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The United States Court of Appeals for the Second Circuit issued the following Mandate on 10/22:
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Appeal from the United States District Court for the District of Connecticut 14 (Bryant, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 16 AND DECREED that the appeals of sanctions orders are DISMISSED, the merits appeals of the dismissal of all claims in Haynes v. World Wrestling Entertainment, Inc., McCullough v. World Wrestling Entertainment, Inc., Frazier v. World Wrestling Entertainment, Inc., and Singleton v. World Wrestling Entertainment, Inc. are DISMISSED, and the judgment of the district court on all other claims is AFFIRMED.
This appeal arises from seven cases consolidated in the United States District Court for the District of Connecticut.
The cases were brought against World Wrestling Entertainment Inc. by former WWE wrestlers. The plaintiffs-appellants allege that, as a result of physical trauma they experienced while performing, they suffered neurological damage resulting in diseases such as chronic traumatic encephalopathy (“CTE”), in addition to other significant physical and mental health impairments. In each of the cases, the plaintiffs-appellants were represented by the same attorney, Konstantine W. Kyros of 6 Kyros Law P.C. We assume the parties’ familiarity with the underlying pleadings and their factual allegations, the procedural and substantive rulings below, and the issues on appeal.
The first complaint in the consolidated cases was a putative class action filed in the District of Oregon in October 2014 on behalf of William Albert Haynes III, better known as Billy Jack. Haynes v. World Wrestling Entm’t, Inc., Several months later, in January 2015, former wrestlers Vito LoGrasso and Evan Singleton filed a putative class action in the Eastern District of Pennsylvania. Both wrestlers had selection clauses in their contracts with WWE providing that litigation arising from the contract be brought in the District of Connecticut, where WWE is headquartered. The Pennsylvania court enforced the forum selection clauses and transferred the Singleton case that was a part of the consolidation below but is not appealed here was originally filed by Kyros in June 2015 in the Northern District of Texas. The district court dismissed James in November 2016 for Plaintiffs’ lack of standing.
In February 2015, the estate of Nelson Lee Frazier 2 Jr., a deceased wrestler, commenced a wrongful death action in the Western District of 3 Tennessee. In April 4 2015, wrestlers Russ McCullough, Ryan Sakoda, and Matthew Wiese commenced 5 another putative class action, this time in the Central District of California.
Around June 2015, the district court in Connecticut presiding over the Singleton action became aware of the pending actions in Oregon, Tennessee, and California. The contracts with WWE signed by the wrestlers in each case contained forum selection clauses requiring litigation in the District of Connecticut. All of the actions were eventually transferred to Connecticut where they were consolidated before the district court. In March 2016, the district court dismissed all claims in the Haynes, Singleton, and McCullough actions for failure to state a claim, with the exception of fraudulent omission claims on behalf of Singleton and LoGrasso.
In November 2016, the district court granted WWE’s motion to dismiss the wrongful death claim asserted in Frazier. Frazier, who died in 2014, had been cremated without having any of his brain tissue examined. Frazier’s counsel had argued to the district court that CTE can be diagnosed only through a post-mortem examination of brain tissue. Because no examination had been done on Frazier, the court concluded that his estate could not plausibly allege that he had CTE. The court also concluded that Frazier’s estate failed to plead any non-conclusory allegations linking Frazier’s death to 2 injuries sustained while wrestling. Frazier had died of a heart attack, and the operative pleading contained no allegations that heart failure could result from CTE.
In a decision filed on March 28, 2018, the district court granted summary judgment on the remaining fraudulent omission claims in Singleton. The district court concluded that the plaintiffs had not produced evidence establishing that WWE knew of a risk of permanent degenerative neurological conditions prior to September 2007, when a widely publicized report on CTE (the “Benoit report”) discussed those conditions. The court concluded that no reasonable jury could find that WWE concealed the dangers allegedly associated with wrestling.
After the district court dismissed all claims in the Haynes and McCullough actions and dismissed all but the fraud-by-omission claim for each plaintiff in the Singleton action, the Haynes and McCullough plaintiffs filed notices of appeal in this Court. WWE moved to dismiss those appeals on the grounds that the appeals were not taken from a final judgment that disposed of all the consolidated cases. A panel of this Court, applying the then-current law of this Circuit, agreed that the final judgments in Haynes and McCullough could not be appealed until final judgments had been entered in all the consolidated cases. Accordingly, the panel dismissed the Haynes and McCullough appeals without prejudice
More than a year later, on March 27, 2018, the Supreme Court held that in 2 consolidated cases such as these, a final judgment in one of the cases is immediately appealable even where final judgments have not been entered in each of the consolidated cases. (a) did not purport to alter the settled understanding of the consequences of consolidation. That understanding makes clear that when one of several consolidated cases is finally decided, a disappointed litigant is free to seek review of that decision in the court of appeals.”). Following the decision in Hall, neither the appellants in Haynes and McCullough, nor any plaintiff in Singleton or Frazier sought relief from this Court or in the district court. This inaction was fatal. Arguments as to Hall’s applicability or as to any “work arounds” have been waived. Hall controls and renders the notices of appeal in Haynes, Singleton, Frazier, and McCullough untimely. Untimely notices of appeal are jurisdictional bars to this Court’s review.
Accordingly, we lack appellate jurisdiction over the appeals in Haynes, McCullough, Frazier, and Singleton and, for that reason, those appeals are dismissed.
n July 2016, Laurinaitis v. World Wrestling Entm’t, Inc., No. 3:16-cv-1209 21 (VLB), a suit brought by fifty former WWE wrestlers, was commenced in the District of 22 Connecticut. The complaint included a number of tort claims and, in addition, relief under various statutes on the ground that, in its contracts with the wrestlers, WWE had misclassified them as independent contractors. WWE moved to dismiss the action and the district court granted the motion, holding that the claims were either time-barred, barred by prior rulings, or frivolous. Connecticut law requires tort claims to be brought “within three years from the date of the act or omission complained of.” The three-year 7 period “begins with the date of the act or omission complained of, not the date when the 8 plaintiff first discovers an injury.” Collum v. Chapin, 40 Conn. App. 449, 451–52 (1996) 9 (citing Fichera v. Mine Hill Corp., 207 Conn. 204, 212–13 (1988)).
The complaint in Laurinaitis alleges that WWE concealed the risk that concussive blows to the head could cause permanent degenerative neurological conditions with the aim of inducing the wrestlers to continue performing. The district court dismissed the complaint, reasoning that any concealment of information alleged to have occurred must have occurred at a time when the wrestlers were still performing, and because it was not disputed that none had wrestled later than 2011, their tort claims were time-barred. We find no error in the district court’s conclusion. Under Connecticut law, wrongful death claims must be brought “within two years from the date of death” except that “no such action may be brought more than five years from the date of the act or omission complained of.”
The district court correctly determined that none of the plaintiffs in the Laurinaitis action had wrestled for WWE within five years of the filing of that complaint and thus the wrongful death claims were also time-barred. Again, we find no error. The remaining claims are also time-barred. The misclassification claims allege that the wrestlers’ classification as independent contractors was a part of a scheme to defraud. Even assuming the longer six-year statute of limitations for contract claims applies, compare none of the 8 wrestlers plausibly alleged that they were first misclassified within six years of the filing of the Laurinaitis complaint. Finally, we affirm the dismissal of plaintiff’s Occupational Safety and Health Act (“OSHA”), Employee Retirement Income Security Act 11 (“ERISA”), Racketeer Influenced and Corrupt Organizations Act (“RICO”), Family and Medical Leave Act (“FMLA”), and unconscionable contracts claims for the reasons stated by the district court.
Connecticut statutes of repose may, under appropriate circumstances, be tolled under what its courts term the ‘continuing course of conduct’ doctrine. Watts v. 16 Chittenden, 301 Conn. 575, 583–84 (2011) (recognizing that a period of repose may be tolled in the proper circumstances, reflecting the “policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied”). Appellants contend that it applies in this case. Pursuant to that doctrine, a plaintiff must show that a defendant: “(1) committed an initial wrong upon the plaintiff; (2) owed a continuing duty to the plaintiff that was 22 related to the alleged original wrong; and (3) continually breached that duty.”
Where Connecticut courts have found a duty “continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act.” Macellaio v. Newington Police Dep’t, 145 Conn. App. 426, 435 (2013). The existence of a special relationship “will depend on the circumstances that exist between the parties and the nature of the claim at issue.” Saint Bernard Sch. of Montville, Inc. v. Bank of Am., 312 Conn. 811, 835 (2014). The district court concluded that the Laurinaitis plaintiffs failed plausibly to allege a special or continuing relationship between themselves and WWE, in part because “a 11 mere contractual relationship does not create a fiduciary or confidential relationship,” Id. 12 at 836.
There were no plausible allegations in the complaint that could lead the court reasonably to conclude that WWE had a continuing duty to provide comprehensive health care to the wrestlers after they stopped performing. Likewise, the district court was unpersuaded by the allegation that continuing royalty payments somehow gave rise to a duty on the part of WWE with respect to the alleged misclassification as independent contractors. We agree with the district court and we similarly conclude that the continuing-course-of-conduct doctrine did not cause the otherwise applicable statutes of limitation or repose to be tolled.
The district court was also correct that the statutes of limitation and repose should not be tolled under the fraudulent concealment doctrine. For the doctrine to apply, the wrestlers were required plausibly to allege that WWE “(1) had actual awareness, rather than imputed knowledge, of the facts necessary to establish the plaintiffs’ cause of action; (2) intentionally concealed these facts from the plaintiffs; (3) and concealed the facts for the purpose of obtaining delay on the plaintiffs’ part in filing a complaint on their cause of action.” Falls Church Grp., Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 105 (2007). Proof of fraudulent concealment requires “clear, precise, and unequivocal evidence.” Id.
We agree with the district court that the complaint in Laurinaitis contained no plausible allegations that WWE fraudulently concealed any causes of action from its wrestlers. We therefore affirm the district court’s grant of WWE’s motion to dismiss the Laurinaitis action. IV. During the course of the actions discussed above, WWE moved under Rules 37 and 11 sanctions ordersfor sanctions against plaintiffs-appellants’ counsel in the Singleton and Laurinaitis actions. The district court referred the motions to Magistrate Judge Robert A. Richardson who, in a Report and Recommendation dated February 22, 2018, recommended that monetary sanctions be awarded. The district court adopted the Recommendation. The district court wrote that “this case has been characterized by [counsel’s] repeated failures to comply with the clear and unambiguous provisions of the Federal Rules of Civil Procedures and this Court’s repeated instructions and admonitions, which has resulted in a considerable waste of the Court’s and the Defendants’ time and resources.” While sanctions have been awarded, the amount of sanctions has not been determined; consequently, this Court lacks appellate jurisdiction over the sanctions .
We therefore dismiss appellant Kyros’s appeal of the Rule 37 and Rule 11 sanctions orders. We have considered the plaintiffs-appellants’ remaining arguments and conclude that they are either waived or without merit. In sum, the appeals in Haynes v. World Wrestling Entertainment, Inc., No. 3:15- 9 cv-1156 (VLB), Singleton v. World Wrestling Entertainment, Inc., No. 3:15-cv-425 10 (VLB), Frazier v. World Wrestling Entertainment, Inc., No. 3:15-cv-1305 (VLB), and 11 McCullough v. World Wrestling Entertainment, Inc., 172 F. Supp. 3d 528 (D. Conn. 12 2016) (VLB), are dismissed because the notices of appeal were untimely and we 13 therefore lack appellate jurisdiction.
We also lack appellate jurisdiction over the appeal of sanctions orders in Singleton 15 and Laurinaitis v. World Wrestling Entertainment, Inc., No. 3:16-cv-1209 (VLB) because the amount of the sanctions has not been set and thus the order is not yet final. Finally, we affirm the district court’s dismissal of all claims in Laurinaitis. Those claims are time barred, and the plaintiffs-appellants have failed to plausibly allege that the applicable limitations period should be tolled.
CONCLUSION
Accordingly, the appeals of the merits orders in Haynes, McCullough, Frazier, and Singleton are DISMISSED for lack of appellate jurisdiction. The appeal of sanctions ordered in Laurinaitis and Singleton is DISMISSED for lack of appellate jurisdiction. The judgment of the district court in all other respects is AFFIRMED.
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