Case 2:17-cv-00085-JAD-CWH Document 103 Filed 12/29/17 Page 1 of 9

CAMPBELL & WILLIAMS

1 DONALD J. CAMPBELL, ESQ. (1216)
djc@cwlawlv.com
2
J. COLBY WILLIAMS, ESQ. (5549)
3 jcw@cwlawlv.com
PHILIP R. ERWIN, ESQ. (11563)
4 pre@cwlawlv.com
700 South Seventh Street
5 Las Vegas, Nevada 89101
6 Telephone: (702) 382-5222

7 Attorneys for Defendants

Zuffa, LLC and Dana White
8
9 UNITED STATES DISTRICT COURT
10 DISTRICT OF NEVADA
11 MARK HUNT, an individual, ) Case No. 2:17-cv-00085-JAD-CWH
)
12 )
Plaintiffs, ) DEFENDANTS ZUFFA, LLC’S
13 ) AND DANA WHITE’S RESPONSE
vs. ) TO MARK HUNT’S MOTION FOR
14 ) LEAVE TO FILE SUPPLEMENTAL
ZUFFA, LLC d/b/a ULTIMATE FIGHTING ) COMPLAINT
15 CHAMPIONSHIP, a Nevada limited liability )
company; BROCK LESNAR, an individual; )
16 and DANA WHITE, an individual; and DOES )
1-50, inclusive, )
17 )
Defendants. )
18 _______________________________________ )
19
I. INTRODUCTION
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By way of his Motion for Leave to File Supplemental Complaint (“Motion”), Plaintiff Mark
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Hunt (“Hunt”) essentially seeks to punish Defendants Zuffa, LLC (“Zuffa”) and Dana White
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23 (“White”) for trying to save Hunt from himself. While Hunt argues his Supplemental Complaint

24 seeks to add allegations that he was unilaterally removed from UFC Fight Night 121 for pretextual

25 and retaliatory reasons, thereby causing him more than $100,000 in lost training camp expenses, the
26 Motion conveniently avoids any discussion of why Zuffa made the determination to remove Hunt
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from that fight card. Nowhere in the Motion does Hunt disclose that Zuffa only made the decision it
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did after Hunt authored an op-ed piece titled “If I die fighting, that’s fine” on July 4, 2017 in which
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he stated, among other items, that his “body is f----d,” that he doesn’t sleep well, that he stutters and
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3 slurs his words, and that his memory is not good. Faced with such concerning statements from a

4 fighter about his neurological health, Zuffa had no choice but to pull Hunt from the upcoming fight
5 card until it could assure itself, athletic commission regulators, and the public that Hunt was, in fact,
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medically fit to fight.
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Setting aside the dubious fact pattern upon which Hunt hopes to supplement his pleading, the
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proposed new allegations have nothing to do with the overall theme of Hunt’s First Amended
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10 Complaint, which is centered on allegations that Zuffa has engaged in an intentional scheme to pit

11 doping fighters against clean fighters. Nor does Hunt meaningfully tie the proposed new allegations

12 to his existing causes of action other than to say they are “especially relevant to those claims
13 containing elements of intent or bad faith.” Mot. at 1:14-16. The new allegations (found at
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proposed new paragraph 125) are simply lumped in with the other 222 scattershot allegations
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contained in Hunt’s prolix pleading. Hunt fails to explain, for example, how the new allegations
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relate to his claims for RICO violations, RICO conspiracy, fraud, aiding and abetting, breach of
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18 contract, unjust enrichment, battery, and so on. While leave to supplement a complaint may be

19 granted with the same liberality as amendments to a pleading, that liberality has limits, and denial of

20 leave is clearly appropriate in certain circumstances—including where the supplementation or

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amendment would be futile. That is the situation here.
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II. BACKGROUND
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Hunt filed his original Complaint on January 10, 2017 (ECF No. 1). The Court granted
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Zuffa’s and Defendant Brock Lesnar’s respective Motions to Dismiss on May 22, 2017 (ECF No.
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26 63), but permitted Hunt to file an amended pleading. Hunt filed his First Amended Complaint

27 (“FAC”) on June 1, 2017 (ECF No. 64). The FAC alleges the following causes of action: (1) RICO;
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(2) RICO Conspiracy; (3) Fraud; (4) Aiding and Abetting Fraud; (5) Breach of Contract; (6) Breach
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of the Implied Covenant of Good Faith and Fair Dealing; (7) Unjust Enrichment; (8) Battery; (9)
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3 Aiding and Abetting Battery; and (10) Conspiracy to Commit Fraud/Battery. See id. Lesnar and

4 Zuffa filed motions to dismiss the FAC on June 19 and 27, 2017, respectively (ECF Nos. 68 and
5 71). The motions were fully briefed as of July 27, 2017 and remain pending.
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On or about July 4, 2017, Hunt authored a column on the website www.playersvoice.com
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with the title “If I die fighting, that’s fine.”1 In the column, Hunt made a variety of statements about
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his alleged health problems caused by fighting. After initially acknowledging that he is one of the
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10 “highest-paid fighters in the world,” Hunt went on to state that his “body is f----d,” that he

11 “d[oes]n’t sleep well,” that he is “starting to stutter and slur his words,” and that “his memory is not

12 that good anymore.” See Ex. 1. At the time he authored his column, Hunt was scheduled to fight
13 Marcin Tybura in the main event of UFC Fight Night 121 in Sydney, Australia on November 19,
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2017. Since the filing of Hunt’s original Complaint in January, 2017, he has fought twice under the
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terms of his existing Promotional Agreement with Zuffa, once in March 2017 against Alistair
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Overeem, and again on June 10, 2017 against Derrick Lewis. See ECF No. 73 (Request for Judicial
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18 Notice) at 6 and Exs. 10-11.

19 Faced with Hunt’s troubling comments about the status of his health, particularly his

20 neurological health, Zuffa contacted Hunt’s management team and offered to fly Hunt first class to
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Las Vegas to be examined at the Lou Ruvo Center for Brain Health.2 Hunt refused. See Ex. 2.
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Because Zuffa was not willing to allow Hunt to fight again without additional testing, it pulled him
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1
24 A true and correct copy of the subject column is attached as Exhibit 1 to the accompanying
Declaration of Philip R. Erwin (“Erwin Decl.”).
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26 A true and correct copy of Dana White’s Open Letter describing Zuffa’s interactions with
Hunt’s camp, published in The Daily Telegraph on or about October 28, 2017, is attached to the
27 Erwin Decl. as Exhibit 2.

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from the November 19 fight card in early October 2017. See id. Zuffa’s decision to do so was
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widely applauded as something the company “had to” do to protect Hunt’s health and safety.3
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3 Hunt ultimately agreed to undergo testing at the Lou Ruvo Center. In early December 2017,

4 Hunt’s manager announced that Hunt “tested well above average and that he’s good to compete.”4
5 Having been medically cleared by one of the foremost brain centers in the world, Zuffa has
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rescheduled Hunt to fight Curtis Blaydes at UFC 221 in Perth, Australia on February 10, 2018.5
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III. ARGUMENT
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A. Governing Standards.
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10 Federal Rule of Civil Procedure 15(d) provides that “[o]n motion and reasonable notice,

11 the court may, on just terms, permit a party to serve a supplemental pleading setting out any

12 transaction, occurrence, or event that happened after the date of the pleading to be
13 supplemented.” Rule 15(d) is intended to give district courts broad discretion in allowing
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supplemental pleadings. See Trice v. Nat'l Default Servicing Corp., 2017 WL 3925413, at *4 (D.
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16 3
A true and correct copy of a column authored by Kevin Iole of Yahoo Sports titled “Mark
Hunt Shouldn’t be Mad at UFC or Dana White” dated October 11, 2017 is attached to the Erwin
17 Declaration as Exhibit 3. Iole, one of the most respected columnists covering combat sports,
18 stated in part:

19 Whatever Hunt’s grievances are against the UFC, this isn’t one of them. If a
fighter is slurring his words, if he can’t remember what he had for breakfast, if he
20 struggles to sleep and admits it in a public forum, the promotor has no choice.
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Hunt stated in another Instagram post that he was ‘misquoted’ in the PlayersVoice
22 story. Regardless, the story left the UFC no choice: it had to – had to – yank him
from the card.
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Id. (emphasis in original).
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A true and correct copy of an article titled “Manager: Mark Hunt Cleared to Fight, Eyes
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Fabricio Werdum Rematch at UFC 221” dated December 5, 2017 is attached to the Erwin Decl.
26 as Exhibit 4.
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27 A true and correct copy of a screenshot from the UFC 221 fight card found at www.ufc.com is
attached to the Erwin Decl. as Exhibit 5.
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Nev. Sept. 6, 2017) (citing Keith v. Volpe, 858 F.2d 467, 473 (9th Cir. 1988)). “When
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considering whether to allow a supplemental complaint, courts may consider factors such as
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3 whether allowing supplementation would serve the interests of judicial economy; whether there

4 is evidence of delay, bad faith or dilatory motive on the part of the movant; whether amendment
5 would impose undue prejudice upon the opposing party; and whether amendment would be
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futile.” Id. (denying leave to supplement where proposed supplementation would be futile and
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against the interests of judicial economy). One court has recently explained the futility analysis
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in the context of a motion for leave to supplement as follows:
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10 Even though leave to supplement should be freely granted, leave should be denied
when there is good reason to the contrary. Futility is one such example. A
11 proposed supplement to a complaint is futile if it would not survive a motion to
dismiss. Thus, in deciding whether to grant or deny a motion to supplement, the
12 Court may consider the merits of the proposed new pleading.
13 Lannan Found. v. Gingold, 2017 WL 4857421, at *5 (D.D.C. Oct. 25, 2017) (internal citations
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and quotations omitted). Applying the foregoing standards to Hunt’s Motion demonstrates that
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leave should be denied as Hunt’s proposed supplemental pleading would not survive the pending
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Motions to Dismiss.
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18 B. Hunt’s Proposed New Allegations Add Nothing to His Defective Claims for Relief.

19 Hunt’s proposed supplemental allegations are found at paragraph 125(a)-(k). The upshot

20 of the allegations is that Zuffa and White used Hunt’s self-authored column about his various
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medical issues as a pretext to remove Hunt from UFC Fight Night 121 and that doing so was
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retaliation for Hunt having filed the instant litigation. Notwithstanding that Hunt’s theory flies in
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the face of the incontrovertible facts that Zuffa has placed Hunt in two bouts since the filing of
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this lawsuit—bouts in which Hunt has been paid more than $1.5 million—none of Hunt’s new
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26 allegations add anything to his existing causes of action.

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RICO and RICO Conspiracy (First and Second Causes of Action). Zuffa and White
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have previously explained why Hunt’s RICO claims are defective. See ECF No. 71 (Motion to
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3 Dismiss) at 8-16. Hunt’s new allegations about being wrongfully removed from UFC Fight

4 Night 121 are not even premised on his underlying RICO allegations that Zuffa has engaged in a
5 pattern and scheme to allow doping fighters to compete against clean fighters. They are, instead,
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premised on the entirely new theory that Zuffa retaliated against him for having filed the instant
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lawsuit. While Rule 15(d) authorizes supplemental pleadings, “it cannot be used to introduce a
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‘separate, distinct and new cause of action.’” Gonzalez v. Mason, 2008 WL 2079195, at *2 (N.D.
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10 Cal. May 15, 2008) (citing Planned Parenthood of Southern Arizona v. Neely, 130 F.3d 400, 402

11 (9th Cir.1997)); see also Hunt v. Rios, 2009 WL 3644874, at *2-3 (E.D. Cal. Nov. 2, 2009)

12 (denying proposed supplemental complaint where subsequent alleged events were “allegations of
13 distinct retaliation.”) (emphasis in original). Additionally, Hunt’s alleged $100,000 in damages
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attributable to his training camp expenses cannot support the necessary “injury to business or
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property” for a RICO claim because those alleged losses happened years after UFC 200 and,
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thus, are the type of prospective harm in the future that are not recoverable under RICO. See
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18 ECF No. 71 at 9-10.

19 Fraud and Aiding and Abetting Fraud (Third and Fourth Causes of Action). Zuffa

20 and White have likewise addressed Hunt’s meritless fraud claim and the related claim for aiding
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and abetting fraud. See ECF No. 71 at 16-18; 21. Hunt’s proposed new allegations have nothing
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to do with the elements of a fraud claim, i.e., knowing false statements of facts, intended to be
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relied upon by defendant, actual reliance, and damages. Id. at 16. Because the new allegations
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do not support the fraud claim, they cannot support the aiding and abetting claim. Id. at 21.
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26 Breach of Contract (Fifth Cause of Action). Hunt’s proposed new allegations contain

27 several references to the parties’ existing Promotional Agreement and, thus, superficially suggest
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they may be directed in support of Hunt’s claim for breach of contract. If so, the effort still fails.
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That is because Hunt cannot satisfy the damages element required for breach of contract. See
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3 ECF No. 71 at 18. Zuffa explained in its Reply brief in support of the Motion to Dismiss that the

4 parties’ Promotional Agreement expressly limits the type of damages that are recoverable for any
5 alleged breach of contract. See ECF No. 94 (Reply ISO MTD) at 7-8. Hunt’s alleged losses
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attributable to his training camp expenses are not the type of damages recoverable under the
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Promotional Agreement. And because Hunt’s fight has been rescheduled for February 2018, he
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will not suffer any lost purse amount assuming the fight goes forward as scheduled.6
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10 Unjust Enrichment (Seventh Cause of Action). Hunt’s unjust enrichment claim is

11 premised on the theory that he provided services above and beyond that contemplated by the

12 parties’ Promotional Agreement. See ECF No. 71 at 20-21. Hunt’s new allegations are premised
13 on the theory that Zuffa wrongfully removed him from the UFC Fight Night 121 event. By
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definition, therefore, the new allegations cannot support an unjust enrichment theory because
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Hunt undisputedly provided no services for which Zuffa unjustly retained a benefit.
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Battery and Aiding and Abetting Battery (Eighth and Ninth Causes of Action). Hunt’s
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18 proposed new allegations have nothing to do with the elements of a battery claim. See ECF No.

19 71 at 14-16. Accordingly, they likewise have nothing to do with a claim for aiding and abetting

20 a battery. Id. at 21.

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Hunt’s claim for Breach of the Implied Covenant of Good Faith and Fair Dealing (Sixth Cause
23 of Action) survived Zuffa’s original Motion to Dismiss. Even so, Hunt’s proposed new
allegations do not buttress this claim since “remedy for breach of the contractual covenant of good
24 faith and fair dealing ‘generally is on the contract itself.’” RKF Retail Holdings, LLC v. Tropicana
Las Vegas, Inc., 2017 WL 6389657, at *2 (D. Nev. Dec. 13, 2017) (quoting Hilton Hotels Corp.
25 v. Butch Lewis Productions, Inc., 862 P.2d 1207, 1209 (1993)). Where, as here, the terms of the
26 contract limit the type of damages recoverable thereunder, the damages available for contractual
breach of the implied covenant are likewise so limited. See id. at *2-4 (where terms of contract
27 were not satisfied, plaintiff could not recover damages for breach of contract or contractual breach
of the implied covenant).
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Conspiracy to Commit Fraud/Battery (Tenth Cause of Action). Because Hunt’s

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proposed new allegations do not support his fraud and battery claims, they cannot support his
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3 conspiracy claim premised on those underlying torts. See ECF No. 71 at 21.

4 In sum, none of Hunt’s proposed new allegations provide any support to his existing
5 causes of action. Because the proposed new allegations cannot survive the pending Motions to
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Dismiss, Hunt’s Motion should be denied on grounds of futility.
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IV. CONCLUSION
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Based on the foregoing, Defendants Zuffa and White respectfully submit that Hunt’s
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10 Motion for Leave to File Supplemental Complaint should be denied.

11 DATED this 29th day of December, 2017.

12 CAMPBELL & WILLIAMS

13 By___/s/ Philip R. Erwin_____________
14 DONALD J. CAMPBELL, ESQ. (1216)
J. COLBY WILLIAMS, ESQ. (5549)
15 PHILIP R. ERWIN, ESQ. (11563)

16 Attorneys for Defendants

Zuffa, LLC and Dana White
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CERTIFICATE OF SERVICE
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The undersigned hereby certifies that service of the foregoing Defendants Zuffa, LLC’s
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3 and Dana White’s Response to Mark Hunt’s Motion for Leave to File Supplemental

4 Complaint was served on the 29th day of December, 2017 via the Court’s CM/ECF electronic
5 filing system addressed to all parties on the e-service list.
6
__/s/ Philip R. Erwin __________________
7 An employee of Campbell & Williams

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