Case 1:97-cvU-0n1it3e6d0S-JtaEtCes-ACCoTurtDoofcAumppeenatl1s6f4or tFhieleTd e0n2t/h04C/0i2rcuPitage 1 of 16

OFFICE OF THE CLERK

Byron White United Slates Courthouse

1823 Stout Street

Denver, Colorado 80257

Patrick J. Fisher, Jr.

(303)844-3157

Jane B. Howell

Clerk of Court

ChieCDepuly Clerk

January

Mr. Robert M. March Clerk United States District Court for 333 Lomas NW, Suite 270 Albuquerque, NM 87102-2242

F"CD., 1 ZaG2.

Re:

00-2119, Paton v. New Mexico Highlands

Dist/Ag docket: CIV-97-1360-JC

Dear Mr. March:
Enclosed are a certified coPY of the judgment and a copy of the opinion filed in this case wh~ch are issued as the mandate of this court. See Fed~ R. App. P. 41(a). Please file it in records of your court or agency.
The clerk of the district court is requested to acknowledge receipt of this mandate by file stamping and returning the enclosed copy of this letter. Any original record will be returned to you at a later date.

Please contact this office if you have questions. Sincerely, PATRICK FISHER Clerk
~; ~~;o Deputy Cler PF:kf cc: Linda M. Vanzi Kristen M. Galles Nancy Kantrowitz Nancy Ruth Long Timothy L. White

Case 1:97-cv-01360-JEC-ACT Document 164 Filed 02/04/02 Page 2 of 16
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

GALEN PATON, JOANN WOLF, PETER COSMIANO, MARK LOERA and ROBERT BRASWELL, individually; JODIE ROBERTS, RANDA BARBER, APRIL CLAIRMONT, and ERICA TRAVELSTEAD, individually and on behalf of all others similarly situated,
Plaintiffs - Appellants,
v.
NEW MEXICO HIGHLANDS UNIVERSITY; BOARD OF REGENTS OF NEW MEXICO HIGHLANDS UNIVERSITY; WAYNE BINGHAM, S. PETER BICKLEY, JR., THOMAS KEESING, JOE ROMERO, JR. and MICHELLE CONCHA, in their official capacities as Regents; SELIMO RAEL, individually and in his official capacity as president; JOE SINGLETON, individually and in his official capacity as athletic director; CINDY ROYBAL, individually and in her official capacity as senior woman administrator,
Defendants - Appellees.

No. 00-2119 (D.C. No. CIV-97-1360-JC)
(D. New Mexico)
A true copy Teste

JUDGMENT Filed January 9,2002

Case 1:97-cv-01360-JEC-ACT Document 164 Filed 02/04/02 Page 3 of 16 Before MURPHY, HALL,' and PORFILlO, Circuit Judges.
This case originated in the District of New Mexico and was argued by counsel. The judgment of that court is reversed. The case is remanded to the United States District Court for the District ofNew Mexico for further proceedings in accordance with the opinion of this court.
Entered for the Court PATRICK FISHER, Clerk
by:~n
Deputy Clerk
'The Honorable Cynthia Holcomb Hall, Circuit Judge, United States Court of Appeals for the Ninth Circuit, sitting by designation.
2

Case 1:97-cv-01360-JEC-ACT Document 164 Filed 02/04/02 Page 4 of 16
F I LED
United States Court of Appeals Tenth Circuit

PUBLISH

JAN 9 2002

UNITED STATES COURT OF APPEALS PATRICK FISHER

TENTH CIRCUIT

Clerk

GALEN PATON, JOANN WOLF, PETER COSMIANO, MARK LOERA and ROBERT BRASWELL, individually; JODIE ROBERTS, RANDA BARBER, APRIL CLAIRMONT, and ERICA TRAVELSTEAD, individually and on behalf of all others similarly situated,
Plaintiffs-Appellants,
v.
NEW MEXICO HIGHLANDS UNIVERSITY; BOARD OF REGENTS OF NEW MEXICO HIGHLANDS UNIVERSITY; WAYNE BINGHAM, S. PETER BICKLEY, JR., THOMAS KEESING, JOE ROMERO, JR. and MICHELLE CONCHA, in their official capacities as Regents; SELIMO RAEL, individually and in his official capacity as president; JOE SINGLETON, individually and in his official capacity as athletic director; CINDY ROYBAL, individually and in her official capacity as senior woman administrator,
Defendants-Appellees.

No. 00-2119

Case 1:97-cv-01360-JEC-ACT Document 164 Filed 02/04/02 Page 5 of 16
Appeal from the United States District Court for the District of New Mexico (D.C. No. CIV-97-1360-JC)
Kristen Galles, Equity Legal, Alexandria, Virginia, (Linda Vanzi, Vanzi & Gagne, Albuquerque, New Mexico, with her on the briefs), for Plaintiffs-Appellants. Nancy Ruth Long, Herrera, Long & Pound, Santa Fe, New Mexico, (Timothy L. White, Atwood, Malone, Turner & Sabin, P.A., Albuquerque, New Mexico, on the brief), for Defendants-Appellees.
Before MURPHY, HALL; and PORFILIO, Circuit Judges.
MURPHY, Circuit Judge.
l. INTRODUCTION Plaintiffs-Appellants filed a complaint against Defendants-Appellees
containing, inter alia, allegations asserted on behalf of a class of female student athletes. More than two years passed before the district court certified the class. At the close of trial, but before the matter was submitted to the jury, the court granted Defendants' motion to decertify the class, concluding that trial testimony had demonstrated that no named plaintiff was a member of the class on the date the motion for class certification was filed. The jury thereafter returned a verdict
'The Honorable Cynthia Holcomb Hall, Circuit Judge, United States Court of Appeals for the Ninth Circuit, sitting by designation.
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Case 1:97-cv-01360-JEC-ACT Document 164 Filed 02/04/02 Page 6 of 16
awarding compensatory damages to the named plaintiffs. Plaintiffs filed motions seeking declaratory and injunctive relief and reconsideration of the class decertification order. Both motions were denied and Plaintiffs brought this appeal. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reverse and remand. II. BACKGROUND
On October 21, 1997, Plaintiffs filed a lawsuit against Defendants alleging violations of Title IX of the Education Amendments of 1972; the Equal Protection Clause of the Fourteenth Amendment; and Article II, Section 18, of the New Mexico Constitution. At the time the complaint was filed, four of the named plaintiffs were female student athletes at defendant New Mexico Highlands University (the "Student Plaintiffs").! The complaint was styled "Verified Class Action Complaint" and contained, inter alia, class allegations asserted on behalf of the Student Plaintiffs and "all others similarly situated." The Student Plaintiffs sought declaratory and injunctive relief on behalf of the class members and monetary relief for themselves individually. In the body of the complaint, Plaintiffs requested the court to certify a class consisting of "all present and future female students at [New Mexico Highlands University) who participate,
!The remaining five named plaintiffs were coaches currently or formerly employed by New Mexico Highlands University.
-3-

Case 1:97-cv-01360-JEC-ACT Document 164 Filed 02/04/02 Page 7 of 16
seek to participate, or are deterred from participating in varsity intercollegiate athletics at [New Mexico Highlands University)." Plaintiffs filed an amended complaint on December 15, 1997 containing the same request for class certification.
On May 7, 1998, Plaintiffs filed a formal motion seeking class certification of four of the claims asserted in the complaint. Defendants sought an extension of time to June 9, 1998 to file a response to the motion. Defendants' response, however, was not filed until September 24, 1999. Plaintiffs contend they agreed to an extension of the time for filing the response in reliance on Defendants' oral stipulation that class membership would be determined as of the date the complaint was filed.
In an order dated October 18, 1999, the district court defined the class as all "present and future female students enrolled at [New Mexico Highlands University) who participate as athletes in intercollegiate athletics." The district court then concluded that class membership should be measured as of May 7, 1998, the date Plaintiffs filed their initial motion for class certification. See Milonas v. Williams, 691 F.2d 931, 937 (10th Cir. 1982) (applying a "relation back" theory to grant class certification in an otherwise moot case). The district court further concluded that all class action requirements of Rule 23 of the Federal Rules of Civil Procedure had been met. The court conditionally certified
-4-

Case 1:97-cv-01360-JEC-ACT Document 164 Filed 02/04/02 Page 8 of 16
the class, allowing Plaintiffs fourteen days to file a motion demonstrating that one or more of the Student Plaintiffs were enrolled at New Mexico Highlands University and participating in intercollegiate athletics on May 7, 1998.
The issue was briefed by both parties and on November 8, 1999, the district court entered an order certifying the class. In that order, the court concluded that only one Student Plaintiff, Erica Travelstead, was a member of the class on May 7,1998. On November 12,1999, Defendants filed a motion requesting the district court to reconsider its order certifying the class. In support of their motion, Defendants filed an affidavit indicating that Ms. Travelstead had been cut from the women's volleyball team before May 7,1998. Plaintiffs filed a reply in opposition to Defendants' motion contending, inter alia, that both Ms. Travelstead and a second Student Plaintiff, Jodie Roberts, were members of the class on May 7, 1998.
The trial began on November 15, 1999. After all testimony had been presented but before the jury began deliberations, the court decertified the class stating orally, "[t]here is nobody left in the class.... There's nobody to represent the class that has really any great concern about it."z The jury returned a verdict
ZThis oral ruling was incorporated into a written order dated December 9, 1999 granting Defendants' motion to decertify the class.
-5-

Case 1:97-cv-01360-JEC-ACT Document 164 Filed 02/04/02 Page 9 of 16
in favor of Plaintiffs, awarding compensatory damages to all four Student Plaintiffs.
Plaintiffs then filed a motion requesting the court to reconsider its order decertifying the class. Plaintiffs also filed a motion to alter or amend the judgment to include declaratory and injunctive relief against Defendants. On March 10, 2000, the district court denied the motion for reconsideration but clarified that it had decertified the class because Ms. Travelstead admitted in her trial testimony that she had been cut from the volleyball team prior to the May 7th class-certification date. The court also indicated that the trial testimony of Ms. Roberts and two other witnesses did not support Plaintiffs' assertion that Ms. Roberts was a member of the class on May 7,1998. The court further concluded that even if Ms. Roberts was a member of the class on May 7th, she could not "adequately represent the class concerning the present conditions at [New Mexico Highlands University] given that she has attended school outside of New Mexico since the fall of 1998." The district court also denied the motion for declaratory and injunctive relief, concluding that Plaintiffs' individual claims could not form the basis for a grant of injunctive or declaratory relief. Plaintiffs then brought this appeal challenging the district court's orders decertifying the class and denying injunctive relief.
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Case 1:97-cv-01360-JEC-ACT Document 164 Filed 02/04/02 Page 10 of 16
III. DISCUSSION This Court reviews a district court's decision to decertify a class for an
abuse of discretion. See Reed v. Bowen, 849 F.2d 1307, 1309 (10th Cir. 1988). A court may certify a class only if it is satisfied that the party seeking class certification has met the requirements of Rule 23(a) of the Federal Rules of Civil Procedure. See id. Rule 23(a) requires a party to demonstrate that
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). Before the court can analyze these factors, however, it must first determine whether the suit has been brought by "[o]ne or more members of [the] class." !d.; see also Sosna v. Iowa, 419 U.S. 393, 403 (1975) (addressing the issue of class membership before determining whether the remaining requirements of Rule 23(a) were met). In the case at bar, the district court decertified the class based on its finding that none of the Student Plaintiffs was a member of the class; thus no Student Plaintiff could maintain the suit on behalf of the class. The first question before this Court, therefore, is whether any Student Plaintiff was a member of the class on the appropriate measuring date. The district court's factual findings relating to this inquiry are reviewed for clear error. See Nieto v. Kapoor, 268 F .3d 1208,
-7-

--------
Case 1:97-cv-01360-JEC-ACT Document 164 Filed 02/04/02 Page 11 of 16
1217 (lOth Cir. 2001). "A finding of fact is clearly erroneous if it is without
factual support in the record or if the appellate court, after reviewing all the
evidence, is left with the definite and firm conviction that a mistake has been
made." Tosco Corp. v. Koch Indus., Inc., 216 F.3d 886, 892 (10th CiT. 2000)
(quotation omitted).
Plaintiffs first argue that class membership should be measured as of the
date their complaint was filed. In the alternative, they argue that membership
should be measured as of May 7, 1998, the date their initial motion for class
certification was filed. Defendants dispute Plaintiffs' assertion that class
membership should be measured on the date their complaint was filed but concede that May 7, 1998 is the proper measuring date.3 Because we conclude that Jodie
Roberts was a member of the class on May 7, 1998, it is unnecessary for us to
address Plaintiffs' argument that class membership should be measured as of the date the complaint was filed.4
3Plaintiffs also argue that the district court erroneously concluded that Ms. Roberts could not represent the class because she was not a class member on the date of the trial. Plaintiffs assert that the Supreme Court has repeatedly permitted individuals to pursue class claims in a representative capacity even though they are not class members at the time of trial. See, e.g., Sosna v. Iowa, 419 U.S. 393, 399-401 (1975). Defendants do not argue that the Student Plaintiffs must be class members at the time of trial but concede that class membership should be measured on May 7, 1998. It is therefore unnecessary for this court to address this issue.
4Jt is also unnecessary for us to address Plaintiffs' argument that Ms. Travelstead was a class member on May 7,1998.
-8-

Case 1:97-cv-01360-JEC-ACT Document 164 Filed 02/04/02 Page 12 of 16
Both parties introduced evidence relating to Ms. Roberts' status as a class member on May 7,1998. Ms. Roberts testified at trial that she attended New Mexico Highlands University during the entire 1997-1998 academic year on an athletic scholarship that had not terminated as of May 7, 1998. Plaintiffs also assert that as of May 7, 1998, Ms. Roberts had not been cut or released from the New Mexico Highlands University women's soccer team. Assistant coach Nancy Lane testified that Roberts was still a captain of the team in the spring of 1998.
At oral argument, Defendants conceded that Roberts remained on an athletic scholarship for the entire 1997-1998 academic year, including May 7, 1998. Defendants further conceded that Ms. Roberts completed the academic year and received grades for the 1998 spring semester. Defendants do not assert that Roberts was cut or released from the women's soccer team prior to May 7,1998. Defendants do allege, however, that Ms. Roberts did not participate in spring soccer practice and thus was not a class member on May 7, 1998. Defendants support their position with an affidavit executed by soccer coach Greg Rusk and attached to their memorandum in opposition to class certification. In his affidavit, Rusk stated that Roberts did not participate in the team's spring training. At trial, however, Rusk was asked if Ms. Roberts practiced with the team in the spring of 1998 and he replied, "Not that I remember."
-9-

Case 1:97-cv-01360-JEC-ACT Document 164 Filed 02/04/02 Page 13 of 16
Plaintiffs aver that Ms. Roberts did participate in soccer practices in the spring of 1998. Their evidence in support of this assertion consists of statements made by Ms. Roberts during her deposition that she attended practices organized by Rusk. Rusk was hired as the women's soccer coach in April 1998. Ms. Roberts also testified at trial that she practiced with Rusk "two or three times" during the last two weeks of school. In both her trial and deposition testimony, Roberts described the practices in some detail. Assistant soccer coach Lane testified at trial that Rusk held practices during the last week of April and the first week of May and that Ms. Roberts participated in at least one practice. Additionally, Roberts and Callie Butler, the team co-captain, testified that they organized team practices after Christmas break and before Rusk was hired.
Defendants argue that the district court weighed Rusk's testimony against that of Roberts and Lane and concluded that Roberts did not practice with the women's soccer team in the spring of 1998 and, thus, was not a class member on May 7, 1998. Plaintiffs argue that the evidence clearly demonstrates that Roberts practiced with the team and the district court's finding to the contrary was clearly erroneous. We conclude that all of the allegedly conflicting evidence as to Ms. Roberts' participation in spring soccer practice is irrelevant to the determination of whether Ms. Roberts was a member of the New Mexico Highlands University women's soccer team on May 7, 1998 and thus a member of the class. The
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Case 1:97-cv-01360-JEC-ACT Document 164 Filed 02/04/02 Page 14 of 16

evidence conclusively demonstrates that as of May 7,1998, Ms. Roberts: (I) was attending New Mexico Highlands University on an athletic scholarship; (2) was then enrolled at New Mexico Highlands University and attending classes or taking final examinations; and (3) had not been cut or released from the women's soccer team. Based on this relevant and uncontroverted evidence, we conclude that on May 7, 1998, Ms. Roberts was a female student enrolled at New Mexico Highlands University and participating as an athlete in intercollegiate athletics. Thus, she was a member of the class on May 7,1998, and the district court's finding to the contrary was clearly erroneous. The court, therefore, abused its discretion when it decertified the class on this basis.
In its March 10,2000 memorandum and order, the district court concluded in the alternative that Ms. Roberts could not fairly and adequately protect the interests of the class because she had not attended school in New Mexico since 1998. See Fed. R. Civ. P. 23(a)(4). In the court's written order of October 18, 1999 conditionally certifying the class, however, the court found that the Student Plaintiffs, including Roberts, "have participated in depositions, communicated with their attorney by telephone or mail, and attended settlement hearings." The court also found that "[nlot one of the named students has withdrawn from the case." Based on these findings, the court concluded that the requirement of Rule 23(a)(4) had been met and the Student Plaintiffs could adequately protect the

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Case 1:97-cv-01360-JEC-ACT Document 164 Filed 02/04/02 Page 15 of 16
interests of the class. When the court decertified the class less than two months later, none of the facts upon which the earlier order was based had changed. In particular, Ms. Roberts did not leave New Mexico Highlands University between the time the court entered the conditional order and the time it decertified the class; she had left more than one year before the conditional order was entered. Thus, the alternative basis upon which the court decertified the class is not supported by the factual findings in the record and the court abused its discretion when it concluded that Roberts could no longer fairly and adequately protect the interests of the class.5
In the Motion to Amend or Alter Judgment filed on December 23, 1999, Plaintiffs requested the district court to grant the declaratory and injunctive relief they requested in their complaint. The court denied the motion stating, "the Court may not enter equitable relief on behalf of a non-existent class of plaintiffs." Because the district court based its denial of Plaintiffs' motion on its erroneous decertification of the class, we must reverse that order and remand the matter to the district court for further consideration in light of this opinion.
5Defendants do not argue that Roberts could not fairly and adequately protect the interests of the class because she was not attending school in New Mexico at the time of the trial. Defendants argue only that Student Plaintiffs could not adequately represent the class because none was a member of the class on May 7,1998.
-12-

Case 1:97-cv-01360-JEC-ACT Document 164 Filed 02/04/02 Page 16 of 16 IV. CONCLUSION
The district court's orders decertifying the class and denying Plaintiffs' motion for injunctive and declaratory relief are reversed. The matter is remanded to the district court to enter an order certifying the class and for further proceedings on the request for declaratory and injunctive relief.
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 Case 1:97-cv-01360-JEC-ACT Document 203 Filed 03/08/12 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

GALEN PATON, et al, Plaintiffs,
vs. NEW MEXICO HIGHLANDS UNIVERSITY, et al,
Defendants.

No. 97-CV-1360 JEC/ACT

ORDER DISMISSING CASE FOR LACK OF PROSECUTION PURSUANT TO FED. R. CIV. P. 41(b) The last official action in this matter occurred in early August of 2007, at which time Magistrate Judge Alan Torgerson held a telephonic status conference. At that time, attorneys Kristen Galles for the Plaintiffs and Timothy White for the Defendants indicated that final changes had been made to an Agreement for Injunctive Relief and that they were awaiting only a decision from Risk Management on the issue of attorneys’ fees. Since that time, there has been no action in this case. The inherent power of the Court to dismiss for lack of prosecution is well-established. AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs., Inc., 552 F.3d 1233, 1236 (10th Cir. 2009). Pursuant to FED. R. CIV. P. 41(b), the Court entered an Order on February 15, 2012, directing Plaintiff to show cause, if she so had, within fourteen (14) days of the Order, why this action should not be dismissed for failure to prosecute. Plaintiff failed to respond to the Order

Case 1:97-cv-01360-JEC-ACT Document 203 Filed 03/08/12 Page 2 of 3 and more than 14 days have passed. Therefore, IT IS ORDERED that the claims in this action are hereby dismissed with prejudice.
IT IS SO ORDERED. March 8, 2012.
_______________________________________ SENIOR UNITED STATES DISTRICT JUDGE
2

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 Case 1:97-cv-01360-JEC-ACT Document 1 Filed 10/21/97 Page 1 of 44
-

h I . UNITED STATES DISTRICT COURT

r L ED DISTRICT OF NEW MEXICO

atsanta r:. .

Ocr GALEN PATON, individually;

)

JOANN WOLF, individually;

)

PETER COSMIANO, individually;

)

MARK LOERA, individually; ROBERT )

a, NIvT
UtlD/J~ICS;<TO'JDR'/I:SCj7tT::6Rr~J\1S. JD2\.tI41RST1~9&C'9la7rlc~ 4/)

BRASWELL, individually; and

)

Case No. NEWMEX~~URT

JODIE ROBERTS, RANDA BARBER,

)

APRIL CLAIRMONT, and ERICA

)

TRAVELSTEAD, individually and on )

behalf of all others similarly

)

situated, Plaintiffs,

.QV97 01360JC

)

v.

)

)
NEW MEXICO HIGHLANDS UNIVERSITY; )

1"'. r·~,:
L",· ,

BOARD OF REGENTS OF NEW

)

MEXICO HIGHLANDS UNIVERSITY;

)

WAYNE BINGHAM, in his official

)

capacity as a REGENT; S. PETER

)

BICKLEY, JR., in his official

)

capacity as REGENT; THOMAS KEESING,)

in his official capacity as REGENT;)

JOE ROMERO, JR., in his official )

capacity as REGENT; MICHELLE

)

CONCHA, in her official capacity )

as REGENT; SELIMO RAEL,

)

individually and in his official )

capacity as president; JOE

)

SINGLETON, individually and in his )

official capacity as athletic

)

director; and CINDY ROYBAL,

)

individually and in her official )

capacity as senior woman

)

administrator,

)

)

Defendants.

)

)

---------------------------------) VERIFIED CLASS ACTION COMPLAINT

Plaintiffs Jodie Roberts, Randa Barber, April Clairmont,

and Erica Travelstead file Claims One through Four of this

complaint individually and on behalf of all others similarly situated ("Students") against Defendants NEW MEXICO HIGHLANDS UNIVERSITY ("NMHU"); WAYNE BINGHAM, S. PETER BICKLEY, JR., THOMAS KEESING, JOE ROMERO, JR., and MICHELLE CONCHA, in their

Case 1:97-cv-01360-JEC-ACT Document 1 Filed 10/21/97 Page 2 of 44
official capacities as members of THE BOARD OF REGENTS OF NMHUi SELIMO RAEL, individually and in his official capacity as president of NMHUi JOE SINGLETON, individually and in his official capacity as athletic director at NMHU i and CINDY ROYBAL, individually and in her official capacity as senior woman administrator in the athletic department at NMHU ("Defendants") ,
Plaintiffs Galen Paton, Joann Wolf, Peter Cosmiano, Mark Loera, and Robert Braswell ("Coaches") file Claims Five through Ten of this complaint against Defendants individually and in their official capacities.
Plaintiff Peter Cosmiano files Claim Eleven for defamation against Defendant Joe Singleton individually and in his official capacity as athletic director of NMHU.
Plaintiffs allegations, the veracity of which is attested to in the Verifications attached as Exhibit A, are as follows:
STATEMENT OF THE CASE 1. Claims 1 through 4 of this action are posed as a class action for declaratory and injunctive relief brought on behalf of female students at New Mexico Highlands University in Las Vegas, New Mexico. The named Plaintiffs also seek compensatory damages in their individual capacities. 2. Defendants have violated (1) Title IX of the Education Amendment of 1972, 20 U.S.C. §1681 et seq. ("Title IX") and the regulations adopted thereto, (2) the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. §1983, and (3) Article II, Section 18 of the New Mexico State Constitution by
2

Case 1:97-cv-01360-JEC-ACT Document 1 Filed 10/21/97 Page 3 of 44
intentionally denying the female students at NMHU (a) equitable athletic scholarship funding and (b) the equal treatment and benefits that necessarily accompany an equal opportunity to participate in intercollegiate athletics.
3. Defendants' denial of equitable athletic scholarship funding and equal treatment and benefits constitutes intentional discrimination against the named Student Plaintiffs and all members of the class based solely on their gender.
4. Defendants have discriminated against NMHU's female students by failing to provide them with equitable athletic scholarship funding compared to that provided to male students.
5. Defendants have discriminated against NMHU's female students in the following areas of treatment and benefits (among others) : (1) equipment and supplies; (2) locker rooms; (3) travel; (4) opportunity to receive qualified coaching; (5) assignment and compensation of coaches; (6) provision and maintenance of facilities for both practice and competition; and (7) pUblicity.
6. This action seeks to redress the deprivation of the named Plaintiffs' rights and the rights of the class to receive equitable scholarship funding and to receive equal treatment and benefits. Accordingly, this action seeks a declaratory judgment that Defendants have violated the rights of NMHU's female students under federal law, the United States Constitution, and the New Mexico State Constitution. This action further seeks an injunction requiring that Defendants
3

Case 1:97-cv-01360-JEC-ACT Document 1 Filed 10/21/97 Page 4 of 44
immediately cease their discriminatory practices and remedy the effects of their discriminatory conduct.
7. Students seek injunctive relief which, among other things, requires that Defendants fund more athletic scholarships for female students.
8. Students further seek injunctive relief which requires that Defendants provide female athletes and their teams at NMHU with equal treatment and benefits as NMHU already provides to its male athletes and teams.
9. The named Plaintiffs, in their individual capacities, seek monetary relief in order to compensate them for their damages resulting from Defendants' discrimination in its intercollegiate athletics program, including, among other things, (1) the actual out-of-pocket costs incurred to attend NMHU absent equitable athletic scholarship funding, (2) the damages associated with providing their own uniforms, equipment, facilities maintenance, and other items; and (3) the emotional distress and other damages resulting from their receiving inequitable scholarships and their being subjected to unequal treatment and benefits in athletics on the basis of their gender.
10. In addition, Coaches seek declaratory, injunctive, and monetary relief (including emotional distress damages) In their capacity as current or former employees of NMHU, for retaliation under 34 C. F. R. §106. 71 (which incorporates 34 C.F.R. §1007(e) of Title VI).
11. Defendants retaliated against Coaches in their employment by, among other things, (1) firing Mr. Paton, (2)
4

Case 1:97-cv-01360-JEC-ACT Document 1 Filed 10/21/97 Page 5 of 44
cutting the contract of Ms. Wolf, (3) cutting the contract and then firing Mr. Cosmiano (replacing him with a football coach's wife), (4) limiting Coaches' professional development, and (5) manipulating their teams' budgets after they complained about NMHU's Title IX violations to Defendants Roybal, Singleton, and Rael.
12. Coaches further seek relief for breach of contract, breach of the covenant of good faith and fair dealing, and wrongful discharge in violation of public policy, while certain individual coaches seek relief on grounds of promissory estoppel, intentional infliction of emotional distress, and defamation.
JURISDICTION AND VENUE 13. The first claim arises under 20 U.S.C. §1681, et ~ and its interpreting regulations. Jurisdiction is conferred on this court by 28 U.S.C. §§ 1331, 1343(3), and 1343(4) 14. The second claim also arises under 20 U.S.C. §1681 et ~. and its interpreting regulations. Jurisdiction is conferred on this court by 28 U.S.C. §§ 1331, 1343 (3), and 1343 (4) . 15. The third claim arises under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and 42 U.S.C. §1983. Jurisdiction is conferred on this court by 28 U.S.C. §§ 1331, 1343(3), and 1343(4). 16. The fourth claim arises under Article II, Section 18 of the New Mexico Constitution. Supplemental jurisdiction is conferred on this court by 28 U.S.C. §1367(a).
5

Case 1:97-cv-01360-JEC-ACT Document 1 Filed 10/21/97 Page 6 of 44
-~
17. The fifth claim arises under 20 U.S.C. §1681 et seq. and its interpreting regulations, particularly 34 C.F.R. § 106.71, as it incorporates Title VI, 34 C.F.R. § 100.7(e). Jurisdiction is conferred on this court by 28 U.S.C. §§ 1331, 1343(3), and 1343(4)
18. The sixth claim arises from Defendants' breach of the covenant of good faith and fair dealing. Supplemental jurisdiction is conferred on this court by 28 U.S.C. §1367(a).
19. The seventh claim arises from the New Mexico common law doctrine against wrongful discharge in violation of public policy. Supplemental jurisdiction is conferred on this court by 28 U.S.C. §1367(a).
20. The eighth claim arises as a breach of contract claim prompted by Coaches' Title IX complaints. Supplemental jurisdiction is conferred on this court by 28 U.S.C. §1367(a).
21. The ninth claim arises as a promissory estoppel claim prompted by Coaches' Title IX complaints. Supplemental jurisdiction is conferred on this court by 28 U.S.C. §1367(a).
22. The tenth claim arises out of Defendants' intentional and outrageous behavior with respect to the retaliation and wrongful discharge of Plaintiffs Galen Paton and Peter Cosmiano. Supplemental jurisdiction is conferred on this court by 28 U.S.C. §1367(a).
23. The tenth claim arises from the defamatory statements made by Defendant Singleton to the media regarding the termination of Plaintiff Cosmiano's employment at NMHU. Supplemental jurisdiction is conferred on this court by 28
6

Case 1:97-cv-01360-JEC-ACT Document 1 Filed 10/21/97 Page 7 of 44
U.S.C. §1367(a). 24. Jurisdiction for declaratory and other relief is
invoked pursuant to 28 U.S.C. §§ 2201 and 2202. 25. Venue is proper pursuant to 28 U.S.C. § 1391(b).
These claims arose in Las Vegas, New Mexico, which is within the jurisdiction of this court.
THE PARTIES 26. Plaintiff Jodie Roberts is a female student at NMHU. Ms. Roberts is a varsity soccer player at NMHU who has (1) received inequitable scholarship funding and (2) endured the unequal treatment and benefits directed by NMHU toward its female athletes. Ms. Roberts currently resides in Las Vegas, New Mexico, which is within the jurisdiction of this court. 27. Plaintiff Randa Barber is a female student at NMHU. Ms. Barber is a varsity softball player at NMHU who has (1) received inequitable scholarship funding and (2) endured the unequal treatment and benefits directed by NMHU toward its female athletes. Ms. Barber currently resides in Las Vegas, New Mexico, which is within the jurisdiction of this court. 28. Plaintiff April Clairmont is a female student at NMHU. Ms. Clairmont is a varsity volleyball player at NMHU who has (1) received inequitable scholarship funding and (2) endured the unequal treatment and benefits directed by NMHU toward its female athletes. Ms. Clairmont currently resides in Las Vegas, New Mexico, which is within the jurisdiction of this court. 29. Plaintiff Erica Travelstead is a female student at NMHU. Ms. Travelstead is a varsity volleyball player at NMHU
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who has (1) received inequitable scholarship funding and (2)

endured the unequal treatment and benefits directed by NMHU

toward its female athletes. Ms. Travelstead currently resides

in Las Vegas, New Mexico, which is within the jurisdiction of

this court.

30. Plaintiff Galen Paton was the head softball coach at

NMHU until he was unlawfully fired in April, 1997, in

retaliation for his Title IX complaints. Mr. Paton was a

resident of Las Vegas, New Mexico, during the time period

covered by the facts in this complaint. Mr. Paton now resides

in Tucson, Arizona.

31. Plaintiff Joann Wolf is the head soccer coach at

NMHU. Her coaching contract was unlawfully reduced to four

months in April, 1997, in retaliation for her Title IX

complaints. Ms. Wolf is a resident of Las Vegas, New Mexico,

which is within the jurisdiction of this court.

32. Plaintiff Peter Cosmiano was the head volleyball

coach at NMHU. His coaching contract was unlawfully cut to

four months after the 1996-97 academic year, and later

terminated before completion of his contract, in retaliation

for his Title IX complaints. Mr. Cosmiano is a resident of

Las Vegas, New Mexico, which is within the jurisdiction of

this court.

33. Plaintiff Mark Loera was an assistant volleyball

coach at NMHU.

His coaching contract was unlawfully

terminated with that of head coach Peter Cosmiano in

retaliation for the Title IX complaints. Mr. Loera is. a

resident of Las Vegas, New Mexico, which is within the

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jurisdiction of this Court.

34. Plaintiff Robert Braswell was an assistant

volleyball coach at NMHU.

His coaching contract was

unlawfully terminated with that of head coach Peter Cosmiano

in retaliation for the Title IX complaints. Mr. Braswell was

a resident of Las Vegas, New Mexico at the time of the

unlawful conduct described herein and has since returned to

Tennessee.

35. Defendant NMHU is a state university under Article

XI I, Section 11 of the New Mexico State Constitution. It is

controlled by the members of its Board of Regents, who are

authorized by Article XII, Section 13 of the New Mexico State

Constitution to operate and control NMHU's athletic program,

where the Student Plaintiffs are athletes. Therefore, NMHU's

conduct is state action under 42 U.S.C. §1983. NMHU is

located in Las Vegas, New Mexico, which is within the

jurisdiction of this court.

36. Since the passage of Title IX, NMHU has received and

continues to receive federal financial assistance and the

benefits therefrom.

Therefore, all programs at NMHU,

including athletics, are subject to the requirements of Title

IX.

37. Defendant Wayne Bingham is a member of the Board of

Regents of NMHU. Mr. Bingham is a resident of the state of

New Mexico and thus is subj ect to the jurisdiction of this

Court.

38. Defendant S. Peter Bickley, Jr. is a member of the

Board of Regents of NMHU. Mr. Bickley is a resident of the

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state of New Mexico and thus is subject to the jurisdiction of this Court.
39. Defendant Thomas Keesing is a member of the Board of Regents of NMHU. Mr. Keesing is a resident of the state of New Mexico and thus is subject to the jurisdiction of this Court.
40. Defendant Joe Romero, Jr. is a member of the Board of Regents of NMHU. Mr. Romero is a resident of the state of New Mexico and thus is subject to the jurisdiction of this Court.
41. Defendant Michelle Concha is a member of the Board of Regents of NMHU. Ms. Concha is a resident of the state of New Mexico and thus is subject to the jurisdiction of this Court.
42. Defendant Selimo Rael is the president of NMHU. Mr. Rael is a resident of the state of New Mexico and thus is subject to the jurisdiction of this Court.
43. Defendant Joe Singleton is the athletic director at NMHU. Mr. Singleton is a resident of the state of New Mexico and thus is subject to the jurisdiction of this Court.
44. Defendant Cindy Roybal is the senior women's administrator in the athletic department at NMHU. Ms. Roybal is a resident of the state of New Mexico and thus is subject to the jurisdiction of this Court.
CLASS ALLEGATIONS 45. The named Student Plaintiffs bring Claims 1 through 4 on their own behalf, and, pursuant to Rule 23(A) and B(2) of the Federal Rules of civil Procedure, for declaratory and
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injunctive relief, on behalf of all present and future female

students enrolled at NMHU who participate, seek to

participate, or are deterred from participating in varsity

intercollegiate athletics at NMHU.

46. Ms. Roberts is both (1) the recipient of inequitable

athletic scholarship funding and (2) a current varsity athlete

who is subjected to NMHU's unequal treatment and benefits.

47. Ms. Barber is both (1) the recipient of inequitable

athletic scholarship funding and (2) a current varsity athlete

who is subjected to NMHU's unequal treatment and benefits.

48. Ms. Clairmont is both (1) the recipient of

inequitable athletic scholarship funding and (2) a current

varsity athlete who is subjected to NMHU's unequal treatment

and benefits.

49. Ms. Travelstead is both (1) the recipient of

inequitable athletic scholarship funding and (2) a current

varsity athlete who is subjected to NMHU's unequal treatment

and benefits.

50. In bringing this lawsuit, Students seek to require

that Defendants comply with Title IX, the Equal Protection

Clause of the Fourteenth Amendment to the United States

Constitution, and the New Mexico State Constitution by ending

their discriminatory policies and practices towards female

athletes and female athletic programs at NMHU. Accordingly,

Students seek injunctive relief requiring NMHU to fund

athletic scholarships for female athletes on an equitable

basis with male athletes.

In addition, Students seek

declaratory and injunctive relief requiring NMHU to provide

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current and future female athletes at NMHU treatment and

benefits comparable to those provided to male athletes.

51. The class is so numerous that joinder of all members

is impractical. There are nearly 1,600 female students

enrolled at NMHU, including more than 70 of whom participate

in intercollegiate athletics. It is unknown how many of these

current female students or how many future female students

would seek to participate in intercollegiate varsity athletics

if more scholarship opportunities or more equitable treatment

were available.

Moreover, joinder of all members is

impractical because members of the class who may suffer future

injury are not capable of being identified at this time.

52. There are many questions of law and fact common to

the class, including: (a) whether female students at NMHU are

being deprived of equitable scholarship funding, (b) whether

female students at NMHU are receiving unequal treatment and

benefits in comparison to the men's athletic program, and

(c) whether Defendants have been and are discriminating

against women in NMHU's intercollegiate athletic program in

violation of Title IX, the u.s. Constitution, and the New

Mexico State Constitution.

53. The claims of the named Student Plaintiffs are

typical of the claims of the class.

The types of

discrimination which they have suffered as a result of their

gender, including, (1) inequitable athletic scholarship

funding and (2) receipt of inequitable treatment and benefits

in NMHU's intercollegiate athletics program, are typical of

the gender discrimination which members of the class have

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suffered, are suffering, and, unless this Court grants relief,

will continue to suffer.

54. The named Student Plaintiffs will fairly and

adequately represent and protect the interests of the class.

They intend to prosecute this action rigorously in order to

secure remedies for the entire class. Counsel of record for

the Plaintiffs are experienced in federal civil rights

litigation and class actions.

55. Defendants have acted or refused to act on grounds

generally applicable to the class, thereby making appropriate

final declaratory and injunctive relief with respect to the

class as a whole.

GENERAL ALLEGATIONS

THE REQUIREMENTS OF TITLE IX

56. Title IX, enacted in 1972, provides in relevant

part:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance ...

20 U.S.C. § 1681(a). The civil Rights Restoration Act of 1987 made Congress' intent plain that "program or activity," as used in Title IX, applies to any program or activity so long as any part of the educational institution receives federal financial assistance. 20 U.S.C. § 1687. Thus, NMHU is subject to Title IX even if none of the funding for either its women's or men's athletic programs comes from federal sources.

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57. In 1975, the Department of Health, Education and

Welfare (the predecessor of the United States Department of

Education ("DOE")) adopted regulations interpreting Title IX.

These regulations are codified at 34 C.F.R. Part 106 (The DOE

regulations adopting the HEW regulations are at 45 C.F.R. Part

86) (the "Regulations").

58. With regard to athletic programs, Section 106.41(a)

of 34 C.F.R. provides that intercollegiate athletics are

included within the "program or activity" requirements of

Title IX:

No person shall, on the basis of sex, be

excluded from participation in, be denied the

benefits of, be treated differently from

another person or otherwise be discriminated

against

in

any

interscholastic,

intercollegiate, club or intramural athletics

offered by a recipient, and the recipient shall

provide any such athletics separately on such

basis.

59. According to the Regulations, to the extent that an

educational institution provides scholarship funding, "it must

provide reasonable opportunities for such awards for members

of each sex in proportion to the numbers of students of each

sex participating in ... intercollegiate athletics". 34 C.F.R.

§ 106.37(c).

60. 34 C.F.R. § 106.41(c) specifies ten (10) factors

that may be considered in the determination of equal athletic

opportunity:

1. Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexeSj

2. The provision of equipment and suppliesj

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3. Scheduling of games and practice time; 4. Travel and per diem allowance; 5. Opportunity to receive coaching and academic
tutoring; 6. Assignment and compensation of coaches and
tutors; 7. Provision of locker rooms, practice and
competitive facilities; 8. Provision of medical and training services; 9. Provision of housing and dining facilities and
services; and 10. PUblicity.
Another factor to be considered is a school's "failure to provide necessary funds for teams for one sex". Id.
61. In 1979, DOE's Office of Civil Rights ("OCR") issued a policy interpretation of Title IX and the Regulations. This policy interpretation is found at 44 Federal Register 71,413 (1979) (the "Policy Interpretation") .
62. The Policy Interpretation provides that, in order to comply with Title IX and 34 C.F.R. § 106.41(c), schools must provide equal athletic opportunities in three general areas: (1) scholarships, (2) equivalent participation opportunities (including both the number of opportunities and whether the selection of sports and the level of competition effectively accommodate the interests and abilities of members of both sexes), and (3) equal treatment and benefits. The first and third items are at issue in this case.
63. Under both the Regulations and the Policy Int~rpretation, compliance in the area of equal treatment and
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benefits is assessed based on an overall comparison of the male and female athletic programs, including an analysis of factors (2) through (10) of 34 C.F.R. § 106.41(c) listed above and the provision of necessary funds for teams of both sexes.
64. The Regulations require that sponsors of intercollegiate athletics (such as NMHU) take such remedial actions as are necessary to overcome the effects of gender discrimination in violation of Title IX. See 34 C.F.R. §106.3(a). On information and belief, NMHU has not taken any recent remedial actions and any remedial actions which NMHU has taken in the past twenty (20) years have been insufficient to satisfy NMHU's obligations under Title IX.
65. The Regulations further require that sponsors of intercollegiate athletics comply with the Regulations within three years of their effective date (which was July 21, 1975). Now, more than twenty (20) years later, NMHU has still not fully complied with Title IX.
THE U.S. CONSTITUTION 66. The Fourteenth Amendment to the United States constitution requires that a state shall not "deny to any person within its jurisdiction the full protection of the laws" . 67. Under 42 U.S.C. § 1983, Defendants may be held liable for their actions in violating Students' rights under the Fourteenth Amendment, namely by treating female students less favorably than male students.
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NEW MEXICO CONSTITUTION 68. Article II, Section 18 of the New Mexico Constitution provides that:
No person shall be deprived of life, liberty, or property, without due process of law, nor shall any person be denied equal protection of the laws. Equality of rights under law shall not be denied on account of the sex of any person. 69. Defendants have denied the female students at NMHU equal protection by failing to provide them with equitable scholarship funding or with equitable treatment and benefits in their athletic programs.
INJUNCTIVE RELIEF 70. Students are entitled to injunctive relief to end Defendants' unequal, discriminatory, and unlawful treatment of female student athletes. Because of Defendants' acts and omissions, Students continue to be deprived of the rights guaranteed to them by federal law, the U.S. Constitution, and the New Mexico State Constitution. Failure to grant the injunctive relief requested will result in irreparable harm to Students in that Students' Fourteenth Amendment rights will be violated and Students will never be able to participate in intercollegiate athletics on an equal basis with their male classmates, if at all, especially given their limited tenure as student-athletes. Accordingly, Students do not have an adequate remedy at law for this harm. This threatened harm far outweighs any possible harm that granting injunctive relief might cause Defendants. Finally, the injunctive relief sought would in no way disserve the public interest but, on
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the contrary, would prevent discrimination based on gender and would promote the goal of full equality before the law.
71. Coaches also are entitled to injunctive relief to end Defendants' discriminatory and retaliatory employment practices. Because of Defendants' unlawful acts, Coaches Paton, Cosmiano, Loera, and Braswell are unemployed and Coach Wolf had her coaching position cut from a full academic year to four months, thus depriving them of the rights guaranteed to them by federal law, the U.S. Constitution, and the New Mexico State Constitution. Failure to grant the injunctive relief requested will result in irreparable harm to Coaches in that their rights will be violated, their reputations will be defamed, and they will be denied an opportunity to practice their chosen profession. Coaches do not have an adequate remedy at law for this harm. This threatened harm far outweighs any possible harm that granting injunctive relief might cause Defendants. Finally, the injunctive relief sought would in no way disserve the public interest but, on the contrary, would benefit the Students and would promote compliance with and full equality before the law.
ATTORNEYS' FEES 72. Students and Coaches have been required to retain the undersigned attorneys to prosecute this action. They are entitled to recover reasonable attorneys' fees pursuant to 42 § 1988. They are entitled to recover costs under FRCP 54(d).
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FIRST CLAIM FOR RELIEF: TITLE IX (Unequal Scholarship Funding)

(Class action against NMHU and Board of Regents)

73. Students reallege and incorporate herein by this

reference paragraphs 1 through 72 inclusive of this Complaint.

74. By offering athletic scholarship funding to male students, NMHU has demonstrated its determination that

athletics provide educational supported by the university.

benefits that should be Students agree with this

determination that athletic scholarships provide valuable educational benefits. For this very reason, Students contend

that they should have equal access to scholarship funding and

should receive the same benefits that the male students at NMHU already have.

75. The named Student Plaintiffs have the desire and

skill to participate in intercollegiate athletics and presently do so, but are not provided equitable athletic

scholarship funding.

76. NMHU historically has not provided and currently

does not provide its female students with such equitable

athletic scholarship funding.

77. Defendants have intentionally violated Title IX by knowingly and deliberately discriminating against female

students at NMHU, including Students, by, among other things,

failing to provide equitable scholarship funding for female students to participate in intercollegiate athletics.
78. Students and Coaches have on numerous occasions informed Defendants that their actions discriminate against

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Students and that these actions constitute violations of their

Title IX rights. Despite the fact that Students and Coaches

have drawn these inequities to the attention of Defendants,

Defendants have knowingly and intentionally continued to fail

to and refuse to take any of the necessary actions to

remediate any existing violations, even though the Regulations mandate that they do so. Defendants' actions demonstrate

their intentional and conscious failure to comply with Title

IX.

79. Defendants' conduct has persisted despite the

information provided by and the requests made by Students and

Coaches and despite the mandates of the particularly 34 C.F.R. §§ 106.3(a) & 106.41(d).

Regulations,

80. Defendants' conduct violates 20 U. S. C. § 1681 et seq., as interpreted by 34 C.F.R. §§ 106.31 and 106.41 and the

Policy Interpretation thereof.

81. As a result of Defendants' conduct, the named

Student Plaintiffs have incurred extensive damages, including, among other things, (1 ) the actual out-of-pocket costs

incurred to attend NMHU without adequate athletic scholarship

funding and (2) the emotional distress and other damages

resulting from their being subjected to unequal treatment and

benefits in athletics on the basis of their gender.
SECOND CLAIM FOR RELIEF: TITLE IX (Unequal Treatment and Benefits)

(Class action against NMHU and the Board of Regents)

82. Students reallege and incorporate herein by this reference paragraphs 1 through 81 inclusive of this Complaint.

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-

83. Defendants, by their conduct, have intentionally

violated Title IX by knowingly and deliberately discriminating

against female students, including the named Student

Plaintiffs, by, among other things, failing to provide female

athletes at NMHU with the same treatment and benefits which

are comparable overall to the treatment and benefits provided

to male athletes.

84. Students and Coaches have on numerous occasions

informed Defendants that their actions constitute violations
-
of Students' Title IX rights, as do their failure and refusal

to take actions to remediate any existing violations.

85. On information and belief, Students allege that

Defendants have failed to comply with Title IX by failing to

provide female athletes with comparable treatment and benefits

in the following areas:

(1) Defendants provide the male athletes with newer equipment and supplies that are of better quality than those provided to the female athletes. Defendants also provide the male athletes with new uniforms on a more frequent basis than they provide such uniforms to the female athletes.

(2) Defendants unfairly discriminate against female

athletes in the scheduling of their practice

times.

They further discriminate in the

scheduling of the quality and location of

opponents that the women's teams play.

(3) The male athletes receive better travel accommodations than the female athletes.

(4) The female athletes have fewer opportunities to receive coaching because several of NMHU's female teams have fewer coaches and more players per coach than the male teams.

(5) Defendants compensate the coaches of female teams less than the coaches of male teams, thus making coaching positions on women's teams less

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attractive to the most qualified coaching candidates.

(6) Defendants have failed to pay the coaches of

the female athletic teams in a timely manner,

while Plaintiffs are not aware of any coach of

any male athletic team who has not been paid on

time.

The disparate payment practices

discourage qualified coaches from applying for

positions at NMHU.

(7) The women's locker facilities are inferior to the men's locker facilities.

(8) Defendants provide female athletes with inequitable medical and training facilities, services, and personnel.

(9) Defendants provide female athletes with

inequitable

transportation,

including

transportation that is too small and

uncomfortable for the number of athletes

transported.

(10) The travel arrangements for the female athletic teams are not given the same priority and are not handled as promptly or efficiently as the arrangements for the male athletic teams.

(11) Defendants impose rules regarding the housing of female athletes that they do not have for male athletes.

(12) Defendants provide female athletes with

inequitable meal access. For example, the

female athletes on the volleyball team are

assigned a practice time of 5:00 p.m. to 8:00

p.m.

This time period covers the entire

evening meal schedule in the dorms, and thus

prevents the female athletes from obtaining any

evening meals whatsoever every single day that

they practice. Their only alternative is to

spend their own limited resources on meals off-

campus. Male athletes are not denied their

evening meals.

(13) Defendants consistently provide less publicity for their female athletic teams than for their male athletic teams, including no media guides or brochures, no cheerleaders, untrained sports information statisticians and other personnel, limited public address access, and overall promotion.

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(14) Defendants excluded the female athletes on the volleyball team from team picture day. No male team was excluded in this manner.
(15) Defendants provide female athletes and their teams with poorer, unlighted facilities and poorer facilities maintenance than they provide male athletes and their teams.
(16) Defendants provide fundraising assistance and promotion to male athletic teams, but not to female teams.
(17) Defendants permit the disparate funding of men's and women's athletic programs through the disparate collection and allocation of booster funds.
(18) Defendants provide the women's athletic teams and their coaches with less favorable recruiting budgets and opportunities.
(19) Defendants have taken money from the women's athletic budgets to pay for cost overruns on the men's teams -- even though the men's teams already receive a disproportionate amount of the overall athletic budget.
86. The gross imbalance in the treatment of female and
male athletes at NMHU, as detailed above, demonstrates
Defendants' intentional and conscious failure to comply with
Title IX.
87. Defendants' conduct has persisted despite the
information provided by and the requests made by Students and
Coaches and despite the mandates of the Regulations,
particularly 34 C.F.R. §§ 106.3(a) & 106.41(d), and the Policy
Interpretation.
88. Defendants' conduct violates 20 U. S. C. § 1681 et
seq., as interpreted by 34 C.F.R. §§106.31 and 106.41 and the
Policy Interpretation thereof.
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THIRD CLAIM FOR RELIEF: EQUAL PROTECTION

(Class action against all Defendants)

89. Students reallege and incorporate herein by this

reference paragraphs 1 through 88 inclusive of this Complaint.

90. Defendants, by their (1) failure to provide

equitable athletic scholarship funding for female students

and (2) failure to provide female athletes with the same

treatment and benefits that they provide the male athletes (as

detailed above), have purposely discriminated against female

students, including the named Plaintiffs, on the basis of sex

and have intentionally deprived them of their rights to equal

protection secured by the Fourteenth Amendment to the Constitution.

91. Defendants Bingham, Bickley, Keesing, Romero, and

Concha, as members of the Board of Regents at NMHU, have

failed to remedy the inequitable scholarship funding and the

inequitable treatment and benefits received by NMHU's female

athletes

despite the numerous complaints of the named

Plaintiffs and Coaches. Therefore, the actions of the

Defendant regents constitute a knowing disregard for Students'

constitutional rights. 92. Defendant Selimo Rael, as president of NMHU, has

failed to remedy the inequitable scholarship funding and the

inequitable treatment and benefits received by NMHU's female

athletes

despite the numerous complaints of the named

Plaintiffs and Coaches and despite a meeting in which Coaches set forth the violations in detail. Therefore, Defendant

Rael's actions constitute a knowing disregard for Students'

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constitutional rights.

93. Defendant Singleton, as the athletic director at

NMHU, has failed and refused to remedy the inequitable

scholarship funding and the inequitable treatment and benefits

received by NMHU' s female athletes

despite the numerous

complaints of the named Plaintiffs and Coaches and despite a

meeting with Defendant Rael and Defendant Singleton in which

Coaches set forth the violations in detail. Therefore,

Defendant Singleton's actions constitute a knowing disregard

for Students' constitutional rights.

94. Defendant Roybal, as the senior women's

administrator at NMHU, has failed and refused to remedy the

inequitable scholarship funding and the inequitable treatment

and benefits received by NMHU's female athletes -- despite the

numerous complaints of the named Plaintiffs and Coaches and

despite an April 15 meeting in which Coaches set forth the

violations in detail. Therefore, Defendant Roybal's actions

constitute a knowing disregard for Students' constitutional

rights.

95. Section 1983 of Title 42 of the United States Code

provides, in part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

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96. When Defendants engaged in the improper actions

described above, they were acting under color of law for

purposes of the Equal Protection Clause and 42 U.S.C. § 1983.

Under this section, each of the individual Defendants is

liable on an individual basis for his violation of the

Students' constitutional rights under the Fourteenth

Amendment.

97. The knowing and intentional actions of each of the

individual Defendants created an intimidating and inhospitable

environment for the female athletes at NMHU in that the

Defendants consistently conveyed the message to male athletes

that they provided value to NMHU, whereas female athletes did

not and were instead merely a burden on NMHU' s budget.

Defendants have consistently relegated the female athletes to

a second class status.

98. Defendants' participation in this pattern of

demeaning conduct has made it acceptable for other coaches and

male athletes to repeat the discriminatory behaviors and

actions of Defendants by, among other things, heckling and

harassing the female athletes on the basis of their gender.

This hostile environment has caused and continues to cause

severe emotional distress for female athletes at NMHU,

including, but not limited to, a reduction in their confidence

and self -esteem. This environment also discourages female

athletes from speaking out, demanding equal treatment, and

enforcing their rights, because of the widespread fear of

being subjected to public humiliation, ridicule, and general

retaliation.

The male athletes do not face this same

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hostility and harassment. 99. The above-described actions and the creation of the
above-described environment has caused the named Plaintiffs emotional distress and other damages for which they seek monetary relief.
FOURTH CLAIM FOR RELIEF: NEW MEXICO CONSTITUTION (Class action against all Defendants)
100. Students reallege and incorporate herein by this reference paragraphs 1 through 100 inclusive of this Complaint.
101. Article II, Section 18 of the New Mexico State Constitution provides that no state actor such as NMHU shall discriminate on the basis of sex. This mandates includes the denial of equitable athletic scholarship funding and equitable treatment and benefits. Through the conduct described above in Claims I, 2, and 3, Defendants have intentionally discriminated against Students.
102. The named Plaintiffs and Coaches notified Defendants numerous times about NMHU's violation of New Mexico's prohibition of sex discrimination.
103. Defendants persistently ignored the complaints and requests of Students and Coaches. In doing so, each Defendant knowingly and intentionally violated the New Mexico Constitution and is liable to the named Plaintiffs herein for the damages caused by these violations.
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FIFTH CLAIM FOR RELIEF: RETALIATION

(By Coaches against all Defendants)

106. Coaches reallege and incorporate herein by this

reference paragraphs 1 through 104 inclusive of this Complaint.

107. This claim is brought by Coaches in their capacities

as current or former employees of NMHU, for retaliation under

34 C.P.R. §106.71 (which incorporates 34 C.P.R. §1007(e) of Title VI) .

108. Coaches met with Defendant Roybal in April, 1997, to complain about NMHU's Title IX violations and their impact on

Students.

Immediately thereafter, once Defendant Roybal

notified Defendant Singleton of Coaches' complaints,

Defendants retaliated against Coach Paton by firing him and

retaliated against Coach Wolf and Coach Cosmiano by cutting

their 1997-98 coaching from a full academic year to four

months. Defendants later fired Coach Cosmiano as soon as the athletic director could convince a football coach's wife to

take his job. 109. Defendants also retaliated against Coaches Wolf and

Cosmiano by restricting their recruiting time and budgets, by

restricting their professional development efforts, and by

creating' a hostile and unbearable environment within which to work. None of the coaches of any of the men's athletic teams is subjected to these actions and restrictions.

110. Defendants' actions against Coaches were a direct response to and were intended to retaliate against them for

28

Case 1:97-cv-01360-JEC-ACT Document 1 Filed 10/21/97 Page 29 of 44
-
making Title IX complaints. Defendants' actions were in violation of 34 C.F.R. §106.71 (which incorporates 34 C.F.R. §1007(e) of Title VI).
111. Coaches were damaged by Defendants' actions in that they lost or were limited in their employment, lost compensation and benefits, lost professional status and reputation, lost funding for their teams, and were subjected to a hostile and unbearable environment that has caused them pain, humiliation, and emotional distress.
SIXTH CLAIM FOR RELIEF: BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING
(Coaches against Defendants) 112. Coaches reallege and incorporate herein by this reference paragraphs 1 through 110 inclusive of this Complaint. 113. Coaches' employment contracts include an implied covenant of good faith and fair dealing. 114. Defendants' actions described herein constitute a breach of the implied covenant of good faith and fair dealing. 115. Most egregiously, Defendants entered into contracts wi th Coaches Cosmiano, Loera, and Braswell, but then immediately terminated them once Defendant Singleton was able to convince the football coach's wife to replace them. Thus, by misleading Coaches into believing they had a job (only to fire them after the season started, making it then impossible to find other coaching positions) Defendants breached the implied covenant of good faith and fair dealing. 116. As a result of Defendants' wrongful conduct, Coaches
29

Case 1:97-cv-01360-JEC-ACT Document 1 Filed 10/21/97 Page 30 of 44
have suffered and will continue to suffer actual monetary damages, including but not limited to, past and future lost compensation and benefits, pain, humiliation, and emotional distress in a sum to be proven at trial.
117. Defendants' acts were done willfully, maliciously, and with callous disregard and reckless indifference to and disregard for Coaches' rights and, as such, warrant an award of punitive damages in a sum to be proven at trial.
SEVENTH CLAIM FOR RELIEF: WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY
(By Coaches Cosmiano, Loera, and Braswell against Defendants)
118. Coaches reallege and incorporate herein by this reference paragraphs 1 through 116 inclusive of this Complaint.
119. At all times relevant hereto, Defendants received state and federal funds, the use and allocation of which were governed by federal and state laws prohibiting gender discrimination.
120. Coaches Cosmiano, Loera, and Braswell were terminated in their employment in retaliation for Coaches' complaints about the unlawful use and allocation of those federal and state funds between the men's and women's athletic programs.
121. Coaches' termination in retaliation for making complaints about the unlawful use of the federal and state funds, as set forth above, violates a clear mandate of public policy and, as such, is actionable under Vigil v. Arzola, 102 N.M. 682, 699 P.2d 613 (N.M.Ct.App. 1983).
30

Case 1:97-cv-01360-JEC-ACT Document 1 Filed 10/21/97 Page 31 of 44
122. Defendants who retaliated against Coaches and Defendants who failed to reverse the decision to terminate Coaches breached and failed to perform the duties of their office. Their failure to perform their duties constitutes both willful misconduct and recklessness.
123. As a result of Defendants' wrongful conduct, Coaches have suffered and will continue to suffer actual monetary damages, including but not limited to, past and future lost compensation and benefits, pain, humiliation, and emotional distress in a sum to be proven at trial.
EIGHTH CLAIM FOR RELIEF: BREACH OF CONTRACT (By Coaches Wolf, Cosmiano, Loera, and Braswell
against Defendants) 124. Coaches reallege and incorporate herein by this reference paragraphs 1 through 122 inclusive of this Complaint. 125. NMHU enters into at least academic-year contracts with its head coaches. 126. As acknowledged by Defendants, the coaches are entitled to the automatic renewal absent good cause. 127. Under this right, Coaches Wolf and Cosmiano were promised contracts for the 1997-98 academic year for their positions as women's soccer and volleyball coaches. 128. After Coach Wolf complained about the Title IX violations endured by her women's soccer team, her written contract for the 1997-98 academic year was unilaterally set at four months. 129. In unilaterally breaking Coach Wolf's contract and
31

Case 1:97-cv-01360-JEC-ACT Document 1 Filed 10/21/97 Page 32 of 44
imposing a four month limit, Defendants breached its original contract with Coach Wolf.
130. As a result of Defendants' breach, Coach Wolf is entitled to continue to receive her full salary and benefits for the entire academic year period of her contract and to have her contract renewed thereafter.
131. After Coach Cosmiano complained about the Title IX violations endured by his women's volleyball team, his contract for the 1997-98 academic year was also unilaterally set at four months.
132. In unilaterally breaking Coach Cosmiano' s academic year contract and imposing a four month limit, Defendants breached their original contract with Coach Cosmiano.
133. After Coach Cosmiano began practices with his volleyball players in August, 1997, Defendants breached their contract with him by terminating him.
134. As a result of Defendants' breach, Coach Cosmiano is entitled to continue to receive his full salary and benefits for the term of his original contract and to have it renewed thereafter.
135. In a writing dated May 15, 1997, Defendants entered into contracts with Coaches Loera and Braswell to serve as assistant volleyball coaches for the 1997-98 academic year.
136. Defendants breached these contracts when they terminated Coaches Loera and Braswell without cause.
137. Coaches Wolf, Cosmiano, Loera, and Braswell are entitIed to monetary damages in the amount of their lost compensation and benefits for the period of their original
32

Case 1:97-cv-01360-JEC-ACT Document 1 Filed 10/21/97 Page 33 of 44
contracts. NINTH CLAIM FOR RELIEF: PROMISSORY ESTOPPEL
(By Plaintiffs Braswell and Loera against Defendants) 138. Coaches reallege and incorporate herein by this reference paragraphs 1 through 136 inclusive of this Complaint. 139. Defendants entered into a contract with Coaches Loera and Braswell to serve as assistant volleyball coaches for the 1997-98 academic year. 140. Defendants promised to employ Coach Braswell as an assistant volleyball coach if he moved to Las Vegas, New Mexico. 141. In reliance on this promise, Coach Braswell left his home and family in Tennessee in order to accept the position as assistant volleyball coach at NMHU. 142. After making these promises, and after Coaches Braswell and Loera relied thereon by turning down other employment and/or moving to Las Vegas, New Mexico, Defendants terminated Coaches Loera and Braswell without cause. 143. Coaches Loera and Braswell were damaged by Defendants I breach of their promise in the amount of lost compensation, benefits, and moving expenses.
TENTH CLAIM FOR RELIEF: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (By Plaintiffs Paton and cosmiano against Defendants) 144. Coaches Paton and Cosmiano reallege and incorporate herein by this reference paragraphs 1 through 142 inclusive of this Complaint.
33

- Case 1:97-cv-01360-JEC-ACT Document 1 Filed 10/21/97 Page 34 of 44
145. When Plaintiffs confronted Defendant Singleton about the violations, he threatened their jobs and took even more steps to make their lives miserable at work. He cut their recruiting budgets, refused to approve recruiting trips, refused to approve expense reimbursements, intimidated them, referred to them as disloyal in front of other NMHU employees, and isolated them within the athletic department and the NMHU community.
146. When Plaintiffs raised their civil rights concerns and their fears about the behavior of Defendant Singleton to Defendants Roybal, Rael, and Concha, Defendants failed to intervene, but instead, permitted Defendant Singleton to continue his daily harassment and intimidation of Plaintiffs.
147. Defendants' conduct toward Coach Paton was particularly extreme and outrageous in that they fired him soon after he complained about Defendants' Title IX civil rights violations. When they did so, Defendants knew that at such a late date, Coach Paton would not likely be able to find new employment as a softball coach.
148. On information and belief, Defendants' conduct and comments have prevented Coach Paton from obtaining other work in his profession.
149. Defendants' conduct toward Coach Cosmiano was also extreme and outrageous in that they promised him a year long contract, then unilaterally reduced it to four months, and then after he already hired assistant coaches and began volleyball practice in the fall, Defendants fired him as soon as they were able to convince one of the football coaches'
34

Case 1:97-cv-01360-JEC-ACT Document 1 Filed 10/21/97 Page 35 of 44

wives to take his place.

150. Defendants essentially used Coach Cosmiano until

they could convince a person more favorable to football (and

less concerned about Title IX) to take his place. Defendants

then fired Coach Cosmiano at a time when no school in the

country was hiring, because the season had already started.

151. Defendants knew that Coach Cosmiano would be unable

to find work in his profession at that time or in the near

future because of the timing of the termination and the

outrageousness of their conduct.

152. Defendants also failed to pay Coach Cosmiano under

his contract and even for the weeks that he actually worked

for quite some time. They even threatened not to pay him at

all (a violation of the labor laws) unless he signed a waiver

of all his claims against them.

153. By holding Coach Cosmiano's pay check hostage for so

many weeks, Defendants knowingly and intentionally caused

great financial and emotional harm to him.

154. Defendants then began a campaign to discredit Coach

Cosmiano on campus and in the media, by suggesting that he was

fired for embezzlement. Defendants made these statements even

though they knew at the time that not even they believed that

Coach Cosmiano had engaged in such illegal activity.

155. Nonetheless, in order to squelch the uproar caused

by firing Coach Cosmiano, Defendants sought to destroy his

integrity and reputation in the press.

In doing so,

Defendants knew that they would also damage Coach Cosmiano's

chances of finding a new job in coaching, business, or

35

Case 1:97-cv-01360-JEC-ACT Document 1 Filed 10/21/97 Page 36 of 44

athletic administration.

156. Defendants knew the consequences of their conduct

and proceeded anyway with the intent to inflict severe

emotional distress or with knowledge there was a high

probability that their conduct would cause such severe

distress to Plaintiffs.

157. Defendants' conduct has, in fact, caused severe

emotional distress to both Coaches Paton and Cosmiano. Both

remain unemployed and believe that they have been black-balled

from future coaching opportunities because of the outrageous

conduct and statements by Defendants. Coach Paton was even

forced to move out of state with his wife and children to move

in with relatives.

158. Defendants' conduct and statements overall were

extreme and outrageous, Defendants intentionally engaged in

such conduct despite knowledge of its consequences, and in

doing so caused severe emotional distress to Coaches Paton and

Cosmiano.

ELEVENTH CLAIM FOR RELIEF: DEFAMATION

(By Plaintiff Cosmiano against Defendant Singleton)

159. Coach Cosmiano realleges and incorporates herein by

this reference paragraphs 1 through 159 inclusive of this

Complaint.

160. After Defendants unlawfully terminated Coach

Cosmiano, Defendant Singleton made defamatory statements to

the news media about Coach Cosmiano and his performance as a

coach and business manager. Defendant Singleton's comments

implied that Coach Cosmiano was dismissed because of

36

Case 1:97-cv-01360-JEC-ACT Document 1 Filed 10/21/97 Page 37 of 44
-

embezzlement in the business manager's office.

161. On information and belief, Defendant Singleton

wrongfully and intentionally made these defamatory statements

with the intent to further damage Coach Cosmiano's career and

to prevent him from obtaining another coaching or business

manager position.

162. On information and belief, Defendant Singleton

wrongfully and intentionally made these defamatory statements

in order to distract attention from his own management of the

athletic department at NMHU.

163. The statements made by Defendant Singleton were and

are completely false. Coach Cosmiano has not been officially

accused of and has never engaged in embezzlement or any other

form of criminal activity.

164. The statements were published in that Defendant

Singleton made them to the news media and the statements were

printed in newspapers such as The Las Vegas Optic.

165. After the publication of Defendant Singleton's

statements, people approached Coach Cosmiano to ask him if he

had been dismissed for embezzlement.

Their questions

demonstrate that Defendant Singleton's public comments were

published to others and that they left a false and defamatory

impression with the public regarding the character and

abilities of Coach Cosmiano.

166. The publication of these statements damaged Coach

Cosmiano's reputation and his ability to obtain other

employment.

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Case 1:97-cv-01360-JEC-ACT Document 1 Filed 10/21/97 Page 38 of 44
167. Coach Cosmiano is entitled to compensation and to a clearing of his name by Defendants.
RELIEF REQUESTED WHEREFORE, on their First, Second, Third, and Fourth class action claims, Students respectfully pray that this Court: A. Certify claims 1 through 4 as a class action for
declaratory and injunctive relief on behalf of all present and future female students at NMHU who participate, seek to participate, or are deterred from participating in varsity intercollegiate athletics at NMHU. B. Enter an order declaring that Defendants have engaged in a past and continuing pattern and practice of discrimination against female students on the basis of gender in violation of Title IX and the regulations promulgated thereunder (including both inequitable athletic scholarship funding and inequitable treatment and benefits), the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and the New Mexico State Constitution. C. Issue a permanent injunction (a) restraining Defendants and their officers, agents, employees, successors, and any other persons acting in concert with them, from continuing to maintain practices and policies of discrimination against female students on the basis of gender, and (b) requiring
38

- Case 1:97-cv-01360-JEC-ACT Document 1 Filed 10/21/97 Page 39 of 44

Defendants, immediately upon issuance of the

injunctive order, to adopt and implement a budget

and plan which corrects and remediates Defendants'

violation of Title IX, the Fourteenth Amendment, and

the New Mexico State Constitution. Such a plan

should include, among other things, (1) allowing

female students equal access to athletic scholarship

funding and (2) providing female athletes with

treatment and benefits comparable to those provided

to male athletes.

D. Grant an expedited hearing and ruling on the

permanent injunction request in C above.

E. Award the named Plaintiffs monetary relief as

permitted by Title IX, 42 U.S.C. § 1983, and other

applicable law, including but not limited to, (1)

the actual out-of-pocket costs incurred to attend

NMHU without sufficient athletic scholarship

funding, (2) the damages associated with providing

their own uniforms,

equipment,

facilities

maintenance, and other items; and (3) the emotional

distress and other damages resulting from their

being subjected to unequal treatment and benefits in

athletics on the basis of their gender.

F. Award Students punitive damages for Defendants'

violation of their civil rights.

G. Award Students their reasonable attorneys' fees and

costs.

39

Case 1:97-cv-01360-JEC-ACT Document 1 Filed 10/21/97 Page 40 of 44 .---
H. Order such other and further relief as the Court deems appropriate.
WHEREFORE, on Coaches' Fifth Claim for Relief (retaliation)
A. Enter an order declaring that Defendants have engaged in a past and continuing pattern and practice of retaliation against Coaches as a consequence of making Title IX complaints on behalf of Students.
B. Issue a permanent injunction restraining Defendants and their officers, agents, employees, successors, and any other persons acting in concert with them, from retaliating against or taking any other adverse action against Coaches as a result of making Title IX complaints.
C. Issue a permanent injunction reinstating Coaches Paton and Cosmiano as coaches at NMHU, and reinstating Coach Wolf under the terms of her original contract.
D. Award Coaches monetary relief as permitted by Title IX and other applicable law, including damages for lost compensation and benefits, pain, humiliation, and the emotional distress suffered by Coaches as a result of Defendants' retaliatory actions.
E. Award Coaches punitive damages for Defendants' violation of their civil rights and the civil
40

Case 1:97-cv-01360-JEC-ACT Document 1 Filed 10/21/97 Page 41 of 44
rights of their players. F. Award Coaches their reasonable attorneys' fees
and costs. G. Order such other and further relief as the
Court deems appropriate. WHEREFORE, on Coaches' Sixth Claim for Relief (breach of covenant of good faith and fair dealing)
A. Issue a permanent injunction reinstating Coaches to their former coaching positions and under their former contract terms at NMHU.
B. Award Coaches monetary relief, including damages for lost compensation and benefits, pain, humiliation, and the emotional distress suffered as a result of Defendants' wrongful actions.
C. Award Coaches Paton, Cosmiano, Loera, and Braswell punitive damages for Defendants' wrongful discharge of their employment.
D. Award Coaches their reasonable attorneys' fees and costs.
E. Order such other and further relief as the Court deems appropriate.
WHEREFORE, on Coaches' Seventh Claim for Relief (wrongful discharge) :
A. Issue a permanent injunction reinstating Coaches Paton, Cosmiano, Loera, and Braswell to their former coaching positions and under their former contract terms at NMHU.
41

- Case 1:97-cv-01360-JEC-ACT Document 1 Filed 10/21/97 Page 42 of 44
B. Award Coaches Cosmiano, Loera, and Braswell monetary relief, including damages for lost compensation and benefits, pain, humiliation, and the emotional distress suffered as a result of Defendants' wrongful actions.
C. Award Coaches Cosmiano, Loera, and Braswell punitive damages for Defendants' wrongful discharge of their employment.
D. Award Coaches their reasonable attorneys' fees and costs.
E. Order such other and further relief as the Court deems appropriate.
WHEREFORE, on Coaches' Eighth Claim for Relief (breach of contract)
A. Issue a permanent injunction reinstating Coaches in their coaching positions at NMHU for the remainder of their one-year contract period.
B. Award Coaches monetary relief for such items as lost compensation and benefits.
C. Order such other and further relief as the Court deems appropriate.
WHEREFORE, on Coaches' Ninth Claim for Relief (promissory estoppel)
A. Issue a permanent injunction reinstating Coaches Loera and Braswell to their coaching positions at NMHU,
42

Case 1:97-cv-01360-JEC-ACT Document 1 Filed 10/21/97 Page 43 of 44

B. Award Coaches Loera and Braswell monetary

relief for such items as lost compensation,

benefits, and moving expenses.

C. Order such other and further relief as the

Court deems appropriate.

WHEREFORE, on Coach Paton's and Coach Cosmiano' s Tenth

Claim for Relief (intentional infliction of emotional

distress)

A. Issue a permanent injunction reinstating

Coaches to their former coaching positions and

under their former contract terms at NMHU.

B. Award Coaches monetary relief, including

damages for lost compensation and benefits,

pain, humiliation, and the emotional distress

suffered as a result of Defendants' wrongful

actions.

C. Award Coaches Paton and Cosmiano punitive

damages for Defendants' intentional infliction

of emotional distress.

D. Award Coaches their reasonable attorneys' fees

and costs.

E. Order such other and further relief as the

Court deems appropriate.

WHEREFORE, on Coach Cosmiano'S Eleventh Claim for Relief

(defamation) :

A. Award Coach Cosmiano monetary relief, including

damages for pain, humiliation, emotional

distress,

lost

reputation,

and

lost

43

Case 1:97-cv-01360-JEC-ACT Document 1 Filed 10/21/97 Page 44 of 44
opportunities for other employment suffered as a result of Defendants' wrongful actions. B. Order Defendants to make a complete retraction of their defamatory statements in order to prevent further injury to Coach Cosmiano. C. Order such other and further relief as the Court deems appropriate.
Dated: October~, 1997
GALEN PATON, ET. AL., Plaintiffs.
BY: Nancy N.M. Bar Simon & Oppenheimer 208 Griffin Street P.O. Box 9612 Santa Fe, NM 87504-9612 1-505-988-7420
Co-counsel to be admitted pro hac vice: Kristen M. Galles, Esq. Equity Legal 10 Rosecrest Avenue Alexandria, VA 22301 (703) 683 -4491
44

 
 Case 1:97-cv-01360-JEC-ACT Document 149 Filed 03/10/00 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

GALEN PATON, individually, et al., Plaintiffs,
vs. NEW MEXICO HIGHLANDS UNIVERSITY, et al.,
Defendants.

No. CIV 97-1360 JC/DJS

MEMORANDUM OPINION AND ORDER THIS MATTER came on for consideration of Plaintif’fMs otion for Reconsideration of Order Decertifying Class (“Class Motion”), filed December 22, 1999 (Doc. 111), and Student Plaintiffs’ Motion to Amend or Alter Judgment to Include Declaratory and Injunctive Relief ( “Motion to Amend”), filed December 23, 1999(Doc. 113). The Court has reviewed the motions, the memoranda and exhibits submitted by the parties, and the relevant authorities. The Court finds that Plaintiff’s Motions are not well taken, and will be denied. The facts of this case do not bear repeating here. I. Discussion A. Motion for Reconsideration of Order Decertifying Class Plaintiffs’ Class Motion asks for reinstatement of the Student Plaintiff class and entry of injunctiverelief againstDefendants. This Court initially granted the Student Plaintiff’s request for class certification, on the condition that one or more of the named representatives were valid members of the defined class as of May 7, 1998. 1 See Mem. Op. and Order, filed Oct. 18, 1999

1 Plaintiffsfiled their first Motion for Class Certification(Doc. 14) on May 7, 1998. The class was defined to include “present and future female students enrolled at [New Mexico Highlands University] ( “NMHU”) who participate as athletes in intercollegiate athletic”s. Mem. Op. and Order (Doc. 66).

Case 1:97-cv-01360-JEC-ACT Document 149 Filed 03/10/00 Page 2 of 6
(Doc. 66). At that time, the Court clearly stated that should it determine“that no Student Plaintiff had a valid class claim on May 7, 1998, Plaintif’fcslass action claims must necessarily be dismisse”d. Id. at 4. After reviewing supplemental briefing on the status of the named representatives, the Court found that Erica Travelstead was the only valid class member remaining as of May 7, 1998. See Mem. Op. and Order, filed Nov. 8, 1999 (Doc. 89). During the trial, but prior to the jury receiving the case, the Court determined that“there was nobody left in the class on May ”7,and decertified the class. Trial Transcript of Dec. 2, 1999 at 247:5-6, Ex. A attached to Pls. ’ Class Mot. Upon decertifyingthe class, the Court noted that Plaintiffs ha“dfailed to file any motions to bring anybody new into the class that would qualify”. Id. at 247:10-11. Although Plaintiffs now respond that they “offered on numerous occasions to substitute representative plaintiffs, ” they do not cite any supporting evidence whatsoever for this assertion. Br. in Supp. of Pl’s.Class Mot. (Doc. 112) at 6.
Plaintiffsfurther assert that Student Plaintiff Jodie Roberts was a valid member of theclass on May 7, 1998, pointing to the trial testimony of Ms. Roberts, Ms. Lane, and Ms. Butler. However, I do not find their testimony to be supportive of this assertion. Plaintiffs also contend, without citation, that Mr. Rusk “backtracked on his affidavit at trial ” regarding Ms. Roberts ’ team membership in 1998. I do not find that Mr. Rusk ’s testimony supports Plaintiffs’ contention.2 Nevertheless, were the Court to find that Ms. Roberts was a valid member of the class as of May 7, 1998, she cannot adequately represent the class concerning the present conditions at NMHU given that she has attended school outside of New Mexico since the fall of 1998.
Plaintiffs’ also assert that Erica Travelstead continues to be a member of the class. That assertion is simply not correct. The class definition includes only those female students who
2 When asked if Ms. Roberts practiced with him in the spring of 1998, Mr. Rusk replied “Not that I remember.” Trial Transcript of Greg Rusk’s testimony on Dec. 2, 1999 at 196:13-15.
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Case 1:97-cv-01360-JEC-ACT Document 149 Filed 03/10/00 Page 3 of 6
participate as athletes. Ms. Travelstead, while still enrolled as a student at NMHU, is not currently participating as an athlete on an intercollegiate team, nor is there any indication that she will participate as an athlete prior to graduation. At the time of trial, Ms. Travelstead was the sole class representativebased on the Cour’ts finding that she was the only valid member of the class on May 7, 1998. See Mem. Op. and Order, filed Nov. 18, 1999(Doc. 89). However, Ms. Travelstead conceded in her trial testimony that Coach Hiapo cut her from the team in April of 1998S.ee Trial Transcript of Erica Travelstead’s testimony on Nov. 22, 1999, at 118:11-17. Consequently, the Court determined that Ms. Travelstead was not a valid member of the class on May 7, 1998.
Plaintiffsalso ask the Court to determine the class status of the named Plaintiffs as of the filing date of the Complaint, asserting that all of the StudentPlaintiffs had valid class claims at that time. Class action principles generally require that when thenamed plaintiffs’ claims are mooted prior to class certification, “the entire action becomes moot,” unless the “relation back” exception applies. MOORE’S FEDERAL PRACTICE § 23.10(2) (3d ed. 1999) (citing Board of Comm ’rs v. Jacobs , 420 U.S. 128, 129 (1975)). The relation back doctrine may be invoked in cases where the claims are so inherently transitory that the court would never be able to rule on a motion for certification prior to the expiration of the named representative’s interest. See id. This is not such a case. Here, Plaintiffs did not file a motion for certification until after the named plaintiffs ’ claims expired. Plaintiffsfurther failed to file appropriate motions forintervention or substitution in order to bring in plaintiffs with valid class claims. The Court will not relate back to the filing date of the Complaint where the mooting of the Student Plaintiffs’ claims are foreseeable upon graduation and are not inherently transient.
-3-

Case 1:97-cv-01360-JEC-ACT Document 149 Filed 03/10/00 Page 4 of 6
Finally,Plaintiffs claim that a recorded telephone message indicates that Defendants stipulated to the filing date of the Plaintiff’s Complaint as the date of determination for the Student Plaintiff’s class status. However, this tape recording was never admitted into evidence, nor is there any written agreement between the parties to this effect. Additionally, the parties state that this recording occurred in June or July of 1998, at a time when no valid members remained in the class. Plaintiffs fail to offer sufficient evidence to rebut the Cour’ts finding that no valid class members remained on May 7, 1998. Accordingly, Plaintiffs’ Class Motion will be denied.
B. Motion to Amend or Alter Judgment to Include Declaratory and Injunctive Relief
The Student Plaintiffs’ Motion to Amend requests the Court to enter declaratory and injunctive relief in order to “bring Defendants into compliance.” The jury determined that NMHU discriminatedagainst the Student Plaintiffs and awarded two thousand dollars in damages to each Student Plaintiff. As previously noted, the Student Plaintiff class was decertified before this case went to the jury. Because the Court may not enter equitable relief on behalf of a non-existent class of plaintiffs,I will address the issue of whether the named Student Plaintiffs may receive equitable relief.
Three of the four Student Plaintiffs no longer attend NMHU, rendering moot any request for an order prohibiting Defendants from discriminating against them. Currently, Erica Travelstead is the only Student Plaintiff still enrolled at NMHU, although she no longer participates as an athlete on an intercollegiate sports team. Even if the Court could fashion equitable relief for Ms. Travelstead, it would be no more than adeclaration of what the jury already determined: that NMHU discriminated against her right to receive equitable athletic scholarship funds and/or equitable
-4-

Case 1:97-cv-01360-JEC-ACT Document 149 Filed 03/10/00 Page 5 of 6
treatment and benefits.3 It is impossible to discern from the jury verdict whether the jury found that NMHU discriminated in the provision of scholarships, benefits, or both.Because liability issues in this case were reserved for jury determination, it is not within the province of the Court to specifically declare in what manner NMHU discriminated against the Student PlaintiffsS.ee Pretrial Order, filed Sept. 30, 1999 (Doc. 63) at 36-37. Finally, while the jury found that NMHU discriminated in the past, it did not similarly find that NMHU’s discriminatory conduct continues into the present. For these reasons, the Student Plaintiffs’ Motion to Amend will be denied. II. Conclusion
For the reasons stated above, Plaintiffs’ Motion for Reconsideration of Order Decertifying Class and Student Plaintiffs’ Motion to Amend or Alter Judgment to Include Declaratory and Injunctive Relief will be denied.
Wherefore, IT IS ORDERED that Plaintiffs’ Motion for Reconsideration of Order Decertifying Class is hereby denied. IT IS ALSO ORDERED that Student Plaintiffs’ Motion to Amend or Alter Judgment to Include Declaratory and Injunctive Relief is herebydenied. DATED this 10th day of March, 2000.
CHIEF UNITED STATES DISTRICT JUDGE
3 The verdict form requested the jury to find whether NMHU violated the Student Plaintiffs ’ rights “to receive equitable athletic scholarship and/or equitable treatment and benefits”. Verdict Form, filed Dec. 6, 1999 (Doc. 106) § I, No. 1.
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Case 1:97-cv-01360-JEC-ACT Document 149 Filed 03/10/00 Page 6 of 6

Counsel for Plaintiffs: Counsel for Defendants:

Kristen M. Galles Equity Legal Alexandria, Virginia
Linda M. Vanzi Vanzi & Gagne, PC Albuquerque, New Mexico
Nancy Kantrowitz The Schulze Law Firm Santa Fe, New Mexico
Timothy L. White Atwood, Malone, Turner & Sabin Albuquerque, New Mexico

-6-

 
 Case 1:97-cv-01360-JEC-ACT Document 162 Filed 01/05/01 Page 1 of 2
FILED

UANlISTUEDQSUTEAfTlEQI~~/~TRICT COURT

UNITED STATES DISTRICT COURT

... r,EIV MEXICO

DISTRICT OF NEW MEXICO

JAN - 5 2001

GALEN PATON, individually, et al.,

p~?/;;7??.£t c.-d:

Plaintiffs,

CLERK

v.

NO. CIV 97-01360 JC/DJS

NEW MEXICO HIGHLANDS UNIVERSITY, et al.,

Defendants.

ORDER DISMISSING PETITIONS AND MOTION FOR ATTORNEYS FEES AND COSTS THIS MATTER having come before the Court on the parties Joint Motion to Dismiss Petitions and Motion for Attorneys Fees and Costs, and the Court being fully advised, HEREBY ORDERS that this Motion is granted, and that Plaintiffs' Petition for Attorneys' Fees and Expenses under 42 U.S.C. § 1988, filed January 10, 2000, Plaintiff's Petition for Bill of Costs under 28 U.S.C. § 1920, filed January 10, 2000, Plaintiffs' Supplemental Petition for Attorneys' Fees and Expenses under 42 U.S.C. § 1988, filed November 20, 2000, and Defendants' Motion to Tax Costs, filed January 10, 2000 are hereby dismissed.

SUBMITTED BY:
:~r~~t~SABm'PA
Tim thy L. te
Attorneys for efendant P. O. Box 20 Albuquerque, New Mexico 87103-0020 (505) 842-5715

Case 1:97-cv-01360-JEC-ACT Document 162 Filed 01/05/01 Page 2 of 2 APPROVED BY: AWroved by facsimile 12/19/00 Philip B. Davis, Esq. Fee Counsel for Plaintiffs 814 Marquette NW Albuquerque, NM 87102 (505) 242-1904
2

 
 Case 1:97-cv-01360-JEC-ACT Document 165 Filed 02/11/02 Page 1 of 2

IN THE UNITED STATES DISTRIf~fl{l;-ti'q~Tf}i iD1:,TR,ICT .cOURT FOR THE DISTRICT OF NEW ~iCb . H , MEXICO
FEB 1 j 2002

GALEN PATON, individually, et ai., Plaintiffs,

12//1~.o}/.//;,

-

/

/l

£k

t

J) c.fA

Vl

CLERK

vs.

No. CIV. 97-1360 JC/DJS

NEW MEXICO HIGHLANDS UNIVERSITY, et ai.,

Defendants.

ORDER THIS MATTER is before the Court on remand from the Tenth Circuit Court of Appeals. In its opinion, Paton v. New Mexico Highlands Univ., 275 F.3d 1274 (lOth Cir. 2002), the appellate court determined that the Court had erred in decertifying the class of Student Plaintiffs and in denying Plaintiffs' motion for declaratory and injunctive relief and reversed the Court's orders. While declining to reach the issue of whether named Student Plaintiff Erica Travelstead was a member of the class, the appellate court concluded that on the conceded measuring date, May 7,1998, named Student Plaintiff Jodie Roberts was a member of the class. The appellate court remanded this case for further proceedings on the request for declaratory and injunctive relief and directed the Court to enter an order certifying the class.

Wherefore, IT IS ORDERED that this action is certified as a class action under Fed. R. Civ. P. 23(a), (b)(2). The action shall proceed as a class action on behalf of "present and future female students enrolled at New Mexico Highlands University who participate as athletes in

Case 1:97-cv-01360-JEC-ACT Document 165 Filed 02/11/02 Page 2 of 2

intercollegiate athletics." Class membership shall include those female students who, as of May

7, 1998, were enrolled at New Mexico Highlands University and participated as athletes in

intercollegiate athletics. The claims that are certified for class treatment are I, II, III, and IV.

thiS~y DATED

of February, 2002.

Counsel for Plaintiffs: Kristen M. Galles, Alexandria, VA, Linda M. Vanzi, Albuquerque, NM, and Nancy Kantrowitz, THE SCHULZE LAW FIRM, Santa Fe, NM
Counsel for Defendants: Timothy L. White, MADISON, HARBOUR, MROZ & BRENNAN, PA, Albuquerque, NM, and Nancy Ruth Long, HERRERA, LONG, POUND & KOMER, PA, Santa Fe, NM

 
 Case: 1:97-cv-1360 As of: 03/21/2014 08:32 AM MDT 1 of 16
CLOSED,REFER,REOPEN
U.S. District Court District of New Mexico − Version 6.0 (Albuquerque) CIVIL DOCKET FOR CASE #: 1:97−cv−01360−JEC−ACT

Paton, et al v. New Mexico Highlands, et al Assigned to: District Judge John E. Conway Referred to: Magistrate Judge Alan C. Torgerson Demand: $0 Case in other court: 00−00211
99−02335 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 10/21/1997 Date Terminated: 03/08/2012 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Galen Paton

represented by Kristen M Galles 10 Rosecrest Ave Alexandria, VA 22301 (703) 683−4491 Fax: 683−4636 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda M Vanzi Second Judicial District Court PO Box 488 Albuquerque, NM 87103−0488 TERMINATED: 03/19/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Kantrowitz Children, Youth &Families Department General Counsel PO Drawer 5160 Santa Fe, NM 87502−5160 (505) 827−7602 Fax: 505−827−4053 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Joann Wolf

represented by Kristen M Galles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda M Vanzi (See above for address) TERMINATED: 03/19/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Kantrowitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Peter Cosmiano

represented by Kristen M Galles (See above for address) LEAD ATTORNEY

Case: 1:97-cv-1360 As of: 03/21/2014 08:32 AM MDT 2 of 16

ATTORNEY TO BE NOTICED

Linda M Vanzi (See above for address) TERMINATED: 03/19/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Kantrowitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Mark Loera

represented by Kristen M Galles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda M Vanzi (See above for address) TERMINATED: 03/19/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Kantrowitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Robert Braswell individually

represented by Kristen M Galles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda M Vanzi (See above for address) TERMINATED: 03/19/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Kantrowitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Jodie Roberts

represented by Kristen M Galles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda M Vanzi (See above for address) TERMINATED: 03/19/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Kantrowitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:97-cv-1360 As of: 03/21/2014 08:32 AM MDT 3 of 16

Plaintiff Randa Barber
Plaintiff April Clairmont
Plaintiff Erica Travelstead individually and on behalf of all others similarly situated

represented by Kristen M Galles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda M Vanzi (See above for address) TERMINATED: 03/19/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Kantrowitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kristen M Galles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda M Vanzi (See above for address) TERMINATED: 03/19/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Kantrowitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kristen M Galles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda M Vanzi (See above for address) TERMINATED: 03/19/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Kantrowitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant New Mexico Highlands University

represented by Julia L Peters Sutin, Thayer &Browne PO Box 2187 Santa Fe, NM 87504 (505) 988−5521 Fax: 505−982−5297 LEAD ATTORNEY

Case: 1:97-cv-1360 As of: 03/21/2014 08:32 AM MDT 4 of 16

ATTORNEY TO BE NOTICED

Nancy Ruth Long Long Komer &Associates, P.A. 2200 Brothers Road P. O. Box 5098 Santa Fe, NM 87502−5098 505−982−8405 Fax: 505−982−8513 Email: email@longpoundkomer.com TERMINATED: 06/02/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel King Sutin, Thayer &Browne PO Box 2187 Santa Fe, NM 87504 (505) 988−5521 Fax: 982−5297 Email: rsk@sutinfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy L. White P. O. Box 25646 Albuquerque, NM 87125 505−345−0289 Fax: 505−345−2573 Email: timothylwhitelaw@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Board of Regents of New Mexico Highlands University

represented by Nancy Ruth Long (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy L. White (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Wayne Bingham

represented by Nancy Ruth Long (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy L. White (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Thomas Keesing

represented by Nancy Ruth Long (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy L. White (See above for address)

Case: 1:97-cv-1360 As of: 03/21/2014 08:32 AM MDT 5 of 16

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Joe Romero, Jr

represented by Nancy Ruth Long (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy L. White (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Michelle Concha in their official capacities as Regents

represented by Nancy Ruth Long (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy L. White (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Selimo Rael individually and in his offical capacity as president

represented by Nancy Ruth Long (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy L. White (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Joe Singleton individually and in his official capacity as athletic director

represented by Nancy Ruth Long (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy L. White (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Cindy Roybal individually and in her official capacity as senior woman administrator

represented by Nancy Ruth Long (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy L. White (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant S Peter Bickley, Jr

represented by Nancy Ruth Long (See above for address)

Case: 1:97-cv-1360 As of: 03/21/2014 08:32 AM MDT 6 of 16
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy L. White (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/21/1997 10/21/1997 10/21/1997 10/31/1997 10/31/1997 11/07/1997 12/15/1997 02/17/1998 02/25/1998 03/03/1998
04/09/1998 04/14/1998 04/20/1998 04/29/1998
04/29/1998
05/07/1998 05/07/1998 05/21/1998
07/13/1998

# Docket Text
1 Verified Class Action COMPLAINT ( 0 Summonses issued) (referred to Magistrate Don J. Svet ) (former employee) (Entered: 10/23/1997)
Partial FILING FEE PAID: on 10/21/97 in the amount of $120.00, receipt #: 300798. (former employee) (Entered: 10/23/1997)
Partial FILING FEE PAID: on 10/21/97 in the amount of $30.00, receipt #: 300799. (former employee) Modified on 10/27/1997 (Entered: 10/23/1997)
2 DEMAND for jury trial by pltfs (pz) (Entered: 11/03/1997)
3 MOTION by pltfs for attorney Kristen Galles to appear pro hac vice (pz) (Entered: 11/03/1997)
4 ORDER by Chief Judge John E. Conway granting mtn for atty Kristen Galles to appear pro hac vice [3−1] (cc: all counsel) (kd) (Entered: 11/07/1997)
5 AMENDED COMPLAINT [1−1] by pltfs (0 Summons(es) issued) (former employee) (Entered: 12/16/1997)
6 ANSWER by defendants w/affirmative defenses [5−1] (jrm) (Entered: 02/18/1998)
7 ENTRY OF APPEARANCE for defendants by Nancy Ruth Long (mjr) (Entered: 02/25/1998)
8 INITIAL SCHEDULING ORDER by Magistrate Don J. Svet Rule 16 scheduling conference 4/14/98 at 9:00 am in Albuquerque, NM Discovery plan and IPTR due 4/6/98 (cc: all counsel electronically) (kd) (Entered: 03/04/1998)
9 ATTORNEYS' PROVISIONAL DISCOVERY PLAN (dmw) (Entered: 04/10/1998)
10 CLERK'S MINUTES: before Magistrate Don J. Svet Telephonic Rule 16 scheduling conference held 4/14/98 (dmw) (Entered: 04/15/1998)
11 NOTICE by pltfs of delivery of FRCP 26 (A) mandatory disclosure report to counsel on 4/16/98 (rd) (Entered: 04/21/1998)
12 NOTICE of hearing Pretrial conference set on 1/13/99 at 9:00 am; Jury trial set on 3/15/99 at 8:30 am, both before Judge John E. Conway in Albuquerque, NM (cc: all counsel, electronically) (dmw) Modified on 05/12/1998 (Entered: 04/30/1998)
13 REVISED INITIAL PRE−TRIAL REPORT by Chief Judge John E. Conway and Magistrate Don J. Svet; Discovery set for 9/11/98; mtn filing ddl set for 11/9/98; proposed pretrial order due 11/26/98; pretrial conference set for 9:00 am on 1/13/99; jury trial set for 8:30 am on 3/15/99; Estimated # of Trial Days: 3 weeks; Chances of Settlement: unknown (cc: all counsel) (mjr) (Entered: 04/30/1998)
14 MOTION by plaintiffs to certify class action (dmw) (Entered: 05/08/1998)
15 MEMORANDUM BRIEF by plaintiffs in support of motion to certify class action [14−1] (dmw) (Entered: 05/08/1998)
16 NOTICE by pltfs Jodie Roberts, Randa Barber, April Clairmont and Erica Travelstead of withdrawal of mtn for class certification until completion of briefing (jrm) (Entered: 05/21/1998)
17 MOTION for Extension by pltfs for time until 9/15/98 to file expert report (pz) (Entered: 07/14/1998)

Case: 1:97-cv-1360 As of: 03/21/2014 08:32 AM MDT 7 of 16

07/17/1998
08/21/1998 08/27/1998 09/10/1998 09/25/1998
09/28/1998
10/06/1998
11/19/1998 12/01/1998 12/09/1998 12/11/1998 01/12/1999
02/08/1999 03/01/1999 03/01/1999
03/01/1999 03/03/1999 03/04/1999 03/08/1999
03/31/1999 03/31/1999

18 ORDER by Magistrate Judge Don J. Svet granting pltfs' motion to extend time until 9/15/98 to serve expert reports; defts have until 10/15/98 accordingly [17−1] (cc: all counsel) (rd) (Entered: 07/20/1998)
19 CERTIFICATE of service by defts of answers to student pltfs' 1st set of interrog(s) to counsel on 8/20/98 (rd) (Entered: 08/26/1998)
20 CERTIFICATE of service by defts to answers to 1st set of interrog(s) to counsel on 8/24/98 (rd) (Entered: 08/31/1998)
21 JOINT MOTION to extend deadlines (rd) (Entered: 09/11/1998)
22 ORDER by Kyle Schultz for Magistrate Judge Robert J. DeGiacomo re mandatory settlement conference on 1/21/99 at 9:00 am in Albuquerque, NM (cc: all counsel by CLERK: ks) (rd) (Entered: 09/29/1998)
23 ORDER by Magistrate Judge Don J. Svet granting joint motion to extend deadlines [21−1]: Discovery cutoff by 12/31/98; Motion Filing cutoff by 1/31/99; Pretrial order ddl by 2/22/99; Pretrial conference on 3/10/99 at 9:00 am and Jury trial on 4/19/99 at 8:30 am, both in Albuquerque, NM (cc: all counsel by CLERK: doc) (rd) (Entered: 09/29/1998)
24 MINUTE ORDER: by direction of The Honorable John Edwards Conway: Pretrial conference reset on 3/10/99 at 9:00 am and Jury trial reset on 4/19/99 at 8:30 am, both in Albuquerque, NM (cc: all counsel, electronically) (rd) (Entered: 10/06/1998)
25 JOINT MOTION for Extension of deadlines by parties (sl) (Entered: 11/24/1998)
26 ORDER by Magistrate Judge Don J. Svet denying parties joint motion to extend deadlines [25−1] (cc: all counsel, electronic mailing) (sl) (Entered: 12/03/1998)
27 RENEWED JOINT MOTION to extend deadlines (rd) (Entered: 12/11/1998)
28 ORDER by Magistrate Judge Don J. Svet granting joint motion to extend deadlines [27−1]; Discovery cutoff by 3/5/99 (cc: all counsel) (rd) (Entered: 12/11/1998)
29 ORDER by Magistrate Judge Robert J. DeGiacomo vacating the settlement conference set for 1/21/99 and resetting the conference for 3/4/99 at 9:00 am in Albuquerque, NM (cc: all counsel by CLERK: ks) (rd) (Entered: 01/14/1999)
30 NOTICE by pltfs of supplemental mandatory disclosure of documents (rd) (Entered: 02/08/1999)
31 NOTICE by pltfs of renewed service of student pltfs' motion for class certification (rd) (Entered: 03/03/1999)
32 CERTIFICATE of service by student pltfs of 1st set of interrog(s) to counsel on 6/25/98 and request for production of documents to counsel on 6/29/98; and coach pltfs 1st set of interrog(s) and request for production of documents to counsel on 7/21/98 (rd) (Entered: 03/03/1999)
33 CERTIFICATE of service by pltfs of motions to compel and related pleadings to counsel on 2/22/99 (rd) (Entered: 03/03/1999)
34 MOTION by the parties for Extension of deadlines (rd) (Entered: 03/04/1999)
SETTLEMENT CONFERENCE held before Magistrate Judge Robert J. DeGiacomo; case did not settle (rd) (Entered: 03/17/1999)
35 ORDER by Magistrate Judge Don J. Svet granting parties' motion to extend deadlines: [34−1] Discovery cutoff by 4/30/99 and Motion Filing by 5/17/99 (cc: all counsel) (rd) (Entered: 03/08/1999)
36 CERTIFICATE of service by pltfs of disclosure of expert economist's report on damages to counsel via mail on 3/27/99 (rd) (Entered: 04/01/1999)
37 CERTIFICATE of service by pltfs of additional documents to counsel on 3/27/99 (rd) (Entered: 04/01/1999)

Case: 1:97-cv-1360 As of: 03/21/2014 08:32 AM MDT 8 of 16

04/01/1999 04/07/1999 04/15/1999 04/19/1999 04/28/1999
06/23/1999 06/23/1999 07/08/1999 08/25/1999 08/25/1999 08/25/1999 08/25/1999 08/25/1999
08/25/1999 08/30/1999 08/30/1999 08/31/1999 09/07/1999 09/07/1999 09/08/1999
09/13/1999
09/14/1999 09/24/1999

38 ORDER by Magistrate Judge Don J. Svet sua sponte Pretrial order ddl by 6/8/99 (cc: all counsel, electronically) (rd) (Entered: 04/02/1999)
39 CERTIFICATE of service of plaintiffs' disclosure of title IX experts by plaintiff (pg) (Entered: 04/08/1999)
40 CERTIFICATE of service by pltfs of supplemental mandatory disclosures to counsel on 4/12/99 (rd) (Entered: 04/16/1999)
41 MOTION for Extension by pltfs of discovery deadlines (rd) (Entered: 04/20/1999)
42 ORDER by Magistrate Judge Don J. Svet granting motion to extend discovery deadlines: [41−1] Discovery cutoff by 6/30/99; Motion Filing 8/25/99; Pretrial order ddl by 9/15/99; Pretrial conference set for 9/30/99 at 4:30 pm and Jury trial set for 11/8/99 at 8:30 am, both before Chief Judge John E. Conway in Albuquerque, NM (cc: all counsel) (rd) (Entered: 04/28/1999)
43 MOTION by pltfs to enforce Court's Order granting motions to compel (rd) (Entered: 06/24/1999)
44 MEMORANDUM by pltfs in support of motion to enforce Court's Order granting motions to compel [43−1] (rd) (Entered: 06/24/1999)
45 RESPONSE by defts to pltfs' motion to enforce Court's Order granting motions to compel [43−1] (rd) (Entered: 07/12/1999)
46 MOTION by student pltfs to certify class action (rd) (Entered: 08/25/1999)
47 MEMORANDUM by student pltfs in support of motion to certify class action [46−1] (rd) (Entered: 08/25/1999)
48 MOTION by defendants for partial summary judgment (dmw) (Entered: 08/26/1999)
49 MEMORANDUM of points &authorities by defendants in support of motion for partial summary judgment [48−1] (dmw) (Entered: 08/26/1999)
50 OPPOSITION RESPONSE by plaintiffs to motion for partial summary judgment with exhibits attached (lodged in separate file folder) [48−1] (dmw) (Entered: 08/26/1999)
51 REPLY by defendants to opposition response to motion for partial summary judgment [48−1] (dmw) (Entered: 08/26/1999)
52 AGREED MOTION for Extension of pretrial motion deadline re motion for class certification (rd) (Entered: 08/31/1999)
53 WITNESS list submitted by pltfs (rd) (Entered: 08/31/1999)
54 EXHIBIT list by pltfs (rd) (Entered: 08/31/1999)
55 EXHIBIT list (corrected) by pltfs (rd) (Entered: 09/08/1999)
56 APPENDIX (Exhibits 17 &18) filed by pltfs to response to defts' motion for partial summary judgment [50−1] (rd) (Entered: 09/08/1999)
57 ORDER by Chief Judge John E. Conway granting parties' motion to extend motion deadline until 9/24/99 to permit defts to file response to pltfs' motion for class certification [52−1] (cc: all counsel) (rd) (Entered: 09/09/1999)
58 ORDER by Magistrate Judge Don J. Svet granting pltfs' motion to enforce Court's Order granting motions to compel; defts to produce documents by 9/17/99 [43−1] all counsel) (rd) (Entered: 09/14/1999)
SETTLEMENT CONFERENCE held before Magistrate Judge Don J. Svet on 9/14/99; case has not settled (rd) (Entered: 09/16/1999)
59 RESPONSE by defts to student pltfs' motion to certify class action [46−1] (rd) (Entered: 09/27/1999)

Case: 1:97-cv-1360 As of: 03/21/2014 08:32 AM MDT 9 of 16

09/28/1999
09/28/1999
09/29/1999
09/30/1999 10/05/1999 10/13/1999 10/18/1999
10/18/1999 10/20/1999 10/20/1999 10/20/1999 10/20/1999 10/25/1999 10/26/1999 10/27/1999 10/27/1999
10/29/1999 11/01/1999 11/01/1999 11/01/1999 11/01/1999 11/01/1999 11/01/1999 11/02/1999

60 CERTIFICATE of Service by defendants of supplemental answers to coach plaintiffs' first set of interrogatories and supplemental answers to student plaintiffs' first set of interrogatories, faxed to opposing counsel on 09/25/99 (bap) (Entered: 09/29/1999)
61 CERTIFICATE of Service by defendants of responses to student plaintiffs' first request for documents and responses to coach plaintiffs' first request for documents, faxed to opposing counsel on 09/26/99 (bap) (Entered: 09/29/1999)
62 ORDER by Magistrate Judge Don J. Svet re Pretrial Order entered on 9/13/99 requiring the production of documents [58−1]; averments in the Pretrial Order indicating outstanding discovery motions will be stricken as defts have complied with the Court's Order (cc: all counsel*) (rd) (Entered: 09/29/1999)
63 PRE−TRIAL ORDER by Chief Judge John E. Conway : (cc: all counsel) (rd) (Entered: 10/01/1999)
64 REPLY by student pltfs to defts' response to motion to certify class action [46−1] (rd) (Entered: 10/05/1999)
65 ENTRY OF APPEARANCE for pltfs by Linda M. Vanzi of Vanzi &Gagne, P.C. (rd) (Entered: 10/13/1999)
66 MEMORANDUM, OPINION, AND ORDER: by Chief Judge John E. Conway conditionally granting student pltfs' motion to certify class action [46−1]; parties have 14 days from the filing of this Order to file a memorandum addressing whether one or more of the named representative student pltfs were valid members as of 5/7/98; if student pltfs fail to timely file this memorandum, pltfs' motion for class certification will be denied (cc: all counsel*) (rd) (Entered: 10/18/1999)
67 WITNESS list submitted by defts (rd) (Entered: 10/19/1999)
68 WITNESS list submitted by pltfs (rd) (Entered: 10/21/1999)
69 CONTESTED EXHIBIT list by pltfs (rd) (Entered: 10/21/1999)
70 CONSOLIDATED EXHIBIT list by the parties (rd) (Entered: 10/21/1999)
71 PARTIES' CONSOLIDATED EXHIBIT List No. 2: authenticated documents subject to other objections (rd) (Entered: 10/21/1999)
72 CONTESTED EXHIBIT list by defts (rd) (Entered: 10/25/1999)
73 OBJECTIONS by pltfs to defts' witness list [67−1] (rd) (Entered: 10/26/1999)
75 AMENDED CONTESTED EXHIBIT list by defendants (dmw) (Entered: 10/28/1999)
74 MEMORANDUM, OPINION, AND ORDER: by Chief Judge John E. Conway granting in part defts' motion for partial summary judgment [48−1] (cc: all counsel*) (sl) (Entered: 10/28/1999)
76 RESPONSE by student pltfs to Court's Order defining class and request to reconsider class definition as of filing date (rd) (Entered: 11/01/1999)
77 PROPOSED JURY INSTRUCTIONS submitted by pltfs (rd) (Entered: 11/03/1999)
78 PARTIES' JOINT INSTRUCTIONS (rd) (Entered: 11/03/1999)
80 NOTICE by defts of description of the case (rd) (Entered: 11/03/1999)
81 PROPOSED VOIR DIRE submitted by defts (rd) (Entered: 11/03/1999)
82 REQUESTED JURY INSTRUCTIONS submitted by defts (rd) (Entered: 11/03/1999)
79 RESPONSE by defts in opposition to class certification (rd) (Entered: 11/03/1999)
83 NOTICE by pltfs of filing of defts' Offers of Judgment and Notice of Acceptance of Offers of Judgment as to pltfs Braswell and Loera (rd) (Entered: 11/03/1999)

Case: 1:97-cv-1360 As of: 03/21/2014 08:32 AM MDT 10 of 16

11/02/1999 11/02/1999 11/02/1999 11/02/1999 11/03/1999 11/05/1999 11/08/1999
11/12/1999 11/12/1999 11/15/1999
11/17/1999 11/19/1999 11/19/1999 11/29/1999 11/30/1999 11/30/1999 12/01/1999 12/01/1999 12/02/1999 12/03/1999 12/03/1999 12/06/1999 12/06/1999
12/07/1999 12/09/1999

84 REPLY by defts to pltfs' response to Court's Order defining class and request to reconsider class definitions of filing date [76−1] (rd) (Entered: 11/03/1999)
85 PROPOSED VOIR DIRE QUESTIONS submitted by pltfs (rd) (Entered: 11/03/1999)
86 NOTICE by the parties of agreed description of the case pursuant to Court's Order (rd) (Entered: 11/03/1999)
87 NOTICE by pltfs of special verdict form (rd) (Entered: 11/03/1999)
88 AMENDED WITNESS list submitted by defts (rd) (Entered: 11/05/1999)
90 REPLY by student pltfs in opposition to defts' response to Court's Class Certification Order [76−1] (rd) (Entered: 11/08/1999)
89 MEMORANDUM, OPINION, AND ORDER: by Chief Judge John E. Conway naming Erica Travelstead as sole class representative for purposes of student pltfs' class action claims [79−1], [76−1], [66−1] (cc: all counsel*) (rd) (Entered: 11/09/1999)
91 MOTION by defts in limine to exclude the testimony of Christine Grant and Linda Carpenter (rd) (Entered: 11/12/1999)
92 MOTION by defts for reconsideration of class certification or to decertify (rd) (Entered: 11/15/1999)
102 CLERK'S MINUTES: before Chief Judge John E. Conway jury trial began 11/15/99 and jury trial ended 12/6/99 ; (attached notes re jury, exhibit list returns) C/R: Syd Huseby (rd) (Entered: 12/09/1999)
93 RESPONSE by plaintiffs to defts motion for reconsideration of class certification or to decertify [92−1] (sl) (Entered: 11/17/1999)
94 MOTION by defts to stay proceedings until appeal of the grant of class certification can be heard by the Court (rd) (Entered: 11/19/1999)
95 NOTICE OF APPEAL by defendants from Dist. Court decision [89−1] ; Fees $105.00 − Distribution as required. (cc: counsel) (pg) (Entered: 11/19/1999)
ACKNOWLEDGEMENT of receipt of preliminary record by USCA on 11/23/99 − USCA Number: 99−2335 (pg) (Entered: 11/29/1999)
96 MOTION by defts for judgment as a matter of law (rd) (Entered: 12/01/1999)
103 REQUESTED JURY INSTRUCTION by defts (rd) (Entered: 12/09/1999)
97 NOTICE by defts of proposed special verdict (rd) (Entered: 12/03/1999)
99 RESPONSE by pltf to defts' motion for directed verdict on Title IX Scholarship claims (rd) (Entered: 12/06/1999)
98 PROPOSED JURY INSTRUCTIONS submitted by pltfs for student pltfs' Title IX Claims (rd) Modified on 12/03/1999 (Entered: 12/03/1999)
101 COURT'S INSTRUCTIONS TO THE JURY submitted by Chief Judge John E. Conway (jrm) (Entered: 12/08/1999)
104 NOTICE by Chief Judge John Edwards Conway addressing members of the jury (rd) (Entered: 12/09/1999)
105 NOTE from the jury re verdict (rd) (Entered: 12/09/1999)
106 VERDICT for pltfs Erica Travelstead, April Clairmont, Randa Barber, Jodie Roberts, Peter Cosmiano, Joann Wolf and Galen Paton against deft New Mexico Highlands (rd) (Entered: 12/09/1999)
100 COPY of USCA Order: dismissing the appeal [95−1] (pg) (Entered: 12/07/1999)
109 ORDER by Chief Judge John E. Conway granting defts' motion for judgment as a matter of law as to Ms. Wolf's claim for intentional infliction of emotional distress against Mr. Singleton, as to remaining pltfs' claims this motion is denied [96−1]

Case: 1:97-cv-1360 As of: 03/21/2014 08:32 AM MDT 11 of 16

12/09/1999
12/20/1999 12/22/1999 12/22/1999 12/23/1999 12/23/1999 01/04/2000
01/04/2000 01/05/2000 01/06/2000 01/10/2000 01/10/2000 01/10/2000 01/10/2000
01/10/2000 01/10/2000 01/10/2000 01/10/2000 01/10/2000 01/10/2000 01/10/2000

and granting defts' motion to decertify the class; student pltfs' class is decertified [92−1] dismissing case (cc: all counsel*) (rd) (Entered: 12/10/1999)
108 JUDGMENT: by Chief Judge John E. Conway for pltfs and against defts: pltfs Robert, Barber, Clairmont and Travelstead to each recover $2,000 from dft NMHU; pltf Cosmiano to recover nothing from defts; pltf Paton to recover $35,960 from deft NMHU and pltf Wolf to recover the sum of $31,500 from deft NMHU dismissing case (cc: all counsel*) (rd) Modified on 12/15/1999 (Entered: 12/10/1999)
110 MOTION by defts for judgment as a matter of law , or alternatively for a new trial on the student−pltfs' discrimination claims (kd) (Entered: 12/21/1999)
111 MOTION by plaintiffs for reconsideration of order decertifying class (dmw) (Entered: 12/22/1999)
112 MEMORANDUM BRIEF by plaintiffs in support of motion for reconsideration of order decertifying class [111−1] (dmw) (Entered: 12/22/1999)
113 MOTION by student pltfs to amend , or to alter judgment to include declaratory and injunctive relief (pz) (Entered: 12/23/1999)
114 MOTION by coach pltfs to amend , or to alter judgment , or for new trial as to damages only (pz) (Entered: 12/23/1999)
115 APPENDIX (Exhibits) filed by pltf in support of opposition to defts' motion for judgment as a matter of law, or alternatively, for new trial (opposition to be filed by local counsel) (rd) (Entered: 01/04/2000)
116 MOTION by pltfs to strike exhibits to defts' motion for judgment as a matter of law (rd) (Entered: 01/04/2000)
117 RESPONSE by student pltfs to defts' motion for judgment as a matter of law, or alternatively, for a new trial [110−1] (rd) (Entered: 01/05/2000)
118 RESPONSE by defts to pltfs' motion for reconsideration of order decertifying class [111−1] (rd) (Entered: 01/07/2000)
119 BILL OF COSTS submitted by pltfs re judgment [108−2] (rd) (Entered: 01/10/2000)
120 PETITION by pltfs for Bill of Costs/taxing costs as set for in Bill of Costs (rd) (Entered: 01/10/2000)
123 AFFIDAVIT of Kristen Galles support of bill of costs [119−1] (rd) (Entered: 01/10/2000)
124 CERTIFICATE of service by pltfs of Affidavits of Nancy Kantrowitz, Linda Vanzi, Kristen Galles and Petition for Bill of Costs with exhibits to counsel on 1/7/00 (rd) (Entered: 01/10/2000)
121 AFFIDAVIT of Nancy Kantrowitz in support of petition [120−1] (rd) (Entered: 01/10/2000)
122 AFFIDAVIT of Linda Vanzi in support of petition [120−1] (rd) (Entered: 01/10/2000)
125 MOTION by plaintiffs for attorney fees and expenses (mjr) (Entered: 01/10/2000)
125 MEMORANDUM by plaintiffs in support of motion for attorney fees and expenses [125−1] (mjr) (Entered: 01/10/2000)
126 CERTIFICATE of service by plaintiffs of the motion and brief in support for attorney fees to opposing counsel on 1/10/00 (mjr) (Entered: 01/10/2000)
127 AFFIDAVIT of KRISTEN GALLES regarding motion for attorney fees and expenses [125−1] (mjr) (Entered: 01/10/2000)
128 AGREED MOTION by the parties for Extension of time to file respective response or reply to the post−trial motions as further described herein (rd) (Entered:

Case: 1:97-cv-1360 As of: 03/21/2014 08:32 AM MDT 12 of 16

01/10/2000 01/10/2000 01/12/2000
01/14/2000 01/14/2000 01/24/2000 01/25/2000
01/25/2000 01/25/2000 01/25/2000 01/27/2000
01/27/2000 01/28/2000 02/01/2000 02/02/2000
02/03/2000 02/17/2000
02/18/2000
03/07/2000 03/10/2000

01/11/2000)
129 MOTION by defts to tax costs (rd) (Entered: 01/11/2000)
130 MEMORANDUM by defts in support of motion to tax costs [129−1] (rd) (Entered: 01/11/2000)
131 AGREED ORDER by Chief Judge John E. Conway granting parties' agreed motion for extension to file responses and replys; defts have until 1/14/00 to file responses to student pltfs' motion to amend judgment and to coach pltfs' motion to amend judgment and pltfs have until 1/31/00 to file reply to defts' responses [128−1] (cc: all counsel) (rd) (Entered: 01/13/2000)
132 RESPONSE by defts to pltfs' motion to amend [114−1] or to alter judgment [114−2] or for new trial as to damages only [114−3] (rd) (Entered: 01/18/2000)
133 RESPONSE by defts to student pltfs' motion to amend [113−1] or to alter judgment to include declaratory and injunctive relief [113−2] (rd) (Entered: 01/18/2000)
134 UNOPPOSED MOTION by defts for Extension of time until 1/31/00 to respond to pltfs' motion for attorney fees and expenses [125−1] (rd) (Entered: 01/25/2000)
135 REPLY by coach pltfs Cosmiano, Wolf and Paton to defts' response to motion to amend [114−1] or to alter judgment [114−2] or for new trial as to damages only [114−3] (rd) (Entered: 01/26/2000)
136 REPLY by student pltfs to defts' response to motion to amend or alter judgment to include declaratory and injunctive relief [113−1] (rd) (Entered: 01/26/2000)
137 MOTION by pltfs for order for Court to enter judgment in their favor pursuant to previously filed acceptances of offers of judgment (rd) (Entered: 01/26/2000)
138 RESPONSE by pltfs to defts' motion to tax costs [129−1] (rd) (Entered: 01/26/2000)
139 AGREED ORDER by Chief Judge John E. Conway granting defts' unopposed motion for extension of time until 1/31/00 to file response to pltfs' petition for bill of costs [134−1] (cc: all counsel) (rd) (Entered: 01/27/2000)
140 UNOPPOSED AMENDED MOTION for Extension by defts of 1 week, making their responses due on 1/31/00 (rd) (Entered: 01/28/2000)
141 REPLY by student pltfs to defts' response to motion for reconsideration of order decertifying class [111−1] (rd) (Entered: 01/31/2000)
142 UNOPPOSED MOTION by defts for Extension of time until 2/2/00 to respond to pltfs'motion for attorney fees and expenses [125−1] (rd) (Entered: 02/01/2000)
143 ORDER by Judge Bruce D. Black granting defts' unopposed motion for extension of time until 2/2/00 to file responses to pltfs' petition for bill of costs [142−1] (cc: all counsel) (rd) (Entered: 02/03/2000)
144 RESPONSE by defts to pltfs' motion for attorney fees and expenses [125−1] (rd) (Entered: 02/04/2000)
145 MOTION for Extension of time until 3/7/00 to file a reply to deft's response to fee petition, bill of cost by plaintiffs (sl) Modified on 02/17/2000 (Entered: 02/17/2000)
146 ORDER by Chief Judge John E. Conway granting plaintiffs until 3/7/2000 to reply to responses to various fee petition &bill of cost related pleadings [145−1] (cc: all counsel) (dmw) (Entered: 02/18/2000)
147 REPLY by pltfs to defts' response to motion for attorney fees and expenses [125−1] (rd) (Entered: 03/07/2000)
148 MEMORANDUM, OPINION, AND ORDER: by Chief Judge John E. Conway denying motion to strike exhibits to defts' motion for judgment as a matter of law as moot [116−1] by plaintiffs and denying motion for judgment as a matter of law [110−1] by defendants (cc: all counsel*) (jrm) (Entered: 03/10/2000)

Case: 1:97-cv-1360 As of: 03/21/2014 08:32 AM MDT 13 of 16

03/10/2000
03/10/2000
03/17/2000 04/07/2000 04/17/2000 04/25/2000 05/02/2000 06/12/2000 06/12/2000 06/12/2000 06/12/2000 06/12/2000 06/12/2000 06/12/2000 06/12/2000 06/13/2000 06/19/2000 06/23/2000 07/07/2000 07/07/2000

149 MEMORANDUM, OPINION, AND ORDER: by Chief Judge John E. Conway denying motion to amend [113−1] by plaintiffs; denying motion to alter judgment to include declaratory and injunctive relief [113−2] by plaintiffs and denying motion for reconsideration of order decertifying class [111−1] by plaintiffs (cc: all counsel*) (jrm) (Entered: 03/10/2000)
150 ORDER by Chief Judge John E. Conway granting motion of pltfs Braswell and Loera for order for Court to enter judgment in their favor pursuant previously filed acceptances of offers of judgment [137−1], and judgment entered in their favor under terms of offers of judgment filed 11/2/99 [83−1] (cc: all counsel*) (jrm) (Entered: 03/10/2000)
151 SUPPLEMENTAL filing by pltfs of Affidavit of Marcia Greenberger inadvertently omitted as exhibit to pltfs' motion reply to defts' response to motion for attys' fees [147−1] (rd) (Entered: 03/20/2000)
152 NOTICE OF APPEAL by plaintiff from Dist. Court decision [150−1], [149−1], [148−1] ; Fees $105.00 − Distribution required. (cc: all counsel) (pg) (Entered: 04/07/2000)
ACKNOWLEDGEMENT of receipt of preliminary record by USCA on 4/14/00 − USCA Number: 00−211 (pg) (Entered: 04/17/2000)
153 TRANSCRIPT Order Form (TOF) from Appellant. Transcript Dates: November 15, 16, 17, 18, 19, 22, 23, 29, 30, 1999, December 1, 2,3, 1999, (opening &closing statements &instructions) re [152−1] (pg) (Entered: 04/25/2000)
154 TRANSCRIPT Order Form completed by Ct. Rptr. Syd Huesby ; Date of Transcript November 15,16,1,18,22,23,29,30, December 1,2,3, 1999 ; Est Completion Dt 6/1/00 (pg) (Entered: 05/02/2000)
TRANSCRIPT OF PROCEEDINGS before Chief Judge John E. Conway held on 11/15/99; (re [102−3] ) lodged in separate file folder (pg) (Entered: 06/12/2000)
TRANSCRIPT OF PROCEEDINGS before Chief Judge John E. Conway held on 11/16/99; (re [102−3] ) lodged in separate file folder (pg) (Entered: 06/12/2000)
TRANSCRIPT OF PROCEEDINGS before Chief Judge John E. Conway held on 11/17/00; (re [102−3] ) lodged in separate file folder (pg) (Entered: 06/12/2000)
TRANSCRIPT OF PROCEEDINGS before Chief Judge John E. Conway held on 11/18/99; (re [102−3] ) lodged in separate file folder (pg) (Entered: 06/12/2000)
TRANSCRIPT OF PROCEEDINGS before Chief Judge John E. Conway held on 11/19/99; (re [102−3] ) lodged in separate file folder (pg) (Entered: 06/12/2000)
TRANSCRIPT OF PROCEEDINGS before Chief Judge John E. Conway held on 11/22/99; (re [102−3] ) lodged in separate file folder (pg) (Entered: 06/12/2000)
TRANSCRIPT OF PROCEEDINGS before Chief Judge John E. Conway held on 11/23/99; (re [102−3] ) lodged in separate file folder (pg) (Entered: 06/12/2000)
TRANSCRIPT OF PROCEEDINGS before Chief Judge John E. Conway held on 12/3/99; () lodged in separate file folder (pg) (Entered: 06/12/2000)
LETTER sent to USCA re complete transcript of proceedings. Transcript not necessary for this appeal re appeal [152−1] (pg) (Entered: 06/13/2000)
155 MEMORANDUM, OPINION, AND ORDER: by Chief Judge John E. Conway denying pltfs' motion to amend [114−1] to alter judgment [114−2] or for new trial as to damages only [114−3] (cc: all counsel*) (rd) (Entered: 06/20/2000)
156 COPY of USCA Order: the abatement of this appeal entered on 5/11/2000 is lifted. (pg) (Entered: 06/23/2000)
TRANSCRIPT OF PROCEEDINGS before Chief Judge John E. Conway held on 11/29/99; lodged in separate file folder (pg) (Entered: 07/10/2000)
TRANSCRIPT OF PROCEEDINGS before Chief Judge John E. Conway held on 11/30/99; lodged in separate file folder (pg) (Entered: 07/10/2000)

Case: 1:97-cv-1360 As of: 03/21/2014 08:32 AM MDT 14 of 16

07/07/2000 07/07/2000 07/07/2000 07/07/2000 07/10/2000 08/07/2000 08/22/2000 08/23/2000
09/07/2000
01/04/2001 01/05/2001
04/23/2001 02/04/2002
02/11/2002 05/06/2002 05/07/2002 05/31/2002 05/31/2002 07/01/2002

TRANSCRIPT OF PROCEEDINGS before Chief Judge John E. Conway held on 12/1/99; lodged in separate file folder (pg) (Entered: 07/10/2000)
TRANSCRIPT OF PROCEEDINGS before Chief Judge John E. Conway held on 12/2/99; lodged in separate file folder (pg) (Entered: 07/10/2000)
TRANSCRIPT OF PROCEEDINGS before Chief Judge John E. Conway held on 12/3/99; lodged in separate file folder (pg) (Entered: 07/10/2000)
TRANSCRIPT OF PROCEEDINGS before Chief Judge John E. Conway held on 12/6/99; lodged in separate file folder (pg) (Entered: 07/10/2000)
LETTER sent to USCA record complete transcript of proceedings on file [152−1] (pg) (Entered: 07/10/2000)
157 SUPPLEMENTAL BRIEFING by pltfs in support of motion for attorney fees and expenses [125−1] (rd) (Entered: 08/07/2000)
158 ORDER OF REFERENCE by Chief Judge John E. Conway referring this matter to Magistrate Judge Robert J. DeGiacomo to recommend a disposition of pltfs' motion for attorney fees and expenses (cc: all counsel*) (rd) (Entered: 08/22/2000)
159 AMENDED ORDER OF REFERENCE by Chief Judge John E. Conway to Magistrate Judge Robert J. DeGiacomo to recommend an ultimate disposition on pltfs' motion for fee/expenses and for costs and defts' motion to tax costs [125−1], [129−1], [120−1] (cc: all counsel*) (rd) (Entered: 08/24/2000)
160 ORDER by Magistrate Judge Robert J. DeGiacomo setting a hearing on the mtns for atty fees and expenses [125−1] and to tax costs [129−1] hearing set for 11/20/00 at 9:00 am in the Gila Courtroom (cc: all counsel by ks) (kd) (Entered: 09/07/2000)
161 JOINT MOTION by the parties to withdraw petitions and motion for attorneys' fees and costs (rd) (Entered: 01/04/2001)
162 ORDER by Senior Judge John E. Conway granting the motion to withdraw petitions and motion for attorneys' fees and costs [161−1]: dismissing supplement petition for attorneys' fees [157−1]; dismissing motion for attorney fees and expenses [125−1]; dismissing motion to tax costs [129−1] and bill of costs [119−1] (cc: all counsel) (rd) (Entered: 01/05/2001)
163 NOTICE by plaintiffs of change of address of counsel (dmw) (Entered: 04/24/2001)
164 COPY of judgment from USCA: the USDC's orders decertifying the class and denying plaintiffs' motion for injunctive and declaratory relief are reversed. The matter is remanded to the USDC to enter an order certifying the class and for further proceedings on the request for declaratory and injunctive relief [Appeal [152−1] (pg) (Entered: 02/06/2002)
165 ORDER by Senior Judge John E. Conway re Judgment [164−1]; this action certified as class action; the claims certified for class treatment are I, II, III &IV (cc: all counsel) (vv) (Entered: 02/11/2002)
166 MEMORANDUM, OPINION, AND ORDER: by Senior Judge John E. Conway; parties to arrange mediation conference on the issues of injunctive &declaratory relief &attys' fees and costs (cc: all counsel) (vv) (Entered: 05/06/2002)
167 ORDER by Magistrate Judge Don J. Svet setting settlement conference for 5/31/02 at 8:30 am in Albuquerque, NM (cc: all counsel*) (vv) (Entered: 05/07/2002)
168 ORDER by Magistrate Judge Don J. Svet reconvening settlement conference on 7/3/02 at 8:30 am (cc: all counsel*) (vv) (Entered: 05/31/2002)
SETTLEMENT CONFERENCE held before Magistrate Judge Svet (vv) (Entered: 05/31/2002)
169 ORDER by Magistrate Judge Don J. Svet *FILED IN ERROR* (dmw) Modified on 07/24/2002 (Entered: 07/02/2002)

Case: 1:97-cv-1360 As of: 03/21/2014 08:32 AM MDT 15 of 16

07/01/2002 07/25/2002 08/01/2002
08/22/2002 12/11/2002 03/18/2003 03/19/2004 03/20/2006 03/22/2006 05/24/2006 05/25/2006 06/02/2006
06/08/2006 09/12/2006 09/12/2006 09/12/2006 09/12/2006 09/13/2006 09/13/2006 09/13/2006 02/08/2007
02/13/2007
02/27/2007

170 ORDER by Magistrate Judge Don J. Svet vacating continuance of settlement conference (cc: all counsel*) (dmw) (Entered: 07/02/2002)
171 ORDER by Magistrate Judge Don J. Svet continuing settlement conference to 8/12/02 at 1:30 pm (cc: all counsel*) (vv) (Entered: 07/25/2002)
172 ORDER by Magistrate Judge Don J. Svet rescheduling the Rule 16 settlement conference for 8/22/02 at 8:30 a.m. in Albuquerque, NM [171−1] (cc: all counsel*) (ild) (Entered: 08/02/2002)
SETTLEMENT CONFERENCE before Magistrate Judge Svet continued(vv) Modified on 08/28/2002 (Entered: 08/22/2002)
173 ORDER by Magistrate Judge Don J. Svet setting telephonic discovery/settlement conference for 2:30 pm on 12/18/02 (cc: all counsel*) (vv) (Entered: 12/11/2002)
174 MINUTE ORDER: Case referred from Magistrate Judge Svet to Magistrate Judge Alan C. Torgerson (cc: all counsel*) (vv) (Entered: 03/18/2003)
175 NOTICE of withdrawal by plaintiffs' counsel (vv) (Entered: 03/19/2004)
176 UNOPPOSED MOTION by defendants to withdraw attorney &substitute counsel (vv) (Entered: 03/20/2006)
177 ORDER by Senior Judge John E. Conway granting defts' motion to withdraw attorney &substitute counsel [176−1] (cc: all counsel) (vv) (Entered: 03/22/2006)
178 NOTICE of hearing Status hearing set for 6/7/06 at 11:30 am before Senior Judge Conway (cc: all counsel) * (vv) (Entered: 05/24/2006)
179 MOTION by defendants to dismiss for want of prosecution (vv) Modified on 4/7/2009 (dc). (Entered: 05/25/2006)
180 SUBSTITUTION OF COUNSEL: terminating attorney Nancy Long for New Mexico Highlands &substituting attys Julia L Peters &Rachel King (td) (Entered: 06/05/2006)
181 CLERK'S MINUTES before Senior Judge John E. Conway Status hearing held on 6/7/06 C/R: Julie Sanchez* (jm) (Entered: 06/08/2006)
182 RESPONSE by plaintiff to motion to dismiss for want of prosecution [179−1] * (vv) (Entered: 09/12/2006)
183 APPENDIX [Exhibit 4] filed by plaintiff re motion response [182−1] * (vv) (Entered: 09/13/2006)
184 APPENDIX [Exhibit 5] filed by plaintiff re motion response [182−1] * (vv) (Entered: 09/13/2006)
185 MOTION [Request] by plaintiff for entry of injunctive relief * (vv) (Entered: 09/13/2006)
186 SUPPLEMENTAL MOTION [Petition] by plaintiff for attorney fees &expenses * (vv) (Entered: 09/13/2006)
187 APPENDIX [Exhibits] filed by plaintiff re motion for attorney fees &expenses [186−1] * (vv) (Entered: 09/13/2006)
188 DECLARATION of Kristen Galles re motion for attorney fees &expenses [186−1] * (vv) (Entered: 09/13/2006)
189 NOTICE of STATUS CONFERENCE on 2/27/2007 at 11:00 AM in Albuquerque − 560 Cimarron Courtroom before District Judge John Edwards Conway. (lj) (Entered: 02/08/2007)
190 NOTICE by New Mexico Highlands University, Thomas Keesing, Joe Romero, Jr, Michelle Concha, Selimo Rael, Joe Singleton, Cindy Roybal of Withdrawal of Counsel (Long, Nancy) (Entered: 02/13/2007)
191 Clerk's Minutes for telephonic status conference held before Judge John Edwards Conway on 2/27/2007. Follow−up Telephonic Status Conference shall be set on

Case: 1:97-cv-1360 As of: 03/21/2014 08:32 AM MDT 16 of 16

03/27/2007 03/27/2007 03/27/2007 04/13/2007 04/13/2007 04/16/2007
04/16/2007
04/16/2007 06/28/2007 07/19/2007
08/02/2007 08/03/2007 02/15/2012 03/08/2012

3/23/2007 at 11:00 AM in Albuquerque − 740 Judge John E. Conway Chambers. (lj) (Entered: 02/27/2007)
192 Clerk's Minutes for telephonic status conference held before Judge John Edwards Conway. (Court Reporter Julie Sanchez.) (lj) (Entered: 03/27/2007)
193 ORDER by Judge Alan C. Torgerson Setting Rule 16 Settlement Conference. (Entered: 03/27/2007)
Set Deadlines/Hearings: Settlement Conference set for 5/7/2007 09:30 AM in Albuquerque − 380−3 ADR Conference Room before Magistrate Judge Alan C. Torgerson. (Entered: 03/27/2007)
194 MOTION to Vacate Settlement Conference by New Mexico Highlands University. (White, Timothy) Modified on 4/20/2007 to correct typo (dmw) (Entered: 04/13/2007)
195 Amended MOTION to Vacate and Reschedule Settlement Conference by New Mexico Highlands University. (White, Timothy) (Entered: 04/13/2007)
196 Clerk's Minutes: Magistrate Judge Alan C. Torgerson conducted a telephone conference with Attorneys White and Galles on April 16, 2007. The Court has agreed to reschedule the settlement conference for June 27, 2007. (Entered: 04/16/2007)
197 ORDER by Judge Alan C. Torgerson Granting 194 Motion to Vacate and Reschedule Settlement Conference and 195 Amended Motion to Vacate and Reschedule Settlement Conference. The Settlement Conference currently scheduled at 9:30 a.m. on May 7, 2007, is vacated and rescheduled for 9:30 a.m. on June 27, 2007. THIS IS A TEXT−ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (Entered: 04/16/2007)
Set Deadlines/Hearings: Settlement Conference set for 6/27/2007 09:30 AM in Albuquerque − 380−3 ADR Conference Room before Magistrate Judge Alan C. Torgerson. (Entered: 04/16/2007)
198 Clerk's Minutes: A Rule 16 Settlement Conference was held at 9:30 a.m. on June 27, 2007, before the Magistrate Judge Alan C. Torgerson. Results of Settlement Conference: Case Settled. (Entered: 06/28/2007)
199 ORDER by Judge Alan C. Torgerson Setting Telephonic Status Conference. Status Conference set for 8/1/2007 10:00 AM in Albuquerque − 670 Judge Alan C. Torgerson Chambers before Magistrate Judge Alan C. Torgerson. (Entered: 07/19/2007)
200 Clerk's Minutes for proceedings held before Judge Alan C. Torgerson : Status Conference held on 8/1/2007. (Court Reporter None.) (bjk) (Entered: 08/02/2007)
201 ORDER by Judge Alan C. Torgerson requiring attorneys to report decision from Risk Management by August 10, 2007. Telephone conference scheduled for August 14, 2007 at 1:30 PM. (bjk) (Entered: 08/03/2007)
202 ORDER TO SHOW CAUSE by Senior District Judge John E. Conway within 14 days of this date to show cause why this matter should not be dismissed for failure to prosecute pursuant to Rule 41(B). (bap) (Entered: 02/15/2012)
203 ORDER DISMISSING CASE for Lack of Prosecution by Senior District Judge John E. Conway. (bap) (Entered: 03/08/2012)