The opinion
UNITED STATES DISTRICT COURT For Online Publication Only
EASTERN DISTRICT OF NEW YORK
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NASIR BOYKIN-SMITH, on behalf of herself and
all others similarly situated,
ORDER
Plaintiff, 20-CV-4108 (JMA) (ARL)
FILED
v.
CLERK
NEW YORK INSTITUTE OF TECHNOLOGY 10:34 am, Oct 05, 2022
(NYIT),
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Defendants. LONG ISLAND OFFICE
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AZRACK, United States District Judge:
Plaintiff Nasir Boykin-Smith, a student at Defendant New York Institute of Technology
(“NYIT”), filed this putative class action seeking damages stemming from NYIT’s cessation of
in-person educational activities during the COVID-19 pandemic. Currently pending before the
Court is Plaintiff’s motion to remand this action to state court. (ECF No. 14.) For the reasons
stated below, Plaintiff’s remand motion is GRANTED.
I. BACKGROUND
NYIT’s two main campuses are located in New York State. NYIT also has four smaller
campuses located abroad in China, Canada, and Abu Dhabi. NYIT also runs the New York
Institute of Technology College of Osteopathic Medicine (“NYITCOM”). One of NYITCOM’s
campuses is in New York and the other is in Arkansas.
In August 2020, Plaintiff filed this putative class action in Nassau County Supreme Court.
On September 2, 2020, NYIT removed this action to federal court, invoking jurisdiction under the
Class Action Fairness Act (“CAFA”), 28. U.S.C. § 1332(d).
A. The Original Complaint Filed in State Court
Set out below are the allegations from Plaintiff’s original complaint that are relevant to the
remand issues before the Court. In the original complaint, Plaintiff pursued a putative class action
“on behalf of [herself] and those similarly situated individuals . . . who paid tuition and fees for
the Spring 2020 semester to New York Institute of Technology.” (Compl. ¶¶ 1, 42, ECF No. 1-
1.) The original complaint alleged that “Defendant NYIT is a private university with two main
campuses located” in Old Westbury, New York and New York City. (Compl. ¶ 38.) According
to the original complaint, on March 10, 2020, NYIT canceled all in-person educational activities
indefinitely and then, on March 21, 2020, NYIT announced that this cancellation would continue
through the remainder of the Spring 2020 semester, with all learning to take place online. (Compl.
¶ 4, 15.)
The original complaint alleged claims for breach of contract, conversion, and unjust
enrichment on behalf of Plaintiff and all class members. The complaint explicitly asserted that
“[u]nder New York’s common law principles of unjust enrichment, it is inequitable for Defendant
to retain the benefits conferred by Plaintiff’s and Class Members’ overpayments.” (Compl. ¶ 69
(emphasis added).). The original complaint alleged that venue was appropriate in Nassau County
because NYIT provided services and entered into agreements “in New York State and in Nassau
County” and the “acts and occurrences that give rise to the claims occurred within Nassau County.”
(Compl. ¶¶ 33–35.)
B. Post-Removal Procedural History
Shortly after removal, Defendant filed a pre-motion conference letter concerning a
proposed motion for judgment on the pleadings. (ECF No. 7.) In response, Plaintiff filed a letter
on September 18, 2020 indicating that she intended to file an amended complaint. (ECF No. 8.)
Plaintiff’s letter also indicated that there may be an issue concerning “putative class composition
in regard to jurisdiction under [CAFA.]” (Id.)
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Plaintiff then filed an amended complaint, which noted that NYIT had removed the case
under CAFA and that, as of the filing of the amended complaint, Plaintiff was not in a position to
determine “the percentage of putative class members who are citizens of the State of New York
versus those who are not — which would otherwise allow for a determination of whether CAFA
jurisdiction is proper.” (Am. Compl. at 4 n.1, ECF No. 9.) The Amended Complaint expanded
on some of Plaintiff’s factual allegations, but is largely similar to the original complaint with
respect to issues relevant to the pending remand motion. The definition of the class in the
Amended Complaint largely tracked the definition in the original complaint. (Am. Compl. ¶ 49)
(defining class as “[a]ll persons who paid, or will pay, tuition and/or the Mandatory Fees for a
student to attend in-person class(es), at NYIT’s Campuses, during the Spring 2020 or any other
semester affected by Covid-19 at NYIT but had their educational experiences and class(es) moved
to online only learning (the “Class”).”)
On October 1, 2020, the Court held a pre-motion conference and then stayed discovery
pending the resolution of motions to dismiss that were filed in similar cases against colleges and
universities in the Southern District of New York. The issue of CAFA jurisdiction was also
discussed at the pre-motion conference.
On September 30, 2021, Plaintiff filed the instant motion, seeking to remand this action
back to state court.
Prior to filing their motion to remand, Plaintiff had sent a letter to Defendant asserting
Plaintiff’s view that this action should be remanded based on certain enrollment information from
the National Center for Education Statistics. In response, Defendant provided Plaintiff with
enrollment data for the Spring 2020 semester concerning its domestic and foreign campuses. This
information identifies the total numbers of students who were enrolled at each of NYIT’s campuses
in the Spring of 2020 and the number of those students who were residents of New York.
II. DISCUSSION
It is undisputed that this Court has jurisdiction over this action as CAFA’s requirements
for minimal diversity and the amount-in-controversy are satisfied. Plaintiff, however, contends
that the Court should remand this action pursuant to CAFA’s “home state exceptions” to federal
jurisdiction. According to Plaintiff, the Court is required to decline jurisdiction over this action
under 28 U.S.C. § 1332(d)(4). Plaintiff also asserts that, if § 1332(d)(4) is inapplicable,
discretionary remand is warranted under 28 U.S.C. § 1332(d)(3).
A. Mandatory Remand under § 1332(d)(4)
Under § 1332(d)(4), a “district court shall decline to exercise jurisdiction” over a class
under CAFA if, inter alia, the defendant is a citizen of the state where the action was originally
filed and “greater than two-thirds of the members of all proposed plaintiff classes in the aggregate
are citizens of the State in which the action was originally filed.” 28 U.S.C. § 1332(d)(4) (emphasis
added).
Plaintiff bears the burden of proving the applicability of CAFA’s exceptions by a
preponderance of the evidence. Stellato v. Hofstra Univ., No. 20-CV-1999, 2022 WL 2222875,
at *1 (E.D.N.Y. June 17, 2022).
If all of NYIT’s campuses are considered, there would be 8,291 total class members and
4,334 class members who are residents of New York. Thus, the New York class members would
make up greater than one-third (1/3) of the total class (2,763 class members), but less than two-
thirds (2/3) of the total class (5,521 class members).
If only NYIT’s New York campuses are considered, there are 6,473 total class members,
and 4,330 class members who are residents of New York. For this narrower class, the New York
class members would constitute more than two-thirds (2/3) of the total class (4,311 class
members).
Defendant maintains that § 1332(d)(4) is not applicable because the class definition in the
original complaint is broad and includes students at NYIT’s overseas campuses and its campus in
Arkansas. Defendant insists that those campuses must be considered as part of the calculus under
§ 1332(d)(4) as the definition of the class in the original complaint did not explicitly exclude
NYIT’s foreign campuses or explicitly limit the class to NYIT’s New York campuses.
After receiving the above enrollment information from Defendant, Plaintiff offered to
stipulate that she was “not asserting claims on behalf of foreign students at foreign campuses” and
to amend the complaint to clarify the scope of the putative class. (ECF No. 14 at 3.) Defendant,
however, refused this offer. (Id.) In her motion to remand, Plaintiff reiterates these offers and
insists that she is only pursuing “New York common law claims for agreements entered into
between a New York-based institution with students that signed up to attend classes at New York
physical locations.” (Id. (emphasis added).)
In opposing Plaintiff’s remand motion, Defendant asserts that Plaintiff’s attempts to amend
the complaint after removal are irrelevant and insists that, in determining the scope of the putative
class for purposes of § 1332(d)(4), the Court must look solely to the definition of the class in
original complaint.
“After proper removal to federal court, post-removal amendments generally do not destroy
statutory subject-matter jurisdiction.” In Touch Concepts, Inc. v. Cellco P’ship, 788 F.3d 98,
100–01 (2d Cir. 2015). For example, a plaintiff’s elimination of all class claims from an amended
complaint that the plaintiff files after removal will not deprive the court of jurisdiction under
CAFA. Id.
Some courts have similarly refused to consider post-removal amendments when addressing
the exceptions to CAFA jurisdiction set out in § 1332(d)(3) and (d)(4). See Romano v. Northrop
Grumman Corp., No. 16-CV-5760, 2017 WL 6459458, at *5 (E.D.N.Y. Dec. 15, 2017). Other
courts, however, have considered post-removal amendments that clarified the plaintiff’s
allegations related to these CAFA exceptions. See Borgia v. Bird Rides, Inc., No. 19-CV-189685,
2019 WL 3814280, at *4 (C.D. Cal. Aug. 13, 2019).
Given all the circumstances here, there is a strong argument that the Court should accept,
and consider, Plaintiff’s stipulation to exclude the campuses outside of New York and to limit the
putative class to students who signed up to attend classes at NYIT’s New York campuses. When
reading the original complaint in its entirety, the Court does not believe that Plaintiff intended to
pursue a class that included NYIT’s campuses outside of New York, particularly the campuses
located overseas. The class claims in the original complaint are brought under New York law,
which is a strong indication that Plaintiff was focused on the students at the two main campuses
located in New York. Plaintiff herself was enrolled in New York and it is doubtful that Plaintiff—
who never references any of the campuses outside of New York in the original complaint—
intended to include foreign students at the overseas campuses given the obvious difficulties that
certification of such a class would entail.
It is ultimately unnecessary to decide this issue because, even if the Court were required to
exclude post-removal amendments from its consideration and were to find § 1332(d)(4)
inapplicable, the Court would exercise its discretion under § 1332(d)(3) and would remand the
case on that basis.
B. Discretionary Remand Under § 1332(d)(3)
Plaintiff asserts that, even if § 1332(d)(4) is not satisfied, remand is warranted under 28
U.S.C. § 1332(d)(3). Under Section 1332(d)(3), a “district court may . . . decline to exercise
jurisdiction [over a class action under CAFA] in which greater than one-third but less than two-
thirds of the members of all proposed plaintiff classes in the aggregate and the primary defendants
are citizens of the State in which the action was originally filed.” (Id. (emphasis added).) In
making this determination, the Court weighs the “the interests of justice” and the “totality of the
circumstances” based on six specific factors set out in § 1332(d)(3).
Even when the class includes all of NYIT’s campuses and only the original complaint is
considered, Plaintiff has established by a preponderance of the evidence that more than one-third
(1/3) of the class members are citizens of New York. Having considered each of the relevant
factors below, the Court concludes that a discretionary remand under § 1332(d)(3) is appropriate
here.
Notably, in a similar case against Hofstra University involving the closure of the school
during the COVID-19 pandemic, the Honorable Gary R. Brown exercised his discretion under
§ 1332(d)(3) to decline jurisdiction over that class action. Stellato v. Hofstra Univ., No. 20-CV-
1999, 2022 WL 2222875, at *2 (E.D.N.Y. June 17, 2022). The reasoning of Stellato is persuasive
here. See id. at *2 (“The Court has considered all six enumerated factors and finds most
compelling that these class actions involve New York State Mandates and Executive Orders, New
York State Law claims and consist primarily of New York State citizens.”) (citing 28 U.S.C §§
1332(d)(3)(A); (B); (E)).
The Court further addresses each of the relevant factors below.
1. Whether the Claims Asserted Involve Matters of National or Interstate Interest
The claims here do not involve matters of national or interstate interest. This case primarily
involves campuses in New York State and citizens of New York. This factor favors Plaintiff.1
2. Whether the Claims Asserted Will be Governed by New York Law or by the Laws
of Other States
The vast majority of the putative class members were enrolled at NYIT’s campuses located
in New York. Their claims will be governed by New York law, which will be the primary focus
of this action. The claims of class members at other campuses might be governed by New York
law or by the laws of the jurisdictions where those campuses are located. And, even assuming
arguendo that New York law would not apply to those claims, this factor still weighs in favor of
remand.2 See 2 Newberg and Rubenstein on Class Actions § 6:21 (6th ed.) (“Courts have generally
held that the second factor . . . can weigh in favor of remand even if other claims (including claims
under federal statutes or the laws of other states) are involved in the suit.”).
3. Whether the Class Action has been Pleaded in a Manner that Seeks to Avoid
Federal Jurisdiction
The original class action complaint was not pleaded in a manner to avoid federal
jurisdiction. In fact, Plaintiff may have unwittingly drafted the original complaint to encompass
the claims of students at the overseas campuses. It is unlikely that Plaintiff ever intended to pursue
those claims in this case.
1 Even if this factor was considered neutral or weighed in Defendants’ favor, the Court’s ultimate decision would be
the same.
2 It is doubtful that Plaintiff would actually pursue claims on behalf of foreign students and foreign campuses and
certification of a class including such claims appears to be exceedingly unlikely. Those points are further reason why
determinations of New York law will be the focus of this class action.
4. Whether the Action was Brought in a Forum with a Distinct Nexus with the
Class Members, the Alleged Harm, or the Defendants
This action was originally brought in New York state court and New York has the most
obvious nexus to the class members, the alleged harm, and the defendant.
5. Whether the Number of Citizens of New York in the Proposed Class is
Substantially Larger than the Number of Citizens From Any Other State, and the
Citizenship of the Other Members of the Proposed Class is Dispersed Among a
Substantial Number of States
While Plaintiff has not provided information about the non-New York class members, the
Court can easily infer that the number of New York class members is substantially larger than the
number of class members from any other single state. There are a total of 4,334 New York class
members and there are substantially more New York class members at the New York campuses
than class members from other states. Even if the Court were to assume that all of the other class
members at the New York campuses are from neighboring New Jersey, the number of class
members from New York State would still be substantially larger than the class members from
New Jersey.3
6. Whether, During the 3-year Period Preceding the Filing of the Instant Case, Other
Similar Class Actions Have Been Filed
There is no evidence that any similar class actions have been filed against NYIT in the
preceding three years. Defendant does not argue otherwise.
7. Defendant’s Arguments
Defendant insists that Plaintiff is engaged in forum-shopping and is seeking to avoid recent
3 Of course, the class members from outside New York are not, in fact, all from New Jersey. While the Court does
not have precise data about the non-New York class members, the information that Plaintiff provided from the
National Center of Education Statistics is probative evidence on this question. Those records indicate that NYIT’s
freshman classes are geographically diverse. (ECF No. 14, Ex. B.)
As for the foreign campuses, the Court can infer that the students at these campuses are not predominantly from
New Jersey or any other single state. A majority of these students are surely citizens of the countries where these
campuses are located. (See ECF No. 14, Ex. C (only 3 out of 743 students at Vancouver campus are from New York).)
adverse rulings by other district courts in the Second Circuit. These arguments do not convince
the Court that remand is inappropriate here. Plaintiff filed suit in state court before any of the
adverse federal decisions cited by Defendant. Moreover, the Court stayed discovery pending the
resolution of motions to dismiss that were pending the Southern District. Finally, concerns about
forum shopping are addressed by § 1332(d)(3)(C), which, as discussed above, considers whether
the class action has been pleaded in a manner that seeks to avoid federal jurisdiction.
8. Conclusion.
Given all of the relevant factors, the Court finds it is appropriate to decline jurisdiction
under § 1332(d)(3) and to remand this action back to state court. Accordingly, Plaintiff’s remand
motion is GRANTED. The Clerk of Court is respectfully directed to remand this action to
Supreme Court, Nassau County, and to close this case.
SO ORDERED.
Dated: October 5, 2022
Central Islip, New York
/s/ (JMA)
JOAN M. AZRACK
UNITED STATES DISTRICT JUDGE