Case 8:18-cv SDM-TGW Document 18 Filed 06/08/18 Page 1 of 11 PageID 650 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

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1 Case 818-cv SDM-TGW Document 18 Filed 06/08/18 Page 1 of 11 PageID 650 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION x MADISON BRENGLE, Plaintiff, v. WTA TOUR, INC., ITF LIMITED A/K/A INTERNATIONAL TENNIS FEDERATION, INTERNATIONAL DOPING TESTS & MANAGEMENT AB, STUART MILLER AND JOHN SNOWBALL, Case No. 818-cv-1126-T-23TGW Defendants x PLAINTIFF S MOTION FOR SEVERANCE AND REMAND AND MEMORANDUM OF LAW IN PARTIAL OPPOSITION TO WTA TOUR INC. S MOTION TO COMPEL ARBITRATION AND STAY THE CASE OR, IN THE ALTERNATIVE, DISMISS THE COMPLAINT Plaintiff Madison Brengle, by and through her undersigned attorneys, pursuant to 28 U.S.C. 1447(c) and Fed. R. Civ. P. 21, hereby moves this Court for entry of an order (i) severing Plaintiff s claims against Defendant WTA Tour, Inc. ( the WTA ) and remanding all remaining claims against Defendants ITF Limited a/k/a International Tennis Federation ( ITF ), International Doping Tests & Management AB ( IDTM ), Stuart Miller and John Snowball (together, the Foreign Defendants ) to the Circuit Court for the Twelfth Judicial District in and for Manatee County, Florida and (ii) denying in part the WTA s Motion to Compel Arbitration and Stay the Case or, in the Alternative, Dismiss the Complaint (the Motion To Compel Arbitration ).

2 Case 818-cv SDM-TGW Document 18 Filed 06/08/18 Page 2 of 11 PageID 651 I. SUMMARY OF ARGUMENT This action arises from the conduct of the WTA and the Foreign Defendants (together, the Defendants ) in subjecting Brengle to anti-doping blood testing using needles despite Defendants knowing and ignoring that she suffers from a rare medicallydiagnosed physical conduction which results in both temporary and permanent physical injury, emotional trauma, and pain in suffering from having a needle inserted into her vein, and thereafter repeatedly punishing and harassing Brengle following her challenge to this conduct. On April 9, 2018, Plaintiff Brengle filed a nine-count complaint against Defendants, in an amount yet to be fully determined but believed to be in excess of $10 million, in the Circuit Court in and for Manatee County, Florida. Two counts are against the WTA only (breach of contract and breach of the implied covenant of good faith and fair dealing) and two counts are against the WTA and other defendants (battery and negligence). The five remaining claims are against one or more of the Foreign Defendants, but not the WTA. On May 8, 2018, the WTA removed this action pursuant to 9 U.S.C. 205, contending that the action relates to an arbitration agreement between Brengle and the WTA. There are no agreement between Brengle and any of the Foreign Defendants either directly or by incorporation that contains an arbitration provision. Severing the claims against the WTA and remanding all remaining claims against the Foreign Defendants is necessary and appropriate because there is no basis for this Court to exercise subject matter jurisdiction over those claims against the Foreign Defendants. Diversity jurisdiction is not alleged, there is no basis for federal question 2

3 Case 818-cv SDM-TGW Document 18 Filed 06/08/18 Page 3 of 11 PageID 652 jurisdiction (all the claims in the Complaint are asserted under the laws of the State of Florida), nor is there federal subject matter jurisdiction pursuant to 9 U.S.C. 203 with respect to claims against the Foreign Defendants, none of whom is a party to an arbitration agreement with Brengle. II. FACTUAL BACKGROUND A. The WTA Rulebook Brengle has been a professional tennis player on the WTA Tour since ECF No. 1-3, 2. She has never tested positive for any banned substances, missed or attempted to evade a test procedure, or filed an inaccurate report of her whereabouts. ECF No. 1-3, 33. The WTA is the governing body for professional women s tennis. ECF No. 1-3, 34. The WTA, which sanctions national and international professional tournaments, has an annual official Rulebook. (The Rulebook. ) ECF No. 1-3, 34. Section III.A.3.c. of the Rulebook states in part, [e]ach calendar year, all players shall, as a condition of entering or participating in any event organized or sanctioned by the WTA, in conjunction with their execution of the Annual Player Form, consent and agree to comply with the Rulebook, Anti-Doping Program and Tennis Anti-Corruption Program. ECF No. 1-1, IIIA.3.c. Section XVIII of the Rulebook is entitled Final Dispute Resolution. Subsection A, entitled Governing Law, states as follows Any dispute between or among the WTA, WTA Tournaments, or WTA players (including, but not limited to matters concerning the arbitrability of disputes) arising out of the application of any provision of this Rulebook ( Dispute ) shall be governed by the laws of the State of New York without reference to New York conflict of laws principles. ECF No. 1-1, WTA Rulebook XVIII.A. 3

4 Case 818-cv SDM-TGW Document 18 Filed 06/08/18 Page 4 of 11 PageID 653 Subsection B, entitled Arbitration states in relevant part Any Dispute... which is not finally resolved by applicable provisions of this rulebook, shall be submitted exclusively to the AAA for final and binding arbitration before a single arbitrator with the Expedited Procedures of the AAA s Commercial Arbitration Rules in effect on the date that a demand for arbitration is filed with the AAA. ECF No. 1-1, WTA Rulebook XVIII.B.1. B. The ITF Programme ITF is the governing body of the game of tennis and its duties and responsibilities include determining the Rule of Tennis. ITF is responsible for administering, governing and enforcing the Anti-Doping Program. The terms of the Anti-Doping Program are set forth in the ITF Tennis Anti-Doping Programme. (The Programme. ) ECF No. 1-3, 38. According to Article 1.1. of the Programme, the purpose of the Programme is to maintain the integrity of tennis and to protect the health and rights of tennis players participating in Covered Events. ECF No. 1-3, 39. The Programme does not contain an arbitration provision, nor does it incorporate by reference the WTA Rulebook s Final Dispute Resolution provisions. C. The Present Action Brengle suffers from a rare medical condition known as Complex Regional Pain Syndrome ( CRPS ) Type I. ECF No. 1-3, 3. CRPS is manifested by chronic pain, which usually affects a person s arm or leg. Id. Brengle s CRPS is induced by venipuncture (i.e., the process of obtaining intravenous access to blood through a person s vein). Id. When Brengle is subjected to venipuncture blood testing, the procedure causes extreme pain as well as swelling, numbness and bruising at and in the vicinity of the injection site. ECF No. 1-3, 4. The procedure also causes Brengle severe anxiety due 4

5 Case 818-cv SDM-TGW Document 18 Filed 06/08/18 Page 5 of 11 PageID 654 to the anticipatory fear of the excruciating pain that the venipuncture blood draw will cause her. Id. The physical and emotional damage to Brengle resulting from the venipuncture testing and Defendants conduct has been profound. ECF No. 1-3, 17. By forcing Brengle to undergo venipuncture blood testing and refusing to make reasonable accommodations, Defendants caused Brengle to miss tournaments and to suffer from debilitating physical injuries and emotional trauma. ECF No. 1-3, 6. On April 9, 2018, Brengle commenced this action against the Defendants in the Circuit Court for the 12th Judicial Circuit in and for Manatee County, Florida. ECF No The Complaint contains the following claims against the Defendants Count Claim Defendant(s) I Battery WTA, ITF and IDTM II Intentional Infliction of Emotional Distress IDTM and Snowball III Intentional Infliction of Emotional Distress ITF and Miller IV Negligence WTA, ITF, IDTM, Miller and Snowball V Breach of Contract WTA VI Breach of Contract ITF VII Breach of Implied Covenant of Good Faith WTA and Fair Dealing VIII Breach of Implied Covenant of Good Faith ITF and Fair Dealing IX Permanent Injunction ITF, ITDM, Miller and Snowball On May 8, 2018, the Tour filed a Notice of Removal in this Court (ECF No. 1), pursuant to 9 U.S.C. 205, on the ground that the action relates to an arbitration agreement falling under the Convention on Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958 (the Convention ). On May 15, 2018, the Tour filed the Motion to Compel Arbitration. ECF No. 8. On May 18, 2018, the Foreign Defendants filed a Consent to Remove. ECF 9. 5

6 Case 818-cv SDM-TGW Document 18 Filed 06/08/18 Page 6 of 11 PageID 655 III. MEMORANDUM OF LAW A. The Claims Against the Foreign Defendants Must Be Remanded Federal courts are courts of limited jurisdiction. See Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). When a case is removed to federal court, [i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. 28 U.S.C. 1447(c). The Eleventh Circuit favors remand of removed cases where federal jurisdiction is not evident. Burns, 31 F.3d at On a motion to remand, the removing party bears the burden of showing the existence of federal jurisdiction. Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996). The sole ground for the WTA s removal of this matter to the Middle District of Florida is based upon the arbitration provision in the WTA Rulebook. See 9. U.S.C Section 205 permits removal of a state court case to federal court when the claims in the state court proceeding relate to an arbitration agreement falling under the Convention. 9 U.S.C In ruling on a motion to enforce an arbitration agreement under the Convention, a district court conducts a limited inquiry. Bautista v. Star Cruises, 396 F. 3d 1289, 1294 (11th Cir. 2005). As a threshold matter, under both the [Federal Arbitration Act] and the Convention, the first task of the court asked to compel arbitration of a dispute is to determine whether the parties agreed to arbitrate it. Doe v. Princess Cruise Lines, Ltd., 657 F.3d 1204, 1213 n.9 (11th Cir. 2011) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985)). In other words, the parties will not 1 Section 205 is a removal provision in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C Section 203 grants original jurisdiction to federal district courts. 9 U.S.C. 203 ( The district courts of the United States... shall have original jurisdiction over such an action or proceeding, regardless of the amount in controversy. ) 6

7 Case 818-cv SDM-TGW Document 18 Filed 06/08/18 Page 7 of 11 PageID 656 be required to arbitrate when they have not agreed to do so. Id. at 1214 (quoting Goldberg v. Bear, Sterns & Co., 912 F.2d 1418, 1419 (11th Cir. 1990)). In exercising this authority, a district court has broad discretion to sever claims that are arbitrable from those that are not. See Fed. R. Civ. P. 21 ( The court may also sever any claim against a party ); Haasbroek v. Princess Cruise Lines, Ltd., 286 F.Supp.3d 1352, 1357 (S.D. Fla. 2017) (where an arbitration clause is not applicable to some or all of the claims at issue, the Court does not have subject matter jurisdiction of those claims and those claims must be remanded ). Here, the Court does not have subject matter jurisdiction of the claims against the Foreign Defendants because Brengle has never agreed to arbitrate any disputes with the Foreign Defendants. The sole arbitration clause in the WTA Rulebook reads in relevant part as follows Any Dispute... which is not finally resolved by applicable provisions of this Rulebook, shall be submitted exclusively to the AAA for final and binding arbitration before a single arbitrator with the Expedited Procedures of the AAA s Commercial Arbitration Rules in effect on the date that a demand for arbitration is filed with the AAA. ECF No. 1-1, WTA Rulebook XVIII.B.1. The term Dispute, as referenced above, is defined as Any dispute between or among the WTA, WTA Tournaments, or WTA Players (including, but not limited to, matters concerning the arbitrability of disputes) arising out of the application of any provision of this Rulebook. ECF No. 1-1, WTA Rulebook XVIII.A. The WTA Rulebook s arbitration provision clearly applies only to Brengle s claims against the WTA, not the Foreign Defendants. Since the Foreign Defendants and Brengle do not have an agreement to arbitrate 7

8 Case 818-cv SDM-TGW Document 18 Filed 06/08/18 Page 8 of 11 PageID 657 her claims against them, it would be inappropriate for this Court to stay or dismiss those claims. 2 See e.g., Goel v. Ramachandran, 823 F. Supp. 2d 206, 211, 217 (S.D.N.Y. 2011) (remanding case to state court for lack of subject matter jurisdiction where the defendant was not a signatory to an arbitration agreement). The Court does not have jurisdiction over the dispute between Brengle and the Foreign Defendants and there is no arbitration clause governing their dispute. As a result, the Court should sever the WTA s claims and remand to state court Brengle s claims against the Foreign Defendants. See Haasbroek v. Princess Cruise Lines, Ltd., 286 F. Supp. 3d at 1363 (compelling arbitration with respect to three counts, but remanding the remaining six counts to state court because this Court only has subject matter jurisdiction of this action under the Convention of the Act ); see also Wexler v. Solemates Marine, Ltd., 2017 WL at *4-5 (S.D. Fla. Mar. 14, 2017) ( remand is appropriate because defendant is unable to satisfy the first jurisdictional element of Bautista i.e., the existence of an agreement in writing within the meaning of the Convention to arbitrate the dispute at issue ) (citation omitted); Florian v. Carnival Corp., No. 10-CV-20721, 2010 WL , at *1 (S.D. Fla. May 25, 2010) (the case must be remanded for lack of subject matter jurisdiction where removal of case was premised on the existence of an arbitration provision that did not cover the time period in which the plaintiff alleged he was injured). 2 The issue of whether a non-signatory to an agreement can enforce an arbitration clause of a signatory party is governed by Florida state law. Lawson v. Life of South Ins., 648 F. 3d 1166, (11th Cir. 2011). Generally speaking, under Florida law a non-signatory to a contract cannot compel a signatory to submit to arbitration. Drayton v. Toyota Motor Credit Corp., 686 Fed. Appx. 757, (11th Cir. 2017) (affirming denial of motion to compel arbitration where defendant was not party to the document containing the arbitration agreement). 8

9 Case 818-cv SDM-TGW Document 18 Filed 06/08/18 Page 9 of 11 PageID 658 B. The Motion to Compel Arbitration Should Not Be Applied to Plaintiff s Claims Against the Foreign Defendants Brengle objects to the Motion to Compel Arbitration on grounds that it should not be applied to all Defendants. As set forth above, the arbitration provision on which the WTA relies for removal jurisdiction under the Convention is inapplicable to Brengle s claims against the Foreign Defendants. The Foreign Defendants have no other grounds for removal or subject matter jurisdiction, thus those claims should be properly remanded. IV. CONCLUSION For all the foregoing reasons, Plaintiff prays for an order (i) severing the claims of the WTA (Counts V and VII, and, to the extent that they apply to the WTA, Counts I and IV) and remanding all remaining claims to the Circuit Court in and for Manatee County, Florida, and (ii) denying Defendant WTA s Motion to Compel Arbitration with respect to the Foreign Defendants, and (iii) for all other just and appropriate relief. DATED June 8, 2018 Respectfully Submitted, s/ Peter R. Ginsberg PETER R. GINSBERG LAW, LLC Peter R. Ginsberg 80 Pine Street, 33 rd Floor New York, New York Telephone (646) Facsimile (646) pginsberg@prglaw.com 9

10 Case 818-cv SDM-TGW Document 18 Filed 06/08/18 Page 10 of 11 PageID 659 BLALOCK WALTERS Charles F. Johnson, Esq. Florida Bar No th Street West Bradenton, FL Telephone (941) Fax (941) Attorneys for Plaintiff Madison Brengle 10

11 Case 818-cv SDM-TGW Document 18 Filed 06/08/18 Page 11 of 11 PageID 660 CERTIFICATE OF CONFERENCE Pursuant to Local Rule 3.01, I hereby certify that I have conferred with opposing counsel regarding the relief requested in this motion, and that the parties do not agree on the resolution of this motion. /s/ Peter R. Ginsberg Peter R. Ginsberg CERTIFICATE OF SERVICE I hereby certify that on June 8, 2018, I electronically filed the foregoing via the Court s CM/ECF system. The CM/ECF system will automatically serve all counsel of record. /s/ Charles F. Johnson Charles F. Johnson 11