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Choike v. Slippery Rock University of Pennsylvania of the State System of Higher Education

January 22, 2007


The opinion of the court was delivered by: Ambrose, Chief District Judge.



An association of student athletes seeks to intervene, both as of right and, alternatively, with permission, in a Title IX case initiated by other student athletes. Because the intervenors have not acted in a timely manner, intervention is denied.


On January 30, 2006, Defendant Slippery Rock University of Pennsylvania of the State System of Higher Education ("SRU") announced that, for budgetary purposes, it would eliminate eight varsity sports. Those sports consisted of men's and women's swimming, men's and women's water polo, women's field hockey, men's golf, men's wrestling and men's tennis. At that same time, SRU notified, in writing, the student athletes that those teams had been eliminated.

Approximately three and one half months later, a group of female student athletes ("the Plaintiffs") filed suit under Title IX of the Education Amendments of 1972 challenging SRU's alleged failure to provide equitable athletic opportunities for its female students (the "participation claim") and its alleged inequitable treatment of its female student athletes (the "unequal treatment claim"). The Plaintiffs also sought preliminary injunctive relief in the form of immediate reinstatement of women's swimming and women's water polo programs and the appointment of coaches, the scheduling of competitions and the provision of all other benefits normally associated with varsity status at SRU. The parties engaged in discovery regarding the participation claims and then this Court held a preliminary injunction hearing on June 14, 2006 and issued an Order and Findings of Fact and Conclusions of Law on July 21, 2006 granting injunctive relief.

Since that date, the Plaintiffs and SRU have diligently worked toward settling this case. Indeed, the parties reached a tentative settlement on the participation claims on September 26, 2006. See Docket No. 59. All discovery has closed, expert reports have been exchanged and the parties represent that they will be ready for trial in April of 2007. See Docket No. 60.

Now, eleven months after SRU announced the elimination of the athletic teams, seven months after the Plaintiffs initiated this well-publicized suit, and more than four months after this Court issued its Order granting preliminary injunctive relief (relief which was itself also well-publicized), an association named Save Slippery Rock Wrestling ("the Wrestlers") seeks to intervene in this action pursuant to Rule 24(a)(2) and (b)(2) of the Federal Rules of Civil Procedure. See Docket No. 64.*fn1 In their Complaint in Intervention, the Wrestlers urge that the regulations implementing Title IX are inapplicable here.*fn2 They also argue that SRU's elimination of the wrestling program violates both Title IX and the Equal Protection Clause of the Fourteenth Amendment. They insist that they must intervene to protect their rights. Both SRU and the Plaintiffs oppose intervention.

For the reasons set forth below, the Motion to Intervene is denied.


I. Intervention Under Rule 24(a)(2)

Rule 24(a)(2) of the Federal Rules of Civil Procedure permits intervention as a matter of right provided that the application to intervene is timely and "when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties." Fed. R. Civ. P. 24(a)(2). The Third Circuit court has held that "a litigant seeking intervention as of right under Rule 24(a)(2) must establish 1) a timely application for leave to intervene, 2) a sufficient interest in the underlying litigation, 3) a threat that the interest will be impaired or affected by the disposition of the underlying action, and 4) that the existing parties to the action do not adequately represent the prospective intervenor's interests." Liberty Mutual Insurance Company v. Treesdale, Inc., 419 F.3d 216, 220 (3d Cir. 2005) (citations omitted). A review of the Wrestlers' submission convinces me that they cannot satisfy the timeliness portion of the Rule 24(a)(2) test.

In determining the timeliness of the Wrestlers' motion, I must consider the stage of the proceedings at the time they sought to intervene, the possible prejudice caused to the other parties by the delay and the reason for the delay. See Donovan v. United Steelworkers of America, 721 F.2d 126, 127 (3d Cir. 1983). See also Bradburn Parent / Teacher Store, Inc. v. 3M, Civ. No. 2-7676, 2004 WL 2900810 at * 3 (E.D. Pa. Dec. 10, 2004). "The length of time that the movant waits before seeking to intervene is measured from the point at which the movant knew, or should have known, of the risk to its rights." Bradburn, 2004 WL 2900810 at * 3, citing, Mountain Top Condo Assoc. v. Stabbert Master Builder, Inc., 72 F.3d 361, 369 (3d Cir. 1995).

Here, though the case is not yet a year old, the stage of the proceedings is relatively advanced. Discovery has closed. More importantly, discovery on the participation claim (which is that portion of the Plaintiffs' Complaint which is relevant to the Wrestlers' claims) was completed in June of 2006, before the preliminary injunction hearing - five months before the application for intervention was filed. Permitting the Wrestlers to intervene at this advanced stage could prove disastrous. Settled issues regarding participation proportionality would likely be reopened, discovery would be required - all at a significant cost to the Plaintiffs and SRU. Of even more significance, the parties have reached a settlement with respect to the participation claim. Again, that settlement was reached before the Wrestlers sought to intervene.*fn4 Allowing the Wrestlers to intervene would cause substantial prejudice to both SRU and the Plaintiffs. A settlement would be derailed, as the Wrestlers have made it clear that they do ...

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