court also noted that "Plaintiffs' forum-shopping has forcedmultiple district courts to exert needless effort to corral these cases to the proper forum." Id. Nevertheless, the Court denied WWE's motion for sanctions because Kyros had filed the most recent of the consolidated cases in the correct district. Id. at 25-26. The Court noted, however, that it was "open to reconsidering this finding at a later date should Kyros revert to bad habits." Id. at 26.

B. Attorney Kyros Repeatedly Files Complaints Rife with Irrelevant, Inflammatory, and Inaccurate Information

The complaints in the initial actions consolidated before this Court were nearly identical. They were exceedingly long and consisted of paragraphs asserting generalities, legal conclusions and facts unrelated to the plaintiffs' claims. The Court repeatedly instructed Attorney Kyros on his professional obligations under Federal Rules of Civil Procedure 8, 9, and 11. For example, in a June 8, 2015 scheduling conference, the Court admonished Plaintiffs that "[t]he defendant shouldn't have to write a motion to dismiss, nor should the Court have to read, research, and write a decision on a motion to dismiss when it's patently clear to the parties prior to the filing of the motion, that the claim should be dismissed." [Case No. 15-cv-425, Dkt. No. 73 at 49]. The Court went on to explain that:

"[A] complaint should be a compilation of facts - facts. I'd really, really like you to read the Federal rule, give it some close consideration, perhaps read some cases on the pleadings standards, and then file this complaint again in a week without any scrivener errors, without a lot of superfluous, hyperbolic, inflammatory opinions and references to things that don't have any relevance."

Id. at 60. The Court specifically noted that the Singleton complaint referenced a report that became public in 2014, claimed that the plaintiffs were deceased whenthey were not, and referenced events that transpired in the lives of wrestlers who were not parties to the lawsuit. Id. at 60-64. The Court asked,

"What does that have to do with either of your clients? They had both stopped wrestling before 2014. I see no reason to include that in the complaint, other than to inflame. It's argumentative. A complaint should be a clear and concise statement of the facts that form the basis of your claim. So you need to identify what claim you're asserting, do the research to find out what facts have to be proven in order to establish that claim and allege the facts that are necessary to prove each claim. Because the rest of that is just window dressing. And that's where you get into the trouble that you're in where you're asserting that someone's dead who's not because the complaint is full of hyperbolic stuff . . . . [I]t may be clear, but . . . it's not concise and it's not accurate.

Id. at 61. The Court then granted the plaintiffs leave to amend their complaint, which they did.

Despite deficiencies in the amended complaints filed in the Singleton case and others, the Court considered WWE's motions to dismiss the complaints on their merits, and dismissed claims (1) for negligence for failure to state a claim under Connecticut law; (2) for negligent misrepresentation and fraudulent deceit, for failure to identify with any specificity any false representation by WWE upon which the plaintiffs relied; (3) and for fraudulent concealment and medical monitoring, because neither stated a separate and independent cause of action under Connecticut law. [Dkt. No. 116 at 70]. The ruling also stated that the complaints were "excessively lengthy, including large numbers of paragraphs that...