UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CONSOLIDATED ACTION

CASE NO. 20-60851-CIV-SINGHAL

CASE NO. 20-22207-CIV-SINGHAL

CASE NO. 20-22316-CIV-SINGHAL

CASE NO. 20-22594-CIV-SINGHAL

IN RE: UNIVERSITY OF MIAMI COVID-19 

TUITION AND FEE REFUND LITIGATION 

__________________________________________/

ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

THIS CAUSE is before the Court on Defendant’s Motion for Summary Judgment. 

(DE [130]). Defendant filed its Motion for Summary Judgment shortly after Plaintiffs filed 

their Motion for Class Certification. After reviewing both the Motion for Summary 

Judgment and the Motion for Class Certification, the Court has determined that judicial 

efficiency and economy are best served by first ruling on the Motion for Summary 

Judgment. That Motion is fully briefed. For the reasons discussed below, Defendant’s 

Motion for Summary Judgment is granted.

I. INTRODUCTION

Plaintiffs’ claims arise from a situation that never occurred before: in response to 

a pandemic, public health measures forced the temporary closure of institutions, including 

institutions of higher learning,1 but technology allowed schools and universities to 

continue to educate their students through online/remote/distance learning environments. 

1 Public health measures during the 1918 influenza pandemic included banning 

mass gatherings and closing schools. See Bootsma, Martin CJ, and Neil M. Ferguson. 

"The effect of public health measures on the 1918 influenza pandemic in US cities."

Proceedings of the National Academy of Sciences 104.18 (2007): 7588-7593. Online 

learning did not exist then.

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Plaintiffs filed suit because they expected to attend classes at the University of Miami 

(hereinafter, “the University” or “UM”) in person but, due to the pandemic public health 

requirements, attended classes online from March 25, 2020, to the end of the semester. 

Plaintiffs claim that UM should have refunded a portion of their tuition and/or fees because 

the students lost the benefit of their bargain when UM transitioned from in-person classes 

to virtual. Plaintiffs allege breach of contract, breach of implied contract, and unjust 

enrichment (DE [49]) on behalf of themselves and the putative classes. 

II. LEGAL STANDARDS

Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment “is 

appropriate only if ‘the movant shows that there is no genuine [dispute] as to any material 

fact and the movant is entitled to judgment as a matter of law.’” Tolan v. Cotton, 572 U.S. 

650, 656–57 (2014) (per curiam) (quoting Fed. R. Civ. P. 56(a));2 see also Alabama v. 

North Carolina, 560 U.S. 330, 344 (2010). “By its very terms, this standard provides that 

the mere existence of some alleged factual dispute between the parties will not defeat an 

otherwise properly supported motion for summary judgment; the requirement is that there 

be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

247–48 (1986). An issue is “genuine” if a reasonable trier of fact, viewing all of the record 

evidence, could rationally find in favor of the nonmoving party in light of his burden of 

proof. Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014). And a fact is “material” 

if, “under the applicable substantive law, it might affect the outcome of the case.” Hickson 

Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259–60 (11th Cir. 2004). “[W]here the 

2 The 2010 Amendment to Rule 56(a) substituted the phrase “genuine dispute” for 

the former “‘genuine issue’ of any material fact.” 

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material facts are undisputed and do not support a reasonable inference in favor of the 

non-movant, summary judgment may properly be granted as a matter of law.” DA Realty 

Holdings, LLC v. Tenn. Land Consultants, 631 Fed. Appx. 817, 820 (11th Cir. 2015).

The Court must construe the evidence in the light most favorable to the nonmoving 

party and draw all reasonable inferences in that party’s favor. SEC v. Monterosso, 756 

F.3d 1326, 1333 (11th Cir. 2014). However, to prevail on a motion for summary judgment, 

“the nonmoving party must offer more than a mere scintilla of evidence for its position; 

indeed, the nonmoving party must make a showing sufficient to permit the jury to 

reasonably find on its behalf.” Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1050 (11th 

Cir. 2015). “[T]his, however, does not mean that we are constrained to accept all the 

nonmovant’s factual characterizations and legal arguments.” Beal v. Paramount Pictures 

Corp., 20 F.3d 454, 459 (11th Cir. 1994).

III. DISCUSSION

UM moves for summary judgment on several grounds: (1) Plaintiffs’ claims are 

essentially claims for educational malpractice, which is not a recognized cause of action; 

(2) Plaintiffs have failed to produce evidence of an express or implied contract to provide 

in-person classes or an on-campus experience; (3) the University Student Handbook 

contains express reservations of the right to alter or amend its procedures and policies 

and the right to “at any time deny, revoke, or modify authorization to use an University 

facility or premises;” (4) Plaintiffs’ claims are barred by the doctrine of impossibility due 

to the governmental public health orders requiring the University to close its facilities; (5) 

Plaintiffs acquiesced in the transition to online education; and (6) Plaintiffs’ unjust 

enrichment claim fails because there is no evidence that UM was unjustly enriched and 

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the Financial Responsibility Statement is an express contract that precludes a claim for 

unjust enrichment.

The Court notes that several evidentiary issues remain pending. UM has moved 

to strike several webpages submitted by Plaintiffs in opposition to the Motion for Summary 

Judgment on the grounds that they are not properly authenticated and are hearsay. 

(DE [153]) UM also filed a Daubert motion to exclude the testimony of Plaintiffs’ damages 

expert, Charles D. Cowan, Ph.D, which remains pending. See (DE [148). Furthermore, 

UM argues Plaintiffs cannot rely on Cowan’s expert report (DE [148]) in opposition to the 

Motion for Summary Judgment because the report is unsworn and not supported by an 

affidavit as required by Fed. R. Civ. P. 56(e). These issues need not, however, be 

resolved at this time because neither the webpages nor Dr. Cowan’s report alter the 

Court’s conclusion that summary judgment is appropriate.

A. Factual Background

Plaintiffs were enrolled as undergraduate students at UM during the Spring 2020 

semester. (DE [131] ¶¶ 1). In March 2020, state and local officials in Florida declared a 

public health emergency due to the spread of the COVID-19 virus. (Id. ¶¶ 15-21). Both 

the state of Florida and the local government issued emergency orders mandating closure 

of universities for all purposes except for facilitating virtual learning and providing living 

quarters for students who could not return home. (Id. ¶¶ 21-24). Beginning March 25, 

2020, UM implemented partial closure of its campus housing and transitioned classes to 

virtual classrooms for the remainder of the semester. (Id. ¶¶ 25-26). 

Plaintiffs continued their coursework online and accepted UM’s offer to switch their 

classes to a pass/fail (credit/no credit) basis. (Id. ¶ 29). Plaintiffs received credit for the 

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classes they took that semester. (Id ¶ 29-31). Neither Plaintiff could state in deposition 

that their degrees are worth less because part of the semester was taught remotely. (Id.

¶ 30). Plaintiffs contend, however, in their Statement of Facts (DE [140]) that “they 

received a less valuable education than they paid for Spring 2020 semester when 

Defendant transitioned online.” (Id. ¶ 77).

UM did not offer a rebate of tuition after it transitioned to remote learning, but it did 

provide prorated refunds for the fees and services that could not be provided in an online 

or virtual format. (Id. ¶ 32). These refunds included fees for housing, dining, parking, 

student center, wellness center, health and counseling, student activities, and athletic 

fees. (Id.). The amount of the refund was based on the number of days that were left in 

the Spring 2020 semester when the University was forced to transition its classes online 

by government order, from March 25 to May 6, 2022. (DE [150] ¶ 66; DE [140] ¶ 78). 

B. Legal Analysis

Plaintiffs filed suit to recover a portion of the tuition and various fees they paid for 

the Spring 2020 semester. Plaintiffs’ Amended Complaint alleges breach of express and 

implied contract and unjust enrichment on behalf of students who paid tuition for the 

Spring 2020 semester (Counts I, II, and III) and breach of express and implied contract, 

breach of implied covenant, and unjust enrichment on behalf of students who paid

mandatory fees for the Spring 2020 semester (Counts IV, V, and VI). Plaintiffs also allege 

breach of contract and unjust enrichment on behalf of themselves seeking a pro rata 

refund of fees for housing and meal plans (Counts VII and VIII). 

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 1. Tuition Claims

Plaintiffs allege UM breached an express or implied contract to provide only inperson classes and a full on-campus experience when the University transitioned to 

online learning for the second half of the Spring 2020 semester. UM argues that there is 

no genuine dispute of fact that would support a finding that such a contract existed. The 

Court agrees with UM.

To state a claim for breach of contract under Florida law, a party must “establish: 

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

resulting from the breach.” Villard v. Capella Univ., 2017 WL 9253388, at *2 (M.D. Fla. 

Dec. 21, 2017), report and recommendation adopted, 2018 WL 2011433 (Apr. 30, 2018) 

(citing Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1272 (11th Cir. 2009). “In Florida, 

whether a contract is implied in fact is ‘inferred from the facts and circumstances of the 

case.’” Resnick v. AvMed, Inc., 693 F.3d 1317, 1326 (11th Cir. 2012) (quoting Eskra v. 

Provident Life & Accident Ins. Co., 125 F.3d 1406, 1413 (11th Cir.1997)). For a contract 

to exist, “there must be reciprocal assent to certain and definite propositions.” Acosta v. 

Dist. Bd. of Trs. of Miami-Dade Comm. Coll., 905 SO. 2d 266, 228 (Fla. 3d DCA 2005). 

Florida law recognizes “that colleges and universities have a legal relationship with 

their students that is contractual in nature.” In re Univ. of Miami COVID-19 Tuition & Fee 

Refund Litig., 524 F. Supp. 3d 1346, 1351 (S.D. Fla. 2021). Terms of the 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)). But “a party can 

only advance a claim of breach of contract by identifying and presenting the actual terms 

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of the contract allegedly breached.” Herssein Law Grp. v. Reed Elsevier, 594 Fed. Appx. 

606, 608 (11th Cir. 2015). 

Plaintiffs contend that UM promised in-person education through the University’s 

website, recruitment brochures, and circulars, which promote the campus “vibe” and 

facilities and experiences.

3 (DE [139]). The campus is described as “one of South 

Florida’s prime destinations for a rich variety of arts and culture offerings.” (Id., Ex. 7). 

The campus features art museums, theatres, recital halls, festivals, movies, and athletics. 

(Id.). The website promotes the campus:

Set one foot on campus and you’ll feel it – a vibe that celebrates life, 

learning, and daily activities that are anything but routine. 

Capitalizing on its glorious weather, national reputation, and location 

at the crossroads of the Americas, the University of Miami offers 

students unparalleled academic support, enrichment activities 

galore, sports and cultural offerings, wellness and fitness programs, 

and endless opportunities to explore, engage, and better the 

community and the world. Visit the Division of Student Affairs page.

(Id. Ex. 8). But descriptions of the campus and its facilities do not support Plaintiffs’ claim 

for breach of contract to provide only in-person classes. See De Leon v. New York Univ.,

2022 WL 179812, at * 9 (S.D.N.Y Jan. 20, 2022) (references to university’s location and 

facilities do not support claim for breach of contract to provide in-person instruction

because plaintiff did not allege the university’s physical location changed). 

Plaintiffs argue that UM has a separate website dedicated to an online-only 

program known as “UOnline” which uses distinct marketing and information that is 

different from that provided to traditional students. (DE [140] ¶ 37). But different marketing 

3 UM objects to the materials submitted by Plaintiffs in support of their claims as 

being unauthenticated and hearsay. The Court recognizes the problems with Plaintiffs’ 

submissions but nevertheless will accept them for purposes of this motion.

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materials do not create a promise or agreement for in-person learning under all 

circumstances. 

Plaintiffs have introduced the 2019-2020 Academic Bulletin which lists the 

approximately 3000 courses available at the university. (DE [139], Ex. 19). Of those 3000 

courses, three refer to on-campus activities:

BIL 622. Plant Identification in an Evolutionary Context. 3 Credit Hours.

An exploration of the plants in the on-campus Gifford Arboretum as well

as other plants that students interact with in their daily environment

(foods, beauty products, fibers, medicines, poisons, etc.)

BUS 801. Introduction to Commercial Real Estate: Analysis and Field

Experience. 

3 Credit Hours.

Students enrolled in the Accelerated MBA in Real Estate program are

required to participate in a one-week, four module, on-campus class

followed by a full-time internship at a local Commercial Real Estate

Institution during the first summer of the program. Module I: Students are

introduced to the complexities of commercial construction techniques

used in South Florida and the important links between architectural

plans and economic value to owners and tenants. Module II: Students

are introduced to the terminology and financial analysis of commercial

real estate. Module III: Students are introduced to the application of

real estate finance and valuation principles using ARGUS Valuation –

DCF. Module IV: Students participate in a required internship at a local

Commercial Real Estate Institution. Regarded as a full-time student. 

MMI 460. Recital Recording and Sound Reinforcement (Recording

Services). 1 Credit Hour.

Practical experience in live concert recording, editing and mastering,

and sound reinforcement, under supervision of professional on-campus

engineers.

Requisite: Frost School of Music.

There is no certain or definite promise by UM in the Academic Bulletin to provide in-person 

classes and none can be implied. Likewise, Plaintiffs’ reference to the Student Handbook 

does not shed light on any express or implied promise to provide only in-person learning. 

In her deposition, Plaintiff Dimitryuk cited the Handbook’s Statement on Student Rights 

(DE [131] Ex. 1, p. 201 and DE [140] ¶ 14) and listed rights that she claims established a 

contractual right to in-person classes: 

• The right to live and/or attend classes in a physically safe environment

• The right to learn without disruption

• The expectation of a positive living/learning environment

• Access to academic and support services that enhance student learning

• The right to pursue academic interests

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• Equal access to available research and appropriate resources

• The right to assemble

• The right to associate with student organizations of one’s own choosing

• The right to participate in a system of shared governance

• The right to engage in service opportunities that enhance learning outcomes, both 

on and off campus

• The right to be informed of and share opinions on, matters affecting the university 

community

• The right to know academic requirements and to be evaluated fairly.

Nothing in this list of identified rights states or implies that classes would only proceed inperson. Indeed, given the COVID-19 emergency in March 2020 and the government 

health restrictions in effect at the time, it can be argued that the “right to live and/or attend 

class in a physically safe environment” would have required online, not in-person,

classes.

The Court has carefully reviewed the materials submitted by Plaintiffs in support 

of their claim that they had a contractual agreement with UM for in-person instruction. But 

the evidence does not support their claims. Plaintiffs have the burden of producing more 

than a “scintilla” of evidence in opposition to Defendant’s Motion and they have not met 

it. In granting summary judgment in favor of the University of Pacific on a similar breach 

of contract claim, a district court in California aptly summarized the scenario in this case, 

as well:

While this Court concluded at the motion to dismiss stage that

Plaintiff had sufficiently alleged facts that could show a specific 

promise by Defendant to hold in-person instruction and services, at 

the summary judgment phase Plaintiff must provide evidence 

supporting his assertion that Defendant made express promises. 

Statements in the course catalog about the “days and times” and 

the “location” of courses are not express promises to provide inperson instruction... Although UOP's promotional materials and 

course catalogs certainly created an expectation that classes 

would be taught in-person and that students would be able to take 

advantage of a myriad of on-campus opportunities, these materials 

do not contain any specific or identifiable promise that is adequate 

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to support a breach of contract, even one implied in fact... Rather, 

the materials and publications merely describe UOP's on-campus 

experience, which Plaintiff received until Defendant was required 

to respond to and comply with California state mandates as a result 

of the COVID-19 pandemic.

Randall v. Univ. of the Pac., 2022 WL 1720085, at *6 (N.D. Cal. May 28, 2022). Likewise, 

in this case, Plaintiffs have not met their burden of sustaining their claims for breach of 

express or implied contract for in-person learning. 

And even if such a contract did exist, UM had the express right to alter or amend 

its procedures or policies and to close its classrooms and facilities. The Student 

Handbook expressly states the following:

From time to time it may be advisable for the University to alter or amend 

its procedures or policies. Reasonable notice may be furnished to the 

University community of any substantive changes, but is not required.

***

A.9 Restriction/Revocation of Facilities Use

The University of Miami reserves the right at any time to deny, revoke, or 

modify authorization to use any University facility or premises. Decisions 

to authorize use of University facilities are made by the appropriate facility 

coordinator. Decisions to deny, revoke, or modify the authorization to use 

University facilities, because of potential danger, are made by the

President of the University upon recommendation by the Vice President 

and/or the appropriate administrator involved with use of such University 

facilities. When possible, such decisions will be made only after review of 

a written recommendation by the appropriate facility coordinator. Decisions 

made in accordance with the policy are final and may not be appealed.

(DE [131] Ex. 1, pp. 200, 218). UM had the express right (and responsibility) to close its 

facilities in the face of COVID-19 and the resulting public emergency orders. See Aubrey 

v. New School, 2022 WL 3867832, at *13 (S.D.N.Y Aug. 30, 2022) (disclaimer in student 

handbook absolved liability for breach of an alleged contract to provide in-person 

instruction); Michel v. Yale Univ., 547 F. Supp. 3d 179, 190 (D. Conn 2021) (same); Crista 

v. Drew Univ., 534 F. Supp. 3d 363, 378 (D.N.J. 2021) (same); Smith v. Univ. of Penn.,

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534 F. Supp. 3d 463, 474 (E.D. Pa. 2021) (same); Chong v. Northeastern Univ., 2021 WL 

1857341, at *5 (D. Mass. May 10, 2021) (same). UM cannot be held liable for breach of 

contract by exercising its rights under the alleged contract. 

For these reasons, UM is entitled to summary judgment on Counts I and II of the 

Amended Complaint.

 2. Fees Claims

Plaintiffs seek to recover a pro rata refund of fees paid for student facilities and 

services that were unavailable while the University was in remote-learning mode. These 

claims are made on behalf of themselves and the putative class (Counts IV, V, and VI) 

and individually (Counts VII and VIII).4 UM is entitled to summary judgment because the 

undisputed facts establish that UM made a pro rata refund of the fees. (DE [150] ¶ 66 and 

DE [140] ¶ 78). 

The refund of fees was for the 42 days remaining in the 115-day semester after 

the government mandated that the University shut down. (Id.). Plaintiffs argue the pro rata

amount should have been 48% instead of 36.5%, but neither the Plaintiffs nor their expert 

provide factual support for that percentage. A conclusory statement unsupported by 

underlying facts upon which the inference is based is insufficient to defeat summary 

judgment. Christy v. Custom Services, LLC, 2020 WL 5514185, at *2 (S.D. Fla. Aug. 5, 

2020).

4 Counts VII and VIII seek pro rata refunds of the housing and meal fees for Spring 

2020 on behalf of the two Plaintiffs. Only Plaintiff Dixon lived on campus that semester, 

and she acknowledged in her deposition that she received a refund. (DE [131] ¶ 34).

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There being no genuine dispute that UM refunded a pro rata portion of the fees 

paid for the Spring 2020 semester, UM is entitled to summary judgment on Counts IV, V,

VI, VII and VIII of the Amended Complaint. 

 3. Unjust Enrichment

Finally, Plaintiffs seek to recover a portion of the tuition paid under the theory of 

unjust enrichment. “To establish unjust enrichment in Florida, a plaintiff must prove that 

‘(1) plaintiff has conferred a benefit on the defendant, who has knowledge thereof; (2) 

defendant voluntarily accepts and retains the benefit conferred; and (3) the circumstances 

are such that it would be inequitable for the defendant to retain the benefit without first 

paying the value thereof to the plaintiff.’” Innovative Vehicle Sols. W., LLC v. Renntech, 

Inc., 2022 WL 3137029, at *6 (S.D. Fla. June 16, 2022), report and recommendation 

adopted, 2022 WL 3009495 (S.D. Fla. July 29, 2022) (quoting Duty Free World, Inc. v. 

Miami Perfume Junction, Inc., 253 So. 3d 689, 693 (Fla. 3d DCA 2018)). 

The parties do not dispute that Plaintiffs conferred a benefit on UM by paying tuition 

and that UM accepted and retained the tuition payments. Thus, the first two elements of 

an unjust enrichment claim are met. The remaining issue is whether it would be, under 

the circumstances, inequitable for UM to retain the full amount of tuition paid. Unjust 

enrichment is available “’to prevent the wrongful retention of a benefit, or the retention of 

money or property of another, in violation of good conscience and fundamental principles 

of justice or equity.’” State Farm Fire & Cas. Co. v. Silver Star Health & Rehab, 739 F.3d 

579, 584 (11th Cir. 2013) (quoting Henry M. Butler, Inc. v. Trizec Props., Inc., 524 So.2d 

710, 711 (Fla. 2d DCA 1988)).

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Given the totality of the circumstances, Plaintiffs have not established that payment 

of full tuition for the Spring 2020 semester violates good conscience and fundamental 

principles of justice or equity. Plaintiffs were, first and foremost, students pursuing a 

degree which required them to earn a certain number of credit hours. They paid tuition 

for the privilege of taking classes at UM. (DE [131] ¶ 6). By attending classes online after 

March 25, 2020, Plaintiffs were able to complete their courses and earn the necessary 

credits toward graduation. UM provided Plaintiffs what they paid for: the right to earn 

college credits at the University.

Because unjust enrichment is an equitable remedy, the entirety of the 

circumstances must be considered. In the Fall 2020 semester, UM offered students the 

option of attending classes online or in-person. Plaintiff Dixon opted to attend classes 

online because she did not want to be exposed to COVID. (Id. ¶ 12). Plaintiff Dimitryuk 

opted to take a class online in Summer 2020 to finish her degree faster. (Id. ¶ 13).

Plaintiffs have not shown that they paid less for the classes taken online in the Fall and 

Summer semesters than they paid in Spring 2020. They do not complain that the UM was 

unjustly enriched by their payment of tuition for these online courses.

To the extent Plaintiffs argue that their education in Spring 2020 was less valuable 

than they paid for (see DE [140] ¶ 77), Plaintiffs’ unjust enrichment claims are barred by 

the doctrine of educational malpractice. “[I]n order to adjudicated Plaintiff[s’] tuition basedclaim for unjust enrichment, this [C]ourt would have to examine and evaluate the quality

of the education that was provided to Plaintiff[s].” De Leon, 2022 WL 179812, at *13 

(dismissing claim for unjust enrichment). This is precisely what Florida’s educational 

malpractice doctrine prohibits. See Tubell v. Dade Cty. Pub. Sch., 419 So. 2d 388, 389 

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(Fla. 3d DCA 1982); Dep’t of Heath & Rehab. Servs. v. B.J.M., 656 So. 2d 906, 915 (Fla. 

1995). For these reasons, UM is entitled to summary judgment on Count III of the 

Amended Complaint. 

IV. CONCLUSION 

In conclusion, Plaintiffs have failed to establish a genuine dispute of material fact 

that would defeat UM’s Motion for Summary Judgment. Accordingly, it is hereby

ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment

(DE [121]) is GRANTED. Pursuant to Fed. R. Civ. P. 58(a), a Final Judgment will be 

entered in favor the University of Miami in each of the consolidated actions. The Clerk 

of Court is directed to CLOSE this case and DENY AS MOOT any pending motions.

DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 30th day of 

December 2022. 

Copies furnished counsel via CM/ECF

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