                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-30-2008

Choike v. Slippery Rock Univ
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1537




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                                                      NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                          No. 07-1537




 ELIZABETH LAURA CHOIKE; ASHLEY GUINEVERE STONER;
    HEATHER WALBRIGHT; JESSICA STUDENT; JENNIFER
     VENET; ELIZABETH PENNING; LAURA A. SANFORD;
   EMILY C. CAMPBELL; REBECCA ZINN; ALISON NICOLE
    NUCKOLS; SARAH S. SANDER; RACHEAL BIENIAS, on
                      behalf of themselves
                    and all similarly situated
            individuals; and JAMES V. YEAMANS

                                v.

 SLIPPERY ROCK UNIVERSITY OF PENNSYLVANIA OF THE
 STATE SYSTEM OF HIGHER EDUCATION; ROBERT SMITH,
         in his official capacity as President of Slippery
        Rock University; PAUL LUEKEN, in his official
           capacity as Director of Athletics of Slippery
                          Rock University


       *SAVE SLIPPERY ROCK WRESTLING ("SSRW"),
                              Appellant

                *(Pursuant to Rule 12(a), F.R.A.P.)


         On Appeal from the United States District Court
            for the Western District of Pennsylvania
                     (D.C. No. 06-cv-00622)
         District Judge: Honorable Donetta W. Ambrose
                       Submitted Under Third Circuit LAR 34.1(a)
                                   October 27, 2008

                  Before: SLOVITER, GREENBERG, Circuit Judges,
                          and IRENAS,* Senior District Judge

                                  Filed: October 30, 2008


                                         OPINION


SLOVITER, Circuit Judge.

       Save Slippery Rock Wrestling (“SSRW” or “Appellant”), an association of student

athletes “who desire to wrestle” on an intercollegiate team, App. at 3 n.1, appeals the

District Court’s denial of its motion to intervene in a Title IX lawsuit brought by a group

of female student athletes (“Choike plaintiffs”) against Slippery Rock University (“SRU”

or “University defendants”) (“Appellees,” collectively).

                                             I.

       On January 30, 2006, SRU announced that for budgetary reasons it had decided to

eliminate eight of its sports teams, five men’s teams (swimming, water polo, wrestling,

golf, and tennis) and three women’s teams (swimming, water polo, and field hockey).

Coaches and student athletes were notified at that time of the elimination.

       On May 9, 2006, the Choike plaintiffs filed a well-publicized lawsuit under Title




                   *
                    Honorable Joseph E. Irenas, Senior United States District
            Judge for the District of New Jersey, sitting by designation.

                                             2
IX of the Education Amendments of 1972, alleging SRU failed to provide equitable

athletic opportunities and treatment for the University’s female athletes. They sought a

motion for a preliminary injunction to reinstate the women’s swimming and water polo

teams; the University defendants filed a motion to dismiss shortly thereafter. After

discovery and a hearing, the District Court granted injunctive relief and granted in part

and denied in part SRU’s motion to dismiss.

       The Choike plaintiffs and University defendants proceeded to court-supervised

mediation and reached a tentative settlement regarding SRU’s alleged failure to provide

equitable athletic opportunities. Subsequently, according to the District Court, “[a]ll

discovery has closed, expert reports have been exchanged and the parties represent that

they will be ready for trial in April of 2007.” App. at 2.

       On November 22, 2006, SSRW filed a motion to intervene in the Title IX action

under Rule 24 of the Federal Rules of Civil Procedure. On January 22, 2007, the District

Court denied the motion to intervene as untimely. That is the subject of the appeal before

us.1 During the pendency of this appeal, and after further court-supervised mediation,

notice of a proposed settlement, and a fairness hearing, the District Court approved the

proposed class action settlement between the Choike plaintiffs and University defendants



                    1
                     The District Court had jurisdiction pursuant to 28 U.S.C.
             §§ 1331 and 1343. We have jurisdiction pursuant to 28 U.S.C.
             § 1291 “because the denial of a motion to intervene is a final,
             appealable order.” United States v. Alcan Aluminum, Inc., 25 F.3d
             1174, 1179 (3d Cir. 1994).

                                              3
on August 8, 2007.

                                             II.

       We review a denial of a motion to intervene for abuse of discretion. Harris v.

Pernsley, 820 F.2d 592, 597 (3d Cir. 1987). However, “our review of district court’s

decisions denying intervention of right is more stringent than the abuse of discretion

review accorded to denials of motions for permissive intervention.” Id. “We are more

reluctant to intrude into the highly discretionary decision of whether to grant permissive

intervention.” Brody v. Spang, 957 F.2d 1108, 1115 (3d Cir. 1992).

       Although much of SSRW’s brief is devoted to arguments on the merits that the

regulations and policy statements interpreting Title IX are unenforceable and

unconstitutional,2 we need not consider those arguments because our review is limited to

whether the District Court abused its discretion in denying the motion to intervene as


                     2
                     Specifically, SSRW argues, inter alia, that a 1979 Policy
            Interpretation, which set forth a flexible three-part test for
            assessing compliance with Title IX’s requirements for
            intercollegiate athletics, see 44 Fed. Reg. 71413, at 71418 (Dec. 11,
            1979), was “procedurally defective” and unenforceable under Title
            IX because it was not the result of rulemaking or regulation,
            Appellant’s Br. at 48. SSRW also argues that the District Court was
            without jurisdiction over the underlying Title IX litigation, the
            Commonwealth has not abrogated its sovereign immunity, the 1979
            Policy Interpretation is unenforceable, the Choike plaintiffs failed
            to comply with certain regulatory prerequisites, the Choike
            plaintiffs lack standing, and this court’s decision in Cureton v.
            Nat’l Collegiate Athletic Ass’n, 198 F.3d 107 (3d Cir. 1999), limits
            the Title IX regulations to athletic programs receiving direct
            federal funding.

                                             4
untimely.

       “An application to intervene, whether of right or by permission,3 must be timely

under the terms of Rule 24.” In re Fine Paper Antitrust Litig., 695 F.2d 494, 500 (3d Cir.

1982). A putative intervenor seeking to intervene under Fed. R. Civ. P. 24(a)(2) must

establish that: “(1) the application for intervention is timely; (2) the applicant has a

sufficient interest in the litigation; (3) the interest may be affected or impaired, as a

practical matter by the disposition of the action; and (4) the interest is not adequately

represented by an existing party in the litigation.” Harris, 820 F.2d at 596. “The

timeliness of a motion to intervene is ‘determined from all the circumstances’ and, in the

first instance, ‘by the [trial] court in the exercise of its sound discretion.’” In re Fine

Paper, 695 F.2d at 500 (citation omitted). Factors to consider in making the timeliness

determination include “(1) [h]ow far the proceedings have gone when the movant seeks to

intervene, (2) the prejudice which resultant delay might cause to other parties, and (3) the

reason for the delay.” Id. (alteration, citations, and internal quotation marks omitted).

       The District Court found that SSRW’s request for intervention was untimely and

would prejudice Appellees because the case was in a “relatively advanced” stage. App. at

4. Discovery had not only closed, but it had been completed prior to the preliminary



                    3
                      Permissive intervention is allowed “[o]n timely motion” if
             the putative intervenor “has a claim or defense that shares with the
             main action a common question of law or fact,” and if such
             intervention does not “unduly delay or prejudice the adjudication
             of the original parties’ rights.” Fed. R. Civ. P. 24(b).

                                               5
injunction hearing, which was held five months before SSRW’s motion to intervene was

filed. “Of even more significance, the parties have reached a [class action] settlement . . .

before [SSRW] sought to intervene,” and the District Court was concerned that allowing

the intervention would “derail[]” the settlement. App. at 5 (emphasis in original). The

Court also found that SSRW had offered “no legitimate reason for their delay.” App. at

5.

       We agree with the District Court’s determination of untimeliness. It is true that

“[t]he mere passage of time . . . does not render an application untimely. . . . [However,]

the critical inquiry is: what proceedings of substance on the merits have occurred? This is

because the stage of the proceeding is inherently tied to the question of the prejudice the

delay in intervention may cause to the parties already involved.” Mountain Top Condo.

Ass’n v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 369-70 (3d Cir. 1995) (internal

citations omitted). Here, as the District Court noted, discovery was complete and a

preliminary injunction had been granted in a well-publicized lawsuit. See Donovan v.

United Steelworkers of Am., AFL-CIO, 721 F.2d 126, 127 (3d Cir. 1983) (“All of the

pre-trial work was complete at that time and the case was already scheduled for trial.”).

Moreover, the parties had reached a tentative settlement, which had been submitted to the

District Court for preliminary approval at the time SSRW sought intervention.4 See



                    4
                     As the District Court noted, “[a]s this is a class action,
            settlement of a portion of Plaintiffs’ claims is not as simple as
            signing a form,” because the Court must preliminarily approve the

                                              6
Orange County v. Air Cal., 799 F.2d 535, 538 (9th Cir. 1986) (“Although Irvine did

intervene before the Stipulated Judgment was officially approved by the district court, the

fact that Irvine waited until after all the parties had come to an agreement after five years

of litigation should nevertheless weigh heavily against Irvine.”). Thus, the District Court

did not abuse its discretion in recognizing the potential for prejudice to the other parties if

SSRW had been allowed to intervene.

       To prevail, therefore, SSRW must convincingly explain its reason for the delay in

filing its motion to intervene. See In re Fine Paper, 695 F.2d at 500. The District Court

found that the student wrestlers were told about the elimination of the wrestling team by

January 30, 2006, when the University announced its decision, and that “at least two of

the Wrestlers were suspicious even then that Title IX had played a role in the elimination

of the program.” App. at 5. Indeed, an article in the campus newspaper quoted a student

wrestler stating that he believed Title IX was a “significant” factor in the University’s

decision to eliminate the wrestling team. App. at 106. “To the extent the length of time

an applicant waits before applying for intervention is a factor in determining timeliness, it

should be measured from the point at which the applicant knew, or should have known, of

the risk to its rights.” United States v. Alcan Aluminum, Inc., 25 F.3d 1174, 1183 (3d

Cir. 1994). The District Court certainly did not abuse its discretion in determining that




             settlement, certify a class, give notice to class members, and
             schedule a fairness hearing. App. at 5 n.4.

                                               7
SSRW “knew or should have known of the risk to their rights eleven months before they

filed their Motion.” App. at 5.

       Further, SSRW became aware of its rights in May 2006 when the Choike plaintiffs

filed the underlying lawsuit, which created some publicity, and when the District Court

granted injunctive relief in July 2006. The District Court commented that the wrestlers

took eleven months to find “a legal theory to pursue.” App. at 6. This argument, as the

District Court concluded, “merits little regard,” and does not excuse the delay for seeking

intervention in this case.

                                            III.

       For the reasons set forth above, we will affirm the judgment of the District Court

denying intervention.




                                             8
