Thiele v. Board of Trustees of Illinois State University

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

BAILEY THIELE and JACK MOYLAN, )

)

Plaintiffs, )

)

v. ) Case No. 1:20-cv-01197-SLD-TSH

)

BOARD OF TRUSTEES OF ILLINOIS )

STATE UNIVERSITY, LARRY DIETZ in )

his individual and official capacities, and )

JULIE ANNETTE JONES in her individual )

and official capacities, )

)

Defendants. )

ORDER

Before the Court is the Motion to Dismiss filed by Defendants Board of Trustees of

Illinois State University (“Board of Trustees” or “Board”), Larry Dietz in his official and

individual capacities, and Julie Annette Jones in her official and individual capacities, ECF No.

11. For the following reasons, the motion is GRANTED.

BACKGROUND1

The Board, an entity established by Illinois state law, 110 ILCS § 675, acts as the

governing board of Illinois State University (“ISU”). It has final authority in all matters

affecting ISU and exercises jurisdiction over ISU’s financial, educational, and other policies.

Pursuant to 110 ILCS § 675/20-45(5), the Board has the authority to assess and collect student

tuition and fees. Dietz, who holds the position of President of ISU, is ISU’s Chief Executive

1 At the motion to dismiss stage, the court “accept[s] as true all well-pleaded facts in the complaint, and draw[s] all

reasonable inferences in [the plaintiff’s] favor.” Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016). Thus, the

factual background is drawn from the First Amended Class Action Complaint, ECF No. 4.

Officer and oversees the university’s operations. Jones is Chairperson of the Board and acts as

the presiding officer of the Board.

ISU’s Spring 2020 semester began on approximately January 13, 2020 and ended on May

8, 2020; the Summer 2020 semester lasted from approximately May 18, 2020 to August 7, 2020.

On or about March 11, 2020, ISU announced that it would be taking a series of actions to

respond to the COVID-19 pandemic, in particular transitioning from in-person teaching to online

instruction until at least April 12, 2020 and closing University-operated housing, instructing all

students to return to and remain at their permanent home addresses until further notice. ISU

announced further actions on or about March 17, 2020, including instructing all students to

remain at their permanent addresses for the remainder of the semester, during which time they

would attend class via alternative means, and closing certain facilities, such as the Student

Fitness Center. On or about March 20, 2020, ISU announced that access to all campus facilities

was restricted to essential personnel only. And on or about April 9, 2020, ISU informed students

that classes offered the Summer 2020 semester would also be taught online.

Plaintiffs Bailey Thiele and Jack Moylan were enrolled as full-time undergraduate

students at ISU during all times relevant to this case. They, along with other students, left

campus on or about March 7, 2020 for spring break and were not permitted to return to campus

afterwards.

In addition to paying tuition, ISU students pay a mandatory semesterly fee for general

activities, service, athletic and recreational facilities, instructional support, and campus

enhancement. This fee is charged to each student at a per-credit-hour rate. For the Spring and

Summer 2020 semesters, the rate was $92.28 per credit hour. Thiele paid approximately

$1,384.20 in mandatory fees for the Spring 2020 semester and $369.12 for the Summer 2020

semester; Moylan paid approximately $1,107.36 for the Spring 2020 semester and $267.84 for

the Summer 2020 semester. On or about April 24, 2020, ISU announced a partial refund of the

Spring 2020 fees to all students at a rate of $12 per credit hour. It did not, however, reduce or

refund fees for Summer 2020.

Plaintiffs initiated this suit, individually and on behalf of all others similarly situated, on

May 21, 2020, bringing claims for breach of contract, unjust enrichment, and conversion and

alleging that federal jurisdiction existed under the Class Action Fairness Act, 28 U.S.C.

§ 1332(d). Compl. 3, 11–14, ECF No. 1. They filed an amended complaint on July 7, 2020,

which brings claims pursuant to 42 U.S.C. § 1983 for violations of Plaintiffs’ rights under the

Takings and Due Process Clauses of the United States Constitution, for breach of contract, for

unjust enrichment, and for conversion. Am. Compl. 18–22, ECF No. 4.2 Plaintiffs seek the

certification of this case as a class action; a declaration that Plaintiffs and Class Members have a

common law property interest in the portion of the fees paid for which they received no benefit;

a declaration that Defendants seized and retained this property interest without notice and due

process in violation of the Illinois Constitution and the Fifth and Fourteenth Amendments of the

U.S. Constitution; a declaration that Defendants are financially responsible for notifying Class

Members of this suit; an order requiring Defendants to refund the portions of the fees paid for

which Plaintiffs and Class Members received no benefit; a permanent injunction restraining

Defendants from unlawfully seizing students’ money in the future; statutory relief; reasonable

attorney’s fees, costs, and expenses; and pre- and post-judgment interest. Id. at 23–24.

Defendants now move to dismiss the amended complaint in its entirety for lack of subject matter

2 The Amended Complaint makes no reference to the Class Action Fairness Act, and the Court does not have the

information necessary to determine whether it provides an independent jurisdictional basis for this suit.

jurisdiction and, in the alternative, for failure to adequately plead any of the claims. Defs.’ Mot.

Dismiss 2–4.

DISCUSSION

I. Motion to Dismiss Pursuant to 12(b)(1)

a. Legal Standard

“A motion to dismiss under Rule 12(b)(1) tests the jurisdictional sufficiency of the

complaint.” Bultasa Buddhist Temple of Chi. v. Nielson, 878 F.3d 570, 573 (7th Cir. 2017).

When resolving such a motion, the Court “accept[s] as true all well-pleaded factual allegations

and draw[s] reasonable inferences in favor of the plaintiffs.” Id. The Court may look beyond the

complaint’s jurisdictional allegations and view other evidence submitted by the parties to

determine whether subject matter jurisdiction exists. Evers v. Astrue, 536 F.3d 651, 656–57 (7th

Cir. 2008). “[A] plaintiff faced with a 12(b)(1) motion to dismiss bears the burden of

establishing that the jurisdictional requirements have been met.” Center for Dermatology & Skin

Cancer, Ltd. v. Burwell, 770 F.3d 586, 588–89 (7th Cir. 2014).

b. Analysis

Plaintiffs allege that, because they bring claims under the Fifth and Fourteenth

Amendments, the Court has federal question jurisdiction over the suit and supplemental

jurisdiction over the related state law claims. Am. Compl. 4–5. Defendants do not dispute the

existence of the federal constitutional claims but argue that the Eleventh Amendment bars

Plaintiffs from bringing this case in federal court. Defs.’ Mem. Supp. Mot. Dismiss 4–5, ECF

No. 12. Plaintiffs counter that their claims are either not covered by the Eleventh Amendment or

fall into exceptions to the sovereign immunity doctrine. Pl.’s Resp. 4–9, ECF No. 16.

The Eleventh Amendment provides that “[t]he judicial power of the United States shall

not be construed to extend to any suit in law or equity, commenced or prosecuted against one of

the United States by citizens of another state, or by citizens or subjects of any foreign state.”

U.S. Const. amend. XI. Courts have interpreted this to mean that private individuals cannot sue

the state itself, state agencies, or state officials acting in their official capacities in federal court, a

doctrine known as sovereign immunity. Council 31 of the Am. Fed’n of State, Cnty. & Mun.

Emps., AFL-CIO v. Quinn, 680 F.3d 875, 881–82 (7th Cir. 2012). Three exceptions to sovereign

immunity have been recognized: 1) Congressional abrogation, 2) waiver, and 3) the Ex parte

Young exception. Id. at 882. The Ex parte Young exception “allows private parties to sue

individual state officials for prospective relief to enjoin ongoing violations of federal law.” Id

(quotation marks omitted). Because the exceptions to sovereign immunity are dependent upon

the type and capacity of the defendant being sued, the Court will address each group of

Defendants individually.

i. Board of Trustees

The Seventh Circuit considers public universities’ boards of trustees to be state agencies

shielded by sovereign immunity. See Kroll v Bd. of Trs. of Univ. of Ill., 934 F.2d 904, 908–09

(7th Cir. 1991) (“The Board . . . must be accorded the respect due a state under the eleventh

amendment.”); see also Lugg v. Sutton, 368 F. Supp. 3d 1257, 1263–64 (C.D. Ill. 2019) (noting

that the Board of Trustees of ISU was “an [a]gency of the State of Illinois” but had waived its

Eleventh Amendment immunity by removing a state action to federal court). The Board of

Trustees of ISU is an entity established by an Illinois statute to govern ISU, a public university,

see Am. Compl. 4; the Board is thus considered to be an agency of the state of Illinois. As such,

the claims against the Board may only proceed before this Court if an exception to sovereign

immunity applies.3

Because the Board is an agency and not a state official, the Ex parte Young exception is

inapplicable; waiver and abrogation are the only paths by which Plaintiffs might keep these

claims in federal court. For a state to waive its sovereign immunity defense, its consent to suit

must be “unequivocally expressed,” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,

99 (1984); mere failure to raise a defense of sovereign immunity does not constitute waiver, nor

can a state constructively consent to a suit, Edelman v. Jordan, 415 U.S. 651, 673, 677–78

(1974). Nothing before the Court shows that the state has consented to suit; indeed, Defendants’

Rule 12(b)(1) motion to dismiss compels the opposite conclusion, see Defs.’ Mot. Dismiss 2.

And Plaintiffs bring their constitutional claims pursuant to 42 U.S.C. § 1983, Am. Compl. 18–

19, a statute which the Supreme Court has specifically found does not abrogate state sovereign

immunity, see Quern v. Jordan, 440 U.S. 332, 340–41 (1979). As no exceptions to sovereign

immunity apply, the Court finds that the Eleventh Amendment bars this suit from being brought

against the Board.4 All claims against the Board are hereby dismissed.

ii. Dietz and Jones in their Official Capacities

As noted above, the doctrine of sovereign immunity covers state officials acting in their

official capacities. See Quinn, 680 F.3d at 881. However, in Ex parte Young, 209 U.S. 123

3 Defendants additionally argue that under Illinois state law, the Illinois Court of Claims has exclusive jurisdiction

over the contract and conversion claims brought against them, Defs.’ Mem. Supp. Mot. Dismiss 5–6, and that no

court may exercise jurisdiction over the unjust enrichment claims, id. at 6. Because the Court ultimately dismisses

all federal claims against all Defendants and declines to exercise supplemental jurisdiction over the state law claims,

see infra Section II(b)(ii), it need not address whether it lacks jurisdiction over the state law claims for these

additional reasons.

4 Plaintiffs insist that “the Supreme Court has long held that the Eleventh Amendment does not bar claims against a

state where a plaintiff seeks the return of property that belonged to the plaintiff in the first place.” Pls.’ Resp. Mot.

Dismiss 5. It appears, based on the case law they cite, see id., they simply mean to argue that suits for injunctive

relief may be brought against state officials. This is the Ex parte Young exception, which has no applicability to the

Board and will be discussed in reference to Dietz and Jones below. See infra Section II(B)(ii).

(1908), the Supreme Court created an exception to sovereign immunity under which private

parties can sue state officers in their official capacities “to enjoin prospective action that would

violate federal law.” Dean Foods Co. v. Brancel, 187 F.3d 609, 613 (7th Cir. 1999). As the Ex

parte Young exception “is necessarily limited to prospective injunctive relief,” a suit brought in

federal court pursuant to the exception may not seek “a retroactive award which requires the

payment of funds from the state treasury.” See Edelman, 415 U.S. at 677; see, e.g., Ind. Prot. &

Advoc. Servs. v. Ind. Fam. & Soc. Servs. Admin., 603 F.3d 365, 371 (7th Cir. 2010) (finding that

the plaintiff’s requested relief was prospective where it sought access to records that state

officials had denied them in violation of federal law).

Whether a plaintiff’s desired relief is sufficiently prospective and injunctive turns on the

effect the relief would have on the state, not on the type of relief the plaintiff alleges he seeks.

Quinn, 680 F.3d at 883. Claims which purport to be prospective in nature—such as requests for

injunctive or declaratory relief—that would nonetheless “impose[] upon the State a monetary

loss resulting from a past breach of a legal duty on the part of defendant state officials,” are

considered to be claims for monetary damages, forestalling use of the Ex parte Young exception.

Ameritech Corp. v. McCann, 297 F.3d 582, 587 (7th Cir. 2002) (emphasis in original); see also

MSA Realty Corp. v. State of Ill., 990 F.2d 288, 295 (7th Cir. 1993) (holding that the Eleventh

Amendment barred the plaintiff’s claim for injunctive relief because a favorable ruling would

require “direct payments by the state from its treasury for the indirect benefit of a specific entity”

and the claim for declaratory relief because it “would have [had] much the same effect as a full-

fledged award of damages or restitution” (quotation marks omitted)). However, where granting

the plaintiff’s requested injunctive relief would merely have an ancillary implication upon the

state treasury, the Eleventh Amendment will not bar the suit. Edelman, 415 U.S. at 667–68.

There is no question that Plaintiffs have alleged that Dietz and Jones in their official

capacities acted in violation of federal law—the complaint brings claims for alleged violations of

the Takings Clause and the Due Process Clause. See Am. Compl. 2, 18–19. Whether the effect

of the relief Plaintiffs purport to seek would truly qualify it as prospective and injunctive is less

clear. Plaintiffs claim that they request “prospective relief in the form of an injunction requiring .

. . Dietz and Jones to return Plaintiffs’ property that they continue to unlawfully retain in

violation of Plaintiffs’ constitutional rights.” Pls.’ Resp. Mot. Dismiss 7. But all of the claims

for relief in the First Amended Complaint in essence seek the same thing: the return of a pro-rata

portion of the money Plaintiffs previously paid to ISU in the form of mandatory fees. See Am.

Compl. 17–24. Granting this relief “would have much the same effect as a full-fledged award of

damages or restitution.” See MSA Realty, 990 F.2d at 295 (quotation marks omitted). As such,

the Court does not find that Plaintiffs have sued Dietz and Jones in their official capacities for

prospective injunctive relief as required for these claims to fall under the Ex parte Young

exception. See Dean Foods, 187 F.3d at 613. In the absence of any exception to sovereign

immunity, the Court finds that the Eleventh Amendment bars all claims against Dietz and Jones

in their official capacities; these claims are, therefore, dismissed.

iii. Dietz and Jones in their Individual Capacities

It is well established that sovereign immunity does not bar from federal court suits

alleging constitutional violations brought against state officials in their individual capacities,

even if the state officer claims to have acted within his official capacity. See Kroll, 934 F.2d at

907. However, in such cases, monetary recovery is confined only to the named defendant and

cannot implicate the state or draw recovery from the state. See Kentucky v. Graham, 473 U.S.

159, 166–68; see also Kroll, 934 F.2d at 907 (“A victory in such a suit, however, is a victory

against only the individual defendant; an award of damages may be executed only against that

official’s personal assets.”). Should the state be implicated in an award of relief against an

individual defendant, sovereign immunity comes back into play, as the state has become a de

facto defendant. See id. at 907–08; see Luder v. Endicott, 253 F.3d 1020, 1021, 1024–25 (7th

Cir. 2001) (finding, in a suit where state prison employees sued the warden in his private

capacity for withheld backpay, that although monetary damages could simply be assessed against

the warden, a ruling in the plaintiffs’ favor would also force the state to pay the employees future

additional funds, implicating the state’s treasury).

Here, a ruling against Dietz and Jones in their individual capacities would not implicate

the state treasury. Plaintiffs seek the return of a portion of their mandatory fees, Am. Compl.

23–24, an award which, if granted, could be assessed against Dietz and Jones in their individual

capacities. Even if repayment of the money were beyond Dietz’s or Jones’s financial means as

individuals, there would be no obligation on the state’s part to contribute any of its own funds.

See Luder, 253 F.3d at 1023 (“The fact that [a] state [may] choose[] to indemnify its employees

who are sued in federal court is irrelevant, because it [would be] the voluntary choice of the

state, not a cost forced on it by the federal-court suit.” (citations omitted)). And should the Court

award the requested relief against the individual Defendants, the ruling would not compel the

state to expend funds in the future for analogous payments. Cf. id. at 1024.

Sovereign immunity does not bar this suit against Dietz and Jones in their individual

capacities. The Court will thus turn next to whether Plaintiffs have adequately stated claims

against these two Defendants.

II. Motion to Dismiss Pursuant to 12(b)(6)

a. Legal Standard

A complaint must contain “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). At the motion to dismiss stage, the key

inquiry is whether the complaint is “sufficient to provide the defendant with ‘fair notice’ of the

plaintiff’s claim and its basis.” Indep. Tr. Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 934

(7th Cir. 2012) (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)); see also Geinosky v. City

of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012) (noting that courts also consider “documents

attached to the complaint, documents that are critical to the complaint and referred to in it, and

information that is subject to proper judicial notice”). While “detailed factual allegations are

unnecessary, the complaint must have ‘enough facts to state a claim to relief that is plausible on

its face.’” Pierce v. Zoetis, Inc., 818 F.3d 274, 277–78 (7th Cir. 2016) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

When deciding on a motion to dismiss, “[t]he complaint’s well-pleaded factual

allegations, though not its legal conclusions, are assumed to be true,” Phillips v. Prudential Ins.

Co. of Am., 714 F.3d 1017, 1019 (7th Cir. 2013), and the court must also “draw all inferences in

the light most favorable to the nonmoving party,” Vesely v. Armslist LLC, 762 F.3d 661, 664 (7th

Cir. 2014). “While legal conclusions can provide the framework of a complaint, they must be

supported by factual allegations.” Iqbal, 556 U.S. at 679.

b. Analysis

In their complaint, Plaintiffs bring claims pursuant to § 1983 for violations of their rights

under the Due Process Clause of the Fourteenth Amendment and the Takings Clause of the Fifth

Amendment, as well as claims for breach of contract, unjust enrichment, and conversion. Am.

Compl. 18–22. Defendants seek the dismissal of all of these claims for failure to state a claim.

Defs.’ Mem. Supp. Mot. Dismiss 7–18. The Court will first address whether Plaintiffs have

plausibly pleaded the § 1983 claims.

i. Claims Brought Under § 1983

42 U.S.C. § 1983 provides that “[e]very person who, under color of [state law] . . . ,

subjects, or causes to be subjected, any citizen of the United States or other person within the

jurisdiction thereof the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress . . . .” To adequately plead a § 1983 claim, “a plaintiff must

allege two elements: (1) the conduct complained of was committed by a person acting under

color of state law; and (2) the activity deprived a person of rights, privileges, or immunities

secured by the Constitution or laws of the United States.” Case v. Milewski, 327 F.3d 564, 566

(7th Cir. 2003). With regard to the first element, the Supreme Court has held that “state officials

sued in their individual capacities are ‘persons’ for purposes of § 1983.” Hafer v. Melo, 502 U.S.

21, 23 (1991). Thus, the pertinent question is whether Plaintiffs have plausibly pleaded

constitutional violations.5

Plaintiffs allege that they “had a constitutionally protected property interest in the

mandatory fees for the Spring and/or Summer 2020 semester(s)” of which Defendants deprived

them without due process of law in violation of the Due Process Clause and without just

5 Defendants also argue Plaintiffs have failed to plead claims individually against Dietz or Jones, as required under §

1983, citing to a case stating that respondeat superior liability is not available under the statute. Defs.’ Mem. Supp.

Mot. Dismiss 5 (citing Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983) (“An individual cannot be held

liable in a § 1983 action unless he caused or participated in an alleged constitutional deprivation. Pursuant to this

requirement, courts have rejected § 1983 claims based upon respondeat superior theory of liability.” (emphases in

original) (citations omitted))). It is unclear from the amended complaint whether Plaintiffs intend to bring claims

against Dietz and Jones in a supervisory capacity or whether they include them as direct actors through the use of

the joint term “Defendants.” See generally Am. Compl. Regardless, because the Court finds that Plaintiffs have not

adequately alleged the § 1983 claims, see infra Sections II(b)(i)(1), (2), it need not resolve this issue.

compensation in violation of the Takings Clause. Am. Compl. 18–19. Defendants dispute that

Plaintiffs have alleged a cognizable property interest as required by these constitutional

provisions, as well as argue that Plaintiffs have not satisfied the remaining elements of the

claims. Defs.’ Mem. Supp. Mot. Dismiss 8–10. Each claim will be considered in turn.

1. Due Process Claim

The Fourteenth Amendment prohibits the state from “depriv[ing] any person of life,

liberty, or property, without due process of law.” U.S. Const. amend. XIV. Plaintiffs bring a

procedural due process claim, Am. Compl. 18–19; for this claim to survive the motion to

dismiss, Plaintiffs must plausibly plead “(1) a cognizable property interest, (2) a deprivation of

that property interest, and (3) a denial of due process,” see Price v. Bd. of Educ. of City of Chi.,

755 F.3d 605, 607 (7th Cir. 2014) (quotation marks omitted). To demonstrate the existence of a

constitutionally protected property interest, a plaintiff must show that the property in question is

an “entitlement”—a “valuable right that cannot be withdrawn unless a specified substantive

condition comes to pass.” Lim v. Cent. DuPage Hosp., 871 F.2d 644, 646 (7th Cir. 1989)

(italicization omitted). The plaintiff “must have more than a unilateral expectation of” the

property—he must “have a legitimate claim of entitlement to it.” Bell v. City of Country Club

Hills, 841 F.3d 713, 717 (7th Cir. 2016) (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S.

564, 577 (1972)).

“Whether a plaintiff has a property interest protected by the Due Process Clause . . .

typically is ‘defined by existing rules or understandings that stem from an independent source

such as state law.’” Dyson v. City of Calumet City, 306 F. Supp. 3d 1028, 1040 (N.D. Ill. 2018)

(quoting Roth, 408 U.S. at 577). “Accordingly, federal property interests . . . usually arise from

rights created by state statutes, state or municipal regulations or ordinances, and contracts with

public entities.” Bell, 841 F.3d at 717 (quotation marks omitted). However, “whether a

particular state-created interest rises to the level of a legitimate claim of entitlement is a question

of federal law.” Id. (quotation marks omitted).

While not entirely clear, Plaintiffs appear in their complaint to characterize their property

interest as one stemming from a contractual relationship with ISU. See Am. Compl. 11–12

(alleging that based on common law rules, “Plaintiffs . . . have a protected property right in all

sums that they paid to ISU for which they received nothing in return”); id. at 17 (“Plaintiffs . . .

are entitled to the disgorgement and return of either their payment of the mandatory fees or the

return of the reasonable value thereof.”); see also id. at 19–20 (alleging that “Plaintiffs . . .

entered into contracts with ISU, which provided that Plaintiffs . . . would pay the cost of

mandatory fees for or on behalf of students, and, in exchange, ISU would provide services

related to those fees” and that “Plaintiffs . . . fulfilled their end of the bargain when they paid

those mandatory fees” but that “ISU breached the contract” by “retain[ing the] fees . . . without

providing [Plaintiffs] with the benefit of their bargain”).

In the response to the motion to dismiss, Plaintiffs argue that because ISU classifies

mandatory student fees as an “agency fund,” Pls.’ Resp. Mot. Dismiss 15 (quotation marks

omitted), held by ISU as custodian for the students, and because “[a]gency funds are restricted in

use to the specific purposes for which they are charged,” ISU must use the student fees “for the

purpose in which they were charged,” id. (“In other words, Defendants’ possession of the funds

was not license for them to do with the funds as they pleased.”). While again not clear, this

appears to be in furtherance of a claim that Plaintiffs’ property interest stems from a contract

with ISU for the provision of services in exchange for the payment of the mandatory fees, with

the added clarification that the payments were required to be used only for the “specific purposes

for which they [were] charged,” id. at 15; see id. at 16 (“Plaintiffs had a contractual entitlement

that their consideration would be returned to them upon Defendants’ failure to perform.”); id. at

17 (“Plaintiffs’ constitutional claims are a proper avenue to the same sought-after result of a

breach of contract claim: just compensation for the taking of Plaintiffs’ property.”).6

The Seventh Circuit has held that “[i]f a contract creates rights specific enough to be

enforced in state court by awards of damages or specific performance, then it creates a legitimate

claim of entitlement; and if it creates such a claim, it is ‘property.’” Mid-Am. Waste Sys., Inc. v.

City of Gary, Ind., 49 F.3d 286, 290 (7th Cir. 1995). “It is held generally in the United States

that the basic legal relation between a student and a private university or college is contractual in

nature,” Ross v. Creighton Univ., 957 F.2d 410, 416 (7th Cir. 1992) (quotation marks omitted);

the same has been held for public universities, see Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d

599, 601–02 (7th Cir. 2009). As such, “a student may establish that an implied contract existed

between himself and the university that entitled the student to a specific right.” Id. at 601

(emphasis added). While “[a] right established by [this] implied contract . . . can be a property

interest subject to constitutional protection, . . . the student must first show that the implied

contract establishes an entitlement to a tangible continuing benefit” by “point[ing] to an

6 To the extent that Plaintiffs attempt to additionally argue in their response that the mandatory fees they paid to ISU

were then put in some form of trust fund for their exclusive use, thus remaining their personal property, their

allegations are simply too vague for the Court to make this inference. Plaintiffs argue that the classification of the

mandatory fees as “agency funds” and Defendants’ alleged role as “custodians” is sufficient for the Court to infer

that Plaintiffs “retained an ownership and interest in these funds, as Defendants, as custodians, were to hold the

funds for the benefit of various and specific facilities and services offered and made available to them throughout

the course [of] each respective academic term.” Pls.’ Resp. Mot. Dismiss 15. But the mere allegation that these

words appear in ISU’s materials is not sufficient to allow for the inference that a legally relevant custodian-owner

relationship existed between Plaintiffs and Defendants. And the case law Plaintiffs cite in support of this idea not

only involves the vastly different circumstances of prisoner funds but also does not show that prisoners necessarily

have a protected property interest in such funds. See id. at 15–16 (citing Eubanks v. McCotter, 802 F.2d 790, 792,

794 (5th Cir. 1986) (holding only that prisoners’ federal claims regarding various funds were “minimally sufficient

to require a decision on the merits” but “express[ing] no further views on the merits” of whether the prisoners

adequately alleged a deprivation of property rights); Booker-El v. Superintendent, Ind. State Prison, 668 F.3d 896,

901 (7th Cir. 2012) (finding that a prisoner had no protected property interest in the inmates’ recreation fund).

identifiable contractual promise that the [university] failed to honor.” Id. at 602 (emphasis

added) (sixth alteration in original) (quotation marks and citations omitted). Because “[t]he

catalogues, bulletins, circulars, and regulations of the institution made available to the

matriculant may become part of the contract,” a student may look to such materials to identify a

specific promise. See id. (quotation marks omitted). “[I]t is not enough for a student to merely

state that such an implied contract existed”—he must be specific in his pleadings “about the

source of this implied contract, the exact promises the university made to the student, and the

promises the student made in return.” Charleston v. Bd. of Trs. of Univ. of Ill. at Chi., 741 F.3d

769, 773 (7th Cir. 2013).

The Court does not find that Plaintiffs have plausibly alleged that a contract existed

between ISU and them specifically promising access to every facility and activity for which their

fees were intended. Plaintiffs’ allegation that they “entered into contracts with ISU, which

provided that Plaintiffs . . . would pay the cost of mandatory fees for or on behalf of students,

and, in exchange, ISU would provide services related to those fees, such as access to student

activities, athletics, wellness centers, etc.,” Am. Compl. 19, is merely conclusory and not

supported by the factual allegations. The complaint states that the mandatory fees “included fees

for general activity, athletics and service, the Redbird Arena, the Bone Student Center, athletic

and recreational facilities, health and wellness, instructional support, and campus enhancement,”

Am. Compl. 9–10; that the mandatory fees were “charged solely to cover the cost of certain on-

campus services, facilities, and materials that [were] no longer available to students,” id. at 11;

and that the mandatory fees were “earmarked for services and facilities that were not available to

them due to the COVID-19 pandemic,” id. at 18—all of which suggests only that ISU promised

to spend the fees on certain services, not to provide students with access to those services.

Plaintiffs also include links to ISU websites, see Am. Compl. 5–6, 10, none of which, the

Court finds, contains the promises Plaintiffs conclude they do. A website detailing what

mandatory fees will be used for states that “[a]ll students are assessed the mandatory fees on a

per-credit hour basis whether or not they opt to take advantage of the services” and that “[t]his is

the case for students who are on campus or off campus.” Outreach Fee, Office of the

Comptroller: Illinois State University, https://studentaccounts.illinoisstate.edu/billing/fees/ (last

visited Sept. 23, 2021). The website describes the fee as “a portion of the cost of attendance at

[ISU] to cover administrative costs of having such services available to all students” and lists the

services the fee will be used to support, such as athletic services, health and wellness, and the

student center. Id. Again, the only promise which may be drawn from this website is that the

fees would be used to cover the administrative costs of maintaining various buildings, services,

and programs—operational costs ISU would have even if the buildings, services, and programs

were not open to anyone. Nothing promises that students are entitled to access in exchange for

payment.

Plaintiffs also point to a myriad of statements from ISU’s website “focus[ing] on the on-

campus experience students receive as members of the Redbird community,” “boast[ing] that

students’ strongest connections at ISU will come from their on-campus community,” and

“stressing the importance [of] its state-of-the-art on-campus amenities to the student experience.”

Am. Compl. 5–6 (quotation marks omitted). The Court finds that such promotional materials

are, at best, “unenforceable expectations” of what ISU hopes students will experience. See

Oyoque v. DePaul Univ., 520 F. Supp. 3d 1058, 1065 (N.D. Ill. 2021) (“As alluring as those

statements might be, they aren’t concrete promises.” (emphasis in original)).

In the response to the motion to dismiss, Plaintiffs refer to additional materials.7 Pls.’

Resp. Mot. Dismiss 15. A website on ISU policy and procedures shows that student fees are

classified as “[a]gency funds”, which “are defined as resources held by the institution as

custodian or Budget Officer for individual students, faculty, staff members, or organizations.”

University Policy & Procedures: 7.6.5 Agency Funds, Illinois State University,

https://policy.illinoisstate.edu/fiscal/7-6-5.shtml (last visited Sept. 23, 2021). A PowerPoint

produced by ISU detailing various budgeting issues likewise states that mandatory fees are

“[a]gency [a]ccounts” and that agency funds are “[r]esources held by the institution as custodian

or budget officer for individual students, faculty, staff members, or organizations” and are

“restricted in issue to the specific purpose for which they are charged.” The Color of Money 12–

13, Pls.’ Resp. Mot. Dismiss Ex. 1., ECF No. 16-1. But again, at most these show that ISU made

a promise to use the mandatory fees on the various services specified. Plaintiffs have failed to

plausibly allege that ISU specifically promised them, in exchange for their payment of

mandatory fees, to provide them with access to these services. As such, they have not

adequately pleaded they had a contractual entitlement to access to campus services on demand,

nor have they plausibly claimed they “had a contractual entitlement that their consideration

would be returned to them upon Defendants’ failure to perform,” Pls.’ Resp. Mot. Dismiss 22.

This conclusion is in accord with the decisions of several other district courts in the

Seventh Circuit faced with similar (albeit breach of contract) cases about colleges and

universities depriving students of in-person classes and services due to COVID-19. See

Buschauer v. Columbia Coll. Chi., No. 20 C 3394, 2021 WL 1293829, at *6 (N.D. Ill. Apr. 6,

7 See Early v. Bankers Life & Cas. Co., 959 F.2d 75, 79 (7th Cir. 1992) (“[A] plaintiff is free, in defending against a

motion to dismiss, to allege without evidentiary support any facts he pleases that are consistent with the complaint,

in order to show that there is a state of facts within the scope of the complaint that if proved . . . would entitle him to

judgment.”).

2021) (finding that the plaintiff’s “references to the student handbook and other materials

describing the student center, health center, or information technology department merely

provide information about what facilities and services [the college] provides students, not any

specific promises of access to these facilities and services in-person at all times” and that, as

such, the court could not “find that [the plaintiff] has sufficiently alleged that his payment of the

activity, health center, instruction resource, registration, technology, or U-Pass fees entitled him

to on-campus, in-person services”); Oyoque, 520 F. Supp. 3d at 1058 (holding that “none of the

facts alleged by the plaintiffs” through reference to the university’s academic catalog, student

handbooks, and marking materials “amounts to a concrete contractual promise to provide in-

person educational services, experiences, or opportunities”); Oyoque v. Depaul Univ., Case No.

20 C 3431, 2021 WL 1837399, at *2 (N.D. Ill. May 7, 2021) (noting that the language cited by

the plaintiffs was “either aspirational, intended simply to inform students of resources and

amenities available to them, or a combination of both”); Gociman v. Loyola Univ. of Chi., 515 F.

Supp. 3d 861, 869 (N.D. Ill. 2021) (“[N]one of the materials identified by [the] plaintiffs

demonstrate a promise to provide in-person instruction and in-person services.”); Miller v. Lewis

Univ., Case No. 20 C 5473, 2021 WL 1379488, at *5 (N.D. Ill. Apr. 11, 2021) (stating that

“[w]ithout more, [the] notations [in the course schedule regarding the instructional method of

each class] are informative rather than promissory and [the plaintiff] cannot transform such

statements into a binding contract”); Polley v. Northwestern Univ., Case No. 20 C 4798, 2021

WL 4192076, at *8 (N.D. Ill. Sept. 15, 2021) (finding that the descriptions on the university’s

website “do not have any language that indicates a guarantee [of in-person instruction] has been

made if prospective students accept the offer of admissions”).

While other district courts have come to the opposite conclusion, see, e.g., Doe v. Bradley

Univ., Case No. 20-1264, 2020 WL 7634159, at *2–3 (C.D. Ill. Dec. 22, 2020) (noting that

“[c]ourts have largely denied universities’ motions to dismiss on nearly identical breach of

contract claims because they found there were sufficient facts to allege a contract for in-person

instruction based on university handbooks, catalogs, and brochures” and deciding to follow their

example); Ford v. Rensselaer Polytechnic Inst., 507 F. Supp. 3d 406, 418 (N.D.N.Y. 2020)

(“What matters at this moment is that [the] plaintiffs have plausibly alleged that [the] defendant

specifically promised in its circulars a bevy of in-person academic programs that it did not

provide.”); Rosado v. Barry Univ. Inc., 499 F. Supp. 3d 1152, 1157 (S.D. Fla. 2020) (concluding

that the plaintiff’s “allegations that [the university] accepted $773 more per credit for in-person

classes from [the plaintiff], and actually provided in-person education to [the plaintiff] until

March 19, 2020, in the backdrop of numerous other documents referring to in-person classes and

amenities, are sufficient to establish, at minimum, an implied contract”), the Court is not

persuaded by their reasoning as it applies to this case.

As Plaintiffs have failed to plausibly allege a property interest in the property of which

they claim they were deprived without due process of law, their Due Process claim must be

dismissed.

2. Takings Claim

The Takings Clause of the Fifth Amendment states that “private property [shall not] be

taken for public use, without just compensation.” U.S. Const. amend V. For this claim to

survive the motion to dismiss, Plaintiffs must allege that 1) they had a property interest over the

property taken and 2) the government failed to justly compensate them for the loss. See Knick v.

Twp. of Scott, Pa., 139 S. Ct. 2162, 2167–68 (2019). Courts often look to the same principles

when determining whether a property interest exists for the purposes of a takings claim as with a

procedural due process claim. See Bell, 841 F.3d at 720 (stating that “[t]he deficiency in [the

plaintiff’s] takings claim is conclusive regarding her due process claim, as there can be no

deprivation of property without procedural or substantive due process of law without an

underlying property interest”); Dyson, 306 F. Supp. 3d at 1040 & n.4 (citing to Roth and Bell

when analyzing the plaintiff’s Takings Clause claim and stating that “[t]he distinction [between

what is considered a property interest for the Due Process Clause and for the Takings Clause]

does not matter here, . . . as [the plaintiff] has an interest in the use of the property under either

constitutional provision”). However, “[t]he Due Process Clause . . . recognizes a wider range of

interests as property than does the Takings Clause.” Pro-Eco, Inc. v. Bd. of Comm’rs of Jay

Cnty., Ind., 57 F.3d 505, 513 (7th Cir. 1995). Because the Court finds that Plaintiffs have failed

to allege a cognizable property interest under the more inclusive procedural due process

standard, the Court also finds that they have failed to allege a property interest for their Takings

Clause claim. As such, the Court dismisses the Takings Clause claim as well.

ii. Other Claims

Having dismissed the two § 1983 claims, only the claims for breach of contract, unjust

enrichment, and conversion, and the requests for declaratory and injunctive relief, remain. In the

absence of any remaining federal claims, and as the parties are not diverse, see Am. Compl. 3–4,

the Court declines to exercise supplemental jurisdiction over the remaining claims. See RWJ

Mgmt. Co. v. BP Prods. N. Am., Inc., 672 F.3d 476, 479 (7th Cir. 2012) (“The supplemental-

jurisdiction statute provides that the district court ‘may decline to exercise supplemental

jurisdiction’ over state-law claims if the court ‘has dismissed all claims over which it has original

jurisdiction.’” (citing 28 U.S.C. § 1367(c)(3))). As such, it does not reach the question of

whether Plaintiffs have adequately stated these claims against Dietz and Jones in their individual

capacities.

CONCLUSION

For the foregoing reasons, the Court GRANTS the Motion to Dismiss, ECF No. 11. The

Clerk is directed to enter judgment and close the case.

Entered this 30th day of September, 2021.

s/ Sara Darrow

SARA DARROW

CHIEF UNITED STATES DISTRICT JUDGE