## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 9 2002 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

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* The Honorable Cynthia Holcomb Hall, Circuit Judge, United States Court

of Appeals for the Ninth Circuit, sitting by design ation. -2- 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), f or Plaintiffs-Appellants. Nancy Ruth Long, Herrera, Long & Pound, Santa Fe, N ew Mexico, (Timothy L. White, Atwood, Malone, Turner & Sabin, P.A., Albuqu erque, New Mexico, on the brief), for Defendants-Appellees.

Before MURPHY , HALL, * andPORFILIO , Circuit Judges.

MURPHY , Circuit Judge.

I. INTRODUCTION Plaintiffs-Appellants filed a complaint against Def endants-Appellees containing, inter alia , allegations asserted on behalf of a class of fema le student athletes. More than two years passed before the di strict court certified the class. At the close of trial, but before the matter was su bmitted to the jury, the court granted Defendants’ motion to decertify the class, concluding that trial testimony had demonstrated that no named plaintiff was a memb er of the class on the date the motion for class certification was filed. The jury thereafter returned a verdict1 The remaining five named plaintiffs were coaches cu rrently or formerly

employed by New Mexico Highlands University. -3- awarding compensatory damages to the named plaintif fs. Plaintiffs filed motions seeking declaratory and injunctive relief and recon sideration of the class decertification order. Both motions were denied an d 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 aga inst 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 defendan t New Mexico Highlands University (the “Student Plaintiffs”). 1 The complaint was styled “Verified Class Action Complaint” and contained, inter alia , class allegations asserted on behalf of the Student Plaintiffs and “all others similarlysituated.” The Student Plaintiffs sought declaratory and injunctive relief on behalf of the class members and monetary relief for themselves individually. In th e body of the complaint, Plaintiffs requested the court to certify a class c onsisting of “all present and future female students at [New Mexico Highlands Uni versity] who participate,-4-

seek to participate, or are deterred from participating in varsity intercollegiate athletics at [New Mexico Highlands University].” P laintiffs filed an amended complaint on December 15, 1997 containing the same request for class certification. On May 7, 1998, Plaintiffs filed a formal motion se eking class certification of four of the claims asserted in the complaint. D efendants sought an extension of time to June 9, 1998 to file a response to the m otion. Defendants’ response, however, was not filed until September 24, 1999. P laintiffs contend they agreed to an extension of the time for filing the response in reliance on Defendants’ oral stipulation that class membership would be determin ed as of the date the complaint was filed. In an order dated October 18, 1999, the district co urt defined the class as all “present and future female students enrolled at[New Mexico Highlands University] who participate as athletes in intercol legiate athletics.” The district court then concluded that class membership should b e measured as of May 7, 1998, the date Plaintiffs filed their initial motio n for class certification. See Milonas v. Williams , 691 F.2d 931, 937 (10th Cir. 1982) (applying a “r elation back” theory to grant class certification in an oth erwise moot case). The district court further concluded that all class action requi rements of Rule 23 of the Federal Rules of Civil Procedure had been met. The court conditionally certified2 This oral ruling was incorporated into a written or der dated December 9,

1999 granting Defendants’ motion to decertify the c lass. -5- the class, allowing Plaintiffs fourteen days to fil e a motion demonstrating that one or more of the Student Plaintiffs were enrolled at New Mexico Highlands University and participating in intercollegiate ath letics on May 7, 1998. The issue was briefed by both parties and on Novemb er 8, 1999, the district court entered an order certifying the class. In th at 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 th at 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 R oberts, were members of the class on May 7, 1998. The trial began on November 15, 1999. After all te stimony had been presented but before the jury began deliberations, the court decertified the class stating orally, “[t]here is nobody left in the clas s. . . . There’s nobody to represent the class that has really any great concern about i t.” 2The jury returned a verdict-6-

in favor of Plaintiffs, awarding compensatory damag es to all four Student Plaintiffs. Plaintiffs then filed a motion requesting the courtto reconsider its order decertifying the class. Plaintiffs also filed a mo tion to alter or amend the judgment to include declaratory and injunctive reli ef against Defendants. On March 10, 2000, the district court denied the motio n 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 voll eyball 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 Pla intiffs’ 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 pres ent conditions at [New Mexico Highlands University] given that she has attended s chool outside of New Mexico since the fall of 1998.” The district court also d enied 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.-7-

III. DISCUSSION This Court reviews a district court’s decision to d ecertify 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 t hat 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 me mbers is impracticable, (2) there are questions of law or fa ct 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 p rotect the interests of the class. Fed. R. Civ. P. 23(a). Before the court can analyz e these factors, however, it must first determine whether the suit has been brou ght by “[o]ne or more members of [the] class.” Id.; see also Sosna v. Iowa , 419 U.S. 393, 403 (1975) (addressing the issue of class membership before de termining 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 cou rt’s factual findings relating to this inquiry are reviewed for clear error. See Nieto v. Kapoor , 268 F.3d 1208,3 Plaintiffs also argue that the district court erron eously concluded that Ms.

Roberts could not represent the class because she w as not a class member on the date of the trial. Plaintiffs assert that the Supr eme Court has repeatedly permitted individuals to pursue class claims in a representat ive 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 S tudent 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.

4 It is also unnecessary for us to address Plaintiffs ’ argument that Ms. Travelstead was a class member on May 7, 1998. -8- 1217 (10th Cir. 2001). “A finding of fact is clear ly erroneous if it is without factual support in the record or if the appellate c ourt, after reviewing all the evidence, is left with the definite and firm convic tion that a mistake has been made.” Tosco Corp. v. Koch Indus., Inc. , 216 F.3d 886, 892 (10th Cir. 2000) (quotation omitted). Plaintiffs first argue that class membership shouldbe 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 thei r initial motion for class certification was filed. Defendants dispute Plaint iffs’ 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, i t is unnecessary for us to address Plaintiffs’ argument that class membership should be measured as of the date the complaint was filed. 4-9-

Both parties introduced evidence relating to Ms. Ro berts’ status as a class member on May 7, 1998. Ms. Roberts testified at tr ial 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 acade mic 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 soccerteam prior to May 7, 1998. Defendants do allege, however, that Ms. Roberts didnot participate in spring soccer practice and thus was not a class member on May 7, 1998. Defendants support their position with an affidavit executed b y soccer coach Greg Rusk and attached to their memorandum in opposition to class certification. In his affidavit, Rusk stated that Roberts did not partici pate 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.”-10-

Plaintiffs aver that Ms. Roberts did participate insoccer 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 coac h 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. As sistant 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 atleast one practice. Additionally, Roberts and Callie Butler, the team c o-captain, testified that they organized team practices after Christmas break and before Rusk was hired. Defendants argue that the district court weighed Ru sk’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 cl early demonstrates that Roberts practiced with the team and the district court’s fi nding to the contrary was clearly erroneous. We conclude that all of the allegedly c onflicting 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 Mexi co Highlands University women’s soccer team on May 7, 1998 and thus a membe r of the class. The-11-

evidence conclusively demonstrates that as of May 7 , 1998, Ms. Roberts: (1) was attending New Mexico Highlands University on an ath letic scholarship; (2) was then enrolled at New Mexico Highlands University an d attending classes or taking final examinations; and (3) had not been cut or rel eased from the women’s soccer team. Based on this relevant and uncontroverted ev idence, we conclude that on May 7, 1998, Ms. Roberts was a female student enrol led 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 ba sis. In its March 10, 2000 memorandum and order, the dis trict court concluded in the alternative that Ms. Roberts could not fairl y and adequately protect the interests of the class because she had not attendedschool 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 i n depositions, communicated with their attorney by telephone or mail, and atten ded settlement hearings.” The court also found that “[n]ot one of the named stude nts has withdrawn from the case.” Based on these findings, the court conclude d that the requirement of Rule 23(a)(4) had been met and the Student Plaintiffs co uld adequately protect the5 Defendants do not argue that Roberts could not fair ly 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 no ne was a member of the class on May 7, 1998. -12- interests of the class. When the court decertified the class less than two months later, none of the facts upon which the earlier ord er was based had changed. In particular, Ms. Roberts did not leave New Mexico Hi ghlands University between the time the court entered the conditional order an d the time it decertified the class; she had left more than one year before the c onditional order was entered. Thus, the alternative basis upon which the court de certified the class is not supported by the factual findings in the record andthe court abused its discretion when it concluded that Roberts could no longer fair ly and adequately protect the interests of the class. 5 In the Motion to Amend or Alter Judgment filed on D ecember 23, 1999, Plaintiffs requested the district court to grant th e declaratory and injunctive relief they requested in their complaint. The court denie d the motion stating, “the Court may not enter equitable relief on behalf of a non-e xistent class of plaintiffs.” Because the district court based its denial of Plai ntiffs’ motion on its erroneous decertification of the class, we must reverse that order andremand the matter to the district court for further consideration in lig ht of this opinion.-13-

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.