1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

VALERIA DIMITRYUK, on behalf of herself and 

all others similarly situated,

Plaintiff,

v.

UNIVERSITY OF MIAMI,

Defendant.

_________________________________________

MICHAEL WEISS, individually and on behalf of 

all others similarly situated,

Plaintiff,

v.

UNIVERSITY OF MIAMI,

Defendant.

_________________________________________

ADELAIDE DIXON, individually and on behalf of 

all others similarly situated,

Plaintiff,

v. 

UNIVERSITY OF MIAMI,

Defendant.

Case No. 20-60851-CIV-SINGHAL

Case No. 20-22207-CIV-SINGHAL

Case No. 20-22594-CIV-SINGHAL

PLAINTIFFS’ COMBINED RESPONSE TO THE COURT’S ORDER TO SHOW

CAUSE REGARDING CONSOLIDATION OF RELATED MATTERS

Case 1:20-cv-22594-AHS Document 39 Entered on FLSD Docket 07/24/2020 Page 1 of 9
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I. INTRODUCTION

On July 10, 2020, the Court requested that Plaintiffs in four related actions pending 

before this Court show cause by July 24, 2020 “why these actions should not be consolidated.”

Show Cause Order at 1 (emphasis added). Plaintiffs Valeria Dimitryuk (“Dimitryuk”), Michael 

Weiss (“Weiss”), and Adelaide Dixon (“Dixon”) (collectively referred to herein as “Plaintiffs”), 

having met and conferred with each other, jointly submit that all pending cases against 

Defendant University of Miami should be consolidated under Rule 42 because the four class 

actions involve common parties and similar issues of law and fact. First, University of Miami is 

the only named Defendant in all four cases. Second, the putative class representatives in each of 

the Class Actions seek to represent a similar class of students or other individuals paying 

Defendant tuition and fees for the Spring 2020 semester. Third, the Class Actions arise out of 

similar circumstances—Defendant’s alleged failure to issue certain refunds to students for 

transitioning to remote teaching and learning along with failing to provide certain access, 

services, benefits and programs paid for due to the COVID-19 pandemic. Finally, Plaintiffs in 

the Class Actions overlap in that they have similar legal claims, each alleging state-law breach of 

contract, unjust enrichment/restitution based on quasi-contract, and conversion. To permit such 

similar actions to proceed separately will defeat the benefits to be gained by consolidation and 

streamlining the litigation before the Court. For the reasons below, and for good cause, Plaintiffs 

Dimitryuk, Weiss, and Dixon, respectfully request that the Court consolidate all related cases 

against University of Miami.

II. BACKGROUND

As the Court correctly identified in its Order to Show Cause, four actions (collectively, 

the “Class Actions”) are pending before the undersigned:

1. Dimitryuk v. University of Miami, Case No. 20-60851-CIV-SINGHAL

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(filed April 26, 2020);

2. Weiss v. University of Miami, Case No. 20-22207-CIV-SINGHAL

(filed May 27, 2020);

3. Gold v. University of Miami, Case No. 20-22316-CIV-SINGHAL

(filed June 3, 2020); and 

4. Dixon v. University of Miami, Case No. 20-22549-CIV-SINGHAL

(filed April 8, 2020 in D.S.C. and transferred to S.D. Fla. on June 

23, 2020).

These cases all arise out of a single event, University of Miami’s Spring 2020 decision to 

transition in-person classes to online-only classes in connection with the COVID-19 pandemic, 

along with failing to provide certain access, services, benefits and programs paid for by students.

And as depicted in the below table, each case seeks recoveries for tuition and fee payers through 

overlapping state law causes of action.

TABLE A

Case Proposed Class Causes of Action

Dimitryuk “Plaintiff seeks to represent a class 

defined as all people who paid 

University of Miami Spring 

Semester 2020 tuition and/or fees 

for in-person educational services 

that the University of Miami failed 

to provide, and whose tuition and 

fees have not been refunded (the

‘Class’).” Dimitryuk Am. Compl., 

¶ 39.

1. Breach of Contract

2. Unjust Enrichment

3. Conversion

4. Money Had and 

Received

Weiss “All people paying Defendant, in 

whole or in part, personally and/or 

on behalf of others, for Spring 

2020 tuition and fees for in-person 

instruction and use of campus 

facilities, but were denied use of 

and/or access to in-person 

instruction and/or campus facilities 

by Defendant.” Weiss Compl. ¶ 

58.

1. Breach of Contract

2. Unjust Enrichment

3. Conversion

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TABLE A

Case Proposed Class Causes of Action

Dixon “All students who are enrolled at 

Defendant’s institution for the 

spring semester of the 2020 

academic year, and who have paid 

tuition, mandatory fees, or 

voluntary fees for privileges or 

services that Defendant’s 

institution has failed to provide, 

and whose tuition and fees have 

not been refunded.” Dixon Compl., 

¶ 28.

1. Breach of Contract

2. Unjust Enrichment

Gold “The Class is defined as all 

individuals who paid tuition and 

fees to the University of Miami to 

receive in-person educational 

services, experiences, and 

opportunities during the Spring 

Semester 2020. (‘Class’).” Gold

Compl. ¶ 41.

1. Breach of Contract

2. Conversion

3. Unjust Enrichment

As further detailed below, the four cases readily meet all requirements for consolidation under 

Fed. R. Civ. P. 42.

III. ARGUMENT

Under the Federal Rules of Civil Procedure, courts may consolidate two or more related 

actions, where, as here, the actions involve at least one common question of law or fact. Fed. R. 

Civ. P. 42(a) (“If actions before the court involve a common question of law or fact, the court 

may: (1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the 

actions; or (3) issue any other orders to avoid unnecessary cost or delay.”). “Rule 42 codifies the 

trial court’s inherent managerial power ‘to control the disposition of the causes on its docket with 

economy of time and effort for itself, for counsel, and for litigants.’” Doe v. Sch. Bd. of MiamiDade Cty., No. 18-25430-CIV, 2020 WL 1465739, at *1 (S.D. Fla. Mar. 25, 2020) (quoting 

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Landis v. North American Co., 299 U.S. 248, 254 (1936)). Furthermore, in considering whether 

to exercising its discretion, the Court must determine:

whether the specific risks of prejudice and possible confusion [are] 

overborne by the risk of inconsistent adjudications of common 

factual and legal issues, the burden on parties, witnesses and 

available judicial resources posed by multiple lawsuits, the length 

of time required to conclude multiple suits as against a single one, 

and the relative expense to all concerned of the single-trial, 

multiple-trial alternatives.

Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1495 (11th Cir. 1985) (citation omitted).

“District court judges in the Eleventh Circuit ‘have been urged to make good use of Rule 42(a) . .

. in order to expedite the trial and eliminate unnecessary repetition and confusion.’” Family 

Dining, Inc. v. Burger King Corp., No. 10-21964-CIV, 2010 WL 11506103, at *1 (S.D. Fla. July 

16, 2010) (quoting Young v. City of Augusta, 59 F.3d 1160, 1168 (11th Cir. 1995)).

A. The Class Actions involve common parties.

First, the threshold question of “common parties” is easily answered in the affirmative. 

All four lawsuits name University of Miami as the sole Defendant. In addition, while the putative 

class representatives are different, the proposed classes in the Class Actions cover the same 

people, i.e., Defendant’s students or other people who paid Defendant tuition and/or fees during 

the Spring 2020 semester. See supra Table A.

B. The Class Actions allege common legal claims and facts.

Besides alleging common parties, the four lawsuits assert common facts and legal claims. 

As is clear on the face of each complaint, the claims arise out of the same set of operative facts: 

the Defendant’s decision to transition to remote teaching and learning in response to the COVID19 pandemic during the Spring 2020 academic semester, along with its failure to provide certain 

access, services, benefits and programs paid for by students. All cases raise similar allegations 

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regarding alleged damages arising out of Defendant’s transition to remote learning and the 

closure of campus facilities over the same time period. In addition, all four cases assert claims 

for breach of contract and unjust enrichment and three of the four cases assert conversion claims, 

confirming the existence of common legal claims and facts.

Faced with such overlapping claims, courts reviewing questions of consolidation 

routinely order consolidation, often with Defendant’s consent or request. See Exhibit A 

(collecting orders entered by district courts consolidating related college refund class actions).

See also Young v. Frontier Airlines, Inc., No. 20-CV-01153-PAB-KLM, 2020 WL 4193506, at 

*1 (D. Colo. July 21, 2020) (consolidating six cases asserting “a putative class of persons in the 

United States who purchased airline tickets from Frontier Airlines, whose flights were canceled 

by Frontier Airlines ‘as a result of the COVID-19 pandemic,’ and who did not receive a refund 

for said canceled flights from Frontier Airlines”). Similarly, when faced with competing cases 

involving identical or overlapping facts and issues, courts in this district do not hesitate to 

consolidate related cases. See, e.g., United Union of Roofers, Waterproofers & Allied Workers 

Local Union No. 8 v. Ocwen Fin. Corp., No. 14-81064-CIV-WPD, 2014 WL 11350272, at *1 

(S.D. Fla. Nov. 6, 2014) (consolidating three securities class actions that “make almost identical 

allegations against the same defendants over the same class period”); Carrera v. UPS Supply 

Chain Sols., Inc., No. 10-60263-CIV, 2011 WL 13112070, at *3 (S.D. Fla. Nov. 4, 2011) 

(consolidating two employment class actions that “involve identical legal issues including 

whether SCS’s classification of certain of its drivers as ‘independent contractors’ exempts it 

from paying overtime and minimum wage pursuant to the FLSA”); Smith v. Constr. Servs. & 

Consultants, Inc., No. 05-14387-CIV, 2006 WL 8433926, at *1 (S.D. Fla. Feb. 27, 2006) 

(consolidating two actions that “present virtually identical claims for relief based upon a similar 

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course of conduct by the same Defendants”).

C. Consolidation will not result in prejudice or confusion but rather will be more 

convenient to the parties, promote judicial economy and save resources.

Consolidation of these substantively identical cases will promote convenience to the 

parties and judicial economy, and will save time, effort, and expense. See Carrera, 2011 WL 

13112070, at *3 (consolidating two class actions where “consolidation of the two cases will 

greatly conserve judicial resources, reduce the time for resolving both cases, and significantly 

reduce the expense inherent in proceeding with two separate actions”); Smith, 2006 WL 

8433926, at *1 (recognizing that “[s]ince the complaints present similar issues of law and fact, 

consolidation of these actions promotes judicial economy by streamlining and simplifying pretrial and discovery issues”).

Consolidation will also avoid the confusion, delay, and potential prejudice that could 

result if all cases proceed separately. The Class Actions are still in their early stages, all cases 

were filed relatively recently and they are all pending before this Court. Defendant has not yet 

filed answers, the Court has not substantively ruled on any motions to dismiss in any case and 

discovery has not yet commenced. But even at this early stage, it is clear that the cases will 

require many of the same documents and witnesses given the overlapping complaints, which 

further favors consolidation. See Christopher Farr Cloth Ltd. v. WHM LLC, No. 10-60146-CIV, 

2010 WL 11505865, at *2 (S.D. Fla. Dec. 13, 2010) (consolidating two similar actions where 

“[t]he actions will undoubtedly involve many of the same witnesses and certain identical 

documentary evidence”). Gainor v. Bryan Holdings, LLC, No. 06-21748-CIV, 2009 WL 

10668297, at *2 (S.D. Fla. Sept. 2, 2009) (consolidating two actions where the defendant in a 

consolidated action “will now only have to appear once rather than twice” and where 

“consolidating the two cases promotes judicial efficiency because the same witnesses would 

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likely be used in both trials and the Court would not be faced with redundant proceedings”); 

Instituto De Prevision Militar v. Lehman Bros., Inc., No. 05-21169-CIV, 2006 WL 8433248, at 

*2 (S.D. Fla. Jan. 19, 2006) (consolidating cases where “[c]onsolidation would streamline 

discovery by eliminating duplication of time and effort by all parties, avoid unnecessary 

inconvenience to the parties and witnesses as well as contain litigation costs”). Ultimately, 

litigating the same issues raised by the Class Actions “in a single proceeding is more sensible 

than to do so piecemeal in multiple actions.” Family Dining, 2010 WL 11506103, at *3. The 

facts and circumstances here warrant consolidation.

IV. CONCLUSION

Because good cause exists to support the Court’s exercise of discretion in favor of

consolidation, Plaintiffs Dimitryuk, Weiss, and Dixon, respectfully request that the Court 

consolidate the related cases against University of Miami and grant them all such other relief that 

the Court deems necessary and appropriate.

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Dated: July 24, 2020 Respectfully submitted,

By: /s/ Sarah N. Westcot

Sarah N. Westcot (FBN: 1018272)

BURSOR & FISHER, P.A.

701 Brickell Ave, Suite 1420

Miami, FL 33131 

Telephone: (305) 330-5512 

Facsimile: (305) 676-9006 

swestcot@bursor.com 

Andrew J. Obergfell (Pro Hac Vice)

BURSOR & FISHER, P.A.

888 Seventh Avenue

New York, NY 10019 

Telephone: (646) 837-7150 

aobergfell@bursor.com 

Attorneys for Plaintiff Dimitryuk

By: /s/ Roy T. Willey, IV

Roy T. Willey, IV (Pro Hac Vice)

Eric M. Poulin (Pro Hac Vice)

ANASTOPOULO LAW FIRM

32 Ann Street

Charleston, SC 29403

Telephone: 843-614-8888

Roy@akimlawfirm.com

Eric@akimlawfirm.com

By: /s/ Justin S. Hemlepp__________

Justin S. Hemlepp (FBN: 58991)

ANASTOPOULO LAW FIRM

32 Ann Street

Charleston, SC 29403

Telephone: 843-614-8888

JustinH@akimlawfirm.com

Attorneys for Plaintiff Dixon

By: /s/ Stuart Z. Grossman

Stuart Z. Grossman (FBN: 156113)

Rachel W. Furst (FBN: 45155)

GROSSMAN ROTH YAFFA COHEN, PA

2525 Ponce De Leon, Suite 1150

Coral Gables, FL 33134

Telephone: (305) 442-8666

szg@grossmanroth.com

Steve W. Berman (Pro Hac Vice)

HAGENS BERMAN SOBOL SHAPIRO LLP

1301 Second Avenue, Suite 2000

Seattle, WA 98101

TelephoneL (206) 623-7292

steve@hbsslaw.com

Daniel J. Kurowski (Pro Hac Vice)

Whitney K. Siehl (Pro Hac Vice)

HAGENS BERMAN SOBOL SHAPIRO LLP

455 N. Cityfront Plaza Dr., Suite 2410

Chicago, IL 60611

Telephone: (708) 628-4949

dank@hbsslaw.com

whitneys@hbsslaw.com

Attorneys for Plaintiff Weiss

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