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Portz v. St. Cloud State University

United States District Court, D. Minnesota

August 20, 2017

ALEXIE PORTZ, JILL KEDROWSKI, ABIGAIL KANTOR, MARILIA ROQUE DIVERSI, FERNANDA QUINTINO DOS SANTOS, MARIA HAUER, HALEY BOCK, KAITLYN BABICH, ANNA LINDELL, and KIERSTEN ROHDE, individually and on behalf of all those similarly situated, Plaintiffs,
v.
ST. CLOUD STATE UNIVERSITY and MINNESOTA STATE COLLEGES AND UNIVERSITIES, Defendants.

          Sharon L. Van Dyck, FAFINSKI MARK & JOHNSON, P.A., for plaintiffs.

          Kevin A. Finnerty, MINNESOTA ATTORNEY GENERAL'S OFFICE, for defendants.

          MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION ON MOTION TO STRIKE RULE 68 OFFER OF JUDGMENT

          JOHN R. TUNHEIM CHIEF JUDGE.

         Defendants St. Cloud State University (“SCSU”) and Minnesota State Colleges and Universities (collectively, “Defendants”) object to United States Magistrate Judge Leo I. Brisbois's Report and Recommendation (“R&R”), recommending that the Court grant Plaintiffs' motion to strike Defendants' Rule 68 Offer of Judgment (“Rule 68 Offer”). Because the Court finds Defendants' Rule 68 Offer made prior to a decision on Plaintiffs' motion for class certification creates an improper conflict of interest, the Court will overrule Defendants' objections, adopt the R&R, and grant Plaintiffs' motion to strike the Rule 68 Offer of Judgment.

         BACKGROUND

         Plaintiffs are female student-athletes, bringing a putative class action “on behalf of . . . SCSU's current, prospective, and future female students who want to participate in varsity women's tennis or varsity women's Nordic skiing at SCSU or who want to participate in varsity sports not offered or eliminated by SCSU.” (Am. Compl. ¶ 1, Sept. 30, 2016, Docket No. 57; see also Mot. to Certify Class, May 15, 2017, Docket No. 133.) Plaintiffs allege that Defendants discriminate on the basis of sex by providing male students with greater athletics-related participation opportunities, benefits, and financial assistance, in violation of Title IX. (See, e.g., Am. Compl. ¶¶ 67-84.) Plaintiffs seek declaratory, injunctive, and monetary relief, including attorney's fees, on behalf of themselves and the purported class. (See Id. at 27-28.)

         On July 25, 2016, the Court granted Plaintiffs' motion for a preliminary injunction, enjoining defendants from: (a) eliminating SCSU's interscholastic women's tennis team; (b) involuntarily terminating the employment of the coaches of SCSU's interscholastic women's tennis team; (c) reducing support for SCSU's interscholastic women's tennis team; and (d) restricting or denying SCSU's interscholastic women's tennis team's access to facilities, coaching, training, or competitive opportunities. Portz v. St. Cloud State Univ., 196 F.Supp.3d 963, 978 (D. Minn. 2016). On August 23, 2016, the Court expanded the preliminary injunction to include the women's Nordic skiing team based on a stipulation from the parties. (Order Amending Prelim. Inj., Aug. 23, 2016, Docket No. 43.)

         On January 19, 2017, Defendants served the following Offer of Judgment on Plaintiffs pursuant to Fed.R.Civ.P. 68:

1. To [named plaintiffs] as putative class representatives, Defendants offer to maintain SCSU's intercollegiate women's tennis and Nordic ski teams through the end of academic year 2019-20 and to at least maintain the current level of support and access to facilities, coaching, training and competitive opportunities those teams and their players receive throughout that period. In addition, SCSU will allocate an additional $10, 000.00 each to the tennis and ski teams during academic year 2017-18 that SCSU will use, in its sole discretion, for team-related expenses and/or improvements, such as those for equipment, competitions, and travel.
2. To [named plaintiffs] as individual Plaintiffs, Defendants offer $2[, ]000.00 each.
3. Defendants agree to pay costs accrued in this action to date. Reasonable attorney's fees are included as part of Defendant's offer. Defendants offer to allow the Court to determine these costs, including reasonable attorney's fees.
4. Defendants' offer is conditioned on acceptance by all Plaintiffs and is made to fully and finally resolve all claims made or that could have been made against them in this action.

(Decl. of Andrew T. James, Ex. 1 at 3-5, Mar. 16, 2017, Docket No. 101.) Plaintiffs did not accept the settlement offer. (Decl. of Kevin Finnerty ¶ 3, May 23, 2017, Docket 107.)

         On March 16, 2017, Plaintiffs filed a Motion to Strike Defendants' Rule 68 Offer of Judgment. On April 19, 2017, the Magistrate Judge filed an Order and Report and Recommendation. (Order & R&R (“R&R”), Apr. 19, 2017, Docket No. 111.)[1] Because Defendants' Rule 68 Offer occurred before class certification, did not offer relief to all putative class members, and had the potential to shift future litigation costs onto the named plaintiffs, the Magistrate Judge determined there was a “conflict of interest between the putative class representatives and the putative class members.” (Id. at 14-17.) Finally, the Magistrate Judge noted that the Rule 68 Offer did not address the broad goals of Title IX, namely that females and males be provided equal opportunity to participate in collegiate athletics. (Id. at 15-16.) Accordingly, the Magistrate Judge recommended that ...


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