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Published by Eriq Gardner

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Published by: Eriq Gardner on Apr 25, 2013
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SOUTHERN DISTRICT OF NEWYORK - - - - - - - - - - - - - - - - - -:SANG LAN,: 11 Civ. 2870 (LBS) (JCF):Plaintiff,: REPORT AND: RECOMMENDATION:- against -:: TIME WARNER, INC.,KAO-SUNG LIU :A/K/A K.S. LIU, GINA HIU-HUNG LIU:A/K/A HUI-HUNG SIE A/K/A GINA LIU,:Individually and as Trustees or :Managers of Goodwill for Sang Lan :Fund, HUGH HU MO, DOES 1-30, :Unknown Defendants, Jointly and:Severally,::Defendants.:- - - - - - - - - - - - - - - - - -: TO THE HONORABLE LEONARD B. SAND, U.S.D.J.: Plaintiff Sang Lan filed this action on April 28, 2011.Defendant Time Warner, Inc. (Time Warner”) and defendants Kao-SungLiu, Gina Hiu-Hung Liu, and Hugh Hu Mo (collectively, the“Individual Defendants”) separately move to dismiss the plaintiffsFourth Amended Complaint (“4th Am. Compl.”) under Rule 12(b)(6) of the Federal Rules of Civil Procedure. I recommend that TimeWarners motion to dismiss be granted and that the IndividualDefendants’ motion be granted in part and denied in part.Background The following facts fromthe Fourth Amended Complaint aretaken as true for the purposes of these motions to dismiss. SeeErickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam).1
Case 1:11-cv-02870-LBS-JCF Document 140 Filed 04/19/13 Page 1 of 66
Ms. Sang
is a former world-class gymnast fromChina. (4thAm. Compl., 11-19). She was slated to compete in the 1998Goodwill Games (the “Games”), a quadrennial competition conceivedby Ted Turner and later sold to Time Warner as a consequence of Mr. Turners company merging with AOL.
(4th Am. Compl., 20, 22,28). While warming-up for the vault event, Ms. Sang was seriouslyinjured, allegedly through the negligence of Time Warner and otherorganizers of the competition. (4th Am. Compl., 29-34, 55-56).Her injuries are extensive: the fall fractured two vertebrae andinjured her spinal cord, rendering her permanently paralyzed fromthe mid-chest down; she suffers fromadditional complicationsrelated to the paralysis. (4th Am. Compl., 38-52).In the aftermath of the accident, various people associatedwith the Games made public statements regarding Ms. Sang. MichaelPlant, President of the Games, stated that Ms. Sangs “immediatemedical needs” would be taken care of by insurance. (1998 GoodwillGames Press Conference Quotes dated July 22, 1998 (“July 22 PressConference”), attached as Exh. F to 4th Am. Compl., at 2).
According to the current complaint, the plaintiffs surnameis Sang, and she is referred to as Sang Lan following the Chinesecustomof placing the surname before the given name. (4th Am.Compl. at 3 n.1). I will therefore refer to her as Ms. Sang.Prior iterations of the complaint referred to the plaintiff as Ms.Lan.
For the sake of simplicity, I will refer to Time Warner,Inc., as well as the various companies involved with the Games thatwere later acquired by Time Warner, Inc., as “Time Warner.
The exhibit identifiers on the copy of the Fourth AmendedComplaint submitted by Time Warner differ fromthose on thedocketed complaint, which are the identifiers I use here.2
Case 1:11-cv-02870-LBS-JCF Document 140 Filed 04/19/13 Page 2 of 66
continued, “I cant speak to the long-term, but it is ourcommitment to do what we can. As I said, Ted Turner and [then-Chief Executive Officer of Time Warner] Gerald Levin are bothconcerned. We had a lot of insurance that will provide adequatecare for Sang Lan.(July 22 Press Conference at 2). According toa newspaper article, Mr. Plant solicited contributions for Ms. Sangfromcorporate sponsors of the Games and also stated that Ms.Sangs family “wont have to worry about digging into their pocketsto help their daughter in any way.(Bill Egbert, Injured Gymnast, Turner Reneged, NY Daily News, June 3, 1999 (NY Daily NewsArticle”), attached as Exh. J to 4th Am. Compl.). In response toa question as to whether the corporations involved had “discussedhow far Goodwill and Turner and Time Warners responsibilityextends . . . not necessarily financially, but emotionally andmorally,” Dr. Harvey Schiller, then President of Turner Sports,stated that executives throughout the company hadoffered to assist in any way possible. What we dontwant to do is take away the focus away [sic] fromthecare that she is getting right now and you can be assuredthat this corporation and hand-in-hand with USGymnastics, as well as the International Federation, willdo everything within our power to assure that her futureis secure.
(1998 Goodwill Games Press Conference Quotes dated July 24, 1998(“July 24 Press Conference”), attached as Exh. G to 4th Am. Compl.,at 2). In an article dated July 24, 1998 on the CNN/Sports
The plaintiff alters this quotation in the Fourth AmendedComplaint, rewriting the phrase “will do everything within ourpower to ensure that her future is secure” to read “will doeverything within our power to ensure that Sang Lans (financial)future is secure.(4th Am. Compl., 85(b)).3
Case 1:11-cv-02870-LBS-JCF Document 140 Filed 04/19/13 Page 3 of 66

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