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Case 3:15-cv-01074-VLB Document 281 Filed 01/20/17 Page 1 of 17

UNITED STATES DISTRICT COURT


DISTRICT OF CONNECTICUT

RUSS McCULLOUGH, et al.,


Plaintiffs,
VS.
WORLD WRESTLING ENTERTAINMENT,
INC.,
Defendant.

JOSEPH M. LAURINAITIS, et al.,


Plaintiffs,
VS.
WORLD WRESTLING ENTERTAINMENT,
INC., et al.,
Defendants.

: NO. 3:15-cv-01074-VLB
: LEAD CASE
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: NO. 3:16-CV-01209-VLB
: CONSOLIDATED CASE
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: JANUARY 20, 2017

REPLY MEMORANDUM IN SUPPORT OF


DEFENDANTS MOTION FOR SANCTIONS

Jonathan B. Tropp (ct11295)


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

Jerry S. McDevitt (pro hac vice)


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

Counsel for Defendants

Case 3:15-cv-01074-VLB Document 281 Filed 01/20/17 Page 2 of 17


TABLE OF CONTENTS
Page

I.

Plaintiffs Plagiarism of the NFL Complaint Is Sanctionable. ......................... 2

II.

Plaintiffs Assertion of Misclassification Claims Is Sanctionable. ................. 4

III.

Plaintiffs Assertion of Time-Barred Claims Is Sanctionable.......................... 6

IV.

Plaintiffs Assertion of Released Claims Is Sanctionable. .............................. 8

V.

Plaintiffs Fail to Address Numerous Grounds For Sanctions. ....................... 9

VI.

Plaintiffs Were Provided with Proper Notice of the Rule 11 Motion. ............ 10

VII.

Plaintiffs Motion to Strike Certain Allegations Is Frivolous. ........................ 11

-i-

Case 3:15-cv-01074-VLB Document 281 Filed 01/20/17 Page 3 of 17

TABLE OF AUTHORITIES
Page(s)
Cases
Berera v. Mesa Med. Group, PLLC,
779 F. 3d 352 (6th Cir. 2015) .................................................................................... 6
Brown v. Ameriprise Financial Services, Inc.,
276 F.R.D. 599 (D. Minn. 2011) ................................................................................ 3
A.Q.C. ex. rel. Castillo v. United States,
656 F.3d 135 (2d Cir. 2011) ...................................................................................... 7
Cerbone v. International Ladies' Garment Workers' Union,
768 F.2d 45 (2d Cir. 1985) ........................................................................................ 6
Chowdhury v. Hamza Express Food Corp.,
No. 14-CV-150, 2015 U.S. Dist. LEXIS 125166 (E.D.N.Y. Aug. 21,
2015)........................................................................................................................ 11
Davis v. Jacobson,
No. 3:12-cv-1102, 2014 U.S. Dist. LEXIS 157693 (D. Conn. Nov. 7,
2014).......................................................................................................................... 6
East Point Systems, Inc. v. Maxim,
No. 3:13-cv-00215, 2014 U.S. Dist. LEXIS 15280 (D. Conn. Feb. 7,
2014).......................................................................................................................... 4
Felske v. Hirschmann,
No. 10 Civ. 8899, 2012 U.S. Dist. LEXIS 29893 (S.D.N.Y. Mar. 2,
2012)........................................................................................................................ 10
Frey v. Bekins Van Lines, Inc.,
748 F. Supp. 2d 176 (E.D.N.Y. 2010) ..................................................................... 10
Gager v. Sanger,
No. CV030182451S, 2005 Conn. Super. LEXIS 589 (Feb. 25, 2005) ...................... 7
Guo v. IBM 401(k) Plus Plan,
95 F. Supp. 3d 512, 527 (S.D.N.Y. 2015) ................................................................. 6
Levy v. World Wrestling Entertainment, Inc.,
No. 3:08-cv-01289, 2009 U.S. Dist. LEXIS 13538 (D. Conn. Feb. 20,
2009).................................................................................................................. 4, 5, 6

-ii-

Case 3:15-cv-01074-VLB Document 281 Filed 01/20/17 Page 4 of 17

Levy v. World Wrestling Entertainment, Inc.,


No. 3:08-cv-1289, 2009 U.S. Dist. LEXIS 66200 (D. Conn. July 31,
2009).......................................................................................................................... 5
Lopez v. Travelers Cos.,
No. AANCV15601947S, 2016 Conn. Super. LEXIS 893 (Apr. 26,
2016).......................................................................................................................... 7
McClain v. Pfizer, Inc.,
No. 3:06-cv-1795, 2008 U.S. Dist. LEXIS 17757 (D. Conn. Mar. 7,
2008)........................................................................................................................ 10
Reches v. Morgan Stanley & Co.,
No. 16 Civ. 1663, 2016 U.S. Dist. LEXIS 115533 (E.D.N.Y. Aug. 26,
2016).......................................................................................................................... 7
Saperstein v. Danbury Hospital,
No. X06CV075007185S, 2010 Conn. Super. LEXIS 197 (Jan. 27,
2010).......................................................................................................................... 7
Star Mark Management, Inc. v. Koon Chun Hing Kee Soy & Sauce
Factory, Ltd.,
682 F.3d 170 (2d Cir. 2012) .............................................................................. 10, 11
Veltri v. Building Service 32b-J Pension Fund,
393 F.3d 318 (2d Cir. 2004) .................................................................................. 7, 8
Statutes
26 U.S.C. 7422(a) ........................................................................................................ 6
Conn. Gen. 52-555 ...................................................................................................... 7
Conn. Gen. 52-576 ...................................................................................................... 7
Conn. Gen. 52-584 ...................................................................................................... 7
Conn. Gen. 52-584 ...................................................................................................... 7
Conn. Gen. 52-577 ...................................................................................................... 7
Rules
Rule 11 ................................................................................................... 2, 5, 8, 9, 10, 11

-iii.

Case 3:15-cv-01074-VLB Document 281 Filed 01/20/17 Page 5 of 17

After Defendants filed their motion for sanctions regarding the original
Complaint in this case, this Court issued its ruling dismissing the James and
Frazier wrongful death cases and addressing an earlier motion for sanctions that
had been filed in James. The ruling repeatedly admonished Attorney Kyros and
his co-counsel for their pattern of litigation misconduct and concluded with this
warning: The Court admonishes Kyros and his co-counsel to adhere to the
standards of professional conduct and to applicable rules and court orders lest
they risk future sanction or referral to the Disciplinary Committee of this Court.
Doc. No. 253 at 27-28. Rather than heed this Courts admonitions, Attorney Kyros
responded by criticizing the ruling and further escalating his misconduct.1
Consistent with these tactics, Attorney Kyros and his co-counsel have filed
an opposition to the motion for sanctions in this case that shows their complete
disregard for the Courts prior admonitions. The opposition fails to even address
most of their sanctionable conduct, including their assertion of patently defective
legal claims and the inclusion of allegations that this Court has already found to
be deliberately false and misleading. The several responses that the opposition
does provide to Defendants arguments are themselves premised on knowingly
1

Attorney Kyros publicly attacked the Courts ruling, falsely stating that [t]he
ruling ignores that the deaths of Nelson Frazier and Matthew Osborne were
consequences of an abusive and exploitative culture within WWE (Ex. 1) when
the Court specifically considered this claim and found that the complaint failed to
plausibly allege any causal relationship between their deaths and any conduct by
WWE (Doc No. 253 at 16-19). He also told the media that he felt justified in
asserting that both decedents had CTE (Ex. 2) when the Court specifically found
that this unprovable claim was knowingly false and highly unprofessional
(Doc. No. 253 at 18, 27). As further evidence of his improper purpose, he has now
used this lawsuit in the media to smear Linda McMahon, the former CEO of WWE,
the wife of Defendant Vince McMahon, and the President-elects nominee to join
his Cabinet as head of the Small Business Administration. See Ex. 2.

-1-

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false statements in violation of Rule 11. The opposition also concedes that the
Complaint in this case includes false allegations plagiarized from the NFL lawsuit
and that [c]ertain sentences may be nearly identical. Doc. No. 258 at 8.
Attorney Kyros obstinate refusal to reflect upon and correct his prior
wrongdoing and his continued misconduct in the face of this Courts repeated
warnings confirm that he will remain unrepentant and undeterred until the Court
imposes meaningful sanctions. The severe sanctions of dismissal with prejudice
and a full award of attorneys fees are warranted here.2
I.

Plaintiffs Plagiarism of the NFL Complaint Is Sanctionable.


Plaintiffs attempt to dismiss the numerous patently false allegations

against WWE that were blatantly plagiarized from the NFL Complaint as merely
typographical errors is further evidence of their dishonesty to the Court.3
See Doc. No. 258 at 9.
Plaintiffs Counsel copied over 8,200 words and 186 paragraphs directly
from the NFL Complaint with conscious disregard for the falsity of these
allegations as applied to WWE. See Doc. No. 229-3. The Complaints drafter then
intentionally and deliberately changed certain words in the plagiarized allegations
2

The instant motion for sanctions remains ripe for adjudication despite the filing
of an Amended Complaint. Plaintiffs failed to attempt to cure the deficiencies in
the original Complaint until after Defendants were forced to incur the time and
expense of briefing the instant motion for sanctions and a motion to dismiss with
respect to that complaint. Moreover, the sanctionable conduct evidenced by the
original Complaint in the face of this Courts prior warnings was so extreme that
the sanction of dismissal is still warranted, particularly since such conduct has
been perpetuated and exacerbated by the Amended Complaint. Indeed, WWE has
filed another sanctions motion due to the Amended Complaint. See Doc. No. 263.
3

Attorney Kyros has also disingenuously claimed in the media that these false
allegations were nothing more than a few typos. Exs. 2-3.

-2.

Case 3:15-cv-01074-VLB Document 281 Filed 01/20/17 Page 7 of 17

to provide the Court with the false impression that such allegations applied to
WWE. For example, Plaintiffs Counsel falsely alleged that statements made by
NFL Commissioner Roger Goodell were made by WWE, that published scientific
studies concerning football players were about wrestlers, and that actions taken
by the NFLs Mild Traumatic Brain Injury Committee were taken by WWE. See
Doc. No. 229 at 24-26. Such allegations formed the basis for the fabricated claim
in this case that WWE knew for decades about the reported long-term risks of
developing neurodegenerative diseases from head trauma in wrestling and
fraudulently concealed such information from its performersa claim that
Plaintiffs Counsel knew was false based on discovery that they had already
taken in the Singleton case. Id. at 17-19.
These patently false allegations did not involve mere grammatical
mistakes, misspelled words, or other typographical errors. Rather, they are the
kind of willful and deceptive acts that courts find so egregious as to warrant
dismissal with prejudice. See Brown v. Ameriprise Financial Services, Inc., 276
F.R.D. 599, 605 (D. Minn. 2011) (dismissing action because [b]y near-wholesale
copying of the allegations from a complaint against a different defendant, in a
different court, in a different industry, for conduct occurring in a different decade,
and adopting those assertions as her own, Plaintiff has essentially undermined
the integrity of the judicial process by lying to the Court.).
Plaintiffs attempt to trivialize their plagiarism by falsely characterizing it as
typographical errors shows their continued recalcitrance. Moreover, the fact
that Plaintiffs have now filed an Amended Complaint that continues to rest on

-3.

Case 3:15-cv-01074-VLB Document 281 Filed 01/20/17 Page 8 of 17

knowingly false allegations about WWEs knowledge plagiarized from the NFL
Complaint demonstrates that only the sternest of sanctions will be sufficient to
deter them. See Doc. No. 263 at 10-14.
II.

Plaintiffs Assertion of Misclassification Claims Is Sanctionable.


Plaintiffs claim in their opposition that this Courts decisions in the Levy

case rejecting nearly identical misclassification claims asserted by former WWE


performers have no bearing on the current matter is patently absurd and their
attempts to distinguish Levy are wholly unfounded. Doc. No. 258 at 21-22.
First, Plaintiffs erroneously claim that Levy is not applicable because the
Court was unable to analyze the Booking Contracts of the plaintiffs in that case.
Id. at 21. In fact, the Court did examine the Booking Contracts of the plaintiffs
because they were properly attached to the defendants motion to dismiss and
expressly relied upon their provisions in concluding that the plaintiffs claims had
no merit. See Levy v. World Wrestling Entertainment, Inc., No. 3:08-cv-01289,
2009 U.S. Dist. LEXIS 13538, at *3, 10-14 (D. Conn. Feb. 20, 2009) (Levy I).
Second, Plaintiffs attempt to distinguish Levy by arguing that their Booking
Contracts are invalid because they were induced by fraud despite the fact that not
a single Plaintiff has made any particularized allegations to establish fraud in the
inducement of their contract. See East Point Sys. v. Maxim, No. 3:13-cv-00215,
2014 U.S. Dist. LEXIS 15280, at *17-19 (D. Conn. Feb. 7, 2014) (fraud in the
inducement must be pled with particularity). Moreover, the examples of the
Booking Contracts attached to the Complaint make clear that some Plaintiffs
were represented by legal counsel in connection with their contracts, entered into

-4.

Case 3:15-cv-01074-VLB Document 281 Filed 01/20/17 Page 9 of 17

their contracts through corporate entities, and were paid hundreds of thousands
of dollars to perform for WWE. See Compl. Exs. B, D 7.1, 13.6. Plaintiffs
blanket and unsubstantiated claim that all of their Booking Contracts are invalid
is therefore another frivolous claim in violation of Rule 11.
Third, Plaintiffs attempt to distinguish Levy on the grounds that the
plaintiffs in that case failed to plead damages from their alleged misclassification.
See Doc. No. 258 at 22. However, Plaintiffs ignore the fact that the Court in Levy
held that a proposed amended complaint filed by the plaintiffs to cure this defect
would be futile because in dismissing the case, this Court primarily relied upon
the flaws in Plaintiffs claim that they have an employer-employee relationship
with Defendants and that such a relationship has been explicitly rejected by
this Court in its ruling granting Defendants motion to dismiss. Levy v. World
Wrestling Entertainment, Inc., No. 3:08-cv-1289, 2009 U.S. Dist. LEXIS 66200, at *9
(D. Conn. July 31, 2009) (Levy II).4
Plaintiffs also ignore Levys other holdings that expressly foreclose their
misclassification claims here. Plaintiffs claims are undeniably time-barred based
on Levys holding that their claims accrued at the start of their services or at
the execution of their Booking Contracts because from that date they knew of
their status from the Booking Contracts and that they were not to be regarded as
4

Plaintiffs attempts to distinguish Levy also ring hollow given that their First
Amended Complaint blatantly plagiarizes allegations from the proposed amended
complaint filed in the Levy case, which this Court already has rejected. Compare
First Amended Complaint (Doc. No. 252) 563-564 with Levy v. World Wrestling
Entertainment, Inc., Case No. 3:08-cv-01289 (Doc. No. 39-3) 9, 15. The fact that
Plaintiffs plagiarized again after the filing of this motion seeking sanctions for
such misconduct is truly astounding.

-5.

Case 3:15-cv-01074-VLB Document 281 Filed 01/20/17 Page 10 of 17

employees. Levy I, 2009 U.S. Dist. LEXIS 13538, at *13-15. Plaintiffs also ignore
that there is no authority requiring WWE to provide employee benefits to
Plaintiffs many years after the termination of their services and after their
contracts had been fully performed because such a claim would leave defendant
susceptible to court created obligations without limitation. Id. at *7-9.5
III.

Plaintiffs Assertion of Time-Barred Claims Is Sanctionable.


Plaintiffs make no serious response to the argument that their claims are

patently time-barred on the face of the Complaint, and their reliance on the
unpled theory of equitable tolling in an attempt to justify the assertion of stale
claims is unavailing for several reasons.6 See Doc. No. 258 at 34-42.
First, Plaintiffs did not plead equitable tolling in their Complaint. See Davis
v. Jacobson, No. 3:12-cv-1102, 2014 U.S. Dist. LEXIS 157693, at *22 (D. Conn. Nov.
7, 2014) (facts supporting equitable tolling must be pleaded); Guo v. IBM 401(k)
5

Plaintiffs attempt to defend the assertion of misclassification claims for which


there is no private right of action likewise fails. First, Plaintiffs attempt to draw a
distinction between a claim and a cause of action and contend that they are not
asserting a cause of action for alleged violations of OSHA and the NLRA. See
Doc. No. 258 at 11-14. Plaintiffs nevertheless improperly assert declaratory
judgment claims based on alleged violations of those statutes despite controlling
law holding that there is no private right of action under them. Second, Plaintiffs
continue to seek damages for alleged violations of the FMLA notice provision
despite the absence of any private right of action for such claims. Id. at 12-14, 36.
Third, Plaintiffs mischaracterize the Berera decision to suggest that a private
right of action exists for their tax claims when Berera makes clear that a plaintiff
cannot disguise a tax refund claim as a state law tort claim. Id. at 22. Plaintiffs
here are plainly seeking a refund of the taxes they were forced to improperly
pay (Compl. 612) despite controlling law requiring the filing of claims with the
IRS for tax refunds. See 26 U.S.C. 7422(a).
6

Plaintiffs claim that the doctrines of equitable tolling and equitable estoppel are
interchangeable demonstrates ignorance of the law. See Cerbone v. International
Ladies' Garment Workers' Union, 768 F.2d 45, 49-50 (2d Cir. 1985) (distinguishing
equitable tolling from equitable estoppel).
-6.

Case 3:15-cv-01074-VLB Document 281 Filed 01/20/17 Page 11 of 17

Plus Plan, 95 F. Supp. 3d 512, 527 (S.D.N.Y. 2015) (allegations of equitable tolling
cannot be raised for the first time in Plaintiffs opposition papers).
Second, Plaintiffs cannot rely on equitable tolling to extend the statutes of
limitations and repose applicable to their claims under Connecticut law. See
Lopez v. Travelers Cos., No. AANCV15601947S, 2016 Conn. Super. LEXIS 893, at
*18 (Conn. Super. Ct. Apr. 26, 2016) (no equitable tolling for negligence actions
under 52-584 or tort actions under 52-577); Saperstein v. Danbury Hosp., No.
X06CV075007185S, 2010 Conn. Super. LEXIS 197, at *41-44 (Conn. Super. Ct. Jan.
27, 2010) (no equitable tolling for negligence actions under 52-584 or wrongful
death actions under 52-555); Gager v. Sanger, No. CV030182451S, 2005 Conn.
Super. LEXIS 589, at *8 (Conn. Super. Ct. Feb. 25, 2005) (no equitable tolling for
contract actions under 52-576).
Third, Plaintiffs cannot rely on equitable tolling with respect to any federal
claims because no Plaintiff alleges (1) that they pursued their rights diligently and
(2) that some extraordinary circumstance stood in their way. See A.Q.C. ex. rel.
Castillo v. United States, 656 F.3d 135, 144 (2d Cir. 2011). Equitable tolling is
specifically inapplicable to their misclassification claims because Plaintiffs were
aware of their classification as independent contractors from the inception of
their relationship with WWE and did not diligently pursue their rights within the
limitations period. See Reches v. Morgan Stanley & Co., No. 16 Civ. 1663, 2016
U.S. Dist. LEXIS 115533, at *8-11 (E.D.N.Y. Aug. 26, 2016).7

Plaintiffs do not cite any authority to support their claim that an alleged failure
to post certain statutory notices tolled the limitations period applicable to any of
the claims asserted in the original Complaint. Plaintiffs reliance on Veltri v. Bldg.
-7.

Case 3:15-cv-01074-VLB Document 281 Filed 01/20/17 Page 12 of 17

IV.

Plaintiffs Assertion of Released Claims Is Sanctionable.


Plaintiffs Counsels responses to the argument that 19 Plaintiffs executed

releases that barred the claims asserted in the Complaint are premised on false
assertions made in further violation of Rule 11.8
First, Plaintiffs falsely claim that Defendants have refused to this day to
provide copies of the contracts they allege constitute releases. Doc. No. 258 at
13. This claim is knowingly false because Defendants provided copies of the
releases to Plaintiffs Counsel in connection with both their motion for sanctions
and their motion to dismiss the Complaint. See Ex. 4; Doc. Nos. 229, 234.
Second, Plaintiffs baselessly claim that all of the releases are invalid
because they were procured by fraud. As an initial matter, Plaintiffs have not
pled and cannot plead with the requisite particularity that each or any of the
Plaintiffs was fraudulently induced into signing a release. Moreover, their
unsupported claim that all of the releases were induced by fraud is demonstrably
false. For example, Plaintiff Eadie executed a detailed settlement agreement and
release of his claims for substantial consideration under the supervision of the
Court and with advice and consent of counsel after protracted litigation with

Serv. 32b-J Pension Fund, 393 F.3d 318 (2d Cir. 2004) is inapposite because it
involved an alleged failure to comply with an ERISA regulatory requirement to
provide notice to beneficiaries of their right to bring a court action following an
adverse benefits determination. Plaintiffs did not and could not make any such
allegation in the Complaint. Moreover, Veltri recognized that a defendants failure
to inform the plaintiff of a right to file a court action is not the kind of concealing
activity that would normally be held to mandate equitable tolling. Id. at 324.
8

Although such releases mandate dismissal of their claims, Plaintiffs assert the
absurd contention that the existence or non-existence of potential releases are
inapposite to the validity of Plaintiffs claims. Doc. No. 258 at 15.
-8.

Case 3:15-cv-01074-VLB Document 281 Filed 01/20/17 Page 13 of 17

WWE. See Doc. No. 230-11. That release demonstrates both the falsity of the
blanket position taken by Plaintiffs and the impropriety of their attempt to void all
of their releases without individualized pleading.9
V.

Plaintiffs Fail to Address Numerous Grounds For Sanctions.


Plaintiffs opposition fails to even address the numerous other grounds for

sanctions raised by Defendants, including:

Plaintiffs asserted numerous allegations that they knew were false


based on discovery in the Singleton action, including false allegations
concerning WWEs knowledge of the reported risks of long-term
neurodegenerative conditions from head trauma in wrestling and false
allegations concerning the Wellness Program. Doc. No. 229 at 28, 32-33.

Plaintiffs repeated false allegations that were the subject of the


sanctions motion in the James case, including false allegations that
Stephanie McMahon denied the presence of concussions in WWE
wrestling in congressional testimony and false allegations that WWE
attempted to discredit CTE studies of former football players. Id. at 3334. Plaintiffs have maintained these allegations even after this Court
found them to be deliberately false and misleading. Doc. No. 253 at 24.

Plaintiffs personal injury claims were frivolous in view of this Courts


decision in the McCullough case, which dismissed nearly identical
claims of medical monitoring, negligence, negligent misrepresentation,
fraud, and fraudulent concealment. Doc. No. 229 at 27-30.

Many of Plaintiffs claims were frivolous because they were not


independent causes of action, such as the declaratory judgment,
medical monitoring, fraudulent concealment, mandatory reporting,
intentional deprivation of statutory rights, and accounting and
disgorgement claims. Id. at 25-27.

Plaintiffs claims were frivolous because they failed to make


individualized allegations to support each claim. Id. at 48-49.

Plaintiffs unsupported assertion that every single contract executed by every


single performer with WWE over the course of many decades is invalidated by
fraud regardless of the facts and circumstances concerning each of those
contracts is another continuing Rule 11 violation.

-9.

Case 3:15-cv-01074-VLB Document 281 Filed 01/20/17 Page 14 of 17

Plaintiffs have conceded the validity of these arguments by their failure to


respond to them in their opposition. See Felske v. Hirschmann, No. 10 Civ. 8899,
2012 U.S. Dist. LEXIS 29893, at *9 (S.D.N.Y. Mar. 2, 2012) (A plaintiff effectively
concedes a defendants arguments by his failure to respond to them.); Frey v.
Bekins Van Lines, Inc., 748 F. Supp. 2d 176, 182 (E.D.N.Y. 2010) (Plaintiffs have
not responded to this argument, and the court therefore deems the matter to be
conceded.); McClain v. Pfizer, Inc., No. 3:06-cv-1795, 2008 U.S. Dist. LEXIS
17757, at *14-15 (D. Conn. Mar. 7, 2008) (plaintiff conceded defendants argument
by not responding to it in her opposition to the motion) (Bryant, J.).
VI.

Plaintiffs Were Provided with Proper Notice of the Rule 11 Motion.


Plaintiffs claim that they were not provided with notice of the grounds for

sanctions under Rule 11 is meritless and ignores controlling Second Circuit


authority cited in the very motions served by Defendants. Doc. No. 228 Exs. A-B.
The Second Circuit has made clear that Rule 11 requires only the service
of a motion and does not require service of a fully supported motion with a
memorandum of law and exhibits. Star Mark Management, Inc. v. Koon Chun
Hing Kee Soy & Sauce Factory, Ltd., 682 F.3d 170, 176-177 (2d Cir. 2012). A party
satisfies Rule 11s notice requirement by serving a motion that identifies the
grounds for sanctions and then filing a motion that rests on substantially the
same grounds after the expiration of the safe harbor period. Id.
Defendants served Plaintiffs with a motion specifically identifying the
grounds for sanctions now being pursued on August 5, 2016 and a supplemental
motion identifying the additional ground for sanctions based on the releases on

-10.

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August 19, 2016. Doc. No. 228 Exs. A-B. Defendants then filed a single cover
motion for sanctions after the expiration of the safe harbor periods that attached
and incorporated the two previous motions that were served on Plaintiffs. While
Defendants memorandum of law explained the grounds for sanctions in greater
detail, all of these grounds were sufficiently identified in the motions that had
been previously served and no new grounds were introduced. Doc. No. 228-229.
Defendants therefore complied with the notice requirements of Rule 11.10
In any event, as stated in Defendants motion, the Court may issue
sanctions based on its inherent authority and section 1927, which are not
subject to the safe harbor requirement in Rule 11. Star Mark, 682 F.3d at 126.
VII.

Plaintiffs Motion to Strike Certain Allegations Is Frivolous.


Plaintiffs also include in their opposition a procedurally improper motion to

strike certain statements from Defendants memorandum of law in support of


their motion for sanctions. Doc. No. 258 at 16-19.
First, there is no legal basis for the Court to strike statements from
Defendants memorandum of law. See Chowdhury v. Hamza Express Food Corp.,
No. 14-CV-150, 2015 U.S. Dist. LEXIS 125166, at *29 n.16 (E.D.N.Y. Aug. 21, 2015)
(Rule 12(f) applies only to the striking of pleadings, not memoranda of law.).
10

Plaintiffs suggestion that they were not on notice that Defendants would seek
sanctions based on false allegations plagiarized from the NFL Complaint is
particularly specious. The Rule 11 motion served on Plaintiffs specifically
notified them that [a]ll allegations regarding WWEs alleged knowledge contrary
to prior allegations regarding that subject made by plaintiffs counsel in related
cases are not the product of reasonable inquiry but are known to be false by
plaintiffs counsel and are patterned after allegations made against different
defendants in different industries in different cases having nothing to do with
WWE. Doc. No. 228 Ex. A at 18. This language certainly put Plaintiffs
Counsel, who were well aware of the plagiarism, on notice for Rule 11 purposes.
-11.

Case 3:15-cv-01074-VLB Document 281 Filed 01/20/17 Page 16 of 17

Second, there is no practical reason to strike such statements because it


would have no effect on the Courts resolution of the motion for sanctions.
Third, an examination of the statements that Plaintiffs seek to strike reveals
that their motion is frivolous. For example, Plaintiffs argue that the statement
that Attorney Kyros engaged in an internet solicitation scheme in an attempt to
recruit former WWE performers to be plaintiffs in lawsuits alleging traumatic
brain injury claims against WWE should be stricken because it is unsupported
by facts. Doc. No. 258 at 17. In fact, Defendants attached an example of Attorney
Kyros internet solicitations to former WWE performers as an exhibit to their
motion for sanctions, and other examples are readily available on the Internet.
See Doc. No. 229-6; Ex. 5. Plaintiffs also claim that the statement that Attorney
Kyros has now instigated at least six different cases against WWE since
October 2014 should be stricken because Defendants lack any basis to make
that claim with respect to the McCullough case. In fact, Attorney Kyros admitted
in a filing with this Court that he referred the plaintiffs in the McCullough case to
California counsel for the purpose of bringing an action there (in violation of the
mandatory forum selection clauses in their contracts) and then appeared on
behalf of those plaintiffs when the case was transferred to Connecticut. Doc. No.
51 at 11. All of the other statements that Plaintiffs seek to strike are likewise fully
supported by the record. Plaintiffs motion to strike such statements must be
denied, and Defendants motion for sanctions should be granted in full.

-12.

Case 3:15-cv-01074-VLB Document 281 Filed 01/20/17 Page 17 of 17

DEFENDANTS WORLD WRESTLING


ENTERTAINMENT, INC. and VINCENT K.
McMAHON,
By: /s/ Jerry S. McDevitt
Jerry S. McDevitt (pro hac vice)
Curtis B. Krasik (pro hac vice)
K&L GATES LLP
K&L Gates Center
210 Sixth Avenue
Pittsburgh, PA 15222
Phone: (412) 355-6500
Fax: (412) 355-6501
Email: jerry.mcdevitt@klgates.com
Email: curtis.krasik@klgates.com
Jonathan B. Tropp (ct11295)
Jeffrey P. Mueller (ct27870)
DAY PITNEY LLP
242 Trumbull Street
Hartford, CT 06103
Phone: (860) 275-0100
Fax: (860) 275-0343
Email: jbtropp@daypitney.com
Email: jmueller@daypitney.com
Their Attorneys

CERTIFICATION OF SERVICE
I hereby certify that on January 20, 2017 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)

-13.

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