UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 0:20-cv-60851-AHS

VALERIA DIMITRYUK, on behalf of 

herself and all others similarly situated, 

Plaintiff,

v.

UNIVERSITY OF MIAMI,

Defendant.

______________________________________/

DEFENDANT’S MOTION TO DISMISS

Defendant, University of Miami (the “University”), by and through undersigned counsel 

and pursuant to Fed. R. Civ. P. 12(b)(6), hereby moves to dismiss the Class Action Complaint and 

Demand for Jury Trial (the “Complaint”) (DE 1) filed by Plaintiff, Valeria Dimitryuk, for failure 

to state a claim. Plaintiff has attempted to assert three claims against the University - - Breach of 

Contract (Count I), Unjust Enrichment (Count II) and Conversion (Count III) - - all premised on 

the closure of the University’s physical facilities as a result of the COVID-19 pandemic and its 

completion of the Spring 2020 semester in a virtual/remote learning environment. As a matter of 

Florida law, none of Plaintiff’s claims is factually or legally viable. To make matters worse, the 

Complaint is an improper shotgun pleading, in which each Count incorporates by reference all 

prior allegations and Counts. For all of these reasons, the Complaint should be dismissed.

INTRODUCTION

The following pertinent allegations are taken from Plaintiff’s Complaint: Plaintiff is 

enrolled as an undergraduate architectural major at the University, and she paid her tuition for the 

Spring 2020 semester. (DE 1 ¶ 9). On March 12, 2020, the University announced that, because of 

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the global COVID-19 pandemic, spring break would be extended through March 22 and classes 

would resume on March 23 in “online/remote/distance learning environments.” (Id. ¶ 20). Since 

that time, there has been no in-person instruction, and classes have continued solely in a virtual 

format. (Id. ¶ 22). Plaintiff alleges that, as a result of the closure of University facilities, the 

University has not delivered the educational services, facilities, access and/or opportunities she 

contracted and paid for. (Id. ¶ 23).

In Count I, Plaintiff attempts to assert a claim against the University for breach of contract, 

referring therein to an “admission agreement” (DE 1 ¶ 40), but nowhere setting forth the terms of 

any contract between her and the University that allegedly have been breached by the University. 

Plaintiff incorporates the general allegations set forth in paragraphs 1 through 37 of her Complaint 

into Count I. (Id. ¶ 38). 

In Count II, Plaintiff attempts to assert a claim for unjust enrichment. Here, Plaintiff alleges 

that she conferred a benefit on the University in the form of money paid for the Spring 2020 

semester tuition and fees and that the University has retained this benefit but has failed to provide 

the education, experience and services for which such tuition and fees were paid. (Id. ¶¶ 48-50). 

Plaintiff has incorporated into Count II, not only the general allegations of her Complaint set forth 

in paragraphs 1 through 37, but also paragraphs 38 through 45 - - the paragraphs that comprise 

Count I. (Id. ¶ 46). 

In Count III, Plaintiff attempts to assert a claim against the University for conversion. Here, 

Plaintiff alleges that she has an ownership right to the in-person educational services she was 

supposed to be provided in exchange for her Spring 2020 semester tuition and fee payments and 

that the University interfered with those rights when it moved all classes to a virtual format and 

discontinued in-person educational services. (Id. ¶¶ 54-55). Plaintiff has incorporated into Count 

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III, not only the general allegations of her Complaint set forth in paragraphs 1 through 37, but also 

paragraphs 38 through 51 - - the allegations that comprise Counts I and II. (Id. ¶ 52).

ARGUMENT

Plaintiff’s Complaint suffers from several deficiencies that warrant dismissal. As a 

threshold matter, the Complaint is a shotgun pleading, in which Counts II and III incorporate by 

reference all prior allegations and Counts, leading to incomprehensible results. The Eleventh 

Circuit repeatedly has condemned that practice and affirmed the dismissal of such complaints. 

Further, Plaintiff has not plausibly alleged any claim against the University, and it is clear that she 

cannot do so. For all of these reasons, Plaintiff’s Complaint should be dismissed with prejudice. 

I. THE COMPLAINT SHOULD BE DISMISSED BECAUSE IT IS A SHOTGUN 

PLEADING.

Plaintiff’s Complaint is an impermissible shotgun pleading. A shotgun pleading is one in 

which “each count . . . adopts the allegations of all preceding counts. Consequently, allegations of 

fact that may be material to a determination of count one, but not count four, are nonetheless made 

a part of count four . . . . [I]t is virtually impossible to know which allegations of fact are intended 

to support which claim(s) for relief.” Paylor v. Hartford Fire Ins. Co., 748 F.3d 1117, 1126 (11th 

Cir. 2014) (quoting Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th 

Cir. 1996)). See also Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 

1293, 1295 (11th Cir. 2002) (“The typical shotgun complaint contains several counts, each one 

incorporating by reference the allegations of its predecessors, leading to a situation where most of 

the counts (i.e., all but the first) contain irrelevant factual allegations and legal conclusions.”). 

The Eleventh Circuit repeatedly has held that a shotgun pleading properly is dismissed 

pursuant to Fed. R. Civ. P. 12(b)(6). Paylor, 748 F.3d at 1126 and 1126 n.3 (collecting more than 

twenty cases). In fact, the Eleventh Circuit recently reaffirmed this principle in two published 

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decisions. Estate of Bass v. Regions Bank, Inc., 947 F.3d 1352, 1358 (11th Cir. 2020) (“a district 

court that receives a shotgun pleading should strike it and instruct counsel to replead the case —

even if the other party does not move the court to strike the pleading”); Jackson v. Bank of Am., 

N.A., 898 F.3d 1348, 1352 (11th Cir. 2018) (affirming dismissal with prejudice of shotgun 

complaint). Courts within this Circuit routinely dismiss such complaints. See, e.g., Aracena v. 

Gruler, 347 F. Supp. 3d 1107, 1122 (M.D. Fla. 2018) (dismissing case with prejudice because 

“both Counts of the Amended Complaint ‘incorporate by reference all prior allegations,’ rendering 

the Amended Complaint an impermissible shotgun pleading”); YMD Records, LLC v. Ultra 

Enters., Inc., No. 19-CV-20424-UU, 2019 WL 849888, at *2 (S.D. Fla. Feb. 15, 2019) (dismissing 

shotgun complaint and noting that “[d]ismissal is appropriate on those grounds alone”).

Here, Plaintiff impermissibly has combined all of her claims for relief, as each Count 

incorporates by reference all of the Complaint’s prior allegations (and Counts). As a result, for 

example, Count III (for conversion) incorporates all allegations of Count I (breach of contract) and 

Count II (unjust enrichment). Under Eleventh Circuit precedent, this pleading defect mandates 

dismissal.

II. PLAINTIFF HAS FAILED TO STATE ANY PLAUSIBLE CLAIM. 

The above analysis should end the inquiry. See Estate of Bass v. Regions Bank, Inc., 947 

F.3d 1352, 1358 (11th Cir. 2020) (a district court should dismiss or strike a shotgun complaint); 

Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1357-58 (11th Cir. 2018) (same). Despite the Court’s 

ability to dismiss the Complaint in its entirety as a shotgun pleading, it may address the other bases 

for dismissal set forth in a motion to dismiss. Silver Crown Invest., LLC v. Team Real Estate 

Management, LLC, 349 F. Supp. 3d 1316, 1334 (S.D. Fla. 2018) (citing Jovine v. Abbott 

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Laboratories, 795 F. Supp. 2d 1331, 1337 (S.D. Fla. 2011)). On the merits, Plaintiff’s Complaint 

suffers from additional defects that warrant dismissal.

A. Legal Standard on a Motion to Dismiss

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, 677-78 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In other 

words, a complaint “must consist of more than ‘an unadorned, the-defendant-unlawfully-harmedme accusation.’” Lattimore v. Wells Fargo Bank, N.A., 590 Fed. Appx. 912, 913 (11th Cir. 2014) 

(quoting Iqbal, 556 U.S. at 678). A “‘formulaic recitation of the elements of a cause of action will 

not do.’” Simpson v. Sanderson Farms, Inc., 744 F.3d 702, 708 (11th Cir. 2014) (quoting Twombly, 

550 U.S. at 555). The Court must accept the plaintiff’s well-pleaded facts as true but need not 

accept mere legal conclusions. Brinson v. Welsh, 709 Fed. Appx. 582, 584 (11th Cir. 2017) (citing 

Iqbal, 556 U.S. at 678). 

“Plausibility is the key, as the ‘well-pled allegations must nudge the claim ‘across the line 

from conceivable to plausible.’” Jacobs v. Tempur-Pedic Int'l, Inc., 626 F.3d 1327, 1333 (11th 

Cir. 2010) (quoting Sinaltrainal v. Coca–Cola Co., 578 F.3d 1252, 1261 (11th Cir. 2009), in turn 

quoting Twombly, 550 U.S. at 570). “In short, the complaint must not merely allege a misconduct, 

but must demonstrate that the pleader is entitled to relief.” Gavilan v. Balans, L.C., No. 14-22791-

CIV, 2014 WL 6979625, at *1 (S.D. Fla. Dec. 9, 2014) (citing Iqbal, 556 U.S. at 678).

B. Plaintiff has Failed to State a Claim for Breach of Contract.

In order to state a claim for breach of contract, the plaintiff must allege “(1) a valid contract; 

(2) a material breach; and (3) damages.” Brown v. Cap. One Bank (USA), N.A., No. 15-60590-

CIV-Bloom/Valle, 2015 WL 5584697, at *2 (S.D. Fla. Sept. 22, 2015) (quoting Int’l Star Registry 

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of Ill v. Omnipoint Mktg., LLC, 510 F. Supp. 2d 1015, 1022 (S.D. Fla. 2007)). The law is clear that 

a complaint “must provide ‘more than labels and conclusions, and a formulaic recitation of the 

elements of a cause of action will not do.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

555 (2007)). “Nor can a complaint rest on ‘naked assertion[s]’ devoid of ‘further factual 

enhancement.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 

Rather, “[i]n order to allege a material breach in accordance with the pleading standards 

required under the Federal Rules of Civil Procedure, the plaintiff must allege which provision of 

the contract has been breached.” Id. (quoting Pierce v. State Farm Mut. Auto Ins. Co., No. 14-

22691-CIV, 2014 WL 7671718, at *4 (S.D. Fla. Dec. 14, 2014)). See also George v. Wells Fargo 

Bank, N.A., No. 13-80776-CIV, 2014 WL 61487, at *4 (S.D. Fla. Jan. 8, 2014) (failure to identify 

which provision of the contract has been breached “runs afoul of Twombly” and “renders the 

pleading deficient under Florida contract law”); Gentry v. Harborage Cottages-Stuart, LLP, No. 

08-14020-CIV, 2008 WL 1803637, at *4 (S.D. Fla. Apr. 21, 2008) (“Where the facts pleaded are 

insufficient to determine which of the provisions may have been breached, the claim cannot 

survive a motion to dismiss.”). “It is a basic tenet of contract law that a party can only advance a 

claim of breach of contract by identifying and presenting the actual terms of the contract allegedly 

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

(quoting Harris v. Am. Postal Workers Un., 198 F.3d 245 (6th Cir. 1999)). “It is appropriate to 

dismiss a breach of contract claim if it fails to state which provision of the contract was breached.” 

Cruz v. Underwriters at Lloyd’s London, No. 8:14-CV-1539-T-33TBM, 2014 WL 3809179, at *2 

(M.D. Fla. Aug. 1, 2014).

It is well-established that, “[u]nder Florida law, a student and a private university have a 

contractual relationship.” Jarzynka v. St. Thomas Univ. Sch. of Law, 310 F. Supp. 2d 1256, 1268 

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(S.D. Fla. 2004) (citing John B. Stetson Univ. v. Hunt, 102 So. 637, 640 (Fla. 1924) and Sharick 

v. Se. Univ. of Health Sciences Inc., 780 So. 2d 136, 138 (Fla. 3d DCA 2000)). It also is generally 

accepted that the terms and conditions of that contractual relationship are set forth in the 

publications of the private university. Id. at 1268-69 (citing Sharick, 780 So. 2d at 138). As the 

Eleventh Circuit has explained:

Under Florida law, the legal relationship between a private university and a student 

is “solely contractual in character.” Jallali v. Nova Se. Univ., Inc., 992 So. 2d 338, 

342 (Fla. 4th DCA 2008) (quotation marks omitted). The university “may set forth 

the terms under which it will admit and subsequently graduate students who subject 

themselves to the rules, regulations and regimen of the college.” Univ. of Miami v. 

Militana, 184 So. 2d 701, 704 (Fla. 3d DCA 1966). These terms may be derived 

from university publications such as the student handbook and catalog. Jallali, 992 

So. 2d at 342. “A court will not interfere with a private university’s enforcement of 

its regulations unless the university has acted arbitrarily and capriciously, in 

violation of a constitution or statute, or for fraudulent purposes.” Id. at 343. 

Sirpal v. Univ. of Miami, 509 Fed. Appx. 924, 929 (11th Cir. 2013). See also Orzechowitz v. Nova 

Se. Univ., No. 13-62217-CIV, 2014 WL 1329890, at *2 (S.D. Fla. Mar. 31, 2014); McCawley v. 

Universidad Carlos Albizu, Inc., 481 F. Supp. 2d 1251, 1256 (S.D. Fla. 2006).

Here, Plaintiff has failed sufficiently to allege the essential terms of her contract with the 

University which allegedly have been breached, as required to state a claim for breach of contract. 

As the United States District Court for the Middle District of Florida explained, a student suing a 

private university for breach of contract must set forth in his/her complaint the specific rule or 

procedure that the university allegedly violated:

Under Florida law, “[t]here is an implied contract between a student and a private 

university that if the student fully complies with the rules and regulations of the 

institution, then the university will confer to him a degree.” McCawley v. 

Universidad Carlos Albizu, Inc., 461 F. Supp. 2d 1251, 1257 (S.D. Fla. 2006) 

(citations omitted). The terms of this relationship are generally set forth in 

university catalogs, student manuals, student handbooks, and other university 

policies and procedures. Id. See also Ali v. Stetson Univ., Inc., 340 F. Supp. 2d 

1320, 1328 (M.D. Fla. 2004) (quoting Univ. of Miami v. Militana, 184 So. 2d 701, 

704 (Fla. 3d DCA 1966) (“it is generally accepted that the terms and conditions for 

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graduation are those offered by the publications of the college at the time of 

enrollment”)).

“For a breach of contract claim, Florida law requires the plaintiff to 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). To prove the existence of a contract, a plaintiff must 

plead: (1) offer; (2) acceptance; (3) consideration; and (4) sufficient specification 

of the essential terms. Id. (citations omitted). Because the terms of a student’s 

implied contract with the university are set forth in the university’s catalogs, 

student manuals, student catalogs, and other policies and procedures, federal 

courts have dismissed breach of contract claims against a university when the 

plaintiff fails to specify the particular rule or procedure that the university 

allegedly violated. See Routh v. Univ. of Rochester, 981 F. Supp. 2d 184, 208 

(W.D.N.Y. 2013); Faiaz v. Colgate Univ., 64 F. Supp. 3d 336, 358 (N.D.N.Y. 2014) 

(“Plaintiff must identify the specific terms of the implied contract that he claims 

were violated by the university .... The failure to do so will result in dismissal of 

the contract claim”).

* * *

As noted above, a plaintiff must plead a sufficient specification of the essential 

terms of the parties’ contract, which, under Florida law, are set forth in the 

university catalogs, student manuals, student handbooks, or other university 

policies and procedures. McCawley, 461 F. Supp. 2d at 1257. Here, the Complaint 

makes no reference to any of the aforementioned documents. Doc. No. 1. Thus, 

Plaintiff has failed to sufficiently allege the contract’s essential terms. See Routh, 

981 F. Supp. 2d at 208; Faiaz, 64 F. Supp. 3d at 358. Considering the foregoing, it 

is recommended that the Court dismiss the Complaint.

Villard v. Capella Univ., No. 6:17-cv-1429-Orl-41GJK, 2017 WL 9253388, at *2 (M.D. Fla. Dec. 

21, 2017) (emphasis added), R&R adopted, 2018 WL 2011433 (Apr. 30, 2018).

This pleading requirement - - that a student asserting a breach of contract claim against a 

private university must specifically identify the policy or rule allegedly breached - - is not unique 

to Florida law. For example, in Gibson v. Walden Univ., LLC, 66 F. Supp. 3d 1322 (D. Or. 2014), 

the district court noted that, “[i]n order to state a claim for breach of contract in the private 

university context, the plaintiff ‘must point to an identifiable contractual promise that the 

defendant failed to honor.’” 66 F. Supp. 3d at 1324 (quoting Ross v. Creighton Univ., 957 F. 2d 

410, 416 (7th Cir. 1992)). In Gibson, the court dismissed the student’s contract claim because 

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“Plaintiff has failed to state a claim for breach of contract based on the Walden Student 

Handbook.” Id. at 1326. 

Similarly, in David v. Neumann Univ., 177 F. Supp. 3d 920 (E.D. Pa. 2016), the district 

court recognized that the relationship between a student and a private university is contractual, the 

contract being comprised of the written guidelines, policies and procedures as contained in the 

written materials distributed to the student. Id. at 925. Moreover, the court recognized that the 

allegations in a breach of contract suit against a private university must identify the specific 

promise that the school failed to honor. Id. (citing Vurimindi v. Fuqua Sch. of Bus., 435 Fed. Appx. 

129, 133 (3d Cir. 2011) (“the allegations must relate to a specific and identifiable promise that the 

school failed to honor”) and Hart v. Univ. of Scranton, No. 11-1576, 2012 WL 1057383, at *4 

(M.D. Pa. Mar. 28, 2012) (dismissing breach of contract claims against university where plaintiff 

failed to point to any specific terms in the handbook that the university allegedly violated)). In 

David, the court held that the plaintiff had failed to state a claim for breach of contract because the 

complaint did not make clear which policies and/or procedures the university allegedly breached. 

Id. See also Nungesser v. Columbia Univ., 169 F. Supp. 3d, 369-70 (S.D.N.Y. 2016) (dismissing 

student’s breach of contract claim because student failed to identify specifically designated and 

discrete promises allegedly breached and noting that general policy statements and broad and 

unspecified procedures and guidelines will not suffice).

In short, as is the case in Florida, courts in numerous other jurisdictions have recognized 

that the relationship between a student and a university is contractual. Thus, “a student asserting a 

breach of contract claim must identify specific terms of the implied contract that were allegedly 

violated by the college (such as an internal rule, regulation, or code), and failure to do so is fatal 

to the claim.” Lee v. Univ. of N.M., No. CIV 17-1230 JB/LF, ___ F. Supp. 3d ___, 2020 WL 

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1515381, at *50 (D.N.M. Mar. 30, 2020) (quoting Rolph v. Hobart and William Smith Colls., 271 

F. Supp. 3d 386, 405-06 (W.D.N.Y. 2017)). Here, Plaintiff’s relationship with the University is 

contractual, and she has failed to set forth any provision of the contract (i.e., the student handbook 

or any other University publication or policy) that the University has breached. Accordingly, no 

breach of contract claim has been stated, and Count I should be dismissed.

C. Plaintiff has Failed to State a Claim for Unjust Enrichment.

As noted, in her breach of contract claim, Plaintiff alleges that she paid the cost of tuition 

for the Spring 2020 semester as well as other mandatory fees (DE 1 ¶ 16), and that the University 

moved to virtual instruction on March 23, 2020 due to the global COVID-19 pandemic. (Id. ¶ 20). 

She further alleges that, as a result of the closure of its facilities, the University has not delivered 

the educational services that Plaintiff contracted and paid for. (Id. ¶ 23). Plaintiff alleges that she 

entered into a binding contract with the University and that, in exchange for payment of tuition, 

she was entitled to in-person educational services for the entire Spring 2020 semester. (Id. ¶ 41).

Plaintiff asserts that she did not receive the benefits of her bargain and that she is entitled to 

reimbursement of certain tuition, fees and other expenses that were collected by the University for 

services that the University failed to deliver. (Id. ¶ 44).

Plaintiff’s unjust enrichment claim is virtually indistinguishable from her breach of 

contract claim. In Count II, Plaintiff alleges that she conferred a benefit on the University in the 

form of tuition and other fees paid in exchange for educational services through the Spring 2020 

semester and, thus, was entitled to in-person educational services through the end of that semester. 

(Id. ¶ 48). She further alleges that the University has retained this benefit even though it has failed 

to provide in-person education since it shut down due to the pandemic. (Id. ¶ 50). As with her 

breach of contract claim, Plaintiff asserts that the University should return the pro-rated portion of 

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any Spring 2020 semester tuition and fees for educational services not provided since the 

University shut down. (Id.).

“The elements of a claim for unjust enrichment are: (1) a benefit conferred upon the 

defendant by the plaintiff, (2) appreciation by the defendant of such benefit, and (3) acceptance 

and retention of such benefit by the defendant under such circumstances that it would be 

inequitable for him to retain it without paying the value thereof.” American Marine Tech, Inc. v. 

World Group Yachting, 418 F. Supp. 3d 1075, 1083 (S.D. Fla. 2019) (quoting Hercules, Inc. v. 

Pages, 814 F. Supp. 79, 80 (M.D. Fla. 1993)). “[T]he theory of unjust enrichment is equitable in 

nature and is, therefore, not available where there is an adequate legal remedy.” Id. (quoting Gary 

v. D. Agustini & Associados S.A., 865 F. Supp. 818, 827 (S.D. Fla. 1994)).

Although, under certain circumstances, a plaintiff is entitled to plead an unjust enrichment 

as an alternative theory to a legal cause of action, “‘where the unjust enrichment claim relies upon 

the same factual predicates as a plaintiff’s legal cause of action, it is not a true alternative theory 

of relief but rather is duplicative of those causes of action’ and warrants dismissal.” Koski v. 

Carrier Corp., 347 F. Supp. 3d 1185. 1196 (S.D. Fla. 2017) (quoting Licul v. Volkswagen Grp. Of 

Am., No. 13-61686, 2013 WL 6328734, at *7 (S.D. Fla. Dec. 5, 2013)), Moreover, it is immaterial 

that Plaintiff here has failed to state a claim for breach of contract - - unjust enrichment claims 

properly may be dismissed where they rely on the same factual predicate as a breach of contract 

claim even though the court also has dismissed the breach of contract claim. Id. (citing Leader 

Glob. Sol.’s LLC v. Tradeco Infraestructura, S.A. DE C.V., 155 F. Supp. 3d 1310, 1320-21 (S.D. 

Fla. 2016)).

Here, Plaintiff’s unjust enrichment claim is based on the same predicate common facts as 

her breach of contract claim. Moreover, nowhere in her Complaint does Plaintiff state that her 

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unjust enrichment claim is pled in the alternative. Accordingly, the claim of unjust enrichment is 

deficient and should be dismissed. As the district court in Silver Crown Invest., LLC v. Team Real 

Estate Management, LLC, 349 F. Supp. 3d 1316, 1333 (S.D. Fla. 2018), explained, in dismissing 

the plaintiff’s claim for unjust enrichment:

[W]hile plaintiffs are allowed to plead a breach of contract claim and, in the 

alternative, an unjust enrichment claim, that is not what Plaintiffs have done here. 

Count XIV does not say that it is pled in the alternative and it is based on the same 

facts as Plaintiffs’ breach of contract claim. See Coleman v. CubeSmart, 328 F. 

Supp. 3d 1349, 1360 (S.D. Fla. 2018) (Martinez, J.) (dismissing an unjust 

enrichment claim because count did not state the claim was plead in the alternative, 

and the claim was based on the same predicate common facts underlying the other 

counts.). Accordingly, Plaintiffs have not sufficiently pled a claim for unjust 

enrichment.).

Similarly, Plaintiff has failed to state a claim against the University for unjust enrichment and, 

thus, Count II of her Complaint should be dismissed.

D. Plaintiff has Failed to State a Claim for Conversion.

In Count III of her Complaint, Plaintiff misguidedly attempts to state a claim against the 

University for conversion. Here, Plaintiff incorporates all prior allegations and, in addition, alleges 

the identical wrong and seeks the identical remedy as in her breach of contract and unjust 

enrichment claims. Plaintiff alleges that she had an ownership right to the in-person educational 

services she was supposed to be provided in exchange for her Spring 2020 semester tuition and 

fee payments to the University. (DE 1 ¶ 54). Plaintiff asserts that the University intentionally 

interfered with her rights when it moved all classes to a virtual format and discontinued in-person 

educational services for which the tuition and fees were intended to pay. (Id. ¶ 56). Plaintiff alleges 

that she is entitled to the return of a pro-rated portion of any Spring 2020 semester tuition and fees 

for in-person education services that have not been provided since the University shut down due 

to the pandemic. (Id. ¶ 59).

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“Conversion is defined as ‘an act of dominion wrongfully asserted over another’s property 

inconsistent with his ownership therein.’” Cabana on Collins, LLC v. Regions Bank, No. 11-

21204-CIV-ALTONAGA/Simonton, 2011 WL 13223712, at *2 n.2 (S.D. Fla. June 7, 2011) 

(quoting Burger King Corp. v. Austin, 805 F. Supp. 1007, 1012 (S.D. Fla. 1992)). “In essence, 

conversion is an unauthorized act which deprives another of his property permanently or for an 

indefinite time.” Id. If, as here, there is a contractual relationship between the parties, in order to 

state a claim for conversion, the conversion “must go beyond, and be independent from, a failure 

to comply with the terms of the contract.” Gasparini v. Pordomingo, 972 So. 2d 1053, 1055 (Fla. 

3d DCA 2008) (citing Ginsberg v. Lennar Fla. Holdings, Inc., 645 So. 2d 490, 495 (Fla. 3d DCA 

1994) (“[A] plaintiff may not circumvent the contractual relationship by bringing an action in 

tort.”)). 

The allegations of Plaintiff’s Complaint are unclear, but she appears to allege that the 

University converted both her alleged right to “in-person educational services” and her “tuition 

and fees.” (DE1 ¶¶ 53-59). Neither is sufficient to state a claim for conversion under Florida law. 

As to her alleged right to “in-person educational services,” it is well-established that “intangible 

property rights cannot, standing alone, be the subject of a conversion claim.” AutoNation, Inc. v. 

GAINSystems, Inc., No. 08-61632-CIV, 2009 WL 1941279, at *8 (S.D. Fla. July 7, 2009). See also 

Al-Ghena Int'l Corp. v. Radwan, No. 13-61557-CIV, 2014 WL 12729283, at *7 (S.D. Fla. Apr. 

15, 2014) (dismissing conversion claim with prejudice because “Plaintiffs have not alleged that 

Defendants have wrongfully retained any non-monetary tangible property”). 

As to her tuition and fees, “Florida courts have long held that when money is the subject 

of claims for conversion, there must have been an obligation to keep intact or deliver the specific 

money in question, so that the money can be identified.” Id. (quoting Combe v. Flocar Inv. Grp. 

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Corp., No. 1:13–cv–22727–UU, 2013 WL 5568726, at *6 (S.D. Fla. Oct. 9, 2013)). See also 

IberiaBank v. Coconut 41, LLC, 984 F. Supp. 2d 1283, 1306 (M.D. Fla. 2013) (“For money to be 

the object of conversion there must be an obligation to keep intact or deliver the specific money in 

question, so that money can be identified.”) (quoting Gasparini v. Pordomingo, 972 So. 2d 1053, 

1056 (Fla. 3d DCA 2008) and Walker v. Figarola, 59 So. 3d 188, 190 (Fla. 3d DCA 2011)), aff'd, 

589 Fed. Appx. 479 (11th Cir. 2014). In other words, under Florida law, “[m]oney cannot be 

converted unless the money is a specifically identifiable fund such as an escrow account, a bag of 

gold coins, or the like.” In re Mouttet, 493 B.R. 640, 662 (Bankr. S.D. Fla. 2013) (citing Belford 

Trucking Co. v. Zagar, 243 So. 2d 646 (Fla. 4th DCA 1970)). Here, Plaintiff has not alleged that 

the University was under an obligation to “keep intact or deliver” any specific funds from the 

Plaintiff. Nor could she. Because Plaintiff has not identified (and cannot identify) any property 

that could be the subject of a conversion claim, this claim should be dismissed.

Moreover, in Florida, there are two situations in which a claim for conversion is recognized 

even where there exists a contractual relationship between the parties, and each involves the 

existence of conversion independent of an alleged failure to perform contractual duties. “The first 

arises where defendants or their employees have stolen or embezzled funds, which were entrusted 

to them by the plaintiffs, for their own benefit.” Cabana on Collins, 2011 WL 13223712, at *3 

(citing Szterensus v. Bank of Am., N.A., No. 08-22669-CIV, 2010 WL 427509, at *1 (S.D. Fla Feb. 

1, 2010) (finding that plaintiffs’ allegations that the money deposited with defendant bank was 

stolen by a bank employee presented more than mere breach of contract) and Burke v. Napieracz, 

674 So. 2d 756, 758 (Fla. 1st DCA 1996) (noting that defendant’s “affirmative and intentional act 

of converting the funds to his own use by allegedly stealing the monies to which he was entrusted” 

gave rise to a tort separate and independent from the breach of contract). 

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Here, the allegations of Plaintiff’s attempted claim for conversion are not independent of 

an alleged failure on the part of the University to perform its alleged contractual duties. Plaintiff 

does not allege that the University stole or embezzled her funds - - nor could she do so in light of 

Rule 11. Rather, the allegations of Plaintiff’s breach of contract claim and her conversion claim 

are identical. Both claims assert that the University was contractually required or duty-bound to 

provide in-person educational services to Plaintiff in exchange for her payment of tuition and fees 

and that, by failing to do so during the latter part of the Spring 2020 semester, the University both 

breached its contract with Plaintiff and converted her tuition payment which was earmarked for 

in-person education.

“The second situation where these claims constitute more than mere breach of contract 

involves funds that are owned by the plaintiff and given to defendant to temporarily hold in a 

segregated and identifiable account, which the defendant then refuses to return.” Cabana on 

Collins, 2011 WL 13223712, at *3. “In this second line of cases, the defendants are entrusted with 

funds which belong to plaintiff, and plaintiffs’ right to those funds does not arise out of contract.” 

Id. This is not a situation which has any application here. In this case, Plaintiff specifically alleges 

that, by accepting tuition and fees for the Spring 2020 semester, the University was contractually 

obligated to provide in-person education and its failure to do so constituted a breach of contract. 

The identical allegations give rise to Plaintiff’s conversion claim. 

As the Court found in Cabana on Collins, in dismissing the plaintiff’s claim for conversion, 

the breach of contract claim is “simply re-labeled as conversion.” 2011 WL 13223712, at *4. The 

same is true here. Plaintiff has failed to state a claim for conversion and, accordingly, Count III of 

the Complaint should be dismissed.

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III. PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED WITH PREJUDICE.

The deficiencies identified above are more than sufficient to dismiss the Complaint. 

Although pleading deficiencies occasionally can be cured through amendment, Plaintiff’s claims 

suffer from incurable defects. Plaintiff has asserted various tort, contractual and quasi-contractual 

theories in the three Counts of her Complaint, but the gravamen of all of her claims is the same: 

Plaintiff contends that, by transitioning the University’s services to an online/virtual format in 

response to the COVID-19 pandemic, the University has delivered services that “are subpar in 

practically every aspect” as compared to in-person services. (DE 1 ¶¶ 6, 26-27). Plaintiff’s theory 

is not cognizable as a matter of Florida law. 

Nearly forty years ago, Florida’s Third District Court of Appeal held that a claim of 

“educational malpractice” - - premised on the theory that a plaintiff-student had been placed in an 

“improper special educational program” - - was not recognized under Florida law. Tubell v. Dade 

Cty. Pub. Sch., 419 So. 2d 388, 389 (Fla. 3d DCA 1982) (collecting cases from across the country).

The Florida Supreme Court extended that holding after surveying a series of cases nationwide 

where courts “reject[ed] claims that have arisen in a variety of educational settings.” Dep't of 

Health & Rehab. Servs. v. B.J.M., 656 So. 2d 906, 915 (Fla. 1995) (collecting cases). That is 

because “a private university has broad discretion in what rules and regulations it shall issue and 

how it enforces its rules.” McCawley v. Universidad Carlos Albizu, Inc., 461 F. Supp. 2d 1251, 

1257 (S.D. Fla. 2006) (citing John B. Stetson Univ. v. Hunt, 102 So. 637, 640 (Fla. 1924) and 

Robinson v. Univ. of Miami, 100 So. 2d 442, 444 (Fla. 3d DCA 1958)). See also Jallali v. Nova 

Se. Univ., Inc., 992 So. 2d 338, 342 (Fla. 4th DCA 2008) (“[u]niversity faculties must have the 

widest range of discretion in making judgments as to the academic performance of students and 

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their entitlement to promotion or graduation”) (quoting Regents of Univ. of Mich. v. Ewing, 474 

U.S. 214, 225 n.11 (1985)).

In sum, Florida simply does not recognize a claim that “a school has failed to properly 

educate a student.” See Simon v. Celebration Co., 883 So. 2d 826, 832 n.1 (Fla. 5th DCA 2004). 

Applying these principles, federal district courts have rejected claims like Plaintiff’s. See, e.g., 

C.P. v. Leon Cty. Sch. Bd., No. 4:03 CV 65 RH/WCS, 2005 WL 2133699, at *5 (N.D. Fla. Aug. 

27, 2005) (“The claim is in essence one of educational malpractice, that is, failure to use reasonable 

care to provide an adequate education. This claim fails because Florida law recognizes no such 

cause of action.”); R.P. v. Leon Cty. Sch. Bd., No. 4:03CV387-SPM, 2005 WL 8164796, at *9 

(N.D. Fla. Sept. 30, 2005) (dismissing, with prejudice, claim based on school’s “failure to provide 

an adequate education” because it was “in essence a claim for educational malpractice,” which “is 

not cognizable under Florida law”). 

This bar holds true regardless of the theory by which the claim is pursued. Armstrong v. 

Data Processing Inst., Inc., 509 So. 2d 1298, 1299 (Fla. 1st DCA 1987) (“Regardless of the 

nomenclature, the gravamen of count III is a cause of action for educational malpractice which is 

not cognizable in Florida.”); Tubell v. Dade Cty. Pub. Sch., 419 So. 2d 388, 389 n.1 (Fla. 3d DCA 

1982) (affirming dismissal of multi-count complaint because, “regardless of the nomenclature” 

used, the claims were for educational malpractice). In fact, one district court recently confirmed 

an arbitration decision, in which the arbitrator rejected an education malpractice claim that was 

couched as a breach-of-contract claim. McCurdy v. Virginia Coll., LLC, No. 3:17-CV-562-J32JBT, 2018 WL 1886579, at *3 (M.D. Fla. Mar. 7, 2018) (“Educational malpractice claims are 

those based on inadequate educational services, even if under the guise of a . . . breach of contract 

claim.”) (alteration in original), R&R adopted, 2018 WL 1877472 (M.D. Fla. Apr. 19, 2018).

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Here, it is clear that Plaintiff’s claims are based on her allegation that virtual educational 

services are “subpar” to in-person educational services. Such a claim simply does not exist under 

Florida law. Because Plaintiff’s claims cannot be salvaged through amendment, dismissal should 

be with prejudice. See Rance v. Winn, 287 Fed. Appx. 840, 841 (11th Cir. 2008) (affirming 

dismissal of original complaint with prejudice because “district courts need not permit amendment 

where it would be futile to do so”); Scheider v. Leeper, No. 3:15-CV-364-J-34JRK, 2016 WL 

916557, at *4 (M.D. Fla. Mar. 10, 2016) (dismissing original complaint with prejudice because 

“any amendment would be futile”). 

Finally, because Plaintiff has failed to state any viable claim against the University in her 

individual capacity, it is unnecessary to address the deficiencies in Plaintiff’s allegations as to the 

class she purports to represent. Rather, “[w]hen a named plaintiff has no cognizable claim for 

relief, she cannot represent others who may have such a claim, and her bid to serve as a class 

representative must fail.” Henley v. Turner Broadcasting Sys., Inc., 267 F. Supp. 3d 1341, 1357 

(N.D. Ga. 2017) (quoting Sanford v. MemberWorks, Inc., 625 F. 3d 550, 560 (9th Cir. 2010) and 

citing Hardy v. Fischer, 701 F. Supp. 2d 605, 611 n.5 (S.D.N.Y. 2010)) (“In order for the [putative 

class action] complaint to survive this motion to dismiss, the allegations of at least one named 

plaintiff must state a claim for relief.”). See also Pruell v. Caritas Christi, No. 09-cv-11466, 2010 

WL 3789318, at *4 (D. Mass. Sept. 27, 2010) (“To survive a motion to dismiss [in a putative class 

action], the allegations of at least one named plaintiff must state a claim for relief.”); Sheet Metal 

Workers 441 Health & Welfare Plan v. GlaxoSmithKline, 263 F.R.D. 205, 210 (E.D. Pa. 2009) 

(“When the named plaintiff lacks a cause of action, the Court should dismiss the action before 

proceeding to class certification.”); Burks v. Arvest Bank, No. 4:06-cv-00551, 2006 WL 3512478, 

at *2 (E.D. Ark. Dec. 6, 2006) (“Since the Court has dismissed the sole named Plaintiff’s individual 

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claims, the Court must dismiss the class allegations as well and no notice of this involuntary 

dismissal need be given to any alleged unnamed class members.”). 

In short, “[a] putative class action complaint should be dismissed if the named plaintiff’s 

individual claims fail to state a claim for relief.” Parrish v. Arvest Bank, 717 Fed. Appx. 756, 760 

(10th Cir. 2017). See also Kunneman Prop., LLC v. Marathon Oil Co., No. 17-CV-00456-GFKJFJ, 2019 WL 4658362, at *1 (N.D. Ok. Sept. 24, 2019) (citing Robey v. Shapiro, Marianos & 

Cejda, L.L.C., 434 F. 3d 1208, 1213 (10th Cir. 2006) (“[a] putative class action complaint is 

properly dismissed if the named plaintiff’s claims fail to state a plausible claim for relief.”)). That 

is the case here. Accordingly, Plaintiff’s entire Complaint should be dismissed with prejudice.

CONCLUSION

Plaintiff’s own Complaint is self-defeating. Not only is it a shotgun pleading, but the claims 

she has chosen to assert are factually and legally meritless. The Complaint fails to state any claim 

upon which relief can be granted. Therefore, it properly should be dismissed. Further, because any 

amendment would be futile, the dismissal should be with prejudice. 

WHEREFORE, the University respectfully requests that the Court (1) dismiss Plaintiff’s 

Complaint with prejudice; (2) award the University its attorneys’ fees and costs to the fullest extent 

permitted by applicable law; and (3) grant such further relief as the Court deems just and 

appropriate under the circumstances.

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Respectfully submitted,

ISICOFF RAGATZ

601 Brickell Key Drive, Suite 750

Miami, Florida 33131

Tel: (305) 373-3232

Fax: (305) 373-3233

By: /s/ Eric D. Isicoff

Eric D. Isicoff

Florida Bar No. 372201

Isicoff@irlaw.com

Teresa Ragatz

Florida Bar No. 545170

Ragatz@irlaw.com

Christopher M. Yannuzzi

Florida Bar No. 92166

Yannuzzi@irlaw.com

Lead Counsel for Defendant, University of Miami

and

NELSON MULLINS BROAD AND CASSEL

Mark F. Raymond

Florida Bar No. 373397

2 S. Biscayne Boulevard

One Biscayne Tower, 21st Floor

Miami, Florida 33131

Tel: (305) 373-9425

E-mail: mark.raymond@nelsonmullins.com

Co-Counsel for Defendant, University of Miami

Case 0:20-cv-60851-AHS Document 13 Entered on FLSD Docket 05/21/2020 Page 20 of 21
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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been served via 

CM/ECF this 21st day of May, 2020, upon the following: 

BURSOR & FISHER, P.A.

Sarah N. Westcot

2665 S. Bayshore Drive, Suite 220

Miami, Florida 33133

Tel: (305) 330-5512

Fax: (305) 676-9006

E-mail: swestcot@bursor.com

By: /s/ Eric D. Isicoff

Eric D. Isicoff

Case 0:20-cv-60851-AHS Document 13 Entered on FLSD Docket 05/21/2020 Page 21 of 21