UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CONSOLIDATED ACTION

CASE NO. 20-60851-CIV-SINGHAL

CASE NO. 20-22207-CIV-SINGHAL

CASE NO. 20-22316-CIV-SINGHAL

CASE NO. 20-22594-CIV-SINGHAL

IN RE: UNIVERSITY OF MIAMI COVID-19 

TUITION AND FEE REFUND LITIGATION 

/ 

ORDER

THIS CAUSE is before the Court upon University of Miami’s Motion to Dismiss 

Consolidated Class Action Complaint with Prejudice (DE [52]). The parties have fully 

briefed the Motion and the matter is ripe for review. For the reasons discussed below, 

the Motion is granted in part and denied in part.

I. BACKGROUND

In early 2020, the COVID-19 pandemic upended 21st century life, causing a

worldwide shut-down of commercial, religious, cultural, and educational institutions. On 

March 17, 2020, the University of Miami (“UM”) closed most of its on-campus facilities

and announced that classes would be conducted in online/remote/distance platforms. 

(DE [49], ¶ 65). The school’s physical plant remained closed and students attended

online or remote classes for the remainder of the semester. Several UM students and 

parents of students filed class-action lawsuits1 seeking a proportionate refund of tuition, 

fees, and other semester expenses. 

1 Four separate lawsuits were filed asserting similar claims. Two cases were brought by students Valeria 

Dimitryuk and Adelaide Dixon and two cases were brought by Julie Gold and Michael Weiss, parents of 

UM students. On August 5, 2020, the Court consolidated the actions (DE [40]).

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Plaintiffs allege that UM breached an express or implied contract to provide inperson education (Counts I and II). Alternatively, Plaintiffs allege that UM was unjustly 

enriched by retaining tuition paid for in-person education while offering only on-line 

education (Count III). Plaintiffs also allege breach of an express or implied contract with 

respect to student fees paid for activities and facilities during the semester (Counts IV 

and V). Plaintiffs allege that UM breached the fees contracts by making the activities and 

facilities unavailable for use but not refunding the money paid for those activities or 

facilities. Alternatively, Plaintiffs allege that UM was unjustly enriched by retaining fees 

paid for activities or facilities that were not utilized (Count VI). Finally, Plaintiffs allege 

that certain students contracted and paid for UM to provide housing and meals on 

campus, but UM required students to move out of on-campus housing and cancelled 

meals without refunding a pro rata portion of the amounts paid. Plaintiffs allege that the 

failure to refund a portion of the amounts paid for housing and meals is a breach of

contract (Count VII) or, alternatively, unjust enrichment (Count VIII).2

UM moves to dismiss the Consolidated Class Action Complaint with prejudice3 on 

the grounds that (1) the Complaint is a shotgun pleading; (2) Plaintiffs fail to state a claim 

upon which relief can be granted; and (3) Plaintiffs Julie Gold and Michael Weiss lack 

jurisdictional standing.

2 Count VIII is captioned “Enrichment Without Cause” but the text of the Count is clear that Plaintiffs are 

claiming unjust enrichment (see DE [49], ¶ 242).

3 Prior to consolidation of the cases, UM had moved to dismiss each of the separate lawsuits. The Court 

consolidated the cases, ordered Plaintiffs to file a Consolidated Class Action Complaint, and denied the 

pending motions to dismiss without prejudice. UM argues contends that Plaintiffs should not be granted 

leave to amend.

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II. ANALYSIS

A. Shotgun Pleading

Rule 8, Federal Rules of Civil Procedure, requires the complaint to provide “a short 

and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 

Civ. P. 8(a)(2). The opposite of a short and plain statement of the claim is what is known 

as a “shotgun” pleading. “‘Shotgun’ pleadings are cumbersome, confusing complaints 

that do not comply with these pleading requirements. We have repeatedly condemned 

shotgun pleadings.” See Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 

1321–23 (11th Cir. 2015). 

There are four basic types of shotgun pleadings: (1) those in which each count 

adopts the allegations of all preceding counts; (2) those that do not re-allege all preceding 

counts but are replete with conclusory, vague, and immaterial facts not obviously 

connected to any particular cause of action; (3) those that do not separate each cause of 

action or claim for relief into different counts; and (4) those that assert multiple claims 

against multiple defendants without specifying which applies to which. Id. at 1321–23 

(quotations omitted). “The unifying characteristic of all types of shotgun pleadings is that 

they fail to . . . give the defendants adequate notice of the claims against them and the 

grounds upon which each claim rests.” Id. at 1323. “Courts in the Eleventh Circuit have 

little tolerance for shotgun pleadings.” Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 

1295 (11th Cir. 2018). 

UM argues the Complaint is a shotgun pleading because each count incorporates 

by reference 89 paragraphs of general allegations and as a result, many of the 

incorporated allegations have no relation to the count into which they are incorporated. 

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UM contends that charges for student fees and housing/meal fees are not relevant to 

plaintiffs’ claims for tuition refunds but are nevertheless incorporated into those claims

and, thus, the complaint should be dismissed with prejudice.4

The Court has carefully reviewed the Complaint and concludes that it is not a 

shotgun pleading. Although the Complaint does incorporate allegations of tuition and fee 

payments into each of the counts, the Complaint is not so “replete with conclusory, vague, 

and immaterial allegations [that] a defendant who reads the complaint would be hardpressed to understand the grounds upon which each claim against him rests.” Barmapov 

v. Amuial, 986 F.3d 1321, 1325 (11th Cir. 2021) (cleaned up). Indeed, each of the counts

contains factual allegations specific to that count. The bases for each count are clear in 

the Complaint. The motion to dismiss for being a shotgun pleading is denied.

B. Failure to State a Claim Upon Which Relief Can Be Granted

Although Rule 8(a) does not require “detailed factual allegations,” it does require 

“more than labels and conclusions;” a “formulaic recitation of the elements of a cause of 

action will not do.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007). To survive a 

motion to dismiss, “factual allegations must be enough to raise a right to relief above the 

speculative level” and must be sufficient “to state a claim for relief that is plausible on its 

face.” Id. at 555, 570. “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, 129 S. Ct. 1937, 1949 (2009). “The mere 

4 UM argues that because plaintiffs each filed previous shotgun complaints, the Court must dismiss the 

present Complaint with prejudice. See Vibe Micro, Inc, 878 F.3d at 1297. Even if the Court were to dismiss 

the Complaint as a shotgun pleading, dismissal would be without prejudice. A non-merits-based dismissal 

may only be made after the district court identifies the deficiencies in the complaint and gives the plaintiff 

the opportunity to correct them. Id. This Court has never addressed the shotgun pleading argument made 

by UM and, therefore, dismissal with prejudice would not be warranted. 

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possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss.” 

Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1261 (11th Cir. 2009), abrogated on other 

grounds by Mohamad v. Palestinian Authority, 132 S. Ct. 1702 (2012).

In considering a Rule 12(b)(6) motion to dismiss, the court’s review is generally 

“limited to the four corners of the complaint.” Wilchombe v. TeeVee Toons, Inc., 555 F.3d 

949, 959 (11th Cir. 2009) (quoting St. George v. Pinellas County, 285 F.3d 1334, 1337 

(11th Cir. 2002)). The court must review the complaint in the light most favorable to the 

plaintiff, and it must generally accept the plaintiff’s well-pleaded facts as true. See Hishon 

v. King & Spalding, 467 U.S. 69, 73 (1984); Am. United Life Ins. Co. v. Martinez, 480 F.3d

1043, 1057 (11th Cir. 2007). But “[c]onclusory allegations, unwarranted deductions of 

facts or legal conclusions masquerading as facts will not prevent dismissal.” Jackson v. 

Bellsouth Telecommunications, 372 F.3d 1250, 1262 (11th Cir. 2004) (citation omitted); 

see also Iqbal, 129 S. Ct. at 1949 (“[T]he tenet that a court must accept as true all of the 

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

UM moves to dismiss the Complaint arguing that Plaintiffs have failed to allege any 

plausible claims for relief. As a preliminary matter, UM contends that the Plaintiffs’ claims 

are barred in their entirety as a matter of law by Florida’s educational malpractice doctrine. 

Alternatively, UM argues the Plaintiffs have failed to state claims for breach of contract, 

breach of implied contract, or unjust enrichment. 

1. Educational Malpractice

Florida courts grant educational institutions wide deference in determining degree 

requirements and appropriate levels or methods of instruction. See e.g., Jallali v. Nova 

Se. Univ., Inc., 992 So. 2d 338 (Fla. 4th DCA 2008) (university did not breach contract by 

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refusing to issue degree to student who did not meet degree requirements); Tubell v. 

Dade Cty. Pub. Sch., 419 So. 2d 388 (Fla. 3d DCA 1982) (affirming summary judgment 

for school board on plaintiff’s claims that he was inappropriately placed in special 

education classes for years to his detriment); Simon v. Celebration Co., 883 So. 2d 826 

(Fla. 5th DCA 2004) (affirming dismissal of claim under Article IX, section 1 of the Florida 

Constitution which guarantees a high quality free public education because constitution 

does not create a private cause of action). UM argues that its decision to offer only remote 

instruction due to COVID-19 should be given the same deference given to educational 

institutions in these cases. More precisely, UM argues that Plaintiffs’ breach of contract 

and unjust enrichment claims are actually claims for educational malpractice and thus 

barred under Florida law. The Court disagrees.

Florida courts recognize that colleges and universities have a legal relationship 

with their students that is “contractual in nature.” Jallali, 992 So. 2d at 342 (quoting John 

B. Stetson Univ. v. Hunt, 102 So. 637, 640 (Fla. 1924)). “Under this contract implied in

fact, the student ‘pays a fee for services’ and the private university provides ‘an 

educational experience designed to lead to a . . . degree.’” Id. (quoting Gross v. Family 

Servs. Agency, Inc., 716 So. 2d 337, 339 (Fla. 4th DCA 1998)). The university has the 

right to determine “the terms under which it will admit and subsequently graduate students 

who will subject themselves to the rules, regulations, and regimen of the college.” Id. 

(quoting Univ. of Miami v. Militana, 184 So. 2d 701, 704 (Fla. 3d DCA 1966). Thus, 

schools will not be compelled to graduate students who did not meet the criteria for 

graduation as offered in the school’s publications at the time of enrollment. Id. But 

Plaintiffs are not challenging UM’s criteria for graduation.

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In this case, Plaintiffs allege that UM’s various publications created a contract for 

in-person instruction and that UM breached that contract by offering only remote 

instruction in response to COVID-19. Plaintiffs alleged they were damaged because

remote instruction was not contemplated and was of lesser value than the in-person 

instruction they paid to receive. This is not a claim for educational malpractice; it is a 

claim for breach of contract. “The focus of this case is simply whether Defendant 

promised something it later failed to deliver.” Rhodes v. Embry-Riddle Aeronautical Univ., 

Inc., 2021 WL 140708, at *4 (M.D. Fla. Jan. 14, 2021) (suit alleging breach of contract 

due to remote instruction during COVID-19 pandemic not dismissed on grounds of 

educational malpractice). The “educational malpractice doctrine” does not bar Plaintiffs’ 

claims.

2. Breach of Contract

To state a claim for breach of contract, a plaintiff must “plead and establish: (1) the 

existence of a contract; (2) a material breach of that contract; and (3) damages resulting 

from the breach.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1272 (11th Cir. 2009). UM 

moves to dismiss Plaintiffs’ claims for breach of contract (Count I – tuition, Count IV – 

student fees, and Count VII – housing/meals) and for breach of implied contract (Count II

– tuition and Count V – student fees) for failure to state a plausible claim. UM argues that

“a claim for breach of contract must identify ‘the actual terms of the contract allegedly 

breached.’” Toca v. Tutco, LLC, 430 F. Supp. 3d 1313, 1324 (S.D. Fla. 2020) (quoting 

Herssein Law Grp. v. Reed Elsevier, Inc., 594 Fed. Appx. 606, 608 (11th Cir. 2015)). UM 

contends that Plaintiffs fail to identify any terms that would support their claim that they 

paid tuition in exchange for in-person classes. The Court disagrees.

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It is well-settled in Florida that “the terms of the relationship between a student and 

a university may be found in university catalogs, student manuals, student handbooks, 

and other university policies and procedures.” Rosado v. Barry University Inc., 2020 WL 

6438684, at *3 (S.D. Fla. Oct. 30, 2020) (denying motion to dismiss breach of contract for 

university’s failure to provide in-person classes in response to COVID-19); Salerno v. Fla. 

S. Coll., 2020 WL 5583522, at *4 (M.D. Fla. Sept. 16, 2020) (same); Sirpal v. Univ. of

Miami, 684 F. Supp. 2d 1349, 1359 (S.D. Fla. 2010); Jallali, 992 So. 2d at 342 (student’s 

relationship with university is based in contract arising from university’s rules, regulations, 

regimen and publications at the time of enrollment).

Several federal courts in Florida – applying Florida law – have denied motions to 

dismiss breach of contract claims brought against colleges and universities following 

COVID-19 transitions to remote learning. See Rosado, 2020 WL 6438684; Gibson v. Lynn 

Univ., Inc., 2020 WL 7024463 (S.D. Fla. Nov. 29, 2020); Salerno, 2020 WL 5583522; 

Rhodes, 2021 WL 140708, at *4. As in this case, the plaintiffs cited to portions of the 

universities’ publications, policies, and course of conduct “to suggest courses would be 

conducted in-person and students would have access to campus facilities and activities.” 

Gibson, 2020 WL 7024463, at * 3. These courts found that the plaintiffs met the burden 

under Florida law of pleading a breach of contract:

Throughout the Amended Complaint, Plaintiff cites to portions of 

Lynn's publications and policies that suggest courses would be 

conducted in-person and students would have access to campus 

facilities and activities. . . . At this early stage of the case—given 

that Florida law recognizes that the university/student contract 

may be implied in the university's publications—these factual 

allegations are sufficient to plead the existence of a valid contract 

for in-person education.

Id. And, also:

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Rosado alleges that based on documents including the student 

handbook, university catalog, program publications, and course 

syllabi, and registration papers, which invoiced Rosado higher 

tuition corresponding to in-person classes rather than the lower 

tuition associated with Barry's online learning program—a contract 

promising in-person instruction was created. The Court agrees with 

Rosado that there is sufficient factual content alleged in the 

Amended Complaint to establish the existence of a valid contract 

with respect to in-person education.

Rosado, 2020 WL 6438684, at *3. And from the Middle District of Florida:

The crux of the College's motion is that the amended complaint does 

not identify a specific contractual provision that establishes that the 

College had an obligation to provide “in-person educational 

services” for the entire Spring 2020 semester. The Court disagrees 

based on its careful review of the amended complaint. Throughout 

the amended complaint, Murillo alleges that the College's 

publications clearly implied that courses would be conducted inperson. The College's materials also touted its many resources and 

facilities—all of which were located on the campus thereby implying 

in-person participation. These allegations are sufficient at this early 

stage, especially because Florida law recognizes that the 

college/student contract is typically implied in the College's 

publications. In other words, this is not a typical contract situation 

where there is an express document with delineated terms that a 

plaintiff can reference. It is more nebulous.

Salerno, 2020 WL 5583522, at *5. The same analysis governs here. Throughout the 

Complaint, Plaintiffs cite UM publications, web pages, catalogs, and policies that support 

Plaintiffs’ claim of a contract for on-campus instruction and services. (See, e.g., DE [49], 

¶¶ 25 – 55; 93 – 137). The Complaint states a claim for breach of contract under Florida 

law. 

UM argues that prior to registering for classes all students must sign and submit a 

Financial Responsibility Statement through which the students assume responsibility “to 

pay any and all tuition, fees and/or other miscellaneous charges” in exchange for 

registering for classes. (DE [52-1]). UM notes that the Financial Responsibility Statement 

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does not distinguish between in-person or remote classes and, therefore, UM had no 

contractual duty to provide in-person instruction. Plaintiffs respond that the Financial 

Responsibility Statement is not a contract in that it does not address numerous material 

terms concerning the students’ enrollment, including the cost and amount of tuition and 

fees owed. The Court agrees. The Financial Responsibility Statement may be relevant 

to the formation of the alleged contract between Plaintiffs and UM, but it is not the entirety 

of the parties’ agreement. See Jallali, 992 So. 2d at 342 (student’s relationship with 

university is based in contract arising from university’s rules, regulations, regimen and 

publications at the time of enrollment).

Finally, UM argues that the claims for breach of implied contract and unjust 

enrichment must be dismissed because they are indistinguishable from the breach of 

contract claims. Plaintiffs correctly point out that Rule 8 permits pleading in the 

alternative. Fed. R. Civ. P. 8(d)(3) (“[a] party may state as many separate claims or 

defenses as it has, regardless of consistency”). This case is at the pleading stage; once 

a record has been developed, the parties will have the opportunity to address factual and 

legal issues raised by the pleadings. But at this stage, Plaintiffs are entitled to plead

alternative theories of relief.

C. Jurisdictional Standing

UM moves to dismiss the claims brought by Plaintiffs Julie Gold (“Gold”) and 

Michael Weiss (“Weiss”) for lack of standing. Gold and Weiss are parents of UM students 

who paid their children’s tuition and fees. Complaint, ¶ 21 (DE [49]).

A defendant may make a facial or a factual attack on standing. Stalley ex rel. U.S. 

v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008). “A facial

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attack on the complaint requires the court to merely look and see if the plaintiff has 

sufficiently alleged a basis for subject matter jurisdiction, and the allegations in his 

complaint are taken as true for purposes of the motion.” Id. A factual attack uses 

materials extrinsic from the complaint, such as affidavits or testimony. Id. UM has made 

a facial attack on Gold’s and Weiss’ standing. 

To establish standing, a plaintiff must show “(1) an injury in fact; (2) a causal 

connection between the injury and the alleged misconduct; and (3) a likelihood that the 

injury will be redressed by a favorable decision.” L.M.P. on behalf of E.P. v. Sch. Bd. of 

Broward Cty., Fla., 879 F.3d 1274, 1281 (11th Cir. 2018) (citing Lujan v. Defs. of Wildlife, 

504 U.S. 555, 560-61 (1992)). “At the pleading stage, the plaintiff must clearly allege 

facts demonstrating each of these elements.” Gesten v. Burger King Corp., 2017 WL 

4326101, at *1 (S.D. Fla. Sept. 27, 2017) (citing Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 

1547 (2016), as revised (May 24, 2016)). 

“Injury in fact is a constitutional requirement.” Spokeo, Inc., 136 S. Ct. at 1547–48 

(quotations omitted). “To establish injury in fact, a plaintiff must show that he or she 

suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ 

and ‘actual or imminent, not conjectural or hypothetical.’” Id. at 1548 (quoting Lujan, 504 

U.S. at 560). “For an injury to be particularized, it must affect the plaintiff in a personal 

and individual way.” Spokeo, Inc., 136 S. Ct. at 1548 (internal quotations and citations 

omitted). To be concrete, “the injury must be ‘de facto’; that is, it must actually exist.” Id.

at 1549. “’Concrete’ is not, however, necessarily synonymous with ‘tangible.’” Id. at 1549.

The Court agrees with UM that Gold and Weiss lack standing. The Complaint

contains no allegations that they suffered an injury in fact. The contract alleged in the 

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Complaint was that the students would receive a residential, in-person educational 

experience at UM in exchange for payment of tuition and fees. Florida law recognizes a 

contract between the student and the university. Jallali, 992 So.2d 338. The Complaint 

alleges that UM breached the contract by failing to provide in-person education to the 

students. Although Gold and Weiss certainly have a parental interest in their children’s 

education, the education – and the relationship with the university – belongs to the 

student, not to the parent. The Complaint fails to allege any legally protected contractual 

relationship between UM and Gold or Weiss. Likewise, the Complaint fails to allege any

concrete injury to Gold or Weiss. See Salerno, 2020 WL 5583522, at *4 (“It is also of 

note that the lack of injury to Salerno [the mother] is clear regardless of whether Salerno 

provided financial support to her daughter. That arrangement was between mother and 

daughter. It does not establish a relationship between the College and Salerno under 

these facts.”).

The Complaint fails to establish standing on the part of Gold or Weiss. The Court 

is, therefore, obligated to dismiss their claims for lack of jurisdiction. Fed. R. Civ. P. 

12(b)(1); Salerno, 2020 WL 5583522, at *4 (parent who paid tuition lacked standing to 

sue for refund of tuition due to switch to remote learning in response to COVID-19).

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III. CONCLUSION

The Court concludes that Plaintiffs have alleged plausible claims under Florida law

for breach of contract and unjust enrichment. Plaintiffs Gold and Weiss, however, lack 

standing to sue as they have failed to allege an injury in fact. Their claims, therefore, will 

be dismissed. Accordingly, it is hereby

ORDERED AND ADJUDGED that University of Miami’s Motion to Dismiss 

Consolidated Class Action Complaint with Prejudice (DE [52]) is GRANTED IN PART 

AND DENIED IN PART. The claims of Julie Gold and Michael Weiss are DISMISSED

for lack of standing. The Motion to Dismiss is otherwise denied.

DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 4th day of 

March 2021. 

Copies furnished to counsel via CM/ECF

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