GAVIRIA v. LINCOLN EDUCATIONAL SERVICES CORPORATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

JOHN GAVIRIA, on behalf of himself

and all others similarly situated,

Plaintiff,

Civ. No. 20-18552 (KM) (JBC)

v.

OPINION

LINCOLN EDUCATIONAL SERVICES

CORPORATION,

Defendant.

KEVIN MCNULTY, U.S.D.J.:

Lincoln Educational Services Corporation (“Lincoln Tech”) operates for-

profit vocational education institutions. John Gaviria began as a student at one

such institution, but shortly after his enrollment, Lincoln Tech transitioned to

online education in response to the COVID-19 pandemic. Gaviria, on behalf of

himself and a putative class, sued Lincoln Tech to recover tuition and fee

payments under contract, quasi-contract, and tort theories. Lincoln Tech

moves to dismiss for failure to state a claim. (DE 12.)1 For the following

reasons, the motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

Lincoln Tech provides vocational and technical education programs at

campuses throughout the country. (Am. Compl. ¶¶ 19, 28.) It publicly

1 Certain citations to the record are abbreviated as follows:

DE = docket entry

Am. Compl. = Amended Complaint (DE 10)

Mot. = Lincoln Tech’s Brief in Support of its Motion to Dismiss (DE 12-2)

Opp. = Gaviria’s Opposition to Lincoln Tech’s Motion to Dismiss (DE 14)

Reply = Lincoln Tech’s Reply Brief (DE 15)

Agmt. = Enrollment Agreement (DE 12-4)

promotes the hands-on training its courses offer. (Id. ¶¶ 41–48.) Gaviria

enrolled in courses at a Lincoln Tech campus in, alas, February 2020. (Id.

¶ 16.) He paid over $19,000 for tuition as well as a $400 “Student Fee,” a $96

“Technology Fee,” and a $150 “Registration Fee.” (Id.)

The next month, in response to government orders related to COVID-19,

Lincoln Tech transitioned to providing courses online and closed the campus.

(Id. ¶¶ 10, 31, 32, 34.) Such virtual education is “materially different in

practically every aspect” from in-person instruction, according to Gaviria. (Id.

¶ 49.) Yet Lincoln Tech has not offered even a partial refund. (Id. ¶ 35.)

To recover his tuition and fee payments, Gaviria sued Lincoln Tech,

asserting claims for (1) breach of contract, (2) unjust enrichment, and

(3) conversion (Id. ¶¶ 71–116.) He invokes jurisdiction under the Class Action

Fairness Act (“CAFA”), Pub. L. No. 109-2, 119 Stat. 4 (2005) (codified in

pertinent part at 28 U.S.C. §§ 1332(d), 1441, 1446). (Am. Compl. ¶ 21.)2 He

alleges that a contract formed between him and Lincoln Tech “through the

application process, the admission process, the registration process, the

payment process, and throughout enrollment.” The terms of that contract “are

contained in numerous documents, including the acceptance letter, the

application, the course catalog, the student handbook, and other documents.”

(Id. ¶ 40.)

2 According to the Amended Complaint, both Gaviria and Lincoln Tech are

citizens of New Jersey. (Am. Compl. ¶¶ 17, 22.) While this would preclude diversity

jurisdiction in an ordinary case, CAFA allows for jurisdiction if “any member of a class

of plaintiffs is a citizen of a State different from any defendant.” 28 U.S.C.

§ 1332(d)(2)(A). This language encompasses unnamed plaintiffs. Gallagher v. Johnson

& Johnson Consumer Cos., 169 F. Supp. 3d 598, 602 (D.N.J. 2016) (citing Lowery v.

Ala. Power Co., 483 F.3d 1184, 1193 n. 24 (11th Cir. 2007)). Gaviria alleges that

Lincoln Tech has institutions throughout the United States, serving students from

several states. (Am. Compl. ¶¶ 19–20.) He seeks to represent a national class. (Id.

¶ 61.) Because the putative class would include non-New Jersey citizens, and Lincoln

Tech does not challenge the veracity of these jurisdictional allegations, I will assert

jurisdiction under CAFA.

Lincoln Tech has moved to dismiss the complaint. (Mot., DE 12) With its

motion, Lincoln Tech provided an “Enrollment Agreement” signed by Gaviria.

That Agreement included a few provisions relevant here:

• an acknowledgment that an online “course companion platform and/or

courseware may be used throughout all or some of the program” (Agmt.

at 5);

• an acknowledgment that the registration fee was non-refundable, and

after the third day of classes, “any refund due for student fees and

technology fees will be prorated based upon use” (id. at 8);

• a clause stating that Lincoln Tech is released from claims that it did not

perform if such non-performance was due to “an Act of God, strike or any

other matter or thing beyond [its] control” (id. at 9);

• a clause stating that Lincoln Tech “reserves the right to alter hours of

attendance and curriculum content or class starting dates when deemed

necessary,” and such changes will not alter the refund policy (id.); and

• an acknowledgment that the Agreement “constitutes the entire contract

between the parties and that no representations other than herein

contained have been made” (id.).

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 8(a) does not require that a pleading

contain detailed factual allegations but “more than labels and conclusions.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The allegations must raise

a claimant’s right to relief above a speculative level, so that a claim is “plausible

on its face.” Id. at 570. That standard is met when “factual content [] 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). Rule 12(b)(6)

provides for the dismissal of a complaint if it fails to state a claim. The

defendant bears the burden to show that no claim has been stated. Davis v.

Wells Fargo, 824 F.3d 333, 349 (3d Cir. 2016). I accept facts in the complaint

as true and draw reasonable inferences in the plaintiff’s favor. Morrow v.

Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (en banc).

III. DISCUSSION

In support of dismissal, Lincoln Tech argues that (A) it is immune from

this suit, and (B) Gaviria fails to state a claim.

A. Immunity

Lincoln Tech argues that it is immune from this suit under the New

Jersey Emergency Health Powers Act, N.J. Stat. Ann. § 26:13-1 et seq. (Mot. at

7–10.) The Act generally grants the New Jersey Governor and other state

officials certain powers to act in an emergency. See Nat’l Ass’n of Theater

Owners v. Murphy, Civ. No. 20-8298, 2020 WL 5627145, at *5–6 (D.N.J. Aug.

18, 2020). As relevant here, it provides as follows:

A person or private entity . . . shall not be liable for an injury

caused by any act or omission in connection with a public health

emergency . . . provided that the action of the person or entity is

undertaken pursuant to the exercise of the authority provided

pursuant to this act, including any order, rule or regulation

adopted pursuant thereto.

N.J. Stat. Ann. § 26:13-19(c)(2). There are no reported judicial interpretations

of this provision, nor is there any illuminating legislative history. It is no doubt

broadly written and could plausibly apply here. Lincoln Tech acted in

accordance with government orders issued to address a public health

emergency, the COVID-19 pandemic. But Lincoln Tech’s statutory defense

stumbles over the term “injury.”

Under the Act, an entity is exonerated from liability for an “injury,” which

is defined as “death, injury to a person or damage to or loss of property.” N.J.

Stat. Ann. § 26:13-19(a). When the Legislature defines a term, I am bound by

the plain language of that definition. State v. S.B., 165 A.3d 722, 726 (N.J.

2017). And when the Legislature uses a term that has an established legal

meaning, I will interpret the term in light of its common-law meaning, absent

any indications to the contrary. State v. Brown, 126 A.2d 161, 166 (N.J. 1956);

In re Commitment of B.L., 787 A.2d 928, 937 (N.J. Super. Ct. App. Div. 2002).

While the Legislature instructed that the Act be “liberally construed,” N.J. Stat.

Ann. § 26:13-19(d), I cannot stretch a statute’s terms beyond what its ordinary

meaning and reasonable interpretations can bear, Lammers v. Bd. of Educ. of

Borough of Point Pleasant, 633 A.2d 526, 530 (N.J. 2003).

Lincoln Tech says this case is about “loss of property” (part of the

definition of “injury”), but “property” is not normally understood to include

money or damages (what Gaviria seeks here). “Property” traditionally refers to

“land, chattel, or an intangible.” Property, Black’s Law Dictionary (11th ed.

2019). Money is not land or an intangible, so that leaves chattel. Yet, chattel is

“[m]ovable or transferable property,” especially “a physical object capable of

manual delivery.” Chattel, Black’s Law Dictionary (11th ed. 2019). As such,

“Money is not to be accounted Goods or Chattels.” Id. (quoting Thomas Blount,

Nomo-Lexicon: A Law-Dictionary (1670)).

New Jersey law comports with this understanding. Consider the tort of

conversion, “the intentional exercise of dominion and control over chattel.”

Meisels v. Fox Rothschild LLP, 240 N.J. 286, 222 A.3d 649, 661 (N.J. 2020).

Generally in New Jersey, a plaintiff cannot bring a conversion claim alleging

that he or she is owed money. Rather, at most, he or she must point to a

specific pot of money, such as a fund, that is wrongfully in a defendant’s

hands. Dougherty v. Drew Univ., Civ. No. 21-249, 2021 WL 1422935, at *10

(D.N.J. Apr. 14, 2021).

Next, consider other New Jersey statutes. The Legislature has created

several causes of action to recover “loss of moneys or property.” E.g., N.J. Stat.

Ann. §§ 2C:13-8.1(a), 2C:21-17.4(a), 56:8-19. By using “money” in addition to

“property,” the Legislature suggests that the two are distinct. See State v.

Ferguson, 207 A.3d 1253, 1267 (N.J. 2019) (when the Legislature uses two

different terms, courts assume they have different meanings). The Legislature’s

employment of this double-barreled terminology elsewhere, but not here, would

tend to reinforce a conclusion that the Act refers only to real or personal

property. See In re J.S., 121 A.3d 322, 334 (N.J. 2015) (“[The Legislature] is

presumed to have been thoroughly conversant with its own prior

legislation . . . .” (cleaned up)); State v. Sherman, 842 A.2d 859, 870–71 (N.J.

Super. Ct. App. Div. 2004) (“[W]here the Legislature has carefully employed a

term in one place and excluded it in another, it shall not be implied where

excluded.” (citation omitted)).3

These considerations—second-order ones, to be sure, in the absence of

more specific guidance—point to a conclusion that “property” (and therefore

Lincoln Tech’s immunity) does not extend to money damages.4 Damages are

what Gaviria sues for here. Gaviria seeks compensation representing the

difference in value between the virtual education that was provided and the in-

3 To some degree, the neighboring words in the Act may tend to suggest that

“property” does not encompass money or monetary damages. See Shelton v.

Restaurant.com, Inc., 70 A.3d 544, 557 (N.J. 2013) (interpreting statutory term in the

context of its neighboring words and avoiding interpretations that would negate those

neighboring words). “Property” appears in the phrase “damage to or loss of property.”

The words “damage to” suggest that property is something physical, either land or an

object—but not money. That is so because, in ordinary usage, one does not do

“damage to” money.

That said, the statutory wording, because it uses “or” rather than “and,” does

not rule out either side’s interpretation of the word “property.” It may simply be an

imprecise invitation to mix and match as appropriate. Consider, for example, an

inelegantly phrased law providing that it is forbidden to drive or pedal a vehicle.

“Pedal” suggests that a “vehicle” is a bicycle—but “drive” suggests that it is not. “Drive”

suggests that a vehicle is a car, but “pedal” suggests that it is not. Yet we probably

would not say that this hypothetical statute does not cover either one, because a

bicycle cannot be driven and a car cannot be pedaled. So too, although this statutory

wording does not rule out Lincoln Tech’s reading, it does not compel it, either.

4 Nonetheless, Lincoln Tech points to a single oral opinion from a New Jersey trial

court finding that a university was immune under the Act from similar claims. (DE 12-

2; Tr., Mahmood v. Rutgers, No. L-3039-20 (N.J. Super. Ct. L. Div. Dec. 7, 2020).) The

court reasoned that money was property or, alternatively, education is a property

right. (Id. at 32:8–10.) But I am not bound by a state trial court decision. Houbigant,

Inc. v. Fed. Ins. Co., 374 F.3d 192, 199 n.9 (3d Cir. 2004). Nor do I find the decision

worthy of deference because it summarily concluded that money was property yet did

not engage with any statutory interpretation analysis of the term “property,” as I do

here. See Dougherty, 2021 WL 1422935, at *5 n.4 (declining to follow state trial court

decision that lacked analysis). And as I have already explained, education is not a

form of property recoverable in a lawsuit like that here. Id. at *9.

person education that he expected. He does not move to recover a specific,

improperly retained pot of money, but rather seeks compensation in a yet-to-

be-determined amount. (Am. Compl., Prayer (c).) Such benefit-of-the-bargain

damages are the “traditional remedy for breach-of-contract.” Goldfarb v.

Solimine, 245 N.J. 326, 245 A.3d 570, 577 (N.J. 2021) (contract damages

usually represent the “loss of the benefit of the bargain” and seek “to put the

injured party in as good a position as if performance had been rendered”

(citations omitted)). Those damages do not equate to traditional notions of

“property.” Dougherty, 2021 WL 1422935, at *10.

Accordingly, I hold that Gaviria does not sue based on an “injury” for

which the Act provides immunity.

B. Failure to State a Claim

Turning to the merits, I first consider Gaviria’s three claims (breach of

contract, unjust enrichment, and conversion) as they relate to tuition charges,

and second as they relate to fees.

Tuition Claims

The tuition claims fail for two independent reasons: (a) Gaviria does not

allege facts that would overcome the Beukas standard, and (b) even if the

matter is viewed as a standard breach of contract case, the Enrollment

Agreement stands as a bar.

a. Beukas Standard

As I explained more fully in Dougherty, New Jersey courts have declined

to treat claims by students against universities as ordinary breach-of-contract

claims. 2021 WL 1422935, at *4. Courts have employed various standards in

different contexts. Id. In contexts most closely resembling schools’ transition to

virtual education in response to COVID-19, they have employed the standard

set forth in Beukas v. Board of Trustees of Fairleigh Dickinson University

(Beukas I), 605 A.2d 776 (N.J. Super. Ct. L. Div. 1991). Dougherty, 2021 WL

1422935, at *4–5; see also Mitelburg v. Stevens Inst. of Tech., Civ. No. 21-1043,

2021 WL 2103265, at *3–5 (D.N.J. May 25, 2021) (agreeing with Dougherty);

Fittipaldi v. Monmouth Univ., Civ. No. 20-5526, 2021 WL 2210740, at *9 (D.N.J.

June 1, 2021) (same). Under that standard, I review “the bona fides of the

[school’s] decisionmaking and the fairness of its implementation.” Beukas I,

605 A.2d at 785. In doing so, I pay close attention to whether that decision was

arbitrary, made in bad faith, or lacking in fair notice. Id. at 782. This standard

also applies to unjust enrichment and conversion claims. Id. at *8–9.

Here, the Amended Complaint does not allege facts that plausibly show

that Lincoln Tech failed to meet its obligations under Beukas.5 The Amended

Complaint acknowledges, and it can hardly be denied, that the move to virtual

learning was occasioned by the COVID-19 pandemic. (Am. Compl. ¶ 10.)

Because Lincoln Tech’s decision was supported by public health concerns and

compliance with the law, it was fair and not arbitrary. Dougherty, 2021 WL

1422935, at *6; see Beukas I, 605 A.2d at 782, 784 (circumstances beyond the

university’s control supported decision to close program). Nor can Gaviria

plausibly allege that the decision to move to virtual education was

unreasonable, because he has not alleged that any reasonable alternatives

existed. Dougherty, 2021 WL 1422935, at *6; see Beukas I, 605 A.2d at 784

(suggesting that the university could have been liable if there had been

reasonable alternatives).

Gaviria nonetheless alleges that even if Lincoln Tech’s actions cannot be

faulted, he is still entitled to a partial refund, future discounts, or credits, all

reflecting the difference in value of the education he expected versus what he

received. (Am. Compl. ¶¶ 10–11.) I have explained elsewhere why this narrower

theory fails:

In Gourdine [v. Felician College, No. A-5248-04T3, 2006 WL

2346278, at *4 (N.J. Super. Ct. App. Div. Aug. 15, 2006) (per

curiam)], the court rejected claims for a tuition rebate and held

that Beukas did not require any specific actions by the college to

discharge its obligations, although “the manner in which the

institution sought to ease the closing of the program [ ] must be

5 Gaviria does not raise any argument that the standard should differ here

because Lincoln Tech is a for-profit institution, so I do not address that issue.

considered in the context of whether the institution acted in good

faith.” 2006 WL 2346278, at *5. In short, the issue comes back to

whether the response the university adopted was reasonable in the

circumstances. See id.; Beukas I, 605 A.2d at 784. Moreover, it is

not as if the University simply defaulted on its educational

obligations. Rather, the University tried its best to provide students

with an education, albeit in a different format. The [plaintiffs] may

contend that such a format was not worth the same tuition money,

but Beukas affords the University some leeway, particular when

reacting to events beyond its control. Accordingly, it is not

plausibly alleged that the [plaintiffs] could overcome the Beukas

standard.

Dougherty, 2021 WL 1422935, at *7. The same reasoning applies here.6

The only allegation Gaviria adds that was not present in Dougherty is

that Lincoln Tech “itself recognizes the distinction between online-only and in-

person education” because its new course catalogs designate courses as

offering in-class instruction, online instruction, or a mix of both. (Am. Compl.

¶ 51.) This allegation, however, is unremarkable. No one disputes that in-

person and virtual education are different. This allegation would be helpful if,

say, Lincoln Tech now charged a lower tuition for online or mixed courses, yet

did not offer a rebate for students previously forced to shift into virtual

education. In that case, one could infer arbitrariness because Lincoln Tech

reduced costs for remote courses for one semester but not for another. See

Fittipaldi, 2021 WL 2210740, at *9. But a school’s bare and common-sense

acknowledgement that in-person and virtual education are different does

nothing to overcome the Beukas standard.

6 I understand that the difference in value between an in-person and virtual

education may be particularly severe in the context of a vocational school. But courts

have applied the Beukas standard to reject claims in contexts equally dependent on an

in-person experience. See Beukas I, 605 A.2d at 779 (dental school); Gourdine, 2006

WL 2346278, at *4 (nursing program); Dougherty, 2021 WL 1422935, at *1 (fine art

program). Thus, while Gaviria’s circumstances are more sympathetic than those of,

say, a mathematics major, they do not change the result.

Accordingly, for similar reasons to those I gave in Dougherty, Gaviria’s

claims for tuition cannot plausibly overcome the Beukas standard and so they

must be dismissed.

b. Enrollment Agreement

Even if, for purposes of argument, I analyzed Gaviria’s claim for tuition

as an ordinary contract claim, it would fail under the terms of the Enrollment

Agreement. If, within the materials relied upon by the student as a contract, an

educational institution includes a provision reserving its right to modify modes

of instruction, that provision is enforceable. It serves to bar any contract claim

to which its language applies. Dougherty, 2021 WL 1422935, at *7 (citing

Beukas v. Bd. of Trs. of Fairleigh Dickinson Univ. (Beukas II), 605 A.2d 708, 709

(N.J. Super. Ct. App. Div. 1992) (per curiam)); see also Zhao v. CIEE Inc., ---

F.4th ---, No. 20-1878, 2021 WL 2643410, at *4 (1st Cir. June 28, 2021)

(enforcing a limitation of liability clause to affirm a dismissal of a complaint

seeking a refund of tuition based on COVID-based limitations on instruction).

Here, Lincoln Tech points to two provisions in the Enrollment Agreement.

The broader of the two provides that Lincoln Tech is released from claims that

it did not perform if such non-performance was due to “an Act of God, strike or

any other matter or thing beyond [its] control.” (Agmt. at 9.) I doubt this

provision could absolve Lincoln Tech of liability, for two reasons.

First, it is debatable that this language should cover closures pursuant

to government orders regarding COVID-19. On one hand, New Jersey courts

have, at times, defined an “act of God” broadly to “comprehend[] all misfortunes

and accidents arising from inevitable necessity.” Facto v. Pantagis, 916 A.2d

59, 62 (N.J. Super. Ct. App. Div. 2007) (quoting Meyer Bros. Hay & Grain Co. v.

Nat’l Malting Co., 11 A.2d 840, 841 (N.J. 1940)). One court has also held that,

whatever the limits of “act of God,” residual language like “other unforeseen

events” can sweep in any contingencies that “act of God” might not cover. Id.

While those interpretations bode well for Lincoln Tech, New Jersey courts

have, at other times, limited an “act of God” defense to circumstances where

the event is “the sole cause of damage.” Meyer Bros., 11 A.2d at 841; see also

Bachman Chocolate Mfg. Co. v. Lehigh Warehouse & Transp. Co., 62 A.2d 806,

807 (N.J. 1949). Reasoning from similar cases, one federal court has offered

good reasons that COVID-19 does not qualify, because the issue is not harm

from the virus itself, but rather from human responses to it. Dominion Energy

Cove Point LNG, L.P. v. Mattawoman Energy, LLC, No. 20-cv-611, 2020 WL

9260246, at *8 (E.D. Va. Oct. 20, 2020); accord, e.g., Gear v. Gray, 37 N.E.

1059, 1061 (Ind. Ct. App. 1894) (closing of a school by order of a school board

or health board because of an outbreak is not an act of God). As a thorny issue

of state law with potentially wide-ranging consequences, it is best for this

federal court to avoid ruling if another provision can resolve this case—which it

can. (See infra.)

Second, even if this act-of-God provision covered the circumstances here,

Lincoln Tech would still have to refund Gaviria something. That is, a force

majeure clause excuses performance and defeats a breach-of-contract claim,

but equity requires that a defendant return any payment he or she already

received for that anticipated performance. Facto, 915 A.2d at 63. Determining

the amount of payment to be returned is a fact issue which I could not resolve

on these pleadings. Petrozzi v. City of Ocean City, 78 A.3d 998, 1007 (N.J.

Super. Ct. App. Div. 2013). All said then, the application of this force majeure

provision is not so clear.

I turn to the second provision of the Enrollment Agreement cited by

Lincoln Tech. The Agreement grants Lincoln Tech “the right to

alter . . . curriculum content,” and provides that such changes do not require

any refund. (Agmt. at 9.) I apply the plain language of the contract. Barila v.

Bd. of Educ. of Cliffside Park, 230 A.3d 243, 255 (N.J. 2020). “Curriculum”

means “the courses offered by an education institution” Curriculum, Merriam-

Webster Dictionary (online ed.), or “course of study” Curriculum, Oxford English

Dictionary (online ed.). “Content,” as used here, means “substance” or “the

matter dealt with in a field of study.” Content, Merriam-Webster Dictionary

(online ed.). Together, the ordinary meaning of “curriculum content” is the

substance of matters dealt with in courses at Lincoln Tech.

This is a broad definition, so it plausibly encompasses the changes made

here. For example, the Amended Complaint alleges that hands-on, in-person

training exercises were replaced by recorded lectures. (Am. Compl. ¶¶ 48–50.)

That surely was a change to the “substance” of the course. Put differently, one

can infer that the changed instruction altered both the substance and manner

of presentation of the covered topics. (See id. ¶ 49 (“[T]he online-only learning

options . . . were materially different in practically every aspect . . . .”).)

In response, Gaviria argues that I cannot consider the Enrollment

Agreement at this stage, because the Amended Complaint does not rely on the

Agreement, but alleges that a whole collection of documents formed the basis of

his contractual arrangement with Lincoln Tech. (Opp. at 7–10.) He is incorrect.

For starters, I can consider the Agreement because it is “integral to” the

Amended Complaint. Doe v. Univ. of Scis., 961 F.3d 203, 208 (3d Cir. 2020)

(citation omitted). The Amended Complaint alleges that “numerous documents”

from, among other things, “the registration process, the payment process, and

throughout enrollment” form the contract. (Am. Compl. ¶ 40.) The Enrollment

Agreement surely falls within that very broad description. That Gaviria does not

explicitly mention the Agreement is of no importance because “what is critical

is whether the claims in the complaint are ‘based’ on an extrinsic document,”

and “Plaintiffs cannot prevent a court from looking at the texts of the

documents on which its claim is based by failing to attach or explicitly cite

them.” In re Burlington Coat Factory Secs. Litig., 114 F.3d 1410, 1426 (3d Cir.

1997). In short, plaintiff cannot assert a vague breach-of-contract while

excluding consideration of the actual, integrated, written contract between the

parties.

The Enrollment Agreement provides that it “constitutes the entire

contract between the parties.” (Agmt. at 9.) When parties express in writing

that they intend that written instrument to represent the only agreement

between them, I cannot consider other materials. Harker v. McKissock, 96 A.2d

660, 665 (N.J. 1953); see also Catlin Ins. Co. v. Flight Light Inc., No. A-0689-

13T3, 2014 WL 3407055, at *7 (N.J. Super. Ct. App. Div. July 15, 2014) (per

curiam). Accordingly, I will not deny the motion to dismiss on the basis of the

plaintiff having crafted the breach-of-contract allegations to supposedly exclude

consideration of the actual contract at issue.

* * *

In sum, all claims seeking tuition fail for two independent reasons:

(1) the Beukas standard governs such claims, and Gaviria has not alleged facts

to overcome that standard, and (2) even if this is treated as a standard breach-

of-contract case, the Enrollment Agreement allowed Lincoln Tech to make the

changes here.7 To the extent the Amended Complaint seeks damages

representing a total or partial refund of tuition charges, the motion to dismiss

will be granted.

Fee Claims

The fee claims stand on different footing. As I explained in Dougherty, no

New Jersey courts have discussed such fees, and Beukas’s concerns about

intrusion upon a university’s pedological mission are not present when the

university acts as, e.g., a building proprietor. Dougherty, 2021 WL 1422935, at

*11. As a result, fee claims do not merit the Beukas treatment. Id.; see also

Mitelberg, 2021 WL 2103265, at *5. I therefore apply normal breach-of-contract

standards.

A breach-of-contract claim requires “(1) the existence of a valid contract

between the parties; (2) failure of the defendant to perform its obligations under

the contract; and (3) a causal relationship between the breach and the

plaintiff’s alleged damages.” Mid-Atl. Salt, LLC v. Morris Cnty. Coop. Pricing

7 The unjust enrichment and conversion claims fail even if the Beukas standard

does not subsume them because (1) an express contract prevents recovery on an

unjust enrichment theory, and there is no reason for alternate pleading here, see Durr

Mech. Constr., Inc. v. PSEG Fossil, LLC, --- F. Supp. 3d ----, ----, Civ. No. 18-10675,

2021 WL 303030, at *5 (D.N.J. Jan. 29, 2021), (2) a conversion claim cannot seek to

recover the damages which Gaviria seeks here, Dougherty, 2021 WL 1422935, at *9.

Council, 964 F.3d 218, 226 (3d Cir. 2020) (citation omitted). Here, Gaviria paid

registration, student, and technology fees. (Am. Compl. ¶ 16.)8 The Enrollment

Agreement contains provisions relating to those fees, and as a written,

integrated agreement, it governs. The Agreement states multiple times that the

registration fee is non-refundable. (Agmt. at 8, 9.) Nor is there any injustice in

honoring that provision; the costs of processing registrations, intended to be

covered by that fee, do not depend on whether instruction occurs in person or

online. Accordingly, the Agreement bars Gaviria from recovering the

registration fee.

As to the remaining fees, the Agreement explains that the student fee is

“for consumable supplies as used in the Program and [to] cover the

Administrative Processing fee for student injuries as well as costs of handling

I.D. Cards, Permits and the Student Handbook.” (Id. at 8.) The technology fee

“covers the computer & network services.” (Id.) The Agreement further provides

that, after the third day of classes, “any refund due for student fees and

technology fees will be prorated based upon use.” (Id.)

Here, Gaviria has a plausible contract claim. The Agreement entitles him

to a refund “based upon use.” The complaint does not establish what portion of

these fees were “used.” Because the fees go to program supplies and on-

campus technology services, it is plausible that Lincoln Tech, after closing the

campus, did not incur all of the expenses that these fees are meant to cover.

Discovery may be needed to determine how much of these fees should be

refunded. For now, it is plausibly alleged that, by refusing to refund Gaviria

any amount, Lincoln Tech breached its obligation to provide some pro-rated

amount. And Gaviria suffered damages because he has not received a partial

8 I limit my analysis to the fees which Gaviria paid because, at the motion to

dismiss stage, the focus is on whether he, not the absent class, has a claim. See

Zimmerman v. HBO Affiliate Grp., 834 F.2d 1163, 1169 (3d Cir. 1987) (“[T]o be a class

representative on a particular claim, the plaintiff himself must have a cause of action

on that claim.”).

refund he is entitled to under the Agreement. Accordingly, he has stated a

breach-of-contract claim.

Gaviria likewise can state an unjust enrichment claim. Although a

plaintiff cannot recover on both theories, unjust enrichment claims can be

pleaded as an alternative, or backup, to a contract claim. Durr Mech. Constr.,

Inc. v. PSEG Fossil, LLC, --- F. Supp. 3d ----, ----, Civ. No. 18-10675, 2021 WL

303030, at *5 (D.N.J. Jan. 29, 2021). Alternative pleading is appropriate here

because it is not yet clear whether Lincoln Tech may be able to defeat an

express contract claim. Lincoln Tech argues, for example, that it was excused

from contractual performance under the doctrine of impracticability. (Reply at

3.) I will not rule on that argument because it is raised for the first time in a

reply, Gap Props., LLC v. Cairo, Civ. No. 19-20117, 2020 WL 7183509, at *8

(D.N.J. Sept. 17, 2020), and involves an affirmative defense requiring factual

development, Gaetano v. Gilead Scis., Inc., --- F. Supp. 3d ----, ----, Civ. No. 21-

01418, 2021 WL 1153193, at *11 (D.N.J. Mar. 26, 2021). For present

purposes, it suffices to say that, if Lincoln Tech were later to succeed on that

argument, Gaviria might still be permitted to recover in equity. Petrozzi, 78

A.3d at 1007; Facto, 915 A.2d at 63. So unjust enrichment will remain as a

viable alternative theory.

Gaviria cannot, however, pursue a conversion claim to recover fees. His

conversion claim is no different from his contractual claim or a claim over a

“mere debt,” so it is not cognizable as a conversion. Dougherty, 2021 WL

1422935, at *12 (citation omitted). So Count 3, already dismissed as to tuition,

is dismissed as to fees as well.

IV. CONCLUSION

For the reasons set forth above, the motion to dismiss is granted in part

and denied in part. Count 3 will be dismissed in its entirety. Counts 1 and 2

will be dismissed to the extent they seek tuition or a registration fee.

A separate order will issue.

Dated: July 8, 2021

/s/ Kevin McNulty

___________________________________

Hon. Kevin McNulty

United States District Judge