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1 CHRISTINA M. DENNING, ESQ. (CA Bar No. 211137)
2 denningc@higgslaw.com
SCOTT J. INGOLD, ESQ. (NV Bar No. 11818)
3 ingolds@higgslaw.com
Higgs Fletcher & Mack LLP
4
401 West “A” Street, Suite 2600
5 San Diego, CA 92101-7913
T: 619.236.1551
6
F: 619.696.1410
7
JAMES F. HOLTZ, ESQ. (NV Bar No. 8119)
8 james.holtz@holtzapc.com
9 LAW OFFICE OF JAMES F. HOLTZ
1120 Town Center Drive, Suite 200
10 Las Vegas, NV 89144
11 T: 702.304.1803
F: 702.304.1822
12

13 Attorneys for Plaintiff
MARK HUNT
14

15 UNITED STATES DISTRICT COURT
16 DISTRICT OF NEVADA
17 MARK HUNT, an individual, Case No.: 2:17-cv-00085-JAD-CWH
18 Plaintiff, MARK HUNT’S OPPOSITION TO
19 v. DEFENDANTS ZUFFA, LLC’S AND
DANA WHITE’S MOTION TO
20 ZUFFA, LLC d/b/a ULTIMATE DISMISS PURSUANT TO FED. R. CIV.
FIGHTING CHAMPIONSHIP, a P. 12(b)(6)
21
Nevada limited liability company;
22 BROCK LESNAR, an individual;
DANA WHITE, an individual; and
23
DOES 1-50, inclusive,
24
Defendants.
25

26 ///
27 ///
28
Case No.: 2:17-cv-00085-JAD-CWH
H IGGS F LE TCHER & MARK HUNT’S OPPOSITION TO MOTION TO DISMISS
M ACK LLP
ATTO RNEY S AT LAW
SAN DIEGO
112567-00001
7897504.1
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1 TABLE OF CONTENTS

2 Page
3 I. INTRODUCTION .............................................................................................................. 1

4 II. DEFENDANTS APPLY THE WRONG LEGAL STANDARD ....................................... 2

5 III. HUNT’S RICO CLAIM IS WELL-PLEADED (FIRST CLAIM) ..................................... 3
A. Hunt Has Alleged Injury to Business And Property Interests ................................ 4
6 1. Hunt Alleges the Lost Opportunity to Acquire Valuable Rights ................ 5
2. Hunt Has a Legal Entitlement to Unhampered Business Relations ............ 9
7 B. Hunt Properly Alleges Causation .......................................................................... 10
1. First Factor: There Is No More Direct Victim Than Hunt ........................ 12
8 2. Second Factor: The Injury is Attributed to Defendants’ Conduct ........... 13
3. Third Factor: There is Zero Risk of Multiple “Passed-On Harm”
9 Recovery ................................................................................................... 14
C. The Complaint Alleges White is as Culpable as the UFC .................................... 14
10
IV. DEFENDANTS CONCEDES HUNT PROPERLY PLEADED NEVADA’S RICO
11 ANALOGUE (SECOND CLAIM) ................................................................................... 15
12 V. HUNT’S FRAUD CLAIM IS WELL-PLEADED (THIRD CLAIM) .............................. 16
13 VI. HUNT’S FALSE PRETENSES CLAIM IS WELL-PLEADED (FOURTH
CLAIM) ............................................................................................................................ 17
14
VII. HUNT’S BREACH OF CONTRACT CLAIM IS WELL-PLEADED (FIFTH
15 CLAIM) ............................................................................................................................ 18
16 VIII. HUNT’S BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING
CLAIM IS WELL-PLEADED (SIXTH CLAIM) ............................................................ 19
17
IX. HUNT’S NEGLIGENCE CLAIM IS WELL-PLEADED (SEVENTH CLAIM) ............ 22
18
X. HUNT’S UNJUST ENRICHMENT CLAIM IS WELL-PLEADED (EIGHTH
19 CLAIM) ............................................................................................................................ 23
20 XI. CONCLUSION ................................................................................................................. 24
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1 TABLE OF AUTHORITIES

2 Page
3 Cases
Ashcroft v. Iqbal
4 556 U.S. 662, 678 (2009) ...................................................................................................... 2, 14
Auckenthaler v. Grundmeyer
5 877 P.2d 1039, 1041 (Nev. 1994) .............................................................................................. 22
Bell Atl. Corp. v. Twombly
6 550 U.S. 544 (2007) .................................................................................................................... 2
Bridge v. Phoenix Bond & Indem. Co.
7 553 U.S. 639, 648 (2008) .............................................................................. 5, 6, 7, 8, 10, 11, 12
Bulletin Displays, LLC v. Regency Outdoor Advert., Inc.
8 518 F. Supp. 2d 1182 ................................................................................................................... 5
Burnett v. Tufguy Productions, Inc.
9 2010 WL 4252116 (D. Nev. 2010) ............................................................................................ 23
Chaset v. Fleer/Skybox Int’l, LP
10 300 F.3d 1083 .............................................................................................................................. 6
Collins ex rel. Brown v. Walgreen Co.
11 2013 WL 2482152 (E.D. Cal. June 10, 2013) ........................................................................... 18
Cont’l Ore Co. v. Union Carbide & Carbon Corp.
12 370 U.S. 690 .............................................................................................................................. 12
Contreras v. Am. Family Mut. Ins. Co.
13 135 F. Supp. 3d 1208 ................................................................................................................. 18
Doe v. United States
14 58 F.3d 494 ................................................................................................................................ 24
Dumas v. Major League Baseball Prop.
15 104 F.Supp.2d 1220 ................................................................................................................... 10
Gagnon v. State of Nevada, No. 2:13-CV-00528 (JAD) (PAL)
16 2016 WL 2993599, at *1 (D. Nev. May 23, 2016).................................................................... 24
Ghanem v. ADT Corp., 2016 U.S. Dist. LEXIS 55980
17 at *8 (D. Nev. Apr. 26, 2016) .................................................................................................... 18
Gibson v. United States
18 781 F.2d 1334, 1337 (9th Cir.1986) ............................................................................................ 2
Hale v. Burkhardt
19 764 P.2d 866 ........................................................................................................................ 17, 18
Hemi Grp., LLC v. City of N.Y.
20 N.Y., 559 U.S. 1 .................................................................................................................. 10, 11
Hilton Hotels Corp. v. Butch Lewis Prods.
21 808 P.2d 919, 922-23 (Nev. 1991) ................................................................................ 20, 21, 22
Holmes v. Sec. Inv’r Prot. Corp., 503 U.S. 258 ............................................................................. 10
22 In re Wal-Mart Wage & Hour Empl. Practices Litig.
490 F. Supp. 2d 1091 ................................................................................................................. 23
23 K Mart Corp. v. Ponsock
732 P.2d 1364 (Nev. 1987) ........................................................................................................ 21
24 Keel v. Schwarzenegger, No. CV0807591RMTVBK
2009 WL 1444644 ............................................................................................................... 7, 8, 9
25 Knevelbaard Dairies v. Kraft Foods, Inc.
232 F.3d 979 .............................................................................................................................. 12
26 M.C. Multi-Family Dev., L.L.C. v. Crestdale Assocs., Ltd.
193 P.3d 536 ................................................................................................................................ 5
27 Marceau v. Int’l Bhd. of Elec. Workers
618 F. Supp. 2d 1127 ............................................................................................................. 8, 13
28
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1 TABLE OF AUTHORITIES
(continued)
2 Page
3 Mendoza v. Zirkle Fruit Co.
301 F.3d 1163, 1168 (9th Cir. 2002) ............................................. 3, 4, 5, 8, 9, 10, 11, 12, 13, 14
4 NOW v. Scheidler
510 U.S. 249, 256 (1994) ....................................................................................................... 3, 11
5 Russello v. United States
464 U.S. 16, 27 (1983) ............................................................................................................. 3, 4
6 Shaw v. CitiMortgage, Inc.
2016 U.S. Dist. LEXIS 109443, at *65 (D. Nev. Aug. 17, 2016) ....................................... 19, 20
7 Sierra Pac. Power Co. v. Anderson
358 P.2d 892 .............................................................................................................................. 22
8 Stoddart v. Miller
238 P.3d 845 (2008) .................................................................................................................. 18
9 United States v. Rock Springs Vista Dev. Corp.
No. CV-S-97-1825(JBR) (RLH), 1999 WL 1491621, at *1 (D. Nev. July 2, 1999) ................ 24
10 Venzor v. Gonzalez
936 F. Supp. 445 ........................................................................................................................ 11
11 Williams v. Mohawk Indus., Inc.
465 F.3d 1277 ............................................................................................................................ 10
12 Statutes
18 U.S.C. § 1964 (Civil RICO) ............................................................................................ 4, 16, 18
13 18 U.S.C. §§ 1962(c) ..................................................................................................................... 10
Fed. R. Civ. P. 8 ............................................................................................................................. 14
14 Local Rule IA 7-3........................................................................................................................... 15
Nev. Rev. Stat. § 175.261 .............................................................................................................. 18
15 Nev. Rev. Stat. § 205.377 .............................................................................................................. 16
Nev. Rev. Stat. § 205.380 .............................................................................................................. 18
16 Nev. Rev. Stat. § 207.360 ........................................................................................................ 15, 17
Nev. Rev. Stat. § 207.390 .............................................................................................................. 15
17 Nev. Rev. Stat. §§ 207.470, 207.400 ............................................................................................. 15
Restat. 2d of Torts, § 496B ............................................................................................................ 23
18

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1 Plaintiff, MARK HUNT (“Hunt”), submits this memorandum of points and authorities in

2 opposition to the motion to dismiss filed by Defendants, ZUFFA, LLC (“UFC”), and its President,

3 DANA WHITE (“White”).

4 I. INTRODUCTION
5 Hunt, a mixed-martial arts fighter under exclusive contract with UFC, was injured by another

6 fighter (defendant BROCK LESNAR (“Lesnar”)1) on July 9, 2016, in a high-profile, “Main Event”

7 fight promoted by UFC. Hunt - a “clean” fighter who does not use banned performance-enhancing

8 substances - lost the fight and opportunity to advance his brand and business interests in a fair fight, as

9 a result of Defendants’ scheme as alleged in Hunt’s complaint (“Complaint”). In the process, Hunt

10 sustained damage to his professional reputation and career, because UFC conspired to have him fight

11 the illegally-enhanced Lesnar, whom UFC knew to benefit from multiple banned substances that

12 increase one’s strength and other attributes useful in hand to hand combat. On that basis, Hunt sued

13 Defendants, asserting causes of action for fraud, breach of contract, negligence, unjust enrichment, and

14 RICO violations (engaging in a scheme to secretly employ “doped” fighters to increase ticket and pay-

15 per-view revenue, all at the expense of honest, clean fighters like Hunt).

16 UFC and White have now filed a motion to dismiss Hunt’s Complaint, arguing, in essence,

17 that: (1) Hunt cannot state a RICO claim because he does not allege any specific injury to “business or

18 property”; (2) Hunt cannot state any tort claims because he “fails to allege with the required

19 particularity any specific false representation upon which [he] relied . . . or the concrete financial loss

20 necessary to support” a claim; (3) Hunt cannot state any contract claims because he “never identifies a
21 single provision of the parties’ contracts that was purportedly breached”; and (4) Hunt’s negligence

22 claim is barred by the doctrine of assumption of the risk.

23 The motion filed by UFC and White is misguided at the outset in that it attempts to claim, as a

24 matter of fact, some high moral ground in the battle against doping in professional sports, but fails at

25 this pleading stage of the lawsuit to accept the detailed (and damning) allegations of the Complaint as

26 true. Thus, UFC and White blindly neglect the multiple allegations in the Complaint that specifically
27
1
28 Lesnar has not agreed to accept service in this action. Hunt is serving him in Saskatchewan, Canada, pursuant to
The Hague Service Convention. For purposes of this motion, “Defendants” refers to UFC and White.
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1 allege damage to property, false representations by Defendants, and detailed conduct by UFC that

2 constitutes a breach of its contracts with Hunt and frustrate the purpose of those contracts. For these

3 reasons, the motion to dismiss fails and should be denied in its entirety.

4 II. DEFENDANTS APPLY THE WRONG LEGAL STANDARD
5 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as

6 true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

7 “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task

8 that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679

9 (emphasis added). “While legal conclusions can provide the framework of a complaint, they must be

10 supported by factual allegations. When there are well-pleaded factual allegations, a court should assume

11 their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.

12 “Dismissal is improper unless ‘it appears beyond doubt that the plaintiff can prove no set of facts in

13 support of his claim which would entitle him to relief.’” Gibson v. United States, 781 F.2d 1334, 1337

14 (9th Cir.1986) (citation omitted).

15 Defendants properly cite the well-known pleading standard from Iqbal and Twombly. ECF No.

16 11 at 9:10-18. (citing Iqbal, 556 U.S. at 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).

17 However, Defendants fail to apply this standard in their motion. Instead, they vigorously attempt to

18 disprove Hunt’s well-pleaded claims. In doing so, Defendants seemingly urge the Court to adopt a novel

19 legal theory requiring Hunt to prove his claims at this pleading phase. Further, notwithstanding their

20 improper attempt to introduce several documents outside the Complaint by judicial notice, this is not a
21 motion for summary judgment. Hunt is required to state a claim - nothing more.

22 Defendants’ opposition is misguided because it urges the Court to adopt a standard that is the

23 exact opposite of that set forth in Iqbal. That is, it ignores Hunt’s well-pleaded factual allegations and

24 focuses only on the legal framework of the Complaint. See, e.g., ECF No. 11 at 17:21 (arguing Hunt

25 only “parrots” statutory elements); ECF No. 11 at 19:22 (claiming Hunt alleges breach of contract in

26 “conclusory fashion”). Specifically, Defendants repeatedly make the erroneous assertion that Hunt fails
27 to properly allege damages or causation, overlooking the fact that each claim incorporates by reference:

28 1) Background Information, 2) Summary of Allegations, and 3) Factual Allegations Common to All
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1 Causes of Action. See ECF No. 1 at ¶¶ 11-88; see also ECF No. 1 at ¶¶ 117, 118 (incorporating by

2 reference previous allegations in the Complaint and “the below [fraud and false pretenses claims]”).2

3 Thus, Defendants’ analysis begins with the premise that the Court will ignore more than one-third of

4 Hunt’s twenty-seven (27) page complaint. Federal Rule of Civil Procedure (“Rule”) 8 does not require

5 Hunt to copy and paste factual allegations under the heading of each claim. Fed. R. Civ. P. 8(a) (requiring

6 only a short plain statement of jurisdiction and entitlement to relief, and a demand for the relief sought).

7 Applying the correct legal standard, Hunt’s Complaint is well-pleaded and more than plausibly states

8 entitlement to relief as to each claim.3

9 III. HUNT’S RICO CLAIM IS WELL-PLEADED (FIRST CLAIM)
10 As noted by Justice Blackmun in Russello v. United States, Congress directed that the RICO

11 statute “shall be liberally construed to effectuate its remedial purpose.” 464 U.S. 16, 27 (1983)

12 (affirming the Circuit court’s expansive interpretation of the word “interest” in the RICO statute). “In

13 the RICO context, ‘[a]t the pleading stage, general factual allegations of injury resulting from the

14 defendant’s conduct may suffice, for on a motion to dismiss we presume that general allegations embrace

15 those specific facts that are necessary to support the claim.’” Mendoza v. Zirkle Fruit Co., 301 F.3d

16 1163, 1168 (9th Cir. 2002) (citing NOW v. Scheidler, 510 U.S. 249, 256 (1994)). Thus, as opposed to

17 the fraud claims, discussed below, a RICO “injury [to business or property] resulting from the

18 defendant’s conduct” may be generally alleged. See id.

19 Hunt alleges Defendants caused injury to his professional “reputation, title contention, and future

20 earning capacity,” as well as “lost opportunity of career advancement, lost opportunity to fight and win
21 fair bouts, and the lost opportunity to further his earning potential including advancement to title fights

22 and promotional and marketing opportunities.” ECF No. 1 at ¶¶ 69, 78 (incorporated by reference in the

23 RICO claim).

24 As Defendants are no doubt aware, and Hunt is not required to specifically allege, Hunt is a

25 well-known professional fighter. Mendoza, 301 F.3d at 1168; see ECF No. 1; ECF No. 11 at 1:20.

26 2
Defendants’ oversight or inconsistency with the doctrine of incorporation by reference is highlighted by the fact
27 that they belabored the point in their concurrently filed request for judicial notice. ECF No. 12.
3
As noted in the Complaint, Hunt’s claims are not only well-pleaded, but also well-supported. With few exceptions
28 for allegations made on information and belief, Hunt’s factual allegations are made on his personal knowledge,
investigation of counsel, or documents acquired via public records requests. ECF No. 1 at 2:7-9.
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1 Earlier in his career, Hunt was commonly known as “The Doctor,” a nickname he received for

2 “prescribing sleeping pills” to his opponents by virtue of his one-punch knockout power. More recently,

3 Hunt has gone by the nickname “Super Samoan”, which is prominently tattooed on his back and is highly

4 visible during his bouts. Hunt maintains a large fan and consumer base in the United States, and his

5 brand is also highly regarded in Japan, where he previously won the K-1 World Grand Prix in 2001, a

6 premier kickboxing event. Hunt is the Director of Juggernaut, “Apparel & Fight Gear by Mark Hunt.”

7 Juggernaut, About, www.jugnt.com/about/ (last visited Mar. 18, 2017). His fighting style is described

8 as: “sheer power, technical boxing prowess, and a great jaw.” Id. Hunt’s damages go to the core of his

9 brand, reputation and profitability as a professional fighter. Although Hunt is not required to allege each

10 of these facts at the pleading stage, they demonstrate that he has a good faith basis for his allegations of

11 injury to his business and property interests, which will be proven at the time of trial. The Court is not

12 required to ignore the obvious truth that is a major part of Hunt’s damages - losing bouts is bad for

13 business. Standing is perfected when that harm is caused by a pattern of RICO conduct. As discussed

14 further below, the proliferation of doping in professional MMA has depressed wages for clean fighters,

15 in that it artificially increases the number of fighters able compete at a world-class level, which they

16 could otherwise not attain without the benefit of banned performance enhancing drugs.

17 A. Hunt Has Alleged Injury to Business And Property Interests
18 Defendants identify the correct injury standard: “[a]ny person injured in his business or property

19 by reason of a violation of section 1962 of this chapter may sue therefor . . . ” 18 U.S.C. § 1964 (Civil

20 RICO). Interest is not a specifically defined term in the RICO statute. Russello, 464 U.S. at 21. For
21 RICO purposes, the United States Supreme Court has defined “interest” as “[t]he most general term that

22 can be employed to denote a right, claim, title or legal share in something.” Id.

23 Defendants focus only on the Nevada state law definition of property interest. ECF No. 11 at

24 11:11-15. They justify this oversight by noting a RICO business or property interest is “typically

25 determined by reference to state law.” ECF No. 11 at 11:7. The United States Supreme Court and Ninth

26 Circuit Court of Appeals (“Ninth Circuit”) both demonstrate state law “business or property interest”
27 definitions are additional or alternative bases for stating a RICO injury. See e.g. Mendoza v. Zirkle Fruit

28 Co., 301 F.3d 1163, 1168 (9th Cir. 2002) (rejecting defendants’ contention that plaintiff must allege a
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1 lost property right, and noting plaintiff need only allege “a legal entitlement to business relations

2 unhampered by schemes prohibited by the RICO predicate statutes”). Therefore, as explained in detail

3 at Part III.A.1., infra, a RICO injury can be alleged pursuant to state law or by alleging injury to an

4 interest already recognized by the United States Supreme Court or Ninth Circuit, within the plain

5 meaning of the RICO statutes. See id.; see also Bulletin Displays, LLC v. Regency Outdoor Advert.,

6 Inc., 518 F. Supp. 2d 1182, 1191 (C.D. Cal. 2007) (holding loss of opportunity to compete due to alleged

7 collusion stated RICO standing).

8 Defendants cite M.C. Multi-Family Dev., L.L.C. v. Crestdale Assocs., Ltd., 193 P.3d 536, 543

9 (2008), for the proposition that Hunt does not state a recognized property interest. Defendants’ reliance

10 on M.C. is misplaced for two reasons. First, it repeatedly and expressly notes its 3-prong analysis applies

11 to personal property, and Defendants ignore the injury to “business” portion of the (disjunctive) RICO

12 injury statute. Id. at 911-912. Second, there is no need for this Court to apply Defendants’ proffered 3-

13 prong analysis, because the Supreme Court and Ninth Circuit have already expressly recognized the

14 RICO injury alleged by Hunt. Although only one is required, Hunt has pleaded at least two categories

15 of RICO “injury to business or property”: (1) injury by lost opportunity to acquire a valuable right

16 (Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 648 (2008)); and (2) lost legal entitlement to

17 business relations (Mendoza, 301 F.3d at 1163).
1. Hunt Alleges the Lost Opportunity to Acquire Valuable Rights
18
In 2008, the United States Supreme Court held the opportunity to submit a bid for the right to
19
acquire a valuable tax lien was an injury to “business or property.” Bridge, 553 U.S. at 648.4 The Court
20
emphatically and unequivocally rejected Defendants’ assertion that lost opportunities are not legally
21
cognizable RICO injuries. Id. Rather than citing Justice Thomas’ opinion directly on point, Defendants
22
forego any citation at all and declare “[n]one of [Hunt’s] categories of purported [lost opportunity]
23
damages constitutes a cognizable business or property interest under well settled RICO jurisprudence.”
24 ECF No. 11 at 11:20-21. Defendants quickly shift to attacking the straw man argument that “personal
25 injuries” are a disfavored RICO injury.
26 In Bridge, the County Treasurer’s Office held public auctions to sell tax liens on property of
27 4
Defendants make only a cursory mention of Hunt’s purported failure to allege a reliance element of RICO. It is
28 appropriately not substantively discussed in Defendants’ RICO analysis. Bridge, supra, also holds the RICO fraud
predicate does not require the element of reliance. Id. at 661.
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1 delinquent taxpayers. Bridge, 553 U.S. 642. There was a competitive bidding process whereby the

2 winning bidder would gain the right to purchase a valuable tax lien, which could be resold at a significant

3 profit. Id. The bidding system operated such that the more bids an entity submitted, the higher the

4 likelihood it would be awarded a winning bid. Id. This system created a “perverse incentive” to have

5 entities send agents to bid on its behalf to increase the opportunity for success. Id. The county then

6 implemented a “Single, Simultaneous Bidder Rule” disallowing multiple agents of the same entity from

7 bidding to rig the system. Id. at 644. Plaintiff-petitioners were regular participants in the county tax lien

8 auctions, and alleged defendants cheated the system by skirting the Single Bidder Rule by filing false

9 affidavits of compliance. Id. As a result, plaintiffs alleged they were deprived of their opportunity to

10 win a fair share of liens and attendant financial benefits. Id. at 644, 647.

11 The district court granted defendants’ motion to dismiss on standing grounds for want of a

12 “financial loss.” Id. at 645. The Court of Appeals for the Seventh Circuit reversed, finding “[plaintiffs]

13 suffered a ‘real injury’ when they lost the valuable chance to acquire more liens . . . .” Id. The United

14 States Supreme Court affirmed, finding “[plaintiffs] lost the opportunity to acquire valuable liens.

15 Accordingly, [plaintiffs] were injured in their business or property by reason of defendants’ violations

16 of § 1962(c), and RICO’s plain terms give them a private right of action for treble damages.” Id. at 648.

17 Bridge holds a lost opportunity for financial gain is a RICO injury.

18 Defendants’ reliance on Chaset v. Fleer/Skybox Int’l, LP, 300 F.3d 1083, 1087 (9th Cir. 2002),

19 for the proposition that Hunt alleges only intangible “hope” is completely misguided. Chaset concerned

20 plaintiffs suing baseball trading card companies when they failed to draw certain valuable trading cards
21 from randomly assorted trading card packs. Id. The odds (statistical probability) of receiving one of the

22 more valuable trading cards was displayed on the trading card pack. Id. at 1086. Plaintiffs compared it

23 to illegal gambling, a RICO predicate. Id. at 1087. The court rejected this theory and concluded that

24 plaintiffs were awarded exactly what they bargained for - a random chance that their pack of cards would

25 contain one of the valuable baseballs cards. Id. Here, Hunt’s allegations are completely different. He

26 has not merely alleged a loss in a contest of pure chance. Rather, Hunt alleges he was deprived of the
27 opportunity to fight on a level playing field and the chance to win bouts free from Defendants wrongfully

28 manipulating the odds by intentionally pitting him against dopers. ECF No. 1 at ¶¶ 69, 97, 98, 103.
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1 Here, Hunt has unequivocally alleged multiple opportunities and “attendant financial benefits.”

2 Bridge, 553 U.S. 644, 647. He particularly alleges the lost opportunity to advance his career,

3 professional reputation and brand, opportunity for higher-paying title fights, promotional and marketing

4 opportunities and the respective attendant benefits of each. This is in addition to the tangible injury to

5 his body, which represents more than just routine personal injury. Hunt’s body is a physical, tangible

6 tool-of-the-trade for a professional fighter, no different than a construction worker’s tools or a retailer’s

7 stock of goods.5 Notably, however, Hunt alleges that the lost opportunity itself is the RICO injury, which

8 occurs when “Defendants cause[] a doping competitor . . . to fight a clean fighter,” Hunt. Thus, that lost

9 opportunity constitutes a RICO injury to business or property the moment Hunt steps into the octagon

10 with the doping opponent (or even sooner, see discussion infra Part III.B.). Hunt has also alleged the

11 attendant financial benefits as an “economic” loss, “future earning capacity,” and “monetary benefits”

12 lost due to the RICO scheme. ECF No. 1 at ¶¶ 19, 95. Defendants’ motion incorrectly claims Hunt must

13 “guarantee[] that [he] would have prevailed in his bout with Lesnar at UFC 200 even if the latter had not

14 tested positive . . . .” ECF No. 11 at 12:11-12. This analysis flies in the face of Bridge. The result of

15 the bout is immaterial for purposes of identifying a lost opportunity, which arises before the first punch

16 is thrown. No one will argue Hunt was entitled to or “guaranteed” a win and title bouts simply by

17 fighting; but, under the circumstances alleged in his Complaint, Hunt is entitled to his fair opportunity

18 to earn and acquire those valuable rights, without illegal interference from Defendants. Defendants not

19 only fall short of the legal standard in Bridge, but they fail to abide by the Nevada Athletic Commission

20 (“NAC”) standards and Defendants’ own representations.
21 Keel v. Schwarzenegger, No. CV0807591RMTVBK, 2009 WL 1444644, at *1 (C.D. Cal. May

22 19, 2009), cited by Defendants, is indeed instructive on these points. However, Keel defeats Defendants’

23 own argument. Defendants quote from Keel that “Plaintiff does not allege that he actually lost

24 employment or employment opportunities because he was falsely imprisoned and forced to defend

25 against unjust charges.” ECF No. 11 at 12:23-25. In contrast, Hunt alleged that he has actually lost a

26 business opportunity, as he specifically alleges he lost the opportunity to compete in title fights, which
27

28
5
Hunt suffered 137 total strikes and 51“significant strikes” from the doping Lesnar. This opposition explains why
Hunt’s various injuries and damages are legally cognizable.
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1 are worth the increased amount of $850,000.00 to $1,000,000.00 per fight, pursuant to an actual

2 contract provision executed by Hunt and Defendants, at Article VI, 6.1A, subparts (ii) and (iii).

3 ECF No. 1 at Appendix (Promotional and Ancillary Rights Agreement, (“PARA”)). As such, Hunt has

4 stated an even stronger, and more tangible financial injury than the lost opportunity alleged in Bridge.

5 Here, the lost opportunity is memorialized in a signed contract. Id. Thus, that injury is “concrete” and

6 not prospective. Contrary to Defendants’ assertion, Hunt is not required to “guarantee” his lost

7 opportunity would have led to a victory over Lesnar and a subsequent title bout. He was deprived of the

8 opportunity to compete in a fight free from RICO manipulation and the attendant financial benefits. To

9 the extent there is any conflict in the required pleading specificity for the RICO injury element, the Ninth

10 Circuit’s Mendoza opinion is binding on this issue notwithstanding Defendants’ citation to the Keel

11 district court opinion. Mendoza, 301 F.3d at 1168 (finding in the RICO context “general allegations

12 embrace those specific facts that are necessary to support the claim”).

13 A district court reached the same conclusion applying Bridge to another form of lost business

14 opportunity. Marceau v. Int’l Bhd. of Elec. Workers, 618 F. Supp. 2d 1127, 1166 (D. Ariz. 2009).6 In

15 Marceau, plaintiff-salespersons alleged their employer was manipulating account assignment functions

16 so that union representatives were given the most profitable accounts and resulting commissions. Id. at

17 1138-1139. The court determined this differing treatment and failure “to provide Plaintiffs with the same

18 opportunities” constituted a RICO injury to a business interest. Id. at 1166. The court noted the lost

19 opportunity was a “thing[] of value” that was alleged to be “wrongfully funneled to the Union Agents.”

20 Id. The court also clarified that a “concrete loss” only required “some” damage, and defendants’ contrary
21 arguments went only to the amount and not the existence of damage. Id. (italics in original). Like the

22 Bridge analysis, Marceau is applicable here, as Hunt alleges multiple categories of concrete lost

23 opportunities, which have been wrongfully “funneled” to doping competitors. See ECF No. 1 at ¶¶ 19,

24 38, 74, 78, 87, 94, 96. Those opportunities diverted to doping fighters are opportunities that rightfully

25 belong to clean fighters, like Hunt. Civil RICO is a proper avenue for redress.

26 Hunt’s other lost opportunity allegations state a RICO injury for the same reasons. The lost
27

28
6
In addition to a “lost opportunity,” the Marceau reasoning is equally applicable to “lost wages,” which is discussed
in the next section.
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1 marketing and promotional opportunities “embrace those specific facts necessary to support [his] claim.”

2 Mendoza, 301 F.3d at 1168 (citing NOW, 510 U.S. at 256). Hunt could, in good faith, for example,

3 allege he would have sold more Juggernaut brand T-shirts absent Defendants’ wrongful conduct. He is

4 not required to so specifically allege these lost opportunities at this stage. NOW, 510 U.S. at 256;

5 Mendoza, 301 F.3d at 1168. Hunt is not the unemployed, incarcerated plaintiff from Keel. He has an

6 existing brand as a professional fighter, and as the “Super Samoan,” he sells related fight apparel.

7 Because the United States Supreme Court and Ninth Circuit both recognize the lost opportunities

8 alleged by Hunt, Defendants’ motion to dismiss this claim must be denied.

9 2. Hunt Has a Legal Entitlement to Unhampered Business Relations
10 Hunt alleges economic damages, past and future lost income, and that Defendants wrongfully

11 obtained his labor and services. ECF No. 1 at ¶¶ 19, 69, 78, 94. His Complaint is a plain statement of

12 an injury to a RICO business or property interest. In the verbiage of the Ninth Circuit, Hunt alleges “a

13 legal entitlement to business relations unhampered by schemes prohibited by the RICO predicate

14 statutes,” regardless of state law definitions of “property rights.” Mendoza, 301 F.3d at 1168, n.4.

15 In Mendoza, agricultural farmworkers (“Workers”) sued grower-defendants (“Growers”) for a

16 RICO scheme of employing “workers of illegal status,” which depressed wages and operated to the

17 economic detriment of persons legally authorized to be employed in the United States. Mendoza, 301

18 F.3d at 1166. “According to the complaint, the scheme is facilitated by Selective Employment Agency,

19 Inc., a separate company that employs the workers and then ‘loans’ them to the growers,” in an attempt

20 to be “shielded by charges” by this “front company.” Id. at 1167. Growers filed a motion to dismiss.
21 Id. The district court granted the motion, deciding that although the injury was “direct” the RICO

22 damages were “too speculative and difficult to ascertain.” Id. The Ninth Circuit reversed. Id. at 1175.

23 The court first addressed standing. Id. at 1168. The court acknowledged that Workers had

24 alleged an injury to their property in the form of lost wages. Id. Growers suggested that employees

25 should have to show a “property right” in lost wages, by showing they were promised or contracted for

26 higher wages. The court stated Growers’ “argument is misplaced in the context of RICO.” Id. at 1168,
27 n. 4. The court held “what is required is precisely what the employees allege here: a legal entitlement

28 to business relations unhampered by schemes prohibited by the RICO predicate statutes.” Id.
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1 (citing 18 U.S.C. §§ 1962(c), 1961(1); Dumas v. Major League Baseball Prop., 104 F.Supp.2d 1220,

2 1222 (S.D.Cal.2000) (emphasis added)). Notably, the court’s explanation and citation is to the RICO

3 statute itself. See id. Workers were not required to prove a state law right to lost wages. 7 Id.

4 Accordingly, the court reversed the district court ruling and found Workers had RICO standing. Id.; see

5 also Williams v. Mohawk Indus., Inc., 465 F.3d 1277, 1285 (11th Cir. 2006) (citing Mendoza, supra)

6 (finding injury by employer’s alleged practice of employing illegal workers depressing legal workers

7 wage is a business interest; the court reached this conclusion without reference to state law), overruled

8 on other grounds.

9 Like “legal versus illegal” workers in Mendoza, Hunt has alleged Defendants conspired to pit

10 doping fighters against clean fighters, causing economic harm to Hunt. See e.g. ECF No. 1 at ¶¶ 19, 69,

11 78, 94. Unlike Workers though, Hunt also has a contractual right to the lost wages, which is “concrete”

12 as set forth in the Article VI, 6.1A, subparts (ii) and (iii) of the PARA. ECF No. 1 at PARA. Moreover,

13 Hunt has existing marketing and promotional opportunities that he has alleged were directly harmed by

14 Defendants’ RICO scheme, which constitutes an even greater harm than that alleged by the Workers.

15 See, e.g. ECF No. 1 at ¶ 78. Finally, like Mendoza, the Court should reject Defendants’ attempt to hide

16 behind a “front company.” See ECF No. 11 at 3:16-17. Hunt has not named USADA as a defendant

17 and has not alleged USADA is participating in Defendants’ RICO enterprise. Hunt merely highlights

18 this factual similarity to establish that Defendants’ attempt to “shield” itself with USADA is an untenable

19 RICO defense, as confirmed by the Ninth Circuit Court of Appeals.

20 B. Hunt Properly Alleges Causation
21 Defendants correctly note the proximate cause standard for RICO causation, but fail to identify

22 the established proximate cause factors. See Hemi Grp., LLC v. City of N.Y., N.Y., 559 U.S. 1, 9 (2010);

23 Holmes v. Sec. Inv’r Prot. Corp., 503 U.S. 258, 268 (1992). “Proximate cause, . . . is a flexible concept

24 that does not lend itself to ‘a black-letter rule that will dictate the result in every case.’” Bridge, 553

25 U.S. at 654. Proximate cause is used to “label generically the judicial tools used to limit a person’s

26 responsibility for the consequences of that person’s own acts.” Holmes, 503 U.S. at 268. The Ninth
27 Circuit focuses on three non-exhaustive factors in considering causation:

28 7
As discussed in the next section, Hunt has nevertheless stated state law business and property injuries.
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1 (1) whether there are more direct victims of the alleged wrongful conduct who can be
counted on to vindicate the law as private attorneys general;
2 (2) whether it will be difficult to ascertain the amount of the plaintiff’s damages
3 attributable to defendant’s wrongful conduct; and
(3) whether the courts will have to adopt complicated rules apportioning damages to
4 obviate the risk of multiple recoveries.

5 Mendoza, 301 F.3d at 1169. Defendants’ causation analysis misstates the injury Hunt alleges.

6 As even Defendants will agree, the proximate cause inquiry considers whether the wrong caused the

7 harm. ECF No. 11 at 14:2-3 (citing Hemi Group, 559 U.S. at 17-18.) As set forth fully above, Hunt

8 alleges lost opportunities and the lost opportunity to acquire valuable rights and a legal entitlement to

9 business relations unhampered by RICO schemes. See, e.g. ECF No. 1 at ¶¶ 19, 38, 74, 78, 87, 94, 96.

10 Defendants narrowly focus on UFC 200, when Hunt alleges an ongoing course of conduct, including

11 UFC 152 in 2012. ECF No. 1 at ¶¶ 28-38, 108. Hunt alleges that the totality of the RICO enterprise and

12 its conduct injured his business and property interests. See discussion supra Part III.A.1-2.; Venzor v.

13 Gonzalez, 936 F. Supp. 445, 452 (N.D. Ill. 1996) (denying motion to dismiss RICO claim brought by

14 boxing promoter for fight fixing where plaintiff “expressly allege[d] that he suffered injury to his

15 business and property as a “proximate result” of each RICO violation” and noting proof of the claim is

16 not required at the pleading stage.)

17 Even as applied to UFC 200, which is too narrow an application, the injury to Hunt occurred

18 prior to the beginning of the fight because his opportunity at a level playing field was already

19 compromised by the time he stepped inside the octagon with Lesnar. See discussion supra Part IIIA.1.

20 Thus, by erroneously extending the causal chain to July 19, 2016, Defendants present an absurd eleven

21 (11) step process in an effort to make causation appear “indirect” or attenuated. ECF No. 11 at 14:19-

22 15:4. Hunt has pleaded the predicate fraud with particularity, but he is not required to plead his RICO

23 injury with particularity. Mendoza, 301 F.3d at 1168 (citing NOW, 510 U.S. at 256.) Therefore, Hunt’s

24 specific allegations of wire fraud8 and the direct lost business opportunities and lost legal entitlements

25 state a claim recognized in Bridge and Mendoza.9

26 8
As set forth in Hunt’s complaint, defendant Lesnar has publicly admitted to acts in furtherance of the RICO conduct
27 alleged by Hunt, and Hunt’s Complaint states he will acquire those communications via discovery and seek leave to
amend his Complaint at that time. ECF No. 1 at ¶ 107(b). This section discusses, however, why the Complaint is
28 sufficiently pleaded even without alleging further RICO predicate acts.
9
Again, Defendants make a cursory reference to fraud “reliance” as an element of RICO causation. ECF No. 11 at
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1 As in Mendoza, Hunt alleges a direct injury because of the illegal RICO doping scheme. ECF

2 No. 1 at ¶¶ 10, 69, 74, 78, 113. Defendants disagree. ECF No. 11 at 13:17-16:2. These are “disputed

3 claims of causation and injury [that] cannot be decided on a Rule 12(b)(6) motion. Mendoza, 301 F.3d

4 at 1169 (citing Knevelbaard Dairies v. Kraft Foods, Inc., 232 F.3d 979, 990 (9th Cir. 2000) (finding

5 proximate causation sufficiently pleaded where plaintiff alleged cheese producers restrained the market

6 on milk by artificially manipulating cheese prices). “The law requires that every conspiracy be judged

7 as a whole.” Knevelbaard Dairies, 232 F.3d at 990 (citing Cont’l Ore Co. v. Union Carbide & Carbon

8 Corp., 370 U.S. 690, 699 (1962). “[P]laintiffs should be given the full benefit of their proof without

9 tightly compartmentalizing the various factual components and wiping the slate clean after scrutiny of

10 each. The character and effect of a conspiracy are not to be judged by dismembering it and viewing its

11 separate parts, but only by looking at it as a whole.” Knevelbaard Dairies, 232 F.3d 990–91 (citations

12 omitted). This is exactly what Defendants attempt to do by offering a hyper-technical causation analysis

13 and manufacturing an illogical causal chain that is contrary to RICO jurisprudence. See id. “[W]here

14 a plaintiff is injured by one facet of a multi-faceted conspiracy he is entitled to damages regardless

15 of whether the other facets of the defendants’ collusion had any economic impact on him.” Id.

16 (emphasis added). As such, Defendants’ attempt to distance themselves from UFC 152, ECF 11 at 14:9-

17 12 (arguing the UFC 152 RICO conduct is too remote), is precluded by Knevelbaard Dairies. Similarly,

18 any argument that Hunt was not injured by UFC 152 also fails. See id.

19 1. First Factor: There Is No More Direct Victim Than Hunt

20 This factor is indistinguishable from Mendoza where the court stated, “[t]urning to the first
21 factor, taking the allegations in the complaint as true, we are unable to discern a more direct victim of

22 the illegal conduct.” Mendoza, 301 F.3d at 1171. Hunt alleges economic injury as a “direct result” of

23 Defendants’ RICO conduct. ECF No. 1 at ¶¶ 10, 69, 74, 78, 113. While Hunt may accept or decline

24 certain fights pursuant to the PARA, the selection of Hunt’s opponents is exclusively within the control

25 of Defendants. Hunt’s last four opponents were caught doping or had a pre-existing history of doping:

26 Antonio Silva, Frank Mir, Lesnar, and Alistair Overeem. There is no more direct victim than Hunt.
27

28 14:16-17. No such element exists for RICO purposes. The United States Supreme Court resolved a circuit conflict
on this issue in 2008. Bridge, 553 U.S. 639.
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1 Like Mendoza, there is also disproportionate bargaining power, as Hunt alleges the UFC controls

2 nearly ninety percent (90%) of MMA revenue worldwide. ECF No. 1 at ¶ 11. This is evidenced by the

3 clearly lopsided, and likely unconscionable, PARA. Indeed, there appears to be no other potential

4 plaintiff that can “be counted on to bring suit for the law’s vindication.” Mendoza, 301 F.3d at 1170.

5 Hunt has standing as a direct victim, and is uniquely situated to bring this claim as Defendants’ continue

6 to match Hunt against known dopers.

7 2. Second Factor: The Injury is Attributed to Defendants’ Conduct

8 In Mendoza, the district court noted intervening factors could have affected plaintiffs’ pay, even

9 in the absence of the RICO scheme. Id. These potential intervening factors included wages paid by

10 other employers, the skill and qualification of each plaintiff, the profitability of defendants’ businesses

11 without the undocumented workers, and general availability of documented workers in the area. Id. On

12 appeal, the Ninth Circuit noted the district court’s error, stating “[i]n other words, the district court

13 dismissed the complaint based on the conclusion that factors other than the scheme coupled with the

14 growers’ power in the relevant labor market could account for the plaintiffs’ depressed wages.” Id. at

15 1171 (emphasis in original). The court noted that reasoning was flawed considering the market power

16 of defendants. Id. Here, too, the UFC wields unrivaled power in the sport of MMA. ECF No. 1 at 11.

17 The Ninth Circuit acknowledged it should defer to the well-pleaded allegations of the complaint, which

18 “spell[ed] out a broad conspiracy causing direct harm to the [plaintiffs].” See id. The court’s analysis

19 on this factor stressed the procedural posture, noting “it is inappropriate at this stage to substitute

20 speculation for the complaint’s allegations of causation.” Mendoza, 301 F.3d 1171. Hunt “must be
21 allowed to make [his] case through presentation of evidence, including experts who will testify about the

22 [MMA-related] market, and the effects of the illegal scheme.” Id.; see also Marceau, 618 F. Supp. 2d

23 at 1168 (holding “uncertainty [of the fact of damage and amount of damage] at the motion to dismiss

24 stage need not foreclose the plaintiff’s attempt to ascertain proximate cause and the amount of damage

25 attributable to the alleged RICO violation as opposed to intervening factors”).

26 Defendants’ opposition ignores the lesson from Mendoza and offers alternative outcomes that
27 could account for Hunt’s economic damages, rather than accepting as true Hunt’s well-pleaded factual

28 allegations. Thus, Defendants’ proffered “contingencies” are irrelevant pursuant to Mendoza. ECF No.
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1 11 at 15:17-25. Accordingly, the Court should decline Defendants’ invitation to speculate as to whether

2 Hunt would have defeated a “clean” Lesnar at UFC 200, and if he would have advanced his position for

3 a title fight or sold more apparel. See id.

4 3. Third Factor: There is Zero Risk of Multiple “Passed-On Harm” Recovery
5 There is no risk of multiple recoveries in this case. Defendants appear to concede this point as

6 it is not addressed in their motion. Presumably, they will not identify further potential plaintiffs, which

7 would further uncover Defendants’ RICO conduct. While other plaintiffs may potentially exist, “[n]o

8 other potential plaintiffs emerge with clarity.” See id. (finding third factor lacked any significant risk of

9 multiple recovery). Furthermore, even if other plaintiffs emerge, the damages alleged by Hunt are unique

10 to him, his brand and associated lost opportunities. This is because he alleges a “direct” harm and not a

11 suit for derivative or passed-on harm. Id.

12 Each of these three factors establish Hunt has satisfied the pleading standard on causation.

13 C. The Complaint Alleges White is as Culpable as the UFC
14 Hunt’s complaint expressly defines “Defendants” to include Dana White. ECF No. 1 at 2:2-5.

15 The word “Defendant(s),” exclusive of respective pronouns, appears sixty-five (65) times in the

16 Complaint, contrary to Defendants’ disingenuous argument and arithmetic. Compare ECF No. 1 at 2:2-

17 5 with ECF No. 11 at 16:17 (incorrectly asserting White is only referenced four times).

18 Defendants strain to convince the Court that White’s affirmative misrepresentation in an ESPN

19 interview was a mere deflection. ECF No. 11 at 7:14, 14:19. This argument fails for two reasons. First,

20 this argument ignores the legal standard controlling this motion. The Court must accept Hunt’s common
21 sense assertion over Defendants’ creative deflection theory. Iqbal, 556 U.S. at 679. Second, the

22 interview Defendants reference is not part of the record before the Court.10 While Hunt included certain

23 hyperlinks to provide context and convenience, the text of Hunt’s allegation at paragraph fifty-one (51)

24 controls - “White provided an untruthful” statement about Lesnar’s UFC return. ECF No. 1 at ¶ 51. The

25 Federal Rules of Civil Procedure and Local Rules preclude any other conclusion. Fed. R. Civ. P. 8;

26
27
10
“Neither a hyperlink nor any site to which it refers will be considered part of the official record. Hyperlinks are
simply convenient mechanisms for accessing material cited in a filed document. If a party wishes to make any
28 hyperlinked material part of the record, the party must attach the material as an exhibit.” Local Rule IA 7-3. The
complaint did not attach as an exhibit any hyperlinked materials. See ECF No. 1.
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1 Local Rule IA 7-3. Hunt has far exceeded the threshold requirement of only two predicate acts to state

2 a RICO claim as to each Defendant.

3 IV. DEFENDANTS CONCEDES HUNT PROPERLY PLEADED NEVADA’S RICO
ANALOGUE (SECOND CLAIM)
4
Nevada’s RICO statutes are far broader than their federal counterparts. Nevada law defines a
5
“crime related to racketeering” by a list of thirty-five (35) crimes enumerated by statute. Hunt has
6
alleged four such crimes constitute predicate acts supporting his Nevada RICO claim: (1) Taking
7
property from another under circumstances not amounting to robbery; (2) Obtaining possession of
8
money or property valued at $650 or more, or obtaining a signature by means of false pretenses; (3)
9
Multiple transactions involving fraud or deceit in the course of enterprise or occupation; and (4) Battery
10
which is punished as a felony. Nev. Rev. Stat. § 207.360, subd. (9), (26), (33), and (4). “Racketeering
11
activity” is defined as “engaging in at least two crimes related to racketeering that have the same or
12
similar pattern, intents, results, accomplices, victims or methods of commission, or are otherwise
13
interrelated by distinguishing characteristics and are not isolated incidents” within a five-year period.
14
Nev. Rev. Stat. § 207.390. Nevada’s statutory scheme provides a private right of action for treble
15
damages to any person injured in his business or property by reason of the racketeering activity. Nev.
16
Rev. Stat. §§ 207.470, 207.400.
17
Defendants contend this claim fails because Hunt cannot establish his federal RICO predicate
18
violations, nor his state law predicate violations. ECF No. 11 at 19:8-10. As discussed immediately
19
above, Hunt’s federal RICO claim is well-pleaded, including its wire fraud predicates. As to the state
20
law predicate violations, Defendants completely fail to substantively address battery and taking property
21
from another under circumstances not amounting to robbery. Nev. Rev. Stat. § 207.360, subd. (4), (9).
22
They offer only a one sentence footnote. ECF No. 11 at 19, n. 12. For this reason alone, the Court
23
should deny Defendants’ motion as to this claim for knowingly failing to address it, and failing to put
24
Hunt on notice of any claimed deficiency. Nevertheless, both predicate acts are well-pleaded. Each
25
expressly incorporates the detailed factual allegations of the complaint and the federal RICO claim. They
26
establish that Hunt never consented to fight doping competitors, and it further describes Defendants’
27
deprivation of property. These predicate acts alone perfect Hunt’s state law RICO allegations. The
28
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1 additional predicate violations of fraud and false pretenses are nevertheless discussed, infra, under their

2 respective headings because Hunt alleges those predicate violations as independent claims.

3 V. HUNT’S FRAUD CLAIM IS WELL-PLEADED (THIRD CLAIM)
4 Defendants contend Hunt failed to allege his fraud claim with particularity and that he failed to

5 “demonstrate that he suffered any loss” (i.e. failed to allege damages). ECF No. 11 at 17:15-23.

6 Defendants’ contention can only rest on an apparent oversight, that each of the four predicate violations

7 alleged by Hunt expressly incorporates the detailed factual background and federal RICO allegations.

8 ECF No. 1 at ¶¶ 116-119. As to the fraud and false pretenses claims, Hunt additionally incorporates the

9 respective “below cause[s] of action.” ECF No. 1 at ¶¶ 117, 118. More specifically, his fraud cause of

10 action incorporates more than one-hundred paragraphs of detailed factual allegations. ECF No. 1 at ¶

11 122, 126 (incorporating paragraphs 11-113). Hunt’s factual allegations as incorporated by reference to

12 his fraud claim, allege Defendants engaged in an “act, practice or course of business” by a “scheme and

13 artifice that operates as a fraud” by a false representation “or omission of material fact.” Nev. Rev.

14 Stat. § 205.377 (emphasis added). Hunt alleges the contours of Defendants’ doping conspiracy, whereby

15 they knowingly and repeatedly, by false representation and more often by “omission of material facts,”

16 carry out the described RICO scheme. The Complaint is replete with detailed explanations of the various

17 “Therapeutic Use Exemptions” and other exemptions, whereby Defendants permit certain fighters to

18 take prohibited substances and fail to disclose this fact to their opponents, and even threaten legal action

19 against those who would expose it. ECF No. 1 at ¶¶ 16, 17, 23, 30, 36, 60, 68, 71, 80, 81, 82, 96, 103.

20 Hunt alleges use of these exemptions was knowingly suppressed from UFC fighters, including Hunt, in
21 furtherance of Defendants’ fraudulent scheme to dupe Hunt into believing his opponents would be held

22 to the same standards and precluded from UFC-sanctioned doping.

23 Specific allegations concerning UFC 152 and UFC 200 are only the most egregious examples of

24 Defendants’ getting “caught” carrying out their RICO-fraud. Hunt alleges those instances down to the

25 minute. See, e.g. ECF No. 1 at ¶¶ 31-38, 51, 56, 107. Thus, Hunt has pleaded with particularity

26 Defendants’ false representations. As noted by Defendants’ citation to the controlling law, however, the
27 Nevada fraud statute includes fraudulent omissions. Of course, the time, place and content of an

28 omission cannot be pleaded with particularity. Defendants do not contend otherwise, but, again, simply
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1 fail to address this issue. Hunt alleges certain fraudulent omissions he relied on to his detriment for both

2 the Antonio Silva fight and the Lesnar fight. ECF No. 1 at ¶¶ 81, 82, 124. Hunt lost his bout with

3 Lesnar. His bout with Silva was judged a majority draw. As Defendants are aware, Hunt broke his hand

4 against the doping Silva in that bout. Hunt could certainly allege, in good faith, that but for Defendants’

5 sanctioning his opponent’s doping, he would have knocked him out in the first round, earned a victory,

6 not suffered a broken hand, and gained all attendant benefits.

7 VI. HUNT’S FALSE PRETENSES CLAIM IS WELL-PLEADED (FOURTH CLAIM)
8 Defendants allege Hunt’s false pretenses claims fail for three reasons: (1) it lacks specific content

9 of a false statement Hunt relied on;( 2) Hunt has not alleged damages; and (3) Hunt does not identify a

10 written memorandum. In Nevada, “[o]btaining possession of money or property valued at $650 or more”

11 is a crime related to racketeering. Nev. Rev. Stat. § 207.360. Hale v. Burkhardt, 764 P.2d 866, 870

12 (1988), has interpreted this to require: (1) intent to defraud; (2) a false representation; (3) reliance on the

13 false representation; and (4) that the victim be defrauded. Id. (citation omitted).

14 First, Defendants repeat the same mistaken argument that Hunt has not specifically pleaded his

15 claim, presumably on their failure to credit the expressly incorporated provisions of Hunt’s detailed

16 factual allegations and the incorporation of the federal RICO allegations. ECF No. 1 at ¶ 127, 131

17 (incorporating paragraphs 11-113). The Complaint sets forth the fraudulent scheme, an explanation of

18 Hunt’s reliance on the Defendants’ written assurances that all competitors would be subject to the ADP,

19 and how Defendants fraudulently circumvented the policy, including through various improper

20 “Therapeutic Use Exemptions.” Additionally, Hunt has sufficiently alleged a “false representation of a
21 state of mind, that is, that [Defendants] entered into the agreement[s] while having no intention to

22 perform.” Hale v. Burkhardt, 764 P.2d at 870 (citation omitted). Hunt adequately alleges that

23 Defendants had no intention of performing consistent with the PARA and bout agreements, and that

24 Defendants’ true intent was to circumvent and not perform pursuant to those agreements. See e.g. ECF

25 No. 1 at ¶¶ 16, 94. Hunt makes the additional specific allegation of White’s false representation, which

26 was broadcast on ESPN to Brett Okamoto on June 3, 2016, that Lesnar was not returning to fight in the
27 UFC. ECF No. 1 at ¶¶ 51, 52, 107. Hunt also expressly alleges he relied on Defendants’ false

28 representations. ECF No. 1 at ¶ 124.
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1 Second, Hunt has clearly alleged damages as set forth fully above in the federal RICO analysis,

2 which is even stricter than the Nevada state law counterpart. See discussion supra Part III.

3 Third, Defendants mistakenly assert that a written memorandum is required by citing to the

4 criminal statute, Nev. Rev. Stat. § 175.261, rather than the civil statute identified in the Complaint, Nev.

5 Rev. Stat. § 205.380. ECF No. 11 at 18:15. Hale, cited by Defendants for its interpretation of Nevada’s

6 civil RICO statutes, correctly applies the civil false pretenses standard. It makes no reference to any

7 writing component of false pretenses. In any event, even if the Court entertains the unpublished opinion

8 cited by Defendants, Stoddart v. Miller, 238 P.3d 845 (2008), it does not stand for their cited proposition.

9 Defendants’ reference to Nev. Rev. Stat. § 175.261 conspicuously fails to mention that a “writing” is

10 only one of multiple alternative evidentiary bases to prove false pretenses. It may also be proven by

11 witness testimony or other corroborating evidence. Nev. Rev. Stat. § 175.261. Furthermore, the Stoddart

12 analysis was a review of the evidence presented at trial, not on a motion to dismiss. For the foregoing

13 reasons, Defendants’ arguments fail to identify any pleading deficiency in Hunt’s false pretenses claim.

14 VII. HUNT’S BREACH OF CONTRACT CLAIM IS WELL-PLEADED (FIFTH CLAIM)
15 “[T]he elements of a breach of contract claim in Nevada are: (1) the existence of a valid

16 contract;(2) a breach by the defendant; and (3) damage as a result of the breach.” Contreras v. Am.

17 Family Mut. Ins. Co., 135 F. Supp. 3d 1208, 1227 (D. Nev. 2015). Defendants argue that the cause of

18 action for breach of contract is inadequately pleaded because it fails to specify the contractual provisions

19 breached.11 Yet, “Nevada law does not require that plaintiffs plead breach of contract by specifying

20 the specific contract term(s) allegedly breached . . . .” Ghanem v. ADT Corp., 2016 U.S. Dist. LEXIS
21 55980, at *8 (D. Nev. Apr. 26, 2016) (emphasis added). Thus, contrary to Defendants’ assertions, there

22 is no requirement that Hunt set forth the specific provisions UFC has breached, and therefore the entire

23 premise of its motion in this respect must be denied.

24 Even if this Court were to accept as true that, contrary to Ghanem, Hunt is required to set forth

25 the specific provisions UFC breached, Hunt’s act of attaching the written agreements and incorporating

26
11
27 Defendants cite an out-of-district case, Collins ex rel. Brown v. Walgreen Co., 2013 WL 2482152 (E.D. Cal. June
10, 2013), decided under California law, to support their assertion. Yet, in Collins, the plaintiffs failed to so much as
28 allege the existence of a contract; the allegations in the complaint here explain the detailed breaches by UFC.
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1 them by reference, combined with the factual allegations showing the various breaches by Defendants,

2 is more than adequate to meet virtually any pleading standard. The PARA and UFC 200 Bout Agreement

3 (“Bout Agreement”) are attached to the complaint and incorporated by reference. ECF No. 1 at ¶¶ 133-

4 134. Specifically, Paragraph 3.1 of the PARA provides:
Each Bout shall be . . . conducted pursuant to the rules and regulations of the athletic
5 commission, federation or official authority having jurisdiction over the Bout . . . .
6 Fighter and ZUFFA shall comply with and be bound by the rules and regulations of the
Athletic Commission.
7
The Bout Agreement expressly incorporates the PARA at paragraph 14(a). Thus, in both the Bout
8
Agreement and the PARA (both of which were incorporated into the complaint), UFC agreed that each
9
bout would be conducted pursuant to the rules and regulations of the NAC.
10
The Bout was organized, publicized, and conducted by UFC; UFC exercised essentially
11
complete control over the Bouts. ECF No. 1 at ¶¶ 11-12, 63-64, 133-134; PARA at Recital A, ¶ 1. By
12
knowingly permitting Hunt (a clean fighter) to fight an opponent UFC knew was using substances
13
banned by the NAC, UFC failed to uphold its contractual obligation to conform the Bout to the “rules
14
and regulations of the athletic commission.” The facts demonstrating UFC’s knowingly permitting an
15
unclean fighter to participate in the UFC 200 Bout are pleaded with great specificity throughout the
16
Complaint, and go far beyond what is required to allege conduct that breached the referenced agreements
17
between Defendant UFC and Hunt. See, generally, ECF No. 1 at ¶¶ 14-27, 39-79, 82-87, 135.
18
Finally, the Complaint alleges damages as a result of the breaches by Defendants. ECF No. 1 at
19
¶ 19, 87, 136. As such, the Complaint properly alleges the existence of an agreement, the specific breach
20
by UFC (more than just “conclusory” allegations as claimed by Defendants), and damage to Hunt.
21
VIII. HUNT’S BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING CLAIM
22 IS WELL-PLEADED (SIXTH CLAIM)
23 “To establish a claim for breach of the implied covenants of good faith and fair dealing, a plaintiff
24 must prove: (1) the existence of a contract between the parties; (2) that defendant breached its duty of
25 good faith and fair dealing by acting in a manner unfaithful to the purpose of the contract; and (3) the
26 plaintiff’s justified expectations under the contract were denied.” Shaw v. CitiMortgage, Inc., 2016 U.S.
27 Dist. LEXIS 109443, at *65 (D. Nev. Aug. 17, 2016) (“Shaw”). “Where the terms of a contract are
28 literally complied with but one party to the contract deliberately countervenes the intention and spirit of
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1 the contract, that party can incur liability for breach of the implied covenant of good faith and fair

2 dealing.” Hilton Hotels Corp. v. Butch Lewis Prods., 808 P.2d 919, 922-23 (Nev. 1991) (“Hilton

3 Hotels”).

4 Hunt alleges there was a contract. ECF No. 1 at ¶¶ 133-134. He further alleges that UFC “act[ed]

5 in a manner unfaithful to the purpose of the contract” by knowingly arranging for Hunt, a clean fighter,

6 to fight opponents UFC knew or had reason to know were using banned substances for the purposes of

7 enhancing its own profits and inflating its value for the purposes of the sale of the promotion. See

8 generally, ECF No. 1 at ¶¶ 14-27, 39-79, 82-87, 135. Hunt had justified expectations that UFC would

9 hold all fighters to the same standards in seeking to prevent cheating, and would not intentionally permit

10 and encourage fighters using banned substances to fight clean fighters. His expectations in that regard

11 were denied insofar as the Complaint explains that UFC intentionally matched Hunt, who adhered to the

12 rules and contractual obligations set forth by the UFC, against a fighter UFC knew was not adhering to

13 the rules and contractual obligations set forth by the UFC and the NAC. See id. As such, Hunt has

14 properly pleaded all the elements of this claim.

15 Defendants set up a “straw man” by arguing that the claim fails because the bout agreement did

16 not require UFC “to provide Hunt with clean opponents.” ECF No. 11 at Part II.B.1-2. That argument

17 ignores the numerous obligations that UFC did have with respect to the agreements, including an

18 obligation to ensure the bout was conducted in accordance NAC rules (as discussed above).

19 Defendants further ignore the fact that this claim may be brought as either one sounding in tort

20 or one sounding in contract. Shaw, supra, at *65-79. While it is true that the contractual breach of the
21 implied covenant of good faith and fair dealing cannot extend to obligations “not contemplated” by the

22 agreement, Hunt has adequately alleged that the agreements at-issue here “contemplated” the

23 understanding that all fighters would be subject to the same enforcement of banned substances.

24 Moreover, the UFC’s justification that it was not technically contractually bound to provide Hunt with

25 clean opponents demonstrates the applicability of the claim to this situation. “A contractual breach of

26 the implied covenants of good faith and fair dealing occurs ‘[w]here the terms of a contract are literally
27 complied with but one party to the contract deliberately countervenes the intention and spirit of the

28 contract.’” Id. at *66 quoting Hilton Hotels, supra, at 922-23. Thus, even if UFC has no specific
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1 obligation in the agreements to provide a clean fighter to Hunt, at the very least it had the obligation not

2 to actively participate in setting up a knowingly-cheating fighter to fight Hunt for the purposes of its own

3 fraudulent gain. Such action “deliberately countervenes the intention and spirit of the contract . . . .”

4 Hilton Hotels, supra, at 922-23.

5 Defendants additionally fail to discuss tortious violation of the implied covenant of good faith

6 and fair dealing, a separate avenue under which Hunt can establish liability under the sixth claim for

7 relief. The “tort action requires a special element of reliance or fiduciary duty . . .” Id. at 923. In K

8 Mart Corp. v. Ponsock, 732 P.2d 1364 (Nev. 1987) (disapproved on other grounds), for example, an

9 employee sued his employer for breach of his employment agreement. The Nevada Supreme Court held

10 that the employer could be liable not only for breach of contract but also for tortious breach of the implied

11 covenant of good faith and fair dealing where it found that the employer terminated the employee

12 specifically to prevent vesting of his retirement benefits. Id. at 1371-72. Specifically, the court held that

13 tortious breach of the implied covenant of good faith and fair dealing applies where a “weak” party is

14 aggrieved by a “strong” party, such as in the case of an insured against his insurer, an employee against

15 his employer, a franchisee against a franchisor, or even a customer of a storage company against the

16 storage company. Id. at 1370-1371. Here, UFC is the self-proclaimed “leading promoter of MMA

17 contests or exhibitions in the world.” ECF No. 11 at p. 3. Hunt is just one of many fighters under

18 contract with UFC. UFC thus holds a position of strength over Hunt, similar to that of a

19 franchisee/franchisor or employee/employer relationship. Hunt further relied on UFC to equitably carry

20 out its responsibilities under the contract; he entered into the agreement with the belief that UFC would
21 not intentionally pit him against cheating fighters for the purposes of increasing UFC’s own profit. In

22 this sense, given that Hunt relied on UFC to fairly carry out the spirit and intention of the agreements he

23 signed, UFC can be tortiously liable for breach of the implied covenant of good faith and fair dealing.

24 The facts of Hilton Hotels demonstrate that this case is a textbook example of breach of the

25 implied covenant of good faith and fair dealing. There, a boxing promoter and hotel contracted to put

26 on a four-bout series intended to establish the top boxer in the world. Hilton alleged that, although the
27 written contract was silent on this point, the parties understood that the then top-ranked heavyweight

28 boxer in the world, Michael Spinks, would be featured in the four bouts. Hilton Hotels, 808 P.2d at 919.
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1 Hilton alleged that the promoter induced Spinks to forfeit his title, thereby rendering him ineligible to

2 fight in the four-round series, in contravention of the expectations of the contracting parties. Ibid. The

3 court held that the jury was properly instructed that the promoters had an obligation “‘not to do anything

4 to destroy or injure the right of [Hilton] to receive the benefits of the contract,’” and that Hilton had

5 established its prima facie case for breach of the implied covenant of good faith and fair dealing insofar

6 as its contention that the parties understood Spinks would be fighting. Id. at 923. In much the same

7 way, UFC was bound “not to do anything to destroy or injure the right of [Hunt] to receive the benefits

8 of the contract[s]” between UFC and Hunt. UFC and Hunt understood that, at the very least, UFC would

9 not deliberately encourage and facilitate fights in which it knew Hunt’s opponent was using banned

10 substances. Like the plaintiff in Hilton Hotels, Hunt can recover for breach of the implied covenant of

11 good faith and fair dealing based on UFC’s frustration of the intention and spirit of the contracts.

12 IX. HUNT’S NEGLIGENCE CLAIM IS WELL-PLEADED (SEVENTH CLAIM)
13 UFC’s argument on Hunt’s negligence claim is misplaced on both substantive as well as

14 procedural grounds. Procedurally, UFC seeks to enforce an affirmative defense that it has not yet alleged

15 at the pleading stage. Substantively, its argument that Hunt’s negligence claim is barred by the doctrine

16 of express assumption of the risk is mistaken based on the duty UFC owed to Hunt. “Express assumption

17 of risk is essentially a contract where the plaintiff signs a document and openly agrees to hold the

18 defendant harmless for known and inherent dangers of a particular activity.” Auckenthaler v.

19 Grundmeyer, 877 P.2d 1039, 1041 (Nev. 1994) (emphasis added). Thus, the doctrine only applies to

20 those dangers that are “known and inherent” in the specific activity.
21 UFC mistakenly seeks to lump the egregious nature of UFC’s conduct toward Hunt and Hunt’s

22 specific damages suffered as a result thereof with the more typical injuries (those “known and inherent”)

23 in a sport like MMA, like bruises and broken bones. Yet Hunt’s negligence claim is not over bruises or

24 broken bones (the types of fighting injuries contemplated by the assumption of the risk provisions here),

25 but over UFC’s calculated conduct depriving Hunt of his business, brand, and opportunities. Nothing in

26 the agreements between the parties contemplated Hunt was assuming the risk that UFC would
27 intentionally pit him against a cheating fighter for the purposes of increasing UFC’s profits at the expense

28 of Hunt’s business and opportunity. See, Sierra Pac. Power Co. v. Anderson, 358 P.2d 892, 894, (1961)
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1 (holding assumption of the risk “operates only when the party actually knows the full scope and

2 magnitude of the danger . . .”); see also, Restat. 2d of Torts, § 496B (“In order for the agreement to

3 assume the risk to be effective, it must also appear that its terms were intended by both parties to apply

4 to the particular conduct of the defendant which has caused the harm. Again, where the agreement is

5 drawn by the defendant and the plaintiff passively accepts it, its terms will ordinarily be construed strictly

6 against the defendant. In particular, general clauses exempting the defendant from all liability for loss or

7 damage will not be construed to include loss or damage resulting from his intentional, negligent, or

8 reckless misconduct . . .”).

9 In this regard, UFC’s reliance on Burnett v. Tufguy Productions, Inc., 2010 WL 4252116 (D.

10 Nev. 2010) is misplaced. There, the plaintiff suffered a spinal injury while participating in an “Ultimate

11 Fighter” reality fighting show. Fighting injuries are precisely the types of injuries covered by the

12 assumption of the risk provisions in the agreement UFC has its fighters sign. Intentional and malicious

13 conduct constituting calculated damage to a fighter’s brand and business opportunities are not remotely

14 contemplated by the assumption of the risk provisions. As such, it cannot be said at the pleading stage

15 that Hunt’s negligence claim is barred by his agreeing to accept the physical risks inherent in being a

16 professional fighter. Put simply, UFC owed a duty of due care to Hunt, it breached its duty of care, and

17 Hunt suffered injury as a result. As such, Hunt’s negligence claim is well-pleaded.

18 X. HUNT’S UNJUST ENRICHMENT CLAIM IS WELL-PLEADED (EIGHTH CLAIM)
19 “Under Nevada law, unjust enrichment is ‘the unjust retention . . . of money or property of

20 another against the fundamental principles of justice or equity and good conscience.’” In re Wal-Mart
21 Wage & Hour Empl. Practices Litig., 490 F. Supp. 2d 1091, 1125 (D. Nev. 2007). Defendants point out

22 correctly, but incompletely, that under Nevada law unjust enrichment cannot lie where there is a contract

23 between the parties. Their arguments are misplaced for two main reasons. First, Hunt had a contract

24 only with UFC; there is no direct contractual relationship between Hunt and Defendants White and

25 Lesnar, so the motion must at the very least be denied as to those defendants.

26 However, the motion should be dismissed as to all defendants because the actions that give rise
27 to Defendants’ unjust enrichment are separate and distinct from the actions of UFC constituting a breach

28 of the agreement with Hunt. Under Nevada law, Defendants were unjustly enriched if they received
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1 property “against the fundamental principles of justice or equity and good conscience.” The property

2 Defendants received included pay-per-view profits, Lesnar’s fight purse and win bonus, and ultimately

3 White and UFC’s massive profits from the sale of UFC just days after UFC 200. These were not gains

4 contemplated by Hunt’s agreements with UFC, but nevertheless are compensable under Nevada law as

5 gained “against the fundamental principles of justice or equity and good conscience.” The fact that these

6 gains were not specifically addressed by Hunt’s agreement with UFC does not mean that it is fair and

7 equitable for Defendants to retain them. As such, Hunt can recover against all named Defendants on his

8 claim for unjust enrichment, and at the very least, can recover against White and Lesnar.

9 XI. CONCLUSION
10 Hunt respectfully requests this Court to deny Defendants’ motion in its entirety. If the Court is

11 inclined to grant Defendants’ motion as to any claim, Hunt requests the Court to make such an order

12 without prejudice and with leave to amend. Hunt further requests the opportunity to file a surreply in

13 the event Defendants raise by reply the issues not initially presented in their moving papers.

14 Should this Court be inclined to grant Defendants’ motion in any respect, Hunt asserts that he

15 can, in good faith, set forth such claims that are not subject to dismissal through an amendment that will

16 not cause prejudice to Defendants. As such, should this Court grant Defendant’s motion in any respect,

17 Hunt requests it be made without prejudice and with leave to amend.12

18

19 DATED: March 21, 2017 HIGGS FLETCHER & MACK LLP
20
21 By: s:/CHRISTINA M. DENNING
22 CHRISTINA M. DENNING, ESQ.
SCOTT J. INGOLD, ESQ.
23 Attorneys for Plaintiff MARK HUNT
24

25
12
Pursuant to Federal Rule of Civil Procedure, Rule 15(a), “a party may amend his pleading once as a matter of
26 course at any time before a responsive pleading is served.” Doe v. United States, 58 F.3d 494, 496–97 (9th Cir.
1995). “The Ninth Circuit has held “a motion to dismiss is not a ‘responsive pleading’ within the meaning of the
27 Rule. Neither the filing nor granting of such a motion before answer terminates the right to amend; an order of
dismissal denying leave to amend at that stage is improper.” Id.; United States v. Rock Springs Vista Dev. Corp., No.
28 CV-S-97-1825(JBR) (RLH), 1999 WL 1491621, at *1 (D. Nev. July 2, 1999). No defendant in this action has filed a
responsive pleading, therefore, Hunt must be granted leave to amend at his option, as a matter of course.
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1 CHRISTINA M. DENNING, ESQ. (CA Bar No. 211137)
2 denningc@higgslaw.com
SCOTT J. INGOLD, ESQ. (NV Bar No. 11818)
3 ingolds@higgslaw.com
Higgs Fletcher & Mack LLP
4
401 West “A” Street, Suite 2600
5 San Diego, CA 92101-7913
T: 619.236.1551
6
F: 619.696.1410
7
JAMES F. HOLTZ, ESQ. (NV Bar No. 8119)
8 james.holtz@holtzapc.com
9 LAW OFFICE OF JAMES F. HOLTZ
1120 Town Center Drive, Suite 200
10 Las Vegas, NV 89144
11 T: 702.304.1803
F: 702.304.1822
12

13 Attorneys for Plaintiff
MARK HUNT
14

15 UNITED STATES DISTRICT COURT
16 DISTRICT OF NEVADA
17 MARK HUNT, an individual, Case No.: 2:17-cv-00085-JAD-CWH
18 Plaintiff, MARK HUNT’S POINTS AND
19 v. AUTHORITIES IN OPPOSITION TO
DEFENDANTS ZUFFA, LLC’S AND
20 ZUFFA, LLC d/b/a ULTIMATE DANA WHITE’S REQUEST FOR
FIGHTING CHAMPIONSHIP, a JUDICIAL NOTICE
21
Nevada limited liability company;
22 BROCK LESNAR, an individual;
DANA WHITE, an individual; and
23
DOES 1-50, inclusive,
24
Defendants.
25

26 ///

27 ///

28 ///
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1 Plaintiff, Mark Hunt (“Hunt”), respectfully requests that this Court deny Defendants’

2 Request for Judicial Notice of Exhibits marked 1 through 7, and the internet hyperlinks, Exhibits

3 A and B. This Court should exclude Defendants’ extrinsic evidence because the exhibits were

4 not incorporated by reference, and this Court’s consideration of Defendants’ motion to dismiss

5 Hunt’s complaint should be limited to the pleadings.

6 Hunt also notes, however, that Defendants’ attached documents are not necessarily helpful

7 to Defendants’ position. For that reason, they request the Court to not only take judicial notice of

8 their exhibits, but also to accept as true Defendants’ interpretation of those documents (and

9 internet links). As discussed herein, judicial notice does not alter the legal standard on a motion

10 to dismiss.

11 I.
12 LEGAL STANDARD
13 A court will grant a motion to dismiss if the complaint does not allege claims upon which

14 relief can be granted. Fed. R. Civ. P. 12(b)(6). A complaint must contain “a short and plain

15 statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). In

16 analyzing a motion to dismiss, “all well-pleaded allegations of material fact are taken as true and

17 construed in a light most favorable to the nonmoving party.” Wyler Summit Partnership v.

18 Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998).

19 As a general rule, “a district court may not consider any material beyond the pleadings in

20 ruling on a Rule 12(b)(6) motion.” Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001)
21 (citing Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994); see Cervantes v. City of San Diego, 5

22 F.3d 1273, 1274 (9th Cir. 1993) (holding when the legal sufficiency of a complaint’s allegation is

23 tested by a 12(b)(6) motion, “review is limited to the complaint.”) However, there are two

24 exceptions to the requirement that consideration of material outside of the complaint converts a

25 12(b)(6) motion into a summary judgment motion: (1) incorporation by reference and (2) judicial

26 notice.
27 The “incorporation by reference” exception to this general rule is for documents that are

28 “necessarily relie[d]” on in the complaint, provided their authenticity “is not contested.” Lee, 250
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1 F.3d at 688 (citing Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998)). The “judicial

2 notice” exception is for “matters of public record” pursuant to Federal Rule of Evidence 201.

3 Lee, 250 F.3d at 689. However, it is only proper for a court to take judicial notice of the fact of

4 the existence of a matter of public record, rather than the truth of the facts recited therein. Id. at

5 690.

6 II.
7 ARGUMENT
8 A. Judicial Notice Should be Denied or Extremely Limited
9 This Court should deny each of Defendants’ requests for judicial notice, as discussed fully

10 below. However, to the extent the Court takes judicial notice of any such documents, it should be

11 limited to the mere fact that the documents exist, because the contents of the documents are

12 highly disputed. See Montana Dep’t of Revenue v. Blixseth, No. 2:13-CV-01324-JAD, 2016 WL

13 1183084, at *2 (D. Nev. Mar. 28, 2016) (denying request for judicial notice to the extent it seeks

14 judicial notice of the truth of its contents); see also Carrillo v. Gillespie, No. 2:12-CV-02165-

15 JAD, 2014 WL 1307454, at *7 (D. Nev. Mar. 28, 2014) (holding Court could not take judicial

16 notice of the truth or perjury regarding contents of police officer’s sworn statement, because it

17 was “subject to reasonable dispute” (interpreting Fed. R. Evid. 201)).

18 Defendants’ Exhibit 1, UFC Anti-Doping Policy, for example, is disputed from the very

19 first sentence, whereby the UFC falsely proclaims:

20 This policy is a central part of UFC’s expanded efforts to protect the
21 health and safety of its Athletes, and also to protect their right to compete on a

22 level playing field.

23 This stated objective is false. Hunt’s complaint clearly disputes that claimed objective

24 and explains how the ADP is a sham created by UFC, which undermines fighter health and

25 safety, creates an unlevel playing field, and wrongfully maximizes UFC revenue by increasing

26 the risk of serious injury and death to its fighters.1 ECF No. 1. Hunt’s well-pleaded factual
27
1
Similarly, even Defendants’ proffered fight records are inappropriate for judicial notice as wins and losses are
28 subject to retroactive change to no contest rulings.
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1 allegations must be taken as true and Defendants’ transparent attempt to manipulate an

2 unfavorable legal standard must be denied.

3 B. This Court Has Discretion to Exclude Extrinsic Evidence When Ruling on a Rule
12(b)(6) Motion.
4
Under the doctrine of “incorporation by reference,” a district court may consider
5
documents that are “referenced extensively in a complaint and are accepted by all parties as
6
authentic.” Fed. R. Civ. P. 12(b)(6); Van Buskirk v. CNN, 284 F.3d 977, 980 (9th Cir. 2002); Lee,
7
250 F.3d at 688; Snyder v. HSBC Bank, USA, N.A., 913 F. Supp. 2d 755 (D. Ariz. 2012). The
8
court may consider documents whose content are alleged in the complaint as long as (1) the
9
complaint necessarily relies on the documents or contents, (2) the document’s authenticity is
10
uncontested, and (3) the document’s relevance is uncontested. Johnson, 793 F.3d at 1007-08
11
(Deed of trust’s authenticity not in dispute and complaint necessarily relied upon it as the source
12
of defendant’s duty); see Spy Optic, Inc. v. Alibaba.Com, Inc., 163 F. Supp. 3d 755 (C.D. Cal.
13
2015). But the Court will not consider these documents for the truth of the matters they assert.
14
Gammel, 905 F. Supp. 2d at 1061.
15
Defendants overestimate the scope of the exceptions of incorporation by reference and
16
judicial notice, and improperly request that the Court consider Exhibits 1-7, A, and B, when
17
ruling on their motion to dismiss. When considering a motion to dismiss pursuant to Rule
18
12(b)(6), the Court may consider unattached evidence on which the complaint “necessarily relies”
19
if: (1) the complaint refers to the document; (2) the document is central to the plaintiff’s claim;
20
and (3) no party questions the authenticity of the document. Fed. R. Civ. P. 12(b)(6); United
21
States ex rel. Lee v. Corinthian Colleges, 655 F.3d 984, 999 (9th Cir. 2011); Marder v. Lopez,
22
450 F.3d 445, 448 (9th Cir. 2006); Lee, 250 F.3d at 668.
23
Contrary to Defendants’ claim that “it is well established that the Court may consider
24
documents that are expressly referenced in a complaint”, Cervantes v. Countrywide Home Loans
25
Inc. does not stand for the proposition that documents that are merely referenced in the complaint
26
should be considered a part of the pleading for a motion to dismiss. 656 F.3d 1034, 1042 n.2 (9th
27
Cir. 2011) (court only considered deed of trust attached to defendant’s reply in support of motion
28
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1 to dismiss because the complaint both referenced and specifically relied on the deed); see

2 Johnson v. Federal Home Loan Mortg. Corp., 793 F.3d 1005 (9th Cir. 2015); see also Swartz v.

3 KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). “[A]lthough often conflated, the doctrine of

4 incorporation by reference is distinct from judicial notice.” Gammel v. Hewlett Packard Co., 905

5 F. Supp. 2d 1052, 1061 (C.D. Cal. 2012).

6 Exhibit 1 - UFC Anti-Doping Policy

7 Defendants offer a copy of the UFC’s Anti-Doping Policy claiming that it is “integral” to

8 Hunt’s claims contained in the Complaint. Mere reference to a document is insufficient to

9 incorporate that document by reference into the Complaint. See Van Buskirk, 284 F.3d at 980.

10 Hunt does not dispute the existence of the Policy, nor does he “necessarily rely” on the Anti-

11 Doping Policy. Rather, Hunt alleges the UFC’s complicit practice of granting fighters drug-

12 testing “exemptions” repeatedly places “clean” fighters, like Hunt, in situations where they are

13 required to unknowingly and unfairly fight competitors who use performance-enhancing drugs.

14 Furthermore, the Policy’s availability on the Internet is irrelevant to whether it has been

15 incorporated by reference; it does not justify its consideration, or make it a source “whose

16 accuracy cannot reasonably be questioned.” Consideration of the document is inappropriate at

17 this early stage of the litigation, therefore the UFC Anti-Doping Policy should not be considered

18 incorporated by reference into the Complaint.

19 Exhibit 2 – Portion of Jon Jones’ Fight Record

20 Defendants offer a portion of Jon Jones’ fight record, specifically including his UFC 152
21 fight against Vitor Belfort. Again, the public availability of Jones’ record is irrelevant to whether

22 it is incorporated by reference: public availability is only relevant to whether judicial notice is

23 proper. Defendants fail to establish how the outcome of Jones’ fights is relevant to Hunt’s claims

24 and instead assume that “Hunt obviously believes” this information is “integral to his claims.”

25 This is not so. The outcome of Jones’ fight against Belfort is irrelevant to Hunt’s claims. Hunt

26 does not rely on the outcome of Jon Jones’ fights. Rather, Defendants’ pre-fight conduct
27 demonstrates the RICO doping conspiracy. Hunt also does not “deliberately omit references to

28 documents upon which [his] claims are based” because his claims are not based on whether Jones
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1 won or lost the bout.

2 Exhibit 3 – Mark Hunt’s Fight Record2

3 Defendants offer Hunt’s fight record including fights against, Antonio Silva, Frank Mir,

4 and Brock Lesnar. Again, the public availability of Hunt’s record is irrelevant to whether it is

5 incorporated by reference. Moreover, the fact that these records are available online does not

6 make them credible. Hunt alleged that he had received a “no contest” determination when Lesnar

7 tested positive for banned substances after their match and that he had competed against other

8 doping fighters. Defendants offer Hunt’s record, but this Court has the discretion to decide

9 whether such consideration is necessary. Contra In re Stac Electronics Sec. Litig., 89 F.3d 1399,

10 1405, n.4 (9th Cir. 1996) (finding relevant a full prospectus in complex securities litigation). In

11 this case it is not, and is not appropriate for consideration of Defendants’ motion to dismiss.

12 Exhibit 4 – Nevada State Athletic Commission Bout Records for UFC 200

13 Particular fighter purse amounts are not necessarily relied upon or disputed by Plaintiff.

14 One mention in the Complaint of Hunt’s purse for a single fight is clearly not enough to make the

15 entirety of the Nevada Athletic Commission bout records integral to his claim. Courts “may take

16 judicial notice of records and reports of administrative bodies” but only if those records are

17 relevant. Therefore, this exhibit is not incorporated by reference, nor is it judicially noticeable.

18 Exhibit 5 – July 1, 2016 Email from Jeff Novitzky to Nevada State Athletic

19 Commission

20 Defendants offer an email referenced in the Complaint and argue that it must be integral to
21 Hunt’s claims. As already established, mentioning a document not attached to the pleading does

22 not incorporate that document. Defendants attempt to offer additional evidence in a veiled

23 attempt to present its own evidence before it is appropriate. As the motion to dismiss must be

24 premised on the “four corners” of the pleading, extrinsic evidence such as an email, which was

25
2
To the extent Defendants contend Hunt is not legally damaged unless his bout ends in a loss, that position is legally
26 untenable. The lost opportunities, described in the concurrently filed opposition, accrue regardless of the outcome of
the bout. Nevertheless, Hunt could make the good faith, plausible allegation that, for example, “persons not taking
27 anabolic steroids are easier to knock out or otherwise defeat than doping fighters and that he would have sold more
Juggernaut brand T-shirts in doing so.” But, Hunt has already sufficiently alleged that doping fighters have an
28 “improper competitive advantage . . . derived at the expense of clean fighters.” ECF No. 1 at ¶ 95.
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1 not attached to or incorporated by reference into the complaint, is not appropriate for

2 consideration at this stage.

3 Exhibit 6 – Brock Lesnar 2016 Drug Testing History in the ADP3

4 Defendants’ attempt to offer Brock Lesnar’s (“Lesnar”) drug testing history is another

5 attempt to present extrinsic evidence that is subject to reasonable dispute and is not integral to

6 Hunt’s claim. His claims do not rest on whether Lesnar passed various other tests offered by

7 Defendants or others. The number of times Defendants and complicit fighters were able to “beat

8 the system” by passing a drug test is not central to Hunt’s claims, but more importantly, with the

9 advancements in drug evasion, these facts do not even prove an athlete is “clean”. This is why

10 athletes are subject to numerous tests: depending on the doping cycle of the athlete or the

11 particular masking substance he is taking, a test may produce a false negative. Therefore, not

12 only is the entirety of Lesnar’s drug testing history not integral to Hunt’s claims, but they are

13 subject to reasonable dispute, even if the result is negative.

14 Exhibit 7 – Nevada State Athletic Commission Mixed Martial Arts Show Results for
UFC 200
15
Again, the mere public availability of documents does not justify judicial notice of those
16
documents. Public availability is not relevant to incorporation by reference. Defendants claim
17
that one mention of the results of UFC 200 justifies the inclusion of the match. Consideration of
18
this document will not assist the Court and is not integral to Hunt’s complaint.
19

20
21 3
Defendants’ purported Summary of Allegations contains a glaring and crucial mischaracterization of Hunt’s
Complaint. Defendants’ motion falsely contends “[t]he ADP is administered by an independent third party known as
22 the United States Anti-Doping Agency (“USADA”),” and brazenly attributes that language to Hunt. ECF No. 11 at
3:16-17. Hunt, however, alleges only that the UFC and USADA contracted for drug-testing services. ECF No. 1 at ¶
23 14. The Court must accept Hunt’s allegations as true. Even if the Court entertains Defendants’ theory, though, their
assertion of USADA’s independence is categorically untrue. If the Court considers Defendants’ proffered ADP, page
one of that policy refutes Defendants’ contention: “References to UFC in this Program shall include USADA, other
24
Anti-Doping Organizations, or third party anti-doping service providers to which UFC has made a delegation.” ECF
No. 11-2 (UFC Anti-Doping Policy). Thus, the ADP provides that for purposes of the ADP, the UFC is USADA and
25 USADA is the UFC. USADA is simply the vehicle Defendants use to facilitate its fraud and RICO enterprise, while
maintaining the outward appearance of advancing fighter health and safety. And even then, if the payday is big
26 enough, Defendants forego the charade and grant a Therapeutic Use Exemption or other exception. The clean fighter
learns his promoter sanctioned his opponent’s doping only after the fight. Defendants are no less culpable for their
27 racketeering and fraud because they carry them out, at least partially, in plain sight. United States v. Philip Morris
USA Inc., 566 F.3d 1095, 1148 (D.C. Cir. 2009) (holding tobacco company liable for RICO violations for
28 fraudulently concealing health risks of tobacco and marketing to children).
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1 C. Defendants’ Request Must Be Denied Because Disputed Matters Are Not Judicially
Noticeable.
2
Under Rule 201(b) of the Federal Rules of Evidence, the district court may take judicial
3
notice of facts which are not subject to reasonable dispute and which are (1) generally known
4
within the territorial jurisdiction of the district court or (2) capable of accurate and ready
5 determination by resort to sources whose accuracy cannot reasonably be questioned. A court may
6 “take judicial notice of matters of public record . . . as long as the facts noticed are not subject to
7 reasonable dispute.” Intri-Plex Techs., Inc. v. Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir.
8 2007); see National Council of La Raza v. Miller, 914 F. Supp. 2d 1201 (D. Nev. 2012).
9 As discussed above, judicial notice is distinct from incorporation by reference. Each
10 exhibit offered by Defendants contains facts that are subject to reasonable dispute and whose
11 accuracy can be reasonably questioned. Contrary to Defendants’ assertions, the mere availability

12 of sources on the Internet does not make them accurate or trustworthy. Defendants’ attempt to

13 present evidence at this early stage is a clear effort to quash this litigation before the parties have

14 had a full and fair opportunity to address their claims.

15 III.

16 CONCLUSION

17 For the above reasons, Hunt respectfully requests that the Court deny Defendants’ request

18 for judicial notice, in its entirety.

19

20 DATED: March 21, 2017 HIGGS FLETCHER & MACK LLP
21
By: s:/CHRISTINA M. DENNING
22
CHRISTINA M. DENNING, ESQ.
23 SCOTT J. INGOLD, ESQ.
Attorneys for Plaintiff
24 MARK HUNT
25 7882918.1

26
27

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H IGGS F LE TCHER &
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