You are on page 1of 15

Case 18-3278, Document 53, 11/16/2018, 2436141, Page1 of 15

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500

MOTION INFORMATION STATEMENT

Docket Number(s): 18-3278


18-3278 Caption ruse short titlel

Motion for: Dismissal for lack of appellate jurisdiction Haynes v. World Wrestling Entertainment
appellate jurisdiction

Set forth below precise, complete statement of relief sought:


Appellee requests that the Court grant this motion
motion
and dismiss the
and dismiss the appeal for lack
appeal for lack of
of jurisdiction.
jurisdiction.

MOVINc-' PARTY: World Wrestling Entertainment, Inc. OPPOSING PARTY: William Albert
William Albert Haynes
Haynes III
Ill
I !Plaintiff I/ Defendant
n Appellant/Petitioner ✓
6/ Appellee/Respondent

MOVING ATTORNEY: Jerry S. McDevitt


Jerry S. McDevitt OPPOSING ATTORNEY: Konstantine
Konstantine W. Kyros
W. Kyros
[name of attorney, with firm, address, phone number and e-mail]
K&L
K&L Gates
Gates LLP, K&L Gates
LLP, K&L Center
Gates Center Kyros Law Offices,
Kyros Law Offices, P.C.
P.C.
210 Sixth
210 Sixth Avenue,
Avenue, Pittsburgh PA 15222-2613
Pittsburgh PA 15222-2613 17
17 Miles Road, Hingham,
Miles Road, Hingham, MA
MA 02043
02043
(412)
(412) 355-8608, jerry.mcdevitt@klgates.com (800)
355-8608, jerry.mcdevitt@klgates.com (800) 934-2921, kon@kyroslaw.com
934-2921, kon@kyroslaw.com

Court-Judge/Agency appealed from: United Stated District Court, District of Connecticut, Honorable Vanessa L. Bryant

Please check appropriate boxes: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND
INJUNCTIONS PENDING APPEAL:
Has movant notified opposing counsel (required by Local Rule 27.1): Has request for relief been made below? Fl Yes R No
Z Yes0 No (explain): Has this relief been previously sought in this Court? I-1Yes No
Requested return date and explanation of emergency:
Opposing counsel's position on motion:
1-1Unopposed FlOpposed FIDon't Know
Does opposing counsel intend to file a response:
n Yes FINo FIDon't Know

Is oral argument on motion requested? 1-1Yes Z No (requests for oral argument will not necessarily be granted)

Has argument date of appeal been set? I-1Yes n No If yes, enter date:

Signature of Moving Attorney:


/s/ Jerry S. McDevitt Date: 11/16/2018
11/16/2018 Service by: Z CM/ECF 0 Other [Attach proof of service]

Form T-1080 (rev. 12-13)


Case 18-3278, Document 53, 11/16/2018, 2436141, Page2 of 15

IN THE
Einiteb 6tate5 Court of appsat5 for tbe Aktonb Circuit
WILLIAM ALBERT HAYNES III, : No. 18-3278
individually and on behalf of all :
others similarly situated,
Plaintiff-Appellant, :

vs.

WORLD WRESTLING
ENTERTAINMENT, INC.,

Defendant-Appellee. :

MOTION TO DISMISS APPEAL


FOR LACK OF APPELLATE JURISDICTION

Defendant-Appellee World Wrestling Entertainment, Inc.

)•YYG–*!
("WWE") oqxgu! vq! fkuokuu!
moves to dismiss vjku! crrgcn! filed
this appeal hkngf! by
d{! Rnckpvkhh.Crrgnncpv!
Plaintiff-Appellant

Yknnkco!Cndgtv!Jc{pgu!KKK!)•Rnckpvkhh–*!hqt!ncem!qh!crrgnncvg!lwtkufkevkqp/!
William Albert Haynes III ("Plaintiff') for lack of appellate jurisdiction.

BACKGROUND

Cvvqtpg{! Mqpuvcpvkpg!
Attorney Konstantine M{tqu!
Kyros )•Cvvqtpg{!
("Attorney M{tqu–*!
Kyros") wvknk|gf! cp!
utilized an

internet solicitation scheme to recruit former WWE performers to sue

WWE and allege traumatic brain injury claims in the hope of

replicating the widely publicized settlement in the NFL concussion

litigation.

This case was the first case and first putative class action that

Attorney Kyros filed on behalf of a former WWE performer. Plaintiff


Case 18-3278, Document 53, 11/16/2018, 2436141, Page3 of 15

Haynes briefly performed for WWE in the 1980s. This case was filed on

October 23, 2014 in the District of Oregon. WWE filed a motion to

transfer venue to the District of Connecticut. By the time that motion

was decided, Attorney Kyros had caused multiple duplicative cases to

be filed in other jurisdictions, a fact which was brought to the attention

of the federal court in Oregon. After finding that Attorney Kyros had

engaged in improper forum-shopping, the District Court in Oregon

itcpvgf!
granted YYG”u!
WWE's oqvkqp! cpf! transferred
motion and vtcpuhgttgf! vjku!
this ecug!
case vq!
to vjg!
the Fkuvtkev!
District qh!
of

Connecticut.

On August 4, 2015, the District Court in Connecticut entered an

order under Federal Rule of Civil Procedure 42 consolidating this case

with the other cases brought by Attorney Kyros against WWE and one

case in which WWE sought a declaratory judgment that claims of four

other former performers were time-barred.1 See Order Consolidating

1 In the case brought by WWE, Attorney Kyros had threatened


litigation on behalf of four other performers. WWE sought a declaration
that the claims of those four performers were time-barred. The District
Court granted declaratory relief to WWE in that case, which has not
been appealed. The other consolidated cases included in addition to this
case: Ukpingvqp!x/!Yqtnf!Ytguvnkpi!Gpvo”v-!Kpe/-!
Singleton v. World Wrestling Entm't, Inc., No. 3:15-cv-425 (VLB)
(transferred from the Eastern District of Pennsylvania); McCullough v.
Yqtnf!
World Ytguvnkpi!
Wrestling Gpvo”v!
Entm't Kpe/-!
Inc., No. 3:15-cv-1074 (VLB) (transferred from
the Central District of California); Htc|kgt!
Frazier x/!
v. Yqtnf!
World Ytguvnkpi!
Wrestling Gpvo”v-!
Entm't,
Inc., No. 3:15-cv-1305 (VLB) (transferred from the Western District of
Tennessee); Lcogu!
James x/!
v. Yqtnf!
World Ytguvnkpi!
Wrestling Gpvo”v-!
Entm't, Kpe/-!
Inc., No. 3:15-cv-1229
(VLB) (transferred from the Northern District of Texas); Laurinaitis v.
2
Case 18-3278, Document 53, 11/16/2018, 2436141, Page4 of 15

Cases (Case No. 14-cv-1156, Doc. No. 75). The District Court

designated the McCullough! case


ecug! as
cu! vjg! •ngcf! case"
the "lead ecug–! and
cpf! fktgevgf! cnn!
directed all

filings in the consolidated cases to be made on the docket for that case.

WWE filed motions to dismiss each case in which it was a defendant.

On March 21, 2016, the District Court issued a memorandum of

decision and order resolving the motions to dismiss in the Haynes case,

the McCullough case, and the Singleton case. See Memorandum of

Decision (Case No. 15-cv-1074, Doc. No. 116). The District Court

dismissed all the claims in the Haynes case and the McCullough case in

their entirety and dismissed all the claims in the Singleton case except

for a fraud by omission claim asserted by each of the plaintiffs in that

case. Id.

On April 20, 2016, Plaintiff in this case and the plaintiffs in the

McCullough case filed Notices of Appeal to this Court. WWE moved to

dismiss the appeals on the grounds that, under Hageman v. City

Investing Co., 851 F.2d 69 (2d Cir. 1988), there was a strong

presumption that a final decision in one consolidated case that did not

dispose of all of the consolidated cases was not appealable. In an

Yqtnf!
World Ytguvnkpi!
Wrestling Gpvo”v-!
Entm't, Kpe/!
Inc. cpf!
and Xkpegpv! M/! OeOcjqp
Vincent K McMahon, No. 3:16-cv-
1209 (VLB); and Yqtnf!
World Ytguvnkpi!
Wrestling Gpvo”v-!
Entm't, Kpe/!
Inc. x/!
v. Ykpfjco!
Windham et al., No.
4<26.ex.;;5!)XND*!)YYG”u!fgenctcvqt{.lwfiogpv!cevkqp*/!
3:15-cv-994 (VLB) (WWE's declaratory-judgment action).
3
Case 18-3278, Document 53, 11/16/2018, 2436141, Page5 of 15

opinion dated September 27, 2016, this Court agreed and dismissed the

appeals in this case and the McCullough case. See McCullough v.

World Wrestling Entertainment, Inc., 838 F.3d 210 (2d Cir. 2016).

Neither the Plaintiff in this case nor the plaintiffs in the McCullough

case filed a petition for rehearing or a petition for certiorari. On

October 20, 2016, this Court issued its mandate dismissing the appeals.

On March 27, 2018, the United States Supreme Court decided

Hall v. Hall, 138 S. Ct. 1118 (2018). In Hall, the Supreme Court held

that, in consolidated cases such as this one, a final decision in one of the

consolidated cases is immediately appealable. Id.

Following the Hall decision, Plaintiff in this case did not seek any

relief from this Court or take any other action with respect to his

previously dismissed appeal. Plaintiff did nothing as the other

consolidated cases proceeded in the District Court. On September 17,

2018, the District Court resolved the last of the cases by dismissing the

claims of the plaintiffs in that case in their entirety. On September 27,

2018, the District Court entered a judgment in the consolidated cases

on a separate document. On October 26, 2018, Plaintiff in this case

filed a new and untimely Notice of Appeal.

4
Case 18-3278, Document 53, 11/16/2018, 2436141, Page6 of 15

ARGUMENT

K/!
I. Rnckpvkhh”u!Qevqdgt!37-!3129!Pqvkeg!qh!Crrgcn!Ycu!Wpvkogn{
Plaintiff's October 26, 2018 Notice of Appeal Was Untimely.

On March 21, 2016, the District Court issued a memorandum of

decision and order dismissing this case but did not enter a separate

judgment document as required by Rule 58. Therefore, under Rule

58(c)(2), the judgment was deemed to have been entered no later than

150 days from the entry of the order granting the motion to dismiss on

vjg!
the Fkuvtkev!
District Eqwtv”u!
Court's fqemgv/!
docket. ! See Fed. R. Civ. P. 58(c)(2) (judgment

gpvgtu!
enters yjgp! •vjg! gctnkgt!
when "the qh! vjgug!
earlier of these gxgpvu! qeewtu<! )C*!
events occurs: kv! is
(A) it ku! ugv!
set qwv! kp! a
out in c!

separate document; or (B) 150 days have run from the entry in the civil

fqemgv–*=!
docket"); Villalobos v. N.Y. State Div. of Parole, 475 Fed. Appx. 400, 401

p/4!
n.3 )3f!
(2d Ekt/! 3123*! )•Yjgtg-!
Cir. 2012) ("Where, cu!
as jgtg-!
here, vjg!
the Fkuvtkev!
District Eqwtv! kuuwgu!cp!
Court issues qtfgt!
an order

granting a motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6) but does not memorialize that order in a formal

judgment, we deem judgment to have been entered 150 days after the

qtfgt!ku!gpvgtgf!kp!vjg!ekxkn!fqemgv/–*/!!Ceeqtfkpin{-!vjg!hkpcn!lwfiogpv!kp!
order is entered in the civil docket."). Accordingly, the final judgment in

this case is deemed to have been entered no later than August 18, 2016

(150 days from the entry in the civil docket on March 21, 2016).2

The fact that the District Court later issued a separate


2

judgment document on September 27, 2018 does not affect when the
5
Case 18-3278, Document 53, 11/16/2018, 2436141, Page7 of 15

A party must file a notice of appeal within 30 days after entry of

vjg!lwfiogpv/!!Ugg!Hgf/!T/!Crr/!R/!5)c*)2*)C*!)pqvkeg!qh!crrgcn!•owuv!dg!
the judgment. See Fed. R. App. P. 4(a)(1)(A) (notice of appeal "must be

filed with the district clerk within 30 days after entry of the judgment

qt!
or qtfgt!
order crrgcngf!htqo–*/!
appealed from"). ! Therefore,
Vjgtghqtg-! vjg!
the fgcfnkpg!
deadline hqt! hknkpi! a
for filing c! pqvkeg!qh!
notice of

appeal in this case was September 19, 2016 (30 days after the entry of

lwfiogpv!
judgment qp! Cwiwuv! 18,
on August 29-! 3127*/!
2016). ! Accordingly,
Ceeqtfkpin{-! Rnckpvkhh”u!
Plaintiff's pgy!
new Pqvkeg!
Notice qh!
of

Appeal filed on October 26, 2018 was untimely.

KK/!
II. Vjku!Eqwtv!Ncemu!Lwtkufkevkqp!Qxgt!Rnckpvkhh”u!Crrgcn!
This Court Lacks Jurisdiction Over Plaintiff's Appeal

Vjg!
The Uwrtgog!
Supreme Eqwtv”u!
Court's fgekukqp! kp! Hall mandates dismissal of the
decision in

new and untimely appeal filed by Plaintiff. In Hall, the Court squarely

ruled that each consolidated case must be analyzed individually to

final judgment was entered in this case because Rule 58(c)(2) provides
that judgment is entered on the earlier of the date that it is deemed
entered under Rule 58(c)(2)(B) or it is set out on a separate document.
See Fed. R. Civ. P. 58(c)(2); Uvgrjcpkg.Ectfqpc!NNE!x/!Uokvj”u!Hqqf!'!
Stephanie-Cardona LLC v. Smith's Food &
Drug Ctrs., Inc., 587!
476 H/4f!
F.3d 812-!
701, 815! );vj! Ekt/!
704 (9th Cir. 3118*! )•Vjg! twngu!
2007) ("The rules rnckpn{!
plainly
provide that judgment is entered when it is set forth on a separate
document or when 150 days have run, whichever is earlier. Because
more than 150 days passed before the district court, for whatever
reason, issued a judgment on a separate document, the 30 days in
which to file a notice of appeal had been running from . . . the end of
vjg! 261.fc{! rgtkqf/–*=!
the 150-day period."); Bolmer v. Oliveira, No. 3:06CV235(JBA), 2011
YN! 2886;98-! at
WL 1775987, cv! *2
+3! (D.
)F/! Eqpp/! Oc{! 10,
Conn. May 21-! 3122*! )•Vjg! yqtfkpi!
2011) ("The wording qh!
of Twng!
Rule
58(c)(2) . . . actually contemplates a scenario in which judgment is set
out in a separate document more than 150 days after the entry of
lwfiogpv!kp!vjg!ekxkn!fqemgv™lwfiogpv!ku!gpvgtgf!yjgp!“vjg!gctnkgt”!qh!
judgment in the civil docket—judgment is entered when 'the earlier' of
gkvjgt!c!ugrctcvg!fqewogpv!qt!vjg!rcuucig!qh!261!fc{u!qeewtu/–*/!
either a separate document or the passage of 150 days occurs.").
6
Case 18-3278, Document 53, 11/16/2018, 2436141, Page8 of 15

determine whether the Court has jurisdiction to consider the appeal of a

disposition of each individual case. See Hall,-!249!U/!Ev/!cv!2239!)•gcej!


138 S. Ct. at 1128 ("each

constituent case must be analyzed individually on appeal to ascertain

lwtkufkevkqp–*=!
jurisdiction"); id.!cv!2241.42!)gcej!ecug!•“owuv!dg!eqpukfgtgf!ugrctcvgn{!
at 1130-31 (each case "'must be considered separately

to determine whether this Court has jurisdiction to consider its

ogtkvu”–*/!!Vjg!Eqwtv!jgnf!vjcv!c!fgekukqp!eqorngvgn{!tguqnxkpi!qpg!qh!vjg!
merits"). The Court held that a decision completely resolving one of the

consolidated cases is an immediately appealable final judgment. See id.

cv! 2242! ("constituent


at 1131 )•eqpuvkvwgpv! cases
ecugu! tgvckp!
retain vjgkt!
their ugrctcvg! kfgpvkvkgu! at
separate identities cv! least
ngcuv! vq!
to

the extent that a final decision in one is immediately appealable by the

nqukpi! rctv{–*=!
losing party"); id.! )•yjgp!
("when qpg!
one qh!
of ugxgtcn! eqpuqnkfcvgf! cases
several consolidated ecugu! is
ku! finally
hkpcnn{!

decided, a disappointed litigant is free to seek review of that decision in

vjg!eqwtv!qh!crrgcnu–*/!!!
the court of appeals").

The fact that the District Court dismissed this case prior to Hall

makes no difference because the jurisdictional rule announced in Hall

applies both prospectively and retroactively. See Firestone Tire &

Rubber Co. v. Risjord,-! 55;!


449 W/U/!
U.S. 479-!
368, 48;!
379 )2;92*!
(1981) )•C! eqwtv! lacks
("A court ncemu!

discretion to consider the merits of a case over which it is without

jurisdiction, and thus, by definition, a jurisdictional ruling may never be

ocfg!
made rtqurgevkxg!
prospective qpn{/–*=!
only."); Sinoying Logistics Pte Ltd. v. Yi Da Xin

7
Case 18-3278, Document 53, 11/16/2018, 2436141, Page9 of 15

Trading Corp., 619 F.3d 207, 215 (2d Cir. 2010) (a rule applied to

rctvkgu! kp! a
parties in c! case
ecug! before
dghqtg! the
vjg! Uwrtgog!
Supreme Eqwtv! •ku! vjg!
Court "is eqpvtqnnkpi!
the controlling

interpretation of federal law and must be given full retroactive effect in

all cases still open on direct review and as to all events, regardless of

whether such events predate or postdate our announcement of the

twng/–*!)swqvkpi!Jctrgt!x/!Xc/!Fgr”v/!qh!Vczcvkqp-
rule.") (quoting Harper v. Va. Dep't. of Taxation, 509 U.S. 86, 97 (1993)).

Prior to Hall, both the Supreme Court and this Court have made

clear that the deadline for filing a notice of appeal is mandatory and

jurisdictional. See Bowles v. Russell, 662! W/U/! 205,


551 U.S. 316-! 31;!
209 )3118*!
(2007) )•Vjku!
("This

Court has long held that the taking of an appeal within the prescribed

vkog!ku!“ocpfcvqt{!cpf!lwtkufkevkqpcn/”–*=!
time is 'mandatory and jurisdictional."'); Weitzner v. Cynosure, Inc., 802

F.3d 307, 310 (2d Cir. 2015) (the time limit for filing a notice of appeal

ku!•lwtkufkevkqpcn–*/!!Oqtgqxgt-!vjcv!fgcfnkpg!ku!pqv!uwdlgev!vq!lwfkekcnn{.
is "jurisdictional"). Moreover, that deadline is not subject to judicially-

created equitable exceptions. See Bowles, 662!W/U/!cv!325!)•vjku!Eqwtv!


551 U.S. at 214 ("this Court

has no authority to create equitable exceptions to jurisdictional

tgswktgogpvu–*=!
requirements"); Franklin v. McHugh, 804 F.3d 627, 629 (2d Cir. 2015)

)•Nkmg!
("Like qvjgt!
other lwtkufkevkqpcn!
jurisdictional tgswktgogpvu-!
requirements, vjg!
the vkogn{! hknkpi! ocpfcvg!
timely filing ku!
mandate is

pqv!uwdlgev!vq!lwfkekcnn{!etgcvgf!gswkvcdng!gzegrvkqpu/–*/!
not subject to judicially created equitable exceptions.").

8
Case 18-3278, Document 53, 11/16/2018, 2436141, Page10 of 15

Vjg! hcev! that


The fact vjcv! the
vjg! Uwrtgog!
Supreme Eqwtv”u!
Court's fgekukqp!
decision kp!
in Hall announced a

ejcpig! in
change kp! vjku! ektewkv”u! law
this circuit's ncy! tgictfkpi!
regarding vjg! crrgcncdknkv{! qh!
the appealability eqpuqnkfcvgf!
of consolidated

cases does not permit this Court to entertain an untimely appeal over

which it lacks jurisdiction. See Budinich v. Becton Dickinson & Co., 486

W/U/! 2;7-! 203


U.S. 196, 314! )2;99*!
(1988) )•Tgictfnguu! qh! whether
("Regardless of yjgvjgt! vqfc{”u!
today's fgekukqp! yqtmu! a
decision works c!

ejcpig! ]kp!
change [in vjg! ncy_-! qwt!
the law], ecugu! hold
our cases jqnf! vjcv!
that “]c_!
la] eqwtv! ncemu! fkuetgvkqp!
court lacks discretion vq!
to

consider the merits of a case over which it is without jurisdiction, and

thus, by definition, a jurisdictional ruling may never be made

rtqurgevkxg!qpn{/”!!Ukpeg!vjg!Eqwtv!qh!Crrgcnu!rtqrgtn{!jgnf!rgvkvkqpgt”u!
prospective only.' Since the Court of Appeals properly held petitioner's

notice of appeal from the decision on the merits to be untimely, and

since the taking of an appeal within the prescribed time is mandatory

and jurisdictional, the Court of Appeals was without jurisdiction to

tgxkgy!
review vjg!
the fgekukqp!
decision qp!
on vjg!
the ogtkvu/–*!
merits.") )kpvgtpcn! ekvcvkqpu! qokvvgf*=!
(internal citations omitted);

Firestone Tire,-! 55;!


449 W/U/!
U.S. cv!
at 483˜84-!
372-73, 48;!
379 )jqnfkpi! vjcv! the
(holding that vjg! Gkijvj!
Eighth

Ektewkv”u!
Circuit's fgekukqp!
decision vq!
to tgcej!
reach vjg!
the ogtkvu!
merits qh!
of vjg! crrgcn! dgecwug!
the appeal kv! ycu!
because it was

qxgttwnkpi!rtkqt!ecugu!•qxgtnqqmu!vjg!hcev!vjcv!vjg!hkpcnkv{!tgswktgogpv!
overruling prior cases "overlooks the fact that the finality requirement

embodied in § 1291 is jurisdictional in nature. If the appellate court

finds that the order from which a party seeks to appeal does not fall

ykvjkp!vjg!uvcvwvg-!kvu!kpswkt{!ku!qxgt/–*/!
within the statute, its inquiry is over.").

9
Case 18-3278, Document 53, 11/16/2018, 2436141, Page11 of 15

Such jurisdictional deadlines are strictly applied even when

parties have claimed that the result was inequitable because they were

acting in reliance on a court order or on a precedent that was

subsequently overturned. See Bowles, 551 U.S. at 206-07, 214 (holding

vjcv!•rgvkvkqpgt”u!wpvkogn{!pqvkeg™gxgp!vjqwij!hkngf!kp!tgnkcpeg!wrqp!c!
that "petitioner's untimely notice—even though filed in reliance upon a

Fkuvtkev!
District Eqwtv”u!
Court's qtfgt™fgrtkxgf!
order—deprived vjg!
the Eqwtv!
Court qh! Crrgcnu! qh!
of Appeals of lwtkufkevkqp–!
jurisdiction"

cpf! •]k_h! tkiqtqwu!


and "[i]f rigorous twngu! nkmg! the
rules like vjg! qpg!
one crrnkgf!
applied vqfc{!
today ctg!
are vjqwijv!
thought vq! dg!
to be

inequitable, Congress may authorize courts to promulgate rules that

gzewug!eqornkcpeg!ykvj!vjg!uvcvwvqt{!vkog!nkokvu–*=!
excuse compliance with the statutory time limits"); U.S. ex rel. Haight v.

Catholic Healthcare W., 602 F.3d 949, 953 (9th Cir. 2010) (holding that

a notice of appeal was untimely filed under intervening Supreme Court

precedent even though the plaintiffs had reasonably relied on circuit

precedent at the time which would have considered the notice timely

dgecwug! vjg!
because crrgnncvg! court
the appellate eqwtv! was
ycu! bound
dqwpf! vq! hqnnqy! Uwrtgog!
to follow Supreme Eqwtv”u!
Court's

directive to apply its decision retroactively).

Ceeqtfkpin{-! this
Accordingly, vjku! Eqwtv! ncemu! lwtkufkevkqp!
Court lacks jurisdiction vq! eqpukfgt! Rnckpvkhh”u!
to consider Plaintiff's

untimely Notice of Appeal filed on October 26, 2018.

10
Case 18-3278, Document 53, 11/16/2018, 2436141, Page12 of 15

III. Plaintiff Did Not Take Any Action With Respect To His
Prior Appeal

Plaintiff also did not make any attempt to preserve his appellate

rights following dismissal of his prior appeal or in response to the Hall

decision. Plaintiff did not file a petition for rehearing or a petition for

certiorari after dismissal of his prior appeal despite the widespread

circuit split over whether a court had jurisdiction over an appeal from a

final decision in one of several consolidated cases.

After the Hall decision, Plaintiff took no action with respect to his

prior appeal. The Hall decision was issued on March 27, 2018. As of

the date of the filing of this motion, despite the passage of more than

230 days since the Hall decision, Plaintiff has made no effort to call the

Hall fgekukqp!vq!vjku!Eqwtv”u!cvvgpvkqp!qt!uggm!cp{!tgnkgh!htqo!vjku!Eqwtv!
decision to this Court's attention or seek any relief from this Court

with respect to the dismissal of his prior appeal.

By comparison, the longest period recognized under the Federal

Twngu! hqt!c!
Rules for a rctv{!vq!gzgtekug!vjgkt! crrgnncvg! tkijvu!
party to exercise their appellate ku!291!
rights is 180 fc{u™yjgp-!
days—when,

in the absence of a separate judgment, a party has 30 days to appeal

after the end of the 150-day period from the entry on the docket. See

Fed. R. App. P. 4(a)(1) (30 days to appeal after entry of the judgment);

Fed. R. Civ. P. 58(c)(2)(B) (in the absence of a separate document,

11
Case 18-3278, Document 53, 11/16/2018, 2436141, Page13 of 15

lwfiogpv!
judgment gpvgtu! yjgp! "150
enters when •261! fc{u!
days jcxg!
have twp! htqo! vjg!
run from the gpvt{! kp! vjg!
entry in ekxkn!
the civil

fqemgv–*/!
docket"). ! Accordingly,
Ceeqtfkpin{-! the
vjg! appellate
crrgnncvg! twngu!
rules guvcdnkuj!
establish cp! qwvgt! limit
an outer nkokv! on
qp!

the time to appeal and establish that a diligent party must take an

appeal within 180 days once entitled to appeal. If a party has waited

more than the longest period under the appellate rules to take any

action with respect to a previously dismissed appeal, then that party

clearly has not acted diligently.

Rnckpvkhh”u! eqwpugn”u! ncem!


Plaintiff's counsel's lack qh!
of fknkigpeg! ecppqv! be
diligence cannot dg! gzewugf! d{! any
excused by cp{!

encko!vjcv!vjg{!ygtg!wpcyctg!qh!vjg!Uwrtgog!Eqwtv”u!fgekukqp!kp!
claim that they were unaware of the Supreme Court's decision in Hall.

Any professed ignorance of the law or the rules provides no justification

for their failure to act diligently. See Weinstock v. Cleary, Gottlieb,

Steen & Hamilton, 16 F.3d 501, 503 (2d Cir. 1994) (affirming denial of

extension where delay was due to a misunderstanding of the rules);

United States v. Hooper, 43 F.3d 26, 29 (2d Cir. 1994) (affirming

fgvgtokpcvkqp!vjcv!fghgpfcpv”u!hcknwtg!vq!vkogn{!hkng!pqvkeg!qh!crrgcn!fwg!
determination that defendant's failure to timely file notice of appeal due

vq!kipqtcpeg!qh!vjg!fgcfnkpg!ycu!pqv!•gzewucdng!pgingev–*/!!
to ignorance of the deadline was not "excusable neglect").

This lack of diligence is further underscored by the fact that

Rnckpvkhh! kp! vjku!


Plaintiff in ecug! was
this case ycu! pqv!
not qpn{!
only tgrtgugpvgf! d{! Attorney
represented by Cvvqtpg{! M{tqu™jg!
Kyros—he

was represented by at least ten lawyers from six different law firms.

12
Case 18-3278, Document 53, 11/16/2018, 2436141, Page14 of 15

Plaintiff cannot claim diligence when, in the more than seven months

since the Supreme Court decided Hall, none of his many lawyers made

vq!vjku!Eqwtv”u!cvvgpvkqp!qt!vq!uggm!cp{!tgnkgh!ykvj!
any effort to call Hall to this Court's attention or to seek any relief with

respect to his prior appeal. Instead, this group of lawyers filed a new

and patently untimely notice of appeal on October 26, 2018.

CONCLUSION

Hqt! vjg! tgcuqpu!


For the ugv! forth
reasons set hqtvj! above,
cdqxg-! vjg!
the Eqwtv!
Court ujqwnf!
should itcpv!
grant YYG”u!
WWE's

motion and dismiss this appeal for lack of appellate jurisdiction.

November 16, 2018 Respectfully submitted,

David R. Fine /s / Jerry S. McDevitt


K&L GATES LLP Jerry S. McDevitt
17 North Second St., 18th Fl. Curtis B. Krasik
Harrisburg, PA 17101 K&L GATES LLP
(717) 231-4500 K&L Gates Center
210 Sixth Avenue
Jeffrey P. Mueller Pittsburgh, PA 15222
DAY PITNEY LLP (412) 355-6500
242 Trumbull Street
Hartford, CT 06103
(860) 275-0100

Counsel for Appellee World Wrestling Entertainment, Inc.

13
Case 18-3278, Document 53, 11/16/2018, 2436141, Page15 of 15

CERTIFICATE OF SERVICE

I certify that, on November 16, 2018, I filed the attached motion


ykvj! vjg!
with the Eqwtv”u!GEH! u{uvgo! such
Court's ECF system uwej! that
vjcv! all
cnn! counsel
eqwpugn! will
yknn! tgegkxg! ugtxkeg!
receive service

automatically.

/s / Jeffrey P. Mueller