Longo v. Campus Advantage, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JOSEPH LONGO, JUSTIN LONGO,

LOIS SPATZ, EAVEN SPATZ, RAINA

POMEROY, and MAXWELL NASSAR,

individually and on behalf of all others

similarly situated,

Plaintiffs,

v. Case No: 8:20-cv-2651-KKM-TGW

CAMPUS ADVANTAGE, INC.,

Defendant.

ORDER

Plaintiffs Joseph Longo, Justin Longo, Lois Spatz, Eaven Spatz, Raina Pomeroy,

and Maxwell Nasar, on behalf of themselves and all others similarly situated, sued Campus

Advantage, Inc.,! a private company that provides off-campus, residential housing to

college students around the country, alleging a variety of claims rooted in Campus

Advantage’s refusal to release them from their lease obligations after the onset of COVID-

19. Plaintiffs are tenants (and their parents) who lived at a Campus Advantage residential

student housing facility near the University of Central Florida (UCF) during the 2019-

' Plaintiffs also sued BYL Collection Services, LLC, but have since voluntarily dismissed BYL from the

action. (Doc. 82; Doc. 86.)

2020 academic year. Campus Advantage moves to dismiss the Plaintiffs’ claims based on

the lease agreements, which it argues remained enforceable despite the onset of the

COVID-19 pandemic. (Doc. 43.) The students also move for class certification. (Doc. 69.)

The Court grants Campus Advantage’s motion to dismiss in its entirety. Plaintiffs’

claims either fail to meet the pleading standards or fail due to the undisputed existence of

valid lease agreements between the parties. As a general matter, the lease agreements never

conditioned Campus Advantage’s private student housing facilities on the nearby college’s

administrative decisions. It is the terms of the leases—rather than the decisions of nearby

university administrators—that govern the legal obligations of these parties. Therefore, the

Court grants Campus Advantage’s motion to dismiss and denies as moot the motion for

class certification.

I. BACKGROUND

A. Facts?

In their Amended Complaint, Plaintiffs allege that Campus Advantage, Inc., a

Texas corporation, is “one of the largest property managers for private dormitory housing”

in the country. (Doc. 34 41.) Campus Advantage’s facilities seek to provide a “college

dormitory life” for residents, which includes multi-bedroom apartments, often with shared

bathrooms, and various amenities such as organized social events through the residence life

* At this stage, the Court accepts all factual allegations in the complaint as true and construes them in the

light most favorable to Plaintiffs. See Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008).

program, shuttle services to the campus, swimming pools, game rooms, fitness centers, golf

simulators, 24-hour coffee bars, and more. (Id. 44 1, 18.) Campus Advantage has eight

properties near college campuses in Florida. (Id. 4 16.) These properties include two

private, off-campus residential student housing facilities located near UCF: The Verge and

Northgate Lakes. (Id. 4 15.)

The named Plaintiffs in this action include Joseph Longo and his son Justin Longo.

Justin signed a lease agreement (which his father co-signed) for a room at Northgate Lakes

for the 2019-2020 academic year; Eaven Spatz signed a lease agreement (which his mother

Lois Spatz co-signed) for a room at The Verge for the 2019-2020 academic year; Maxwell

Nassar also signed a lease agreement (which his mother Raina Pomeroy co-signed) for a

room at The Verge for the Fall 2019-Spring 2020 academic year. (Id. 44 5-7.)

In early March 2020, the COVID-19 pandemic struck the United States,

prompting both the federal government and the State of Florida to declare states of

emergency. (Id. 4 49-50.) By March 17, all the public universities and colleges in Florida

announced that classes would transition to remote learning through the end of the Spring

2020 semester and that all on-campus events were canceled due to COVID-19. (Id. 4 52.)

The Florida universities encouraged students who lived on campus to move out of

their dormitories and “agreed to return a fair portion of the students’ room and board.” (Id.

44 53, 59.) On April 3, 2020, following approval by the board of trustees, UCF began

“issuing housing refunds for a portion of the spring semester’s rent to resident’s that were

not able to return to campus or have left their rooms.” (Id. 4 68.) UCF urged the

surrounding private housing companies to do the same. (Id. 4 69.) But Campus Advantage

elected a different course.

Rather than allowing its residents to break their leases and returning “a fair portion”

of the already-paid rent like the Florida universities, Campus Advantage “refused to return

any portion of the room, board, and other fees” to the residents and “continue[d] to actively

collect” rent payments from its residents during the pandemic. (Doc. 34 44 57, 60.) As

Campus Advantage’s UCF Resident Director put it in a mass email to the residents,

COVID-19 is “outside of our control, and while we realize that you and your family may

be facing uncertainty with employment or source of income, which can result in challenges

making rent payments, we are not able to release residents from lease obligations at this

time.” (Id. § 63 (emphasis added).) While Campus Advantage continued to demand that

the residents fully honor the rent payments they had agreed to in their leases, Campus

Advantage closed or limited the residents’ access to the various on-site amenities (e.g.,

swimming pools, game rooms, fitness centers, etc.) for safety reasons related to COVID-

19. (Id. § 101.)

On April 6, 2020, the Longos advised Campus Advantage that Justin (student) had

moved out and that the Longo parents had lost their jobs and could no longer pay his rent.

Campus Advantage responded that it would continue to collect rent and that “many people

are in the same position” as the Longos. (Id. § 70.) On April 13, 2020, Lois Spatz informed

Campus Advantage that her son Eaven had moved out and “requested to be released from

the lease[,] or, in the alternative, to apply lease credits to a future lease.” (Id. 72.) Campus

Advantage refused, citing the policy decisions made by “upper management at our

corporate office.” (Id. § 73 (emphasis omitted).) Both the Longos and the Spatzs paid rent

for March but not for April, May, and June, which they claim they do not owe to Campus

Advantage. (Id. ¥§ 26, 42.) They further allege that Campus Advantage is improperly

retaining part of their March rent, despite not providing the bargained-for amenities

during that time due to COVID-19 safety concerns. (Id. 4 27, 43.)

Maxwell Nassar, the third student Plaintiff, paid rent through July when his lease

ended. (Id. 44 46-47.) Additionally, Nassar and his mother (Pomeroy) claim Campus

Advantage has continually refused to return the money they paid for the second part of

March through July, despite not providing the bargained-for amenities during that time.

(Id. 4 48.)

B. Procedural History

Plaintiffs Amended Complaint asserts eleven causes of action against Campus

Advantage and BYL Collection Services. (Doc. 34.) After Plaintiffs settled with BYL

Collection Services and stipulated to its dismissal from this action, (Doc 76; Doc. 86), only

the eight counts asserted against Campus Advantage remain in the action—seven counts

by all Plaintiffs and one separately by only the Spatz Plaintiffs. (Doc. 34.) In their

Amended Complaint, all Plaintiffs, individually and on behalf of a proposed class, assert

seven claims against Campus Advantage: (1) rescission (Count I); (2) breach of contract

(Count IT); (3) implied covenant of good faith and fair dealing (Count III); (4) unjust

enrichment (Count IV); (5) conversion (Count V); (6) money had and received (Count

VI); and (7) a Florida Consumer Collection Practices Act (FCCPA) claim (Count VII).

(Doc. 34.) Separately, the Spatz Plaintiffs, individually and on behalf of a proposed

subclass, raise one claim against Campus Advantage under the FCCPA (Count X). (Id.)

Il. LEGAL STANDARD

To survive a motion to dismiss for failure to state a claim, a plaintiff must plead

sufficient facts to state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quotation omitted). A claim is plausible on its face when a plaintiff “pleads

factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. When considering the motion, the court accepts all

factual allegations of the complaint as true and construes them in the light most favorable

to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). This tenet,

of course, is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “While legal

conclusions can provide the framework of a complaint, they must be supported by factual

allegations.” [d. at 679. When reviewing a motion to dismiss, courts should limit their

“consideration to the well-pleaded factual allegations, documents central to or referenced

in the complaint, and matters judicially noticed.” La Grasta v. First Union Sec., Inc., 358

F.3d 840, 845 (11th Cir. 2004).

The Court may consider documents attached to a motion to dismiss “without

converting the motion into one for summary judgment if they are central to the plaintiffs

claim and their authenticity is not challenged.” Crowder v. Delta Air Lines, Inc., 963 F.3d

1197, 1202 (11th Cir. 2020) (citing Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005)).

Campus Advantage requests that the Court consider the lease agreements between

Plaintiffs and Campus Advantage. (Doc. 43 at 5-6; Doc. 43-1; Doc. 43-2; Doc. 43-3.)

Because the existence and validity of the lease agreements are central to Plaintiffs’ claims

and the authenticity of the lease agreements is undisputed, the Court will consider them

along with Plaintiffs’ complaint.

Ill. ANALYSIS

Campus Advantage moves to dismiss all counts in the Amended Complaint. (Doc.

43.) The Court addresses each count in turn.

A. Count I: Rescission

“Rescission is an equitable remedy with the purpose of restoring the former status

of the parties by undoing the original transaction.” See Rost Invs., LLC v. Cameron, 302

So. 3d 445, 449 (Fla. 2d DCA 2020) (cleaned up) (quoting Billian v. Mobil Corp., 710

So. 2d 984, 990 (Fla. 4th DCA 1998)). Under Florida law, to state a claim for rescission

of contract, the required elements are: “(1) the character or relationship of the parties;

(2) the making of a contract; (3) the existence of fraud, mutual mistake, false

representation, impossibility of performance, or other ground for rescission or cancellation;

(4) the party seeking rescission had rescinded the contract and notified the other party’;

“(5) the moving party has received benefits from the contract, he should further allege an

offer to restore these benefits to the party furnishing them, if restoration is possible; and

(6) the moving party has no adequate remedy at law.” Bland v. Freightliner LLC, 206 F.

Supp. 2d 1202, 1206 (M.D. Fla. 2002) (Kovachevich, J.) (citing Crown Ice Mach. Leasing

Co. v. Sam Senter Farms, Inc., 174 So. 2d 614, 617 (Fla. 2d DCA 1965)). “Equity will not

usually order rescission unless the condition of the parties may be restored as it existed prior

to the execution of the contract.” Hibiscus Assocs. Ltd. v. Bd. of Trs. of Policemen and

Firemen Ret. Sys. of City of Detroit, 50 F.3d 908, 917 (11th Cir. 1995).

The first two rescission elements are not at issue. Plaintiffs allege that they are in

privity of contract with Campus Advantage (element one) and that valid contracts—the

lease agreements—exist between them (element two). See Bland, 206 F. Supp. 2d at 1206

(“In order to maintain an action for rescission of contract, the parties to the lawsuit must

lie in contractual privity.”).

The third element is “the existence of fraud, mutual mistake, false representation,

impossibility of performance, or other ground for rescission or cancellation.” Id. As to this

element, Defendants argue that Plaintiffs fail to allege that the respective leases are invalid,

such that rescission is not warranted. (Doc. 43 at 8-9.) Plaintiffs counter that they

“expressly plead[]” both impossibility of performance and frustration of purpose

“throughout the [C]omplaint.” (Doc. 51 at 6.)

The Court concludes that Plaintiffs did not sufficiently plead grounds for rescission

in their Amended Complaint. Impossibility of performance and frustration of purpose are

separate and distinct grounds for rescission. See Crown Ice, 174 So. 2d at 617-18 (“These

two theories of ‘impossibility of performance’ or ‘frustration of purpose,’ while theoretically

distinct, are often confused by the courts and textbook writers in applying them.”).

“Tmpossibility of performance’ refers to those factual situations where purposes for which

the contract was made, have, on one side, become impossible to perform.” Bland, 206 F.

Supp. 2d at 1208 (quoting Crown Ice, 174 So. 2d at 617). “Frustration of purpose’ refers

to the condition surrounding the contracting parties where one of the parties finds that the

purposes for which he bargained, and which purposes were known to the other party, have

been frustrated because of the failure of consideration or impossibility of performance of

the other party.” Id.

Here, Plaintiffs allege that “[t]here has been an equitable breach in this case that

warrants rescission because of issues of impossibility of performance and frustration of

purpose.” (Doc. 34 4 99.) At the heart of Plaintiffs’ impossibility allegations is that Campus

Advantage could not safely provide its residents with access to the common areas and

services (i.e., the amenities) it promised in the lease because of COVID-19. (Id. 4 100.)

Specifically, Plaintiffs allege that “it was simply not possible for students to fully access

common areas and amenities in a prudent manner. [These p]laces [include] the pool, group

study lounges, game rooms, exercise center, transit shuttles, and computer labs. . . . [I]t was

impossible for Campus Advantage to provide what was bargained for under the [leases].”

(Id. 44 104-05.) These impossibility allegations cannot form the basis for rescission

because Plaintiffs do not allege that their duties under the contract (i.e., paying rent)

became “impossible to perform.” Bland, 206 F. Supp. 2d at 1208 (quoting Crown Ice, 174

So. 2d at 617); see Lawrence v. FPA Villa Del Lago, LLC, No. 8:20-cv-1517, 2022 WL

344634, at *6 (M.D. Fla. Feb. 4, 2022) (Covington, J.) (granting summary judgment on

rescission based on impossibility under very similar facts); see also Lampo Grp., LLC v.

Marriott Hotel Servs., Inc., No. 3:20-cv-0641, 2021 WL 3490063, at *7 n.1 (M.D. Tenn.

Aug. 9, 2021) (“[T]he party who finds it impossible to perform its obligations under the

contract may seek rescission.”). If Campus Advantage (the defendant) was seeking

rescission here, it could theoretically plead impossibility as a ground—although it would

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face an uphill road to establish impossibility because Campus Advantage was not prevented

from providing access to the common areas and services, it merely decided that course was

imprudent in the light of COVID-19.

As to frustration of purpose, Plaintiffs allege that COVID-19 frustrated two

essential purposes of the lease agreements. First, Plaintiffs claim one primary purpose of

the leases was for Campus Advantage to provide its residents with a “dormitory-style living

arrangement” coupled with “a bundled package of amenities,” which it could not safely

provide during the pandemic. (Id. { 106.) When the allegations “support the frustration of

the bargained for benefits,” the allegations are sufficient for frustration of purpose. See

Bland, 206 F. Supp. at 1208. Plaintiffs’ first allegation—that Defendant’s failure to

continue providing the bargained for spaces and amenities frustrated the purpose of the

lease agreement—is not sufficient to serve as a basis for rescission. The “primary purpose

of the lease[s] was to provide [Plaintiffs] with accommodations” and Campus Advantage

“clos[ing] or limit[ing] access to amenities in light of the COVID-19 pandemic” did not

amount to a frustration of purpose since the amenities were not a “contractual right.”

Lawrence, 2022 WL 344634, at “5; see Gap Inc. v. Ponte Gadea N.Y. LLC, 524 F. Supp.

3d 224, 235 (S.D.N.Y. 2021) (“While undeniably unfortunate, the COVID-19 pandemic

has not amounted to frustration of the Lease’s purpose of Gap operating a retail business

at the Premises. Instead, the evidence suggests that Gap has made a business decision to

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close its stores... .”). This is clear from the lease term stating that Campus Advantage

“expressly reserve[d] the right to promulgate additional rules and regulations applicable to

the property and to amend or modify any rule or regulation contained herein as [Campus

Advantage] from time to time determines to be appropriate.” (See, e.g., Doc. 43-1 at 16

(emphasis omitted).) That term clarifies that, like in Lawrence, unfettered access to the

spaces and “amenities” is not a “contractual right” here. See Lawrence, 2022 WL 344634,

at “5. Rather, the primary purpose of the lease agreements to provide living

accommodations—and embodied in the contractual right to access to the individual rooms

rented—remained intact.

Second, Plaintiffs claim another purpose of the leases was to provide the student-

plaintiffs with housing to allow them to easily attend school on campus, which was

frustrated because the university campuses were closed and no activities were taking place

there due to COVID-19. Ud. 4107.) This second frustration allegation is also not

sufficient because, again, the central purpose of the lease agreements between Plaintiffs and

Campus Advantage was “to provide [Plaintiffs] with accommodations.” Lawrence, 2022

WL 344634, at *5; see also In re Cinemex USA Real Estate Holdings, Inc., 627 B.R. 693,

699 (Bankr. $.D. Fla. 2021) (concluding there was no frustration of purpose of a movie

theater’s lease agreement due to COVID-19 where the central purpose of the lease was to

“operate a movie theater,” which continued to be possible despite COVID-19). There was

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no contractual right to attend school in the lease agreements and no limitation in Campus

Advantage’s lease agreements that only students attending those local universities could

rent. Thus, although assuming it is true that one of Plaintiffs’ desires was to attend school

nearby and it was thwarted, it was not disrupted by Campus Advantage’s inability to

perform its obligations under the lease. There was simply no impossibility of performance

by Campus Advantage (as it continued to perform its obligations under the leases). The

Court concludes that the Plaintiffs have failed to plead sufficient facts for rescission to

support the third rescission element.

The fourth element is that a party seeking rescission rescinded the contract and

notified the other party to the contract. See Bland, 206 F. Supp. 2d at 1206. Campus

Advantage argues that Plaintiffs fail to allege that Nassar abandoned the premises or

provided any type of notice to Campus Advantage of rescission. (Doc. 43 at 8.)

The Court agrees as to this deficiency regarding Nassar. There are no allegations

that Nassar rescinded his lease or that he provided Campus Advantage with “proper notice”

as to his decision to rescind. Bland, 206 F. Supp. 2d at 1208 (citing Frank Griffin

Volkswagen, Inc. v. Smith, 610 So. 2d 597, 605 (Fla. Ist DCA 1992) (Ervin, J., concurring

in part)). Plaintiffs do not challenge this conclusion or point the Court to any allegations

in the Amended Complaint establishing that Nassar rescinded his lease and notified

Campus Advantage about it. (Doc. 51 at 5-6.) On the contrary, the Amended Complaint

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itself indicates that, rather than rescind the contract, Nassar met his contractual obligations

(i.e., rent payments) through the end of his lease term. (Doc. 34 44 46-48.) Plaintiffs argue

that Campus Advantage can “hardly complain . . . it did not receive individual notice” after

the mass email went out to its residents on March 19, 2020, stating that Campus

Advantage would not “release residents from lease obligations at this time.” (Doc. 51 at □□

6.) But this misses the point. There are no allegations that Nassar rescinded his lease or

provided notice to Campus Advantage of his decision to rescind, which is a required

element for a rescission claim. Plaintiffs fail to point the Court to any authority for the

proposition that an element of a claim need not be alleged because, in the judgment of the

plaintiff, meeting the element would be “futile.” (Doc. 51 at 6.) Therefore, on these

grounds alone, the Court dismisses the rescission claim as to Nassar (and his mother

Pomeroy).

The fifth rescission element is that the moving party received benefits from the

contract and offers to restore these benefits to the party furnishing them if restoration is

possible. See Bland, 206 F. Supp. 2d at 1209; see also Crown Ice, 174 So. 2d at 617 (party

seeking rescission should offer to restore benefits received to the party furnishing them).

Campus Advantage argues that Plaintiffs fail to allege they received any benefit from the

contract in the Amended Complaint or that Plaintiffs merely recite the elemental

definition without any indication as to whether the parties could be equitably restored to

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their original positions. (Doc. 43 at 9-10.) The Amended Complaint alleges that “[t]his

case is suitable for rescission because the parties can be equitably restored to their original

position or, if that result would not be equitable, a balance of the equities can otherwise be

achieved.” (Doc. 34 4109.) While it is true that “Florida law allows rescission where

restoration to the status quo is impossible” (and that appears to be the case here), Bland,

206 F. Supp. 2d at 1208 (citing Braman Dodge, Inc. v. Smith, 515 So. 2d 1053, 1054 (Fla.

3d DCA 1987)), the Plaintiffs must still plead factual allegations to support their legal

conclusions to survive a motion to dismiss. And whether the benefits that Defendant

receives under the leases are so “obvious” that they do not need to be pled in the Amended

Complaint is not the legal standard. (Doc. 51 at 7.) The Court is unaware of any

obviousness exception to the pleading standards under Iqbal and Twombly.

The sixth rescission element is that a party asserting a claim in equity must

demonstrate the absence of a remedy at law. See Bland, 206 F. Supp. 2d at 1209; see also

Collier v. Boney, 525 So. 2d 971, 972 (Fla. 1st DCA 1988) (“L[A] fundamental requirement

necessary for rescission of a contract is that the moving party has no adequate remedy at

law.”). There is only one paragraph in the Amended Complaint that relates to this element.

(Doc. 34 4 110 (“To the extent no remedy at law is available, rescission is appropriate.”)

(emphasis omitted).) While this is a conclusory allegation, stating a claim for rescission in

the alternative to a breach of contract claim is sufficient to satisfy the no-adequate-legal-

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remedy element. See, e.g., Lawrence v. FPA Villa Del Lago, LLC, No. 8:20-cv-1517,

2021 WL 2144758, at *4 (M.D. Fla. March 4, 2021) (Covington, J.); Argos Global Partner

Servs., LLC v. Ciuchini, 446 F. Supp. 3d 1073, 1093 (S.D. Fla. 2020) (Altonaga, J.).

Therefore, the Court grants Campus Advantage’s motion to dismiss as to Plaintiffs’

rescission claim because the Amended Complaint does not allege the third and fifth

rescission elements. In addition, as to Nassar (and his mother Pomeroy), the Amended

Complaint is deficient as to element four and the Court dismisses Count I as to these two

plaintiffs on that basis as well.

B. Count II: Breach of Contract

To establish a claim for breach of contract, Florida law requires that Plaintiffs

establish: “(1) the existence of a contract; (2) a material breach of that contract; and

(3) damages resulting from the breach.” Marchisio v. Carrington Mortg. Servs., LLC, 919

F.3d 1288, 1313 (11th Cir. 2019) (quotation and emphasis omitted); see, e.g., Friedman

v. N.Y. Life Ins. Co., 985 So. 2d 56, 58 (Fla. 4th DCA 2008).

Campus Advantage argues that Plaintiffs’ Amended Complaint fails to specifically

allege the contract term Campus Advantage breached when they were unable to safely

provide the services and amenities. (Doc. 43 at 11.) Campus Advantage further argues that

Plaintiffs fail to allege any actual damages resulting from the breach of contract. (Id.)

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The Court agrees with Campus Advantage that Plaintiffs fail to plead any actual

damages in their Amended Complaint. See Siever v. BWGaskets, Inc., 669 F. Supp. 2d

1286, 1300 (M.D. Fla. 2009) (Fawsett, J.) (“Under Florida law, damages are an essential

element of an action for breach of contract.”); see also People’s Tr. Ins. Co. v. Alonzo-

Pombo, 307 So. 3d 840, 843 (Fla. 3d DCA 2020) (“As [the plaintiff] has not alleged it has

or will suffer any damages, the breach of contract count cannot be sustained.”). None of

the five paragraphs in Count II of Plaintiffs’ Amended Complaint allege that Plaintiffs

suffered damages from the purported breach. (Doc. 34 99 111-15.) The Plaintiffs

therefore did not plead a breach of contract claim because they omitted any allegations of

damages. As discussed below, even if Plaintiffs had properly alleged damages, the

provisions of the leases that Plaintiffs allege were breached were not.

Additionally, in Count II of the Amended Complaint, Plaintiffs reference two

provisions in the leases to support their allegation that Campus Advantage “breached the

contract because they [were] unable to safely provide these services and amenities” to

Plaintiffs. (Doc. 34 4 115.) The first provision is the paragraph in the “Lease Agreement”

section labeled “Premises,” which states that the residents have a “nonexclusive right to use

the shared living areas in the unit or suite... all subject to and in accordance with the

provisions of this Lease.” (See, e.g., Doc. 43-2 at 2.) And paragraph thirty-eight of the

“Rules and Regulations” section labeled “Amenities,” details several specific amenities

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“made available by Landlord for use by residents” including the computer lab, fitness

center, tanning room, and grills. (Doc. 43-1 at 15; Doc. 43-2 at 17; Doc. 43-3 at 17.) The

Court agrees with Plaintiffs that the leases “contemplate” amenities in the provisions above.

However, the express provision at the end of the “Rules and Regulations” section in all

capital letters explicitly states: “Resident[s] also acknowledge[] that Landlord expressly

reserves the right to promulgate additional rules and regulations applicable to the property

and to amend or modify any rule or regulation contained herein as Landlord from time to

time determines to be appropriate.” (Doc. 43-1 at 16; Doc. 43-2 at 18; Doc. 43-3 at 18

(emphasis added).) Given this express provision reserving the right to “amend or modify”

any other rule or regulation by Campus Advantage, including access to the “Amenities,”

the Plaintiffs also fail to allege a “material breach” of the leases by pointing to more general

provisions detailing the list of amenities offered at the Campus Advantage facilities.

Marchisio, 919 F.3d at 1313; see Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts § 28, at 183 (2012) (“If there is a conflict between a general

provision and a specific provision, the specific provision prevails.”).

Thus, the Court also grants Campus Advantage’s motion to dismiss as to Plaintiffs’

breach of contract claim.

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C. Count HI: Breach of Implied Covenant of Good Faith and Fair Dealing

Under Florida law, every contract includes the implied covenant of good faith and

fair dealing. Burger King Corp. v. Weaver, 169 F.3d 1310, 1315 (11th Cir. 1999); see

Cnty. of Brevard v. Miorelli Eng’g, Inc., 703 So. 2d 1049, 1050 (Fla. 1997). But a breach

of the covenant does not create an independent cause of action. Centurion Air Cargo, Inc.

v. United Parcel Serv. Co., 420 F.3d 1146, 1151 (11th Cir. 2005). “Only when a breach of

an express term of the contract is pled can a claim for breach of the implied covenant of

good faith and fair dealing be maintained.” Viridis Corp. v. TCA Global Credit Master

Fund, LP, 721 F. App’x 865, 878 (11th Cir. 2018) (citing Centurion, 420 F.3d at 1152);

see Shibata v. Lim, 133 F. Supp. 2d 1311, 1318 (M.D. Fla. 2000) (Antoon, J.) (noting that

a claim for breach of the implied covenant of good faith and fair dealing must “relate to the

performance of an express term of the contract[. I]t is not an abstract and independent

term of a contract which may be asserted as a source of breach when all other terms have

been performed pursuant to the contract requirements”).

Here, Plaintiffs make three separate factual allegations in their Amended

Complaint about how Campus Advantage supposedly breached the implied covenant of

good faith and fair dealing—but none of these three identifies a specific contractual

provision from the leases to support the claim. (Doc. 34 4118.) Such a free floating

implied-covenant-of-good-faith-and-fair-dealing claim fails to meet the pleading

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standard. See Lawrence, 2021 WL 2144758, at *4-5 (dismissing a similar implied-

covenant claim for failing to identify an express contract provision).

Thus, the Court dismisses Plaintiffs’ claim for breach of the implied warranty of

good faith and fair dealing.

D. Count IV: Unjust Enrichment

The “essential elements of a claim for unjust enrichment are: (1) a benefit conferred

upon a defendant by the plaintiff, (2) the defendant’s appreciation of the benefit, and

(3) the defendant’s acceptance and retention of the benefit under circumstances that made

it inequitable for him to retain it without paying the value thereof.” Vega v. T-Mobile

USA, Inc., 564 F.3d 1256, 1274 (11th Cir. 2009). “[W]Jhere there is an express contract

between the parties, claims arising out of the contractual relationship will not support a

claim for unjust enrichment.” Reese v. JPMorgan Chase & Co., 686 F. Supp. 2d 1291,

1309 (S.D. Fla. 2009) (King, J.); see also Diamond “S” Dev. Corp. v. Mercantile Bank,

989 So. 2d 696, 697 (Fla. 1st DCA 2008) (per curiam) (“Florida courts have held that a

plaintiff cannot pursue a quasi-contract claim for unjust enrichment if an express contract

exists concerning the same subject matter.”).

While it is true that parties are free to advance claims in the alternative, Degutis v.

Fin. Freedom, LLC, 978 F. Supp. 2d 1243, 1265 (M.D. Fla. 2013) (Chappell, J.),

Plaintiffs do not plead their unjust enrichment claim in the alternative, (Doc. 34 44 120-

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25). Further, a claim for breach of contract is not the same as a claim asserting that the

contract governing a dispute is invalid. See, e.g., William Ryan Homes Fla., Inc. v.

Whitney Nat. Bank, No. 8:12-cv-1575, 2012 WL 4328769, at *2-5 (M.D. Fla. Sept. 20,

2012) (Covington, J.) (dismissing with prejudice an unjust enrichment claim but allowing

a breach of contract claim to proceed where there was no dispute that a valid contract

existed between the parties and the dispute arose out of the contractual relationship).

Plaintiffs argue their rescission claim constitutes a dispute as to the validity of the lease

agreements. (Doc. 51 at 13.) But Plaintiffs do not plead that the contract is invalid in their

rescission claim. (Doc. 34 4§ 96-110.) And even assuming that a rescission claim somehow

automatically constitutes a claim that a contract is not valid for purposes of an unjust

enrichment claim, the Court has already dismissed Plaintiffs’ rescission claim.

Because Plaintiffs failed to plead their unjust enrichment claim in the alternative

and failed to allege the lease contracts are invalid, the Court also dismisses Plaintiffs’ unjust

enrichment claim.

E. Count V: Conversion

“Under Florida law, conversion is an ‘unauthorized act which deprives another of

his property permanently or for an indefinite period of time.” Indus. Park Dev. Corp. v.

Am. Exp. Bank, FSB, 960 F. Supp. 2d 1363, 1366 (M.D. Fla. 2013) (Honeywell, J.)

(quoting Fogade v. ENB Revoacable Tr., 263 F.3d 1274, 1291 (11th Cir. 2001)). “In

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Florida, the conversion of money is treated differently than traditional conversion.”

Robinson v. Frese Hansen Anderson Anderson Heuston & Whitehead P.A., No. 6:12-

cv-1064, 2015 WL 12843854, at *6 (M.D. Fla. March 31, 2015) (Mendoza, J.). The

elements of a cause of action for the conversion of money are: “(1) specific and identifiable

money; (2) possession or an immediate right to possess that money; (3) an unauthorized

act which deprives plaintiff of that money; and (4) a demand for return of the money and

a refusal to do so.” IberiaBank v. Coconut 41, LLC, 984 F. Supp. 2d 1283, 1306 (M.D.

Fla. 2013) (Steele, J.) (quotation omitted). The first element—specific and identifiable

money—requires that “the money is deposited into an account designed to keep the money

segregated and identifiable, such as a trust or escrow account, or where there is an

obligation or fiduciary duty to keep money segregated.” Robinson, 2015 WL 12843854, at

*7 (quotation omitted); Indus. Park, 960 F. Supp. 2d at 1366 (“In order for money to be

an appropriate subject for a conversion claim, there must be an obligation for the receiver

to keep intact or deliver the specific money at issue.”).

Here, Plaintiffs do not allege facts to support the specific-and-identifiable-money

element. There are no allegations—and, given the alleged facts, there is no reason to

believe—that Campus Advantage kept the money Plaintiffs paid to it from March 2020-

July 2020 separate, such as in a trust or an escrow account, or that Campus Advantage had

any “obligation” to do so. Indus. Park, 960 F. Supp. 2d at 1366.

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Thus, the Court dismisses Plaintiffs’ conversion claim.

F. Count VI: Money Had and Received

“Under Florida law, ‘money had and received’ is synonymous with unjust

enrichment and restitution.” Pincus v. Am. Traffic Sols., Inc., 986 F.3d 1305, 1317 n.13

(11th Cir. 2021) (quoting Kelly v. Palmer, Reifler & Assocs., P.A., 681 F. Supp. 2d 1356,

1384 (S.D. Fla. 2010) (Moreno, J.)). “Florida law recognizes the general rule that ‘an action

for money had and received, currently treated as an action for restitution, can be maintained

where money is paid under a mistake of fact or where money has been obtained through

fraud, imposition, extortion, or undue advantage.” Berry v. Budget Rent A Car Sys., Inc.,

497 F. Supp. 2d 1361, 1370 (S8.D. Fla. 2007) (Cohn, J.) (quotation omitted). Just like with

unjust enrichment, a “plaintiff cannot pursue an action for money had and received when

there is an express contract.” Voltage Pay Inc. v. Turin Consulting LLC, No. 8:12-cv-

00304, 2013 WL 12205710, at *3 (M.D. Fla. 2013) (Scriven, J.).

For the same reasons Plaintiffs’ unjust enrichment claim fails, this “synonymous”

claim fails as well. Pincus, 986 F.3d at 1317 n.13; see Virgilio v. Ryland Grp., Inc., No.

6:08-cv-815, 2009 WL 320857, at *6 (M.D. Fla. Feb. 9, 2009) (Presnell, J.) (“The

reasoning applicable to Plaintiffs’ claim for unjust enrichment applies equally to Plaintiffs’

claim for money had and received.”). Further, Plaintiffs fail to allege that Campus

Advantage obtained the standard monthly rent payments through fraud, imposition,

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extortion, or undue advantage. Berry, 497 F. Supp. 2d at 1369-70 (finding a claim for

money had and received insufficiently pleaded where the facts did not support any “fraud

or imposition through which the money was obtained”). The only substantive paragraph

under Count VI states that Campus Advantage “received money in the form of room,

board, and fee payments that was intended to be used for the benefit of Plaintiffs and the

Class. Those fees, however, were not used for the benefit of Plaintiffs and the Class, and

Campus Advantage has not given back or refunded the wrongfully obtained money and

fees to Plaintiffs and the Class.” (Doc. 34 4 133.) This allegation does not plausibly allege

that the rent money Plaintiffs paid to Campus Advantage was obtained by mistake, fraud,

imposition, extortion, or undue advantage. See Berry, 497 F. Supp. 2d at 1370.

The Court therefore dismisses Plaintiffs’ money had and received claim.

G. Count VII: Florida Consumer Collection Practices Act

In Count VII, the Amended Complaint alleges that Campus Advantage violated

two provisions of the FCCPA: Sections 559.72(7) and 559.72(9), Florida Statutes. Section

559.72(7) prohibits persons from “[w]illfully communicat[ing] with the debtor... with

such frequency as can reasonably be expected to harass the debtor[,] . . . or willfully engage

in other conduct which can reasonably be expected to abuse or harass the debtor.” “[T]he

statute’s use of the word ‘willful’ means that the calls must be done consciously, and thus

that the statute concerns both ‘the purpose as well as the frequency of the creditor’s calls.”

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Harrington v. Roundpoint Mortg. Serving Corp., No. 2:15-cv-322, 2017 WL 1378539,

at *10 (M.D. Fla. April 11, 2017) (Chappell, J.) (quoting Story v. J.M. Fields, Inc., 343

So. 2d 675, 677 (Fla. Ist DCA 1977)). The second provision, § 559.72(9), prohibits

persons from “claim[ing], attemptling], or threaten[ing] to enforce a debt when such

person knows that the debt is not legitimate, or assert[ing] the existence of some other legal

right when such person knows that the right does not exist.” “[A] party must allege

knowledge or intent by the debt collectors in order to state a cause of action” under

§ 559.72(9). Bentley v. Bank of Am., N.A., 773 F. Supp. 2d 1367, 1373 (S.D. Fla. 2011)

(Dimitrouleas, J.) (quotation omitted).

Plaintiffs fail to allege any facts—such as the specific substance of any call or how

those calls were harassing or that Campus Advantage knew the debt was illegitimate—

supporting their conclusory legal allegations that Campus Advantage violated Section

559.72(7) or Section 559.72(9). Instead, Plaintiffs assert two paragraphs of bare legal

conclusions in their Amended Complaint, (Doc. 34 44 137-38), which are merely

“[t]hreadbare recitals of the elements of a cause of action” that “do not suffice.” Iqbal, 556

U.S. at 678; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (“LA] plaintiffs

obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels

and conclusions, and a formulaic recitation of the elements of a cause of action will not

do... .” (quotation omitted)).

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Thus, the Plaintiffs’ FCCPA claim in Count VII is dismissed.

H. Count X: Spatz Plaintiffs’ FCCPA Claim

Section 559.72(18), Florida Statutes, prohibits a person from “[c]ommunicat[ing]

with a debtor if the person knows that the debtor is represented by an attorney with respect

to such debt.” “[Section] 559.72(18) generally prohibits a person who is attempting to

collect on a debt from communicating with the debtor if the person knows that the debtor

is represented by an attorney with respect to that debt.” Williams v. Educ. Credit Mgmt.

Corp., 88 F. Supp. 3d 1338, 1347 (M.D. Fla. 2015) (Honeywell, J.); Bray v. PNC Bank,

N.A., 196 F. Supp. 3d 1282, 1287 (M.D. Fla. 2016) (Mendoza, J.) “Actual knowledge is

required to prove violations of [Section 559.72(18)].” (quotation omitted)).

Once again, there are no allegations in the Amended Complaint that Campus

Advantage communicated with the Spatz Plaintiffs with the knowledge that they were

represented by counsel. The Amended Complaint has a single conclusory allegation that

Campus Advantage “attempt[ed] to communicate directly with Spatz Plaintiffs when

Defendants knew that the Spatz Plaintiffs were represented by an attorney.” (Doc. 34

4155.) Without more, Count X simply fails to meet the pleading standards that require

Plaintiffs to go beyond bare assertions and legal conclusions and to provide supporting

factual allegations. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570.

Thus, the Spatz Plaintiffs’ FCCPA claim in Count X is dismissed.

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IV. CONCLUSION

In sum, Campus Advantage’s motion to dismiss is granted because Plaintiffs’ claims

fail to plead sufficient facts that make it plausible that they are entitled to the relief sought.

Because this is the first order dismissing the operative pleading, Plaintiffs may file a second

amended complaint if they wish to proceed in this case.

Accordingly, the following is ORDERED:

1. Defendant’s Motion to Dismiss (Doc. 43) is GRANTED.

2. Plaintiffs’ Motion for Class Certification (Doc. 69), Defendant’s Motions

for Summary Judgment (Doc. 87; Doc. 97), and Plaintiffs’ related Motion

for Leave to File a Sur-Reply to Defendant’s Reply in Support of Summary

Judgment (Doc. 103) are DENIED as moot.

3. Plaintiffs may file an amended complaint on or before March 15, 2022. Ten

days after Defendant answers any amended complaint, the parties are

directed to file an amended case management report.

ORDERED in Tampa, Florida, on March 1, 2022.

fatten Keil, Mizell

athryn’ Kimball Mizelle

United States District Judge

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