B. John Casey, OSB No. 120025 K&L GATES LLP Portland, …media.oregonlive.com/portland_impact/other/WWE motion to dismiss.pdf · B. John Casey, OSB No. 120025 Email: ... Bates v

B. John Casey, OSB No. 120025 Email: [email protected] K&L GATES LLP One SW Columbia Street Suite 1900 Portland, OR 97258 Telephone: 503.228.5716 Facsimile: 503.248.9085 Jerry S. McDevitt (pro hac vice) Email: [email protected] Curtis B. Krasik (pro hac vice) Email: [email protected] K&L GATES LLP K&L Gates Center 210 Sixth Avenue Pittsburgh, PA 15222 Telephone: 412.355.8696 Facsimile: 412.355.6501 Attorneys for Defendant World Wrestling Entertainment, Inc.

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

WILLIAM ALBERT HAYNES III, individually and on behalf of all others similarly situated, Plaintiffs, vs. WORLD WRESTLING ENTERTAINMENT, INC., Defendants.

) ) ) ) ) ) ) ) ) ) ) )

Case No: 3:14-cv-01689-ST

DEFENDANT WORLD WRESTLING ENTERTAINMENT, INC.’S MOTION TO DISMISS AND SUPPORTING MEMORANDUM OF LAW ORAL ARGUMENT REQUESTED

Case 3:14-cv-01689-ST Document 44 Filed 03/31/15 Page 1 of 47

mailto:[email protected]



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K&L GATES LLP ONE SW COLUMBIA STREET

SUITE 1900 PORTLAND, OR 97258

TELEPHONE: (503) 228-3200

TABLE OF CONTENTS

Page

MOTION TO DISMISS ....................................................................................................................1

INTRODUCTION .............................................................................................................................1

II. ARGUMENT .........................................................................................................................4

A. Motion to Dismiss Standard.......................................................................................4

B. All Claims Are Time Barred ......................................................................................6

1. All Claims of Negligence (Counts 2, 3, 4, and 6) Are Time Barred .............6

a. Plaintiff Cannot Rely on the Discovery Rule to Shield His Claims from Dismissal under the Statute of Limitations, ORS 12.110(1) .....7

b. Haynes’ Negligence Claims Are Also Barred by the Statute of Repose, ORS 12.115 ..........................................................................9

2. The Medical Malpractice Claim (Count 5) is Time Barred ...........................11

3. The Claim That WWE Is Strictly Liable (Count 7) Is Time Barred by Both ORS 12.110(1) and Also by Either ORS 12.115 or 12.140 ...........................12

4. The Fraudulent Concealment Claim (Count 1) Is Barred by ORS 12.110(1) and ORS 12.115 ............................................................................14

5. Haynes’ Claim for Declaratory and Injunctive Relief of (Count 3) Is Time Barred .............................................................................................................15

6. Haynes Has No Tolling Doctrine to Avoid Limitations or Oregon’s Repose Statute ................................................................................................16

C. Haynes’ Fraud Claim (Count 1) Fails to State a Claim .............................................19

1. Haynes Fails to Plead Any Affirmative Misrepresentation Made to Him .....19

2. Haynes Fails to Plead Any Special Relationship Giving Rise to a Duty to Speak Regarding the Medical Consequences of Brain Injury .......................20

3. Haynes Fails to Plead Fraudulent Concealment with Particularity ...............21

4. Haynes’ Systematic Failure to Comply with Rule 9(b) Should Not be Countenanced by the Court ............................................................................21

D. The Medical Negligence Claim (Count 5) Should Be Dismissed Because Haynes Does Not Allege a Physician-Patient Relationship ....................................................23

E. The Medical Monitoring Claim (Count 6) Should Be Dismissed Because It Is Not a Recognized Cause of Action in Oregon ..................................................................24

F. The Claim for Declaratory and Injunctive Relief (Count 3) Should Be Dismissed ..25

G. The Claim Alleging Strict Liability for Abnormally Dangerous Activity (Count 7) Fails to State a Claim .................................................................................................27


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H. This Court Lacks Personal Jurisdiction over WWE for Each of the Pled Claims .....29

1. The Complaint Fails to Allege Any Facts Demonstrating That the Court Has Personal Jurisdiction Over WWE ...........................................................29

2. Standard of Review ........................................................................................30

a. Plaintiff Has Not Alleged That WWE Has Purposefully Availed Itself of the Privilege of Conducting Activities in Oregon ................31

b. Plaintiff Has Also Not Alleged That Each of His Claims Arise Out of or Relate to Any Contacts by WWE within Oregon .....................33

c. Exercising Jurisdiction Over WWE Would Be Unfair and Unreasonable......................................................................................33

3. Because the Court Lacks Personal Jurisdiction Over WWE, Plaintiff’s Complaint Must Also Be Dismissed for Insufficiency of Service of Process ...........................................................................................................35

III. CONCLUSION ......................................................................................................................35


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TABLE OF AUTHORITIES

Page(s)

Federal Cases

Acme Fill Corp. v. Althin CD Med., Inc., No. C 91-4268 MCC, 1995 WL 822665 (N.D. Cal. Oct. 16, 1995) ........................................16

Ajinomoto N. Am., Inc. v. Pine Valley, Inc., No. 3:14–cv–00293–BR, 2014 WL 3349649 (D. Or. July 8, 2014) ........................................33

Estate of Amaro v. City of Oakland, 653 F. 3d 808 (9th Cir. 2011) ..................................................................................................17

Amoco Egypt Oil Co. v. Leonis Nav. Co., Inc., 1 F. 3d 848 (9th Cir. 1993) ..........................................................................................30, 32, 33

Bancroft & Masters, Inc. v. Augusta Nat’l, Inc., 223 F. 3d 1082 (9th Cir. 2000) ...............................................................................................31

Bates v. Bankers Life & Cas. Co., 993 F. Supp. 2d 1318 (D. Or. 2014) ..........................................................................4, 6, 30, 31

Benson Tower Condo. Owners Ass’n v. Victaulic, 22 F. Supp. 3d 1126 (D. Or. 2014) ..........................................................................5, 19, 20, 21

Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491 (1942) .................................................................................................................26

Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729 (2011) .......................................................................................................27, 28

Buggsi, Inc. v. Chevron U.S.A., Inc., 857 F. Supp. 1427 (D. Or. 1994) .............................................................................................28

Butcher’s Union Local No. 498, United Food & Commercial Workers v. SDC Inv., Inc., 788 F. 2d 535 (9th Cir. 1986) ............................................................................................31, 32

Calista Enters. Ltd. v. Tenza Trading Ltd., No. 3:13-cv-01045-SI, 2014 WL 3695487 (D. Or. July 24, 2014)..........................................26

Cardiello v. The Money Store, Inc., No. 00 CIV. 7332 (NRB), 2001 WL 604007 (S.D.N.Y. June 1, 2001) aff’d sub nom. 29 F. App’x 780 (2d Cir. 2002) ......................................................................................17


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Cereghino v. Boeing Co., 826 F. Supp. 1243 (D. Or. 1993) .............................................................................5, 10, 11, 16

Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034 (9th Cir. 2011) .................................................................................................23

Conmar Corp. v. Mitsui & Co., 858 F. 2d 499 (9th Cir. 1988) ..............................................................................................9, 17

Coppinger-Martin v. Solis, 627 F. 3d 745 (9th Cir. 2010) ..............................................................................................5, 17

Dayco Corp. v. Goodyear Tire & Rubber Co., 523 F. 2d 389 (6th Cir. 1975) ....................................................................................................9

Deutsch v. Turner Corp., 324 F.3d 692 (9th Cir. 2003) ...................................................................................................23

Evans v. Rudy-Luther Toyota, Inc., 39 F. Supp. 2d 1177 (D. Minn. 1999) ......................................................................................18

Fed. Deposit Ins. Corp. v. British-American Ins. Co., 828 F. 2d 1439 (9th Cir. 1987) ................................................................................................34

Frevach Land Co. v. Multnomah Cnty., No. CV-99-1295-HU, 2000 WL 1875839 (D. Or. Dec. 21, 2000) ..........................................15

Gilbert v. City of Cambridge, 932 F. 2d 51 (1st Cir. 1991) .....................................................................................................15

Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F. 3d 1114 (9th Cir. 2002) ................................................................................................32

Huber v. McElwee-Courbis Const. Co., 392 F. Supp. 1379 (E.D. Pa. 1974) ..........................................................................................18

Jablon v. Dean Witter & Co., 614 F. 2d 677 (9th Cir. 1980) ....................................................................................................5

Kearns v. Ford Motor Co., 567 F. 3d 1120 (9th Cir. 2009) ................................................................................................22

Kellogg Square P’ship v. Prudential Ins. Co. of Am., 63 F. 3d 699 (8th Cir. 1995) ....................................................................................................20

Levald, Inc. v. City of Palm Desert, 998 F. 2d 680 (9th Cir. 1993) ..................................................................................................15


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Levy v. World Wrestling Entm’t, Inc., Civil Action No. 3:08-01289 (PCD), 2009 WL 455258 (D. Conn. Feb. 23, 2009) ..........................................................................................................................................9

Manantan v. Nat’l City Mortg., No. C-11-00216 CW, 2011 WL 3267706 (N.D. Cal. July 28, 2011) ......................................15

Maughan v. SW Servicing, Inc., 758 F. 2d 1381 (10th Cir. 1985) ................................................................................................9

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Young, No. 91 Civ. 2923, 1994 WL 88129 (S.D.N.Y. Mar. 15, 1994) .................................................9

Naas v. Stolman, 130 F.3d 892 (9th Cir. 1997) ...................................................................................................23

Nat’l Auto. & Cas. Ins. Co. v. Mt. Pitt Co., 234 F. Supp. 477 (D. Or. 1964) ...............................................................................................28

Norcom v. Lease Fin. Grp., LLC, No. 3:13–CV–2252–KI, 2014 WL 2747652 (D. Or. June 17, 2014) ......................................31

Oil Pad Solutions, LLC v. Parsons, No. 03:12–cv–01917–HZ, 2013 WL 1946743 (D. Or. May 8, 2013) .....................................31

Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F. 3d 267 (9th Cir. 1995) ........................................................................................30, 31, 32

Osako v. Crowne Plaza Hotel, No. CV-10-1446-ST, 2011 WL 3704175 (D. Or. Apr. 21, 2011) .........................................4, 5

Paulsell v. Cohen, No. CV-00-1175-ST, 2001 WL 34039105 (D. Or. Aug. 31, 2001) ..............................7, 20, 21

Philpott v. A. H. Robins Co., 710 F. 2d 1422 (9th Cir. 1983) ................................................................................................17

Platt Elec. Supply, Inc. v. EOOF Elec., Inc., 522 F.3d 1049 (9th Cir. 2008) .................................................................................................23

Principal Life Ins. Co. v. Robinson, 394 F. 3d 665 (9th Cir. 2005) ..................................................................................................26

Robertson v. Wells Fargo Home Mortgage, No. 10-CV-1110-BR, 2011 WL 5157772 (D. Or. Oct. 28, 2011) ...........................................23


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S.E.C. v. Ross, 504 F. 3d 1130 (9th Cir. 2007) ................................................................................................35

Sanford v. Maid-Rite Corp., Civil No. 13-2250, 2014 WL 1608301 (D. Minn. Apr. 21, 2014) ...........................................22

Schroll v. Plunkett, 760 F. Supp. 1385 (D. Or. 1991) aff’d, 932 F. 2d 973 (9th Cir. 1991) ..............................31, 32

Smith v. Questar Capital Corp., No. 12-cv-2669, 2013 WL 3990319 (D. Minn. Aug. 2, 2013) ................................................22

Solano v. America’s Servicing Co., No. 2:10-CV-02426-GEB, 2011 WL 4500874 (E.D. Cal. Sept. 27, 2011) .............................23

In re Swine Flu Products Liab. Litig., 764 F. 2d 637 (9th Cir. 1985) ....................................................................................................7

Terracom v. Valley Nat’l Bank, 49 F. 3d 555 (9th Cir. 1995) ..............................................................................................33, 34

Thiring v. Borden, No. 06-759-AA, 2007 WL 1875656 (D. Or. June 27, 2007) ...................................................33

TRM Corp. v. Paulsell, No. CV-02-215-ST, 2002 WL 31549112 (D. Or. June 4, 2002) .........................................5, 18

Trooien v. Mansour, Civil No. 06-3197, 2007 WL 436068 (D. Minn. Feb. 7, 2007) aff’d 608 F. 3d 1020 (8th Cir. 2010) .................................................................................................................22

Volk v. D.A. Davidson & Co., 816 F. 2d 1406 (9th Cir. 1987) ............................................................................................5, 17

Walden v. Fiore, 134 S.Ct. 1115 (2014) ........................................................................................................31, 32

Wolph v. Acer Am. Corp., No. C 09-01314 JSW, 2009 WL 2969467 (N.D. Cal. Sept. 14, 2009) ....................................20

Yahoo! Inc. v. La Ligue Contre Le Racisme, 433 F. 3d 1199 (9th Cir. 2006) ................................................................................................31

Yourish v. California Amplifier, 191 F. 3d 983 (9th Cir. 1999) ..............................................................................................5, 19


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State Cases

Beals v. Breeden Bros., Inc. 113 Or. App. 566, 833 P. 2d 348 (Or. Ct. App. 1992) rev. denied 314 Or. 727, 843 P. 2d 454 (1992) ......................................................................................................5, 11, 16

Bedell v. Guoulter, 199 Or. 344, 261 P. 2d 842 (1953) ..........................................................................................28

Bella v. Aurora Air, Inc., 279 Or. 13, 566 P. 2d 489 (1977) (en banc) ............................................................................28

Berry v. Branner, 245 Or. 307, 421 P. 2d 996 (1966) ......................................................................................6, 10

Berry v. Greater Park City Co., 2007 UT 87, 171 P. 3d 442 ......................................................................................................29

Brooks v. Dierker, 275 Or. 619, 552 P. 2d 533 (1976) ..........................................................................................15

Bury v. N. Outfitters, LLC, No. 06-3081-PA, 2007 WL 1431958 (D. Or. May 14, 2007)..................................................34

Cavan v. Gen. Motors Corp., 280 Or. 455, 571 P. 2d 1249 (1977) ............................................................................10, 13, 27

Delay v. Marathon LeTourneau Sales & Service Co., 291 Or. 310, 630 P.2d 836 (1981) .................................................................................6, 10, 11

Duncan v. Augter, 286 Or. 723, 596 P.2d 555 (1979) (en banc) .......................................................................6, 11

Gaston v. Parsons, 318 Or. 247, 864 P.2d 1319 (1994) .........................................................................................11

Gregory v. Novak, 121 Or. App. 651, 855 P. 2d 1142 (Or. Ct. App. 1993) .....................................................19, 20

Huycke v. Latourette, 215 Or. 173, 332 P. 2d 606 (1958) (en banc) ................................................................5, 14, 18

Johnson v. Star Mach. Co., 270 Or. 694, 530 P. 2d 53 (1974) (en banc) ................................................................10, 12, 13


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Josephs v. Burns, 260 Or. 493, 491 P. 2d 203 (1971), overruled on other grounds by Smothers v. Gresham Transfer, Inc., 332 Or. 83, 23 P. 3d 333 (2001) ..................................................................................................................................6, 10, 14, 18

Koos v. Roth, 293 Or. 670, 652 P. 2d 1255 (1982) ..................................................................................28, 29

Krahmer v. Christie’s Inc., 911 A.2d 399 (Del. Ch. 2006)..................................................................................................17

Logan Mfg. Co. v. Bradley, 476 S.W.2d 819 (Ky. Ct. App. 1972) ......................................................................................18

Lowe v. Philip Morris USA, Inc., 344 Or. 403, 183 P. 3d 181 (2008) ..........................................................................................25

McGregor v. Barton Sand & Gravel, Inc., 62 Or. App. 24, 660 P. 2d 175 (Or. Ct. App. 1983) .................................................................28

McLane v. Northwest Natural Gas, 255 Or. 324, 467 P. 2d 635 (1970) ..........................................................................................28

Mead v. Legacy Health Sys., 352 Or. 267, 283 P.3d 904 (2012) ...........................................................................................23

Ogan v. Ellison, 297 Or. 25, 682 P. 2d 760 (1984) (en banc) ............................................................................19

Oregon Life & Health Ins. Guaranty Ass’n v. Inter-Regional Fin. Grp., Inc., 156 Or. App. 485, 967 P. 2d 880 (Or. Ct. App. 1998) .....................................................6, 7, 14

Oregon Public Emps. Ret. Bd. v. Simat, Helliesen & Eichner, 191 Or. App. 408, 83 P. 3d 350 (Or. Ct. App. 2004) ...............................................................19

Paul v. Providence Health System-Oregon, 351 Or. 587, 273 P. 3d 106 (2012) ..........................................................................................25

Pullen v. West, 278 Kan. 183, 92 P. 3d 584 (2004) ..........................................................................................29

Salem Sand & Gravel Co. v. City of Salem 260 Or. 630, 492 P. 2d 271 (1971) ............................................................................................5

Schiele v. Hobart Corp., 284 Or. 483, 587 P. 2d 1010 (1978) ..........................................................................................7


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Sullenger for Sullenger v. Setco Nw., Inc., 74 Or. App. 345, 702 P.2d 1139 (1985).............................................................................23, 24

Urbick v. Suburban Medical Clinic, Inc., 141 Or. App. 452, 918 P.2d 453 (Or. Ct. App. 1996) ..............................................................11

Withers v. Milbank, 67 Or. App. 475, 678 P. 2d 770 (Or. Ct. App. 1984) ...............................................................10

Federal Statutes

28 U.S.C. § 2201 ............................................................................................................................26

State Statutes

ORS 12.110 ............................................................................................................................ passim

ORS 12.115 ............................................................................................................................ passim

ORS 12.140 ..............................................................................................................................12, 13

Rules

Fed. R. Civ. P. 4(k) ..................................................................................................................29, 35

Fed. R. Civ. P. 9(b) ................................................................................................................ passim

Fed. R. Civ. P. 12(b) ............................................................................................................1, 29, 35

Fed. R. Civ. P. 45(c) ......................................................................................................................34

Or. R. Civ. P. 4 ...............................................................................................................................30

Other Authorities

57A Am Jur. 2d Negligence § 390.................................................................................................29

Restatement (Second) of Torts § 520.............................................................................................29


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LR-7-1 CERTIFICATION

Pursuant to LR-7-1, Defendant’s counsel certify that they made a good faith effort to

resolve the issues presented by this Motion, but were unable to do so.

MOTION TO DISMISS

Defendant World Wrestling Entertainment, Inc. (“WWE”) moves the Court for an order

dismissing this action pursuant to Fed. R. Civ. Pro. 12(b)(6), 9(b), and 12(b)(2). This motion is

based on the memorandum of points and authorities herein, the Declaration of B. John Casey,

and the Affidavit of James Langham.

MEMORANDUM OF LAW

INTRODUCTION

Plaintiff William Haynes (“Haynes” or “Plaintiff”) is a former professional wrestler who

brings this personal injury action (a) over 26 years after his brief relationship with WWE ended,

and (b) in a jurisdiction that has no substantive connection to the dispute. Haynes’ Complaint is

time-barred and substantively deficient, and the Court lacks personal jurisdiction over WWE.

Defendant’s counsel advised Plaintiff’s counsel of these facts – including the existence of

Oregon’s 10-year statute of ultimate repose – during a meet and confer call in December 2014.

Plaintiff’s counsel requested that WWE not file a motion to dismiss in order for Plaintiff to

amend the Complaint. Haynes thereafter did amend his Complaint. Rather than withdraw any of

his time-barred and otherwise deficient claims, Haynes added a new medical malpractice claim

that is also plainly time-barred and substantively deficient.

Haynes alleges that he performed for WWE in the prior century, specifically from 1986

to 1988. Am. Compl. ¶ 122. Although he originally claimed to have sustained “at least 15

concussions” (Compl., ¶ 131), Haynes now claims that he sustained an unspecified number of

“concussive or sub-concussive blows” while he wrestled. He does not squarely allege the

number of concussions he sustained during his stint with WWE, if any. Am. Compl. ¶ 123.

Haynes squarely does admit, however, that “the debilitating effects of receiving repeated blows





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to the head have long been known.” Id. ¶ 3. As a result of alleged head trauma, he alleges that

he suffers from depression and exhibits unspecified “symptoms of dementia.” Id. ¶ 131.

According to Haynes, this lawsuit concerns head injuries, principally traumatic brain

injuries (“TBIs”) and chronic traumatic encephalopathy (“CTE”) to former and current wrestlers.

Id. ¶ 25. Haynes admits that CTE is a condition that was not diagnosed in any professional

wrestler until the well-publicized death of Chris Benoit in 2007, some 19 years after Haynes’

relationship with WWE ended. Id. ¶¶ 28, 74. The thrust of Haynes’ lawsuit is that WWE

concealed from him, in ways never explained, the medical science regarding the risks of

repetitive head trauma – which he at the same time admits have long been known.

Haynes offers no explanation for the staleness of his claim. He pleads no diligence on his

part for the last two and one-half decades. Instead, Haynes makes the conclusory allegation that

his injuries were not detectable until manifestation and that he was unable to discover his injuries

until being diagnosed. Id. ¶ 139. Haynes does not allege when he was diagnosed with

depression or dementia, or even that he has been so diagnosed. He does not plead the date he

finally discovered his injuries or his claims. Realizing the staleness of his lawsuit, Haynes offers

one conclusory sentence seeking to estop WWE from invoking obviously applicable limitations

– that WWE “knew that the Plaintiff and Class were suffering concussions during and prior to

their careers and concealed that materials [sic] information from Plaintiff and all WWE

wrestlers.” Id. ¶ 140.

Haynes attempts to state seven claims due to his alleged head injuries. In the first count,

he asserts “Fraudulent Concealment and Failure to Disclose or Warn,” but does not allege any

misrepresentation to him or actual concealment from him of anything with the particularity

required to plead fraud. He makes only a handful of generalized allegations against WWE

regarding actions or omissions as to him which do not come close to fraud: (i) WWE and its

employees never “advised [Haynes] to seek treatment” and “discouraged Haynes from seeking

appropriate outside medical care,” and (ii) WWE never warned him about the admittedly known





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risks of sustaining numerous blows to the head. Id. ¶¶ 124-125. These allegations do not state a

claim.

Counts 2, 4 and newly asserted Count 5 are explicitly labelled negligence counts. Count

3 seeks an oxymoronic declaration that “[WWE] negligently injured [Haynes] with conduct that

was intentional or negligent.” Id. ¶ 163. Count 6 seeks to require WWE to establish a trust fund

for medical monitoring to determine whether Haynes and other WWE performers have suffered

head injuries. Count 7 seeks to impose strict liability on WWE because Haynes now

characterizes his profession as an abnormally dangerous activity. The Court should dismiss the

lawsuit in its entirety for several reasons.

First, and most fundamentally, all the claims are untimely. Any concussions that Haynes

sustained while performing for WWE had to occur between 1986-1988. All of the claims are

covered by ORS 12.110(1), which is a two-year limitations period. There are no tolling

doctrines available to Haynes to prevent the running of the two-year limitations period applicable

to all his claims, and Haynes’ own Complaint establishes that reasonable due diligence would

have revealed his claims long ago. Moreover, all of the negligence claims, and arguably all of

his tort claims, are also subject to Oregon’s statute of ultimate repose, ORS. 12.115, which bars

any action brought more than ten years “from the date of the act or omission complained of.”

Critically, equitable estoppel principles such as fraudulent concealment have no application to

the Oregon repose statute as a matter of law.

Second, the declaratory judgment count is duplicative of the other negligence counts in

the Complaint, and Haynes lacks standing to present an actual case or controversy regarding

WWE’s business practices now or at any time since he last performed in 1988.

Third, medical monitoring is not a separate cause of action in Oregon.

Fourth, Oregon has never extended the doctrine of strict liability for ultra-hazardous

activity to any entertainment activities and could not do so without violating the First





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Amendment. Oregon also has not extended the protection from such activities to those actually

engaged in such activities.

Fifth, Haynes’ substantive fraud claim is not pled with the requisite particularity. The

Complaint does not plead the neutral facts required of a misrepresentation claim, failing to allege

a single representation ever made to Haynes, much less a representation that was false when

made. The Complaint further fails to plead any special relationship as is necessary to support a

fraud by omission claim. The Complaint fails to allege that WWE concealed the publicly

available information regarding the harmful effects of repetitive head trauma cited by Haynes in

his Complaint.

Sixth, Haynes’ new “medical negligence” claim is substantively defective because he has

not alleged a physician-patient relationship with the WWE.

Lastly, Haynes has failed to plead any basis to assert personal jurisdiction over WWE in

Oregon for each of the claims made here, as required by law. Haynes has not alleged that any

injury to him was inflicted in Oregon, nor has he alleged with particularity any act or omission of

WWE which occurred in Oregon.

II. ARGUMENT A. Motion to Dismiss Standard

To survive a motion to dismiss, a complaint must contain affirmative factual content that

allows the court to determine that the defendant is liable for the misconduct if the allegations are

proven. In making that assessment, legal conclusions are to be disregarded. Bates v. Bankers

Life & Cas. Co., 993 F. Supp. 2d 1318, 1327-28 (D. Or. 2014). The court can consider not only

the adequacy of the allegations, but also documents which are incorporated by reference into the

complaint and matters capable of judicial notice. Osako v. Crowne Plaza Hotel, No. CV-10-

1446-ST, 2011 WL 3704175, at *1 (D. Or. Apr. 21, 2011).

Haynes must satisfy even more exacting pleading standards when alleging fraud, either as

a substantive count or as a tolling mechanism. To state a substantive fraud claim, he must not

only plead the “neutral facts,” which involve the who, what, when, where and how issues giving





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context to an alleged misrepresentation, but must also explain why a statement was untrue and

misleading when made and why any omission was false and misleading. Yourish v. California

Amplifier, 191 F. 3d 983, 993 (9th Cir. 1999); Benson Tower Condo. Owners Ass’n v. Victaulic,

22 F. Supp. 3d 1126, 1131-32 (D. Or. 2014) (“a party alleging fraud must include ‘the who,

what, when, where, and how of the misconduct charged’” and must plead “why the statement or

omission complained of was false or misleading”).

Limitations can be raised on a motion to dismiss when the running of the statute is

apparent on the face of the complaint, as is the case here. Osako, 2011 WL 3704175 at *2 (citing

Jablon v. Dean Witter & Co., 614 F. 2d 677, 682 (9th Cir. 1980)). To avoid dismissal due to the

two-year limitation period by reliance on fraudulent concealment principles, Haynes must allege

some active conduct by WWE, above and beyond the alleged wrongdoing upon which the claim

is based, which prevented him from suing in time. Coppinger-Martin v. Solis, 627 F. 3d 745,

751-52 (9th Cir. 2010). Fraud claims filed more than two years after the allegedly fraudulent

activity must be supported by factual allegations showing the reasons for the delay in discovering

the alleged fraud, and negating the lack of diligence in discovering it earlier. Huycke v.

Latourette, 215 Or. 173, 176-77, 332 P. 2d 606, 608-09 (1958) (en banc); Salem Sand & Gravel

Co. v. City of Salem, 260 Or. 630, 637, 492 P. 2d 271, 275 (1971); TRM Corp. v. Paulsell, No.

CV-02-215-ST, 2002 WL 31549112, at *2 (D. Or. June 4, 2002). See also Volk v. D.A.

Davidson & Co., 816 F. 2d 1406, 1415-16 (9th Cir. 1987) (to invoke the fraudulent concealment

doctrine, “[plaintiff] must plead with particularity the facts giving rise to the fraudulent

concealment claim and must establish that they used due diligence in trying to uncover the

facts.”). Although fraudulent concealment principles can theoretically toll the two-year

limitations period, Oregon does not permit equitable tolling principles to avoid Oregon’s 10-year

statute of ultimate repose. Cereghino v. Boeing Co., 826 F. Supp. 1243, 1248 (D. Or. 1993);

Beals v. Breeden Bros., Inc. 113 Or. App. 566, 572, 833 P. 2d 348, 350, (Or. Ct. App. 1992) rev.

denied 314 Or. 727, 843 P. 2d 454 (1992).





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It is Haynes’ burden to establish that personal jurisdiction is proper. Bates, 993 F. Supp.

2d at 1327. He must do so for each of the separate causes of action pled. Id. at 1335. The court

may consider affidavits in its jurisdictional determination. If the court decides the jurisdictional

issue without an evidentiary hearing and on the basis of the pleadings and affidavits submitted by

the parties, Haynes is obligated to make a prima facie showing of jurisdictional facts.

B. All Claims Are Time Barred

1. All Claims of Negligence (Counts 2, 3, 4, and 6) Are Time Barred

There are two statutes which operate to bar all the negligence claims asserted by Haynes.

First, ORS 12.110(1) explicitly provides that any action for any injury to the person not arising

under contract shall be commenced within two years, provided that in an action for fraud the

limitations shall commence only from discovery of the fraud. Although the text of ORS

12.110(1) specifies that fraud claims accrue on discovery, the Oregon Supreme Court has also

engrafted the discovery rule into the statute for negligence claims. See Berry v. Branner, 245 Or.

307, 309, 421 P. 2d 996, 997 (1966); Oregon Life & Health Ins. Guaranty Ass’n v. Inter-

Regional Fin. Grp., Inc., 156 Or. App. 485, 492, 967 P. 2d 880, 883 (Or. Ct. App. 1998). Thus,

all of Haynes’ negligence claims are subject to a two-year limitation and the discovery rule.

The second statute which operates to bar all negligence claims is the statute of ultimate

repose in ORS 12.115. The repose statute bars any action for negligent injury if not commenced

within 10 years from the date of the act or omission complained of. ORS 12.115 provides an

overall maximum upper limit on the time within which a tort action can be brought regardless of

the date of discovery. Josephs v. Burns, 260 Or. 493, 498, 491 P. 2d 203, 205 (1971), overruled

on other grounds by Smothers v. Gresham Transfer, Inc., 332 Or. 83, 23 P. 3d 333 (2001); see

also Duncan v. Augter, 286 Or. 723, 727 n.3, 596 P.2d 555 (1979) (en banc) (“[T]he maximum

time to commence an action is limited by ORS 12.115(1)”); Delay v. Marathon LeTourneau

Sales & Service Co., 291 Or. 310, 315, 630 P.2d 836, 839 (1981) (noting that ORS 12.115(1) is a

statute of ultimate repose which “cannot be extended regardless of unfairness to the plaintiff”).





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a. Plaintiff Cannot Rely on the Discovery Rule to Shield His Claims from Dismissal under the Statute of Limitations, ORS 12.110(1)

The discovery rule is an objective test that focuses on whether plaintiff knew, or in the

exercise of reasonable care, should have known “facts which would make a reasonable person

aware of a substantial possibility that each of the three elements of legally cognizable harm

(harm, causation and tortious conduct) exists.” Oregon Life, 156 Or. App. at 492, 967 P. 2d at

883 (quotations and citation omitted). Knowledge that key material facts were not as they had

been represented triggers the running of limitations on negligence and fraud claims. Id. at 495.

The “should have reasonably known aspect” of the inquiry looks not to the likelihood that

Haynes would have discovered the cause of his injuries had he only inquired, but instead focuses

on whether he could reasonably have been expected to make the inquiry in the first place. In re

Swine Flu Products Liab. Litig., 764 F. 2d 637, 642 n. 2 (9th Cir. 1985). There is a point at

which not seeking medical attention is no longer reasonable and the plaintiff is charged with any

knowledge a medical examination would have disclosed. See Schiele v. Hobart Corp., 284 Or.

483, 587 P. 2d 1010, 1014 (1978). Finally, where delay in bringing suit is justified by

allegations of lack of knowledge or discovery until a certain date, the plaintiff must state the

circumstances under which the discovery was made and the reasons for the prior ignorance.

Paulsell v. Cohen, No. CV-00-1175-ST, 2001 WL 34039105, at *4 (D. Or. Aug. 31, 2001).

Taking the last point first, Haynes makes no attempt to explain the circumstances under

which he discovered that his alleged depression and symptoms of dementia were caused by

concussions sustained while performing for WWE 26 years ago. His claims fail for that reason

alone. Additionally, that Haynes should have made inquiries long ago is obvious from the

admissions of his Complaint. Haynes claims he suffered “sub-concussive or concussive blows”1

causing two specific injuries – depression and symptoms of dementia. Am. Compl. ¶ 3. He

1 As noted, Haynes originally alleged that, “[o]ver the course of his career, he sustained at least 15 concussions.” Compl. ¶ 131. Haynes did not include this allegation in his Amended Complaint, which in Defendants’ view, confirms the fast and loose pleading style of Haynes and his counsel.





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attempts to blame WWE for supposedly not telling him something he squarely admits was well

known – that repeated blows to the head can cause those injuries. Id. ¶ 3. Indeed, his own

Complaint repeatedly highlights that reams of information came to light well before October 23,

2012, which is two years prior to his lawsuit. He specifically admits that multiple studies were

published from 1950-1990s in prestigious medical journals focusing on head trauma and the

long-term implications of such injuries. Id. ¶ 104. He recites a 1973 study correlating blows to

the head with dementia, and other studies published in 1986, 2001, 2004, and 2006. Id.

He repeatedly notes that it was highly publicized in 2007 when Chris Benoit, a former

WWE performer, was the very first professional wrestler diagnosed as having CTE on autopsy.

Id. ¶¶ 74-75, 104. Haynes admits that studies published in 2007 established that athletes with

three concussions were three times more likely to be diagnosed with depression and five times

more likely to be diagnosed with dementia. Id. ¶ 37. He alleges that a second former WWE

performer was diagnosed publicly in 2009 as having CTE. Id. ¶ 76. He pleads that CTE can be

caused by a single traumatic brain injury, but notes that a 2009 study by the National Institute of

Health established it was more often caused by repeated minor trauma. Id. ¶ 33. Haynes further

admits that, in 2009, Drs. McKee and Cantu released a study specifically referencing the Benoit

case, which also noted that depression and symptoms of dementia were commonly associated

with CTE. Id. ¶ 33; Casey Decl., Ex. A, pp. 2-3.2 He cites to a 2010 study by Dr. Bennett

Omalu, which stated that CTE referred to chronic neuro-degeneration following “a single

episode of severe traumatic brain injury or (more commonly) repeated episodes of mild [TBI].”

Id. ¶ 32; Casey Decl., Ex. B, p. 3. The 2010 Omalu article specifically notes that dementia and

depression, the very injuries now claimed by Haynes, were associated with CTE. Id. at p. 3.

Haynes claims that he “participated in numerous matches where he suffered sub-

concussive or concussive blows.” Am. Compl. ¶ 123. He specifically pleads that he suffered a

2 Since Haynes referenced these studies in his Complaint, the Court may consider the actual contents of those articles. WWE has attached any such articles it cites herein to the Declaration of B. John Casey (“Casey Decl.”), which is being filed concurrently herewith.





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head injury during a match held 28 years ago. Id. ¶ 126. All the foregoing publicly available

information placed any reasonable person on notice and under a duty to inquire in the first place.

“Any fact that should excite his suspicion is the same as actual knowledge of his entire claim.”

Conmar Corp. v. Mitsui & Co., 858 F. 2d 499, 502 (9th Cir. 1988) (quoting Dayco Corp. v.

Goodyear Tire & Rubber Co., 523 F. 2d 389, 394 (6th Cir. 1975)). Both the Ninth and Tenth

Circuits have held that, when the very facts allegedly concealed are available in public records,

the plaintiff, as a matter of law, should be held to constructive knowledge of their cause of

action. Id.; Maughan v. SW Servicing, Inc., 758 F. 2d 1381, 1388 (10th Cir. 1985).3

Haynes conspicuously makes no attempt to plead reasons for delaying suit for 26 years,

the diligence he actually employed in the face of all the above information publicly known and

pled by him, the circumstances by which he finally discovered his claim, or even when he did. It

has been eight years since the Benoit findings were extensively publicized. It has been six years

since the publicity that a second former WWE performer had been diagnosed with CTE. The

publicity regarding TBIs and CTE has been massive and ongoing for many years now, since

CTE was detected during the autopsy of Mike Webster, the former Pittsburgh Steeler, in 2002.

In sum, Haynes has made no allegations supporting the application of the discovery rule

to shield his negligence claims from dismissal under the two-year time limit of ORS 12.110(1).

See Levy v. World Wrestling Entm’t, Inc., Civil Action No. 3:08-01289 (PCD), 2009 WL

455258, at * 3-4 (D. Conn. Feb. 23, 2009) (finding it to be valid argument for dismissal when

complaint failed to plead a claim within the applicable limitation period).

b. Haynes’ Negligence Claims Are Also Barred by the Statute of Repose, ORS 12.115

As a matter of law, regardless of when Haynes discovered or should have discovered his

negligence claims, he was effectively time-barred by 1998, which is ten years after he ceased

3 See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Young, No. 91 Civ. 2923, 1994 WL 88129, at *10 (S.D.N.Y. Mar. 15, 1994) (“A party’s knowledge cannot be considered superior if the concealed information is a matter of public record or was not pursued by plaintiff.”).





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performing for WWE. As noted by the Oregon Supreme Court in Johnson v. Star Mach. Co.,

270 Or. 694, 698-99, 530 P. 2d 53, 55 (1974) (en banc), ORS 12.115(1) is a statute of repose that

was specifically enacted in response to the discovery rule articulated in Berry v. Branner, 245

Or. 307, 421 P. 2d 996 (1966). ORS 12.115(1) applies as a ten-year limitation from the date of

the act or omission complained of regardless of when the damage resulted or when the act or

omission was discovered. Delay, 291 Or. at 315, 630 P.2d at 839 (noting that ORS 12.115(1)

provides that an action cannot be commenced more than 10 years after the act or omission

complained of regardless of any other statute or circumstance); Johnson, 270 Or. at 701-02, 530

P. 2d at 56; Cereghino, 826 F. Supp. at 1248. The existence of undetected damage at the time of

the original negligence is irrelevant to the application of the repose statute, and it operates to

abolish a cause of action before it accrues under the discovery rule. Id.; Josephs, 260 Or. at 500,

491 P. 2d at 206. See also Withers v. Milbank, 67 Or. App. 475, 477-78, 678 P. 2d 770, 771 (Or.

Ct. App. 1984) (ORS 12.115(1) “prescribe[s] an ultimate cutoff date beyond which a specific act

or omission is no longer actionable.”).

The bar of the repose statute cannot be altered by claims of a continuing duty to warn.

Josephs, 260 Or. at 501-02, 491 P. 2d at 207. As stated by Josephs in the Oregon Supreme

Court’s seminal ruling on ORS 12.115:

If the statute was intended to be one of ultimate repose, regardless of circumstances, it would follow that the legislature did not intend the statute to be circumvented by allegations that subsequent to the fundamental wrong, a continuing duty existed to rectify the results of [the] wrong.

Id. See also Cereghino, 826 F. Supp. at 1248 (holding that concealment allegations do not alter

the repose statute). Simply put, the repose statute applies “regardless of circumstances,”4 and

4 In Josephs, the Oregon Supreme Court left open the possibility that the repose statute might not apply if there was an “active, continuous” relationship. 260 Or. at 501-02, 491 P. 2d at 207. Years later, the Court amplified on that possible exception as being one in which the plaintiff was “in a relationship of trust and confidence with the defendant and in which continued treatment or other ongoing resort to the skills of the defendant is required,” and cited the doctor/patient relationship as an example. Cavan v. Gen. Motors Corp., 280 Or. 455, 458, 571 P.





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equitable estoppel principles, therefore, are not available to avoid ORS 12.115(1). Beals, 113

Or. App. at 572, 833 P. 2d at 350; Cereghino, 826 F. Supp. at 1248.

Haynes last performed for WWE in 1988. By definition, no negligent “acts or

omissions” by WWE regarding Haynes could have occurred later than 1988. Therefore, all of

the negligence claims set forth by Haynes in Counts 2, 3, 4, 5 and 6 were absolutely barred under

ORS 12.115(1) by 1998, over sixteen years ago.

2. The Medical Malpractice Claim (Count 5) is Time Barred

Haynes’ newly asserted medical malpractice claim is not only substantively defective for

reasons set forth in Section II. D, it is time-barred under both ORS 12.110(4), which specifically

governs medical malpractice actions, and by ORS 12.115(1), the omnibus repose statute for all

negligence actions.

First, ORS 12.110(4) requires a medical malpractice action be brought within two years

from the date the injury is first discovered or should have been discovered. ORS 12.110(4) then

specifies repose periods for such actions, first specifying that a malpractice action must be

commenced within five years from the date of the treatment or omission. ORS 12.110(4) also

provides that, if suit is not brought within five years because of “fraud, deceit or misleading

representation,” then suit must be brought within two years from the date the fraud, deceit or

misleading representation is discovered or should have been discovered. The five year repose

aspect of ORS 12.110(4) is absolute in the absence of fraud, deceit or misleading representation.

Urbick v. Suburban Medical Clinic, Inc., 141 Or. App. 452, 456, 918 P.2d 453, 456 (Or. Ct. App.

1996). Importantly, however, the maximum time to commence a medical negligence action is

further limited by the ultimate repose statute, ORS 12.115(1), which bars suit commenced more

than ten years from the act or omission complained of. Duncan v. Augter, 286 Or. 723, 727 n.3

596 P.2d 555 (1979) (en banc); Delay, 291 Or. at 314, 630 P.2d at 838; Gaston v. Parsons, 318

Or. 247, 251 n.3, 864 P.2d 1319, 1321 (1994). 2d 1249, 1250 (1977). Haynes has not pled any relationship of any kind with WWE since 1988, so the “active, continuous” relationship exception cannot apply here.





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The essence of Haynes’ attempted malpractice claim is that WWE “fail[ed] to provide

treatment for known conditions and problems.” Am. Compl. ¶¶ 113, 123, 125. He also alleges

that he was provided drugs improperly by what he calls “WWE-affiliated physicians.”5 Id.

¶ 128. Haynes does not plead any fraud, deceit or misleading representation by any physician

contemporaneous with the alleged failure to treat or provision of drugs which might have

extended the time period to five years, or approximately 1993, for Haynes to bring a malpractice

suit. Obviously, any alleged acts or omissions of medical malpractice could only occur during

the brief time Haynes performed in the 1980s. As such, these claims are barred by the two year

limitation period of ORS 12.110(4), the five year repose period of ORS 12.110(4) and the ten

year repose statute of ORS 12.115(1).

3. The Claim That WWE Is Strictly Liable (Count 7) Is Time Barred by Both ORS 12.110(1) and Also by Either ORS 12.115 or 12.140

Haynes’ attempt to characterize WWE’s entertainment product as ultra-hazardous runs

afoul of both the limitations periods of ORS 12.110(1) and the repose statute at ORS 12.115. If

ORS 12.115 does not apply, then ORS 12.140 also bars this claim. Any involvement by Haynes

in the activities of WWE ended when he ceased performing in 1988. No allegedly ultra-

hazardous activity of WWE since Haynes departed in 1988 could have caused harm to Haynes.

Thus, for limitation purposes under ORS 12.110(1), the claim in Count VII accrued back in

1986-1988 and was barred not later than 1990.

As to the repose statute, the Oregon Supreme Court has not limited that statute to only

negligence actions, and the reasoning of the court in extending the breadth of the repose statute

applies equally to Haynes’ strict liability count. In Johnson, the Oregon Supreme Court

construed the repose statute to cover products liability suits, a form of strict liability, even though

such suits are not mentioned in the repose statute. 270 Or. at 709, 530 P. 2d at 60. The Court

reasoned that strict liability product claims relied on the same evidence as negligence-based

5 Haynes never identifies a single physician allegedly employed by WWE who committed malpractice nor explain what being a physician “affiliated” with WWE is intended to mean.





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product claims, and thus suffered from the same problems as a stale negligence claim. The Court

contrasted products liability with other strict liability torts, specifically for harm due to ultra-

hazardous activity. The Court noted that ultra-hazardous activity claims typically do not present

the issue of stale evidence, a key factor behind repose statutes, because in ultra-hazardous cases

“the principal issues are the extent of the damage, which necessarily is of recent vintage, and

whether the activity which caused the damage is of the kind that is abnormally dangerous. The

inherently dangerous propensities of liquid natural gas, dynamite, aluminum fumes, or other

substances and activities are matters that usually are readily capable of proof without regard to

the passage of time.” Id. at 711. (emphasis added).

Three years later, the Oregon Supreme Court affirmed summary judgment dismissing

negligence and ultra-hazardous claims on the grounds both were barred by ORS 12.115. Cavan

v. Gen. Motors Corp., 280 Or. 455, 457, 571 P. 2d 1249, 1249 (1977). Citing Johnson, the Court

noted that the policy reasons to apply ORS 12.115 to a strict product liability action had equal

force whether the product created a condition which was or was not ultra-hazardous at the time

of the accident. Id. at 459.

The combined lesson of Johnson and Cavan is that a strict liability claim which depends

on the same stale evidence as a negligence claim will also be barred by ORS 12.115. Here,

Haynes is not seeking a remedy for recent damage to him caused by an ultra-hazardous activity –

the sine qua non of such cases as discussed in Johnson. Instead, he is attempting to repackage

his stale negligence claim into a legal doctrine reserved largely for dangerous activities which

produce immediate and obvious damage. Therefore, the same concerns which prompted the

Oregon Supreme Court in Johnson to extend the repose statute to strict liability product claims

apply with equal force here.6

6 ORS 12.140 provides that “[a]n action for any cause not otherwise provided for shall be commenced within 10 years.” Thus, even if ORS 12.110(1) and 12.115 did not apply, Haynes would have had at the latest until 1998 to sue for abnormally dangerous activities.





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4. The Fraudulent Concealment Claim (Count 1) Is Barred by ORS 12.110(1) and ORS 12.115

Haynes’ first cause of action alleging fraud is virtually identical to his negligent

misrepresentation claim. The only difference is that Count 1 alleges that WWE “knowingly,

fraudulently, and actively” misrepresented and omitted unspecified material facts whereas Count

2 alleges that WWE acted “negligently and/or recklessly.” Am. Compl. ¶¶ 143, 152. Fraud

claims are subject to the same discovery rule as applies to negligence claims. See Oregon Life,

156 Or. App. at 492, 967 P. 2d at 883 (holding that, if fraud and negligence claims are based on

the same false representation, the analysis of the discovery rule and its application are the same).

When a complaint discloses that an action was not brought within two years after the

fraud was consummated, the plaintiff is required to plead facts negating lack of diligence in

discovery of the fraud and explaining why the fraud was not discovered earlier. Salem Sand &

Gravel Co., 260 Or. at 637, 492 P. 2d at 275. It is insufficient to state that plaintiff did not

discover the fraud until a specific date, since that does not negate lack of diligence or explain

why the fraud was not discovered earlier. Huycke, 215 Or. at 177, 332 P. 2d at 608. Here,

Haynes did not plead a fraud with the specificity required, did not plead when he discovered the

alleged fraud, and did not negate his lack of diligence. Instead, Haynes’ own Complaint

establishes that a wealth of public information put him on notice of his claim years before he

brought suit. See Section II.B.1.a., supra. Thus, Haynes’ attempt to repackage a stale

negligence claim as a stale fraud claim is equally barred by ORS 12.110(1).

Additionally, and as noted previously, the Oregon Supreme Court has considered the

purpose of the repose statute, and has not limited it to negligence actions. The Oregon Supreme

Court has held that ORS 12.115(1) was “intended to provide an overall maximum upper limit on

the time within which a tort action could be brought, regardless of the date of discovery or of any

other circumstances.” Josephs, 260 Or. at 498, 491 P. 2d at 205 (emphasis added). In the same

opinion, the Court found that the legislative purpose of ORS 12.115(a) was to prescribe “an

ultimate cut-off date in any event for the commencement of tort claims litigation.” Id. at 491.





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(emphasis added). Restyling a negligence claim as a fraud claim does not avoid the repose

statute. It remains a stale tort claim barred “in any event” under the repose statute, as interpreted

by the Oregon Supreme Court.

5. Haynes’ Claim for Declaratory and Injunctive Relief of (Count 3) Is Time Barred

Haynes’ claim for declaratory relief mimics his negligence claim. Am. Compl. ¶ 163

(“Plaintiff … [is] entitled to declaratory relief establishing that Defendant negligently injured

them with conduct that was intentional or negligent.”). Oregon does not permit a plaintiff to

circumvent limitations by dressing up a claim as a declaratory judgment action. See Brooks v.

Dierker, 275 Or. 619, 623, 552 P. 2d 533, 535 (1976) (“[W]hen declaratory relief is sought as an

alternative to other appropriate and otherwise available relief, the relevant limitations period for

the declaratory judgment suit should be based on that of the underlying grounds for relief”). To

the same effect, the Ninth Circuit has held that, “if ‘a claim for declaratory relief could have

been resolved through another form of action which has a specific limitations period, the

specific period of time will govern.’” Levald, Inc. v. City of Palm Desert, 998 F. 2d 680, 688

(9th Cir. 1993) (quoting Gilbert v. City of Cambridge, 932 F. 2d 51, 58 (1st Cir. 1991)) (other

citations omitted) (emphasis added). Specifically, the court reasoned as follows:

To prevent plaintiffs from making a mockery of the statute of limitations by the simple expedient of creative labelling – styling an action as one for declaratory relief rather than for damages – courts must necessarily focus upon the substance of an asserted claim as opposed to its form. It is settled, therefore, that where legal and equitable claims coexist, equitable remedies will be withheld if an applicable statute of limitations bars the concurrent legal remedy.

Id. (quoting Gilbert, 932 F. 2d at 57-58) (other citations omitted); see also Frevach Land Co. v.

Multnomah Cnty., No. CV-99-1295-HU, 2000 WL 1875839, at *13 (D. Or. Dec. 21, 2000);

Manantan v. Nat’l City Mortg., No. C-11-00216 CW, 2011 WL 3267706, at *8 (N.D. Cal. July

28, 2011) (“[T]he statute of limitations governing a request for declaratory relief is the one

applicable to an ordinary legal or equitable action based on the same claim.”) (quotation





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omitted); Acme Fill Corp. v. Althin CD Med., Inc., No. C 91-4268 MCC, 1995 WL 822665, at *8

(N.D. Cal. Oct. 16, 1995) (“If a substantive claim is barred by the statute of limitations the

declaratory relief claims falls along with it.”) (citations omitted). This makes sense, because the

Act “does not create substantive rights, but provides a procedure to decide existing rights.”

Acme Fill, 1995 WL 822665, at *8 (emphasis added). As such, the declaratory judgment claim

is subject to both the limitations statute and repose statute barring Haynes’ negligence claims.

6. Haynes Has No Tolling Doctrine to Avoid Limitations or Oregon’s Repose Statute

No doubt realizing his suit was decades late, Haynes made a feeble attempt to estop

WWE from raising applicable limitations in three brief paragraphs.7 In paragraph 139 of his

Amended Complaint, he makes the entirely conclusory allegation that he was not able to

discover his injuries until after being diagnosed despite due diligence. He does not specify any

due diligence, nor even state when he discovered his claim. Thus, paragraph 139 is only an

inadequate statement of his own diligence, and is not an estoppel allegation. In paragraph 140,

Haynes makes a single conclusory allegation that WWE knew that he had suffered concussions

“during and prior to [his] career” and “concealed that materials [sic] information” from him. The

last allegation in paragraph 141 is a one sentence legal conclusion that WWE is therefore

estopped from relying on statutes of limitations. Legal conclusions are disregarded under

Twombly, leaving Haynes with exactly one conclusory sentence fragment about concealment of

“materials [sic] information” to support his estoppel attempt.

Haynes’ attempt to plead concealment as a tolling mechanism fails for two reasons. First,

equitable estoppel is simply not available to avoid the ultimate repose statute prohibiting suits

more than ten years after the act or omission complained of. ORS 12.115(1); see also Beals, 113

Or. App. at 572, 833 P. 2d at 350; Cereghino, 826 F. Supp. at 1248. Second, to toll the two-year

7 Despite being advised of the limitations and repose problems during the pre-motion conference regarding the original complaint, Plaintiff’s counsel made no amendment to the insufficient three paragraphs attempting to estop WWE from raising statutes of limitation.





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limitations period under fraudulent concealment principles, Haynes must satisfy the same strict

pleading requirements of Rule 9(b). It is inadequate to claim that he was ignorant of his cause of

action. He must plead and prove that WWE “fraudulently concealed the existence of the cause

of action so that [plaintiff], acting as a reasonable person, did not know of its existence.”

Conmar, 858 F. 2d at 502 (citation omitted). Conclusory statements are not enough, and Haynes

must plead with particularity affirmative actions of WWE which misled him; the circumstances

of the concealment, and the facts supporting due diligence. See id.; Volk, 816 F. 2d at 1415-16.

The concealment must be some active conduct by the defendant, above and beyond the

wrongdoing upon which the claim is based. Coppinger-Martin, 627 F. 3d at 751. In other words,

Haynes cannot merge his substantive fraud claim with the tolling doctrine. Id. at 752.

Oregon recognizes only two situations where equitable estoppel may toll the operation of

the two-year limitations period. One situation is where the defendant lulled the plaintiff into

delaying the filing of the suit by affirmative inducement. See Philpott v. A. H. Robins Co., 710

F. 2d 1422, 1425 (9th Cir. 1983). The other is when the defendant lulled the plaintiff into

believing he had no cause of action against the defendant. Id. There must be affirmative

inducement because neither silence nor passive conduct by the defendant is fraudulent. Id. To

invoke fraudulent concealment principles as a tolling mechanism, Haynes must point to actions

of WWE within the limitations period which lulled him into inaction. See Estate of Amaro v.

City of Oakland, 653 F. 3d 808, 813 (9th Cir. 2011) (explaining that the focus is on “whether the

defendant’s fraudulent concealment or misrepresentation deprived the plaintiff of a full

understanding of the true facts, and thus, dissuaded the plaintiff from filing the claim at issue

within the limitations period.”) (emphasis added). Stated another way, although a properly

pled fraudulent concealment allegation can toll the limitations period, it cannot resurrect an

expired limitation period. Krahmer v. Christie’s Inc., 911 A.2d 399, 408 (Del. Ch. 2006) (no

tolling based on fraudulent concealment where alleged concealment occurred after the

limitations period had ended); Cardiello v. The Money Store, Inc., No. 00 CIV. 7332 (NRB),





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2001 WL 604007, at *4 (S.D.N.Y. June 1, 2001) aff’d sub nom. 29 F. App’x 780 (2d Cir. 2002)

(“The sine qua non of fraudulent concealment is that the defendant fraudulently concealed from

the plaintiff his cause of action during the time in which plaintiff could have brought that action.

Absent such allegations, equitable tolling does not apply.”) (emphasis in original); Evans v.

Rudy-Luther Toyota, Inc., 39 F. Supp. 2d 1177, 1185 (D. Minn. 1999) (finding allegations of

fraudulent concealment “wholly irrelevant to the issue of tolling” where the alleged concealment

“occurred long after the limitations period had passed.”); Huber v. McElwee-Courbis Const. Co.,

392 F. Supp. 1379, 1385 (E.D. Pa. 1974) (“Where acts constituting the alleged fraudulent

concealment occurred after the statute of limitations has run they do not create an estoppel.”);

Logan Mfg. Co. v. Bradley, 476 S.W.2d 819, 820 (Ky. Ct. App. 1972) (“[I]f there was any fraud

in the instant case, either by way of representation or concealment, it occurred several months

after limitations had run, so it could not have been a cause of the claimant’s failure to file her

claim in time.”).

Lastly, because a claim of ignorance is not sufficient, Haynes must fortify that assertion

with a statement of the circumstances under which the discovery was made as well as the reasons

for the prior ignorance. Huycke, 215 Or. at 177, 332 P. 2d at 608; Salem Sand & Gravel Co.,

260 Or. at 637, 492 P. 2d at 275; TRM Corp., 2002 WL 31549112 at *2.

Haynes makes no attempt to comply with these precepts of law. He alleges no dealings

of any kind with WWE since 1988, and can point to no active conduct by WWE directed to him

at all, let alone conduct within the limitations period that lulled him into delaying suit or

believing he had no claim. Instead, his paltry three estoppel paragraphs impermissibly attempt to

merge the underlying claim with estoppel allegations, specifically that WWE allegedly failed to

provide treatment for concussive and subconcussive injuries. And, as previously noted, he

makes no attempt to shoulder the heavy burden of pleading diligence in the prior 26 years in the

face of his admissions of extensive public information regarding concussions. Indeed, Haynes’





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conclusory three paragraph attempt at raising estoppel itself is evidence that there simply are no

tolling arguments available to avoid even the two-year limitations period.

C. Haynes’ Fraud Claim (Count 1) Fails to State a Claim

1. Haynes Fails to Plead Any Affirmative Misrepresentation Made to Him

Actionable fraud may be committed by concealment of material facts and by affirmative

and positive misrepresentation. Ogan v. Ellison, 297 Or. 25, 34, 682 P. 2d 760, 765 (1984) (en

banc). Fraud by affirmative misrepresentation requires (1) a representation; (2) its falsity; (3) its

materiality; (4) the speaker’s knowledge of its falsity; (5) the intent that it be acted on by the

other person; (6) the hearer’s ignorance of the falsity; (7) the hearer’s justifiable reliance; (8) the

hearer’s right to rely on it; and (9) consequent and proximate injury. Oregon Public Emps. Ret.

Bd. v. Simat, Helliesen & Eichner, 191 Or. App. 408, 424, 83 P. 3d 350, 359 (Or. Ct. App.

2004). Justifiable reliance is acquired by taking reasonable precautions to safeguard one’s own

interests. Gregory v. Novak, 121 Or. App. 651, 655, 855 P. 2d 1142, 1144 (Or. Ct. App. 1993).

Haynes must plead these elements of fraud with particularity and unsupported general

claims are insufficient. Yourish, 191 F. 3d at 994. To comply with Rule 9(b) Haynes must plead

the “neutral facts” of time, place and content of any alleged affirmative misrepresentation, and

also explain why the alleged affirmative representation “was untrue or misleading when made.”

Id. at 993 (emphasis added); see also Benson Tower Condo. Owners Ass’n, 2014 WL 2197837 at

*4 (Rule 9(b) requires “the who, what, when, where, and how of the misconduct charged.”).

Once again, Haynes makes no attempt to satisfy these well-established strict requirements

of pleading fraud. He does not allege that anybody at WWE ever affirmatively misrepresented

anything to him about head injuries. All he alleges in the First Cause of Action is that WWE

“actively misrepresented” to “wrestlers” “material facts concerning repetitive head impacts and

related injuries.” Am. Compl. ¶ 143. He does not identify what material facts were

misrepresented to him, who actively misrepresented anything to him; when they did so, where

they did so, what was actually said, why it was false when said, or anything remotely resembling





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the allegations needed to charge WWE with fraud. He does not plead his own ignorance of the

falsity, nor plead any reasonable precautions he took in relying on an affirmative

misrepresentation. He merely alleges that unidentified “WWE employees discouraged Haynes

from seeking appropriate outside medical care,” and that nobody warned him about the risks of

sustaining repetitive blows to the head, which he admits were well-known anyway. Id. ¶¶ 3,

124-25. Nowhere does Haynes plead with specificity any affirmative misrepresentations.

Haynes’ Count I is simply deficient to the extent it claims affirmative misrepresentation.

2. Haynes Fails to Plead Any Special Relationship Giving Rise to a Duty to Speak Regarding the Medical Consequences of Brain Injury

Haynes’ first cause of action for fraud also alleges that WWE “omitted” material facts

“from wrestlers” regarding head injuries. Once again, Haynes does not allege with particularity

any of the requisite “neutral facts” regarding alleged “omissions” as to him. He does not identify

any specific information regarding head trauma known to any specific person at WWE that was

not known to him, or not public information. See Kellogg Square P’ship v. Prudential Ins. Co.

of Am., 63 F. 3d 699, 702 (8th Cir. 1995) (no duty based on knowledge of the public information

plaintiff admitted was available); Wolph v. Acer Am. Corp., No. C 09-01314 JSW, 2009 WL

2969467, at *4 (N.D. Cal. Sept. 14, 2009) (no duty to disclose because plaintiff had not alleged

any information known by defendant that was unavailable to the public). Likewise, he pleads no

“explanation as to why the … omission complained of was false or misleading,” as is required.

Benson Tower Condo Owners’ Ass’n, 22 F. Supp. 3d at 1132.

Haynes’ attempt to plead fraud by omission suffers from an additional fundamental legal

impediment. Silence in the absence of a duty to speak is not an actionable omission under

Oregon law. Novak, 121 Or. App. at 655, 855 P. 2d at 1144; Paulsell v. Cohen, No. CIV-00-

1175-ST, 2002 WL 31496397 at *24 (D. Or. May 22, 2002). (defendant must be under a duty to

disclose for nondisclosure to form the basis of a fraud claim). There is no duty to speak in the

absence of a special relationship between the plaintiff and defendant, and that does not exist if

the parties were in a commercial or business relationship where both were acting in their own





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economic interest. Benson Tower Condo. Owners Ass’n, 22 F. 2d at 1132 n.1. For a brief period

in the 1980s, Haynes and WWE had a business relationship whereby Haynes would perform at

WWE events, with both parties acting to promote their own economic interests. After 1988,

Haynes had no relationship with WWE of any kind. Thus, his fraud by omission claim also fails

due to the absence of the requisite special relationship.

3. Haynes Fails to Plead Fraudulent Concealment with Particularity

Lastly, Haynes’ concocted fraud claim generically alleges that WWE fraudulently

“concealed” from wrestlers material facts regarding repetitive head injuries. Am. Compl. ¶ 143.

Once again, however, Haynes fails to particularize the “neutral facts” regarding alleged

concealment as to him. The entirety of his Complaint does not allege any specific information

known to WWE regarding concussions or who knew it, or how they knew it, or explain how

WWE prevented Haynes from acquiring such information.

As a substantive claim, fraudulent concealment requires that the defendant intentionally

prevented the plaintiff from acquiring material information. It fails as a theory of liability if the

defendant did not prevent the plaintiff from acquiring the information the plaintiff contends was

withheld. Cohen, 2002 WL 31496397 at *25. Haynes’ Complaint is completely devoid of any

explanation as to any specific information about concussions which he sought to obtain that

WWE somehow prevented him from acquiring. It is impossible for WWE, or anybody else, to

conceal all the scientific reports and media reports cited by Haynes in his Complaint. E.g., Am.

Compl. ¶¶ 26, 28-33, 74-75, 104. Such matters are in the public realm, are not subject to control

by WWE, and are admitted by Haynes to “have long been known.” Id. ¶ 3. Thus, Haynes’

attempt to plead fraud by concealment also fails.

4. Haynes’ Systematic Failure to Comply with Rule 9(b) Should Not be Countenanced by the Court

For the reasons previously addressed, Haynes’ claims of fraudulent concealment, both

when asserted as a tolling doctrine and as a substantive count, fall well below the standards

required by Rule 9(b). Likewise, his negligent misrepresentation claims are subject to the





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particularity requirements of Rule 9(b). See Sanford v. Maid-Rite Corp., Civil No. 13-2250

(MJD/LIB), 2014 WL 1608301, at *12 (D. Minn. Apr. 21, 2014) (fraud by omission claims are

subject to particularity standards); Trooien v. Mansour, Civil No. 06-3197 (JRT/FLN), 2007 WL

436068, at *3 (D. Minn. Feb. 7, 2007) (the particularity requirements apply to negligent

misrepresentations claim) aff’d 608 F. 3d 1020 (8th Cir. 2010); Smith v. Questar Capital Corp.,

No. 12-cv-2669 (SRN/TNL), 2013 WL 3990319 at *13 (D. Minn. Aug. 2, 2013) (dismissing

negligent misrepresentation claim based on omissions because particularity requirements not

satisfied). The Ninth Circuit has identified three purposes to Rule 9(b):

(1) To provide adequate notice to allow defendants to defend and deter plaintiffs from the filing of complaints as a pretext for the discovery of unknown wrongs;

(2) To protect those whose reputations would be harmed as a result of being subject to fraud charges; and

(3) To prohibit plaintiffs from unilaterally imposing upon the court, the parties, and society enormous social and economic costs absent some factual basis.

Kearns v. Ford Motor Co., 567 F. 3d 1120, 1125 (9th Cir. 2009).

All three of those purposes are implicated here. Haynes has had no dealing with WWE

for over a quarter of a century, and has absolutely not one shred of personal knowledge about

WWE’s business since he left in 1988. See Am. Compl. ¶ 16. Yet, out of the blue, he filed an

incendiary lawsuit in an utterly reckless fashion, and leveled unsubstantiated fraud charges

without even attempting to comply with the standards required to do so. He has twice abused the

privilege of being the pleader by inclusion of scandalous, impertinent, and outright false matters

having absolutely nothing to do with concussions or CTE, and twice failed to comply with well-

established law governing pleading requirements for fraud claims. He did so by a lawsuit touted

in the media, which harms WWE’s reputation by baseless fraud charges.

Such pleading mischief is directly contrary to the purposes of Rule 9(b).8 It is for that

reason that the case should be dismissed outright. Haynes was given an opportunity to re-

8 Haynes continues to make false allegations that have no relevance to his head injury claims, including that WWE “forced or encouraged” him to take drugs, and that Stephanie





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examine the bona fides of his lawsuit after the pre-motion conference regarding the defects in his

original Complaint, and thereafter filed an Amended Complaint which did not cure the

substantive defects and which continues to assert time-barred claims. As such, no leave should

be given to replead as it would be futile. Platt Elec. Supply, Inc. v. EOOF Elec., Inc., 522 F.3d

1049, 1060 (9th Cir. 2008) (“[B]ecause [plaintiff’s] claims are barred by the statute of

limitations, any amendments would have been futile.”); Deutsch v. Turner Corp., 324 F.3d 692,

718 (9th Cir. 2003) (denying leave to amend complaint where claims were time-barred and

district court had rejected plaintiff’s arguments for invoking equitable tolling); Naas v. Stolman,

130 F.3d 892, 893 (9th Cir. 1997) (“[T]he district court did not abuse its discretion in denying

leave to amend, as the [plaintiffs] potential amended claim would still be barred by the statute of

limitations.”); Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1042 (9th Cir. 2011)

(affirming dismissal without leave to amend because none of plaintiffs proposed new allegations

would cure their fraud claims); Robertson v. Wells Fargo Home Mortgage, No. 10-CV-1110-BR,

2011 WL 5157772, at *8 (D. Or. Oct. 28, 2011) (amendment of fraud claims futile where

plaintiff “twice generally alleged fraud … without providing any particular allegations to support

such a claim.”); Solano v. America’s Servicing Co., No. 2:10-CV-02426-GEB, 2011 WL

4500874, at *12 (E.D. Cal. Sept. 27, 2011) (further amendment futile where plaintiff failed to

plead previously dismissed fraud claim with particularity).

D. The Medical Negligence Claim (Count 5) Should Be Dismissed Because Haynes Does Not Allege a Physician-Patient Relationship

Haynes’ newly minted Medical Negligence claim is not only time-barred but also fails

because he does not and cannot allege any physician-patient relationship with the WWE. See,

e.g., Mead v. Legacy Health Sys., 352 Or. 267, 276, 283 P.3d 904, 909 (2012) (“[A] physician-

patient relationship is a necessary predicate to stating a medical malpractice claim.”); see also

Sullenger for Sullenger v. Setco Nw., Inc., 74 Or. App. 345, 348, 702 P.2d 1139, 1140–41 (1985)

McMahon testified before a Congressional Committee nineteen years after Haynes last performed “that there were no documented concussions in WWE’s history.” Id. ¶¶ 115, 128.





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(“The duty to aid another person arises out of a relationship between the actor and the other. . . .

[T]he duty of reasonable care owed by a doctor to a patient arises out of the doctor-patient

relationship; there is no duty to render care in the absence of such a relationship.”).

Indeed, Haynes does not identify any specific person who he claims was actually a

physician employed or retained by WWE to treat him. Instead, he repeatedly alleges he was not

treated by any WWE medical personnel. He specifically alleges that he was never “treated for

concussions or other head injuries by WWE medical staff or advised to seek treatment.” Am.

Compl. ¶ 125. As to the only specific alleged injury he pleads of a head injury on March 29,

1987, he again alleges “The WWE did not treat this injury.” Id. ¶ 126. In sum, the essence of

Haynes’ vague allegations is that WWE failed to provide medical care for his alleged head

injuries. See id. ¶ 173 (alleging WWE failed to provide treatment for known conditions and

problems). That is the antithesis of the doctor-patient relationship needed to plead a medical

malpractice claim.9 See, e.g., Sullenger for Sullenger, 74 Or. App. at 348, 702 P.2d at 1140–41

(no physician-patient relationship where no opinion was sought of physician).

E. The Medical Monitoring Claim (Count 6) Should Be Dismissed Because It Is Not a Recognized Cause of Action in Oregon

Haynes’ Sixth Cause of Action alleges that medical monitoring can determine whether

WWE performers have suffered injuries. Am. Compl. ¶ 183. Haynes does not claim he needs

medical monitoring to determine if he has suffered injuries. He affirmatively asserts he has

depression and dementia symptoms, and admits that medical monitoring will not diagnose CTE,

as that condition can only be diagnosed post-mortem by a brain autopsy. Id. ¶ 32.

There are no cases in Oregon holding that medical monitoring is an independent cause of

action. Instead, the Supreme Court of Oregon has made clear that medical monitoring may be a

possible remedy for a negligence claim provided the plaintiff has already suffered actual loss.

9 Haynes vaguely alleges that unidentified “WWE-affiliated physicians” provided him with “some” unidentified “illicit” drugs. Id. ¶ 128. Such vague allegations fall far short of establishing a doctor-patient relationship between Haynes and WWE.





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Lowe v. Philip Morris USA, Inc., 344 Or. 403, 414-15, 183 P. 3d 181, 187 (2008). At the same

time, the Oregon Supreme Court declined to adopt medical monitoring as a stand alone claim, or

to approve it as a remedy if “negligent conduct … results only in a significantly increased risk of

future injury that requires medical monitoring …” Id. at 415. The Court was emphatically clear

that the increased risk of future harm does not give rise to a claim for negligence. See also Paul

v. Providence Health System-Oregon, 351 Or. 587, 595, 273 P. 3d 106, 111 (2012) (“Lowe

indicates that the cost of monitoring to protect against an increased risk of harm – in the absence

of present injury – is not recoverable in a negligence action.”).

Haynes’ claim seeks a monitoring fund not for him, but for others for precisely the reason

not approved by the Oregon Supreme Court – to determine if anybody else has suffered actual

harm. That is not a valid claim under Oregon law. As to Haynes, any actual injury he has

sustained is part of his time-barred negligence claims, foreclosing medical monitoring as a

remedy for such alleged negligence.

F. The Claim for Declaratory and Injunctive Relief (Count 3) Should Be Dismissed

Haynes’ caption to the third count indicates he seeks both declaratory and injunctive

relief. This poorly conceived count is not only time-barred but is substantively flawed.

First, Haynes makes no attempt to demonstrate any irreparable harm to him that would be

mitigated by injunctive relief. He has not been affiliated with WWE for over 27 years, and any

harm he claims to have suffered would not be alleviated by any injunction.

As to declaratory relief, Haynes seeks a declaration that WWE should have known that

concussions posed a health risk; that WWE had “a duty to warn it [sic] wrestlers of the risk” and

that WWE willfully and intentionally concealed material information and engaged in actions that

endangered its wrestlers. Am. Compl. ¶ 164. This is entirely duplicative of his substantive

counts, and seeks essentially a declaration that the elements of other claims exist. The claim fails

for this reason alone.





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Additionally, Haynes does not plead facts demonstrating the existence of an actual case

or controversy that he has standing to raise or which is not time barred or otherwise deficient. It

is the duty of a court to first inquire whether there is an actual case or controversy. Principal

Life Ins. Co. v. Robinson, 394 F. 3d 665, 669 (9th Cir. 2005). The dispute must be definite and

concrete, touch the legal relations of parties having adverse legal interests, be real and

substantial, and admit of specific relief through a decree of a conclusive character, as opposed to

an opinion advising what the law would be upon a hypothetical state of facts. Calista Enters.

Ltd. v. Tenza Trading Ltd., No. 3:13-cv-01045-SI, 2014 WL 3695487 at *8 (D. Or. July 24,

2014). Whether or not Haynes has a viable claim against WWE depends on whether he has pled

any viable causes of action within applicable time limits for doing so. Any claim of Haynes, by

definition, is personal to him and not altered by the experiences of other wrestlers in the decades

since he performed, none of whom have joined Haynes in this suit. In reality, Haynes has no

clue as to WWE’s business practices in the decades since he performed, no concrete stake in

litigating those practices, and no personal benefit from doing so. Simply put, no declaratory

relief could touch the legal relations of Haynes and WWE because there has been no relationship

for over a quarter of a century, and this claim serves no useful purpose.

Even if there were an actual case or controversy, the Court should still exercise its

discretion not to hear Haynes’ declaratory judgment action. This Court’s discretion is to be

guided by the factors set forth in Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491 (1942). Those

factors counsel against needless determination of state law; the avoidance of duplicative

litigation, and the convenience of the parties. Principal Life Ins. Co., 394 F. 3d at 672. To the

best of our research, the Ninth Circuit has never approved the use of 28 U.S.C. § 2201 as a

vehicle to request broad-based declarations regarding personal injury issues involving non-

parties, as Haynes seeks to do here. His claim would involve WWE, and hundreds of witnesses

not resident in Oregon, in a fishing expedition regarding decades-old information which has

grown stale. It would involve different contractual relationships, different contractual terms,





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different laws from different states, and a wide-ranging foray into three decades of medical

information. It is the very antithesis of a concrete dispute, and is all the more amorphous since

no viable claims have even been stated here by Haynes. For all such reasons, this Court should

dismiss Count 3, in addition to finding it to be time barred.

G. The Claim Alleging Strict Liability for Abnormally Dangerous Activity (Count 7) Fails to State a Claim

In his last claim, Haynes alleges that the “entertainment product” of WWE inherently

involves a high degree of risk which cannot be eliminated by reasonable care. Haynes’ alleges

that the product of WWE is “outrageous, abnormal and shocking to the conscience,” and that the

community captures no artistic benefit from WWE’s product. Am. Compl. ¶¶ 194, 196. Yet,

before this overwrought exercise in polemics, Haynes admitted that WWE is “the largest

wrestling entertainment organization in the world”; that the programs which are supposedly of

no artistic benefit to the community “consistently rank among the most popular in weekly

television ratings; and that its programs are broadcast in 170 countries, in 35 languages, and

reach 650 million homes worldwide.” Id. ¶¶ 19-20. Haynes further admits that, for 30 years,

WWE has been the preeminent provider of pay-per-view programming; that its Action Figure

Toys are a top brand; and that over 60 million units of its video games have sold. Id. ¶¶ 21-23.

Whether an activity is abnormally dangerous is a question of law for the court. Cavan,

280 Or. at 459 n. 2, 571 P. 2d at 1251 n. 2. No Oregon court has ever determined that an

entertainment product would be so classified. As far as our research reveals, no court anywhere

has ever declared an entertainment product to constitute abnormally dangerous activity. Indeed,

to do so would encounter serious First Amendment obstacles, since entertainment is fully

protected by the First Amendment. The United States Supreme Court affirmed a Ninth Circuit

decision enjoining enforcement of laws imposing restrictions on the sale or rental of violent

videogames to minors. Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729 (2011). The Supreme

Court reminded “that it is difficult to distinguish politics from entertainment, and dangerous to

try.” Id. at 2733. The Court stated:





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Crudely violent videogames, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny. … Even if we can see in them ‘nothing of any possible value to society …, they are as much entitled to the protection of free speech as the best of literature.’

Id. at 2737 n. 4 (citation omitted).

Oregon has confined the doctrine to classically dangerous situations presenting the risk of

harm to innocent third parties, and has not applied it to protect those who engage in the allegedly

dangerous activities. See Koos v. Roth, 293 Or. 670, 674, 652 P. 2d 1255, 1259 (1982) (“[T]he

activities giving rise to strict liability in modern Oregon cases have been the storage or use of

explosive material and aerial spraying of destructive chemicals.”); Buggsi, Inc. v. Chevron

U.S.A., Inc., 857 F. Supp. 1427, 1432 (D. Or. 1994) (operation of a facility that stores and

dispenses gasoline and diesel fuel is an ultra-hazardous activity in light of Oregon’s legislative

scheme); McGregor v. Barton Sand & Gravel, Inc., 62 Or. App. 24, 35, 660 P. 2d 175, 182 (Or.

Ct. App. 1983) (storage of a large quantity of water in artificial ponds above plaintiffs’ adjacent

property); Koos, 293 Or. at 685, 652 P. 2d at 1265 (burning of a large field open to the winds);

Bella v. Aurora Air, Inc., 279 Or. 13, 24-25, 566 P. 2d 489, 495 (1977) (en banc) (aerial spraying

of a harmful herbicide); McLane v. Northwest Natural Gas, 255 Or. 324, 328, 467 P. 2d 635, 637

(1970) (storage of natural gas in a populated area); Nat’l Auto. & Cas. Ins. Co. v. Mt. Pitt Co.,

234 F. Supp. 477, 480 (D. Or. 1964) (storage of explosives); Bedell v. Guoulter, 199 Or. 344,

361-62, 261 P. 2d 842, 850 (1953) (dynamite blasting). All of these are classic formulations of

the doctrine which protected innocent third parties from harm. Indeed, it is a perversion of the

rationale for the doctrine to twist it to protect those who engage in the dangerous activity. The

Oregon Supreme Court noted that aspect in a seminal case, stating:

The person conducting the activity can choose whether or not to chance the potentially costly consequences. If he also owned the adjoining property, he might choose not to take the risk of fire, or blasting, or aerial spraying of toxic chemicals, with any degree of care. The potential victim cannot make that choice.





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Koos, 293 Or. at 681, 652 P. 2d at 1262-63; see also Pullen v. West, 278 Kan. 183, 193, 92 P. 3d

584, 593 (2004). (“[S]trict liability in the context of this case [– plaintiff helped set off fireworks

–] does not apply to the plaintiff who participated in the activity. Rather, it applies to others

harmed by the abnormally dangerous activity.”); Berry v. Greater Park City Co., 2007 UT 87,

¶ 32, 171 P. 3d 442, 450 (“Assuming th[at] skiercross racing is an abnormally dangerous

activity, [plaintiff’s] role as a participant excludes him from eligibility to recover under a theory

of strict liability … [W]e agree that the [Restatement (Second) of Torts § 520] excludes

participants, like [plaintiff], who engage in the very activity for which they seek to recover

damages based on strict liability.”); 57A Am Jur. 2d Negligence § 390 (“the benefit of strict

liability does not run to a person participating in the activity deemed to be ultrahazardous.”).

In sum, Haynes’ attempt to extend the doctrine of ultra-hazardous activity should be

rejected, and his last claim dismissed.

H. This Court Lacks Personal Jurisdiction over WWE for Each of the Pled Claims

Glaringly absent from the Complaint is any allegation that Plaintiff sustained any head

injuries in Oregon while wrestling for WWE. Although Plaintiff currently resides in Oregon, it

has no substantive connection with the controversy. Pursuant to Rule 12(b)(2) of the Federal

Rules of Civil Procedure, the Court must dismiss an action where plaintiff fails to establish the

required factual nexus between WWE and Oregon to exercise jurisdiction.

Moreover, Plaintiff’s Complaint must be dismissed pursuant to Rule 12(b)(5) of the

Federal Rules of Civil Procedure because he has not sufficiently served process on WWE.

Pursuant to Rule 4(k) of the Federal Rules of Civil Procedure, WWE may be summoned into this

Court only if it could be subjected to jurisdiction under the Oregon long-arm statute. However,

WWE is not subject to personal jurisdiction under the long-arm statute and, therefore, Plaintiff

has failed to properly serve process on WWE.

1. The Complaint Fails to Allege Any Facts Demonstrating That the Court Has Personal Jurisdiction Over WWE

Plaintiff’s Complaint fails to plead facts that would justify personal jurisdiction over





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WWE. In fact, plaintiff sets forth no allegations regarding personal jurisdiction. See Am.

Compl. ¶¶ 14-15 (alleging existence of subject matter jurisdiction and venue, but not personal

jurisdiction). Plaintiff alleges only that he resides in Oregon.10

Id. ¶ 16. Plaintiff does not allege

that any of the operative facts giving rise to any claim occurred in Oregon, or that WWE

performed any acts or omissions that were intended to cause harm in Oregon. Id. ¶¶ 122-131.

WWE is incorporated in Delaware and headquartered in Connecticut. Am. Compl. ¶ 17.

WWE maintains the vast majority of its business records in Connecticut. See Affidavit of James

W. Langham (“Langham Aff.”) ¶ 4. WWE’s employees and executives who may have

discoverable information regarding Plaintiff’s claims also work out of WWE’s Connecticut

headquarters. Id. ¶ 6. The “small group of related executives” whom Plaintiff alleges “tightly

control” WWE, see Am. Compl. ¶ 18, all reside in Connecticut. Langham Aff. ¶ 6.

Plaintiff has not alleged that WWE has any physical or permanent presence in Oregon.

While WWE is registered to do business, and has a registered agent for service of process in

Oregon, WWE does not have an office or telephone listing in Oregon, and does not own or lease

real estate in Oregon. Langham Aff. ¶ 8-10. WWE does not have a bank account in Oregon, and

has not borrowed money from any financial institution in Oregon. Id. ¶ 11.

2. Standard of Review

Plaintiff cannot carry his burden of making a prima facie demonstration that personal

jurisdiction exists over WWE. Amoco Egypt Oil Co. v. Leonis Nav. Co., Inc., 1 F. 3d 848, 850

(9th Cir. 1993); Bates v. Bankers Life & Cas. Co., 993 F. Supp. 2d 1318, 1327 (D. Or. 2014).

With respect to each of his seven causes of action, Plaintiff must establish that: (1) Oregon’s

long-arm statute confers personal jurisdiction over WWE;11 and (2) the exercise of such

jurisdiction does not violate federal due process principles. See Omeluk v. Langsten Slip &

Batbyggeri A/S, 52 F. 3d 267, 269 (9th Cir. 1995) (personal jurisdiction lacking in personal

10

This is the only instance where the word “Oregon” appears in the Amended Complaint. 11 The Oregon long-arm statute, Or. R. Civ. P. 4, is coextensive with the outer limits of federal due process. Bates, 993 F. Supp. 2d at 1332; Or. R. Civ. P. 4L.





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injury matter). A plaintiff’s failure to make specific factual allegations demonstrating personal

jurisdiction over nonresident defendants mandates dismissal of the claim. Butcher’s Union

Local No. 498, United Food & Commercial Workers v. SDC Inv., Inc., 788 F. 2d 535, 537, 540

(9th Cir. 1986).

To satisfy the long-arm statute and due process requirements, therefore, Plaintiff must

demonstrate that: (1) WWE purposefully availed12

itself of the privilege of conducting activities

in the State of Oregon, thereby invoking the benefits and protections of its laws; (2) his causes of

action arise from, or are connected with, such availment; and (3) the exercise of jurisdiction must

be reasonable in that it does not offend traditional notions of fair play and substantial justice.

Bates, 993 F. Supp. 2d at 1333. Plaintiff’s failure to meet any one of these three requirements is

fatal to exercising jurisdiction over WWE. Omeluk, 52 F. 3d at 270-272.

a. Plaintiff Has Not Alleged That WWE Has Purposefully Availed Itself of the Privilege of Conducting Activities in Oregon

To satisfy the first prong of the specific jurisdiction test, the plaintiff must show that the

defendant “(1) committed an intentional act (2) expressly aimed at the forum state, and (3)

caused harm which the defendant knows is likely to be suffered in the forum state.” Parsons,

2013 WL 1946743, at *3 (citing Yahoo! Inc. v. La Ligue Contre Le Racisme, 433 F. 3d 1199,

1206 (9th Cir. 2006)). Mere foreseeability is insufficient under this test. Id. (citing Bancroft &

Masters, Inc. v. Augusta Nat’l, Inc., 223 F. 3d 1082, 1087 (9th Cir. 2000)). Instead, the plaintiff

must allege that intentional acts of the defendant had the “very purpose of” causing or were

“calculated to cause injury to the plaintiff in the forum state.” Schroll v. Plunkett, 760 F. Supp.

1385, 1388 (D. Or. 1991) aff’d, 932 F. 2d 973 (9th Cir. 1991).13

12

“The phrase ‘purposeful availment’ is often used as shorthand to include both purposeful availment and purposeful direction. However, ‘purposeful direction’ is more often used in tort cases, and purposeful availment, in contract cases.” Oil Pad Solutions, LLC v. Parsons, No. 03:12–cv–01917–HZ, 2013 WL 1946743, at *3 (D. Or. May 8, 2013) (citations omitted). 13 The purposeful availment test ensures that a defendant is not “haled into court . . . ‘based on the random, fortuitous, or attenuated contacts he makes by interacting with other persons





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There is not a single allegation of an intentional act by WWE calculated to cause injury to

Haynes in Oregon. See Schroll, 760 F. Supp. at 1388 (“[P]urposeful availment standard is not

met when defendant’s actions simply happen to have an effect in the forum.”); Butcher’s Union

Local No. 498, 788 F. 2d at 537, 540 (jurisdiction improper where complaint fails to make

“specific allegations regarding personal jurisdiction over the nonresident” defendant).

The coincidence that Plaintiff resides in Oregon is insufficient to establish purposeful

direction. See Walden, 134 S.Ct. at 1126 (“Petitioner’s relevant conduct occurred entirely in

Georgia, and the mere fact that his conduct affected plaintiffs with connections to the forum

State does not suffice to authorize jurisdiction”). Moreover, the Supreme Court has “made clear

that mere injury to a forum resident is not a sufficient connection to the forum.” Id. at 1125

(“The proper question is not where the plaintiff experienced a particular injury or effect but

whether the defendant’s conduct connects him to the forum in a meaningful way.”). Rather, a

“defendant’s suit-related conduct must create a substantial connection with the forum State.” Id.

at 1121 (emphasis added). Here, Plaintiff has alleged no suit-related conduct in Oregon. 14

In short, like the plaintiff in Walden, Plaintiff’s Complaint here “obscures the reality that

none of [plaintiff’s] challenged conduct had anything to do with [Oregon] itself.” Id. at 1125.

Because the Complaint completely fails to establish the required factual nexus between WWE

and Oregon necessary to exercise jurisdiction, it should be dismissed.

affiliated with the State.’” Norcom v. Lease Fin. Grp., LLC, No. 3:13–CV–2252–KI, 2014 WL 2747652, at *2 (D. Or. June 17, 2014) (quoting Walden v. Fiore, 134 S.Ct. 1115, 1123 (2014)). 14

Plaintiff cannot demonstrate that general jurisdiction exists over WWE. Under that standard, Plaintiff must prove that WWE carries on “substantial” or “continuous and systematic” business activities within the state sufficient so that justice allows the exercise of jurisdiction even for claims not arising from the defendant’s contacts within the state. Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F. 3d 1114, 1124, 1125 (9th Cir. 2002). Further, the Ninth Circuit “regularly . . . decline[s] to find general jurisdiction even where the [defendant’s] contacts were quite extensive.” Amoco Egypt Oil Co., 1 F. 3d at 851 n.3.





TELEPHONE: (503) 228-3200

b. Plaintiff Has Also Not Alleged That Each of His Claims Arise Out of or Relate to Any Contacts by WWE within Oregon

Plaintiff must also show that he would not have suffered an injury “but for” WWE’s

forum-related conduct. Omeluk, 52 F. 3d at 271 (personal injury claim did not arise out of

defendant’s forum related activities). Haynes Complaint does not make such allegations.

Therefore, his Complaint should be dismissed. See Ajinomoto N. Am., Inc. v. Pine Valley, Inc.,

No. 3:14–cv–00293–BR, 2014 WL 3349649, at *6 (D. Or. July 8, 2014) (“Plaintiff does not

identify any activity of Defendant in Oregon that gave rise to Plaintiff’s alleged injury.”).

c. Exercising Jurisdiction Over WWE Would Be Unfair and Unreasonable

The third prong of the personal jurisdiction test further cements why the Court should not

exercise jurisdiction over WWE. The third prong requires the Court to determine whether

exercising personal jurisdiction over WWE would “offend traditional notions of fair play and

substantial justice.” Amoco Egypt Oil Co., 1 F. 3d at 851 (internal quotations omitted). Courts

in the Ninth Circuit consider the following factors in this inquiry: (1) the extent of the

defendant’s purposeful interjection into the forum state’s affairs; (2) the burden on the defendant

of defending in the forum state; (3) the extent of conflict with the sovereignty of the defendant’s

state; (4) the forum state’s interest in adjudicating the dispute; (5) the most efficient judicial

resolution of the controversy; (6) the importance of the forum to the plaintiff’s interest in

convenient and effective relief; and (7) the existence of an alternative forum.15

Thiring v.

Borden, No. 06-759-AA, 2007 WL 1875656, at *8 (D. Or. June 27, 2007). The application of

these factors mandates the dismissal of this lawsuit.

First, WWE has minimally interjected itself, if at all, into Oregon’s affairs. WWE has no

constant or physical presence in Oregon. WWE does not lease or rent real property in Oregon

15

Where the burdens are equal, the law tips in favor of the defendant and against exercising jurisdiction because the law of personal jurisdiction is “asymmetrical,” and is primarily concerned with the protecting the defendant from the burden of being haled into a foreign court. Terracom v. Valley Nat’l Bank, 49 F. 3d 555, 561 (9th Cir. 1995).





TELEPHONE: (503) 228-3200

and derives minimal revenue from Oregon. To the best of our knowledge, WWE has never been

involved in litigation in Oregon prior to this case.

Second, WWE would be substantially burdened by defending this suit here. The “small

group of related executives” whom plaintiff alleges control WWE, see Am. Compl. ¶ 18, all

reside in Connecticut and would be significantly burdened defending in this District. This factor

almost automatically favors the defendant because the law is more concerned with the burden

that the lawsuit would impose on the defendant. See Bury v. N. Outfitters, LLC, No. 06-3081-

PA, 2007 WL 1431958, at *5 (D. Or. May 14, 2007) (Florida-based defendant would be

burdened in defending lawsuit in Oregon). This factor militates even more strongly against the

assertion of jurisdiction here because neither WWE nor the dispute have any connection with

Oregon. See Fed. Deposit Ins. Corp. v. British-American Ins. Co., 828 F. 2d 1439, 1444 (9th

Cir. 1987) (where “defendant ‘has done little to reach out to the forum state,’ the burden of

defending itself in a foreign forum militates against exercising jurisdiction”).

Third, Connecticut has a significant interest in adjudicating a dispute involving an entity

that is headquartered there. See Fed. Deposit Ins. Corp., 828 F. 2d at 1444 (transferee forum had

interest in adjudicating matter partly because defendant resided in transferee forum). On the

other hand, Oregon’s competing interest is not as significant because none of the alleged

wrongdoing occurred in Oregon. Id.

Finally, Plaintiff has an alternative available forum in Connecticut and, if not dismissed,

this dispute would be resolved more efficiently in Connecticut. Most of the witnesses are WWE

employees or representatives who work or reside in Connecticut. WWE’s corporate records are

also located in Connecticut. See Terracom, 49 F. 3d at 561 (efficiency of forum is evaluated by

considering where witnesses and evidence are likely to be located). Similarly, litigating in

Connecticut would make it more likely that these witnesses are reached by compulsory process.

See Fed. R. Civ. P. 45(c) (generally prescribing reach of subpoena within 100 miles of person’s

residence or place of employment). Finally, the substantial majority of putative class members





TELEPHONE: (503) 228-3200

are bound by a mandatory forum-selection clause requiring their claims to be prosecuted in

Connecticut.16 Fed Deposit Ins. Co., 828 F. 2d at 1444 (reviewing forum-selection clause as

factor in jurisdictional analysis).

Plaintiff’s Complaint fails to allege any viable jurisdictional facts that would show that

WWE has sufficient contact with Oregon to warrant the exercise of personal jurisdiction.

Because all relevant factors establish that the Court cannot reasonably exercise jurisdiction over

WWE in Oregon, the Court should grant WWE’s Motion to Dismiss on that ground if for any

reason it does not dismiss this lawsuit entirely for reasons previously argued herein.

3. Because the Court Lacks Personal Jurisdiction Over WWE, Plaintiff’s Complaint Must Also Be Dismissed for Insufficiency of Service of Process

Finally, Plaintiff’s Complaint must be dismissed pursuant to Rule 12(b)(5) of the Federal

Rules of Civil Procedure because he has not sufficiently served process on WWE. Rule 4(k)

defines the territorial limits of effective service of process, in relevant part, as follows:

“[s]erving a summons . . . establishes personal jurisdiction over a defendant . . . who is subject to

the jurisdiction of a court of general jurisdiction in the state where the district court is located.”

Fed. R. Civ. P. 4(k)(1)(A). Thus, as a non-resident, WWE may be summoned into this Court

only if it could be subjected to jurisdiction under the Oregon long-arm statute. S.E.C. v. Ross,

504 F. 3d 1130, 1138 (9th Cir. 2007). As set forth above, WWE is not subject to personal

jurisdiction in Oregon under the long-arm statute or under the minimum contacts analysis.

Accordingly, the purported service of process on WWE was beyond the territorial limits of

effective service prescribed by Rule 4(k), and the action against WWE must be dismissed.

III. CONCLUSION

For the foregoing reasons, Haynes’ Complaint should be dismissed with prejudice.

16 More specifically, booking contracts typically entered between WWE and its wrestlers after June 13, 1991, require that any disputes arising out of or relating in any way to the booking contracts be litigated in Connecticut. Langham Aff. ¶¶ 15-16. Certain booking contracts entered into between 1997 and 1999 have an arbitration provision requiring arbitration in Connecticut. Id. No contract between WWE and a wrestler has a forum selection clause of Oregon. Id. ¶ 17.





TELEPHONE: (503) 228-3200

DATED: March 31, 2015.

K&L GATES LLP By: /s/ B. John Casey B. John Casey, OSB #120025 [email protected] Jerry S. McDevitt (pro hac vice) [email protected] Curtis B. Krasik (pro hac vice) [email protected] Attorneys for Defendant World Wrestling Entertainment, Inc.


CERTIFICATE OF SERVICE K&L GATES LLP

ONE SW COLUMBIA STREET SUITE 1900

PORTLAND, OR 97258 TELEPHONE: (503) 228-3200

CERTIFICATE OF SERVICE

I hereby certify that on this 31st day of March, 2015, I caused to be served a copy of the

foregoing DEFENDANT WORLD WRESTLING ENTERTAINMENT, INC.’S MOTION TO

DISMISS AND SUPPORTING MEMORANDUM OF LAW on the following parties via the

Court’s CM/ECF System:

Steve D. Larson Joshua L. Ross Stoll Stoll Berne Lokting & Shlachter P.C. 209 SW Oak Street, Suite 500 Portland, OR 97204 Email: [email protected]; [email protected]

Attorneys for Plaintiff William Albert Haynes III

Pro Hac Vice admitted attorneys for Plaintiffs:

Konstantine Kyros Taylor Asen Kyros Law Offices, PC Cuneo Gilbert & LaDuca, LLP [email protected] [email protected]

Erica Mirabella Scott Moriarty Mirabella LLC Lockridge Grindal Nauen PLLP [email protected] [email protected]

Brendan Thompson Robert Shelquist Cuneo Gilbert & LaDuca, LLP Lockridge Grindal Nauen PLLP [email protected] [email protected]

Charles LaDuca Cuneo Gilbert & LaDuca, LLP [email protected]

DATED this 31st day of March, 2015.

/s/ B. John Casey B. John Casey










Documents

B. John Casey, OSB No. 120025 K&L GATES LLP Portland, …media.oregonlive.com/portland_impact/other/WWE motion to dismiss.pdf · B. John Casey, OSB No. 120025 Email: ... Bates v