Fiore v. Univ. of Tampa

Decision Date20 October 2021
Docket Number20-CV-3744 (CS)
Citation568 F.Supp.3d 350
Parties Toni FIORE, Jade D'Amario, Sean Dunn, and Joshua Dunn on behalf of themselves and all others similarly situated, Plaintiffs, v. The UNIVERSITY OF TAMPA, Defendant.
CourtU.S. District Court — Southern District of New York

Philip L. Fraietta, Alec M. Leslie, Bursor & Fisher, P.A., New York, New York, Sarah N. Westcot, Bursor & Fisher, P.A., Miami, Florida, Counsel for Plaintiffs.

Jonathan M. Kozak, Jackson Lewis P.C., White Plains, New York, Felice B. Ekelman, Ryan C. Chapoteau, Jackson Lewis P.C., New York, New York, Counsel for Defendant.


Seibel, U.S.D.J.

Before the Court is Defendant's motion to dismiss the Amended Complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 19.) For the following reasons, Defendant's motion is GRANTED in part and DENIED in part.


For purposes of the motion, I accept as true the facts, but not the conclusions, set forth in Plaintiffs’ Amended Complaint. (ECF No. 16 ("AC" or "Amended Complaint").)

A. Facts

This case concerns the transition from in-person to remote instruction at the University of Tampa ("UT") during the spring 2020 academic semester in response to the COVID-19 pandemic. (AC ¶ 1.) Plaintiffs Jade D'Amario of New York and Joshua Dunn of Connecticut ("Student Plaintiffs") were enrolled as full-time undergraduate students at UT during the spring 2020 semester. (Id. ¶¶ 20, 23.) Plaintiffs Toni Fiore of New York and Sean Dunn of Connecticut ("Parent Plaintiffs") are parents of full-time undergraduate students who were enrolled at UT during the spring 2020 semester. (Id. ¶¶ 19, 22.) Defendant UT is a private university located in Tampa, Florida. (Id. ¶ 25.)

Undergraduate tuition at UT for the spring 2020 semester was approximately $14,401, and full-time undergraduate students were charged mandatory fees of approximately $2082. (Id. ¶¶ 32-33.) Parent Plaintiffs Fiore and Dunn paid UT approximately $11,205 and $12,500, respectively, for tuition, fees, meals, and housing on behalf of their respective children for the spring 2020 semester, (id. ¶¶ 19, 22), and Student Plaintiffs D'Amario and Dunn paid UT approximately $8,000 and $7,000, respectively, in tuition, fees, meals, and housing for the spring 2020 semester, (id. ¶¶ 20, 23). The fees paid by Student Plaintiffs included a "mandatory Student Service Fee," which "[p]rovides support for a number of student services, programs and activities," as well as a "mandatory Student Government Fee," which "[p]rovides basic support to student government, student productions, publications and other student-sponsored organizations." (Id. ¶ 63 (cleaned up).) None of the named Plaintiffs have received a refund of tuition or mandatory fees for the spring 2020 semester. (Id. ¶¶ 19-20, 22-23.)

Before paying tuition or registering for classes for the spring 2020 semester, the Student Plaintiffs each consulted Defendant's online Course Catalog and its online Course Schedule Search and Registration tool. (Id. ¶¶ 3, 21, 24, 35.) The Course Catalog, which detailed every course offered, only mentioned online instruction for two courses and had a search function that allowed students to search by "Method," with options including "General Classroom," "Hybrid," "Independent Study," "Internship," and "Online." (Id. ¶ 4.) UT's Course Schedule Search listed the "Delivery Mode" as "In-Person" for each of the courses for which the Student Plaintiffs registered for the spring 2020 semester. (Id. ¶¶ 5-6.) They also received course schedules and course-specific syllabi listing the on-campus building and room where each course was to be held. (Id. ¶¶ 7-8.) They allege that they registered for classes and paid tuition with the understanding – based on representations in some of these materials – that their courses would be taught in-person. (Id. ¶¶ 21, 24, 35.)

UT's spring semester ran from January 21, 2020 through May 8, 2020. (Id. ¶ 30.) The last academic day before the school's Spring Break was March 6, 2020. (Id. ¶ 38.) During Spring Break, on March 11, 2020, UT announced that all classes would move to online and remote instruction in response to the COVID-19 pandemic. (Id. ¶ 36.) On March 17, 2020, UT announced that the rest of the spring semester would be remote, with courses conducted online. (Id. ¶ 37.)

B. Procedural History

Plaintiff Fiore filed suit on May 14, 2020,1 bringing claims on behalf of herself and a class of similarly situated persons for breach of contract (Count I), unjust enrichment (Count II), and conversion (Count III), seeking a pro-rated return of tuition and fees paid for the spring 2020 semester. (ECF No. 1.) Defendant requested a pre-motion conference on July 31, (ECF No. 6), and on August 26, the Court held the pre-motion conference and granted Plaintiff leave to amend the complaint, (Minute Entry dated Aug. 26, 2020). Plaintiffs amended their complaint on September 15, 2020, (AC), and the instant motion followed, (ECF No. 19). Defendant moves to dismiss the claims of the Parent Plaintiffs for lack of standing under Rule 12(b)(1), and all claims for failure to state a claim on which relief can be granted under Rule 12(b)(6). (ECF No. 20 ("D's Br.").)

Between December 2020 and March 2021, the parties made several supplemental submissions regarding COVID-19 tuition cases decided after briefing was complete. (ECF Nos. 29, 30, 31, 32, 33, 34.) On July 16, 2021, Defendant requested that the Court re-open briefing so that the parties could address Florida Statute § 768.39 (the "Florida Statute" or the "Statute"), which was signed into law on June 29, 2021. (ECF No. 36.) Defendant argues the Florida Statute immunizes it against Plaintiffs’ claims and is grounds for dismissal of this case. (Id.; ECF Nos. 38, 42.) The Court granted the request, (ECF No. 37), and the parties submitted supplemental briefs, (ECF Nos. 38, 40, 42). Plaintiffs’ supplemental opposition challenges the constitutionality of the Florida Statute under the United States and Florida Constitutions. (ECF No. 40.) Plaintiffs provided notice of the constitutional challenge to the Attorney General of the State of Florida, as required under Federal Rule of Civil Procedure 5.1(a). (ECF No. 41.) The Court certified the constitutional challenge to the same official as required under 28 U.S.C. § 2403(b) and Federal Rule of Civil Procedure 5.1(b). (ECF No. 43.) More than sixty days have passed since the Plaintiffs filed notice of the constitutional challenge, and the Florida Attorney General has not intervened.2

A. Motion to Dismiss for Lack of Standing

Under Rule 12(b)(1), a district court may properly dismiss an action for lack of subject matter jurisdiction "if the court lacks the statutory or constitutional power to adjudicate it." Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.A.R.L. , 790 F.3d 411, 416-17 (2d Cir. 2015) (cleaned up). "A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000). In determining whether subject matter jurisdiction exists, a district court "must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff, but jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Morrison v. Nat'l Austl. Bank Ltd. , 547 F.3d 167, 170 (2d Cir. 2008) (cleaned up), aff'd , 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). A court may also "rely on evidence outside the complaint" when deciding a Rule 12(b)(1) motion. Cortlandt St. Recovery Corp. , 790 F.3d at 417.

Article III of the Constitution limits a federal court's jurisdiction to actual "Cases" and "Controversies." U.S. Const. art. III, § 2; see Lujan v. Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "Constitutional standing is the threshold question in every federal case, determining the power of the court to entertain the suit." Leibovitz v. N.Y.C. Transit Auth. , 252 F.3d 179, 184 (2d Cir. 2001) (cleaned up). That is, where a party lacks standing to bring a claim, the court lacks subject matter jurisdiction over that claim and must dismiss it. See SM Kids, LLC v. Google LLC , 963 F.3d 206, 210 (2d Cir. 2020).

B. Motion to Dismiss for Failure to State a Claim

"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 , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility 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. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (cleaned up). While Federal Rule of Civil Procedure 8 "marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, ... it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Iqbal , 556 U.S. at 678-79, 129 S.Ct. 1937.

In considering whether a complaint states a claim upon which relief can be granted, the court "begin[s] by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth," and then determines whether the remaining well-pleaded factual allegations, accepted as true, "plausibly give rise to an entitlement...

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