You are on page 1of 20

Case 3:15-cv-01074-VLB Document 205-1 Filed 09/08/16 Page 1 of 20

UNITED STATES DISTRICT COURT


DISTRICT OF CONNECTICUT

RUSS McCULLOUGH, a/k/a Big Russ


McCullough, RYAN SAKODA, and
MATTHEW R. WIESE, a/k/a Luther
Reigns, individually and on behalf of
all others similarly situated,
Plaintiffs,
VS.
WORLD WRESTLING
ENTERTAINMENT, INC.,
Defendant.

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

: CIVIL ACTION NO. 3:15-CV-01074-VLB


: LEAD CASE
:
:
:
:
:
:
:
:
:
:
:
:

: CIVIL ACTION NO. 3:15-CV-00994-VLB


: CONSOLIDATED CASE
:
:
:
:
:
:
:
:
:
: SEPTEMBER 8, 2016

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR JUDGMENT ON THE


PLEADINGS IN THE WINDHAM ACTION
Plaintiff World Wrestling Entertainment, Inc. (WWE) respectfully submits
this Memorandum in support of its Motion for Judgment on the Pleadings in the
Windham Action, No. 3:15-cv-00994-VLB.

Case 3:15-cv-01074-VLB Document 205-1 Filed 09/08/16 Page 2 of 20

I.

INTRODUCTION
WWE brought the Windham action in this Court as a declaratory judgment

(DJ) action on June 29, 2015, after having first been sued over a period of
months five separate times in five different venues (the Prior Actions),
including three cases commenced as class actions, and after having received
from counsel for the four named DJ Defendants four letters threatening similar
litigation. In the Windham action, WWE seeks a judgment declaring that any
claims the DJ Defendants might have related to alleged traumatic brain injuries
(TBI) are time barred under applicable statutes of limitation and repose, as are
any other tort claims based on WWEs supposedly negligent or fraudulent
conduct. The Windham action has been consolidated with the Prior Actions, all
five of which were transferred to this Court.1
The DJ Defendants moved to dismiss the Windham action, raising a variety
of concerns, including both prudential concerns and challenges to the Courts
subject matter jurisdiction. (Doc. 72.) Significantly, the DJ Defendants did not
challenge personal jurisdiction in their motion. (See id.) The Court initially
dismissed the Windham action by order dated March 21, 2016. (Doc. 116.)
However, after reconsideration, the Court reinstated WWEs claims for
declaratory judgment against the four named DJ Defendants Robert Windham,

WWE moved to dismiss all of the claims in the Prior Actions on multiple
grounds, including on the basis of statutes of limitation and repose. The Court
dismissed two of the Prior Actions (both class actions) in their entirety, while
permitting a third action from which class allegations had been withdrawn to
proceed only with respect to a single fraud-by-omission claim. That claim is now
the subject of a pending motion for summary judgment. Motions to dismiss the
other two Prior Actions remain pending.
2

Case 3:15-cv-01074-VLB Document 205-1 Filed 09/08/16 Page 3 of 20

Thomas Billington, James Ware and Oreal Perras. (Doc. 185.) The Court
concluded that it has subject matter jurisdiction over WWEs claims against the
named DJ Defendants and determined that it would exercise that jurisdiction.2
(See id.)
On August 8, 2016, the four named DJ Defendants answered WWEs
Complaint in the Windham action. Though the Answer improperly denies and
evades a great many of the factual allegations in the Windham Complaint, the
statute of repose analysis turns on only two material facts: the date of the
alleged wrongful conduct, and the date of the action. See Collum v. Chapin, 40
Conn. App. 449, 451-52 (1996) (discussing Conn. Gen. Stat. 52-577, the statute
applicable to tort claims other than those sounding in negligence); Martinelli v.
Fusi, 290 Conn. 347, 355 (2009) (discussing Conn. Gen. Stat. 52-584, the statute
applicable to tort claims sounding in negligence). In their Answer, the DJ
Defendants admit that their counsel sent letters to WWE on June 2, 2015
asserting that each of them was allegedly injured as a result of WWEs negligent
and fraudulent conduct and raising the specter of possible litigation involving
this matter. (Doc. 199 89-90.) Yet, their Answer also admits that none of the
four had complained to WWE regarding any alleged injuries in the decades since
they last performed until the June 2, 2015 letters and further specifically admits,
None of the named defendants have performed for the WWE within three years
of the date this complaint was filed. (Doc. 199 74, 88 (emphasis ours).)

The Court concluded that it did not have subject matter jurisdiction over WWEs
claims against various John Doe defendants and so dismissed WWEs claims
against them.
3

Case 3:15-cv-01074-VLB Document 205-1 Filed 09/08/16 Page 4 of 20

Indeed, Defendants admit that Defendant Windham performed for WWE only until
1987; Defendant Billington, 1988; Defendant Ware, 1994, with a short return in
1999; and that Defendant Perras last performed decades ago. (Doc. 199 1619.) Thus, a prima facie basis for WWEs requested declaratory relief has been
established on the face of the pleadings themselves.
The DJ Defendants did not interpose any counterclaims, nor did they
assert any basis for tolling the applicable statutes of limitation and repose. (See
generally Doc. 199.) While the DJ Defendants did assert 14 affirmative defenses,
some of those defenses are foreclosed by the Courts prior rulings and others are
nonsensical; none stands in the way of granting WWE the declaratory relief it
seeks and to which it is otherwise entitled.3 Accordingly, WWE is now entitled to
judgment on the pleadings.
II.

LEGAL STANDARD
After the pleadings are closedbut early enough not to delay triala

party may move for judgment on the pleadings. Fed. R. Civ. P. 12(c). On a
motion for judgment on the pleadings under Rule 12(c), a court applies the same
standard as it would to a motion to dismiss for failure to state a claim pursuant to
Rule 12(b)(6). ... The Court therefore views the pleadings in the light most
favorable to, and draws all reasonable inferences in favor of, the non-moving
party. Judgment is appropriate if, based on the pleadings, the moving party is
entitled to judgment as a matter of law. Lexington Ins. Co. v. Tokio Marine &
3

The DJ Defendants Answer continues a pattern of conduct by their counsel


evident throughout these consolidated cases. WWE notes that Rule 11(b) applies
to answers as well as to complaints, as well as to any paper those counsel may
file in opposition to this motion. See Fed. R. Civ. P. 11(b).
4

Case 3:15-cv-01074-VLB Document 205-1 Filed 09/08/16 Page 5 of 20

Nichido Fire Ins. Co., No. 11 Civ. 391 (DAB), 2012 U.S. Dist. LEXIS 59635 (S.D.N.Y.
Mar. 28, 2012) (internal citations omitted) (granting plaintiffs motion and
providing declaration of nonliability). As on a motion to dismiss, the court
considers the complaint, the answer, any written documents attached to them,
and any matter of which the court can take judicial notice for the factual
background of the case. EVO Merch. Servs., LLC v. Fire USA, Inc., No. CV 126152, 2014 U.S. Dist. LEXIS 111456, *3 (S.D.N.Y. Aug. 11, 2014). Judgment on the
pleadings may be granted on a plaintiffs motion where all of the defenses raised
in the answer are legally insufficient. U.S. v. Dental Care Assocs. of Spokane
Valley, No. 2:15-cv-23-RMP, 2016 U.S. LEXIS 24008 (E.D. Wash. Feb. 25, 2016);
Israel v. Israel, NO. 13 C 5271, 2014 U.S. Dist. LEXIS 164805 (N.D. Ill. Nov. 25,
2014) (granting plaintiffs motion for judgment on the pleadings where defenses
were insufficient and unmeritorious); Hous. Auth. Risk Retention Group, Inc. v.
Chicago Hous. Auth., No. 02 C 4474, 2003 U.S. Dist. LEXIS 17442 (N.D. Ill. Sept. 30,
2003) (granting plaintiffs motion for judgment on the pleadings where it appeared
beyond doubt that the non-moving party could not prove facts sufficient to
support his position), affd, 378 F.3d 596 (7th Cir. 2004).
III.

CHOICE OF LAW
In this diversity action, the Court should apply the choice-of-law rules of

the forum state. Atl. Marine Constr. Co. v. United States Dist. Court, 134 S. Ct.
568, 582 (U.S. 2013) (A federal court sitting in diversity ordinarily must follow the
choice-of-law rules of the State in which it sits.) (citing Klaxon Co. v. Stentor
Elec. Mfg. Co., 313 U.S. 487, 494-496 (1941)); see also, e.g., Vt. Mut. Ins. Co. v.

Case 3:15-cv-01074-VLB Document 205-1 Filed 09/08/16 Page 6 of 20

Ciccone, 900 F.Supp.2d 249 (D.Conn. 2012) (applying Klaxon rule in declaratory
judgment case).
Therefore, because the tort claims threatened by the DJ Defendants all
exist at common law,4 Connecticut law also governs the statutes of limitation and
repose. McCullough, 2016 US. Dist. LEXIS 39791 at *36 (And under 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.) (citing Baxter v. Sturm, Ruger & Co., 32 F.3d 48, 49 (2d Cir. 1994); Doe No. 1
v. Knights of Columbus, 930 F.Supp.2d 337, 353 (D. Conn. 2013) (observing
Connecticut courts traditionally apply Connecticuts statute of limitations when
the plaintiff pursues a common law cause of action)).
IV.

ARGUMENT
A.

The Pleadings Establish A Prima Facie Basis for Judgment.

Under Connecticut law, there are two possible statutes of limitation that
may apply to the common-law tort claims that have been threatened by the DJ
Defendants. Connecticut General Statute 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. Conn. Gen. Stat.
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). Connecticut General Statute 52-

Stated differently, there are no statutory claims at issue. Obviously, the DJ


Defendants cannot pursue non-statutory tort claims that do not exist at common
law.
6

Case 3:15-cv-01074-VLB Document 205-1 Filed 09/08/16 Page 7 of 20

584, which governs actions for negligence or reckless misconduct, 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. Conn. Gen.
Stat. 52-584.
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, 468-469 (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, 451-452
(1996) (internal quotation marks and citations omitted). When conducting an
analysis under 52-577, the only facts material to the courts decision are the
date of the wrongful conduct alleged in the complaint and the date the action was
filed. The 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. (internal quotation marks and citations omitted). 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)
(internal quotation marks omitted).
Similarly, though 52-584 includes a two-year limitations period from
discovery of injury, it further provides, like 52-577, a three-year repose period

Case 3:15-cv-01074-VLB Document 205-1 Filed 09/08/16 Page 8 of 20

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 52-584, 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. (internal
quotation marks omitted)
In short, for purposes of both statutes, the only material facts are the date
of the wrongful conduct and the date the action was filed. The pleadings in this
case now establish that none of the DJ Defendants wrestled for WWE for more
than three years before the Windham complaint was filed. (Doc. 199 88.)
Indeed, the pleadings establish that, though none of the DJ Defendants had
wrestled for WWE in more than 15 years (id. 16-19), they elected in June 2015
merely to threaten WWE with litigation while continuing to defer action on their
threatened claims. (See Doc. 1, Exs. A-D.)5 Accordingly, the pleadings establish
not only that the applicable repose periods have elapsed, but that they elapsed
more than a decade ago.
5

Even to date, after having filed their Answer to the Complaint seeking a
declaratory judgment on the basis of applicable statutes of limitation and repose
(and even after their counsel Konstantine Kyros filed suit on behalf of 53 other
former WWE performers, some or all of whom no doubt comprise the John Doe
defendants that were dismissed from the Windham action), none of the DJ
Defendants has brought any claim against WWE.
8

Case 3:15-cv-01074-VLB Document 205-1 Filed 09/08/16 Page 9 of 20

Therefore, absent some basis to toll the applicable repose periods, WWE is
entitled to declarations foreclosing the DJ Defendants from pursuing any tort
claims arising from their time as performers for WWE. See McCullough, 2016 U.S.
Dist. LEXIS 95127 at *36 (observing that, to avoid judgment, Defendants would
have to assert facts sufficient to toll the applicable statute of limitations and/or
repose); see also OBG Tech Servs., Inc. v. Northrop Grumman Space & Mission
Sys. Corp., 503 F. Supp. 2d 490, 504-505 (D. Conn. 2007) (concluding claimants
have the burden of pleading facts sufficient to establish that a statute of limitation
should be tolled). Because the Answer filed in this case lacks any such
allegations, WWE has established a prima facie basis for the declaratory relief it
seeks.
B.

None of Defendants Affirmative Defenses Can Succeed, Nor Does


Any Prevent Entry of Judgment on the Pleadings.

The DJ Defendants have interposed 14 affirmative defenses to WWEs


single count for declaratory relief. None of the affirmative defenses can succeed,
however, nor does any prevent entry of judgment on the pleadings. Notably none
of the affirmative defenses asserts any basis for tolling the otherwise applicable
repose and limitations periods. Therefore, the Court should enter judgment for
WWE based on the pleadings, which have established a prima facie case.
WWE will address the affirmative defenses seriatim.
1.

WWE Has Not Failed to State a Claim.

The first affirmative defense asserts a purported failure to state a claim on


which relief could be granted. Because this is an attack on the face of the

Case 3:15-cv-01074-VLB Document 205-1 Filed 09/08/16 Page 10 of 20

Complaint, it can perforce be addressed and resolved by a motion for judgment


on the pleadings.
Notwithstanding the DJ Defendants contention that limitation and repose
issues cannot be resolved by declaratory judgment, the Supreme Court has
expressly ruled that the Declaratory Judgment Act permits prospective
defendants to sue to establish their nonliability. Becaon Theatres, Inc. v.
Westover, 359 U.S. 500, 504 (1959). Consistent with this principle, there are
numerous decisions in the Second Circuit and elsewhere addressing limitations
issues raised by DJ actions. See Hoelzer v. City of Stamford, 933 F.2d 1131, 1133
(2d Cir. 1991) (entertaining declaratory judgment action asserting that limitations
had run on claim for return of artwork).
In granting WWEs motion for reconsideration, moreover, the Court has
already resolved this issue against the DJ Defendants. McCullough v. WWE, Inc.,
No. 3:15cv1074(VLB), 2016 U.S. Dist. LEXIS 95127, *51 (D. Conn. July 21, 2016)
(denying DJ Defendants motion to dismiss while observing that courts,
including the Second Circuit itself, have regularly consider[ed] the merits of
affirmative defenses raised by declaratory plaintiffs.).
2.

The Court Has Subject Matter Jurisdiction.

In denying the DJ Defendants motion to dismiss, this Court considered at


length and rejected their contention that the Court lacks subject matter
jurisdiction over the action. See id. at *38-46. Thus, any argument on grounds of
ripeness is foreclosed. In fact, Defendants Answer now affirmatively admits
sending the threatening letters attached to the Complaint on June 2, 2015, firmly

10

Case 3:15-cv-01074-VLB Document 205-1 Filed 09/08/16 Page 11 of 20

establishing a basis for exercising subject matter jurisdiction. (Doc. 199 6 &
Doc. 1 6 & Exs. A-D.) WWE attaches these admitted letters, which plainly
threaten litigation (see Doc. 199 89 (admitting alleging that Defendants were
injured as a result of WWEs negligent and fraudulent conduct), id. 90
(admitting making demands on WWE in light of the possible litigation involving
this matter and the reasonable anticipation of litigation)) as Exhibit A hereto.
As respects diversity jurisdiction, the DJ Defendants admit that the dispute
is between citizens of different states. (Doc. 199 21.) While they deny that the
amount in controversy exceeds $75,000, they do so on the incorrect basis that
this action is not intended to calculate any damages. (See id.) See Stoner v. NY
Life Ins. Co., 311 U.S. 464 (1940) (concluding lower court properly denied a
motion to dismiss for want of the necessary amount in controversy since a
judgment in favor of respondent would determine petitioners claim to both
benefit payments and waiver of premiums); Garanti Finansal Kiralama A.S. v.
Aqua Marine & Trading, Inc., 697 F.3d 58, 68 (2d Cir. 2012) (observing that in DJ
actions the amount in controversy is the value of the object of the litigation). The
sheer scope of the claims threatened by the DJ Defendants in their counsels
letters of June 2, 2015, as evidenced by the scope of the document preservation
demands, makes clear that those claims concern amounts in controversy well in
excess of $75,000. (See, e.g., Doc. 1, Ex. A.) Were there any existential doubt on
this point, moreover, the Court may take judicial notice that similarly placed
individuals represented by the same lawyers have asserted claims against WWE
in excess of $75,000, purportedly arising from the same conduct asserted in the

11

Case 3:15-cv-01074-VLB Document 205-1 Filed 09/08/16 Page 12 of 20

threatening letters sent here. See, e.g., Plaintiffs Second Amended Complaint,
Singleton v. WWE, Inc., No. 15-cv-425(VLB) (D. Conn. June 15, 2015), at 11
(asserting on behalf of two former WWE wrestlers represented by Attorney Kyros
tort claims having amounts in controversy in excess of $75,000).
3.

The DJ Defendants Waived Any Personal Jurisdiction Defenses.

The DJ Defendants moved to dismiss on September 21, 2015. (Doc. 72.)


Their motion was based on a purported lack of subject matter jurisdiction and
failed to raise any objection to personal jurisdiction. (See id.) A party who fails
to object to personal jurisdiction in the first of either his answer or motion to
dismiss has waived his objection. Credle-Brown v. Conn., 502 F.Supp.2d 292,
297 (D. Conn. 2007). See also Transsaero, Inc. v. LaFueiza Aerea Boliviana, 162
F.3d 724, 730 (2d Cir. 1998) (concluding defendant must object to personal
jurisdiction at the time he makes his first significant defensive move).
Accordingly, any defense of lack of personal jurisdiction has been waived.
4.

WWE Has Not Failed to Join All Parties Similarly Situated.

There can be no defense based on a purported failure to join all parties


similarly situated. First, all similarly situated parties have been joined. WWE has
received threats of suit on behalf of former WWE performers who retained
Attorney Kyros (lead counsel for others who have recently sued WWE for TBIs)
only from the four named DJ Defendants. Second, Rule 19 of the Federal Rules of
Civil Procedure requires joinder only of persons subject to service of process
and whose joinder will not deprive the court of subject-matter jurisdiction. Fed.
R. Civ. P. 19(a)(1). Having strenuously resisted all attempts by WWE to discover

12

Case 3:15-cv-01074-VLB Document 205-1 Filed 09/08/16 Page 13 of 20

the identities of the unnamed John Doe defendants, and having further
persuaded the Court that it lacks subject matter jurisdiction over WWEs claims
against those John Doe defendants, the DJ Defendants cannot establish that Rule
19 compels the joinder of any other defendants.6
5.

There Is No Prior Pending Action.

Notwithstanding the DJ Defendants pled defense that there exists an


already filed, similar case litigating the same or similar claim, there are no other
currently pending cases between WWE and the DJ Defendants. The letters
threatening litigation and demanding preservation of documents would otherwise
have been unnecessary! (See Doc. 1, Exs. A-D.) Even the declaratory judgment
claims brought by other former wrestlers have now been dismissed.
6.

WWEs Claim Has Not Been Determined Previously.

The DJ Defendants plead as their sixth affirmative defense that WWEs


claim is barred, in whole or in part, because the claim has already been litigated
and determined by this Court. It is unclear what this defense is intended to be.
To the extent Defendants intend to plead collateral estoppel or res judicata,
however, they can point to no case in which the tort claims at issue have been
previously finally resolved. And to the extent Defendants intend to plead law of
the case or some other such thing, not only is there no such affirmative defense,

Even if other conditions requiring joinder were met, Rule 19 would not require
joinder under the circumstances here. See Fed. R. Civ. P. 19(a)(1)(A) & (B)
(requiring joinder only where omission of others will prevent an award of
complete relief, impair third party interests, or create a substantial risk of multiple
obligations); Fed. R. Civ. P. 19(b) (permitting matters to go forward without
joinder when equity and good conscience allow).
13

Case 3:15-cv-01074-VLB Document 205-1 Filed 09/08/16 Page 14 of 20

but the Courts ruling in this case is that WWEs claims may proceed.
McCullough, 2016 U.S. Dist. LEXIS 95127.
7.

Declaratory Judgment Is Available for an Affirmative Defense.

Defendants assertion that WWEs claim is barred because it raises an


affirmative defense fails for the reasons set out in Section IV.B.1, above.
Moreover, the assertion that granting WWE the relief it seeks could deprive the
Defendants of their otherwise legitimate choice of forum and time for suit is a
non sequitur. By definition, because Defendants claims are barred by the
applicable statutes of repose, they have no legitimate time for suit.7
8.

Laches Presents No Bar to WWEs Claim.

WWE brought suit on June 29, 2016, fewer than four weeks after receiving
now admitted letters from counsel for the DJ Defendants threatening litigation.
"Laches consists of an inexcusable delay which prejudices the defendant. . . .
Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 398 (2015).
Accordingly, even if laches made sense as a defense to a case asserting the
staleness of Defendants claims, it has no applicability here.
9.

Unclean Hands Is No Defense.

The unclean hands doctrine proscribes equitable relief when, but only
when, an individuals misconduct has immediate and necessary relation to the
7

Nor, as the Court has already recognized, would the Defendants have a right to
choose a different forum. McCullough, 2016 U.S. Dist. LEXIS 95127, *59-60
(Second, even if Messrs. Windham, Billington, Ware and Perras had elected to
file suit in the loci of their choice, it is likely, based upon the same factors which
led three different courts to transfer the Haynes, Frazier and Osborne actions to
the District of Connecticut from three different judicial districts, that their suits
would similarly be transferred here .).

14

Case 3:15-cv-01074-VLB Document 205-1 Filed 09/08/16 Page 15 of 20

equity that he seeks. Henderson v. United States, 135 S. Ct. 1780, 1783 (2015);
Bauer v. Waste Mgmt., 239 Conn. 515 (1996) (The doctrine of unclean hands
expresses the principle that where a plaintiff seeks equitable relief, he must show
that his conduct has been fair, equitable and honest as to the particular
controversy in issue.). Statutes of limitation, however, apply to legal claims, not
equitable claims. City of Bridgeport v. C.R. Llevin Northeast, LLC, 51 Conn. Supp.
1, 4 (Conn. Super. Ct. 2007). In fact, the doctrine of unclean hands is wholly
inapplicable to this case, given that the doctrine of unclean hands precludes only
equitable relief. Petroleum & Franchise Capital LLC v. Tejany Petroleum
Naperville LLC, No. 3:15cv156(JCH), 2016 U.S. Dist. LEXIS 100842, *21 (D. Conn.
Aug. 2, 2016). The doctrine of unclean hands therefore has no application to
WWEs claim that the DJ Defendants threatened tort claims are barred by
applicable statutes of limitation/repose. See Midwest Media Group Inc. v.
Benistar Employer SVC Trust Co., No. 3:10-cv-843(JCH), 2011 U.S. Dist. LEXIS
105356 (D. Conn. Sept. 16, 2011) (The court is not aware of, and plaintiffs do not
cite, any authority for the proposition that the doctrine of unclean hands applies
to the conduct of [hoodwinking plaintiffs into letting the statute of limitations
expire by expressing interest in mediation] and could toll the statute of
limitations.).
10.

WWEs Claim Is Not Moot.

A claim is moot when it is impossible for the court to grant any effectual
relief whatever to a prevailing party and thus any statement on the merits of the
claim would constitute an improper advisory opinion. Garcia v. INS, 2002 U.S.

15

Case 3:15-cv-01074-VLB Document 205-1 Filed 09/08/16 Page 16 of 20

Dist. LEXIS 27401, *4 (D. Conn. May 30, 2002) (quoting In re Kurtzman, 194 F.3d
54, 58 (2d Cir. 1999)). Here, none of the DJ Defendants can point to any release of
WWE or covenant not to sue, nor even any retraction of his demand for the
preservation of documents. Because declaratory relief is available that would
remove the cloud over WWE, WWEs claim is not moot.
11.

WWEs Claim Is Not Futile.

Defendants futility defense is incomprehensible. The doctrine of futility


ordinarily serves simply to shield a claimant from allegations of having failed to
fulfill some condition precedent to pursuing a claim. For example, a futility
defense will shield a plaintiff from a failure to exhaust remedies, if, and only if,
claimants make a clear and positive showing that pursuing available
administrative remedies would be futile. Kosswig v. Timken Co., No.
3:06cv499(PCD), 2007 U.S. Dist. LEXIS 58718, *31 (D. Conn. Aug. 10, 2007). That
doctrine has no application here. Even if there were conditions precedent to
WWEs DJ claim, the futility defense could only serve to excuse WWEs failure to
meet those conditions. Likewise, it is not only impossible to parse the defense
that Plaintiffs claim is barred, in whole or in part, because the claim is futile
(Doc. 199, p.23, Eleventh Affirmative Defense (emphasis added)) to refer to tort
claims that the Defendants might have brought, but doing so provides no clarity
to this defense, as there likewise has never been any condition precedent to the
DJ Defendants pursuing in a timely way whatever tort claims they might ever
have had.

16

Case 3:15-cv-01074-VLB Document 205-1 Filed 09/08/16 Page 17 of 20

12.

Declaratory Relief Is A Legal Remedy.

The DJ Defendants defense that WWEs claim is barred because there


exists an adequate remedy at law is nonsensical. WWEs claim seeks a legal
remedy. See Beacon Theatres, 359 U.S. at 509 (referring to the expansion of
adequate legal remedies provided by the Declaratory Judgment Act). Moreover,
the Federal Rules of Civil Procedure expressly provide: The existence of
another adequate remedy does not preclude a declaratory judgment that is
otherwise appropriate. Fed. R. Civ. P. 57. See Natl Union Fire Ins. Co. v.
Mastroni, 754 F. Supp. 269, 272 (D. Conn. 1990) (rejecting defense to request for
declaratory relief based on purported availability of an adequate legal remedy
under Rule 57).
13.

The Relief Sought by the DJ Defendants Is Not Privileged.

In their thirteenth affirmative defense, the DJ Defendants again


nonsensically plead that WWEs claim is barred because the relief sought is
privileged or protected by the United States Constitution. The DJ Defendants
have no right, constitutional or otherwise, to pursue time-barred claims. To the
extent this defense seeks to relitigate Defendants contention that a declaratory
judgment action is an improper vehicle to resolve WWEs claim, the issue has
already been resolved against them. See Section IV.B.1, above.
14.

WWEs Claim Is Not Otherwise Barred

The DJ Defendants finally contend that WWEs claim is somehow barred by


equity, including estoppel and waiver, and because of public policy. None of
these defenses can succeed.

17

Case 3:15-cv-01074-VLB Document 205-1 Filed 09/08/16 Page 18 of 20

Equitable estoppel, under Connecticut law, has two elements: (1) the
party against whom estoppel is claimed must do or say something calculated or
intended to induce another party to believe that certain facts exist and to act on
that belief; and (2) the other party must change its position in reliance on those
facts, thereby incurring some injury. Intl Strategies Group, Ltd. v. Ness, 645
F.3d 178, 185 (2d Cir. 2011) (internal quotations 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. Id. (internal quotations
omitted). In the context of WWEs claim, for equitable estoppel to apply to bar
WWEs assertion of a defense based on repose, WWE must have done or said
something to discourage Defendants from bringing suit for their alleged injuries.
No such allegation can be made here, however, as the DJ Defendants have
admitted that they had not complained to WWE regarding any alleged injuries in
the decades since they last performed until the June 2, 2015 letters. (Doc. 199
74.)
Likewise, [w]aiver is the intentional relinquishment of a known right.
Proof of waiver therefore requires evidence of both knowledge of the existence
of the right and intention to relinquish it. JEM, Inc. v. Senaca Ins. Co., 309 Fed.
Appx. 491, 492 (2d Cir. 2009). Defendants admission that they had not
complained to WWE regarding any injuries in the decades since they each last
performed therefore forecloses this defense as well, as WWE could not have
intended to relinquish a defense to claims about which it knew nothing. WWEs

18

Case 3:15-cv-01074-VLB Document 205-1 Filed 09/08/16 Page 19 of 20

first and only response to the threat letters issued by counsel for the Defendants
was this lawsuit.
Finally, the DJ Defendants attempt to avoid the controlling limitations
periods on the basis of public policy is at the least misguided. Whether seen
as a sanction imposed on plaintiffs who sleep on their rights or as a benefit
conferred upon defendants to reduce the risk and uncertainty of liability, statutes
of limitation and statutes of repose serve the same public policy of avoiding the
litigation of stale claims. Baxter v. Sturm, Ruger & Co., 230 Conn. 335, 344
(1994). Indeed, although the Statute of Limitations is generally viewed as a
personal defense to afford protection to defendants against defending stale
claims, it also expresses a societal interest or public policy of giving repose to
human affairs. Haggerty v. Williams, 84 Conn. App. 675, 681 (Conn. App. 2004).
Thus, far from standing in the way of WWEs claim, the public policy of
Connecticut, as expressed in its applicable statutes of limitation and repose,
supports the granting of the declaratory relief requested.
V.

CONCLUSION
For the foregoing reasons, WWE respectfully requests entry of judgment

declaring that each of Defendants Windham, Billington, Ware, and Perras are time
barred from bringing any tort claims they might have against WWE related either
to alleged traumatic brain injuries or any supposedly negligent or fraudulent
conduct by WWE.

19

Case 3:15-cv-01074-VLB Document 205-1 Filed 09/08/16 Page 20 of 20

PLAINTIFF,
WORLD WRESTLING ENTERTAINMENT, INC.,
By: /s/ Jerry S. McDevitt
Jerry S. McDevitt (pro hac vice)
Terry Budd (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: terry.budd@klgates.com
Email: curtis.krasik@klgates.com
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: tgoldberg@daypitney.com
Email: jbtropp@daypitney.com
Email: jmueller@daypitney.com

CERTIFICATION OF SERVICE
I hereby certify that, on September 8, 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
Jeffrey P. Mueller (ct27870)

20