ABDUL K. KALLON, District Judge.
The court has before it The Southern Conference's ("Defendant") Motion to Dismiss. Doc. 15. Amanda Barrs, Kathryn England, Holly Reeves, and Stephanie Royall ("Plaintiffs") responded, (doc. 20), and Defendant replied, (doc. 21). This matter is now ripe for resolution. For the reasons stated below, the motion is DENIED.
Plaintiffs are former members of Samford University's softball team, who graduated in May 2010. Doc. 1 ¶¶ 8-11; Doc. 20-1 at 7. On May 11, 2010, Plaintiffs filed a complaint and a motion for a preliminary injunction, which requested that this court order Defendant to expand its post-season softball tournament, scheduled to begin on May 13, 2010, from four to eight teams. Doc. 1; Doc. 2. In 2009, in an effort to cut costs, Defendant reduced the number of teams advancing to post-season tournaments in men's and women's soccer, men's and women's tennis, women's volleyball, and women's softball. Doc. 1 ¶ 32. Plaintiffs allege that this decision disproportionately affected female student athletes and contend that the reduction violates Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. ("Title IX"). Doc. 1; Doc. 2. Determining that Plaintiffs failed to demonstrate that they had a likelihood of success on the merits, that they would suffer irreparable harm, that the balance of equities tipped in their favor, or that an injunction was clearly in the public interest, the court denied the preliminary injunction on May 13, 2010. Doc. 8.
Defendant now moves the court to dismiss the case pursuant to Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6), arguing that (1) the court lacks subject matter jurisdiction because Defendant is not liable under Title IX, (2) the case is moot because Plaintiffs have now graduated, and (3) Plaintiffs also fail to state a claim because Defendant is not liable under Title IX.
"Attacks on subject matter jurisdiction under Rule 12(b)(1) come in two forms, `facial' and `factual' attacks." Morrison v. Amway Corp., 323 F.3d 920, 925 n. 5 (11th Cir.2003) (citation omitted). Facial attacks are based on the allegations in the complaint, which the court must take as true in deciding whether to grant the motion. Id. Factual attacks challenge subject matter jurisdiction "in fact, irrespective of the pleadings," and the court "may consider extrinsic evidence" in ruling on a factual challenge. Id. In such a case, "the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of the jurisdictional issue." Id. at 925 (citation omitted). However, a court may only find that it lacks subject matter jurisdiction "if the facts necessary to sustain jurisdiction do not implicate the merits of plaintiff's cause of action." Id. (citations
Rule 12(b)(6) permits dismissal when a complaint fails to state a claim upon which relief may be granted. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citation and internal quotation marks omitted). A complaint states a facially plausible claim for relief "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citation omitted). The complaint must establish "more than a sheer possibility that a defendant has acted unlawfully." Id. (citation omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ("Factual allegations must be enough to raise a right to relief above the speculative level ..." (citation omitted)). Ultimately, this inquiry is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950.
On a motion to dismiss under Rule 12(b)(6), the court accepts all factual allegations as true. See, e.g., Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir.2000). However, legal conclusions unsupported by factual allegations are not entitled to that assumption of truth. Iqbal, 129 S.Ct. at 1950.
Defendant asserts both facial and factual challenges to the court's subject matter jurisdiction under Rule 12(b)(1). However, because Defendant's arguments address the merits of Plaintiffs' case, rather than jurisdiction, the challenge fails and the court need not consider the facial and factual arguments separately.
Title IX provides that "[n]o 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). Defendant argues that Plaintiffs' claim fails under Rule 12(b)(1) because, according to Defendant, it does not receive federal financial assistance and, therefore, is not an entity subject to liability under Title IX. Doc. 16 at 7.
In Amway, the Eleventh Circuit rejected a similar argument. The defendant in Amway argued that the plaintiff was not an "eligible employee" under the Family Medical Leave Act because the defendant did not employ the requisite number of employees. 323 F.3d at 923. The Eleventh Circuit concluded that the district court should have addressed the issue under Rule 56(c),
The Eleventh Circuit reached the same conclusion previously in M.H.D. v. Westminster Schs., 172 F.3d 797 (11th Cir. 1999), a case in which the plaintiff claimed that a school's tax-exempt status constituted "Federal financial assistance" within the meaning of Title IX. The district court disagreed and dismissed the case for want of subject matter jurisdiction. Id. at 801. Although affirming the district court on other grounds, the Eleventh Circuit found that the district court erred when it considered Defendant's funding status under a jurisdictional analysis:
Id. at 802 n. 12 (citations omitted) (further concluding that the plaintiffs argument that the defendant's tax-exempt status made it subject to Title IX was not immaterial or wholly frivolous); see also Morrison v. Nat'l Australia Bank Ltd., ___ U.S. ___, 130 S.Ct. 2869, 2877, 177 L.Ed.2d 535 (2010) (explaining that a statute's extraterritorial reach raises a merits question and not a question of subject matter jurisdiction); Ayres v. Gen. Motors Corp., 234 F.3d 514, 519 n. 9 (11th Cir.2000) (noting that a plaintiffs failure to establish a violation of the federal mail and wire fraud statutes did not deprive the court of subject matter jurisdiction).
This case falls squarely within Amway and M.H.D. To establish liability under Title IX, Plaintiffs need to prove as an element of their case that Defendant is a Title IX funding recipient. See Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1293 (11th Cir.2007). Whether Defendant receives Title IX funding necessarily implicates the merits of Plaintiffs' case and, therefore, is an issue this court cannot consider under Rule 12(b)(1). Amway, 323 F.3d at 925.
Furthermore, as in M.H.D., Plaintiffs' claim is not so wholly insubstantial and frivolous that subject matter jurisdiction is inappropriate. As addressed more fully in Section III.C. below, the Eleventh Circuit has suggested, in circumstances similar to those present here, that entities may be liable under Title IX even if they receive federal funding indirectly. See, e.g., Williams, 477 F.3d at 1294 ("Williams has alleged that UGA, a funding recipient, has ceded control over one of its programs, the athletic department, to UGAA and provided extensive funding to UGAA. Notably, the [Supreme] Court has not resolved whether this is sufficient to make an entity
Doc. 1 ¶ 17. The complaint sufficiently alleges that Defendant is an indirect recipient of federal funding. In light of Williams, Plaintiffs' allegation that Title IX applies to Defendant is not frivolous or wholly insubstantial and, therefore, this court has subject matter jurisdiction over the case.
Defendant further argues that the court lacks subject matter jurisdiction because Plaintiffs' graduation mooted the case. Doc. 16 at 13-15. Plaintiffs correctly concede that their claims for injunctive and declaratory relief are now moot, but they argue that their damages claim remains viable. Doc. 20-1 at 8. In response, Defendant contends that Plaintiffs may not obtain damages against a non-recipient of federal funds. Doc. 21 at 10-11. However, Defendant's contention that damages are unavailable against it because it is not a recipient of federal funds assumes that Defendant is not a Title IX funding recipient, which is a legal conclusion that the court is unable to reach at this juncture.
Assuming Plaintiffs can establish that Defendant is a Title IX funding recipient, "a damages remedy is available for an action brought to enforce Title IX." Franklin v. Gwinnett County Public Schs., 503 U.S. 60, 76, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). While a student athlete's graduation will render her claims for declaratory or injunctive relief moot, see, e.g., Cook v. Colgate University, 992 F.2d 17, 19 (2d Cir.1993), her graduation does not moot her claim for damages. Pederson v. La. State Univ., 213 F.3d 858, 875 (5th Cir.2000) (graduation mooted student-athletes' claims for injunctive relief but not their claims for damages); see also Granger v. Klein, 197 F.Supp.2d 851, 879 (E.D.Mich.2002) ("Plaintiff has graduated from the High School, but has requested damages. A viable claim for damages generally avoids mootness of the action."); Logan v. Gary Cmty. Sch. Corp., 2008 WL 4411518, at *3 (N.D.Ind. Sept. 25, 2008) ("Because Plaintiff is no longer a student at West Side High School, an attempt to enjoin enforcement of the school rule, with nothing further, would be moot .... But, because he seeks damages ... those counts are not moot." (citations omitted)).
Defendant further asserts that dismissal is warranted under Rule 12(b)(6) because it is not a Title IX funding recipient. However, because Plaintiffs allege that Defendant is an indirect recipient of Title IX funding, their complaint states a claim for which relief may be granted.
Section 901(a) of Title XI, 20 U.S.C. § 1681(a), provides that "[n]o 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." The phrase a "program or activity" is defined to include "all of the operations of ... a college, university, or other postsecondary institution, or a public system of higher education ... any part of which is extended Federal financial assistance." 20 U.S.C. § 1687(2)(A). The definition further extends to entities "principally engaged in the business of providing education," 20 U.S.C. § 1687(3)(A)(ii), and entities created by two or more covered entities, 20 U.S.C. § 1687(4). The United States Department of Health, Education and Welfare defines recipient as:
34 C.F.R. § 106.2(i).
In NCAA v. Smith, the Supreme Court concluded that the NCAA's receipt of dues from its members did not trigger Title IX coverage. 525 U.S. 459, 468, 119 S.Ct. 924, 142 L.Ed.2d 929 (1999). The Court expressly declined to consider two alternate theories for holding the NCAA liable under Title IX, which the plaintiff raised for the first time on appeal: (1) the recipients ceded controlling authority over federally funded programs to the NCAA, and (2) the NCAA indirectly or directly received federal funding through the National Youth Sports Program ("NYSP"). Id. at 469-70, 119 S.Ct. 924.
Citing primarily to Third Circuit cases on the NCAA's potential Title IX liability, Defendant urges the court to find that Defendant lacks "controlling authority" over its members schools sufficient to bring it within Title IX's ambit. In Cureton v. NCAA, the Third Circuit found that the NCAA was not a Title VI
Crucially, however, in an opinion postdating Cureton and the Third Circuit's Smith opinion on remand, the Eleventh Circuit considered whether the University of Georgia ceded control over its athletic department to the University of Georgia Athletic Association, which did not directly receive federal funds. Williams, 477 F.3d at 1294. While not definitely resolving the issue, the court stated: "We are persuaded... by the analysis of the Western District of Michigan, noting that if we allowed funding recipients to cede control over their programs to indirect funding recipients but did not hold indirect funding recipients liable for Title IX violations, we would allow funding recipients to receive federal funds but avoid Title IX liability." Id. (citing Cmtys. for Equity v. Mich. High Sch. Athletic Ass'n, 80 F.Supp.2d 729, 733-34 (W.D.Mich.2000)).
Plaintiffs allege that Defendant "governs, regulates, operates, and controls" the intercollegiate athletics of its member schools and those schools "delegate and assign the authority to do so" to Defendant. Doc. 1 ¶ 17. Accepting these facts as true, the court concludes that, as in Williams, Plaintiffs sufficiently allege that Defendant is a Title IX funding recipient to survive a motion to dismiss. Plaintiffs are entitled to discovery to determine whether the evidence substantiates their theory.
The court notes that, throughout their response, Plaintiffs suggest that the court should not dismiss their complaint because they intend to (1) amend it to add other defendants, including Defendant's member schools, and (2) move for class certification. See Doc. 20 at 1-2; Doc. 20-1 at 3, 9-10. "A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed. R. Civ. P. 15(a)(1). Therefore, Plaintiffs had until July 8, 2010, to amend their complaint without the court's leave. Now, Plaintiffs may only amend their complaint with Defendant's consent, which appears unlikely, or the court's permission. Fed. R. Civ. P. 15(a)(2). If Plaintiffs wish to amend their complaint, they should seek leave to do so within twenty-one (21) days of the date of this Order. Furthermore, they should file a proposed amended complaint with their motion for leave.
Plaintiffs further indicate their intention to move for class certification "in order to obtain a declaratory judgment, preliminary and permanent injunctions, as well as monetary damages, attorneys' fees and costs, [and] any other remedies available at law." Doc. 20-1 at 9-10. However, under Eleventh Circuit precedent, Plaintiffs appear to be foreclosed from moving for class certification to obtain declaratory and injunctive relief because the named Plaintiffs' declaratory and injunctive claims are moot. See Tucker v. Phyfer, 819 F.2d 1030, 1033 (11th Cir.1987) ("In a class action, the claim of the named plaintiff, who seeks to represent the class, must be live both at the time he brings suit and when the district court determines whether to certify the putative class. If the plaintiffs claim is not live, the court lacks a justiciable controversy and must dismiss the claim as moot.").
For the reasons stated above, Defendant's motion to dismiss is DENIED. Nevertheless, the court is cognizant of the need to determine promptly the scope of this action. Therefore, if Plaintiffs wish to amend their complaint, they should seek leave to do so within twenty-one (21) days. Defendant's obligation to answer Plaintiffs' complaint is suspended until the court determines whether amendment is appropriate. Moreover, if Plaintiffs still contend that this case can and should be certified as a class action at some future point in the proceedings for both equitable and monetary relief, Plaintiffs should file a brief within twenty-one (21) days explaining why class certification remains a viable option for declaratory and injunctive relief.
