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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Terrell Suggs, 

Plaintiff, 

v. 

Maire Wichard, et al., 

Defendants.

No. CV-15-02141-PHX-GMS

ORDER 

 Pending 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. 

BACKGROUND

 Plaintiff 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. 

 In 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. 

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After Mr. Wichard’s death, on November 15, 2011, Plaintiff retained a new Contracts 

Advisor, Joel Segal, to replace Mr. Wichard. 

 Plaintiff 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 his 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. 

 The arbitrator held that Plaintiff was required to pay the Estate $172,800—

$192,000 based on Plaintiff’s 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.) 

 Now, Plaintiff brings suit against Mrs. Wichard and Pro Tect, alleging unjust 

enrichment and breach of an implied contract.1

 The two claims arise out of the same 

simple and undisputed set of facts: After Gary Wichard’s death, Plaintiff paid 

 

1

 Plaintiff’s complaint also asks for a declaration that, should the arbitrator decide 

in Defendants’ favor regarding the commissions for the 2014 season, Plaintiff is entitled 

to restitution of the amount awarded. After this action was filed, but prior to this ruling, the arbitrator did render a decision in Defendants’ favor. Therefore, a forward-looking declaratory judgment is no longer necessary and the award will be considered along with the rest of Plaintiff’s claims. 

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commissions to the Estate, and neither Mrs. Wichard nor Pro Tect performed any agency 

services on Plaintiff’s 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. 

 Mrs. Wichard, a citizen of California, and Pro Tect, a California limited liability 

corporation, seek to dismiss Plaintiff’s action for a lack of personal jurisdiction or, 

alternatively, failure to state a claim upon which relief can be granted. 

DISCUSSION 

I. Personal Jurisdiction 

Ordinarily, 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 

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grounds, 505 U.S. 1215 (1992); see also Norton v. Mathews, 427 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. 

II. Failure to State a Claim 

 Defendants proffer several different theories as to why Plaintiff’s 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 face, and therefore need not address any of the numerous alternative 

proposed grounds for dismissal. 

A. Collateral Estoppel 

 A federal court sitting in diversity applies the law of the state in which it sits to 

determine the application of collateral estoppel. Pardo v. Olson & Sons, Inc., 40 F.3d 

1063, 1066 (9th Cir. 1994). “Collateral estoppel, or issue preclusion, binds a party to a 

decision on an issue litigated in a previous lawsuit” if certain elements are satisfied. 

Campbell v. SZL Props., Ltd., 204 Ariz. 221, 223, 62 P.3d 966, 968 (Ct. App. 2003). 

When, as here, “a defendant seeks to prevent a plaintiff from asserting a claim the 

plaintiff previously litigated unsuccessfully against another party,” four elements must be 

met. Id. First, the issue must have been “actually litigated in the previous proceeding”; 

second, the parties must have “had a full and fair opportunity and motive to litigate the 

issue”; third, a “valid and final decision on the merits” must have been entered; and 

fourth, the issue must have been “essential to the decision.” Id. 

 There are four prior proceedings in this matter: the first arbitration, with a 

decision issued on December 4, 2014; the district court proceeding confirming that 

award, with a decision issued on March 25, 2015; the second arbitration, with a decision 

issued on December 30, 2015; and the district court proceeding confirming that award, 

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with a decision issued on April 5, 2016.2 Each of these entered a final decision on the 

merits. In both arbitration proceedings, “[b]oth parties had the opportunity to examine 

and cross-examine witnesses as well as present evidence in support of their respective 

positions.” (Doc. 24-1 at 15, Doc. 25-1 at 5.) The first district court confirmation 

proceeding was “extensively briefed” by both parties. (Doc. 24-1 at 40.) In the second 

district court proceeding, however, Plaintiff “filed no opposition” to the Estate’s motions. 

 The issue that ultimately precludes Plaintiff’s claims in this Court—whether 

Plaintiff was required to pay contract fees to the Estate—is the same as the central 

question in both arbitration proceedings. Therefore this issue was actually litigated, by 

litigants who had a full and fair opportunity to litigate it, in a proceeding where it formed 

the necessary basis for a final decision on the merits. 

B. The Elements of Implied Contract and Unjust Enrichment 

 “A contract implied in fact is a true contract—an undertaking of contractual duty 

imposed ‘by reason of a promissory expression.’” Barmat v. John and Jane Doe 

Partners A-D, 155 Ariz. 519, 521, 747 P.2d 1218, 1220 (1987) (quoting 1 A. Corbin, 

Corbin on Contracts § 18, at 39 (1963)). “The distinction between an express contract 

and one implied in fact is that in the former the undertaking is made by words written or 

spoken, while in the latter conduct rather than words conveys the necessary assent and 

undertakings.” Id. Plaintiff asserts that by “demanding and accepting payment of . . . 

fees” from Plaintiff, Defendants impliedly promised to render services to him, thus 

“creating an implied contract.” (Doc. 1 at 7.) 

 But an implied contract, like an express contract, requires consideration. See 

Carroll v. Lee, 148 Ariz. 10, 13, 712 P.2d 923, 926 (1986). Consideration is absent when 

 

2

 The Court may properly consider “documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice” in deciding a motion for failure to state a claim. United States v. Ritchie, 342 F.3d 903, 908 

(9th Cir. 2003). The first arbitration award and the district court decision confirming that award are referenced in the complaint. (Doc. 1 at 10–12.) The Court relies on these two 

proceedings alone in finding Plaintiff collaterally estopped from asserting his claims. However, the second arbitration award and the district court decision confirming that award are also properly the subject of judicial notice. See Fed. R. Evid. 201(b)(2). 

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the promisee is already under a duty to perform. Travelers Ins. Co. v. Breese, 138 Ariz. 

508, 511, 675 P.2d 1327, 1330 (Ct. App. 1983). As the Ninth Circuit aptly phrased this 

“elementary” principle of contract law: “[G]iving a party something to which he has an 

absolute right is not consideration to support that party’s contractual promise.” Salmeron 

v. United States, 724 F.2d 1357, 1362 (9th Cir. 1983). Plaintiff only gave Defendants the 

fees he was contractually obligated to pay the Estate—pursuant to what the arbitrator 

termed Plaintiff’s “continued obligation to pay Wichard or the Estate the Contract 

Advisor fees.” (Doc. 24-1 at 29–30.) The Contract Advisor fees “vested the moment 

[Gary Wichard] negotiated the 2009 contract on Mr. Suggs’ behalf.” (Id. at 42.) The 

fees were thus something to which the Estate had “an absolute right.” Plaintiff is 

collaterally estopped from arguing that this is not so. Plaintiff makes no assertion that 

rather than or in addition to paying the Estate the amount the arbitrator determined it was 

owed, he paid Mrs. Wichard these funds in her individual capacity, or to Pro Tect as an 

entity in its individual capacity rather than to the Estate. To the extent that Mrs. Wichard 

received the funds as the beneficiary of the Estate, as Plaintiff argues, the funds did not 

pass to her from the Estate with more obligations than the Estate itself had in their 

receipt. His breach of implied contract claim therefore is dismissed. 

 For the same reason, collateral estoppel likewise proves fatal to Plaintiff’s unjust 

enrichment claim. “Unjust enrichment occurs when one party has and retains money or 

benefits that in justice and equity belong to another.” Trustmark Ins. Co. v. Bank One, 

Ariz., NA, 202 Ariz. 535, 541, 48 P.3d 485, 491 (Ct. App. 2002). To recover for unjust 

enrichment, Plaintiff must establish five elements: “(1) an enrichment; (2) an 

impoverishment; (3) a connection between the enrichment and the impoverishment; (4) 

the absence of justification for the enrichment and the impoverishment; and (5) the 

absence of a legal remedy.” Id.

 The “money or benefits” that Plaintiff argues belong to him “in justice and equity” 

are the same payments he argues created an implied contract—the fees due under the 

2009 contract. Under Plaintiff’s unjust enrichment theory, Defendants were unjustly 

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enriched by retaining the fee payments without providing Plaintiff any services in return. 

In the language of the unjust enrichment test, he alleges “an absence of justification” for 

Defendants’ enrichment and Plaintiff’s impoverishment. This, too, fails under collateral 

estoppel. In addition to determining that the Estate was entitled to payment under the 

SRA, the arbitrator reduced Plaintiff’s liability based on the Estate’s non-performance. 

The fact remains, however, that Wichard did not perform certain services 

that he had agreed to perform during the time that he was still Suggs’ 

contract advisor. . . . [S]ome reduction in the amount owed to the Estate is 

appropriate. . . . In consideration of the totality of the evidence, I find that a 

ten percent (10%) reduction in Contract Advisor fees is warranted. 

(Doc. 24-1 at 28–29.) In other words, the arbitrator considered any possible injustice 

from Plaintiff’s paying of fees to the Estate of an agent who could no longer represent 

him, and calculated a reduction in fees to avoid such injustice. This calculation 

necessarily addressed whether there was justification in Defendants’ enrichment, and 

decided, with preclusive effect, that there was. 

 Plaintiff is correct in noting that the arbitrator did not “adjudicate whether Mrs. 

Wichard . . . or Pro Tect . . . had or had not breached their duties and obligations to Mr. 

Suggs.” (Doc. 1 at 11.) But the arbitrator did determine that Plaintiff had contractual 

obligations to the Estate, and that the fulfillment of those obligations was not unjust. As 

before, Plaintiff makes no assertion that rather than or in addition to paying the Estate the 

amount the arbitrator determined it was owed, he paid Mrs. Wichard these funds in her 

individual capacity, or to Pro Tect as an entity. To the extent that Mrs. Wichard received 

the funds as the beneficiary of the Estate, those were funds the Estate was justly entitled 

to possess and distribute.

CONCLUSION

 Prior proceedings with preclusive effect have confirmed that Plaintiff Terrell 

Suggs owed certain fees to the Estate of Gary Wichard. He therefore may not use the 

payment of those fees as the basis of a breach of contract claim or an unjust enrichment 

claim against Wichard’s widow or Wichard’s business. 

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 Leave to amend a complaint may be denied as futile where a plaintiff’s claims are 

barred by collateral estoppel. See Rainwater v. Banales, No. CV 08-3789-CJC(E), 2008 

WL 5233138, at *9 n.6 (C.D. Cal. Dec. 15, 2008). Plaintiff’s complaint is dismissed 

without leave to amend and with prejudice. 

IT IS THEREFORE ORDERED that the Motion to Dismiss of Defendants 

Maire Wichard and Pro Tect (Doc. 24) is granted. 

IT IS FURTHER ORDERED that all claims against Defendants are dismissed 

with prejudice. The Clerk of Court is directed to enter judgment accordingly. 

 Dated this 10th day of November, 2016. 

Honorable G. Murray Snow

United States District Judge

Case 2:15-cv-02141-GMS Document 32 Filed 11/10/16 Page 8 of 8