                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-16-2001

Cureton v. Natl Collegiate Athlet. Assoc.
Precedential or Non-Precedential:

Docket 00-1559




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Filed May 16, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1559

TAI KWAN CURETON; LEATRICE SHA W,
each individually and on behalf
of all others similarly situated;
ALEXANDER WESBY; ANDREA GARDNER

v.

NATIONAL COLLEGIATE ATHLETIC ASSOCIA TION

       Tai Kwan Cureton; Leatrice Shaw;
       Alexander Wesby; Andrea Gardner ,

       Appellants

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 97-cv-00131)
District Judge: Honorable Ronald L. Buckwalter

Argued November 9, 2000

Before: ROTH, MCKEE and STAPLETON, Cir cuit Judges

(Opinion filed May 16, 2001)

       Andre L. Dennis, Esquire (Argued)
       Danielle Banks, Esquire
       Stradley, Ronon, Steves & Young
       2600 One Commerce Square
       Philadelphia, PA 19103
       Adele P. Kimmel, Esquire
       Trial Lawyers for Public Justice, P.C.
       1717 Massachusetts Avenue,
        N.W., Suite 800
       Washington, D.C. 20036

       J. Richard Cohen, Esquire
       Southern Poverty Law Center
       400 Washington Avenue
       Montgomery, AL 36104

        Attorneys for Appellants

       David P. Bruton, Esquire (Argued)
       Michael W. McTigue, Jr., Esquir e
       Drinker, Biddle & Reath
       18th & Cherry Streets
       One Logan Square
       Philadelphia, PA 19103-6996

       Elsa Kircher Cole
       General Counsel
       National Collegiate Athletic
        Association
       1802 Alonzo Watford Sr. Drive
       Indianapolis, IN 46202

        Attorneys for Appellees

OPINION OF THE COURT

ROTH, Circuit Judge:

This is a putative class action by African-American
student-athletes challenging the minimum standar dized
test score requirement for fr eshman year varsity
intercollegiate athletic participation. This suit began almost
four years ago and has previously been befor e us on
appeal. See Cureton v. National Collegiate Athletic Ass'n,
198 F.3d 107 (3d Cir. 1999). In the instant appeal, we must
determine whether the District Court abused its discretion
in denying plaintiffs' motion to alter or amend summary
judgment and for contemporaneous leave to file a second
amended complaint. We conclude that the District Court

                                  2
did not abuse its discretion, and for the r easons that follow
we will affirm the judgment of the District Court.

I. FACTS

The National Collegiate Athletic Association (NCAA) is an
unincorporated voluntary association of more that one
thousand members, a majority of which are public and
private four-year colleges and universities that conduct
varsity intercollegiate athletic programs. The NCAA member
colleges are divided into Divisions. This suit deals with an
NCAA bylaw called Proposition 16, which af fects initial
eligibility only in Division I.1 Proposition 16, codified at
NCAA Bylaw 14.3, has two components which operate on a
sliding scale: a minimum high school grade point average
(GPA) in thirteen required cor e courses and a minimum
standardized test score on the Scholastic Aptitude Test
(SAT) or the ACT Assessment.

Plaintiffs are African-American student-athletes who
exceeded the NCAA minimum GPA requir ement for
freshman year athletic participation but failed to achieve
the minimum required score on the SA T as required by
Proposition 16. They allege that, because of Pr oposition 16,
they lost the opportunity to compete in Division I varsity
intercollegiate athletics during their fr eshman year, were
denied admission to Division I schools, were denied athletic
scholarships, and/or were denied recruiting opportunities
by Division I schools.

Because the factual and procedural history of this case
bears directly on our decision, we recite it in some detail.
Plaintiffs began this action on January 8, 1997, alleging
that the minimum standardized test scor e component of
Proposition 16 violated Title VI r egulations because it had
an unjustified disparate impact on African-American
student-athletes. As plaintiffs' counsel stated in a
declaration filed with the District Court, counsel chose to
pursue a disparate impact challenge to Proposition 16,
rather than an intentional discrimination claim, because a
_________________________________________________________________

1. Division I is comprised generally of the lar ger universities and
colleges
with the greater availability of athletic scholarship monies.

                               3
disparate impact claim had a less "demanding" standard of
proof. On February 5, 1997, the NCAA moved to dismiss
plaintiffs' complaint, contending, inter alia, that (1) there
was no private right of action for unintentional
discrimination under Title VI; (2) the NCAA was not a
"program or activity" subject to T itle VI; and (3) the NCAA
did not receive the federal funding necessary to subject it to
Title VI.

Plaintiffs responded to the NCAA's motion to dismiss and
moved for partial summary judgment on the gr ounds that,
as a matter of law, the NCAA was a covered pr ogram or
activity subject to a Title VI action and was a recipient of
federal financial assistance for purposes of T itle VI. The
NCAA contends, and the District Court found, that as part
of their opposition to the motion, plaintiffs demonstrated
knowledge of several of the facts that plaintif fs would later
allege were evidence of intentional discrimination.
Specifically, plaintiffs referr ed to criticism from the
administrator of the SAT and from the NCAA's own studies
which warned that the NCAA's use of standar dized test
scores for freshman eligibility would have a disparate
impact on African-American student-athletes. Despite the
existence of this evidence, however, plaintif fs did not
suggest that it demonstrated intentional discrimination. To
the contrary, the District Court found that plaintif fs praised
the NCAA's motives in adopting initial eligibility standards
as "laudable."

On October 9, 1997, the District Court denied the NCAA's
motion to dismiss while granting in part and denying in
part plaintiffs' motion for partial summary judgment. The
court determined that there was a private right of action
under Title VI for disparate impact2 and held that the NCAA
is a "program or activity" within the meaning of Title VI.
However, the court left open the question of whether the
NCAA receives federal funds as a result of its relationship
with the National Youth Sports Program (NYSP).
_________________________________________________________________

2. The Supreme Court has recently held that there is no private right of
action to enforce disparate impact regulations promulgated under Title
VI. Alexander v. Sandoval, ___ U.S. ___ (2001).

                               4
On June 22, 1998, the United States Supreme Court
issued its decision in Gebser v. Lago Vista Ind. Sch. Distr.,
524 U.S. 274 (1998). As a result, plaintif fs' counsel became
aware that the Supreme Court had articulated a deliberate
indifference standard, albeit in the Title IX context, to
determine whether a recipient of federal funds could be
liable for knowingly allowing discrimination to occur.
Meanwhile, in response to the Supreme Court having
granted certiorari in a Title VI case, the NCAA moved in
September of 1998 to amend the District Court's October 9,
1997, order and to certify for appeal the question of
whether Title VI's implementing regulations permitted a
private right of action.

Plaintiffs acknowledge that they consider ed moving to
amend their complaint to allege intentional discrimination
at this point. However, because the District Court denied
the NCAA's motion to certify the private right of action
question for appeal, plaintiffs made a tactical decision not
to move to amend their complaint. Plaintiffsfiled a motion
for summary judgment on their disparate impact claim on
October 6, 1998. That motion contained a footnote
suggesting plaintiffs' belief that they could allege a
purposeful discrimination claim in light of Gebser.3

On November 13, 1998, plaintiffs moved to amend their
complaint by adding two additional named parties. The
NCAA filed a cross motion for summary judgment on
November 18, 1998, and opposed plaintiffs' motions for
summary judgment and for leave to add party plaintif fs. In
support of its motion for summary judgment, the NCAA
attached the affidavit of an NCAA official who opined that
one of the valid educational objectives of Pr oposition 16 was
closing the gap between black and white student-athlete
graduation rates.

By memorandum and order dated December 18, 1998,
the District Court allowed the two additional named
plaintiffs to intervene pursuant to Fed.R.Civ.P. 24. The
District Court's order granting the motion specifically stated
_________________________________________________________________

3. With the exception of that footnote, plaintiffs did not advance an
intentional discrimination claim until after their disparate impact claim
had been rejected on appeal.

                               5
that "it bears noting that the time is near to when motions
of this sort would affect the close of discovery and
consequently, any additional similar requests will be looked
on with disfavor."

Subsequently, both parties filed supplemental
submissions in support of summary judgment and
participated in oral argument. On March 8, 1999, the
District Court denied the NCAA's motion for summary
judgment and granted plaintiffs' motion for summary
judgment, declaring Proposition 16 unlawful under Title
VI's implementing regulations and permanently enjoining
application of Proposition 16. See Cur eton v. National
Collegiate Athletic Ass'n, 37 F. Supp. 2d 687 (E.D.Pa.
1999). The District Court concluded that the NCAA was an
indirect recipient of federal funding due to its complete
control over the NYSP Fund. Alternatively, the District
Court determined that the NCAA was subject to Title VI
coverage because member schools had ceded contr olling
authority to it.

Next, the District Court determined that the NCAA's
legitimate objective in adopting Proposition 16 was raising
overall student-athlete graduation rates and r ejected the
NCAA's alternative justification of closing the gap between
black and white student-athlete graduation rates. The court
held that the NCAA's second proffer ed objective, closing the
gap between black and white student-athletes, was
"unequivocally not the purpose behind" adoption of
Proposition 16. Finally, the court deter mined that the use
of the standardized test score for fr eshman eligibility had
an unjustified disparate impact on African-American
student-athletes and that there were equally effective
alternatives to the standardized test score component
which could further the NCAA's objective of incr easing
graduation rates of student-athletes. On Mar ch 16, 1999,
the District Court clarified its injunction and enjoined the
NCAA from denying eligibility based on the minimum
standardized test component of Proposition 16.

On December 22, 1999, we reversed the District Court's
grant of summary judgment to plaintiffs and r emanded the
case with directions to enter judgment for the NCAA. See
Cureton v. NCAA, 198 F.3d 107 (3d Cir. 1999). Specifically,

                               6
we found that the Title VI regulations under which
plaintiffs sued were program specific (i.e., specific to the
NYSP) and therefore did not reach Pr oposition 16. In
addition, we rejected the "controlling authority" argument
and found that the NCAA was not a recipient of federal
funds based on its relationship to its member institutions.

On February 28, 2000, after the case was remanded to
the District Court, plaintiffs filed a motion to alter or
amend summary judgment and a motion for leave to amend
their complaint under Federal Rules of Civil Pr ocedure 59(e)
and 15(a). In their proposed amended complaint, plaintiffs
allege that Proposition 16 has been adopted and used by
the NCAA as an instrument of intentional discrimination
against African-American student-athletes. On April 13,
2000, the District Court denied the motion, finding it to be
untimely, prejudicial to the NCAA, and futile. The District
Court denied plaintiffs' request for r econsideration, and
plaintiffs timely appealed.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court exercised federal question jurisdiction
pursuant to 28 U.S.C. S 1331. We have jurisdiction over the
District Court's final order denying plaintif fs' motion
pursuant to 28 U.S.C. S 1291.

We review a district court's refusal to allow a plaintiff to
amend his complaint pursuant to Fed.R.Civ.P. 15(a) for
abuse of discretion. Adams v. Gould Inc. , 739 F.2d 858, 863
(3d Cir. 1984) cert. denied, 469 U.S. 1122 (1985). Similarly,
when a district court rejects a motion to alter or amend a
judgment filed pursuant to Rule 59(e), we r eview for abuse
of discretion, except over matters of law, which are subject
to plenary review. Id. at 863-64.

III. DISCUSSION

Both a motion to amend a judgment and a motion for
leave to amend a complaint are addressed to the sound
discretion of the district court. Where a timely motion to
amend judgment is filed under Rule 59(e), the Rule 15 and
59 inquiries turn on the same factors. Id. ; Newark Branch,

                               7
NAACP v. Town of Harrison, 907 F.2d 1408, 1417 n.14 (3d
Cir. 1990). A district court may deny leave to amend a
complaint if a plaintiff 's delay in seeking amendment is
undue, motivated by bad faith, or prejudicial to the
opposing party. Foman v. Davis, 371 U.S. 178, 182 (1962).
Moreover, the court may deny a r equest if the movant fails
to provide a draft amended complaint, see Lake v. Arnold,
232 F.3d 360, 374 (3d Cir. 2000), or may refuse to allow an
amendment that fails to state a cause of action. Adams,
739 F.2d at 864, citing Massarsky v. General Motors Corp.,
706 F.2d 111, 125 (3d Cir. 1983).

The mere passage of time does not requir e that a motion
to amend a complaint be denied on grounds of delay.
Adams, 739 F.2d at 868. In fact, delay alone is an
insufficient ground to deny leave to amend. Cornell & Co.,
Inc. v. Occupational Safety & Health Review Comm'n. , 573
F.2d 820, 823 (3d Cir. 1978). However , "at some point, the
delay will become `undue,' placing an unwarranted burden
on the court, or will become `prejudicial,' placing an unfair
burden on the opposing party." Adams, 739 F.2d at 868.
Delay may become undue when a movant has had pr evious
opportunities to amend a complaint. See Lor enz v. CSX
Corp., 1 F.3d 1406, 1414 (3d Cir. 1993) (three year lapse
between filing of complaint and proposed amendment was
"unreasonable" delay where plaintif f had "numerous
opportunities" to amend); see also Rolo v. City Investing Co.
Liquidating Trust, 155 F.3d 644, 654-55 (3d Cir. 1998)
(rejecting proposed second amended complaint where
plaintiffs were repleading facts that could have been pled
earlier). When a party delays making a motion to amend
until after summary judgment has been granted to the
adverse party, other courts have recognized that the
interests in judicial economy and finality of litigation may
become particularly compelling. See Diersen v. Chicago Car
Exch., 110 F.3d 481, 489 (7th Cir . 1997); Humphreys v.
Roche Biomed. Lab. Inc., 990 F.2d 1078, 1082 (8th Cir
1993); Union Planters Nat'l Leasing Inc. v. W oods, 687 F.2d
117, 121 (5th Cir. 1982); Dussouy v. Gulf Coast Inv. Corp.,
660 F.2d 594, 598 n.2 (5th Cir. 1981). Thus, while bearing
in mind the liberal pleading philosophy of the federal rules,
Adams, 739 F.2d at 864, the question of undue delay

                               8
requires that we focus on the movant's r easons for not
amending sooner. Id. at 868.

Moreover, substantial or undue pr ejudice to the non-
moving party is a sufficient ground for denial of leave to
amend. Lorenz, 1 F.3d at 1414. The issue of prejudice
requires that we focus on the hardship to the defendants if
the amendment were permitted. Adams , 739 F.2d at 868.
Specifically, we have considered whether allowing an
amendment would result in additional discovery, cost, and
preparation to defend against new facts or new theories.
Compare id. at 869 (finding no pr ejudice because no new
facts or additional discovery were requir ed) with Rolo, 155
F.3d at 655 (finding duration of case and substantial effort
and expense in resolving underlying motion to dismiss
could constitute undue delay or prejudice to defendants)
and Cornell, 573 F.2d at 823-24 (finding significant
prejudice because proposed amendment changed legal and
factual basis of claim and prevented defendant from
presenting defense).

Turning to the case before us, the District Court, when it
denied plaintiffs' post-judgment motion to amend, cited
four reasons why plaintiffs' delay was undue: (1) the motion
was filed three years after the complaint wasfiled; (2) the
factual information on which the proposed amendment
relied was known almost two-and-a-half years before
plaintiffs sought leave to amend;4 (3) judicial efficiency
would be damaged by trying claims seriatim; and (4) the
interest in the finality of the proceedings would be
compromised by amendment. Furthermor e, the District
Court examined plaintiffs' asserted reasons for the delay in
seeking amendment and determined that no "r easonable
explanation" existed to overlook the delay. The court
concluded that the only real reason advanced by plaintiffs
for the substantial lapse in time was plaintif fs' misplaced
confidence in their original disparate impact theory.

The court next concluded that the NCAA would be
prejudiced if plaintiffs were allowed to amend the complaint
_________________________________________________________________

4. In fact, the District Court found that the plaintiffs demonstrated
knowledge of many of the facts supporting their intentional
discrimination claim as early as July 1997.

                               9
to add a claim of intentional discrimination. It determined
that the new claim might require the court to revisit the
certification of the class and that amendment would lead to
further discovery requests and significant new preparation.
The court concluded that "the proposed amendment would
essentially force the NCAA to begin litigating this case again."5

We cannot say that the District Court abused its
considerable discretion in denying the post-judgment
motion to amend. The court carefully analyzed plaintiffs'
proffered reasons for delay, the prejudice to the NCAA, and
the substance of the amended complaint. It concluded that
the assertion of the claim was untimely and pr ejudicial to
the NCAA. The District Court, which had considerable
familiarity with the development of the factual and legal
issues in this matter, concluded that the new claim
fundamentally altered the proceeding and could have been
asserted earlier. We find no err or in the District Court's
conclusions.

Plaintiffs contend, however, that our decision in Adams
warrants reversal of the District Court. W e disagree. In fact,
a careful reading of Adams supports the District Court's
decision to deny leave to amend.

In Adams, the plaintiffs brought an ERISA breach of
fiduciary duty claim against the trustees of a pension plan.
The defendants moved for summary judgment. In defending
against this motion, plaintiffs advanced two legal theories.
The District Court accepted plaintiffs' first theory and
denied defendants' motion for summary judgment. The
District Court did not address the alter native theory raised
by plaintiffs. The District Court then certified a question for
appeal based on the first theory. 739 F.2d at 862. We
reversed the District Court's denial of summary judgment
and directed that judgment be entered in favor of
defendants. Id. at 863. We specifically declined to address
the alternative legal theory which plaintif fs again sought to
_________________________________________________________________

5. The District Court also concluded that allowing plaintiffs to amend
would be futile. Because the District Court's judgment can be affirmed
on grounds of delay and prejudice, we expr ess no opinion on the validity
of the intentional discrimination claim alleged in plaintiffs' proposed
amended complaint.

                               10
present. Id. at 863, 866 n.8. After r emand, plaintiffs
"formally advanced the [alternative] theory," by moving to
alter or amend the judgment, pursuant to Rule 59(e), and
for leave of the District Court to file a second amended
complaint, pursuant to Rule 15(a). Id. at 863. The District
Court denied plaintiffs' motions. On the second appeal, we
held that the District Court abused its discr etion in denying
the motions to amend.

Plaintiffs contend that the instant matter is
indistinguishable from Adams. They focus on the District
Court's denial of the NCAA's motion for summary
judgment, our reversal with instructions to enter judgment
for the NCAA, and the District Court's denial, on r emand,
of plaintiffs' motion to amend. However , plaintiffs overlook
significant factual and procedural dif ferences between
Adams and the instant matter.

Unlike the instant case, the alternative theory that the
Adams plaintiffs ultimately pursued had been raised at
earlier points in the litigation. "This contention was
asserted earlier in the litigation in plaintif fs' briefs, but was
not addressed either by the district court or by this court
. . . ." Id. at 861. In Adams,"[w]e specifically limited our
holding to the certified question, and declined to reach the
issue now before us, although the plaintif fs tried to raise it
at oral argument." Id. at 863.

Thus, in contrast to the plaintiffs her e, the Adams
plaintiffs proffered the alter native theory to both the district
and appellate courts prior to moving to amend. Mor e
importantly, unlike the instant case, the Adams plaintiffs
had not cross-moved for summary judgment and thus had
not themselves sought a merits determination on their
claims. In contrast, although the plaintiffs here by their
own admission had sufficient facts and legal authority to
allege an intentional discrimination claim at least by
September of 1998, rather than attempting to add that
claim, they filed for judgment on the merits on their
disparate impact claim. A month later, they moved to add
party plaintiffs, and the district court gave them the
opportunity to do so.6 The District Court heard oral
_________________________________________________________________

6. While plaintiffs styled their motion a"Motion to Amend to Add Party-
Plaintiffs and/or Alternative Motion to Intervene," the District Court
determined that the additional parties would be recognized as
intervenors pursuant to Rule 24.

                               11
argument on the cross-motions for summary judgment and,
after considering voluminous exhibits and the undisputed
facts, resolved the legal issues and reached the merits of
the disparate impact claim. See Cureton , 37 F. Supp. 2d
687. We reversed the District Court's or der on appeal. In
light of the fact that plaintiffs participated in
comprehensive proceedings which resulted in summary
judgment for the NCAA, "the concerns offinality in
litigation become more compelling [because] the litigant has
had the benefit of a day in court, in some fashion, on the
merits of his claim." Dussouy, 660 F .2d at 598 n.2.

Moreover, the Adams defendants demonstrated no
prejudice from the amendment. Here, the prejudice to the
NCAA is significant. During the lengthy and compr ehensive
proceedings below, the NCAA had defended against a
disparate impact challenge to Proposition 16 and had no
notice that the question of discriminatory intent was at
issue. This is not a case where the question of
discriminatory intent permeates the plaintif fs' original
claim. See Coventry v. U.S. Steel Corp., 856 F.2d 514, 519
(3d Cir. 1988) (finding little prejudice where defendant had
notice of amended claim because additional issue
permeated original claim); see also Adams , 739 F.2d at 869
(finding no prejudice where plaintif fs proffered alternative
theory before both district and appellate courts before
moving to amend). On the contrary, to the extent that the
NCAA's intent had been addressed in this case, it had been
characterized by plaintiffs as "laudable" and by the District
Court as "legitimate." Cureton, 37 F. Supp. 2d at 701-05.
Thus, if amendment were permitted, the NCAA would be
prejudiced by having to engage in burdensome new
discovery and significant new trial preparation.

In Adams, we recognized that these matters are
committed to the District Court's sound discr etion. 739
F.2d at 868. The refusal to grant leave without any
justification for the denial can be an abuse of discretion.
See Foman, 371 U.S. at 182; Lake, 232 F .3d at 373.
However, "[i]t is certainly not inconceivable to us that
instances could occur in which the failure to make a timely
motion to amend a complaint would place an unwarranted
burden upon a trial court, or be prejudicial to the party

                               12
opposing the motion." Coventry, 856 F .2d at 520. In such
circumstances, the obligation of the district court in its
disposition of the motion is to articulate the pr ejudice
caused by the delay and to balance those concer ns against
the reasons for delay. Id. The District Court satisfied its
obligation here. We find no reason to disturb its judgment.

IV. CONCLUSION

For the foregoing reasons, we conclude that the District
Court did not abuse its discretion in denying plaintiffs'
motion to alter or amend summary judgment and for
contemporaneous leave to file a second amended complaint.
We will affirm the judgment of the District Court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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