United States District Court, D. Arizona
Honorable G. Murray Snow United States District Judge
before the Court is Defendants' Motion to Dismiss
Pursuant to Federal Rules of Civil Procedure 12(b)(2) and
12(b)(6). (Doc. 24.) For the following reasons, the Court
dismisses the claims with prejudice.
Terrell Suggs is a professional football player for the
Baltimore Ravens of the National Football League
("NFL"). Plaintiff was represented by sports agent
Gary Wichard until Mr. Wichard passed away in March 2011.
Defendant Maire Wichard is Mr. Wichard's widow and the
executrix of Mr. Wichard's Estate ("Estate").
Defendant Pro Tect Management, LLC, ("Pro Tect") is
the company through which Mr. Wichard did business.
2009, Gary Wichard negotiated a contract between Terrell
Suggs and the Baltimore Ravens that would run through 2014.
Pursuant to the terms of the NFL Players' Association
("NFLPA") Standard Representation Agreement
("SRA"), Plaintiff agreed to pay Mr. Wichard three
percent of his annual compensation under the contract. After
Mr. Wichard's death, on November 15, 2011, Plaintiff
retained a new Contracts Advisor, Joel Segal, to replace Mr.
made commission payments of $102, 000 and $147, 000 to the
Estate for the 2011 and 2012 NFL seasons, respectively. (Doc.
1 at 6-7.) These amounts represented three percent of Mr.
Suggs's total compensation for those seasons. Plaintiff
later refused to pay commissions for the 2013 and 2014 NFL
seasons despite receiving demand letters from Mrs. Wichard on
behalf of the Estate. (Doc. 1 at 10.) In March 2014, the
Estate filed a Grievance against Plaintiff through NFLPA
arbitration to collect the 2013 commissions. (Doc. 24-1 at
24.) Plaintiff then filed hisz own Grievance against the
Estate and Pro Tect for failing to represent him after Gary
Wichard's death. (Id.) These Grievances were
arbitrated together before an arbitrator.
arbitrator held that Plaintiff was required to pay the Estate
$172, 800- $192, 000 based on Plaintiffs compensation for the
2013 NFL Season, discounted by 10% because Mr. Wichard and
the Estate had failed to fully represent Plaintiff in the
"enforcement" of the 2009 contract. (Id.
at 28-29.) On March 24, 2015, the United States District
Court for the Eastern District of Virginia confirmed the
arbitration award for the 2013 NFL season. (Id. at
44.) The Estate filed another Grievance against Plaintiff
with the NFLPA to recover commissions for the 2014 NFL
season. (Doc. 25-1 at 16.) On December 16, 2015, the
arbitrator awarded the Estate $234, 800. (Id. at
23.) This award was confirmed by the United States District
Court for the Eastern District of Virginia on April 5, 2016.
(Doc. 31-2 at 2.)
Plaintiff brings suit against Mrs. Wichard and Pro Tect,
alleging unjust enrichment and breach of an implied
contract. The two claims arise out of the same
simple and undisputed set of facts: After Gary Wichard's
death, Plaintiff paid commissions to the Estate, and neither
Mrs. Wichard nor Pro Tect performed any agency services on
Plaintiffs behalf. Plaintiff asserts that this constitutes
unjust enrichment, as "it would be inequitable and
against good conscience to permit Defendants to retain the
fees [collected] for services that were never
performed." (Doc. 1 at 13.) He also asserts that by
accepting and later demanding payments, Defendants entered
into an implied contract with Plaintiff to perform agency
services, and breached this contract by not performing those
services. He offers no explanation, however, as to how
payments that he owed and paid to the Estate were separately
owed and paid to Mrs. Wichard or Pro Tect.
Wichard, a citizen of California, and Pro Tect, a California
limited liability corporation, seek to dismiss Plaintiffs
action for a lack of personal jurisdiction or, alternatively,
failure to state a claim upon which relief can be granted.
a court should resolve issues of jurisdiction before deciding
any questions going to the merits of a claim. See, e.g.,
Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping
Corp., 549 U.S. 422, 430-31 (2007). However, in certain
circumstances, "[a] court may assume the existence of
personal jurisdiction and adjudicate the merits in
favor of the defendant without making a definitive ruling on
jurisdiction." Lee v. City of Beaumont, 12 F.3d
933, 937 (9th Cir. 1993) (emphasis added), overruled on
other grounds by Cal. Dep't of Water Res. v. Powerex
Corp., 533 F.3d 1087 (9th Cir. 2008); see also
Strong College Students Moving Inc. v. College Hunks Hauling
Junk Franchising LLC, No. CV-12-01156-PHX-DJH, 2015 WL
12602438, at *5 (D. Ariz. May 15, 2015); Koninklijke
Philips N.V. v. Elec-Tech Int'l Co., Ltd., No.
14-cv-02737-BLF, 2015 WL 1289984, at *2 (N.D. Cal. Mar. 20,
2015). This is particularly appropriate where the
jurisdictional issue is a close question but the
"substantive merits underlying the issue are facilely
resolved in favor of the party challenging
jurisdiction." Kotler v. Am. Tobacco Co., 926
F.2d 1217, 1221 (1st Cir. 1990), vacated on other
grounds, 505 U.S. 1215 (1992); see also Norton
v. Mathews, Ml U.S. 524, 530-31 (1976); Logan Farms
v. HBH, Inc. DE, 282 F.Supp.2d 776, 785 (S.D. Ohio
2003). This is such a case, and the Court will therefore move
directly to the sufficiency of Plaintiff s claims.
Failure to State a Claim
proffer several different theories as to why Plaintiffs
claims should be dismissed for failure to state a claim:
collateral estoppel, res judicata, the statute of frauds, the
statute of limitations, and deficiencies in both claims as a
matter of law. Collateral estoppel prevents Plaintiff from
re-litigating issues that prove fatal to his claims on their