Dutra v. Trustees of Boston University

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 20-10827-RGS

IN RE: BOSTON UNIVERSITY

COVID-19 REFUND LITIGATION

MEMORANDUM AND ORDER ON

DEFENDANT’S MOTION TO DISMISS

January 7, 2020

STEARNS, D.J.

Plaintiffs Julia Dutra, Gabriella Dube, Shakura Cox, Valaauina Silulu,

Natalia Silulu, Olivia Bornstein, and Venus Tran filed this putative class

action against defendant Trustees of Boston University (BU).1 By way of a

Second Consolidated Amended Class Action Complaint (SCAC) (Dkt. # 49),

they allege that BU breached an express or implied contract with its students

(Counts I and II, respectively) or, alternatively, unjustly enriched itself at its

students’ expense (Count III) when it retained tuition and fees collected for

the Spring semester of 2020 despite ceasing in-person instruction and

closing its on-campus facilities and resources in March of 2020. BU moves

1 Plaintiffs initially filed separate actions (1:20-cv-10827; 1:20-cv-

10834; 1:20-cv-10914; 1:20-cv-11118; and 1:20-cv-11260). The court

consolidated these actions into the present case in September of 2020.

to dismiss all claims pursuant to Fed. R. Civ. P. 12(b)(6). For the following

reasons, the court will ALLOW the motion in part and DENY it in part.

BACKGROUND

The essential facts, drawn from the SCAC and documents incorporated

by reference and, as required by the Rule, viewed in the light most favorable

to the plaintiffs, are as follows. BU is a university located in Boston,

Massachusetts. It “is the fourth largest private, not-for-profit, residential

research university in the United States, with over 35,000 students across

over 300 programs of study.” SCAC ¶ 34. Plaintiffs are undergraduate and

graduate students who enrolled in classes at BU during the Spring semester

of 2020.2

According to the SCAC, plaintiffs entered into a contractual agreement

with BU to pay tuition and fees for the Spring semester of 2020 in exchange

for, inter alia, access to campus facilities and activities, in-person instruction

in a physical classroom, and room and board. See id. ¶¶ 165-166, 184; see

also id. ¶ 33 (“[T]he tuition and fees for which BU charged Student Plaintiffs

were predicated on access to and constant interaction with and feedback

2 Plaintiff Valaauina Silulu is not a student at BU, but the SCAC

includes him as a party because he “agreed to repay N[atalie] Silulu’s loans,

which she used to pay a portion of her tuition and fees.” Id. ¶ 32.

from peers, mentors, professors, and guest lecturers; access to technology,

libraries, and laboratories; opportunities to attend or participate in spectator

sports and athletic programs; access to student government and health

services; and participation in extracurricular groups and learning, among

other things.”). Plaintiffs purport to derive the terms of this contract from

representations made by BU regarding tuition and fee payments and from

representations made in BU’s course registration materials for the Spring

semester of 2020.3

Plaintiffs allege that they fulfilled their obligations under the contract

when they paid the required “tuition, mandatory fees, and room and/or

board costs” for the Spring semester of 2020.4 Id. ¶ 166. They enrolled in

in-person courses designated in registration materials to occur at specific

times at specific locations on campus and received syllabi imposing strict

3 Plaintiffs also highlight the existence of several writings they view as

consistent with the terms of this alleged contract, e.g., course syllabi and

university marketing materials.

4 The undergraduate students (Dutra, Dube, Natalie Silulu, and

Bornstein) paid $27,360.00 in tuition; a $60.00 Community Service Fee; a

$307.00 Student Services Fee; and a $219.00 Health & Wellness Fee for the

spring semester of 2020. They also paid an annual Sports Pass Fee of

$130.00 at the beginning of the 2019-2020 academic year. The graduate

students (Cox and Tran) paid tuition that “differs based on degree and course

of study” (e.g., $17,568.00 for the School of Social Work), see id. ¶ 111, and

fees that “vary based on program of study” (e.g., $378.00 for the medical

sciences program), see id. ¶ 112.

attendance requirements. For the first half of the semester, they attended

their classes in-person as specified in these documents. On March 11, 2020,

however, BU informed students “that classes would transition to online-only

classes for at least a month, from March 16, 2o20 through April 13, 2020.”

Id. ¶ 117. Less than a week later, BU notified students “that the remainder of

the semester would be limited to online only [instruction] and that students

. . . would be requested to vacate campus residential facilities” by March 22,

2020. Id. ¶ 118. BU closed many of its on-campus resources (e.g., the Fitness

& Recreation Center) at the same time it closed the residential facilities and

dramatically curtailed the services and activities offered at others (e.g., the

Student Services and Health and Wellness centers). Plaintiffs did not have

access to these shuttered services at any point during the remainder of the

semester.

On April 3, 2020, BU agreed to refund a prorated portion of students’

room and board fees dating from the March 22, 2020 closing of the

residential facilities. It refused, however, to offer students a refund for

tuition or any other semester fees. Plaintiffs seek through this putative class

action to obtain a refund for a portion of these payments. They assert three

claims on behalf of “[a]ll people who paid BU tuition, fees and/or room and

board for in-person educational service, programs, access, and room and

board that BU failed to provide during the Spring Term, and whose tuition

and/or fees have not been refunded”: breach of an express contract (Count

I); breach of an implied contract (Count II); and unjust enrichment (Count

III). Id. ¶ 147.

DISCUSSION

“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 (2009), quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007). Two basic principles guide the

court’s analysis. “First, the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions.”

Iqbal, 556 U.S. at 678. “Second, only a complaint that states a plausible claim

for relief survives a motion to dismiss.” Id. at 679. A claim is facially

plausible if its factual content “allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. at 678.

a. Counts I and II, breach of contract

Counts I and II assert claims for breach of contract (express and

implied, respectively) relative to the payment of tuition and fees for the

Spring semester of 2020.5 “Under Massachusetts law, a breach of contract

claim requires the plaintiff to show that (1) a valid contract between the

parties existed, (2) the plaintiff was ready, willing, and able to perform,

(3) the defendant was in breach of the contract, and (4) the plaintiff

sustained damages as a result.” Bose Corp. v. Ejaz, 732 F.3d 17, 21 (1st Cir.

2013), citing Singarella v. City of Boston, 342 Mass. 385, 387 (1961).

BU argues that plaintiffs have failed to state a claim because they have

articulated no legal basis for any contractual right to in-person instruction.

Plaintiffs respond that the contractual right to in-person instruction derives

from their payment of tuition, which purportedly gave them the opportunity

to register for courses, and from representations in BU’s course registration

materials, which implied that plaintiffs would receive traditional, face-to-

face instruction at physical locations on campus for each of the courses for

which they registered. Drawing all inferences in plaintiffs’ favor, the court

cannot, as a matter of law, say that no student could have reasonably

5 The court is not convinced that plaintiffs’ contract claim is a disguised

educational malpractice claim, as BU implies. The SCAC appears to

challenge the fact of the switch from in-person to online instruction, not the

quality of the online education BU provided. See Salerno v. Florida S. Coll.,

2020 WL 5583522, at *5 (M.D. Fla. Sept. 16, 2020). And while it is possible

that the measure of damages for this alleged breach will so inextricably

implicate the issue of quality as to render the claim non-actionable, the court

needs more information before it can make an informed judgment.

expected that paying the tuition charged for the Spring semester of 2020 and

registering for on-campus courses would entitle them to in-person

instruction. See Bleiler v. Coll. of Holy Cross, 2013 WL 4714340, at *15 (D.

Mass. Aug. 26, 2013) (“When interpreting contracts between students and

their academic institutions, under Massachusetts law courts employ the

standard of reasonable expectation — what meaning the party making the

manifestation, the university, should reasonably expect the other party to

give it.” (internal quotation marks omitted)), quoting Schaer v. Brandeis

Univ., 432 Mass. 474, 478 (2000). The court needs the benefit of further

factual development of the contractual claims to resolve the issue on the

merits.6 The court accordingly denies the motion to dismiss the portions of

Counts I and II premised on payment of tuition.

The portions of Counts I and II premised on the failure to provide

access to on-campus facilities and resources present a closer question.

Plaintiffs allege that their payment of certain fees entitled them to access the

6 Other documents unavailable to the court at the motion to dismiss

stage, for example, may undercut the reasonableness of any expectation of

in-person instruction. In a similar vein, review of the specific

representations BU made during the billing and course registration

processes (the court has not yet seen the documents relevant to these

processes) may reveal that no student could have reasonably expected

payment of tuition and fees and registration for classroom courses to entitle

him or her to in-person instruction and access to on-campus facilities and

resources.

referenced facilities and services. To assess the parties’ reasonable

expectations, the court turns to the descriptions provided by BU for each fee.

BU describes the fees in general terms of “support[ing]” programs or

“offset[ting] costs.” SCAC ¶¶ 100, 102, 104. But see id. ¶¶ 6, 108 (noting that

students pay the Sports Pass fee in exchange for “admission to all home

events for ice hockey, basketball, lacrosse and soccer”). While such broad

language would ordinarily weigh against a finding of a contractual right to

access any particular on-campus facilities or resources, the court finds it

significant that the descriptions in this case also refer to specific activities

occurring at specific locations (e.g., “services at the George Sherman Union,

East Campus Student Service Center, Residence Halls and other such

student support spaces,” or operations at the “student Health Services clinic

at 881 Commonwealth Avenue as well as the Fitness & Recreation Center and

their satellite operations”), and that BU “dramatically curtailed” or no longer

provided these activities after March 22, 2020. Id. ¶¶ 100-108. Under the

circumstances, the court cannot say, as a matter of law, that plaintiffs could

not have reasonably expected that their payment of mandatory fees would

grant them access to at least some of the on-campus facilities and resources

shut down by BU on March 22, 2020. Further factual development is needed

to resolve the issue on the merits. The court will therefore deny the motion

to dismiss the portions of Counts I and II premised on the failure to provide

access to on-campus facilities and resources.

Turning to the remaining aspect of plaintiffs’ contract claims – the

portions seeking a refund on room and board costs for the week between

March 15, 2020 and March 22, 2020 – the court determines that plaintiffs

have not shown any plausible entitlement to relief. BU does not appear to

dispute that it had a contractual obligation to provide housing for students

during this week. Instead, it asserts that plaintiffs have not shown any

breach of the referenced obligation. The court agrees. BU may have

encouraged its students vacate housing “sooner [than March 22, 2020] if

possible,” but it did not require any student to vacate on-campus housing

prior to this date. See SCAC ¶ 141. And the court declines to find that

encouragement alone, without any indication BU acted to prevent plaintiffs

from returning to their housing during the relevant period, is sufficient to

establish constructive eviction. The court accordingly grants the motion to

dismiss the portions of Counts I and II premised on the failure to provide

room and board during the week between March 15, 2020 and March 22,

2020.

b. Count III, unjust enrichment

Count III asserts a claim of unjust enrichment. To establish unjust

enrichment, a plaintiff must show (1) “she conferred a benefit upon the

defendant,” (2) “the defendant accepted the benefit,” and (3) “the

defendant’s retention of the benefit would be inequitable without payment

for its value.” Reed v. Zipcar, Inc., 883 F. Supp. 2d 329, 334 (D. Mass. 2012).

BU argues that plaintiffs cannot, as a matter of law, state a claim for

unjust enrichment because they have an adequate alternative remedy

available, namely, a breach of contract action. See Shaulis v. Nordstrom,

Inc., 865 F.3d 1, 16 (1st Cir. 2017) (noting that “a party with an adequate

remedy at law cannot claim unjust enrichment”). BU, however, disputes the

existence of any contract between the parties requiring in-person instruction

or access to on-campus facilities and resources, and plaintiffs plead unjust

enrichment only to the extent the parties do not have a valid contract on

these grounds. It would thus be inappropriate for the court to find plaintiffs

limited to a contractual remedy at this juncture. See Lass v. Bank of Am.,

N.A., 695 F.3d 129, 140-141 (1st Cir. 2012).

BU alternatively suggests that plaintiffs have failed to establish the

existence of unjust circumstances warranting application of an equitable

remedy. The court agrees as to the portions of plaintiffs’ claim premised on

the failure to provide room and board during the week of March 15, 2020

through March 22, 2020. As noted above, plaintiffs have not sufficiently pled

that they were constructively evicted from their housing during this period,

and they do not assert any other basis to find the existence of unjust

circumstances. The court accordingly dismisses these portions of Count III.

The court declines to dismiss the remaining portions of Count III,

however. Unjustness is “a quality that turns on the reasonable expectations

of the parties.” See Metro. Life Ins. Co. v. Cotter, 464 Mass. 623, 644 (2013),

quoting Glob. Invs. Agent Corp. v. Nat’l Fire Ins. Co., 76 Mass. App. Ct. 812,

826 (2010). Here, plaintiffs allege that they reasonably expected to receive

in-person instruction and access to on-campus facilities and resources in

return for payment of tuition and fees and that BU failed to provide these

services. Because the court cannot say, as a matter of law, that no reasonable

juror taking these allegations as true could determine that BU’s failure to

refund tuition and fees was unjust under the circumstances, the court

declines to dismiss the portions of Count III premised on the failure to

provide in-person instruction or access to on-campus facilities and

resources.

ORDER

For the foregoing reasons, the motion to dismiss is ALLOWED in part

and DENIED in part. Specifically, the court dismisses the portions of Counts

I, II, and III premised on the failure to provide room and board for the week

between March 15, 2020 and March 22, 2020. The portions of Count I, II,

and III premised on the failure to provide in-person instruction and the

closure of on-campus facilities and resources, however, survive defendant’s

motion.

SO ORDERED.

/s/ Richard G. Stearns___ _____

UNITED STATES DISTRICT JUDGE