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

________________________________________/

DEFENDANT’S MOTION TO DISMISS 

CONSOLIDATED CLASS ACTION COMPLAINT WITH PREJUDICE

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 Consolidated Class Action 

Complaint (the “Complaint”) (D.E. 49) filed by Plaintiffs, Valeria Dimitryuk (“Dimitryuk”), 

Michael Weiss (“Weiss”), Julie Gold (“Gold”) and Adelaide Dixon (“Dixon”). In this lawsuit, 

Plaintiffs attempt to assert a series of claims arising out of the closure of the University’s physical 

facilities in response to the COVID-19 pandemic and its completion of the Spring 2020 Semester 

in a virtual/remote learning environment.

Prior to consolidation on August 5, 2020 (D.E. 40), Plaintiffs filed five separate/individual 

complaints asserting similar claims. The University moved to dismiss each one, setting forth 

numerous arguments why Plaintiffs had not stated and could not state any claim. Notwithstanding, 

the Complaint repeats the same technical and substantive errors of its predecessors. It remains an 

impermissible shotgun pleading, and it still does not plausibly allege any claim. None of Plaintiffs’

claims is factually or legally viable under Florida law. Because Plaintiffs already have had multiple 

opportunities to state their claims and it is clear that they cannot do so, the University respectfully 

requests that this lawsuit be dismissed with prejudice. 

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INTRODUCTION

In their 45-page, 242-paragraph Complaint, Plaintiffs attempt to hold the University liable 

under various theories for the University’s decision to transition its services online in response to 

a global pandemic - - a decision that Plaintiffs themselves characterize as “justified.” (Compl. ¶ 

68.) Applicable law does not support any of the claims Plaintiffs have chosen to assert. The 

allegations pertinent to this Motion are summarized below. 

I. General Allegations of the Complaint

Plaintiffs allege that, during the Spring 2020 Semester, Dimitryuk and Dixon were enrolled 

as students at the University, and Gold and Weiss were parents of students enrolled at the 

University. (Compl. ¶¶ 10-13, 21.)1 Plaintiffs allege that, “[a]s a precondition of enrollment,” they 

“were required to—and did pay—substantial tuition for the Spring 2020 Semester.” (Id. ¶ 22.) 

Plaintiffs allege that the University assessed various fees for the Spring 2020 Semester, which 

“Plaintiffs were required to—and did—pay.” (Id. ¶¶ 37, 41-53.) Plaintiffs allege that they “are in 

good financial standing at the University, having paid in whole or in combination tuition, fees, 

costs, and/or charges assessed and demanded by [the University].” (Id. ¶ 14.)

In connection with their registration at the University for the Spring 2020 Semester, the 

student Plaintiffs (Dimitryuk and Dixon) and the children of the parent Plaintiffs (Tyler Brand and 

Christopher Weiss) were required to—and did—agree to the University’s Financial Responsibility 

Statement, a copy of which is attached hereto as Exhibit A.2 In pertinent part, the Financial 

Responsibility Statement provides as follows:

1 Due to a typographical error, Plaintiffs mistakenly allege that Gold was both a student and 

the parent of a student at the University. (Compare Compl. ¶ 12 with Compl. ¶ 21.) However, as 

alleged in Gold’s individual complaint (Case No. 1:20-cv-22316, D.E. 1 at ¶ 9), Gold is the mother 

of a University student (Tyler Brand). 2 “In ruling upon a motion to dismiss, the district court may consider an extrinsic document 

if it is (1) central to the plaintiff's claim, and (2) its authenticity is not challenged.” SFM Holdings, 

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Terms and Conditions for Course Enrollment/Registration

I understand that by enrolling for classes at the University of Miami 

I am responsible to pay any and all tuition, fees and/or any other 

miscellaneous charges assessed to my student account. I agree to 

and accept financial responsibility for all charges on my student 

account. I promise to pay the University of Miami the full amount 

of my student account balance when due.

Campus Tuition and Fees 

I understand that activity on my account such as dropping or adding 

classes, adding a meal plan or a housing assignment to my account, 

among other activity, may create a new balance on my student 

account. I understand that new charges are due upon receipt and 

must be paid immediately. I understand that failure to pay these 

charges promptly may lead to the cancellation of my classes. I also 

understand that I am responsible for any charges remaining on my 

student account in the event my classes are cancelled.

(Ex. A.) Finally, the Financial Responsibility Statement provides, “By clicking on the ‘I Agree’ 

button, I confirm that I have read and agree to the University of Miami’s Financial Responsibility 

Statement.” (Id.)3 Nothing in the Financial Responsibility Statement requires the provision of inLtd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010) (quoting McClure v. Oasis 

Outsourcing II, Inc., 674 Fed. Appx. 873, 875 (11th Cir. 2016)). See also Sec. & Exch. Comm'n v. 

Shrewder, No. 06-80126-CIV, 2006 WL 8433635, at *3 n.3 (S.D. Fla. July 26, 2006) (“In a motion 

to dismiss, where a complaint is expressly linked to - and admittedly dependent on - undisputedly 

authentic documents, these documents may be effectively merged into the pleadings, and the Court 

can review them in making its decision.”). 

Here, it cannot reasonably be disputed that the Financial Responsibility Statement is central 

to Plaintiffs’ claims seeking reimbursement of tuition and fees. Further, Plaintiffs themselves 

allege that they entered into contracts with the University, the terms of which are “set forth by [the 

University] through its website, academic catalogs, student handbooks, correspondence, marketing 

materials and other circulars, bulletins, and publications.” (Id. ¶¶ 92-93.) This University website 

excerpt/publication sets forth the essential terms of the pertinent contract. Finally, there is no 

dispute regarding the authenticity of the document. In seeking transfer of Dixon’s case from the 

District Court of South Carolina to this Court, the University filed a Consent Motion to Transfer, 

which expressly cited to the Financial Responsibility Statement and which Motion was expressly 

was approved and adopted by Dixon. (S.C. Case No. 2:20-cv-01348-BHH and S.D. Fla. Case No. 

1:20-cv-22594, D.E. 6 ¶ 3, D.E. 7.)

3 Dixon agreed to the Financial Responsibility Statement on November 7, 2019. Dimitryuk

agreed to the Financial Responsibility Statement on November 9, 2019. Christopher Weiss (the 

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person education. (See id.) To the contrary, the Financial Responsibility Statement makes clear 

that the obligation to pay is absolute and independent of the nature/modality of classes. (See id.) 

Plaintiffs allege that the Spring 2020 Semester was “scheduled and contracted” to run from 

January 13 through May 6, 2020. (Id. ¶¶ 61-63.) However, in response to the COVID-19 pandemic, 

the University was forced to close certain on-campus facilities and transition its instruction to 

“online/remote/distance learning.” (Id. ¶¶ 39, 64-67.) Plaintiffs concede that “the reasons for such 

closures are justified.” (Id. ¶ 68.) Nevertheless, Plaintiffs allege that the foregoing changes differed 

from the services “for which they had contracted.” (Id. ¶ 73.) Plaintiffs further allege that what 

they received was “just not as valuable as in-person classes.” (Id. ¶¶ 72, 83(b), (c).) 

In describing the timeline of these events, Plaintiffs purport to cite to various University 

webpages dedicated to providing up-to-date information to students and faculty regarding the 

COVID-19 pandemic, and Plaintiffs provide the relevant web addresses. (See, e.g., id. ¶¶ 64-67, 

n. 25-27.) Copies of the relevant webpages are attached hereto as Exhibits B through E.

4

On March 12, 2020, the University advised that, following Spring Break, classes would 

resume on March 23 but “strictly in online/remote/distance learning environments through at least 

Saturday, April 4.” (Compl. ¶ 64; Ex. B.) On March 17, 2020, the University advised that classes 

son of Weiss) agreed to the Financial Responsibility Statement on November 11, 2019. Tyler 

Brand (the son of Gold) agreed to the Financial Responsibility Statement on December 17, 2019. 

4 Because Plaintiffs expressly cited to these websites in their Complaint, these websites have 

been incorporated into the Complaint by reference, and the Court may consider them in 

considering this Motion. See Parekh v. CBS Corp., No. 19-11794, 2020 WL 3400679, at *1 n.1 

(11th Cir. June 19, 2020) (citing Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005)). See also 

Blanco Rosales v. Swacina, No. 07-20064-CIV, 2007 WL 9709773, at *1 (S.D. Fla. May 23, 2007) 

(“The Court may refer to the USCIS Website in considering the motion to dismiss, because 

Plaintiffs reference the website in their Complaint and rely on it to support their allegations.”).

Materials attached to or incorporated into a complaint by reference control over 

contradictory allegations. Bellamy v. First Class Mgmt. LLC, No. 2:15-CV-431-FTM-29CM, 2017 

WL 3336450, at *2 (M.D. Fla. Aug. 4, 2017) (where “the allegations of the complaint about a 

particular exhibit conflict with the contents of the exhibit itself, the exhibit controls”) (quoting 

Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th Cir. 2016)).

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would resume on March 23 but in online/remote/distance format for the remainder of the semester. 

(Compl. ¶ 65; Ex. C.) On or about March 25, 2020, the City of Coral Gables issued a “Safer at 

Home” Order, which “requir[ed] residents and businesses to restrict non-essential activities.” 

(Compl. ¶ 66.) Plaintiffs allege that, “at this time,” the University “began to close on-campus 

student facilities such as libraries and other buildings and non-essential offices.” (Id. ¶ 67.) 

With respect to on-campus housing, the University advised on March 17, 2020, that there 

would be a “partial closing of on-campus housing” beginning March 25, 2020. (Ex. C.) Students 

who were “unable to return home” or who could not “find housing elsewhere” would be permitted 

to remain in on-campus housing. (Id.) “Room and board costs will be pro-rated for the remainder 

of the semester for all students leaving campus.” (Id.) On March 25, 2020, the University provided 

additional information on these fees and services. (Ex. D.) The University advised that, for all 

students who no longer resided on campus, the University would issue pro-rated refunds of 

housing, meals and parking, calculated from March 25, 2020. (Id.) On April 29, 2020, the 

University provided an additional update, stating that the “University will refund student accounts 

with a prorated amount for any Spring 2020 fees and services that cannot be provided in an online 

or virtual format. This includes housing, dining, parking, student center, wellness center, health 

and counseling, student activities, and athletics fees.” (Ex. E.) In fact, as discussed infra and as 

Plaintiffs themselves acknowledge, the University already has provided prorated refunds for all 

fees identified by Plaintiffs in the Complaint. (See Exs. C-E; Compl. ¶¶ 185, 211.)

II. Plaintiffs’ Claims 

Plaintiffs incorporate the aforementioned general allegations into their Class Action 

Allegations. (Compl. ¶ 77.) In their Class Actions Allegations, Plaintiffs allege that their claims 

are suited for class treatment and seek to represent three classes: a Tuition Class, a Fees Class and 

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an On-Campus Housing and Meals Class. (Id. ¶ 78.) However, Plaintiffs fail to identify which 

Plaintiffs would be potential members or representatives of each class. (See id. ¶¶ 77-89.)5

Based on the foregoing allegations - - which expressly are incorporated into all claims - -

Plaintiffs attempt to assert eight claims against the University. Counts I, II and III are brought on 

behalf of the proposed Tuition Class. (Id. ¶¶ 90-168.) Counts IV, V and VI are brought on behalf 

of the proposed Fees Class. (Id. ¶¶ 169-223.) Counts VII and VIII are brought on behalf of the 

proposed On-Campus Housing and Meals Class. (Id. ¶¶ 224-242.)

A. Tuition Claims

In Count I, Plaintiffs attempt to assert a claim for breach of contract premised on the tuition 

they paid and the educational services they were provided. (Id. ¶¶ 90-144.) Plaintiffs allege that 

they entered into contracts with the University, the terms of which are “set forth by [the University] 

through its website, academic catalogs, student handbooks, correspondence, marketing materials 

and other circulars, bulletins, and publications.” (Id. ¶¶ 92-93.) Plaintiffs allege the University 

“offered to provide live, in-person education, together with a full on-campus experience and 

members of the Tuition Class accepted that offer by paying tuition and attending classes during 

the beginning of the Spring 2020 semester.” (Id. ¶ 132.) However, Plaintiffs fail to identify any

contractual provision to that effect. Nevertheless, Plaintiffs allege that the University “breached 

the contract with Plaintiffs and members of the Tuition Class by moving all classes for the Spring 

2020 semester to online distance learning platforms, and restricting the on-campus experience 

without reducing or refunding tuition accordingly.” (Id. ¶ 137.) Further, Plaintiffs allege that the 

transition to remote learning was “hurriedly and ineffectively” implemented. (Id. ¶ 113.)

5 Said another way, Plaintiffs simply group themselves together as representatives of each 

class but fail to allege, for example, that any or all of them paid for on-campus housing or meal 

plans. 

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In Count II, Plaintiffs attempt to assert a claim for breach of implied contract premised on 

the same content alleged in Count I: the tuition they paid and the educational services they were 

provided. (Id. ¶¶ 145-157.) Although purportedly pled “in the alternative” to Count I, this claim 

incorporates the Complaint’s general allegations, which allege the existence of an express contract. 

(Id. ¶ 145, which incorporates ¶¶ 63, 73.) Again, Plaintiffs allege that they contracted with the 

University to provide in-person services, and the University breached that contract because the 

virtual/remote services provided by the University were “different from and less valuable than” 

in-person services. (Id. ¶¶ 152-154.)

In Count III, Plaintiffs attempt to assert a claim for unjust enrichment premised on the same 

content alleged in Counts I and II: the tuition they paid and the educational services they received. 

(Id. ¶¶ 156-168.) Although purportedly pled “in the alternative” to Count I, this claim incorporates 

the Complaint’s general allegations, which allege the existence of an express contract. (Id. ¶ 156, 

which incorporates ¶¶ 63, 73.) Plaintiffs allege that they conferred a benefit on the University and 

were provided with a “materially different” and “cheaper product.” (Id. ¶¶ 163-167.)

B. Fees Claims

In Count IV, Plaintiffs attempt to assert a claim for breach of contract premised on the 

various student fees that were paid. (Id. ¶¶ 169-189.) Plaintiffs admit (as Exhibit E makes clear) 

that the University “has already refunded or offered to refund some of these fees.” (Id. ¶ 185.) 

Plaintiffs then allege, in conclusory fashion, that there are “other fees that [the University] has 

refused and continues to refuse to refund in full.” (Id. ¶ 186.) Other than these conclusory 

allegations, Plaintiffs fail to identify what fees (or portions thereof) the University has not refunded

or has refused to refund.

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That is because the University already has issued prorated refunds of those fees. (See Ex. 

E.) In fact, in some of their prior pleadings, Plaintiffs admitted that all fees had been refunded, 

prorated to the date when on-campus facilities were closed. (See, e.g., Case No. 1:20-cv-22207, 

D.E. 1, Weiss Compl. ¶ 54) (the University “has agreed to provide some refunds to certain fees 

and services, i.e., housing, dining, parking, student center, wellness center, health and counseling, 

student activities, and athletics fees, with such fees prorated to March 25, 2020, when classes 

transitioned to an online format”). In other words, Plaintiffs are claiming prorated refunds of fees 

that already have been refunded.

In Count V, Plaintiffs attempt to assert a claim for breach of implied contract premised on 

the same subject matter at issue in Count IV: various student fees that were paid. (Id. ¶¶ 190-213.) 

Although purportedly pled “in the alternative” to Count IV, this claim incorporates the 

Complaint’s general allegations, which allege the existence of an express contract. (Id. ¶ 190, 

which incorporates ¶¶ 63, 73.) As in Count IV, Plaintiffs admit (as Exhibit E makes clear) that the 

University “has already refunded or offered to refund some of these fees.” (Id. ¶ 210.) Plaintiffs 

then allege, in conclusory fashion, that there are “other fees that [the University] has refused and 

continues to refuse to refund in full.” (Id. ¶ 211.) However, other than these conclusory allegations, 

Plaintiffs fail to identify what fees (or portions thereof) the University has not refunded or has 

refused to refund.

In Count VI, Plaintiffs attempt to assert a claim for unjust enrichment premised on the same 

subject matter at issue in Counts IV and V: various student fees that were paid. (Id. ¶¶ 214-223.) 

Although purportedly pled “in the alternative” to Count IV, this claim incorporates the 

Complaint’s general allegations, which allege the existence of an express contract. (Id. ¶ 214, 

which incorporates ¶¶ 63, 73.) Notably, Plaintiffs allege that the University “should be required to 

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disgorge this unjust enrichment to the extent that Defendant has retained more than the fair market 

value for the product that Defendant was able to provide.” (Id. ¶ 223) (emphasis added). In other 

words, Plaintiffs fail even to plausibly allege that the University has been unjustly enriched.

C. On-Campus Housing and Meals Claims

In Count VII, “Certain Plaintiffs” (although which specific Plaintiffs are not identified) 

attempt to assert a claim for breach of contract premised on the “pro-rata amount of fees” for 

housing and meal plans that the University did not provide. (Id. ¶¶ 224-232.) Not only do Plaintiffs 

fail to identify which of them (if any) actually are pursuing this claim, the Complaint also fails to 

identify the terms of any contract for housing or meals. (See id.) Finally, as Exhibits C-E make 

clear, the University already has refunded to students, on a prorated basis, unused fees for housing 

and meal plans.

Count VIII attempts to assert a claim for “Enrichment Without Cause” premised on the 

same matters alleged in Count VII. (Id. ¶¶ 233-242.) Like Count VII, this claim is brought by 

“Certain Plaintiffs” without any indication of who those Plaintiffs are. (See id.) Similarly, the 

attached/incorporated exhibits make clear that the University already has refunded to students 

unused portions of fees for housing and meals. (Exs. C-E.) 

ARGUMENT

The Complaint continues to suffer from the same deficiencies that plagued each of the 

Plaintiff’s prior pleadings. It remains an impermissible shotgun pleading, as each Count 

incorporates by reference irrelevant factual allegations that necessarily undermine their claims or 

otherwise conflate the issues. Further, Plaintiffs still have not plausibly alleged any claim under 

Florida law. Given these continuing deficiencies, Plaintiffs clearly cannot state a claim. 

Accordingly, the Complaint properly should be dismissed with prejudice. 

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

PLEADING.

Complaints that violate Rule 8(a) and/or Rule 10(b) often are referred to as “shotgun 

pleadings.” Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1320 (11th Cir. 2015). 

Several different kinds of shotgun pleadings exist. Id. One example is where a complaint begins 

“with a long list of general allegations, most of which are immaterial to most of the claims for 

relief.” Johnson Enters. of Jacksonville, Inc. v. FPL Grp., Inc., 162 F.3d 1290, 1333 (11th Cir. 

1998). These “general allegations are incorporated by reference into each count of the complaint.” 

Id. “The problem with a shotgun complaint is that most of the counts ‘contain irrelevant factual 

allegations and legal conclusions.’” Small v. Amgen, Inc., 2 F. Supp. 3d 1292, 1296 (M.D. Fla. 

2014) (quoting Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 

1295 (11th Cir. 2002)). See also Johnson Enters. 162 F.3d at 1332 (labeling a lengthy complaint, 

which “began with thirty-seven paragraphs of general allegations that were incorporated by 

reference into each count of the complaint,” as a shotgun pleading).

That is precisely the problem that exists in the Complaint (and that existed in Plaintiffs’ 

prior pleadings). Each Count incorporates by reference 89 paragraphs of general allegations. 

(Compl. ¶¶ 90, 145, 156, 169, 190, 214, 224, 233.) As a result, many of the incorporated allegations 

simply have no relation to the Count into which they are incorporated or expressly undermine that 

Count. For example, the Complaint’s general allegations include multiple statements regarding the 

tuition, student fees and housing/meal fees that Plaintiffs allegedly paid. (Id. ¶¶ 14, 37, 41-53.) 

These allegations are then incorporated into all Counts, such that Counts I through III (premised 

solely on tuition) include irrelevant allegations regarding student fees and housing/meal fees.6

6 Similarly, claims that purportedly are premised either on student fees and housing/meal 

fees include these general allegations regarding other types of fees/tuition which are not the subject 

of that Count. 

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Further, although Plaintiffs attempt to allege several quasi-contractual claims in Counts II, III, V, 

VI and VIII - - claims that cannot exist when an express contract exists - - Plaintiffs expressly 

incorporate the existence of such a contract in each of those Counts. (Compl. ¶¶ 90, 145, 156, 169, 

190, 214, 224 and 233, which incorporate ¶¶ 63, 73.) 

A shotgun pleading properly is dismissed pursuant to Fed. R. Civ. P. 12(b)(6). Paylor v. 

Hartford Fire Ins. Co., 748 F.3d 1117, 1126 and 1126 n.3 (11th Cir. 2014) (collecting more than 

twenty cases). In fact, dismissal with prejudice is appropriate at this stage of the proceedings. See 

Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1358–59 (11th Cir. 2018) (holding that a district 

court may dismiss a complaint with prejudice where, as here, the plaintiff has been advised of her 

complaint’s deficiencies and fails to correct them). To be clear, each of the University’s five prior 

motions to dismiss alerted Plaintiffs to the shotgun-pleading deficiencies of their complaints. (Case 

No. 1:20-cv-22316 (Gold), D.E. 12; Case No. 1:20-cv-22207 (Weiss), D.E. 20; Case No. 1:20-cv22594 (Dixon), D.E. 30; Case No. 0:20-cv-60851 (Dimitryuk), D.E. 13 and 28.) Thus, Plaintiffs 

clearly have been on notice of these deficiencies but failed to correct them. Pursuant to the 

Eleventh Circuit’s binding decision in Jackson, dismissal with prejudice is proper. See Jackson, 

898 F.3d at 1358 (“[T]he key is whether the plaintiff had fair notice of the defects and a meaningful 

chance to fix them. If that chance is afforded and the plaintiff fails to remedy the defects, the 

district court does not abuse its discretion in dismissing the case with prejudice on shotgun 

pleading grounds.”). Accordingly, the University respectfully requests that the Complaint be 

dismissed with prejudice as a shotgun pleading. 

II. PLAINTIFFS HAVE 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); 

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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 

Laboratories, 795 F. Supp. 2d 1331, 1337 (S.D. Fla. 2011)). Even on the merits, the Complaint 

continues to suffer from numerous 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 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 

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).

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B. Plaintiffs’ Claims are Barred as a Matter of Law by the Educational

Malpractice Doctrine. 

Plaintiffs have asserted various contractual and quasi-contractual theories in the 

Complaint, but the gravamen of all of their claims is the same: Plaintiffs contend 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 ineffective, less valuable and cheaper.

(Compl. ¶¶ 72, 83, 113, 152-154, 163-165.) Plaintiffs’ theory, however, 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 around the country). 

A few years later, the Florida Supreme Court extended that holding, citing 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 their entitlement 

to promotion or graduation”) (quoting Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 n.11 

(1985)).

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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 Plaintiffs’. 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 educational malpractice claim that - -

like Plaintiffs’ claims here - - was couched as a breach-of-contract claim. McCurdy v. Virginia 

Coll., LLC, No. 3:17-CV-562-J-32JBT, 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 Plaintiffs’ claims are based on their allegation that virtual educational 

services are subpar to in-person services. Such a claim simply does not exist under Florida law.7

C. Gold and Weiss, as Parents of University Students, Lack Standing.

It is well-established that, under “Florida law, the legal relationship between a private 

university and a student is ‘solely contractual in character.’” Sirpal v. Univ. of Miami, 509 Fed. 

Appx. 924, 929 (11th Cir. 2013) (citing Jallali v. Nova Se. Univ., Inc., 992 So. 2d 338, 342 (Fla. 

4th DCA 2008)). It also is “well settled that a plaintiff generally must assert his own legal rights 

and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” 

Bochese v. Town of Ponce Inlet, 405 F.3d 964, 984 (11th Cir. 2005) (quotations and citations 

omitted). A party who has no “legally cognizable interest . . . lacks standing.” Id. 

Here, it cannot be disputed that parents of university students have no legal or contractual 

relationship with the University. “It is fairly evident that the ‘payment of tuition does not create a 

contractual relationship between parents and a college’ when the parents’ child is over the age of 

majority.” Doe v. Univ. of the S., 687 F. Supp. 2d 744, 761 (E.D. Tenn. 2009) (quoting Apffel v. 

Huddleston, 50 F. Supp. 2d 1129, 1133 (D. Utah 1999)). “When a child reaches the age of majority, 

such ‘standing simply transfers from the parent to the child.’” Id. (quoting Loch v. Bd. of Educ.,

No. 3:06–cv–17, 2007 WL 2701274, at *2 (S.D.N.Y. Sept. 17, 2007)). Thus, in Doe, the district 

court dismissed a contract claim against a private university brought by parents of a student. Id. 

See also McCormick v. Dresdale, No. CIV.A. 09-474 S, 2010 WL 1740853, at *2 (D.R.I. Apr. 28, 

2010) (holding that parents lack standing to bring a breach of contract claim against a university). 

7 The rationale for this is simple and clear. If a marine biology class was moved to the Florida 

Keys but a student thought that the laboratory in the classroom was better, is that a breach of 

contract? If a teacher is perceived by a student as subpar, is that a breach of contract? The potential 

examples are limitless. It is for good and sound reason that claims like Plaintiffs’ are not 

recognized under Florida law.

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Further, the Financial Responsibility Statement (Exhibit A) makes clear that it is the 

student - - not a third-party - - who is responsible for payment of any University charges: “I 

understand that by enrolling for classes at the University of Miami I am responsible to pay any and 

all tuition, fees and/or any other miscellaneous charges assessed to my student account. I agree to 

and accept financial responsibility for all charges on my student account.” (Ex. A.) In sum, parents 

like Gold and Weiss have no legal relationship with the University. Therefore, they lack standing 

to pursue any claim, and their claims properly should be dismissed with prejudice. 

D. Plaintiffs8 Have Failed to State a Claim for Breach of Contract (Counts I, IV 

and VII). 

In order to state a claim for breach of contract, a 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 

of Ill v. Omnipoint Mktg., LLC, 510 F. Supp. 2d 1015, 1022 (S.D. Fla. 2007)). As this Court 

recently held in dismissing a contract claim with prejudice, “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 F. App’x 

606, 608 (11th Cir. 2015)). 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”). “It is a basic tenet of contract law that a party can only advance a claim of breach of contract 

8 For ease, the University refers to the four Plaintiffs collectively. However, as set forth 

supra, two of the Plaintiffs (Gold and Weiss) lack standing. To the extent the Court determines 

that those Plaintiffs have standing, the University’s other arguments for dismissal apply with equal 

force to them.

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by identifying and presenting the actual terms of the contract allegedly breached.” Herssein Law, 

594 Fed. Appx. at 608 (quoting Harris v. Am. Postal Workers Un., 198 F.3d 245 (6th Cir. 1999)).

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 

(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 generally is 

accepted that the terms and conditions of that contractual relationship “may be derived from 

university publications such as the student handbook and catalog.” Sirpal v. Univ. of Miami, 509 

Fed. Appx. 924, 929 (11th Cir. 2013) (citing Jallali v. Nova Se. Univ., Inc., 992 So. 2d 338, 342 

(Fla. 4th DCA 2008)).

Equally well-settled is a university’s right to modify its rules and regulations:

Implicit in the student's contract with the university upon 

matriculation is the student's agreement to comply with the 

university's rules and regulations, which the university is entitled to 

modify so as to properly exercise its educational responsibility. The 

appellees' claim of a binding, absolute unchangeable contract is 

particularly anomalous in the context of training professional 

teachers in post graduate level work.

Jallali., 992 So. 2d at 343 (quoting Mahavongsanan v. Hall, 529 F.2d 448, 450 (5th Cir. 1976)9

). 

See also Sirpal, 509 Fed. Appx. at 929 (“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.”) (quoting Jallali, 992 So. 2d at 

343); McCawley v. Universidad Carlos Albizu, Inc., 461 F. Supp. 2d 1251, 1258 (S.D. Fla. 2006)

(“As long as the actions of the University have a rational basis, founded on reason and fact, and 

9 “Decisions by the former Fifth Circuit issued before October 1, 1981, are binding as 

precedent in the Eleventh Circuit.” United States v. Brown, 342 F.3d 1245, 1246 n.1 (11th Cir. 

2003) (citing Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981)).

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are not shown to be the product of bias or prejudice, they cannot be considered to be arbitrary or 

capricious. Such decisions by a University generally are accorded great deference.”).

Here, Plaintiffs still have failed to allege the specific provisions of their contracts with the 

University that 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 her complaint the specific contractual 

provision that the university allegedly violated:

“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”).

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

21, 2017), 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. See, e.g., Gibson v. Walden Univ., LLC, 66 F. Supp. 3d 1322, 1324 (D. Or. 2014) 

(“In 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.’”) (quoting Ross v. 

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Creighton Univ., 957 F. 2d 410, 416 (7th Cir. 1992)); David v. Neumann Univ., 177 F. Supp. 3d 

920 (E.D. Pa. 2016) (noting that the allegations in a breach of contract suit against a private 

university must identify the specific promise that the school failed to honor); 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); Lee v. Univ. of N.M., No. CIV 17-1230 JB/LF, 449 F. Supp. 3d 1071, 

1147 (D.N.M. 2020) (“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”).

Here, Plaintiffs’ relationship with the University is contractual, but they again have failed 

to set forth any provision of the contract that the University has breached. Although the crux of 

Plaintiffs’ theory is that, in exchange for tuition, the University agreed to provide in-person 

services, Plaintiffs fail to identify any specific provision of any University rule or publication that 

sets forth such a contractual term. That is fatal to their contract claim. The only attempt to remedy 

this defect is Plaintiffs’ reference to the Course Catalogue. However, that document does not set 

forth any contractual terms at all; it merely is a listing of various University course offerings for 

the Spring 2020 Semester. Further, the Course Catalogue contains no terms essential to the 

university-student relationship identified above (e.g., rules and regulations, tuition, etc.). In other 

words, the Course Catalogue does not state (nor do Plaintiffs even allege) that the Course 

Catalogue links the payment of tuition to the receipt of access to a particular building, classroom

or instruction method.

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In any event, Plaintiffs’ theory simply is not viable. Of course, Plaintiffs would have no 

claim if a fire rendered a listed building/classroom closed for a particular period of time or if 

circumstances required movement of a class to another facility. Given the COVID-19 pandemic 

and the state-, county- and city-wide Stay-at-Home Orders that were enacted in response to same 

(of which the Court may take judicial notice pursuant to Fed. R. Evid. 201), the University was 

required to close its physical facilities. Certainly, that decision was neither arbitrary nor capricious 

- - a requirement under Florida law to state a claim for breach of contract in the university-student 

context. See, e.g., Jallali v. Nova Se. Univ., Inc., 992 So. 2d 338, 342–43 (Fla. 4th DCA 2008) 

(“implicit in the university's general contract with students is a right to change the university's 

academic degree requirements if such changes are not arbitrary or capricious”). Further, the 

University “is entitled to modify [its rules and regulations] so as to properly exercise its educational 

responsibility.” Id. (quoting Mahavongsanan v. Hall, 529 F.2d 448, 450 (5th Cir. 1976)). Not 

surprisingly, the Complaint fails to allege that the University’s actions in transitioning to 

remote/virtual services were arbitrary or capricious because, plainly, they were not. To the 

contrary, Plaintiffs concede that the University’s actions were “justified.” (Compl. ¶ 68.)

In addition, Plaintiffs cannot state a claim for breach of contract in light of the Financial 

Responsibility Statement, by which Plaintiffs obligated themselves to “pay any and all tuition, fees 

and/or any other miscellaneous charges assessed to [their] student account.” (Ex. A.) That contract 

does not require the provision of any in-person services. (Id.) Under Florida law, “a court must 

enforce a clear and unambiguous contractual provision.” Morales v. Zenith Ins. Co., 714 F.3d 

1220, 1227 (11th Cir. 2013) (citing Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 

528, 532 (Fla. 2005)). Based on the clear and unambiguous language of the contract, Plaintiffs 

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cannot state a claim seeking refunds for tuition, fees and charges based on the University’s alleged 

failure to provide services it was not contractually obligated to provide.

10

Finally, in Count VII, Plaintiffs fail to identify which, if any, of them actually contracted 

with the University for housing or meal plans. This failure is fatal to stating a claim. See, e.g., 

Rucker v. Integon Nat'l Ins. Co., No. 19-CV-23422, 2020 WL 2616210, at *2 (S.D. Fla. May 23, 

2020) (dismissing contract claim because “only parties to a contract or third-party beneficiaries 

have standing to sue for breach of the contract”) (citing Mustakas v. Integon Nat'l Ins. Co., No. 

9:19-cv-80911, 2019 WL 6324259, at *2 (S.D. Fla. Nov. 26, 2019)).

For all of these reasons, Plaintiffs have not stated and cannot state a claim for breach of 

contract. Therefore, Counts I, IV and VII should be dismissed with prejudice.

E. Plaintiffs Have Failed to State a Claim for Breach of Implied Contract (Counts 

II and V). 

Plaintiffs’ claims for breach of implied contract are virtually indistinguishable from their 

breach of contract claims and fail for the same reasons set forth above. Importantly, these claims 

incorporate by reference Plaintiffs’ allegations regarding the existence of a contract between 

themselves and the University. (Id. ¶¶ 145 and 190, which incorporate ¶¶ 63 and 73 regarding the 

alleged contract.) Further, given the Financial Responsibility Statement and the well-established 

Florida law regarding the relationship between a university and its students, Plaintiffs simply 

cannot state a claim for breach of implied contract. See, e.g., Landmark Equity Fund II, LLC v. 

Residential Fund 76, LLC, 631 Fed. Appx. 882, 887 (11th Cir. 2015) (“[a] contract cannot be 

implied in fact . . . where there is an express contract covering the subject-matter involved”); 

10 Of course, as Exhibits C-E and Plaintiffs’ own allegations make clear, the University - - as 

a courtesy - - has refunded unused, prorated portions of fees and charges. Plaintiffs’ conclusory 

allegations regarding the failure to refund unidentified funds certainly do not satisfy the 

requirements of Iqbal/Twombly to state a claim. 

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Certain Underwriters at Lloyd's of London, UK Subscribing to Policy No. B1230AP56189A14 v. 

Ocean Walk Resort Condo. Ass'n, Inc., No. 616CV258ORL37GJK, 2017 WL 3034069, at *4 

(M.D. Fla. July 18, 2017) (holding that the plaintiff’s reference to express contracts constituted an 

abandonment of an implied-contract theory). 

Finally, this claim should be dismissed because it is duplicative of Plaintiffs’ contract 

claims. See, e.g., A&M Mgmt. Inc. v. Deme, No. 18-63099-CIV, 2019 WL 7344821, at *5 (S.D. 

Fla. May 14, 2019) (“The Court agrees with Oberon and James that Plaintiffs’ claim for money 

had and received is due to be dismissed as duplicative of their unjust enrichment claim.”) (citing 

Manning v. Carnival Corp., No. 12–22258–CIV, 2012 WL 3962997, at *2 (S.D. Fla. Sept. 11, 

2012), in turn quoting Wultz v. Islamic Republic of Iran, 755 F. Supp. 2d 1, 81 (D.D.C. 2010))

(“Duplicative claims are those that stem from identical allegations, that are decided under identical 

legal standards, and for which identical relief is available.”). 

For all of these reasons, Counts II and V should be dismissed with prejudice.

F. Plaintiffs Have Failed to State a Claim for Unjust Enrichment (Counts III, VI

and VIII11). 

Plaintiffs’ unjust enrichment claims are virtually indistinguishable from their contract 

claims. However, “the theory of unjust enrichment is equitable in nature and is, therefore, not 

available where there is an adequate legal remedy.” Am. Marine Tech, Inc. v. World Group 

Yachting, 418 F. Supp. 3d 1075, 1083 (S.D. Fla. 2019) (quoting Gary v. D. Agustini & Associados 

S.A., 865 F. Supp. 818, 827 (S.D. Fla. 1994)). Although, under certain circumstances, a plaintiff 

11 Count VIII is entitled “Enrichment Without Cause.” The University was unable to identify 

a single Florida decision - - state or federal - - recognizing such a claim. It appears to be a claim 

that is cognizable in Louisiana. Canal/Claiborne, Ltd. v. Stonehedge Dev., LLC, 156 So. 3d 627, 

633 (La. 2014) (“That a claim of enrichment without cause under La. Civ.Code art. 2298 is a quasicontractual claim is well-settled in our jurisprudence.”). Because such a claim does not exist under 

Florida law, it properly should be dismissed. Nevertheless, in an abundance of caution, the 

University also has analyzed the claim as one for “unjust enrichment.”

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may plead an unjust enrichment as an alternative theory to a contract claim, “‘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 Plaintiffs have 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 that also has been dismissed. 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)).

Further, an unjust enrichment claim necessarily fails where, as here, it includes express 

allegations regarding the existence of a contract. See, e.g., Voltage Pay Inc. v. Turin Consulting 

LLC, No. 812CV00304MSSEAJ, 2013 WL 12205710, at *3 (M.D. Fla. Oct. 21, 2013) (noting that 

a plaintiff cannot pursue a claim for unjust enrichment when she alleges that an express contract 

exists) (citations omitted). Thus, the unjust enrichment claim is not an “alternative” claim but, 

rather, is premised on the contract. That pleading defect mandates dismissal. See, e.g., Transcon. 

Ins. Co. v. L.F. Staffing Servs., Inc., No. 07-80865-CIV, 2008 WL 11333474, at *7 (S.D. Fla. Aug. 

13, 2008) (dismissing unjust enrichment claim that incorporates allegations regarding breach of 

contract); Skyventure Orlando, LLC v. Skyventure Mgmt., LLC, No. 609-CV-396-ORL-19KRS, 

2009 WL 2496553, at *6–7 (M.D. Fla. Aug. 12, 2009) (same).

This Court’s recent decision in Toca v. Tutco, LLC, 430 F. Supp. 3d 1313 (S.D. Fla. 2020), 

is highly instructive. In Toca, this Court dismissed an unjust enrichment claim on these precise 

grounds: 

[T]his claim must be dismissed because it is duplicative of his 

claims for breach of express warranty in Counts I and III. “[A] 

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plaintiff cannot maintain a claim for unjust enrichment if there is an 

express warranty governing the plaintiff's rights.” Koski, 347 F. 

Supp. 3d at 1195. Thus, “[u]nder Florida law, unjust enrichment is 

an equitable remedy which necessarily fails upon a showing that an 

express contract exists.” Alvarez v. Royal Caribbean Cruises, Ltd., 

905 F. Supp. 2d 1334, 1341 (S.D. Fla. 2012). Further, the fact that 

the Court has determined his express-warranty claims fail as a 

matter of law and must be dismissed is of no consequence. In Koski, 

the court too dismissed the unjust-enrichment claim because the 

plaintiffs “allege[d] the existence of an express warranty.” 347 F. 

Supp. 3d at 1195. That the plaintiffs alleged such an existence, not 

necessarily proved, was sufficient to bar them from also bringing a 

claim for unjust enrichment “on the same factual allegations.” Id. 

The same outcome must control here, as well.

Id. at 1327. 

The same disposition is appropriate here, given the fact that (1) there is no dispute that the 

relationship between the University and its students is contractual in nature; (2) Plaintiffs 

incorporated into their unjust enrichment claims express allegations regarding the existence of a 

contract; and (3) the claim is duplicative of Plaintiffs’ contract claim. For all of these reasons, 

Counts III, VI and VIII should be dismissed with prejudice.

III. THE COMPLAINT SHOULD BE DISMISSED WITH PREJUDICE.

The deficiencies identified above are more than sufficient to require dismissal of the 

Complaint. Although pleading deficiencies occasionally can be cured through amendment, the 

Complaint is Plaintiffs’ sixth opportunity (collectively)12 to state their claims, and they still have

failed to do so. Dismissal with prejudice on this basis alone is in accord with Eleventh Circuit 

precedent. See, e.g., Eiber Radiology, Inc. v. Toshiba Am. Med. Sys., Inc., 673 Fed. Appx. 925, 

930 (11th Cir. 2016) (affirming dismissal of first amended complaint with prejudice after plaintiff 

was advised of deficiencies in its original complaint but filed a “minimally augmented Amended 

12 The Complaint is the third attempt by Dimitryuk and the second attempts by Dixon, Weiss 

and Gold.

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Complaint” that failed to correct those deficiencies); Frantz v. Walled, 513 Fed. Appx. 815, 819 

(11th Cir. 2013) (affirming dismissal of amended complaint with prejudice where plaintiff 

“already received one opportunity to correct his complaint’s deficiencies” but failed to do so). 

In any event, for all of the reasons explained above, further amendment would be futile 

because Plaintiffs’ claims suffer from incurable defects. In fact, a recent decision from the 

Michigan Court of Claims - - premised on nearly identical allegations - - provides further support 

for dismissal with prejudice. Zwiker v. Lake Superior State Univ., No. 20-00070-MK (Mich. Ct. 

Cl. Aug. 31, 2020.)13 In Zwiker, a student attempted to pursue contract and unjust enrichment 

claims against a university, seeking refunds for tuition and fees after the university transitioned its 

services online in response to the COVID-19 pandemic. Id. at *1-2. The court dismissed all claims

with prejudice. First, the university’s contract with the student did not require live, in-person 

instruction and, in any event, the Tuition Contract between the university and the student (similar 

to the Financial Responsibility Statement here) provided that “students accept full responsibility 

for all tuition—and fees, discussed below—as a result of registration and/or a receipt of services.” 

Id. at *8-10. Second, the student could not pursue unjust enrichment claims because of the 

existence of a written contract. Id. at *12. This reasoning is just as persuasive here. 

Finally, because Plaintiffs have failed to state any viable claim against the University in 

their individual capacities, it is unnecessary to address the deficiencies in Plaintiffs’ allegations as 

to the classes they purport 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 

13 This decision is not yet available on a legal research database but is attached hereto as 

Exhibit F.

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

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

must state a claim.”). 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.”).

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, the entire Complaint should be dismissed with prejudice.

CONCLUSION

Despite having been advised of the deficiencies of their prior complaints, Plaintiffs repeat 

those same mistakes again. Not only is the Complaint a shotgun pleading, but the claims Plaintiffs 

have 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. Because Plaintiffs

already have had six opportunities to state their claims and any further amendment would be futile, 

the dismissal should be with prejudice. 

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

Complaint (D.E. 49) 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

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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 25th day of September, 2020, upon the following: 

Bursor & Fisher, P.A.

Sarah N. Westcot

701 Brickell Avenue, Suite 1420

Miami, FL 33131-2800

Tel: (305) 330-5512

Fax: (305) 676-9006

E-mail: swestcot@bursor.com

Bursor & Fisher, P.A.

Andrew J. Obergfell (admitted pro hac vice)

888 Seventh Avenue

New York, NY 10019

Tel.: (646) 837-7150

Fax: (212) 989-9163

E-mail: aobergfell@bursor.com

Counsel for Plaintiff, Valeria Dimitryuk

Eggnatz Pascucci, P.A.

Joshua Harris Eggnatz

Michael James Pascucci

7450 Griffin Road, Suite 230

Davie, FL 33314

Tel. (954) 889-3359

Fax (954) 889-5913

E-mail: JEggnatz@JusticeEarned.com

E-mail: MPascucci@JusticeEarned.com

Leeds Brown Law, P.C.

Michael A. Tompkins (admitted pro hac vice)

Brett R. Cohen (admitted pro hac vice)

One Old Country Road, Suite 347,

Carle Place, New York 11514

Tel.: (516) 873-9550

E-mail: mtompkins@leedsbrownlaw.com

E-mail: bcohen@leedsbrownlaw.com

Counsel for Plaintiff, Julie Gold

Grossman Roth Yaffa Cohen, P.A.

Stuart Z. Grossman

Rachel W. Furst

2525 Ponce de Leon Boulevard, Suite 1150

Coral Gables, FL 33134

Tel.: (305)442-8666

E-mail: szg@grossmanroth.com

E-mail: rwf@grossmanroth.com

Hagens Berman Sobol Shapiro LLP

Daniel J. Kurowski (admitted pro hac vice)

Whitney K. Siehl (admitted pro hac vice)

455 N. Cityfront Plaza Dr., Suite 2410

Chicago, IL 60611

Tel.: (708) 628-4949

E-mail: dank@hbsslaw.com

E-mail: whitneys@hbsslaw.com

Hagens Berman Sobol Shapiro LLP

Steve W. Berman (admitted pro hac vice)

1301 2nd Ave., Suite 2000

Seattle, WA 98101

Tel.: (206) 623-7292

E-mail: steve@hbsslaw.com

Counsel for Plaintiff, Michael Weiss

Anastopoulo Law Firm, LLC 

Justin S. Hemlepp

Eric M. Poulin (admitted pro hac vice)

Roy T. Willey, IV (admitted pro hac vice)

32 Ann Street

Charleston, SC 29403

Tel. (843) 614-8888

E-mail: justinh@akimlawfirm.com

E-mail: eric@akimlawfirm.com

E-mail: roy@akimlawfirm.com

Counsel for Plaintiff, Adelaide Dixon

By: /s/ Eric D. Isicoff

Eric D. Isicoff

Case 0:20-cv-60851-AHS Document 52 Entered on FLSD Docket 09/25/2020 Page 28 of 28