Amable v. The New Sch.

• Decision Date: 06 May 2022
• Docket Number: 20-CV-3811 (KMK)
• Parties: ELIZABETH AMABLE and KAITLYN AMABLE, individually and on behalf of all others similarly situated, Plaintiff, v. THE NEW SCHOOL, Defendant.
• Court: U.S. District Court — Southern District of New York

ELIZABETH AMABLE and KAITLYN AMABLE, individually and on behalf of all others similarly situated, Plaintiff, v. THE NEW SCHOOL, Defendant.

No. 20-CV-3811 (KMK)

United States District Court, S.D. New York

May 6, 2022

Appearances:

Alec M. Leslie, Philip L. Fraietta, Bursor & Fisher, P.A. Counsel for Plaintiffs Sarah Westcot, Bursor & Fisher P.A. Miami, FL Counsel for Plaintiffs

Jonathan M. Kozak, Isaac J. Burker, Susan Deegan Friedfel Jackson Lewis P.C. Counsel for Defendant

OPINION & ORDER

KENNETH M. KARAS UNITED STATES DISTRICT JUDGE

Elizabeth Amable (“Elizabeth”) and Kaitlyn Amable (“Kaitlyn”; collectively, “Plaintiffs”) bring this putative class action against The New School (“Defendant”), alleging that Defendant's transition to online classes amid the Covid-19 pandemic deprived students and parents of students of the educational experience for which they bargained, giving rise to breach of contract and unjust enrichment claims. (See generally Second Am. Compl. (“SAC”) (Dkt. No. 37).) Before the Court is Defendant's Motion to Dismiss the SAC (the “Motion”). (See Not. of Mot. (Dkt. No. 44).) For the following reasons, Defendant's Motion is granted.

I. Background

A. Factual Background

Unless otherwise stated, the following facts are drawn from Plaintiffs' SAC and are assumed true for the purpose of resolving the instant Motion. See Div. 1181 Amalgamated Transit Union-N.Y. Emps. Pension Fund v. N.Y.C. Dep't of Educ., 9 F.4th 91, 94 (2d Cir. 2021) (per curiam).

1. The Parties and Injuries

Defendant “is a private research university” centered in New York. (SAC ¶ 39.) Elizabeth was “the parent of an undergraduate student at [Defendant] . . . pursuing a Bachelor of Fine Arts in Communication Design” who, on her daughter's behalf, “paid approximately $11, 000 in tuition and fees to Defendant for the Spring 2020 semester.” (Id. ¶ 34.) Kaitlyn, an undergraduate student attending Defendant during the Spring 2020 semester pursuing a Bachelor of Fine Arts in Communication Design, “paid approximately $4, 000 in tuition and fees to Defendant for the Spring 2020 semester.” (Id. ¶ 35.)

In order for Kaitlyn to enroll in the Spring 2020 Semester, Plaintiffs were responsible for the following fees for the Spring 2020 semester: $55.00 EPP Enrollment Fee; $600.00 University Services Fee; and $8.00 Student Senate Fee. (Id. ¶ 47.)^{[1], [2]} Plaintiffs allege that the University Services Fee “covers a range of supportive services for students at The New School.” (Id. ¶ 48 (quotation marks omitted).)^[3] Having paid these fees, Kaitlyn was able to participate in Defendant's Spring 2020 Semester, which began on January 21, 2020 and which proceeded without incident for the next eight weeks; however, the Covid-19 pandemic brought normal university operations to an abrupt halt in March, as Defendant announced that all classes would only be conducted online for the remainder of the Spring 2020 semester. (Id. ¶¶ 20, 23, 25.)

2. Contractual Promises

Plaintiffs allege that they “entered into a contractual agreement” with Defendant “for specific services, ” namely “an on-campus, in-person education.” (Id. ¶ 3.) Specifically, Plaintiffs aver that in exchange for payment “in the form of tuition and fees, ” Defendant “was to provide in-person educational services, experiences, opportunities, and other related services.” (Id.) Plaintiffs assert that the terms of the contract were “set forth in publications from [Defendant], ” including: (1) Defendant's Spring Semester 2020 Course Catalog (“Course Catalog”), (id.); (2) Defendant's “Attendance Statement, ” (id. ¶ 18); (3) Kaitlyn's Course schedule, (id. ¶ 37); and (4) “The New School's webpage, ” (id. ¶ 3).

First, Plaintiffs allege that Defendant's Spring 2020 Course Catalog articulated particular information about courses to be offered by Defendant, including “the instructor, the days and times during which the courses would be held, and the location (including the building and room number).” (Id. ¶ 5.) To that end, Plaintiffs aver that university students like Kaitlyn chose courses specifically based on the information provided in the Course Catalog, including if they were based in “New York City, ” “Paris, ” or “Online.” (Id. ¶¶ 6, 7.)

Second, Plaintiffs aver that Defendant's “Attendance Statement” emphasizes the importance of regular class attendance and participation. (Id. ¶ 18.) Plaintiffs allege that the Statement informs students “that ‘[r]egular attendance and class participation are important factors in student learning,' and faculty are ‘expected to articulate this idea,' as well as ‘monitor student progress and attendance regularly.'” (Id. (alteration in original).)

Third, Plaintiffs allege that Kaitlyn's Semester Course schedule makes clear that “the classes in which she enrolled were to be taught in-person at [Defendant's] New York City Campus.” (Id. ¶ 37) (emphasis added).

Fourth, and finally, Plaintiffs allege that Defendant's online marketing, and specifically Defendant's “Campus Life” page, “promoted the value provided by its on-campus experience and related on-campus services . . . .” (Id. ¶ 8; see also id. ¶¶ 8-15.) Plaintiffs allege that the “Campus Life” page on Defendant's website states that Defendant's Innovation Center “is ‘open to New School students and faculty 24 hours a day, '” (id. ¶ 9), “further emphasizes the updated facilities and materials available to students, including ‘a series of extensive labs and information technology services, '” (id. ¶ 10), “advertises its various university performance facilities, ” such as recording studios, to be available in-person to students, (id. ¶¶ 13, 14), and “advertises to students that they will have access to the ‘University Learning Center' where students can utilize specialized one-on-one or group tutoring sessions at the center, ” (id. ¶ 15).

Plaintiffs allege more broadly that “[t]he Communication Design program [with which Kaitlyn is affiliated] at The New School relies extensively on in-person instruction, peer collaboration, and access to The New School's facilities.” (Id. ¶ 35.)

Given the promises that Plaintiffs contend are implicit within these four fields of publication, Plaintiffs allege that by shifting its instruction to an online format, “Defendant [did] not deliver[] the educational services, facilities, access and/or opportunities that Plaintiffs and the putative class contracted and paid for, ” because none of the facilities or services was available to students during the suspension of in-person learning. (Id. ¶ 26; see also id. at ¶¶ 17, 63.) Plaintiffs further allege that they have not been provided a refund of any tuition monies or fees paid for the Spring 2020 semester, despite the shift to online learning, as Defendant has only “provided refunds ‘on a pro-rated basis for residential students leaving campus and those students who are on university meal plans.'” (Id. ¶ 28 n.5; see also id. ¶¶ 28-30.)

Accordingly, Plaintiffs bring claims for breach of contract and unjust enrichment. (See id. ¶¶ 73-93.) Plaintiffs seek “disgorgement of the pro-rated portion of tuition and fees . . . proportionate to the amount of time that remained in the Spring Semester 2020 when classes moved online and campus services ceased being provided.” (Id. ¶ 63.) Plaintiffs also seek an order certifying a class and subclass under Rule 23 of the Federal Rules of Civil Procedure, compensatory and punitive damages, prejudgment interest, an order of restitution “and all other forms of equitable monetary relief, ” any injunctive relief deemed proper, and an order awarding reasonable attorneys' fees to the putative class counsel. (See id. Prayer for Relief.)

B. Procedural History

Plaintiffs filed their initial complaint on May 15, 2020, on behalf of themselves and all people who paid tuition and fees for the Spring 2020 semester at the New School. (Dkt. No. 1.) On July 29, 2020, Defendant filed a letter seeking leave to file a motion to dismiss Plaintiff's Complaint. (Dkt. No. 7.) In response, on August 5, 2020, Plaintiffs filed a letter requesting permission to file an amended complaint, (Dkt. No. 12), which the Court granted the same day, (Dkt. No. 13). Plaintiffs' First Amended Complaint was thereafter filed on September 2, 2020. (Dkt. No. 14.) Defendant subsequently filed a Motion To Dismiss Plaintiff's First Amended Complaint and supporting papers on November 20, 2020. (Dkt. Nos. 23-26.) Plaintiffs filed their opposition papers on December 23, 2020. (Dkt. Nos. 27-28.) Defendant filed its Reply on January 7, 2021, (Dkt. No. 31). On July 27, 2021, the Court granted Defendant's Motion To Dismiss without prejudice. (Op. (“2021 Op.”) (Dkt. No. 36).)

On August 26, 2021, Plaintiffs filed their SAC. (Dkt. No. 37.) Defendant sought leave to file the instant Motion on September 9, 2021. (Dkt. No. 38.) Following a pre-motion telephone conference on October 19, 2021, (see Dkt. (minute entry for Oct. 19, 2021)), the Court adopted a briefing schedule for the instant Motion, (Dkt. No. 43). Pursuant to this schedule, Defendant filed the instant Motion and supporting papers on November 18, 2021. (See Not. of Mot.; Aff'n of Jonathan M. Kozak (“Kozak Aff'n”) (Dkt. No. 45); Decl. of Rebecca Hunter (Dkt. No. 46); Def.'s Mem. of Law in Supp. of Mot. (“Def.'s Mem.”) (Dkt. No. 47).) After a modification to the briefing schedule was made, (see Dkt. No. 48), Plaintiffs timely filed their Opposition on December 20, 2021, (Pls.' Mem. of Law in Opp. to Mot. (“Pls.' Mem.”) (Dkt. No. 49)). Finally, Defendant filed a Reply on January 19, 2022. (Def.'s Reply Mem. of Law in Supp. of Mot. (“Def.'s Reply Mem.”) (Dkt. No. 50).)

II. Discussion

A. Standard of Review

The Supreme Court has held that while a complaint “does not need...