University of Texas at Austin v. Vratil

PUBLISH

UNITED STATES COURT OF APPEALS
Filed 9/17/96
FOR THE TENTH CIRCUIT

UNIVERSITY OF TEXAS AT
AUSTIN, UNIVERSITY OF TEXAS
AT EL PASO, UNIVERSITY OF
TEXAS PAN AMERICAN,
UNIVERSITY OF TEXAS AT SAN No. 96-3220
ANTONIO, UNIVERSITY OF TEXAS
AT ARLINGTON, TEXAS TECH
UNIVERSITY, STEPHEN F. AUSTIN
UNIVERSITY, UNIVERSITY OF
NORTH TEXAS, ANGELO STATE
UNIVERSITY, LAMAR
UNIVERSITY - BEAUMONT, SAM
HOUSTON STATE UNIVERSITY,
SOUTHWEST TEXAS STATE
UNIVERSITY, TEXAS A&M
UNIVERSITY, UNIVERSITY OF
HOUSTON, THE BOARD OF
TRUSTEES OF THE CALIFORNIA
STATE UNIVERSITY, which is the
State of California acting in a higher
education capacity, on behalf of its
NCAA Division I Member Campuses:
California State University,
Northridge; California State
University, Fresno; California State
University, Fullerton; California State
University, Long Beach; California
Polytechnic State University, San Luis
Obispos; California State University,
Sacramento; San Diego State
University; San Jose State University;
University of Utah; University of New
Mexico; University of Wyoming; and
LOUISIANA STATE UNIVERSITY
BOARD OF SUPERVISORS, WHICH
IS THE STATE OF LOUISIANA
ACTING IN A HIGHER
EDUCATION CAPACITY, ON
BEHALF OF ITS NCAA DIVISION I
CAMPUSES: UNIVERSITY OF
NEW ORLEANS AND THE
LOUISIANA STATE UNIVERSITY
BATON ROUGE CAMPUS,

Petitioners,

v.

THE HONORABLE KATHRYN H.
VRATIL, District Judge,

Respondent,

NORMAN LAW; ANDREW GREER;
PETER HERRMANN; MICHAEL
JARVIS, JR.; CHARLES M. RIEB;
WILLIAM HALL; DOUG
SCHREIBER; LAZARO COLLOZZO;
ROBIN DREIZLER; FRANK CRUZ,
individually and on behalf of himself
and all others similarly situated,

Real Parties in Interest.

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 ORDER

Before EBEL and MURPHY, Circuit Judges.

Petitioners are National Collegiate Athletic Association (NCAA) Division I

state colleges and universities. They seek a writ of prohibition to vacate those

portions of the district court’s order of sanctions dated May 29, 1996, referring to

them as “real parties in interest” and requiring them to respond to plaintiffs’

interrogatories. See Law v. NCAA, 167 F.R.D. 464 (D. Kan. 1996).

“[A] writ of prohibition is a drastic and extraordinary remedy which should

be granted only when the petitioner has shown his right to the writ to be clear and

undisputable and that the actions of the court were a clear abuse of discretion.”

Sangre de Cristo Community Mental Health Serv., Inc. v. United States (In re

Vargas), 723 F.2d 1461, 1468 (10th Cir. 1983). This court looks to five

nonconclusive factors when determining whether to grant the writ: (1) the party

seeking the writ must have no other adequate means to secure the relief desired;

(2) the petitioning party will be damaged or prejudiced in a way not correctable

on appeal; (3) the district court’s order constitutes an abuse of discretion; (4) the

district court’s order represents an often-repeated error and manifests a persistent

disregard of the federal rules; and (5) the district court’s order raises new and

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important problems or issues of law of first impression. Pacificare of Okla., Inc.

v. Burrage, 59 F.3d 151, 153 (10th Cir. 1995) (explaining similar mandamus

standard).

NCAA, defendant below, is a voluntary unincorporated association. Jones

v. Wichita State Univ., 698 F.2d 1082, 1083 (10th Cir. 1983). As such, it is

regarded under Kansas law as an aggregate of its members, and lacks capacity to

sue or be sued in its own name. See Frey, Inc. v. City of Wichita, 715 P.2d 417,

418 (Kan. Ct. App. 1986). The Federal Rules, however, allow associations such

as NCAA to be sued in their own name in federal court for purpose of enforcing a

federal right. See Fed. R. Civ. P. 17(b)(1). Acting under this provision,

plaintiffs sued NCAA, asserting violation of federal antitrust statutes.

The district court granted plaintiffs summary judgment against NCAA on

the issue of liability. It ultimately ordered NCAA to respond to certain

interrogatories on damage issues. NCAA failed to comply with this order. In

response to plaintiffs’ request for sanctions, the district court determined that

since NCAA’s party status under Fed. R. Civ. P. 17(b) was “merely procedural,”

and NCAA had no jural existence under Kansas law, NCAA’s member

institutions were the “real parties in interest” before the court. Relying on this

characterization, the district court ordered each member institution to respond

directly to the interrogatories propounded to NCAA.

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 Petitioners object to the district court’s order on two grounds, asserting

they are not parties to the action who can be ordered to respond to interrogatories,

and that they are entitled to Eleventh Amendment immunity from being treated as

parties for discovery purposes in this damages action. We agree with petitioners

on both grounds, 1 and grant them the requested writ of prohibition.

The district court erred in characterizing the unserved, nonparty petitioners

as “real parties in interest” for discovery purposes, and acted without jurisdiction

in ordering them to respond to interrogatories propounded under Rule 33. Rule

17(b)(1), which provides for suit against an unincorporated association “for the

purpose of enforcing for or against it a substantive right,” recognizes the NCAA

as the procedural party defendant before the court. 2 This party status clearly

1
We do not, in this ruling, decide whether these or other state colleges and
universities are, in fact, entitled to Eleventh Amendment immunity as arms of
their respective states. See Seibert v. Univ. of Okla. Health Services Ctr., 867
F.2d 591, 594-95 (10th Cir. 1989). Although we presume, without deciding, that
most if not all of the state colleges and universities will be entitled to Eleventh
Amendment immunity, if the plaintiffs in this action wish to put this matter at
issue as to any such institution, the district court may ultimately need to address
that matter on remand.
2
Use of the phrase “real party in interest” in this context is somewhat
unfortunate and misleading. “Real party in interest,” as used in Fed. R. Civ.
P. 17(a), refers to the principle that an action “should be brought in the name of
the party who possesses the substantive right being asserted under the applicable
law.” 6A Charles Allen Wright et al., Federal Practice and Procedure § 1541 (2d
ed. 1990). The requirement of bringing suit in the name of the real party in
interest properly applies only to plaintiffs, see 6A id. § 1542, and differs from
“capacity to be sued,” which is at issue here.

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extends to party discovery. See Sperry Prods., Inc. v. Association of Am.

Railroads, 132 F.2d 408, 411 (2d Cir. 1942), cert. denied, 319 U.S. 744 (1943)

(recognizing that an association’s jural existence under Rule 17(b)(1) extends

beyond service of process to other procedural incidents under the Rules). 3

The Federal Rules provide a clear-cut procedure for obtaining responses to

interrogatories from an association such as NCAA. Under Fed. R. Civ. P. 33(a),

interrogatories may only be directed to a party to an action. Where that party is

an association, Rule 33(a) allows it to select an officer or agent to respond on its

behalf. Id.; see also 8A Charles Allen Wright et al., Federal Practice and

Procedure § 2172 (2d ed. 1990). In the event the officer or agent fails to respond,

enforcement of the court’s orders regarding discovery is obtained under Rule 37,

which, notably, contains no procedure for requiring responses from unserved,

3
We disagree with the district court that recognition of the NCAA as the
entity before the court for discovery purposes offends Erie R. Co. v. Tompkins,
304 U.S. 64 (1938). Discovery is “a procedural matter, which is governed by the
Federal Rules of Civil Procedure.” Wilson v. Gillis Advertising Co., 145 F.R.D.
578, 580 (N.D. Ala. 1993), quoting Mid Continent Cabinetry, Inc. v. George Koch
Sons, Inc., 130 F.R.D. 149, 151 (D. Kan. 1990). This is a federal question case,
where a federal rule dictates the status of the party before the court, and where
the issue before the court is applicability of that status in the context of
application of other federal rules concerning discovery. Erie does not require
consideration of NCAA’s status under state law for purposes of deciding the
discovery issue. See Wilson, 145 F.R.D. at 580 (federal question case was “not
within the aegis of Erie” for purpose of determining discovery issue); Fireman’s
Fund Ins. Co. v. S.E.K. Constr. Co., 436 F.2d 1345, 1352 (10th Cir. 1971) (Erie
does not apply where federal question is involved).

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nonparty members of the association. The district court’s order here was not

authorized by, and is in contravention of, these federal rules concerning

discovery.

Moreover, petitioners, as state colleges and universities, are entitled to

Eleventh Amendment immunity from being treated as parties. Seminole Tribe of

Fla. v. Fla., 116 S. Ct. 1114, 1124 (1996). Eleventh Amendment immunity

entitles a state not only to protection from liability, but also from suit, including

the burden of discovery, as a party, within the suit. See Puerto Rico Aqueduct &

Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 143-44 (1993). Plaintiffs’

reliance on Laxalt v. McClatchy, 109 F.R.D. 632, 634-35 (D. Nev. 1986), for the

proposition that the Eleventh Amendment does not shield nonparty state entities

from discovery, is misplaced. In Laxalt, discovery was sought under Fed. R. Civ.

P. 45, which, in contrast to Fed. R. Civ. P. 33, specifically provides a procedure

applicable to nonparties. Here, the court ordered enforcement of responses to

Rule 33 interrogatories under Fed. R. Civ. P. 37, thereby treating the state

colleges and universities as “parties” and bringing them squarely within the

protections discussed in Puerto Rico Aqueduct.

We conclude that petitioners have shown their entitlement to the requested

writ of prohibition under the high standard associated with the writ. We grant

relief only as to the state Division I members, however. Although some private

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Division I members have appeared in this action as amici curiae, none of them has

sought to join as a petitioner. Amici may only support relief claimed by a party to

the proceeding. See, e.g., Newark Branch, N.A.A.C.P. v. Town of Harrison, 940

F.2d 792, 808 (3d Cir. 1991); United States v. Louisiana, 718 F. Supp. 525, 528

(E.D. La. 1989), appeal dismissed, 493 U.S. 1013 (1990); United States v. E.I. Du

Pont De Nemours & Co., 13 F.R.D. 487, 488-89 (N.D. Ill. 1953). 4

Petitioners’ application for a writ of prohibition is GRANTED. The district

court’s reference to state NCAA Division I members as “real parties in interest”

for discovery purposes is VACATED, as is its order requiring NCAA Division I

state colleges and universities to answer plaintiffs’ interrogatories. The stay

entered by this court in its order of July 5, 1996, is DISSOLVED.

4
We previously declined to grant NCAA mandamus relief from the district
court’s order; nothing in this order should be read as granting relief to the NCAA
from its obligations under that order.

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