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PI-3806379 v1
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
WORLD WRESTLING ENTERTAINMENT,
INC.,
Plaintiff,
vs.
ROBERT WINDHAM, THOMAS
BILLINGTON, JAMES WARE, OREAL
PERRAS, and VARIOUS JOHN DOES
Defendants.
Case No.
COMPLAINT
Plaintiff World Wrestling Entertainment, Inc. (WWE) files this
Complaint against
Defendants Robert Windham, Thomas Billington, James Ware, Oreal
Perras and various John
Does (collectively Defendants), averring as follows:
NATURE OF THE ACTION
1. By this action, WWE seeks a declaration that claims relating
to alleged traumatic
brain injuries and/or other tort claims Defendants have
threatened against WWE are time-barred
by the applicable statutes of limitations/statutes of repose
under Connecticut law.
2. WWE is an integrated media and entertainment company
featuring its unique
brand of wrestling-based sports entertainment programming. WWE
develops multi-faceted
storylines centered around the athletic and entertainment skills
and appeal of its talent, and
presents that content via the WWE network, broadcast and cable
television, online and live
events.
3. WWE has maintained its corporate headquarters in Connecticut
since in or around
the early-1980s. Since that time, Connecticut has been and
remains the nerve center of WWEs
global operations. All essential corporate functions of WWE for
example, executive
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management, marketing, promotion, television production, the WWE
Network, video library,
accounting, legal, and talent relations operate out of WWEs
Connecticut facilities and all
significant corporate decisions of WWE are made in Connecticut.
Historically, WWE talent
have come from all over the world. For uniformity and
predictability, WWEs contracts with its
talent, known as booking contracts, typically have provided
since at least in or around the early-
1980s that they are governed by Connecticut law and since at
least in or around 1991 that any
disputes arising out of or related to such contracts must be
litigated exclusively in Connecticut.
4. Connecticut has a strong public policy against the litigation
of stale and fraudulent
tort claims, which is reflected in strict statutes of repose
that bar tort claims if not brought within
three years of the act or omissions complained of, even if a
cause of action has not accrued by
that time. C.G.S. 52-577 and 52-584 both contain repose
provisions against untimely tort
claims.
5. Three of the Defendants are former-professional wrestlers who
long ago
performed for WWE. Specifically, Defendant Windham last
performed for WWE in or around
1986; Defendant Billington last performed for WWE in or around
1988; Defendant Ware last
performed for WWE in or around 1999. Defendant Perras last
performed for an entity known as
Capitol Wrestling Corporation.
6. The specifically named Defendants did not complain to WWE
regarding any
alleged injuries supposedly caused by WWE in the decades since
they last performed. On June
2, 2015, the named Defendants, through an attorney named
Konstantine W. Kyros (Kyros),
out-of-the-blue sent WWE identical letters claiming for the
first time that they were allegedly
injured as a result of WWEs negligent and fraudulent conduct
(the Notice Letters, Exs. A-
D).
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7. John Doe Defendants are former performers who have not
performed for WWE
within three years and who have signed, or do sign, retainer
agreements with Konstantine Kyros,
or any other attorney working in concert with Kyros, to assert
tort claims against WWE.
8. Last year, Kyros began an internet solicitation scheme
attempting to recruit
persons to serve as plaintiffs in suits against WWE patterned
after the cases lodged against the
National Football League (NFL) for alleged traumatic brain
injuries (TBIs), including
specifically Chronic Traumatic Encephalopathy (CTE).
9. Kyros has since filed or caused to be filed five separate
lawsuits in courts across
the country against WWE, including three putative class actions
relating to TBIs supposedly
sustained by former-WWE performers. The first was filed on
October 23, 2014 in federal court
in Oregon styled as William Albert Haynes, III, individually and
on behalf of all others similarly
situated, v. World Wrestling Entertainment, Inc.,
3:14-cv-01689-ST (D. Or.) (the Haynes Suit).
By Opinion and Order of the Honorable Janice M. Stewart dated
June 25, 2015, the Haynes suit
was transferred to this Court. Second, Kyros filed the case
styled Evan Singleton and Vito
LoGrasso v. World Wrestling Entertainment, Inc., No.
5:15-cv-00223 (D. Conn.) (the Singleton
Suit) as a purported class action on January 16, 2015 in federal
court in Pennsylvania. By order
of the federal court in Pennsylvania on March 23, 2015, the
Singleton suit was transferred to this
Court. Third, he brought Cassandra Frazier, individually and as
next of kin to her deceased
husband, Nelson Lee Frazier, Jr., and as personal representative
of the Estate of Nelson Lee
Frazier, Jr., deceased, v. World Wrestling Entertainment, Inc.,
No. 2:15-cv-02198 (W.D. Tenn.)
(the Frazier Suit) on February 18, 2015. Fourth, to avoid the
jurisdiction of the federal court in
Connecticut, on information and belief, he caused the case
styled Russ McCullough a/k/a Big
Russ McCullough, Ryan Sakoda, and Matthew R. Wiese a/k/a Luther
Reigns, individually,
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and on behalf of all others similarly situated, v. World
Wrestling Entertainment, Inc., No. 2:15-
cv-02662-AB-JEM (C.D. Cal) (the McCullough Suit) to be filed in
federal court in California
on April 9, 2015. Fifth, on June 26, 2015, one day after the
federal court in Oregon issued an
order finding that Kyros had engaged in forum shopping and
transferred the Haynes Suit to this
Court, Kyros filed yet another suit against WWE in the United
States District Court for the
Northern District of Texas on behalf of the girlfriend of a
former performer, Matthew Osborne,
who died in June of 2013. That suit is styled Michelle James, as
mother and next friend of
Matthew Osborne, a minor child and Teagan Osborne, a minor
child, No. 3:15-CV-02146-L in
the United States District Court for the Northern District of
Texas (the James Suit).
10. These lawsuits, in reality, are part of an ongoing scheme by
Kyros to troll for and
recruit new plaintiffs to file additional strike lawsuits
against WWE in multiple jurisdictions to
vexatiously increase the cost of defending stale and meritless
lawsuits and to avoid the
jurisdiction of this Court and the application of Connecticut
law to stale and meritless claims.
11. Emblematic of such a dubious purpose, each of the lawsuits
to date assert patently
time-barred claims based on false, salacious and irrelevant
allegations, which Kyros repeats in
each case despite knowing that he is making false
allegations.
12. The complaints in each of the lawsuits echo the same theme
alleged against the
NFL even though the allegations do not fit when made against
WWE. Specifically, each suit
claims that concussive and sub-concussive blows cause a
neuro-degenerative disease called
chronic traumatic encephalopathy (CTE); that the plaintiffs
routinely received concussive and
sub-concussive blows; that there are certain specific symptoms
associated with CTE; that
medical and scientific research has existed in the public domain
regarding such matters for some
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time; and that WWE somehow concealed and/or failed to disclose
such publicly-available
information published by third parties to plaintiffs.
13. Additionally, Kyros filed the lawsuits in five different
jurisdictions around the
country in an effort to avoid the statutes of
limitations/statutes of repose applicable under
Connecticut law, including four such cases where the plaintiffs
had agreed to mandatory forum
selection clauses mandating that such suits be brought in
Connecticut.
14. By the June 2, 2015 letters, Kyros has threatened WWE with
similar claims on
behalf of the specifically named Defendants. In light of the
pending lawsuits Kyros has filed or
caused to be filed against WWE, his blatant and now adjudicated
forum shopping, and his efforts
to avoid the jurisdiction of Connecticut, an actual dispute or
controversy exists between WWE
and Defendants with respect to whether the TBI-related and/or
other tort claims threatened by
Kyros in the June 2, 2015 letters are time-barred.
THE PARTIES
15. Plaintiff WWE is a Delaware corporation with its principal
place of business at
1241 East Main Street, Stamford, Connecticut 06902. WWE is an
integrated media and
entertainment company principally engaged in the development,
promotion, and marketing of
television programming and live arena events, and the licensing
and sale of branded consumer
products.
16. Defendant Windham is an individual who resides in Groveland,
Florida.
Defendant Windham performed for WWE from in or around 1985
through in or around February
1987 under the name Black Jack Mulligan.
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17. Defendant Billington is an individual who resides in
Cheshire, England.
Defendant Billington performed for WWE from in or around 1984
through in or around
November 1988 under the name Dynamite Kid.
18. Defendant Ware is an individual who resides in Collierville,
Tennessee.
Defendant Ware performed for WWE from in or around 1986 through
in or around 1994, with a
short-lived return in 1999.
19. Defendant Perras is an individual who resides in
Winterville, North Carolina.
Defendant Perras performed for Capitol Wrestling Corp. decades
ago.
20. Defendant John Does are former performers of WWE who have
not performed for
WWE within the past three years and who have signed, or do sign,
retainer agreements with
Kyros, or any attorney working in concert with him to assert
tort claims against WWE. On
information and belief, Kyros and certain of the former
performers he has enlisted in the effort
continue to try to recruit other former performers to sue WWE in
the hope it will maximize their
ability to obtain monies from WWE to settle all such claims
instead of incurring substantial
defense costs litigating stale and fraudulent claims in multiple
jurisdictions around the country.
JURISDICTION AND VENUE
21. This Court has diversity jurisdiction over the subject
matter of this action pursuant
to 28 U.S.C. 1332 in that the matter in controversy exceeds the
sum of $75,000, exclusive of
interest and costs, and is between citizens of different
States.
22. This Court has personal jurisdiction over each of the
Defendants in that, inter
alia, (i) Windham, Billington and Ware entered into contracts
with WWE, formerly known as
Titan Sports, Inc., whose principal place of business was in the
State of Connecticut, with respect
to Defendants professional wrestling services; (ii) the
contracts Windham, Billington and Ware
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entered into with WWE provided that they were to be governed by
the laws of the State of
Connecticut applicable to contracts entirely made and performed
therein; (iii) the relationship of
Windham, Billington and Ware with WWE was centered in the State
of Connecticut; and (iv)
Kyros, on behalf of the specifically named Defendants, sent the
Notice Letters to WWE
threatening tort claims to WWEs corporate headquarters in the
State of Connecticut which
precipitated the filing of this lawsuit.
23. Venue is proper under 28 U.S.C. 1391 in that, inter alia, a
substantial part of the
events giving rise to the claims asserted herein occurred in
this District and/or Defendants are
subject to the Courts personal jurisdiction on the claims
herein.
FACTUAL BACKGROUND
Kyros Improper Solicitation
24. At least as early as June 2014, Kyros began an Internet
marketing scheme to
recruit clients to be plaintiffs in a class action lawsuit
against WWE which he hoped would
replicate the result of the traumatic brain injury (TBI) class
action cases against the National
Football League (NFL).
25. Among other things, Kyros website stated: Our law firm wants
to speak to
former/retired WWF/WWE wrestlers interested in joining lawsuits
being brought against WWE .
. . . Our law firm is bringing lawsuits against the WWE on
behalf of former wrestlers and their
families. This statement was false at the time it was made. No
lawsuit, much less multiple
lawsuits, had been brought against WWE at the time these
statements were made.
26. Kyros fostered a sense of urgency to the filing of lawsuits
against WWE by
stating You have a limited window of time to act as these
lawsuits are happening now. Do not
wait until it is too late. This statement again was false, as no
lawsuit was happening at that
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time. Moreover, the stale claims by former-wrestlers who had not
wrestled for WWE in decades,
like Defendants, already were time-barred.
27. Kyros further falsely advertised on his website that there
was a WWE
Concussions Lawsuit Claims Center. Once more, this statement was
false as there was not then,
and is not now, any such thing.
Bad Faith Filing of the Haynes Suit
28. Following his solicitation efforts, Kyros first filed the
Haynes Suit in October
2014. Haynes is a self-admitted drug addict for the last 30
years who admittedly worked as a
drug mule illegally transporting drugs. Since agreeing to be a
plaintiff, Haynes, with Kyros
knowledge and approval, has attempted to recruit other former
performers with promises that
there is money to be made by suing WWE, and that they can assist
in putting WWE out of
business by joining into litigation.
29. Haynes performed for WWE between 1986 and 1988. Oregons
statute of repose
prohibits suits filed more than ten years after the tortious act
or omission complained of, the
same concept set forth in Connecticuts repose statutes. Kyros
completely ignored Oregons
statute of repose in filing the suit because the true purpose
was publicity, not the pursuit of
legitimate, timely claims.
30. The Haynes Suit, itself, was part of Kyros recruitment
scheme as he admittedly
sought to use the filing of the lawsuit to attract additional
plaintiffs to sue WWE. In a media
interview he gave after the Haynes Suit was filed, Kyros
admitted that he decided to file the
Haynes Suit because he believed Haynes would be a good candidate
to get this suit [against
WWE] rolling and that it was sort of our opening case. In a
separate interview on NPR,
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another attorney affiliated with Kyros expressed the hope that
Haynes lawsuit would open[] the
floodgates of litigation against WWE.
31. Additionally, Kyros set up a Google advertising campaign in
connection with the
filing of the Haynes Suit. When the search terms WWE concussion
lawsuit or billy jack
haynes are typed in Google, the search result calls up an
advertisement linking the person doing
the search to Kyros website.
32. In furtherance of Kyros recruitment scheme and to maximize
publicity, the
Haynes Suit was chock full of scandalous, false and impertinent
allegations that had no
semblance of relevance to Haynes TBI-related claims, all of
which were time barred no later
than 1998. Such allegations were asserted solely to garner media
attention, and as a result
potential new clients.
33. For example, TMZ, a celebrity news website, ran a story with
the headline Ex-
WWE Wrestler Sues I GOT HEPATITIS C During Bloody Wrestling
Match which squarely
focused on one particular scandalous and impertinent allegation
of the complaint. UPROXX and
PerezHilton.com, two widely-followed pop culture websites, ran
similar stories that focused on
the scandalous and impertinent allegations about Hepatitis C and
WWE supposedly encouraging
steroid and cocaine use, none of which were pertinent to the
stale and fraudulent brain injury
claims of Haynes. Specifically, the UPROXX headline was Billy
Jack Haynes Is Suing WWE
For Allegedly Giving Him Hep C and the story quoted the wholly
irrelevant, salacious, and
false allegation that WWE supposedly went out of its way to put
wrestlers in danger by
encouraging steroid and cocaine use. Likewise, PerezHilton.com
reported that Wrestler Billy
Jack Haynes Is Suing The WWE After He Contracted Hepatitis C!
and that Billy is alleging
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that Vince McMahons company put wrestlers in danger by hiding
important medical
information and encouraging steroid and cocaine use.
34. As would become a pattern, Kyros liberally charged WWE with
fraud without
complying with the operative rules requiring such charges to be
pled with particularity so as to
prevent damage to reputation by unsubstantiated fraud charges.
Additionally, Kyros fabricated
charges that WWE had concealed the risks of concussions and/or
assumed certain duties by the
deliberate misrepresentation of testimony and alleged
statements. Those fabricated allegations
have been repeated as a staple of every subsequent lawsuit.
35. WWE advised Kyros of its intention to move for sanctions
regarding such
pleading violations and to move to dismiss the lawsuit. Kyros
then requested time to file an
amended complaint in order to drop the improper allegations and
avoid sanctions. The amended
complaint, when filed, did nothing to cure the obvious and
insurmountable staleness of Haynes
claims under Oregons ten-year statute of repose. Furthermore,
Kyros amended the complaint
only after the scandalous allegations had garnered significant
media attention and attracted more
potential plaintiffs.
36. Kyros plan to incite media attention and attract better
plaintiffs through the filing
of the Haynes Suit worked to some degree, as less than three
months after filing the Haynes Suit,
Kyros filed the Singleton Suit on behalf of plaintiffs who,
unlike Haynes, had at least wrestled
for WWE in this century.
37. On June 25, 2015, by Opinion and Order of the Honorable
Janice Stewart, the
Haynes Suit was transferred to this Court by a decision which
found, among other things, that
Kyros multi-jurisdictional filings constituted forum shopping
and that Oregon was chosen as
one state on a hit-list of potential venues. A copy of Judge
Stewarts Opinion and Order is
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attached hereto as Exh. E. Despite this ruling, the next day
Kyros continued his forum shopping
and pattern of vexatious litigation by filing the James case in
federal court in Dallas.
Bad Faith Filing of the Singleton Suit
38. In January 2015, Kyros filed the Singleton Suit in the U.S.
District Court for the
Eastern District of Pennsylvania in violation of mandatory forum
selection clauses in the two
plaintiffs contracts with WWE that required the filing of any
such lawsuits exclusively in this
Court. The Singleton Suit initially was filed as a putative
class action and was identical in all
material respects to the Haynes putative class action in federal
court in Oregon.
39. The complaint filed by Kyros in the Singleton Suit again
contained multiple
fraudulent claims on behalf of both plaintiffs Singleton and
LoGrasso, including, but not limited
to (a) falsely alleging that WWE discouraged [Singleton] from
seeking additional, appropriate
medical help, for example from a neurologist following an
alleged concussion when, in fact,
WWE had arranged for Singleton to be treated by at least six
different physicians including two
neurologists; (b) falsely alleging that WWE cleared Singleton to
continue wrestling after
sustaining a concussion without adequate rest time when, in
fact, WWE never medically cleared
Singleton to wrestle after his alleged concussion despite
clearance from an independent
neurologist who found nothing wrong with Singleton and Singleton
never again participated in a
wrestling match; and (c) falsely alleging that LoGrasso had
residual injuries as a result of TBIs
from his brief stint with WWE without any medical diagnosis of
such injuries before filing suit.
40. After WWEs counsel notified Kyros that both Singleton and
LoGrasso had
signed forum selection clauses, Kyros refused to withdraw the
improperly-filed lawsuit and refile
it in Connecticut. WWE then filed a motion to enforce the forum
selection clauses and to
transfer venue to this Court. Kyros did not oppose the motion to
transfer, and neither he nor any
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of the cadre of lawyers representing plaintiffs offered any
justification for not honoring the
forum selection clauses. The order transferring the case to this
Court found that plaintiffs
agree[d] the District of Connecticut is an appropriate forum.
Upon being transferred to this
Court, the case was assigned to the Honorable Vanessa L.
Bryant.
41. WWE also brought the existence of false allegations in the
Singleton Suit to
Kyros attention on January 23, 2015. He refused to correct those
falsities for months,
necessitating the expense of trying to prepare a motion to
dismiss a complaint with false
allegations in it. Instead, on April 28, 2015, ten days before
WWEs response to the complaint
was due and after WWE had incurred considerable expense to draft
a motion to dismiss the
complaint he announced that the plaintiffs once again intended
to file an amended complaint.
42. As with the Haynes Suit, the amended complaint abandoned
some of the specific
false allegations that WWE had brought to Kyros attention but
then asserted other fraudulent
claims. In particular, the amended complaint (a) falsely alleged
that WWEs conduct
contributed to [plaintiffs] untimely death when, in fact, both
Singleton and LoGrasso are still
alive; and (b) falsely alleged that [i]t was not until more than
10 months later that [Singleton]
was diagnosed with a traumatic brain injury, including an
intracranial hemorrhage. In fact, a
MRI taken after Singletons alleged injury expressly noted to the
contrary: [n]o intracranial
mass lesion, shift of the midline structures or intracranial
hemorrhage is identified.
43. Even after being specifically advised of the falsity of the
allegation that Singleton
had an intracranial hemorrhage and the specific medical findings
that he did not have such an
injury, Kyros has continued to assert as fact that Singleton had
such an injury.
44. In his amended complaint, Kyros also abandoned the
class-based allegations from
the case. The abandonment of the class-based allegations was
tactical gamesmanship to
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circumvent the District of Connecticuts jurisdiction in an
attempt to pursue such a class action
in another forum lacking a strict repose statute. To pursue that
goal of circumventing this
Courts jurisdiction, on information and belief Kyros caused the
virtually-identical McCullough
Suit to be filed as a purported class action in the U.S.
District Court for the Central District of
California, and affirmatively concealed, and continues to
conceal, his involvement in that case.
45. Additionally, the claims of plaintiff LoGrasso are
time-barred on their face as he
last wrestled for WWE in 2007 such that the applicable statutes
of limitations/statutes of repose
had expired years before the filing of the case in January
2015.
46. As a result of these and other pleading defects in the
amended complaint, in a
scheduling conference held on June 8, 2015, Judge Bryant ordered
Kyros to file a second
amended complaint compliant with the Federal Rules of Civil
Procedure within one week, and
issued other specific directions to be followed by Kyros.
47. During the dialogue between the Court and Kyros, he
attempted to dismiss the
false allegation that plaintiffs in the Singleton Suit were
deceased as scrivener error he was not
aware of despite the obligation imposed on him and all attorneys
to have a good faith basis for
allegations made in a federal lawsuit.
48. After stating that the false death allegations were
scrivener error, Mr. Kyros stated
But my my client Nelson Fraziers dead at the age of 43,
referring to a former performer
who died of a heart attack six years after last performing for
WWE. The Frazier Suit is more
fully described herein.
49. After Kyros referenced the Frazier Suit, the Court
stated:
Does the Complaint reference Mr. Frazier? Are you going to
reference every wrestler thats dead in your Complaint? I dont I
dont follow that. You really need to read and get a better grip on
the pleading standard in the next week and
file an amended complaint.
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50. Less than three weeks after this Court made the above quoted
remarks and issued
the instructions to Kyros, he again acted to circumvent this
Courts jurisdiction and instructions
by filing the James Suit in federal court in Texas described
herein. That suit was filed the day
after the federal court in Oregon found that Kyros had been
forum shopping and that the
presence of mandatory forum selection clauses in wrestlers
contracts justified transferring that
case to this Court. As described herein, the deceased former
performer in that case Matthew
Osborne agreed to the same forum selection clause as had
LoGrasso and Singleton.
51. Kyros not only ignored the decision of the Oregon federal
court that he had been
engaged in forum shopping and the mandatory forum selection
clause in Osbornes contract, he
did exactly what this Court questioned at the hearing on June 8,
2015 specifically he listed
every dead wrestler and included photographs of them in yet
another federal pleading replete
with falsehoods.
Bad Faith Filing of the Frazier Suit
52. In February 2015, Kyros caused the Frazier Suit to be filed
in state court in
Tennessee in violation of the mandatory forum selection clauses
in three different contracts
between Frazier and WWE requiring the assertion of any such
claims in this Court. This lawsuit
was filed despite the fact that Frazier was a member of the
putative class defined by Kyros in
both the Haynes Suit and Singleton Suit.
53. Frazier was a morbidly obese man who died of a heart attack
on February 18,
2014 many years after he last performed for WWE. At no time
prior to his death did Frazier
ever make a claim against WWE for alleged TBIs. After his death,
he was cremated and no
autopsy was performed.
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54. CTE can only be diagnosed post-mortem by an autopsy of the
brain involving
preparation of tissue slides using specialized staining
techniques. In every complaint filed to
date, Kyros has admitted that CTE can only be diagnosed
post-mortem.
55. Following Fraziers death, his widow contacted WWE, claimed
she was destitute,
and asked for money to avoid being evicted. To help her
financially, WWE advanced her
royalties that would otherwise become due to the estate, if at
all, in the future. Thereafter, she
broadly praised WWE in social media outlets.
56. Being destitute, Fraziers widow was receptive to Kyros pitch
to permit her late
husbands death to be used as a vehicle to launch TBI lawsuits
against WWE.
57. Substantively, the Frazier Suit alleges that Frazier has CTE
and that CTE
somehow contributed to his death from a heart attack. These
claims are demonstrably false for at
least two reasons. First, as Kyros knows, it is not possible to
prove that Frazier had CTE because
it can only be diagnosed by a post-mortem examination of the
brain. Frazier was cremated
without any pathological examination of his brain having been
performed. Second, there is no
medically-plausible causal connection between CTE and a morbidly
obese man with diabetes
and hypertension passing away after a heart attack in the
shower.
58. In addition to its lack of substantive merit, the complaint
filed in the Frazier Suit
again is replete with scandalous and impertinent allegations
designed solely for media attention,
not legal merit. For example, just as he did recently in the
Osborne Suit, the complaint in the
Frazier Suit contains color photographs and allegations about
the alleged cause and manner of
death of other former wrestlers. The cause and manner of death
of persons no longer affiliated
with WWE have nothing to do with whether Fraziers estate has a
viable and timely tort claim
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against WWE after he passed away from a heart attack in the
shower years after he last
performed for WWE.
59. Further, the complaint contains 289 paragraphs identifying
every match in which
Frazier performed for WWE, extracted from an internet database,
followed by the identical
boilerplate allegation for each match that [u]pon information
and belief he sustained head and
other long-term injuries by participating in this event. There
is no credible basis to assert that
Frazier sustained head injuries or other long-term injuries in
each and every one of these 289
matches.
60. Because Kyros refused to transfer the case to this Court,
WWE moved to enforce
the forum selection clauses and transfer the case to this
Court.
61. After filing the Haynes, Singleton and Frazier Suits, Kyros
personally appeared
on the March 27, 2015 podcast of a program called The Wrestling
Show in which he peddled
hysteria, falsely claiming there is an epidemic in the community
. . . there is a health crisis in
retired wrestlers that he attributed to WWE and pushed his
marketing efforts by stating I can
win a case against WWE if people come forward . . . if every
wrestler who believes that theyd
been harmed by WWE right now decided to file a lawsuit against
WWE, this would surely
decide, I think an outcome.
62. Prior to Kyros internet marketing scheme, no former
performer had claimed to be
having a health crisis on account of alleged traumatic brain
injuries, as Kyros stated on
March 27, 2015. No such lawsuits had been threatened or filed on
behalf of a former performer.
Singleton was in the midst of pursuing a Workmens Compensation
claim which he abandoned
after being induced to bring suit by Kyros.
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Bad Faith Filing of the McCullough Suit
63. The McCullough Suit was filed as a putative class action on
April 9, 2015 on
behalf of three former performers who last performed in 2001,
2004 and 2005 respectively. At
the time it was filed, the McCullough Suit was entirely
duplicative of the Singleton Suit and the
Haynes Suit. The McCullough Suit was filed in the Central
District of California in violation of
mandatory forum selection clauses in the three plaintiffs
contracts with WWE that require the
assertion of any such claims in this Court. Despite agreeing to
transfer the Singleton Suit to
Connecticut after WWE pointed out the existence of the forum
selection clauses, Kyros, through
California counsel he obtained to be on the Complaint, refused
to transfer the case to Connecticut
despite the fact all three plaintiffs in the California case had
also agreed to the same or similar
clause. As a result, WWE was put to the expense of once again
having to move to enforce the
forum selection clauses and transfer the McCullough Suit to this
Court.
64. The McCullough Suit was filed in the Central District of
California to avoid the
Connecticut statutes of limitations and statutes of repose that
would apply if the case was filed in
this Court as required by the forum selection clauses to which
the plaintiffs are subject.
65. On information and belief, Kyros represents the plaintiffs
in the McCullough Suit
but did not sign the complaint so as to conceal his involvement
in the attempt to circumvent this
Courts jurisdiction, which he had previously agreed to be
appropriate in cases where former
performers had signed forum selection clauses. Instead, he
retained local California counsel to
sign the pleadings in order to maximize their ability to
distance themselves from Kyros previous
agreement to transfer cases to this Court where performers had
agreed to identical forum
selection clauses. WWEs counsel has repeatedly requested that
Kyros and the plaintiffs
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California counsel confirm or deny Kyros involvement in the
McCullough Suit and
representation of those plaintiffs, but they have refused to do
either.
66. In briefings to the federal court in California, WWE pointed
out Kyros role in the
attempts to circumvent this Courts jurisdiction. In their
response, the plaintiffs did not dispute
his role or comment in any way in furtherance of the scheme to
conceal and deceive the federal
court in California.
67. On information and belief, the decision to abandon the
class-based allegations in
the Singleton Suit was done to try to avoid arguments that the
Singleton and McCullough Suits
are duplicative in a further effort to resist the transfer of
the McCullough Suit to this Court in
circumvention of its jurisdiction.
68. Despite being admonished for not pleading in accordance with
the rules of court,
and despite previously making the false allegation that one of
his clients had died as a result of
alleged torts by WWE in the Singleton case, when in fact that
client was alive, on information
and belief, Kyros has continued the pattern of making similar
false allegations in the
McCullough case.
69. On information and belief, on June 22, 2014, while
continuing to conceal his role
in the case, Kyros caused the California lawyers he retained to
oppose WWEs motion to transfer
venue back to Connecticut. In that opposition, it was once again
falsely alleged that WWE
failed to disclose the facts and dangers to plaintiffs and
caused them irreparable harm and
ultimately an untimely death. All three plaintiffs in that case
are alive, not dead, yet the pattern
of making such false allegations continue. Federal pleadings
filed by and/or controlled by Kyros
have now falsely alleged that either four or five plaintiffs he
represents are dead due to torts he
accuses WWE of committing, yet all are alive.
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70. Additionally, while attempting to argue that the three
plaintiffs in the California
case had no opportunity to wrestle elsewhere, the false
statement was made in the opposition to
transfer that the WWE is, on information and belief, the only
professional wrestling company in
the country. Kyros knows this allegation is false. His clients
actually performed for other
professional wrestling companies in America, and at least two
other professional wrestling
organizations are on television every week TNA and Ring of
Honor.
71. The three plaintiffs in the McCullough Suit, Russ
McCullough, Ryan Sakoda, and
Matt Wiese, last wrestled for WWE in 2001, 2004, and 2005,
respectively. Accordingly, their
claims each are time-barred on their face as the applicable
Connecticut statutes of
limitations/statutes of repose expired years before the filing
of the case in April 2015.
Kyros June 2, 2015 Letters on Behalf of the Specifically Named
Defendants
72. Against the backdrop of the foregoing pending lawsuits, on
June 2, 2015, Kyros
sent WWE identical Notice of Representation letters on behalf of
Defendants Windham,
Billington, Ware, and Perras directly to WWEs corporate
headquarters in Stamford,
Connecticut.
73. The letters state that the undersigned have been retained by
[Defendants
Windham, Billington, Ware, and Perras], a former WWE wrestler .
. . who was allegedly injured
as a result of WWEs negligent and fraudulent conduct. The
letters then go on to state that in
light of the possible litigation involving this matter, WWE
purportedly should refrain from
communicating directly with these Defendants and should preserve
relevant data. Thus, these
Defendants admit that an actual dispute or controversy exists
between them and WWE with
respect to WWEs supposedly negligent and fraudulent conduct, and
that they have reasonable
anticipation of litigation.
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74. The specifically named Defendants had not complained to WWE
regarding any
alleged injuries in the decades since they last performed until
the June 2, 2015 letters.
75. The June 2, 2015 letters demand that WWE take action to
preserve records which
appear to have some relation to the TBI-related cases Kyros has
filed against WWE.
76. The letters also request that WWE preserve records which
have no apparent
relevance to the TBI-related cases, such as royalties,
accountings licenses, deals, toys, action
figures, video games, DVDs [and] streaming videos on the WWE
network. Additionally, the
letters demand that all physical items in the image and likeness
of the [specifically named
Defendants] should be preserved and have a litigation hold
established on them.
The Events Since Receipt of the June 2, 2015 Letters
77. A few weeks after Kyros sent these letters on behalf of the
four named
defendants, the federal court in the Haynes Suit specifically
found that Kyros had been involved
in forum shopping. The Oregon federal court did so while noting
that WWE had been unable to
get Kyros to confirm his involvement in the McCullough Suit in
California. At the same time,
the Court noted that the pleadings in the McCullough Suit had
identical allegations and
photographs as did the version of the complaint in the Haynes
Suit, and concluded it was
evidence of forum shopping.
78. In its order of June 25, 2015, the Oregon federal court also
noted that many of the
putative class members are subject to mandatory forum selection
clauses requiring disputes to be
resolved in this Court. Exh. E, p. 7. The Court then ordered the
Haynes Suit transferred to this
Court, and left it to this Court to rule on the fully briefed
motion to dismiss the Haynes Suit.
79. Undeterred by the decision of the Oregon court finding that
he had been forum
shopping, and which recognized the import of mandatory forum
selection clauses, or this Courts
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directive that he read and comply with proper pleading
standards, Kyros filed the James Suit the
next day, June 26, 2015.
80. The James Suit opens with a false factual premise, and then
reiterates the same
boilerplate false allegations as Kyros has made in every TBI
complaint against WWE to date.
The opening false premise is that Matt Osborne wrestled for WWE
beginning in 1985 and
ending in 2007. Thereafter, Kyros alleged that For decades
spanning back to the 1920s WWE
has known . . . that wrestlers have been subjected to extremely
dangerous conditions and blows
at its direction.
81. WWE did not even exist in the 1920s, and Matt Osborne did
not perform for
WWE from 1985 to 2007, or for twenty years, as is also falsely
alleged by Kyros in the
Complaint he filed.
82. Matt Osborne first performed for WWE from 1985-86. He had a
second stint
performing for WWE from October 1992 until October 1993, when
WWE ceased booking him
for events due to drug problems he had. After October of 1993,
Osborne never performed for
WWE again.
83. On December 10, 2007, WWE sponsored a 15th anniversary show
celebrating its
flagship RAW television program in Bridgeport, Connecticut. The
WWE invited some past
performers who had appeared on the show to attend and make a
token appearance, and Matt
Osborne was one of them.
84. Between October 1993 and December 10, 2007, Osborne did not
appear at or
perform for WWE, and did not appear or perform again after his
one-time appearance on
December 10, 2007.
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85. WWE has a program which offers former performers
rehabilitation assistance if
they have a drug or alcohol problem. Matt Osborne requested such
help, and WWE paid for
rehab for Matt Osborne from February 20, 2008 to May 4,
2008.
86. On June 28, 2013, Matt Osborne died from an overdose of
morphine and
hydrocodone, some 20 years after last performing for WWE, and
five years after WWE
attempted to help him recover from his life-long pattern of
substance abuse.
COUNT I DECLARATORY JUDGMENT
87. Each and every one of the foregoing allegations is
incorporated herein by
reference and reasserted as though fully set forth at
length.
88. None of the named defendants have performed for the WWE
within three years of
the date this complaint was filed.
89. The June 2, 2015 letters assert that the named Defendants
were allegedly injured
as a result of WWEs negligent and fraudulent conduct.
90. The June 2, 2015 letters further make certain demands on WWE
in light of the
possible litigation involving this matter and the reasonable
anticipation of litigation.
91. Thus, an actual dispute and controversy exists with respect
to whether Defendants
are time-barred from making tort claims with respect to any
alleged injuries as a result of
WWEs supposedly negligent and fraudulent conduct.
92. The June 2, 2015 letters demand that WWE take action to
preserve records which
appear to have some relation to the TBI-related cases Kyros has
filed against WWE.
93. Under Connecticut law, all tort claims are subject to a
three-year statute of
limitations/statute of repose measured from the act or omission
complained of. See C.G.S. 52-
577; C.G.S. 52-584.
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94. Because no Defendant has performed for WWE since at the
latest 1999, an actual
dispute or controversy exists as to whether any alleged
TBI-related claims or any alleged tort
claims based on WWEs supposedly negligent and fraudulent conduct
by Defendants are time-
barred by the applicable statutes of limitations/statutes of
repose under Connecticut law.
95. On information and belief, Kyros, Haynes, LoGrasso and at
least one of the
California plaintiffs continue to solicit former wrestlers to
contact Kyros and sue WWE to
maximize their chances of obtaining monies for time-barred and
fraudulent claims.
96. Discovery will be needed to ascertain the identity of the
John Doe Defendants, at
which time WWE will seek to amend the Complaint to add each as a
named defendant.
97. The actions of Kyros alleged herein indicate that he will
continue his forum
shopping to avoid this Courts jurisdiction and continue to file
stale and fraudulent claims in
other jurisdictions, necessitating the relief sought herein.
98. Accordingly, a judicial declaration pursuant to 28 U.S.C.
2201 et seq. is
necessary as to whether any alleged TBI-related claims or any
alleged tort claims by Defendants
based on WWEs supposedly negligent and fraudulent conduct are
time-barred by the applicable
statutes of limitations/statutes of repose under Connecticut
law.
PRAYER FOR RELIEF
WHEREFORE, WWE respectfully requests that this Honorable Court
enter judgment in
favor of WWE and against Defendants, and order the following
relief:
(a) Declare that any alleged TBI-related claims by Defendants
are time-barred by the
applicable statutes of limitations/statutes of repose under
Connecticut law.
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(b) Declare that any other alleged tort claims by Defendants
based on WWEs
supposedly negligent and fraudulent conduct are time-barred by
the applicable
statutes of limitations/statutes of repose under Connecticut
law.
(c) Such other and further relief as this Court deems just and
appropriate.
JURY TRIAL DEMANDED
PLAINTIFF WORLD WRESTLING
ENTERTAINMENT, INC.
By: _ /s/ Jeffrey P. Mueller_______
Jerry S. McDevitt (pro hac vice to be filed)
Terry Budd (pro hac vice to be filed)
Curtis B. Krasik (pro hac vice to be filed)
K&L GATES LLP
K&L Gates Center
210 Sixth Avenue
Pittsburgh, PA 15222
Phone: (412) 355-6500
Fax: (412) 355-6501
Email: [email protected]
Email: [email protected]
Email: [email protected]
Thomas D. Goldberg (ct04386)
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: [email protected]
Email: [email protected]
Email: [email protected]
Its Attorneys.
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UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
WILLIAM ALBERT HAYNES III, individually and on behalf of all
others similarly situated,
Plaintiff,
v. WORLD WRESTLING ENTERTAINMENT, INC.,
Defendant.
Case No. 3:14-cv-01689-ST OPINION AND ORDER
STEWART, Magistrate Judge:
INTRODUCTION
On October 23, 2014, plaintiff, William Albert Haynes III
(Haynes), a former
professional wrestler, filed this action on behalf of himself
and all other United States residents
who currently or formerly wrestled for defendant, World
Wrestling Entertainment, Inc.0F1
(WWE),1F2 or a predecessor company.2F3 He alleges that WWE is in
the business of selling
violence and has profited at the expense of its wrestlers health
by subjecting them to extreme
1 The class definition lists the defendant as World Wide
Entertainment which appears to be a typographical error. First
Amended Class Action Complaint, 132. 2 WWE includes World Wrestling
Entertainment, Inc., along with all predecessor companies,
including but not limited to, Titan Sports, Inc., World Wrestling
Federation, Inc., World Wrestling Federation Entertainment, Inc.,
World Championship Wrestling, Inc., and Extreme Championship
Wrestling. 3 The class definition excludes WWE, entities controlled
by WWE, WWEs legal representatives, assigns and successors, the
judge to whom this case is assigned, and any member of the judges
immediate family.
1 OPINION AND ORDER
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physical brutality that it knew, or should have known, caused
irreversible bodily damage,
including brain damage, without providing adequate medical care.
First Amended Class Action
Complaint (FAC), 1. Additionally, Haynes alleges that WWE
engaged in a campaign of
misinformation and deception to prevent its wrestlers from
understanding the true nature and
consequences of the injuries they have sustained. Id. As a
result of WWEs representations,
actions, and inactions, WWE wrestlers have suffered long-term
debilitating injuries, lost
profits, premature retirement, medical expenses, and other
losses. Id. In particular, WWE
wrestlers have suffered repeated head injuries which have
altered wrestlers brains and resulted
in an array of side effects, including depression, cognitive
deterioration, and suicide. Id, 3.
WWE has both failed to protect its wrestlers by concealing and
denying the medical research and
evidence concerning traumatic brain injuries and deliberately
heightened the violence of its
matches in order to increase its own profits. Id, 1, 4.
Based on these allegations, Haynes alleges the following seven
claims against WWE:
(1) Fraudulent Concealment and Failure to Disclose or Warn
(First Claim); (2) Negligent
Misrepresentation (Second Claim); (3) Declaratory and Injunctive
Relief (Third Claim);
(4) Negligence (Fourth Claim); (5) Medical Negligence (Fifth
Claim); (6) Medical
Monitoring (Sixth Claim); and (7) Strict Liability for
Abnormally Dangerous Activities
(Seventh Claim).
Haynes is a citizen of Oregon.3F4 The matter in controversy
exceeds $5 million, exclusive
of interest and costs. Id, 14. WWE is a Delaware corporation
with its principal place of
4 Haynes alleges that he is a resident of Oregon. FAC, 16.
However, [r]esidence and citizenship are not the same thing. Seven
Resorts, Inc. v. Cantlen, 57 F3d 771, 774 (9th Cir 1995) (citation
omitted). A persons state of citizenship is determined by the
persons state of domicile, not state of residence. Kanter v.
Warner-Lambert Co., 265 F3d 853, 857 (9th Cir 2001). A persons
domicile is her permanent home, where she resides with the
intention to remain or to which she intends to return. Id, citing
Lew v. Moss, 797 F2d 747, 749 (9th Cir 1986). A person residing in
a given state is not necessarily domiciled there . . . . Id. For
purposes of the present motions, this court assumes that Haynes is
both a resident and a citizen of Oregon.
2 OPINION AND ORDER
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business in Stamford, Connecticut. Id, 17. Accordingly, this
court has subject matter
jurisdiction over this case under the Class Action Fairness Act
of 2005, 28 USC 1332(d)(2).
WWE has now filed a Motion to Dismiss (docket #44) and a Motion
to Transfer Venue
(docket #47) seeking either dismissal of all seven claims or, if
any claims remain, transfer of this
action to the District of Connecticut. For the reasons that
follow, the Motion to Transfer Venue
is GRANTED and this action is transferred to the United States
District Court for the District of
Connecticut for resolution of the Motion to Dismiss.
DISCUSSION
WWE asks this court to rule on its Motion to Dismiss before
ruling on the Motion to
Transfer Venue. However, among other things, the parties dispute
whether this court has
personal jurisdiction over the WWE. Where personal jurisdiction
is difficult to determine, and
forum non conveniens considerations weigh heavily in favor of
dismissal, the United States
Supreme Court expressly authorizes trial courts to take the less
burdensome course and decide
the forum non conveniens issue before any merits-based
issues.4F5 Sinochem Intl Ltd. v. Malaysia
Intl Shipping Corp., 549 US 422, 436 (2007).
I. Legal Standard
A motion to transfer venue is a non-dispositive matter falling
within the province of a
United States Magistrate Judge. Penguin Grp. (USA) Inc. v. Am.
Buddha, No. 3:13cv00497
HU, 2013 WL 6385916, at *1 n1 (D Or Dec. 6, 2013) (citations
omitted); see also Pavao v.
Unifund CCR Partners, 934 F Supp2d 1238, 1241 n1 (SD Cal 2013)
(citing cases).
///
5 Although Sinochem involved a forum non conveniens dismissal in
favor of pending litigation in a foreign court, the same logic
applies with equal force to a forum non conveniens transfer to
another district court: For the federal court system, Congress has
codified the doctrine and has provided for transfer, rather than
dismissal, when a sister federal court is the more convenient place
for trial of the action. Sinochem, 549 US at 1190-91 (citations
omitted).
3 OPINION AND ORDER
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For the convenience of parties and witnesses, in the interest of
justice, a district court
may transfer any civil action to any other district or division
where it might have been brought or
to any district or division to which all parties have consented.
28 USC 1404(a). A motion
under 28 USC 1404(a) requires a district court to engage in a
two-step inquiry. The threshold
issue is whether the case could have been brought in the forum
to which transfer is sought.
Hatch v. Reliance Ins. Co., 758 F2d 409, 414 (9th Cir 1985). The
court considers whether the
proposed forum would have had subject matter jurisdiction at the
time the action was filed;
[whether] defendants would have been subject to personal
jurisdiction; and [whether] venue
would have been proper. E. & J. Gallo Winery v. F. & P.
S .p.A., 899 F Supp 465, 466 (ED Cal
1994) (citations omitted).
If the action could have been brought in the forum where
transfer is sought, the court then
considers whether the convenience of the parties, the
convenience of the witnesses, and the
interest of justice weigh in favor of transferring venue to that
forum. This step of the inquiry
requires an individualized, case-by-case consideration of
convenience and fairness. Jones v.
GNC Franchising, Inc., 211 F3d 495, 498 (9th Cir 2000), quoting
Stewart Org., Inc. v. Ricoh
Corp., 487 US 22, 29 (1988). Relevant factors include:
(1) the location where the relevant agreements were negotiated
and executed, (2) the state that is most familiar with the
governing law, (3) the plaintiffs choice of forum, (4) the
respective parties contacts with the forum, (5) the contracts
relating to the plaintiff's cause of action in the chosen forum,
(6) the differences in the costs of litigation in the two forums,
(7) the availability of compulsory process to compel attendance of
unwilling non-party wit-nesses, and (8) the ease of access to
sources of proof.
Id at 499.
The court may also consider the local interest in the
controversy and the relative court
congestion and time to trial in each forum. Safe Drain, Inc. v.
Vito, No. C1401867DMR,
4 OPINION AND ORDER
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2014 WL 4088147, at * 3 (ND Cal August 19, 2014), citing
Williams v. Bowman, 157 F Supp2d
1103, 1106 (ND Cal 2001).
The district court has great discretion in deciding whether the
relevant factors warrant
transfer of the action to another forum. See Sparling v. Hoffman
Constr. Co., 864 F2d 635, 639
(9th Cir 1988) (Weighing of factors for and against transfer
involves subtle considerations and
is best left to the discretion of the trial judge.), quoting
Commodity Futures Trading Commn v.
Savage, 611 F2d 270, 279 (9th Cir1979).
II. Analysis
This court has carefully considered the materials submitted in
connection with both of the
pending motions and concludes that transfer of this action is
warranted. It is clear that this action
could have been filed in the District of Connecticut. Moreover,
the record reveals that, for 15 of
the 30 years at issue in this case,5 F6 every booking contract
between the WWE and its wrestlers
contains a forum selection clause requiring the parties to
submit all disputes arising out of or
relating in any way to the booking contract exclusively to the
jurisdiction of the United States
District Court of Connecticut. Langham Aff. (docket #47-1),
15-16. Based on those
mandatory forum selection clauses, one district court has
already transferred a substantially
similar case to the District of Connecticut. Singleton, et al.
v. World Wrestling Entmt, Inc.,
Eastern District of Pennsylvania Case No. 5:15-cv-00223-LS. In
two other cases filed in
Tennessee and California, motions to transfer venue to the
District of Connecticut based on the
existence of forum selection clauses in the wrestlers contracts
with WWE remain pending.
Frazier v. World Wrestling Entmt, Inc., No.
2:15-cv-02198-JPM-cgc (WD Tenn) (Motion to
6 At a minimum, this case purports to cover wrestling between
1986 when that Haynes began wrestling with the WWEs predecessor and
the present. FAC, 16 (noting that Haynes wrestled with the WWE
between 1986 and 1988), 132 (defining class as [a]ll persons who
currently or formerly wrestled for [WWE] or a predecessor company .
. . .) (emphasis added).
5 OPINION AND ORDER
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Change Venue Pursuant to 28 U.S.C. 1404(a) Due to
Forum-Selection Clauses in the Contracts
Between WWE and the Decedent (docket #5) filed March 27, 2015,
pending); and McCullough
et al. v. World Wrestling Entmt, Inc., No. 2:15-cv-02662-AB-JEM
(CD Cal) (WWEs Motion to
Transfer Venue Due to Mandatory Forum-Selection Clauses in the
Contracts Between the Parties
(docket #16), set for a hearing on July 13, 2015).
The bulk of the relevant factors are either neutral or weigh in
favor of a transfer of this
case. As to where the relevant agreement was negotiated, the
record reveals that Haynes
negotiated the terms of [his] relationship in Oregon by
telephone with WWEs predecessor,
Titan Sports, Inc. Haynes Decl. (docket #51), 4.6F7 However,
that factor is neutral, given that it
appears likely that the negotiator for WWEs predecessor was in
Connecticut or some other state.
The pleadings do not identify the place(s) of performance of
that booking contract, though
Haynes now avers that he participated in at least four wrestling
matches in Oregon. Id, 7.
He does not deny participating in wrestling matches for WWEs
predecessor in other states, and
nothing currently in the record ties his four Oregon wrestling
matches to the damages alleged in
this case. Thus, contacts relating to the plaintiffs cause of
action is a neutral factor. The
difference in costs of litigation is neutral, given that either
Haynes must travel to Connecticut or
WWE must travel to Oregon. The record supports WWEs contention
that the availability of
compulsory process to compel attendance of non-party witnesses
and the ease of access to
sources of proof both weigh in favor of transfer.
This leaves only the plaintiffs chosen forum and the relative
familiarity of Oregon courts
with Oregon law. Although great weight is generally accorded
plaintiffs choice of forum,
when an individual brings a derivative suit or represents a
class, the named plaintiffs choice of
7 While Haynes states that he requested and was refused a
written contract (Haynes Decl., 5), WWE states that Haynes entered
into a booking agreement dated June 2, 1986, implying that it was a
written agreement. However, WWE has not submitted a copy of any
written booking agreement between Haynes and WWEs predecessor.
6 OPINION AND ORDER
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forum is given less weight. Lou v. Balzberg, 834 F2d 730, 739
(9th Cir 1987) (citations
omitted). See also Johns v. Panera Bread Co., No. 081071SC, 2008
WL 2811827 (ND Cal
July 21, 2008) (citing cases consistent with Ninth Circuit and
Supreme Court authority for the
proposition that [p]laintiffs decision to seek to represent a
nationwide class substantially
undercuts this deference [normally afforded plaintiffs choice of
forum].). Whatever remaining
deference that is accorded plaintiffs choice of forum is further
eroded by evidence in the record
that many of the putative class members are subject to mandatory
forum selection clauses
requiring disputes to be resolved in the District of
Connecticut. Langham Decl., 15-16.
In addition, it appears that Hayness attorneys may be engaging
in forum shopping. If
there is any indication that plaintiffs choice of forum is the
result of forum shopping, plaintiffs
choice will be accorded little deference. Williams v. Bowman,
157 F Supp2d 1103, 1106 (ND
Cal July 26, 2001) (citation omitted). On January 16, 2015,
shortly before the filing of the FAC
and currently pending motion to dismiss based on Oregons statute
of repose in this case, a
second nationwide class action, Singleton, was filed in the
United States District Court for the
Eastern District of Pennsylvania. The plaintiffs in Singleton
are represented by one of the
attorneys representing Haynes in this case, Konstantine Kyros
(Kyros). Just over two months
later, on March 23, 2015, Judge Lawrence Stengel transferred the
Singleton action to the District
of Connecticut, noting that plaintiffs did not oppose a transfer
of venue and agreed that the
District of Connecticut is an appropriate forum. Order dated
March 23, 2015 (docket #11). On
May 22, 2015, the Singleton plaintiffs filed an Amended
Complaint, voluntarily dismissing their
class allegations. Singleton, et al. v. World Wrestling Entmt,
Inc., United States District Court
of Connecticut (New Haven), Case No. 3:15cv00425-VLB, First
Amended Complaint (docket
#67).
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On February 18, 2015, prior to the transfer of the Singleton
action, the Personal
Representative for a the estate of a former WWE wrestler, also
represented by Kyros, filed
another case in Tennessee state court, alleging claims for
negligence, negligent and intentional
misrepresentation, fraudulent concealment, fraud by
omission/failure to warn, vicarious liability,
wrongful death, punitive damages, and loss of consortium.
Frazier, et al. v. World Wrestling
Entmt, Inc., Circuit Court of Shelby County Tennessee (Thirtieth
Judicial District at Memphis),
Case No. CT-000702-15. That case was subsequently removed to the
United States District
Court for the Western District of Tennessee. On March 27, 2015,
WWE filed a Motion to
Change Venue (docket #5) based on the terms of a mandatory
forum-selection clause in the
booking contract. That motion has, as yet, not been decided.
Finally, on April 9, 2015, McCullough, an identical nationwide
class action, was filed in
the Central District of California. The McCullough action
alleges several claims identical to
those alleged here and adds a claim for violation of the
California Unfair Competition Law.
Again, based on mandatory forum-selection clauses in booking
contracts, the WWE has moved
to transfer that case to the District of Connecticut, and a
hearing is set on that motion in mid-
July. Kyros is not listed as counsel in that case, and WWE
attorneys have been unable to
confirm whether he represents the plaintiffs. However, the
pleadings in the McCullough action
incorporate many of the identical allegations and photographs
and seek the identical relief
alleged in the FAC in this case.
This court is persuaded that the content and timing of these
multi-jurisdictional filings
constitute evidence of forum shopping. Accordingly, plaintiffs
choice of Oregon as one state on
a hit-list of potential venues for this nationwide class action
is accorded little deference.
///
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ORDER
Based on the above, it is ORDERED that WWEs Motion to Transfer
Venue (docket
#47) is GRANTED and this case is transferred to the United
States District Court for the District
of Connecticut.
This court expresses no opinion on the merits of any portion of
the WWEs Motion to
Dismiss (docket #44) which is reserved for a ruling by the
United States District Court for the
District of Connecticut.
DATED June 25, 2015.
s/ Janice M. Stewart Janice M. Stewart United States Magistrate
Judge
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INTRODUCTIONOrder