Allen v. Jacksonville Univ.

• Decision Date: 14 December 2022
• Docket Number: 3:21-cv-178-MMH-LLL
• Parties: ASHLEY ALLEN, Plaintiff, v. JACKSONVILLE UNIVERSITY, Defendant.
• Court: U.S. District Court — Middle District of Florida

ASHLEY ALLEN, Plaintiff,
v.
JACKSONVILLE UNIVERSITY, Defendant.

No. 3:21-cv-178-MMH-LLL

United States District Court, M.D. Florida, Jacksonville Division

December 14, 2022

ORDER

MARCIA MORALES HOWARD, United States District Judge.

THIS CAUSE is before the Court on Defendant Jacksonville University's (JU) Motion to Dismiss Plaintiff's Corrected Class Action Complaint, (Doc. 11; Motion), and Defendant's Supplemental Brief on Fla. Stat. § 768.39. (Doc. 36; JU's Supp'l Brief). Plaintiff Ashley Allen filed Plaintiff's Opposition to Motion to Dismiss Plaintiff's Corrected Class Action Complaint on June 4, 2021, (Doc. 21; Response), to which JU filed a Reply on June 12, 2021. (Doc. 31; Reply). On August 25, 2021 Allen also filed Plaintiff's Supplemental Brief on Florida Statute § 768.39, (Doc. 38; Allen's Supp'l Brief), to which JU filed its Reply on September 27, 2021. (Doc. 43; JU's Supp'l Reply).

BACKGROUND

In early 2020, the COVID-19 pandemic upended 21st century life. As infection rates climbed to alarming numbers, JU-a private university-made

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several policy changes. On March 11, the school moved classes online. See Corrected Class Action Complaint (Doc. 6; Complaint) ¶ 28. Days later, JU closed campus facilities and encouraged students to leave their residence halls and return home. Id. ¶¶ 30-31. These changes remained in place for the duration of the semester. Id. ¶¶ 23, 29.

Plaintiff Ashley Allen was a student at JU during the spring 2020 semester. Id. ¶ 1. On February 23, 2021, Allen, on behalf of herself and seeking to represent similarly situated students, sued the school, alleging that JU's response to COVID-19 violated various contracts that existed between the two. (Doc. 1 ¶¶ 94, 128, 150). In her Complaint, Allen asserts that JU, in exchange for tuition and fee payments, promised to provide in-person instruction, access to on-campus facilities, and housing. See Complaint ¶¶ 92-93, 125, 147. According to Allen, JU breached these contracts when it moved classes online, closed the campus, cancelled student activities, and encouraged students to leave the residence halls. Id. ¶¶ 94 (Count I), ¶ 128 (Count III), ¶ 150 (Count V). As an alternative to each breach of contract claim, Allen brings a claim for unjust enrichment. Id. ¶¶ 104-105 (Count II), ¶¶ 135-36 (Count IV), ¶¶ 15657 (Count VI). She also brings one count alleging a violation of Florida's Deceptive and Unfair Trade Practices Act (FDUTPA). Id. ¶¶ 168-81 (Count VII).

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Pending before the Court is JU's Motion seeking dismissal of Allen's Complaint for failure to state a claim under Rule 12(b)(6), Federal Rule(s) of Civil Procedure. See generally Motion. After JU filed the Motion, the Florida legislature enacted Florida Statute section 768.39. The statute immunizes educational institutions from COVID-19 related lawsuits that seek tuition and fee reimbursements. Fla. Stat. § 768.39(1). In JU's Supplemental Brief, JU contends that section 768.39 requires dismissal of the Complaint. See JU's Supp'l Brief at 1-6. In doing so, JU argues that the statute can be applied retroactively because it is merely remedial and procedural, and alternatively, because the legislature intended it to apply retroactively and doing so violates no constitutional principle. Id. at 6-17. Allen disagrees. See generally Allen's Supp'l Brief. Indeed, Allen raises a number of constitutional challenges to the retroactive application of Florida Statute section 768.39 to defeat her claims. Id. Despite raising these constitutional challenges, Allen did not file a notice of the constitutional questions, nor did she serve notice of her challenges on Florida's Attorney General, as required by Rules 5.1(a)(1)(B), (2), Federal Rules of Civil Procedure. After the Court brought this failure to Allen's attention, she filed a notice on March 25, 2022, advising that she had now provided the required notice. (Doc. 54).^[1] In accordance with 28 U.S.C. § 2403(b)^[2]

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the Court then certified the constitutional questions to the Florida Attorney General and also stayed the case to allow her to determine whether to intervene in the case. (Doc. 55). The Florida Attorney General declined to respond. Accordingly both the arguments in the Motion and JU's contention that that Florida Statute section 768.39 requires dismissal of this action are ripe for the Court's consideration. The Court will begin its analysis with JU's reliance on Florida Statute section 768.39, before turning to JU's contention that Allen's Complaint is due to be dismissed for failure to state a claim.

DISCUSSION

I. Florida Statute section 768.39

Because the legislature enacted section 768.39 after Allen filed this action and the statute could extinguish Allen's claims, the Court must determine as a threshold issue whether the statute can be applied to her claims.

A. Legal Standard Applicable to Allen's Constitutional Challenge

“Courts ordinarily apply the law in effect at the time of its decision.” Tallahassee Mem Reg'l Med. Ctr v. Bowen, 815 F.2d 1435, 1454 n.40 (11th Cir. 1987).

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However, under Florida law, when a statute affects substantive rights, there is a presumption against its retroactive application. Arrow Air, Inc. v. Walsh, 645 So.2d 422, 424 (Fla. 1994). To rebut the presumption, the statute must satisfy a two-pronged test: first, there must be clear intent for the legislation to apply retroactively, and second, the retroactive application must be constitutionally permissible. Metro. Dade Cty. v. Chase Fed. Hous. Corp., 737 So.2d 494, 499 (Fla. 1999).

Notably, the presumption against retroactive application does not apply when a statute is purely procedural or remedial. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla. 1994). Such statutes are not “truly retroactive” because they do not attach legal consequences to events that occurred before their enactment. Love v. State, 286 So.3d 177, 187 (Fla. 2019) (citing Landgraf v. USI Film Prod., 511 U.S. 244, 275 (1994)). As a result, remedial and procedural statutes apply to cases regardless of whether the case was pending when the statute was enacted. Alamo Rent-A-Car, 632 So.2d at 1358.

Here, JU contends that section 768.39 applies retroactively. First, JU argues that the statute's provisions are procedural and remedial, not substantive. See JU's Supp'l Brief at 6-12. And second, to the extent they are substantive, JU maintains that the presumption against retroactivity has been rebutted. Id. at 12-13. The Court disagrees.

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B. Framework of Section 768.39

In response to COVID-19 related lawsuits, the Florida legislature enacted section 768.39 to shield educational institutions from certain claims arising from the response to COVID-19. In subsection (1), the legislature set forth its purpose and findings:

(1) The Legislature finds that during the COVID-19 public health emergency, educational institutions had little choice but to close or restrict access to their campuses in an effort to protect the health of their students, educators, staff, and communities. Despite these efforts, more than 120,000 cases of COVID-19 have been linked to colleges and universities nationwide, and the deaths of more than 100 college students have been attributed to the disease. The Legislature further finds that lawsuits against educational institutions based on their efforts to provide educational services while keeping students, faculty, staff, and communities safe during the COVID-19 public health emergency are without legal precedent. One court has even acknowledged that the “legal system is now feeling COVID-19's havoc with the current wave of class action lawsuits that seek tuition reimbursement related to forced online tutelage.” Under these circumstances, the Legislature finds that there is an overpowering public necessity for, and no reasonable alternative to, providing educational institutions with liability protections against lawsuits seeking tuition or fee reimbursements or related damages resulting from the institutions changing the delivery of educational services, limiting access to facilities, or closing campuses during the COVID-19 public health emergency.

Fla. Stat. § 768.39(1). To accomplish this goal, subsection (3)(a) of the statute grants broad immunity to educational institutions who took “reasonably necessary” actions to diminish the spread of COVID-19 by complying with governmental guidance. § 768.39(3)(a). The subsection identifies reasonably necessary actions as including:

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1. Shifting in-person instruction to online or remote instruction for any period of time;

2. Closing or modifying the provision of facilities, other than housing or dining facilities, on the campus of the educational institution; or

3. Pausing or modifying ancillary student activities and services available through the educational institution.

§ 768.39(3)(a)(1)-(3). To further shield educational institutions, the statute codifies certain affirmative defenses and makes them per se applicable. § 768.39(3)(b)-(c). Specifically, subsection (3)(b) codifies the common-law defense of impossibility, deeming “the provision of in-person or on-campus education and related services . . . impossible” during any period where institutions took reasonably necessary actions. And, in subsection (3)(c), the statute deems those same actions as being “justified.” Finally, subsection (4) offers an additional layer of protection by prohibiting the use of a college's invoices, catalogs, or general publications as evidence of the existence of a contract for in-person education and access to on-campus facilities and services during COVID-19.^[3]§ 768.39(4).

C. Retroactivity Analysis

1) Section 768.39 is a substantive statute Substantive statutes are those which attach new legal consequences to

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events that occurred before their enactment. Love, 286 So.3d at 187; Metro. Dade, 737...