Eppley et al v. University of Delaware et al

Filing 27

MEMORANDUM. Signed by Judge Gregory M. Sleet on 1/12/2015. (mdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JENNIFER EPPLEY and
DARYL EPPLEY,
Plaintiffs,

v.
THE UNIVERSITY OF DELAWARE,
THE BOARD OF TRUSTEES OF THE
UNIVERSITY OF DELAWARE, and
ROLF VAN DE KERKHOF,
Defendants.

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C.A. No. 13-cv-99 (GMS)

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MEMORANDUM
I.

INTRODUCTION
The plaintiffs, Jennifer Eppley ("Ms. Eppley") and Daryl Eppley ("Mr. Eppley")

(collectively, "the Eppleys"), filed a Complaint (D.I. 1) against the University of Delaware, the
Board of Trustees 0f the University of Delaware, and Rolf Van de Kerkhof (collectively, "UD"),
on January 17, 20 l3. (Id.) In their Complaint, 1 the Eppleys allege that UD failed to honor an
athletic scholarship agreement made by the then-coach of the field hockey team, Carol Miller
("Coach Miller"). (D.I. 11 at~ 72.) On September 3, 2014, following completion of discovery, 2

1

The Eppleys' Complaint lists six counts-(!) Title IX; (II) Violation of Due Process Rights; (III) Negligent
Misrepresentation; (IV) Fraudulent Inducement; and (V) Intentional and Negligent Infliction of Emotional Distress;
and (VI) Intentional and Negligent Infliction of Physical Injuries. Count II was dismissed as to all defendants by the
court on May 23, 2013. (See D.I. 9.) The Eppleys' Answering Brief (D.I. 25) does not address counts V or VI and
are thus waived. See Glover v. City of Wilmington, 966 F. Supp. 2d 417, 428 (D. Del. Aug. 7, 2013) (finding that
plaintiff waived claim by "failing to address it in her responsive brief to [defendant's] motion for summary
judgment.").
2 Counsel for the Eppleys, Charles Snyderman, requested additional discovery in the body of the Answering
Brief to the defendants' Motion for Summary Judgment. (See D.I. 25 at 4.) Discovery closed on August 1, 2014.
Despite ample opportunity, and with no stated reason for their failure to do so, the Eppleys served no discovery
requests and noticed no depositions before the deadline. It was not until August 22, 2014, that the Eppley's filed
Notice ofa Rule 30(b)(6) deposition for an uncertain date. (D.I. 19.) On August 22, 2014, prior to filing their Notice,
."Mr. Snyderman requested defendants' counsel agree to an extension of deadlines. (See D.I. 26, Ex. A.) Counsel for
. the defendants did not agree to Mr. Snyderman's request. (Id.) While the defendants' deposition of the Eppleys

UD filed a Federal Rule of Civil Procedure 56(c) Motion for Summary Judgment (D.I. 20),
asserting that the Eppleys' allegations are meritless because the scholarship at issue was
guaranteed for only one year as is evidenced by the contract the Eppleys both signed. (D.I. 21 at
6.) Presently before the court is UD's Motion for Summary Judgment. (D.I. 20.) For the reasons
that follow, the court will grant UD's motion.

II.

BACKGROUND
The plaintiffs in this case are Jennifer Eppley and her father, Daryl Eppley. Ms. Eppley

played on her high school's field hockey team and was recruited by various universities to play
field hockey during her final years of high school. (D.I. 1 at if 10-12, 16.) Members of the UD
field hockey coaching staff first reached out to Ms. Eppley in December, 2008. (Id.) On June 8,
2009, Ms. Eppley and Coach Miller had an email exchange regarding her participation in an
upcoming UD field hockey camp. (Id.

if 14-15.)

Under National Collegiate Athletic Association

(''NCAA") rules, July 1, 2009 was the earliest date that college coaches were permitted to contact
high school athletes for recruiting purposes. (Id.

ii 18.)

Coach Miller contacted Ms. Eppley on

July 1, 2009 and left her a message expressing a desire to have Ms. Eppley play on UD's team.
(Id.)

occurred after the close of discovery, the court is confident that the delay was caused by Mr. Snyderman's lag in
scheduling rather than the result of any dilatory tactics by the defendants. While the court often grants extensions,
Mr. Snyderman's complete failure to comply with the scheduling order or to provide a Rule 56(f) affidavit is fatal to
his request and viewed by the court, at best, as an egregious oversight. See Dowling v. City ofPhiladelphia, 855 F.2d
136, 139-40 (3d Cir. Aug. 26, 1988) ("This Court has interpreted Rule 56(f) as imposing a requirement that a party
seeking further discovery in response to a summary judgment motion submit an affidavit specifying, for example,
what particular information is sought; how, if uncovered, it would preclude summary judgment; and why it has not
previously been obtained."); Koehnke v. City ofMcKeesport, 350 F. App'x 720, 723 (3d Cir. Oct. 28, 2009) ("A party
that cannot present facts essential to justify its opposition may-and, indeed, must-show by affidavit, how evidence
of such facts would preclude summary judgment.") (quoting Bradley v. United States, 299 F.3d 197, 206 (3d Cir.
2002)); see also Koplove v. Ford Motor Co., 795 F.2d 15, 18 (3d Cir. 1986) (finding that party's failure to conduct
expert discovery within given period imposed "obligation to provide the court with a record which affirmatively
demonstrates, with specificity, diligent efforts on his or her part and unusual circumstances which have frustrated
those efforts.").

2

In September 2009, during Ms. Eppley's "official visit" to UD, Ms. Eppley and her parents
had a meeting with Coach Miller in her office. (Id.

if 20.) Ms. Eppley asserts that during this

meeting, in the presence of both of her parents, Coach Miller orally offered Ms. Eppley "a
scholarship which she said would be 35% in [Ms. Eppley's] first year, 75% in year two, and 75%
or more in years three and four." (Id.) Mr. Eppley sent an email to Coach Miller on September
24, 2009 for clarification regarding Ms. Eppley's scholarship. (D.I. 22, Ex. I); see D. Eppley Tr.
at 37:3-7. In her response, Coach Miller clarified that "Jenn will be guaranteed to receive the same
or greater (not less than) percentage of scholarship for years 3 and 4 that she is receiving for year
2." (D.I. 22, Ex. I.)
On January 21, 2010, Ms. Eppley received a letter from Coach Miller informing her that
she had been selected to receive an athletic scholarship to the University of Delaware. (See D.I.
22, Ex. A.) The amount, duration, conditions, and terms of the award offered to Ms. Eppley were
set forth in writing in an Athletic Grant-In-Aid document (the "GIA Contract") enclosed with the
letter. (See id., Ex. B.) The GIA Contract offered Ms. Eppley a grant in the amount of $11,512.90
(equal to 35% of the tuition and fees that would have been owed that year by an out-of-state
student) for the period beginning August 31, 2010 and ending May 28, 2011. 3 (Id.) The GIA
Contract was signed and dated by Jennifer and Daryl Eppley on February 3, 2010. (Id.) On the
same day, the Eppleys signed a National Letter of Intent ("NLI"). (Id., Ex. E.) The NLI includes
the following language above the Eppleys' signatures, "[m]y signature on this NLI nullifies any
agreements, oral or otherwise, which would release me from the conditions stated within this NLI."
(Id.)

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In addition to the specific date range listed on the GIA Contract, the following line instructs that "[a]ll
grants, by N.C.A.A. regulations are awarded for a period of one year only." (D.1. 22 at Ex. B.)

3

During Ms. Eppley's first semester, Coach Miller announced her retirement and left the
UD field hockey program. (D.I. 1 at ii 36.) Rolf van de Kerkhof ("Coach Rolf') was hired as the
new head field hockey coach shortly thereafter. (Id.

ii 37.) The Eppleys assert that the number,

length and intensity of practices were increased dramatically under Coach Rolf. (Id.

ii 40.)

On March 21, 2011, Coach Rolf informed Ms. Eppley that based on her performance, her
scholarship was going to be reduced to 20% during her second year on the team. 4 (Id.

ii 47.) Ms.

Eppley subsequently received a letter from Student Financial Services formally notifying her that
her athletically related financial aid was being reduced for the 2011-2012 years to 20%. (Id.
Ms. Eppley filed

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ii 49.)

appeal and attended an administrative hearing in an attempt to have her

scholarship amount increased. (Id.

iMf 54-60.) Ms. Eppley contacted Coach Miller by email prior

to her appeal hearing. (D.I. 22, Ex. H.) Ms. Eppley explained Coach Rolfs decision to cut her
scholarship and stated that Coach Miller could help her in the appeal process "by letting the
committee know that my financial aid this year is to be 75% of a full scholarship." (Id.) Notably,
Coach Miller informed Ms. Eppley that "[a]n email from me stating that I would· have renewed
your scholarship will not have any validity in your hearing." (Id.) In a written decision the hearing
Board stated that it "finds that the reduction of Ms. Eppley's grant-in-aid for the 2011-2012
academic year was justified and appropriate, and on that basis denies Ms. Eppley's appeal." (D.I.
1 ii 60.) Ms. Eppley resigned from the field hockey team prior to receiving the hearing Board's
written decision. See J. Eppley Tr. at 86:1-14.

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Coach Rolf advised Ms. Eppley that her base scholarship for the following academic year would be reduced
from 35% to 20%, but Coach Rolf provided Ms. Eppley an opportunity to increase her scholarship to 40% if she met
certain performance goals. (See D.I. 21 at 11; D.I. 22, Ex. G at P0035-36.)

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III.

STANDARDOFREVIEW
Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate "if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." See also Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). The moving party bears the burden of proving that no genuine issue of material
fact exists. See Matsushita Elec. Indus. Co., Ltd. ·v. Zenith Radio Corp., 475 U.S. 574, 585 n.10
(1986). A fact is material if it "could affect the outcome" of the proceeding. Lamont v. New
Jersey, 637 F.3d 177, 181 (3d Cir. 2011). There is a genuine issue "if the evidence is sufficient to

permit a reasonable jury to return a verdict for the non-moving party." Id. When determining
whether a genuine issue of material fact exists, the district court must view the evidence in a light
most favorable to the nonmoving party and draw inferences in that party's favor. See Wishkin v.
Potter, 476 F.3d 180, 184 (3d Cir. 2007). If the moving party is able to demonstrate an absence

of disputed material facts, the nonmoving party must then "come forward with 'specific facts
showing that there is a genuine issue for trial."' Matsushita, 475 U.S. at 587 (citing FED. R. CIV.
P. 56(e)).
Importantly, the mere existence of some evidence in support of the nonmoving party will
not prove sufficient for denial of a summary judgment motion. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). Rather, the nonmoving party must present enough evidence to

enable a jury to reasonably find for it on that issue. Id. Specifically, the party opposing summary
judgment "must present more than just 'bare assertions, conclusory allegations or suspicions' to
show the existence of a genuine issue." Podobnik v. US. Postal Serv., 409 F.3d 584, 594 (3d Cir.
2005) (quoting Celotex Corp., 4 77 U.S. at 325). Thus, a nonmoving party asserting that a material

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fact is in dispute must support this assertion by: "(A) citing to particular parts of materials in the
record, including depositions, documents, electronically stored information, affidavits or
declarations, stipulations, ... admissions, interrogatory answers, or other materials; or (B) showing
that the materials cited [by the opposing party] do not establish the absence ... of a genuine dispute
.... " See

FED.

R. CIV. P. 56(c)(l). If the nonmoving party fails to make a sufficient showing on

an essential element of its case for which it has the burden of proof, the moving party is entitled to
._.<f(,...

judgment as a matter of law. See Ce/Otex Corp., 477 U.S. at 322.

IV.

DISCUSSION
UD claims that the Eppleys cannot establish their Title IX claims because there is no

evidence of the University-wide, gender-based disparate treatment required to prove a Title IX
violation. (D.I. 21 at 6.) UD further contends that the Eppleys have not made the required
showings for either negligent misrepresentation or fraudulent inducement. (Id. at 7.) Conversely,
the Eppleys assert that Summary Judgment must be denied because there is a dispute as to a
material fact regarding promises made by UD to the Eppleys relating to Ms. Eppley's athletic
scholarship. (See D.I. 25 at 4.) The court examines the parties' arguments below.

A.

There is no Evidence in the Record to Support the Eppleys' Title IX Claim.

UD asserts that the Eppleys' Title IX claim is premised largely on the allegations that Ms.
Eppley's scholarship was reduced while some male students' scholarships allegedly were not.
(D.1. 21 at 15.) Ms. Eppley relies on statements from four male football players who apparently
told her that they too were promised scholarships beyond one year. (Id. at 16.) She testified at her
deposition that she was unaware of whether the male athletes in fact received what they told her
they were promised or whether the scholarships were adjusted on an annual basis. (See J. Eppley
Tr. 67:13-70:14.) UD asserts that Ms. Eppley's claim, even if true, hardly reflects the type of

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University-wide, gender-based disparate treatment required to prove a Title IX violation. (D.I. 21
at 6.) In addition, UD provided evidence showing that male students were, in fact, also provided
lesser scholarships. (See D.I. 22, Ex. M.)
The court concludes that summary judgment is appropriate as to the Eppleys' Title IX
claim because there is no evidence in the record beyond Ms. Eppley' s bare assertions and
conclusory allegations to support their assertions of disproportional treatment. No evidence in the
record supports the Eppleys' contentions, therefore, their Title IX claim fails as a matter oflaw.

B.

The Eppleys have not made
Misrepresentation.

the

Required

Showing for Negligent

In Delaware, negligent misrepresentation requires ( 1) a pecuniary duty to provide accurate
information, (2) the supplying of false information, (3) failure to exercise reasonable care in
-obtaining or communicating information; and (4) a pecuniary loss caused by justifiable reliance
upon the false information. 5 See Atwell v. RHIS Inc., 2006 WL 2686532 (Del. Super. Aug. 18,
2006); see also, e.g., H-M Wexford LLC v. Encorp. Inc., 832 A.2d 129, 147 n.44 (Del. Ch. May
27, 2003). In addition, negligent misrepresentation is a viable claim in Delaware only when there .
is a fiduciary relationship between the parties. See Airborne Health, Inc. v. Squid Soap, 984 A.2d
126, 144 (Del. Ch. 2009); see also, e.g., Krahmer v. Christie's Inc., 903 A.2d 773, 7_84 (Del. Ch.
2006) ("A plaintiff may only recover for negligent misrepresentation where there is a fiduciary or
special relationship between the parties.").
The Eppleys made no attempt to satisfy the elements of this claim. Instead, they rely
entirely on allegations that Coach Miller promised Ms. Eppley a multi-year scholarship, that Ms.

5 Counsel

for the Eppleys cite no legal authority and propose a list of elements for negligent misrepresentation
that has no support in Delaware. (See D.I. 25 at 7.)

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Eppley ignored other opportunities, and that Coach Miller made the promise to induce Ms. Eppley
to attend the University of Delaware. (D.I. 25 at 7.)
At the time Coach Miller was recruiting Ms. Eppley, there was no fiduciary relationship
between the Eppleys and Coach Miller. While she had obligations to abide by NCAA and
University rules, neither established a duty to act as a fiduciary on behalf of Ms. Eppley or her
parents. Without an underlying fiduciary relationship, the Eppleys cannot succeed on Count III.
Even if Coach Miller had promised Ms. Eppley that she would receive a 75% scholarship her
second year, any reliance on Coach Miller's alleged statements was not justifiable in the face of
the GIA Contract and the NLI. Ms. Eppley testified that she was aware of the prohibition against
multi-year promises of financial aid. J. Eppley Tr. at 20:22-21 :9 ("Q. Do you recall the portion of
the [NCAA] manual that says that the university may not promise financial aid to a student athlete
for a duration of more than one year? A. Yes. Q. Were you aware of that at the time that you
signed your letter of intent [on February 3, 2010]? A. Yes."). The Eppleys signing of the NLI
"nullifie[ d] any agreements, oral or otherwise." Thus, any other agreements which may have been
made between Coach Miller and the Eppleys were null and void as of the signing of the NLI. The
documents that the Eppleys signed directly contradict their reliance on Coach Miller's alleged
representations.

I~

light of these documents any reliance on the promise was unreasonable.

The court finds that the Eppleys have not presented enough evidence to enable a jury to
reasonably find for them on this claim. 6 UD has demonstrated an absence of disputed material
facts and the Eppleys have failed to come forward with specific facts showing that there is a

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UD also asserts that the Eppleys' claim is barred under theories of acquiescence, waiver and estoppels. (See
D.I. 21 at 20.) Because the court determines that the Eppleys have not made the necessary showing a discussion of
these additional grounds for judgment in favor of the defendants is unnecessary.

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genuine issue for trial. As such, the court is persuaded that UD has met its burden and summary
judgment is appropriate.

C.

The Eppleys have not made the Required Showing for Fraudulent Inducement.

To prevail on a fraudulent inducement claim, the Eppleys must satisfy the elements of
common law fraud. See Haase v. Grant, 2008 WL 372471 (Del. Ch. Feb. 7, 2008). The elements
include: (1) a false representation of material fact; (2) the defendant's knowledge or belief that the
representation was false, or was made with reckless indifference to the truth; (3) the defendant's ··
intent to induce the plaintiff to act or to refrain from acting; (4) the plaintiffs action or inaction
taken in justifiable reliance upon the representation; and (5) damage to the plaintiff as a result of
such reliance. DCV Holdings, Inc. v. ConAgra, Inc., 889 A.2d 954, 958 (Del. 2005).
As was previously discussed with regard to the Eppleys' negligent misrepresentati~n claim,
no evidence was submitted to establish each of the elements of fraudulent inducement. While the
Eppleys argue that acceptance of the UD scholarship was the result of Miller's statement, the
Eppleys subsequently disclaimed all previous agreements and any reliance on Miller's statement
was, therefore, unreasonable. In consideration of the relevant standard the court concludes that the
Eppleys have not made the required showing for fraudulent inducement.

V.

CONCLUSION
For the aforementioned reasons, the court will grant UD's Motion for Summary Judgment

(D.I. 20.)

Dated: January f l-; 2015

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