Opinion
20 Civ. 4418 (GBD)
2022-02-14
Serina MORALES, Adriana Guidry, and Erika Chambers, individually and on behalf all others similarly situated, Plaintiffs, v. NEW YORK UNIVERSITY, Defendant.
Steve W. Berman, Hagens Berman Sobol Shapiro LLP, Seattle, WA, Daniel Kurowski, Whitney K. Siehl, Hagens Berman Sobol Shapiro LLP, Chicago, IL, Jennifer Lynn Duffy, Law Offices of Jennifer Duffy, Los Angeles, CA, Nathaniel A. Tarnor, Hagens Berman Sobol Shapiro LLP, New York, NY, for Plaintiffs Serina Morales, Adriana Guidry. Daniel Kurowski, Hagens Berman Sobol Shapiro LLP, Chicago, IL, for Plaintiff Erika Chambers. Keara M. Gordon, Brian S. Kaplan, Colleen Gulliver, Rachael C. Kessler, DLA Piper US LLP, New York, NY, for Defendant.
Steve W. Berman, Hagens Berman Sobol Shapiro LLP, Seattle, WA, Daniel Kurowski, Whitney K. Siehl, Hagens Berman Sobol Shapiro LLP, Chicago, IL, Jennifer Lynn Duffy, Law Offices of Jennifer Duffy, Los Angeles, CA, Nathaniel A. Tarnor, Hagens Berman Sobol Shapiro LLP, New York, NY, for Plaintiffs Serina Morales, Adriana Guidry.
Daniel Kurowski, Hagens Berman Sobol Shapiro LLP, Chicago, IL, for Plaintiff Erika Chambers.
Keara M. Gordon, Brian S. Kaplan, Colleen Gulliver, Rachael C. Kessler, DLA Piper US LLP, New York, NY, for Defendant.
MEMORANDUM DECISION AND ORDER
GEORGE B. DANIELS, United States District Judge:
This is another putative class action in which students at New York University have sued the university for breach of contract and unjust enrichment over its decision to suspend in-person academic instruction in response to the COVID-19 pandemic. This Court dismissed Plaintiffs’ First Amended Complaint ("FAC"), because it suffered from the same deficiencies as those in Zagoria v. New York University , 2021 WL 1026511 (S.D.N. Y Mar. 17, 2021). See Morales v. New York University , 2021 WL 1026165, at *1 (S.D.N.Y. Mar. 17, 2021) (hereinafter " Morales I "). Now, Plaintiffs move the Court to file a Second Amended Complaint ("SAC"). The Court finds that leave to amend would be futile because the proposed SAC does not sufficiently address the previously identified deficiencies. Thus, Plaintiffs’ request is DENIED.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Court refers to Morales I for a more detailed summary of the facts. Plaintiffs were enrolled, either full or part-time, at NYU during the Spring 2020 academic semester. (SAC, ECF No. 60-1, at ¶¶ 19, 29, 39.) Like many other schools around the country, in March 2020 NYU announced that it would be "closing residence halls and holding classes remotely through the end of the semester." (Id. ¶ 132.) Plaintiffs filed suit seeking "a refund of tuition and fees for in-person educational services, facilities, access, and/or opportunities" that they allegedly bargained for and NYU has failed to provide. (FAC, ECF No. 30, at ¶¶ 1, 14.)
NYU moved to dismiss the FAC under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), on the grounds that Plaintiffs failed to plead any specific promise by NYU to provide exclusively in-person instruction. Morales I , 2021 WL 1026165 at *1. This Court granted Defendant's motion, but provided Plaintiffs an opportunity to submit a letter application and a proposed amended complaint showing why a second amendment would not be futile. Id. at *2.
II. LEGAL STANDARD
Courts can freely permit plaintiffs leave to amend when justice so requires. Fed. R. Civ. P. 15(a)(2). By its terms, this rule is not absolute, and "district court[s] have the discretion to deny leave if there is a good reason for it." Brown v. Quiniou , 467 F. App'x 13, 15 (2d Cir. 2012) (quoting Jin v. Metro. Life Ins. Co., 310 F.3d 84, 101 (2d Cir. 2002) ). For instance, "[i]t is well established that leave to amend a complaint need not be granted when amendment would be futile." Kim v. Kimm , 884 F.3d 98, 106 (2d Cir. 2018) (quoting Ellis v. Chao , 336 F.3d 114, 127 (2d Cir. 2003) ). A proposed amendment is futile when "it could not withstand a motion to dismiss pursuant to Rule 12(b)(6)." Long v. Parry , 679 F. App'x 60, 63 (2d Cir. 2017) (citing Dougherty v. N. Hempstead Bd. of Zoning Appeals , 282 F.3d 83, 88 (2d Cir. 2002) ). Thus, a court must review whether an amendment adds any new facts, accepted as true, that "state a claim for relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).
To make such a showing, the plaintiff must demonstrate "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft , 556 U.S. at 678, 129 S.Ct. 1937. Instead, a facially plausible claim requires the plaintiff to plead facts that enable the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 663, 129 S.Ct. 1937. In deciding a 12(b)(6) motion, the court must also draw all reasonable inferences in the non-moving party's favor. See N.J. Carpenters Health Fund v. Royal Bank of Scot. Grp., PLC , 709 F.3d 109, 119–20 (2d Cir. 2013).
III. THE PROPOSED AMENDMENTS TO THE COMPLAINT ARE FUTILE
The legal analysis and applicable substantive law in Zagoria and Morales I continue to apply with equal weight here.
Plaintiffs fail to provide any new facts that plausibly allow this Court to infer that NYU made a specific promise to provide exclusively in-person instruction. The SAC belabors the same points raised in the FAC by continuing to primarily rely upon NYU's "Course Catalog" identification of "specific building and room number[s]" for listed courses and a search function that allows students to determine whether instruction is in person. (SAC at ¶¶ 21-22, 31-32, 41-42.) In the proposed SAC, Plaintiffs simply added additional pictures and context to make this point. (SAC at ¶ 83.) However, as this Court stated in Morales I , the Course Catalog "does not imply a contractual entitlement to continued instruction in the same location and manner." Morales I , 2021 WL 1026165 at *1 (citing In re Columbia Tuition Refund Action , 523 F.Supp.3d 414, 422–24 (S.D.N.Y. 2021) ). Despite Plaintiffs persistent reliance on these same materials, they fail to address this Court's determination that there has been no demonstration NYU "relinquished its authority" to alter the method of academic instruction. Gertler v. Goodgold , 107 A.D.2d 481, 485, 487 N.Y.S.2d 565, aff'd , 66 N.Y.2d 946, 498 N.Y.S.2d 779, 489 N.E.2d 748, (1985).
In all instances, "NYU" refers to allegations regarding the specific university schools at issue.
In support of Plaintiffs’ application, they point to website and marketing material references regarding student access to "state-of-the-art facilities" and "world-class laboratories." (Letter Motion for Leave to File Second Amended Complaint (the "Motion"), ECF No. 60, at 2.) Plaintiffs further highlight websites that describe their program's required field placements as courses where "students ‘will gain hands on experience.’ " (Id. at 2.) These statements still fail to amount to any express language promising the "certain specified service" of in-person classes, especially given the fact that the SAC does not address any relinquishment of NYU's authority to change course. Baldridge v. State , 293 A.D.2d 941, 943, 740 N.Y.S.2d 723 (3d. Dep't 2002).
The Court takes notice of recent rulings indicating that a contract may be predicated on certain required courses that are supposed to be hands on and integral to the curriculum. See Flatscher v. Manhattan School of Music , 2021 WL 3077500, at *6, 551 F.Supp.3d 273 (S.D.N.Y. July 20, 2021) ; Brittain v. Trustees of Columbia University , 2021 WL 3539664, at *6 (S.D.N.Y. Aug. 11, 2021). However, those cases relied on facts such as signed leases for in-person facilities or specified "in-person performance/examination," none of which are present here.
Plaintiffs rely on Bergeron v. Rochester Institute of Technology to argue the fact that a promise can be found based on statements regarding the benefits of in-person, on campus programs. (The Motion at 2.) However, Plaintiffs fail to account for the significant differences between RIT and NYU making Bergon inapplicable. In Bergeron , the court found RIT's on campus program was separate and mutually exclusive from RIT's "fully online distance learning programs." Bergeron , 2020 WL 7486682, at *1 (W.D.N.Y. Dec. 18, 2020) ("[RIT] offers ‘both in-person, hands-on programs, and fully online distance learning programs, which it markets and prices as separate and distinct products.’ "). The two separate programs had their own tuition rates in which the online program's tuition was significantly less than the in-person program tuition. Id. Plaintiffs here did not choose between two distinct, separate online and in-person programs provided by the same institution, they just chose between different classes offered within the same program. This is an important distinguishing factor from Bergeron that Plaintiffs fail to address, thus making their argument unpersuasive. See also, Hewitt v. Pratt Institute , No. 20-CV-2007 (ERK) (SJB), 2021 WL 2779286, at *4 (E.D.N.Y. July 2, 2021) (permitting claims related to fees to proceed because plaintiffs alleged that they paid fees for participation in specific programs , such as ceramics, sculpture, and printmaking courses, along with other technical arts programs and were told that the University would not charge such fees to students who chose to study remotely).
Plaintiffs’ inclusion of statements from NYU's mission statement in the SAC is also insufficient to cure the defects in the FAC. (SAC at ¶¶ 57-58.) This is Plaintiffs’ attempt to parallel the SAC with the complaint filed in Espejo et al., v. Cornell University , 523 F. Supp. 3d 228, 240 (N.D.N.Y. 2021). (ECF 60 at 2.) In Espejo , the Northern District of New York found that Cornell's mission statement "specifically defines a ‘Cornell education’ as including learning experiences ‘in the classroom ’ and ‘on campus [.]’ " Espejo , 523 F. Supp. 3d at 240 (emphasis added). Plaintiffs here, however, only point to vague mission statements about how "[NYU] lives within New York and other great cities" and that "NYU seeks to take academic and cultural advantage of its location." ( Id. ) Cornell's specific reference to "in the classroom" and "on campus" when defining a "Cornell education" is distinguishable from NYU's vague statements about its desire to take advantage of its unique location. In fact, NYU's mission statement demonstrates the various pedagogical ways to take advantage of New York city notwithstanding in-person instruction by referencing how it is able to retain and attract "outstanding" faculty and maintain a "broad network and extensive worldwide platforms for learning, teaching, [and] researching." ABOUT NYU, https://www.nyu.edu/about.html (last visited Nov. 3, 2021). The mission statement falls far short of a contract, expressed or implied, promising in person instruction.
Plaintiffs’ remaining unjust enrichment claim, as replead, continues to fail because of the previous pitfalls expressed in Zagoria and Morales I. As the Court has stated, "New York law does not permit recovery on ... unjust enrichment if the parties have a valid, enforceable contract that governs the same subject matter as the quasi-contract claim." Zagoria , 2021 WL 1026511 at *5. It is well-established that there is a contract governing a student's relationship with a university, just not one that includes the promise alleged by the Plaintiffs. However, the unjust enrichment claim is based on the same facts underpinning Plaintiffs’ breach of contract claims with no explanation as to how the unjust enrichment claim differs from the contract claim. Thus, Plaintiffs’ unjust enrichment is duplicative and barred by New York law.
IV. CONCLUSION
Plaintiffs’ motion to for leave to file second amended complaint, (ECF No. 60), is DENIED.