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Demolition verses WWF (WWE) Lawsuit (Settled 1997)

No. 5:91CV0423(WWE), No. 5:92CV0216 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT. March 12, 1997, Decided. March 12, 1997, FILED

DISPOSITION: Defendants' motion for summary judgment of defendants (Document # 109) in Eadie v. McMahon, No. 5:91CV0423(WWE) DENIED. Defendants' motion for summary judgment (Document # 44) in Colley v. McMahon, No. 5:92CV0216(WWE) granted in part and denied in part. COUNSEL: Attorney(s) for Plaintiff: Scott Centrella, Diserio, Martin, O'Connor & Castiglioni, Stamford, CT. Attorney(s) for Defendants: David Zabel, Cohen & Wolf PC, Bridgeport, CT. Theodore Dinsmoor, Finnegan & Stancle, Boston, Ma. JUDGES: WARREN W. EGINTON, Senior United States District Judge OPINION BY: WARREN W. EGINTON. OPINION: Ruling on Defendants' Motions for Summary Judgment

Perhaps more appropriately described as "Ax" and "Smash" of "Demolition" versus Titan, these cases provide an interesting glimpse into the world of professional exhibition wrestling. These lawsuits arise out of defendants' alleged misappropriation and commercial exploitation of the plaintiffs' ideas for two fictional wrestling characters, known as "Ax" and "Smash" of a wrestling tag team called "Demolition." Plaintiffs have sued defendants on various theories including breach of contract, fraudulent misrepresentation, negligent misrepresentation, conversion, wrongful termination, unjust enrichment, restitution, and violation of Connecticut's Unfair Trade Practices Act (CUTPA). Defendants move for summary judgment as to all counts of both complaints n1 on the ground that the booking agreements signed by plaintiffs granted Titan all rights to these fictional wrestling characters and are an absolute bar to the plaintiffs' claims. Alternatively, as to certain counts, they argue that plaintiffs' claims are time-barred by the applicable statutes of limitations.

Before delving into the merits of defendants' motions for summary judgment, a discussion of professional exhibition wrestling and the history of plaintiffs' involvement with defendants is necessary.

FACTS: Titan Sports, Inc. Defendant Titan Sports, Inc., ("Titan") is a Delaware corporation with its headquarters in Stamford, Connecticut. Titan creates, produces, and promotes professional wrestling exhibitions and television programming throughout the world. Titan owns all of the rights to the service marks "World Wrestling Federation" and "WWF" which are used to symbolize its live professional wrestling exhibitions and television programming.

Defendant Vincent K. McMahon was formerly President of Titan and later its Chief Executive Officer. At all times relevant to plaintiffs' complaints, he was the person at Titan responsible for booking wrestlers, negotiating the financial terms and conditions of their engagements, and was generally responsible for all of Titan's wrestling operations.

The WWF wrestling exhibitions feature two or more professional wrestlers, often appearing as fictional characters in outlandish costumes, who demonstrate their wrestling skills and abilities in the context of a simulated wrestling match. All of the personnel appearing in WWF wrestling matches are performing in designated roles including the wrestlers themselves, the managers who attend them, and the officials, such as referees and timekeepers. According to defendants, these wrestling matches are roughly scripted or formatted so that the winner of each match is predetermined. Professional exhibition wrestling is a form of staged entertainment, not a contest to win like a sport.

Titan produces its live professional wrestling exhibitions by providing all financing for the exhibitions, preparing creative material for the exhibitions, engaging the wrestlers and other characters who appear and perform in the exhibitions, hiring the hall or arena for the exhibitions, setting up the staging and other equipment, directing the exhibitions, promoting the exhibitions, and selling tickets to wrestling fans. Titan owns and controls the rights to its exhibitions, including television rights.

Titan also uses its professional wrestling exhibitions for the production of its own original television programs. Titan provides all personnel and equipment for recording the exhibition and then takes the recordings to its studios for purposes of formatting and editing to produce a television program. Titan then distributes these television programs to television stations for broadcast or to cable stations for cablecast.

Titan asserts that the individuals who appear and perform in WWF wrestling exhibitions are required to execute booking agreements with Titan, which set forth the contractual relationship between Titan and its wrestlers. As will be discussed more fully below, contrary to Titan's assertion, it is not clear that Titan always required a booking agreement and it also is not clear whether a booking agreement was executed for each character that a wrestler portrayed (the wrestler's "ring name") or whether a single agreement covered more than one character that a wrestler might portray over the course of several years.

Two of the wrestlers who appeared in WWF wrestling exhibitions are the plaintiffs in these cases, Randy Colley and William Eadie, both of whom had been involved in professional wrestling exhibitions since the early 1970's.

Randy Colley

Randy Colley began his career as a professional wrestler in the early 1970's in the South, wrestling for various promoters under his own name and later as characters such as "The Executioner," "The Assassin," and "The Mountain Man," with a costume appropriate for each character. For example, as "The Mountain Man" he wrestled in jeans and a ragged cowboy hat. He generally worked with a partner, who assumed the role of a related character. He would wrestle both single match and tag team n2 and at times worked "baby face" and at other times "heel," which terms, although not defined by the parties, presumably reference the "good guy" and "bad guy" roles played by the wrestlers.

Colley began working midcard and gradually worked up to main event. The card is the program of wrestling matches, with the main event being the major attraction for a live wrestling match. Colley describes "midcard" as "when you go out and just squash somebody and then the last couple of weeks around you are the main event." (Colley depo at 53). n3 It is the main event wrestlers that earn the largest percentage of the gate receipts at a live show.

As Colley's wrestling career took off, he began to look at new territories in which to wrestle. In September, 1979, Colley began working in New York for Vincent J. McMahon, Sr., then President of Titan's predecessor corporation, Capitol Wrestling Corporation. As Colley describes it, he was "climbing on the way up from mid to main event" (Colley depo at 58), and was told by fellow wrestlers that New York was the place to be. He began wrestling for McMahon, Sr., under the ring name "Ripper Hawkins."

McMahon, Sr., was impressed with Colley's aggressiveness in the ring and encouraged him to "put some more thought into his gimmick." n4 (Colley depo at 61). According to Colley, McMahon, Sr., told him "because I was so wild looking, with the hair bleached out and -- I was so excited finally about being on New York TV that I was just like 90 miles an hour. He [McMahon, Sr.] said, 'That is the excitement I'm looking for. . . . Let's get something we can go with." (Colley depo at 62).

So Colley came up with a new gimmick in the form of a new persona or wrestling character, "Moondog Rexx," who wore ragged pants and carried a big bone, with wild long hair sprayed to stick out in spikes. As "Moondog Rexx," he worked tag team with another wrestler who became known as "Moondog King," and together they appropriately became known as the "Moondogs." Colley wrestled as "Moondog Rexx" for about a year. The record is unclear as to exactly when Colley first began wrestling as "Moondog Rexx," but it appears from his deposition testimony that it was in the early 1980's. (Colley depo at 67-79).

According to Colley (Colley depo at 67): "At this time a year was about your limit there. And then it was time for somebody else to come in." They "needed new faces." McMahon, Sr., told Colley to "go out for awhile, stay in contact with him, . . . he liked the Moon Dog thing. In fact, he made us the tag team champions." So, Colley left New York and went to South Africa, wrestling as "Moondog Strongbow" for another promoter and as "Moondog" for several other promoters in the southern United States. As these various "Moondog" characters, he always appeared in the same costume he wore as "Moondog Rexx."

As instructed, Colley stayed in touch with McMahon, Sr., and went on several Middle Eastern tours for McMahon, Sr., as "Moondog Rexx." In 1984 he returned to New York to work for WWF for another year as "Moondog Rexx." In 1985, he was scheduled to return to the Middle East for WWF. Those bookings fell through due to problems in the Middle East, and Titan had already booked its United States shows. So, Colley once again left WWF to wrestle for other promoters in the South, this time as "The Nightmare," and as such, he became the North American champion. Finally, after a stint in Japan for New Japan Pro-Wrestling, he returned to New York in response to a call from the WWF, once again to appear as "Moondog Rexx."

Titan alleges that on January 15, 1985, Colley, using the "ring name" of "Rexx Moondog," signed a booking agreement with Titan. The copy of the 1985 agreement that has been provided by defendants in support of their motion for summary judgment is incomplete. However, the portion that has been supplied indicates the agreement was between Titan Sports, Inc. ("Promoter") and "Randy Colley ("Wrestler") whose ring name is 'Rexx Moondog.'" The territory of the agreement was "the world" and the term was for two years from the date of the contract. The agreement provided that it would automatically renew for successive one-year terms unless either party served written notice of that party's decision to terminate the agreement.

In October, 1986, a second contract was signed between the parties apparently because Titan had misplaced the original contract. The contract is not dated, and Colley states in his affidavit that it never was dated. The only information that has been provided regarding when the second agreement was signed is a transmittal letter from WWF to Colley bearing the date of October 6, 1986.

This second agreement was signed by Colley using the ring name "Moondog Rex." The term of the contract was for two years "from the date hereof," there being no date as noted above, with automatic renewals unless terminated by either party in writing. It is unclear whether the parties intended this contract to date back to the original 1985 contract or whether the initial two-year term would commence from the date the new agreement was signed. Regardless of the contract term, however, the evidence indicates that Colley wrestled as "Moondog Rexx" for Titan until late 1986.

Under the terms of both booking agreements, the "Wrestler" granted to Titan the right to book Wrestler for professional wrestling events whether before a live audience or for broadcast, and to own in perpetuity all of the rights, results, products and proceeds in and to, or derived from, Wrestler's services hereunder (including without limitation, all incidents, dialogue, characters, actions, gags, routines, ideas, titles, inventions, and other material written, composed, submitted, added, improvised, interpolated and invented by Wrestler in connection with the rendering of Wrestler's services hereunder) (Emphasis added).

In consideration for the services to be performed, Wrestler was to receive certain compensation, which included a $ 50 per diem appearance fee; and "an amount equal to such percentage of the gross gate receipts for [an event in an arena before a live audience] as is consistent with the nature of the wrestling match in which Wrestler appears, i.e., preliminary bout, main event, etc., and the prevailing practices of the United States professional wrestling community; and at the sole discretion of the Promoter;" and five percent (5%) of the net receipts on the sale of Wrestler's merchandise items in arenas or through Promoter's mail order outlet and twenty-five (25%) of net receipts from outside licensing. (Section 4)(emphasis added). The agreements further provided that:

Wrestler acknowledges the right of Promoter to make any changes in the product of any of the Wrestler's services hereunder . . . . Wrestler acknowledges and agrees that Promoter's decision with respect to any agreement disposing of the rights to Wrestler's Name and Likeness . . . will be final. (Section 9).

Wrestler acknowledges that his ring name, and any props and/or costumes associated with Wrestler in the performance of his services hereunder are trademarks of Promoter . . . and all rights therein and good will pertaining thereto belong exclusively to Promoter, and that all use of the Trademarks will inure to the exclusive benefit of Promoter. (Section 10).

Wrestler acknowledges and agrees that the services to be rendered or furnished by him and the rights granted to Promoter hereunder are of a special, unique, unusual and extraordinary character, giving them peculiar value . . . . (Section 13).

As noted above, although the record is not clear as to when Colley first began wrestling for Titan as "Moondog Rexx," it is clear that he began in this role for Titan prior to the execution of the first booking agreement and that he worked for other promoters in similar roles using the same costume at various times during the 1980's.

William Eadie

William Eadie, who had also been wrestling since the early 1970's, entered into his first booking agreement with Titan Sports on January 6, 1984. n5 The agreement provided for Eadie to appear and wrestle professionally as "The Masked Superstar" for Titan for the year 1984. Eadie claims that he terminated this agreement at the end of 1984 when he communicated his intention to terminate the agreement to several agents of Titan at the Olympic Auditorium in Los Angeles, California in December, 1984. Indeed, the contract stated that it would terminate on December 31, 1984, "unless extended for an additional period of time at the sole discretion of Promoter [Titan]." All notices required by the agreement were to be in writing. Neither party has produced a written extension of this agreement, and the evidence is undisputed that in January, 1985, Eadie left Titan and entered into a written agreement with New Japan Pro-Wrestling of Tokyo wherein he agreed to wrestle as "The Masked Superstar" for that Japanese promoter. Titan had no involvement with this contract or with his performances for New Japan Pro-Wrestling.

In compliance with this new agreement, Eadie wrestled for New Japan Pro-Wrestling on various tours from January, 1985, through January, 1987, in Japan, Taiwan and Pakistan. When not touring for New Japan Pro-Wrestling, he worked as "The Masked Superstar" for several other promoters, including several in the southern United States, one from Montreal, and another in Kuwait. None of his booking agreements with these promoters involved Titan.

In September, 1986, Eadie returned to wrestle for Titan as "The Super Machine" along with Andre the Giant as members of the tag team known as "The Machines." This stint lasted eight to ten weeks, and he was paid at a rate of compensation that was approximately twice what he had received when wrestling for Titan as "The Masked Superstar." n6 Neither party has produced a booking agreement for Eadie's appearing as "The Super Machine" and, based on events that later transpired wherein Titan tried to resurrect the 1984 Masked Superstar agreement, one could reasonably infer that there never was a booking agreement for "The Super Machine."

Collie and Eadie Become Partners -- The Creation of "Ax" and "Smash" of "Demolition"

Colley states that in 1986 he approached Vincent K. McMahon n7 about a new character, a "Demolition type of character," which he claims to have conceived several years earlier. He describes this "Demolition" character as very colorful, totally different from "Moondog" in terms of his interview style and ring gestures all of which were an integral part of this new character. The "Demolition" character wore a black costume with studs and spikes. Part of the gimmick for this character was a hockey mask and jacket that looked like heavy armor but could be easily removed as the wrestler made his entrance into the ring. According to Colley, the costume was "designed in a way when you walked through the ropes all you had this, like whoosh, and the outfit was gone, just that quick." (Colley depo at 135). Colley showed the costume to McMahon who "loved it" and told him he was "going all of the way with it. This is going to be the big money." (Colley depo at 153).

Colley and McMahon discussed whether the "Demolition" character should wear a mask or facial make-up and Colley insisted on facial make-up so that his facial expressions would be visible to the audience when he got hit. As it later turned out, this may have been an unfortunate choice for Colley.

While Colley claims to have developed this "Demolition" character several years earlier, Titan attempts to downplay the uniqueness of this character and asserts that the idea came directly from another popular wrestling team, "The Road Warriors." Titan also attempts to take credit for developing the two "Demolition" characters. While the extent of Eadie's involvement with the initial development of the "Demolition" characters is not set forth in detail, Eadie admits that in developing this character he and Colley were influenced by The Road Warriors, but that they also took part of the concept from the Monkey Man, as well as from Humongous, both of whom are apparently other professional wrestlers, as well as from various motion pictures, including Mad Max, Friday the Thirteenth, Humongous, Conan the Barbarian, and Planet of the Apes. Regardless of the uniqueness of the characters, it is undisputed that Titan was able to develop dolls, videos, and other concession items based on these characters and that it obtained several copyright registrations for products bearing the likeness of the "Demolition" characters for which it collected significant sums of money.

The two "Demolition" tag-team characters were called "Smash" and "Ax," with Colley portraying "Smash" and Eadie portraying "Ax." Titan claims that McMahon suggested that they put the new wrestling characters "on hold" because Titan had already booked sufficient wrestlers for the WWF wrestling events for the next few months. It is undisputed, however, that on December 29th or 30th, 1986, at a meeting involving McMahon and several other Titan representatives with Colley and Eadie, McMahon agreed to book Eadie and Colley in the roles of "Ax" and "Smash" of "Demolition" at the Meadowlands, New Jersey on January 5, 1987, and at Hershey, Pennsylvania, on January 6, 1987.

No one contends that a new booking agreement was signed by Titan and Eadie or Colley for these characters. Colley contends, however, that at the various meetings that took place regarding these new characters, he was repeatedly told by "various agents of Titan how glad they were that I was getting this opportunity [to wrestle as the character "Smash"] and how much money I would be making." (Colley affidavit at P 7; see also Colley depo at 215). He further alleges that every time he talked to McMahon about the finances associated with the character, McMahon informed him not to worry and McMahon stressed how much money he would be making. (Colley affidavit at P 8).

While all parties admit that no specific dollar amounts were discussed at the meetings, Colley and Eadie contend that McMahon promised them that they were going to be the main event and that an oral contract was formed between the parties regarding their compensation for the development and portrayal of these new professional wrestling characters. Colley states that they were to paid according to the main event "pay scales," which presumably referred to the customary practice in the wrestling industry as referenced in their earlier booking agreements.

As will be discussed more fully below, defendants counter that there never was an oral contract; that there never was a meeting of the minds; and that the original booking agreements with each party controlled the relationships of the parties vis-a-vis these new characters.

Round One

Unfortunately, Colley's debut as "Smash" did not turn out to be a smashing success for him. When he appeared at the Meadowlands, some of his hard-core fans immediately recognized him as "Moondog Rexx" and began chanting "Moon Dog! Moon Dog!" Despite the fact that Colley had gone to great lengths to disguise his appearance and to avoid recognition, including driving a rental car to the event so that his fans would not recognize his car, and despite the drastic change in his costume -- from ragged blue jeans and a large dog bone to black leather with spikes and studs -- the appearance of his nose somehow gave him away; so he was told by many people.

Fortunately for Eadie, however, no one recognized him as his former persona, "The Masked Superstar."

Round Two

The second night was no better for Colley. Colley's fans in Hershey once again recognized him as "Moondog" and began the same chant. McMahon was extremely upset by the fans' recognition of Colley as "Moondog Rexx," presumably because he could not credibly portray his new character "Smash," and McMahon decided that he had to be replaced. McMahon substituted another wrestler as "Smash," and Colley never wrestled again as part of the "Demolition" tag team. Eadie, however, continued to wrestle as "Ax."

Eadie's Career as "Ax"

While Eadie continued to wrestle in the role of "Ax" of "Demolition" from January, 1987, until June 26, 1990, he alleges that he did so without a contract and was under-compensated for his work. He states that he was repeatedly promised compensation by McMahon in addition to the monies he actually received for his personal appearances and as royalties for the merchandising materials, but that these promises never materialized. Defendants state that Eadie received domestic earnings, including royalties, of $776,508 and Canadian earnings of $99,811 for the period 1987 to 1991.

In May, 1990, Eadie became ill after suffering what he describes as an allergic reaction to seafood he had eaten. Eadie claims that the doctor who examined him misdiagnosed his condition and communicated to Vincent McMahon that Eadie would never wrestle again. During his absence from work, McMahon replaced Eadie with another wrestler. Eadie claims that on May 26, 1990, he had a telephone conversation with McMahon who promised him that if he should become disabled from wrestling, Titan would employ Eadie as an agent for life. He states that this promise was reiterated to him on May 29, 1990. Eadie claims that he was promised a starting annual salary of $125,000, which was part of the bargain for his trading his interest in the "Demolition" characters that he had helped to develop.

In June, 1990, within weeks of McMahon's learning that Eadie might never wrestle again, another representative of Titan approached Eadie and asked him to sign an "amendment" to his 1984 booking agreement. Eadie refused to sign the document because he did not believe that the document was correct in several respects, including the fact that, in his opinion, the January 6, 1984 contract had been completed and terminated. In other words, there was nothing to amend. Subsequently, he was approached again by Titan about signing the amendment, and he again refused. Finally, on June 26, 1990, a representative of Titan threatened Eadie that if he did not sign the agreement he would be terminated immediately and would not be hired as an agent for life with Titan, as had been previously promised to him. Based on Titan's representation that he would be made an agent for life, and because of these threats, Eadie states that he finally signed the amendment. The amendment provided as follows:

At the time you signed your talent contract with us, your character identity as "Ax"/"Demolition" had not been established. Therefore, that ring name and characterization are not listed in the contract.

This letter will serve as an amendment to your contract. It acknowledges that effective September 1, 1987, you began wrestling for Titan Sports, Inc., d/b/a The World Wrestling Federation under the ring name and characterization of "Ax"/"Demolition," which name was created and developed by Titan, and that all rights granted to Titan under your contract dated January 6, 1984 as extended, including all terms and conditions therein, are and will remain in force and effect.

Eadie was cleared by his doctor to return to work in July, 1990. At that time, McMahon advised Eadie that he would work as a professional wrestler for Titan until March, 1991, at which time he would become an agent for Titan. Subsequently, Eadie states that he was told that he would start as an agent in January, 1991. Eadie asserts that on September 24, 1990, McMahon informed him that his wrestling activities with Titan would be terminated but that he would be given an agent's position with the company. This was reconfirmed at a meeting on October 9, 1990. On October 30, 1990, Eadie states that he met with McMahon, who told him that he would only be able to employ him for two to three days per week. This was not acceptable to Eadie, so on November 6, 1990, Eadie wrote to McMahon and requested that his wrestling contract not be renewed.

Titan registered several copyrights for products bearing the names and/or likeness of "Ax/Demolition" and "Smash/Demolition" and collected substantial sums of money as a result of vendor sales of toys, videos, and concessions based on the "Demolition" characters. Certain royalty payments were made to Eadie based on the "Ax/Demolition" sales ($61,533.43 for United States sales and $1,162.61 for Canadian sales through September 30, 1991), n8 but no royalty payments were ever made to Colley for "Smash/Demolition." Eadie's last match with Titan was in November, 1990. Since leaving Titan, Eadie has also received additional royalties of over $35,000.

Colley's Career After "Smash"

Colley claims that when he was replaced by another wrestler as "Smash" McMahon promised him a good position with Titan as a different character to make up for the money he was losing in not being part of the "Demolition" team. He states that they came up with the character of "The Shadow." Colley wrestled under this ring name for WWF for several months. By the end of 1987, however, he states, things were "pretty much a disaster." (Colley depo at 199). He complains that this new character was never developed by Titan to the point that it was promised to be. Colley left Titan with what he describes as an understanding that he would receive his promised compensation and that he would be put back to work as soon as a spot came open.

Colley turned to construction work, tried opening a gymnasium, and eventually returned to wrestling in Germany as "Moon Dog" again. In 1990 he returned to the South to wrestle for WWF's major competitor, World Championship Wrestling ("WCW") as the "Black Scorpion," "Moondog Rexx," and "Dead Eye Dick" (part of a Western Three Stooges wrestling routine). Unfortunately, during one of Colley's matches in WCW's "Big Bash," Colley was dropped on his head during a wrestling maneuver called the "DDT." The following night he hurt his head again. In 1992, he underwent surgery because of these injuries and since that time he has not been able to wrestle.

Colley states that in 1990 he ran into McMahon while wrestling in Alabama, and McMahon informed him that he would bring him back to work for Titan and would make good on his promise of compensation for the use of "Demolition." (Colley affidavit P 14). Colley states that McMahon told him to call in a couple of weeks and Titan would come up with a new gimmick for him. Colley alleges that through 1992 he was repeatedly promised a position with Titan as compensation for defendants' use of "Demolition." He never received this position he claims he was promised, and he asserts that he never received the compensation promised him for Titan's use and exploitation of his character "Smash."

DISCUSSION

A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the moving party is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The substantive law governing the case identifies those facts that are material on a motion for summary judgment. Anderson, 477 U.S. at 248. The burden of showing that there exist no genuine issues of material fact rests on the party moving for summary judgment. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.)(internal quotation marks and citation omitted), cert. denied, 506 U.S. 965, 121 L. Ed. 2d 359, 113 S. Ct. 440 (1992). In assessing the record to determine whether a genuine issue of material fact exists, all ambiguities must be resolved and all inferences must be drawn in favor of the party against whom summary judgment is sought. Anderson, 477 U.S. at 255. Within this framework, the facts of these cases will be reviewed as to each of the plaintiff's counts for purposes of determining whether defendants are entitled to summary judgment as to any or all of the claims asserted by plaintiffs.

Defendants' Motion for Summary Judgment as to Plaintiff Eadie Count I -- Breach of Contract

In the first count of his amended complaint, Eadie asserts that defendants McMahon and Titan breached an oral contract with him relating to the compensation he was to be paid for allowing defendants to commercially exploit the "Demolition" characters that he had developed. He alleges that defendants breached this oral contract both with respect to the amount of royalties he was to receive and the compensation he was to earn for wrestling live and on television and pay-for-view cable as the "Ax" of the "Demolition" team. Eadie alleges that Titan further breached this agreement by terminating him and refusing to continue paying him royalties.

Titan contends that the 1984 booking agreement governed the contractual relationship between it and Eadie. It argues that the extension of the agreement was at its sole discretion and that it was extended at least through 1990. Moreover, just as it had the power to extend the agreement, it claims that it had the power to limit it, such that its unilateral decision not to renew the agreement (presumably when it substituted a new wrestler as the "Ax") was within its contractual rights and not a breach of contract.

Eadie counters that the 1984 booking agreement pertained solely to his portrayal of the character "The Masked Superstar" and was not intended to create a contractual relationship beyond December 31, 1984. As evidence that his 1984 agreement was terminated, he asserts that he wrestled as "The Masked Superstar" for various other promoters for several years after December 31, 1984, and that Titan did nothing to try to stop him or to receive any compensation for the concept of "The Masked Superstar." Further, when he returned to Titan, he did so as "The Super Machine," under compensation terms different than in 1984. He states that as the "Ax" he worked for Titan only pursuant to an oral contract between the parties. Therefore, he claims his oral agreement with defendants, not the 1984 booking agreement, controlled the relationship between the parties, as it existed from January 1987 through November 1990 when he was wrestling as "Ax" of "Demolition."

The 1984 booking agreement contained a definite term and provided that it could only be extended by Titan. All notices were to be in writing. There is no evidence that this contract was ever extended in writing. At the end of the contract's initial term, Eadie left Titan and continued his wrestling career as "The Masked Superstar" for other promoters for three years. There is no evidentiary support for defendants' position that the 1984 agreement remained in force and effect during the intervening three years or that it covered Eadie's relationship with Titan when he wrestled as "The Super Machine" or as "Ax/Demolition."

Moreover, given the uncontradicted testimony of both plaintiffs regarding their wrestling careers, that they worked for numerous promoters in different territories under various ring names, and at times with the knowledge and consent of defendants, it seems implausible that the parties intended that a 1984 agreement relating to one particular character would govern the parties' relationship in perpetuity or to govern the wrestler's performance as other characters. As Colley testified, a wrestler could only wrestle in a given territory under a particular ring name for a limited period of time. The fans demanded new talent. Thus, the nature of the industry does not support defendants' reading of their own booking agreement.

In ascertaining the intent of the parties to a contract, the Connecticut courts have considered not only the language used in the contract but also the circumstances surrounding the making of the contract, the motives of the parties, and the purposes which the parties sought to accomplish. Barnard v. Barnard, 214 Conn. 99, 570 A.2d 690 (1990); John F. Epina Realty, Inc. v. Space Realty, Inc., 194 Conn. 71, 480 A.2d 499 (1984); Connecticut Co. v. Division 425 of Amalgamated Ass'n of St., Elec., Ry. and Motor Coach Emp. of America, 147 Conn. 608, 164 A.2d 413 (1960). Neither the circumstances surrounding the making of the original booking agreement nor the parties' motives nor the purposes sought to be accomplished by this agreement support the conclusion urged by defendants that the parties intended the original booking agreement to remain in effect or to cover other wrestling characters.

Further, the 1984 agreement provided that Eadie waived all rights to any income such as royalties from any promotional products. But, as noted above, Titan paid Eadie substantial royalties for "Ax" of "Demolition." Thus, the parties' course of dealings over the intervening years belies defendants' claim that the 1984 agreement controlled their relationship.

Titan invokes the 1990 "amendment" to the 1984 agreement to argue that the 1984 agreement controlled the parties' relationship during all of the intervening years, but genuine issues of material fact exist as to whether Eadie was fraudulently induced to sign that amendment at a time when he and Titan thought that his wrestling career might be coming to an end. The timing of the amendment is more than a little suspicious. One can reasonably infer that Titan was concerned about protecting its rights to the "Demolition" characters and was attempting to get a "headlock" on Eadie by forcing him to sign this amendment in an effort to protect its continued stream of income from the "Demolition" characters. If Eadie could not return to the ring, Titan wanted to insure that it had all rights to these characters, and, once it thought that it had secured those rights, it gave Eadie the "ax," so to speak.

Furthermore, defendants have not shown that any consideration was given to Eadie for his signing the "amendment" to an agreement that had already been terminated, and an amendment that would foreclose his right to receive future royalties for merchandise based on his "Ax/Demolition" character. See Brian Constr. & Dev. Co. v. Brighenti, 176 Conn. 162, 166, 405 A.2d 72 (1978); Dick v. Dick, 167 Conn. 210, 224, 355 A.2d 110 (1974). The court finds that the 1990 "amendment" was not a binding contract.

Therefore, the relationship between the parties had to have arisen as a result of an oral or implied contract as to the compensation to be paid Eadie and the royalties he was to receive.

In Connecticut, "an implied employment contract may arise under the doctrine of promissory estoppel, where injustice to a promisee who has acted in reliance can be avoided only by enforcement of 'a clear and definite promise which a promisor could reasonably have expected to induce reliance.' D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 213, 520 A.2d 217 (1987)." Manning v. Cigna Corp., 807 F. Supp. 889, 895 (D. Conn. 1991). Connecticut courts have held that the plaintiff must show that the employer agreed either by words or conduct to undertake some form of actual contractual commitment to him under which he could not be terminated without just cause. Coelho v. Posi-Seal Int'l, Inc., 208 Conn. 106, 112, 544 A.2d 170 (1988)(citations omitted). Statements made to an employee must be examined in light of the circumstances under which they were expressed. Torosyan v. Boehringer-Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 17 n. 6, 662 A.2d 89 (1995). The determination of whether certain statements were promissory, whether a contract was created, and what the parties intended to encompass in their contract are questions of fact, "peculiarly a jury function." Coelho, 208 Conn. at 113; Torosyan, 234 Conn. at n.6; see also Manning, 807 F. Supp. at 895.

The court finds that any contractual obligations between the parties arose as a result of an oral contract between Titan and Eadie under which the parties performed for over three years, if not longer. The precise terms of this contract, including the parties' intent concerning termination of the agreement, Eadie's rights to continuing employment, and Eadie's rights to continuing royalties, as well as whether any breach occurred, are factual issues to be resolved by a jury. Torosyan, 234 Conn. at 15-16; Heller v. Champion Internat'l Corp., 891 F.2d 432, 434-35 (2d Cir. 1989). Defendants' motion for summary judgment as to the breach of contract count of Eadie's first amended complaint will be denied.

Count II -- Quantum Meruit; Count V -- Unjust Enrichment

Defendants' next argument is premised on their first -- that plaintiff Eadie's claims for quantum meruit and unjust enrichment must de dismissed because there is an express written contract governing the relationship between the parties. Having found that the 1984 booking agreement was terminated in 1984 and was not resurrected by the 1990 amendment, the court will also deny defendants' motion for summary judgment on these two counts.

Count III -- Fraudulent Misrepresentation

In Count III, Eadie asserts that defendants made certain fraudulent misrepresentations to him regarding compensation he would receive as royalties for defendant's use of the characters "Ax" and "Smash" of "Demolition" and in reliance on this, he allowed Titan to copyright these characters. While Titan does not copyright the characters per se, it states that it has obtained copyrights on videotapes portraying the characters and on other items of merchandise.

Defendants argue somewhat inconsistently that plaintiff Eadie's claim for fraudulent misrepresentation must be dismissed because under the 1984 agreement, which they contend was in full force and effect, Eadie waived the right to all income from royalties; notwithstanding which, Titan paid Eadie royalties anyway; and, therefore, there could be no detrimental reliance.

As previously found, the 1984 booking agreement does not govern Titan's relationship with Eadie as "Ax/Demolition" nor does it govern Eadie's rights to the "Demolition" characters. Obviously, Titan must have felt some obligation to pay royalties or it would not have gratuitously turned over in excess of $100,000 to Eadie. Genuine issues of material fact abound as to what representations were made to Eadie regarding the royalty payments and what actions were taken in reliance on these representations. Defendants' motion for summary judgment on this count will be denied.

Count IV -- Fraudulent Inducement

Defendants next move for summary judgment as to Eadie's fraudulent inducement count on the ground that the undisputed facts show that what Eadie considered to be an offer of permanent employment was based on his own assumptions, not based upon any proposal that McMahon actually made to him. Moreover, defendants assert that any permanent employment is terminable at will under Connecticut law. Finally, they assert that there was no detrimental reliance by Eadie for he had no rights in the abstract to the characters "Ax" and "Smash" of "Demolition," which were neither novel nor original in that they were based on another wrestling group, "The Road Warriors."

Defendants misconstrue Eadie's Fourth Cause of Action. Eadie contends that defendants intentionally and fraudulently induced him to sign the amendment to the 1984 booking agreement with promises of permanent employment with compensation commencing at an annual salary of $125,000 at a time when defendants thought Eadie could no longer wrestle. Eadie claims that defendants had no intention of providing him with employment, as he soon thereafter discovered. In reliance on these promises, he surrendered valuable rights to the "Demolition" characters.

To state a claim for fraudulent inducement under Connecticut law based upon misrepresentations, a plaintiff must demonstrate (1) that a false representation was made as a statement of fact; (2) that it was known to be false; (3) that it was made to induce the action by the other party; and (4) that the party acted on the statement to his or her detriment. Topf v. Warnaco, Inc., 942 F. Supp. 762, 768 (D. Conn. 1996); Miller v. Appleby, 183 Conn. 51, 54-55, 438 A.2d 811, 813 (1981). The plaintiff's reliance upon another's misrepresentation must be justifiable or reasonable. Amatulli v. People's Bank, 917 F. Supp. 895, 906 (D. Conn. 1996).

Eadie has sufficiently pled the elements of a cause of action for fraudulent inducement under Connecticut law. As previously found, there are factual issues as to Eadie's fraudulent inducement claim regarding the signing of the 1990 "amendment," as well as the terms of the parties' agreement with respect to Eadie's permanent employment by Titan and his relinquishment of his royalty rights.

Defendants' argument that Eadie had no "rights" to the character "Ax/Demolition" is unpersuasive. If Eadie had no rights, why did defendants pay Eadie over $100,000 over the course of five years for use of this character's image on merchandise?

In ruling on a motion for summary judgment, a court must construe all facts in favor of the non-moving party and must draw all reasonable inferences in that party's favor. Sufficient issues of fact exist for this claim to survive defendants' motion for summary judgment. Therefore, defendants' motion for summary judgment on this count will be denied.

Defendants' Motion for Summary Judgment as to Plaintiff Colley Count I -- Breach of Oral Contract

Defendants claim that they are entitled to summary judgment as to Count I of plaintiff Colley's complaint which alleges a breach of an oral contract because any such claim is barred by the 1985 booking agreement and by Connecticut's three-year statute of limitations. Colley responds that the booking agreement pertained solely to his rendering of professional wrestling services as "Moondog Rexx" and is irrelevant to his claims relating to the character "Smash" that he developed. Colley asserts that there was no mention of the "Demolition" characters in this agreement and Colley signed it solely in his "Moondog Rexx" persona.

Defendants' position as to Colley's 1985 booking agreement is somewhat incongruous in light of the position that they took with respect to Eadie. Had Eadie's earlier booking agreement controlled in and of its own right, why did defendants insist upon his executing the 1990 "amendment?" The only reference in Colley's booking agreement that could possibly be construed to include Colley's new wrestling persona "Smash" is the reference in section 1(c) to Titan's ownership of all rights to Wrestler's services thereunder "including . . . all characters." However, it is undisputed that Titan did not own control of Colley's performances for other promoters from 1985 forward; nor did Titan own all rights to any and every character portrayed by Colley from that time forward, including his appearances as "Moondog" for other promoters. Although the booking agreement provided that it would be automatically extended for one-year terms unless terminated in writing by either party, the parties' course of dealings indicates that the agreement was terminated once Colley was no longer wrestling as "Moondog Rexx." The court finds that the 1985 agreement did not control the parties' relationship as to the "Smash/Demolition" character.

As to Colley's breach of contract claim with respect to defendants' failure to continue to employ him as "Smash," Colley has failed to allege sufficient facts to establish that defendants had agreed to employ him permanently in this capacity. Colley alleges only that McMahon told him that he was going to make a lot of money, but he never claims that McMahon promised him that he and only he would wrestle in this role or that McMahon guaranteed him a certain number of bookings or appearances. Indeed, it appears that Colley consented to assume the role of a new character "The Shadow," which unfortunately did not turn out to be as successful or as lucrative as the "Demolition" wrestling team.

To the extent Colley seeks to assert a claim for breach of an oral employment contract "by virtue of their failure to continue to employ the plaintiff in their organization (presumably in some capacity other than as "Smash") despite their repeated representations and assurances to the contrary," (Amended Complaint at P 10), these representations are not sufficiently promissory or sufficiently definite to support contractual liability. See D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. at 214-15. Plaintiff Colley has failed to adduce any evidence that would establish that defendants intended to undertake an immediate contractual obligation to him. Furthermore, [*42] none of the representations relied upon by Colley contained any of the material terms that would be essential to an employment contract, such as salary.

Colley alleges only that in 1990, McMahon promised to put him back to work for Titan, that they would come up with a new gimmick for him, and that in 1992, Joe Scarpa, an agent of Titan, approached him inquiring about the status of his current employment and whether he wanted to come back to work for Titan. Colley states that it was his "understanding" that this was for the purpose of making good on McMahon's promises of compensation, but nothing ever came of the conversation with Scarpa. The oral promises allegedly made by defendants are too tenuous to support a claim for breach of an implied or oral contract of future permanent employment. See D'Ulisse-Cupo, 202 Conn. at 214-15.

As to Colley's breach of contract claim for defendants' failure to pay him royalties for defendants' commercial exploitation of the "Smash" and "Demolition" character, there are clearly factual questions concerning the terms of any oral agreement as to royalties to be paid to Colley for defendants' use of the "Smash/Demolition" character. These factual issues preclude the granting of summary judgment to defendants on plaintiff's breach of contract claim for unpaid royalties.

Defendants have also raised Connecticut's three-year statute of limitations, Conn. Gen. Stat. ß 52-581, as a bar to plaintiff's breach of oral contract claim. Since Colley allegedly created the "Demolition" characters in the fall of 1986 and was terminated almost immediately thereafter after just two appearances as "Smash" in January, 1987, defendants argue that any claims that he would have for defendants' alleged breach of oral contract are time-barred.

Colley asserts that defendants fraudulently concealed facts from him and made misrepresentations as late as 1992 which would have kept him from discovering the existence of his cause of action for breach of contract. He claims that defendants' concealment of facts tolls the running of any applicable statute of limitations.

The Connecticut Supreme Court has held that to establish that a defendant fraudulently concealed the existence of a cause of action a plaintiff must prove that the defendant was aware of the facts necessary to establish the cause of action and that the defendant intentionally concealed those facts from plaintiff. The burden of proof is on plaintiff. See Connell v. Colwell, 214 Conn. 242, 250, 571 A.2d 116 (1990). In this case, plaintiff has failed to specify how defendant fraudulently concealed the existence of a cause of action from him for breach of an agreement to pay royalties. Defendants did not pay plaintiff royalties, and plaintiff knew that he was not being paid royalties. There is no fraudulent concealment involved.

Defendants, however, have incorrectly sought to apply a three-year statute of limitations to this claim. Although Conn. Gen. Stat. ß 52-581 generally applies to oral contracts, where the oral contract has been fully performed by the plaintiff, the Connecticut courts have held that the six-year statute of limitations of Conn. Gen. Stat. ß 52-576 applies. See Nowakowski v. Rozbicki, 39 Conn. Supp. 454, 461, 466 A.2d 353 (1983); Tierney v. American Urban Corp., 170 Conn. 243, 248-49, 365 A.2d 1153 (1976). Here, with respect to Colley's breach of contract claim for unpaid royalties, Colley had fully performed his end of the bargain. The only remaining performance was due from defendants -- i.e. the payment of royalties.

Accordingly, plaintiff's claim for breach of an oral contract relating to the payment of royalties survives in that it is based on an alleged oral contract entered into less than six years prior to plaintiff's filing this action in April, 1992. Defendants' motion for summary judgment will be denied as to Colley's breach of contract claim for the payment of royalties. The motion will be granted as to the remaining portions of plaintiff's breach of contract claim.

Counts II and III -- Fraudulent Misrepresentation and Negligent Misrepresentation

Defendants next assert that plaintiff Colley's tort claims for fraudulent misrepresentation and negligent misrepresentation are likewise barred by Connecticut's three-year statute of limitations for actions sounding in tort. Conn. Gen. Stat. ß 52-577. Again, Colley responds that defendants fraudulently concealed facts from him which would toll the statute of limitations.

The statute of limitations for tort actions begins to run at the moment of the act or omission complained of occurs. S.M.S. Textile Mills, Inc. v. Brown, Jacobson, Tillinghast, Lahan & King, P.C., 32 Conn. App. 786, 790, 631 A.2d 340, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993). Colley's claims for fraudulent and negligent misrepresentation concern the representations made to Colley regarding the compensation he was to receive for defendants' use of the "Demolition" characters. Colley asserts that these representations were made to him not only in 1986 and 1987, but also in 1990 and 1992. His complaint was filed in April, 1992.

The court has previously found that genuine issues of fact exist as to the representations that were made to Colley regarding his compensation for defendants' commercial exploitation and use of the "Demolition" characters for their own benefit and profit. These representations continued beyond the initial 1986 meetings with McMahon into 1990 and 1992. Again, there are sufficient factual issues to preclude the granting of summary judgment.

To the extent that Colley asserts a claim with respect to any negligent or fraudulent misrepresentations made within three (3) years of his filing his complaint, these are not time-barred. As to misrepresentations made prior to this time, Colley has not sustained his burden of alleging sufficient facts probative of fraudulent concealment to toll the running of the statute of limitations. See Fichera v. Mine Hill Corp., 207 Conn. 204, 541 A.2d 472 (1988). Therefore, defendants' motion for summary judgment as to counts two and three will be granted in part and denied in part.

Count IV -- Conversion

Defendants next seek summary judgment as to plaintiff Colley's conversion count on the ground that Colley consented to Titan's use of the "Demolition" characters by virtue of his signing the booking agreement in 1985 which gave Titan all rights to any characters. As this Court has previously ruled, the 1985 agreement pertaining to "Moondog Rexx" did not apply to the "Demolition" characters.

Defendants also contend that a cause of action for conversion will not lie for conversion of intangible property, in this case the likeness of a character. No Connecticut court has addressed this precise issue. However, in Holmes v. Golub, 1991 Conn. Super. LEXIS 2114, No. 50 49 31, 1991 WL 188668 (Conn. Super. Sept. 13, 1991), the court recognized that intangible property interests have not traditionally been subject to conversion. Quoting Prosser and Keaton on The Law of Torts ß 15 (5th ed. 1985), the court noted that this rule has been relaxed to reach intangible rights customarily merged in or identified with some document. Id. at *2. However, no Connecticut case has extended the tort of conversion to intangible interests in and of themselves. See also Aetna Life & Cas. Co. v. Union Trust Co., 230 Conn. 779, 790 n.6, 646 A.2d 799 (1994) (in which the Connecticut Supreme Court refused to resolve the question of whether the tort of conversion could be extended to intangibles). This court will not expand state substantive law.

Accordingly, because Connecticut does not recognize the tort of conversion for intangible property, defendants' motion for summary judgment as to the fourth count will be granted.

V -- Wrongful Termination

Defendants claim that they are entitled to summary judgement on plaintiff Colley's fifth count which alleges wrongful termination of Colley. Defendants assert that to the extent Colley may be able to show that there was a permanent employment relationship, which they deny, it was terminable at will. In responding, plaintiff intertwines his CUTPA claim with his wrongful termination claim.

While plaintiff Colley has alleged that McMahon on several occasions discussed with him the possibility of employment as compensation for Titan's use of the "Demolition" characters, there is nothing to indicate that there was ever an oral agreement to that effect. Colley's situation is different than Eadie's where Eadie had been receiving significant compensation for his appearances as "Ax" and for royalties, and was then induced to sign a 1990 "amendment" to a 1984 agreement, by which he would forego those royalties, and pursuant to which he claims he was promised a permanent position at a starting salary of $125,000 per year. Colley alleges no more than that he was repeatedly promised future employment with Titan as compensation for defendants' use of his "Smash/Demolition" character, for which he never received any compensation. As with Colley's breach of contract claim, Colley has failed to allege sufficiently definite terms to establish a promise of employment on which Colley could have reasonably relied. See D'Ulisse-Cupo, 202 Conn. at 215.

Even construing the facts in a light most favorable to plaintiff Colley, the court finds no evidence to support plaintiff's claim of wrongful termination. Accordingly, defendants' motion for summary judgment as to the fifth count of plaintiff Colley's first amended complaint will be granted.

Count VI -- CUTPA

In this count, plaintiff Colley incorporates by reference all allegations of the first four counts. Defendants assert that this count must be dismissed in that CUTPA does not apply to employment or independent contractor relationships. Defendants construe Colley's claims too narrowly. Colley's claims are not limited to an alleged employer-employee relationship, or even an independent contractor relationship. Colley has incorporated by reference all of the preceding allegations of his complaint into this CUTPA count, including defendants' misappropriation and exploitation of the "Demolition" characters.

Connecticut courts have applied the Federal Trade Commission's "cigarette rule" in determining whether a particular trade practice is unfair. Chem-Tek, Inc. v. General Motors Corp., 816 F. Supp. 123, 130 (D. Conn. 1993). These criteria are: (1) does the practice offend the public policy of the state as it has been established by common law, statute, or some other measure of unfairness: (2) is it immoral, unethical, oppressive, or unscrupulous; and (3) does it cause substantial injury to consumers, competitors or other businessmen. Chem-Tek, Inc., 816 F. Supp. at 130 (citations omitted). All criteria do not necessarily need to be satisfied. "A practice may be unfair because of the degree to which it meets one of the criteria or because of a lesser extent if it meets all three." Shell Oil Co. v. Wentworth, 822 F. Supp. 878, 884 (D. Conn. 1993).

Colley has sufficiently pled a cause of action for violation of CUTPA. There are sufficient factual issues regarding defendants' alleged misappropriation of Colley's "Demolition" characters to preclude the granting of summary judgment.

However, for the same reasons as set forth above, Connecticut's three-year statute of limitations, Conn. Gen. Stat. ß 42-110g(f), will bar Colley's CUTPA claims as to defendants' misappropriation and exploitation of the "Demolition" characters prior to April, 1989. Therefore, defendants' motion for summary judgment as to this count will be granted in part and denied in part.

Count VII -- Unjust Enrichment

Lastly, defendants move for summary judgment as to plaintiff Colley's unjust enrichment count on the basis of the written contract, the 1985 booking agreement for "Moondog Rexx." Since the court has found that the 1985 agreement does not control the relationship of the parties as to "Smash/Demolition," defendants' motion for summary judgment on this last count will be denied.

CONCLUSION

For the reasons set forth above, defendants' motion for summary judgment of defendants (Document # 109) in Eadie v. McMahon, No. 5:91CV0423(WWE) is DENIED. Defendants' motion for summary judgment (Document # 44) in Colley v. McMahon, No. 5:92CV0216(WWE) is granted in part and denied in part. The motion is GRANTED as to count one except with respect to Colley's breach of contract claim relating to the payment of royalties. As to counts two, three, and six, defendants' motion is GRANTED as to all claims accruing more than three years prior to the date of plaintiff's filing his complaint; it is DENIED as to all claims accruing thereafter. As to counts four and five, defendants' motion for summary judgment is GRANTED. As to count seven, defendants' motion for summary judgment is DENIED.

SO ORDERED. Date: March 12, 1997. Bridgeport, Connecticut. WARREN W. EGINTON, Senior United States District Judge

Footnotes:

n1 These cases were previously consolidated for purposes of discovery. Because the facts and issues involved in the two cases are so closely intertwined, the cases are also treated together for purposes of defendants' motions for summary judgment.

n2 In tag-team matches, each wrestler wrestles with a partner. The wrestler can tag out at any time if he gets in trouble, is at a loss for a next move, or is just too tired. The partner who is not wrestling must stay in the corner of the ring until physically tagged by the wrestler who is seeking some relief from his partner.

n3 All references to "(Colley depo at )" are to the deposition of Randy Colley taken by the defendants in this litigation on March 12, 1993, and submitted by defendants in support of their motions for summary judgment.

n4 A "gimmick" in professional exhibition wrestling is a wrestler's mode of dress, his character or persona, or some other object that he uses to rile or excite the crowd.

n5 Defendants have submitted a letter from Titan's counsel to Eadie that indicates that there was an earlier booking agreement between Eadie and Titan's predecessor. This agreement has not been submitted by either party and is not relied upon in connection with the motions for summary judgment.

n6 The 1984 agreement between Eadie a/k/a "The Masked Superstar" and Titan Sports, Inc. provided for compensation of $ 50 per day for television and live appearances plus an additional fee for appearances at live events, "which fee shall consist of a percentage of the gross gate receipts as determined in accordance with the status of Talent's match (preliminary bout, main event, etc.,) and the prevailing practices of the wrestling community." (Section 4).

n7 Vincent K. McMahon is the defendant in this case and the son of Vincent J. McMahon, Sr.

n8 From defendants' statement of material facts, no. 8, it is unclear whether these figures are included in the earnings figures set forth above or whether these are in addition to Eadie's earnings.

ï End Footnotes ï

Eadie v. McMahon

(199 F.R.D. 45; 49 Fed. R. Serv. 3d (Callaghan) 425)

Bill "Masked Superstar/Demolition Ax" Eadie has been fighting with McMahon for a while. You can read an earlier opinion here. Now, the questions surrounds Eadie's status as an expert witness.

WILLIAM R. EADIE, PLAINTIFF v. VINCENT K. MCMAHON and TITAN SPORTS, INC. d/b/a WORLD WRESTLING FEDERATION, DEFENDANTS; RANDY COLLEY, PLAINTIFF v. VINCENT K. MCMAHON and TITAN SPORTS, INC. d/b/a WORLD WRESTLING FEDERATION, DEFENDANTS

CIV. NO. 5:91 CV 0423 (WWE), CIV. NO. 5:92 CV 0216 (WWE)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

199 F.R.D. 45; 49 Fed. R. Serv. 3d (Callaghan) 425

January 26, 2001, Decided

January 26, 2001, Filed

DISPOSITION: Plaintiffs' Motion for Permission to Disclose New Expert Witnesses [Doc. # 280] GRANTED in part and DENIED in part.

COUNSEL: For Plaintiff (5:91 CV 0423): Scott S. Centrella, Robert M. Decrescenzo, Irene Bassock, Howard Mitz.

For Defendant (5:91 CV 0423): David Zabel, Jerry McDevitt, Terry Budd, Curtis B. Krasik, Theodore Dinsmoor.

JUDGES: HOLLY B. FITZSIMMONS, UNITED STATES MAGISTRATE JUDGE.

OPINION BY: HOLLY B. FITZSIMMONS

OPINION:

RULING ON PLAINTIFFS' MOTION FOR PERMISSION TO DISCLOSE NEW EXPERT WITNESSES

Pursuant to this court's December 18, 2000, order, plaintiffs' filed their Motion for Permission to Disclose New Expert Witnesses on January 5, 2001. n1 [Doc. # 280.] Defendants filed their papers in opposition on January 12, 2001. [Doc. # 283.] On January 23, 2001, the court heard argument on the motion. For the reasons discussed below, plaintiffs' Motion for Permission to Disclose New Expert Witnesses [Doc. # 280], is GRANTED in part and DENIED in part.

In their motion, plaintiffs requested permission from the court to disclose two new expert witnesses. Specifically, plaintiffs seek to designate plaintiff William R. Eadie as an expert because of "his knowledge as to custom and practice in the wrestling entertainment business regarding compensation." [Doc. # 280, at 3.] Plaintiffs also asked to disclose a second damages expert, to be named no later than April 1, 2001. [Doc. # 280, at 3.]

Defendants objected to plaintiffs' request on grounds that plaintiffs failed to provide justification for their delay in seeking to disclose new experts; that defendants would suffer prejudice if new experts were designated at this late date; and that in the interest of judicial economy the case should proceed to trial as scheduled, rather than be subject to further delays that would be required to adequately prepare for new expert testimony.

The Second Circuit has discussed several factors that should be considered by courts when addressing a post-discovery motion to allow additional expert testimony. These factors include: "the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; the possibility of a continuance; the party's explanation for the failure to comply with the discovery order; and the importance of the testimony of the precluded witness." Wolak v. Spucci, 217 F.3d 157, 161 (2d Cir. 2000), quoting Softel, Inc. v. Dragon Med. And Scientific Communications, Inc., 118 F.3d 955, 961 (2d Cir. 1997) (internal quotations omitted).

DAMAGES EXPERT

After considering the above factors, the Court finds that plaintiffs have failed to provide sufficient justification for their delay in seeking to disclose a second damages expert. Discovery in this case closed in July 1994, after multiple deadline extensions as requested by both parties. [Doc. # 104.] Plaintiffs were granted leave to disclose a second expert witness in October 1998, after they were precluded from using their first expert at trial.

When asked by the court why plaintiffs could not have foreseen the need for a second damages expert four or five years ago, plaintiffs' counsel acknowledged that there was no explanation for the delay. Plaintiffs' attempt to justify the delay centers on the change of attorneys assigned to the case within the local firm, even though the local firm has been involved in the case since 1994. Plaintiffs also argued that the need for an additional damages expert did not become apparent until counsel was reviewing the files in preparation for trial. The court does not consider these to be sufficient justification for plaintiffs' failure to identify the need for, and the failure to disclose to opposing counsel, additional expert witnesses before discovery ended, or at least before a firm trial date was set.

Plaintiffs also acknowledged to the court that the value of testimony from a second damages expert would be important, but not critical to their case. In light of the prejudice that defendants would suffer as a result of having to prepare for an additional damages expert witness and a further delay of pretrial proceedings, the lack of a substantial justification for plaintiffs' delay, and plaintiffs' admission that an additional damages expert is not crucial to their case, the Court denies plaintiffs' request to disclose a second damages expert.

WILLIAM R. EADIE

Plaintiffs also request permission to disclose plaintiff Eadie as an expert on the custom and practice of the wrestling industry regarding compensation. Defendants objected on the same grounds listed above.

At oral argument, plaintiffs indicated that they were not trying to prejudice defendants in any way by disclosing Eadie as an expert witness. Rather, plaintiffs explained that they were attempting to give defendants advance warning that Eadie's testimony at trial could move into the realm of opinion based on his first-hand experiences negotiating contracts within the wrestling industry. Plaintiffs also indicated that the pool of witnesses who would be available to testify as to the custom and practices of compensation in the wrestling industry during the late 1980s is small, and that it could be difficult to find an expert witness in this area.

The court will not preclude plaintiff Eadie from giving opinion testimony at this time, in light of the fact that for purposes of the rule, he would be a non-retained expert. See FED. R. CIV. PRO. 26(a)(2). The court appreciates the fact that plaintiffs raised this question prior to trial and does not want to discourage the parties from giving advance notice of potential issues. Defendants indicated to the court that Eadie was extensively deposed about his experience in the wrestling industry, including any royalty and contract negotiations in which he was involved. Provided that Eadie's testimony is based on experience about which defendants had an opportunity to examine him, there will be no prejudice to defendants in permitting such testimony.

Plaintiffs are to file a report in the nature of a Rule 26(a)(2)(B) Report, including "a complete statement of all opinions to be expressed and the basis and reasons therefore," as well as the qualifications or experience on which Eadie's opinions are based. See FED. R. CIV. PRO. 26(a)(2)(B). Plaintiffs should list all opinions to which Eadie will testify, with references to the applicable portions of the deposition transcript. Plaintiffs' report is due no later than February 5, 2001.

Defendants will have until February 26, 2001, to object to plaintiffs' report, to move in limine for a Daubert hearing, or to seek other appropriate relief.

Plaintiffs will file their reply to any objections or motions filed by defendants two weeks thereafter, but no later than March 12, 2001.

Any testimony required on any of the filed motions will be heard in conjunction with the previously scheduled Daubert hearing on March 27, and March 28, 2001. This ruling does not affect the schedule set forth in this court's December 18, 2000, order. [Doc. # 282.]

CONCLUSION

Accordingly, plaintiffs' Motion for Permission to Disclose New Expert Witnesses is GRANTED in part and DENIED in part in accordance with this ruling and order.

This is not a recommended ruling. This is a discovery ruling and order which is reviewable pursuant to the "clearly erroneous" statutory standard of review. 28 U.S.C. ? 636 (b)(1)(A); Fed. R. Civ. P. 6(a), 6(e) and 72(a); and Rule 2 of the Local Rules for United States Magistrate Judges. As such, it is an order of the Court unless reversed or modified by the district judge upon motion timely made.

SO ORDERED at Bridgeport, this 26 day of January, 2001.

HOLLY B. FITZSIMMONS

UNITED STATES MAGISTRATE JUDGE

ï Footnotes ï

n1 This motion was referred to the undersigned by Judge Eginton on January 9, 2001. [Doc. # 281.]

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