UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-CIV-81173-RAR

RAYMOND GIBSON, individually, and on 

behalf of all others similarly situated,

Plaintiff,

v.

LYNN UNIVERSITY, INC.,

Defendant.

________________________________________/ 

ORDER DENYING DEFENDANT’S MOTION TO DISMISS 

PLAINTIFF’S AMENDED CLASS ACTION COMPLAINT

Far from Pink Floyd’s admonition that “we don’t need no education,”1 students across the 

country are vehemently challenging universities’ decisions to shut down campuses and move 

courses online in the face of the COVID-19 pandemic. This class action suit alleges that Defendant 

Lynn University (“Lynn”), a private university in Boca Raton, Florida, breached its contract with 

students, or alternatively, was unjustly enriched when it closed its facilities and transitioned to 

remote learning in March of 2020 as the COVID-19 outbreak accelerated in the United States. 

Before the Court is Defendant’s Motion to Dismiss Plaintiff’s Class Action Complaint 

[ECF No. 15] (“Motion”), filed on August 31, 2020. The Court having reviewed the Motion, 

Plaintiff’s Response [ECF No. 24], Defendant’s Reply [ECF No. 32], the parties’ notices of 

supplemental authority [ECF Nos. 17, 30, 33, 43, and 44], and being otherwise fully advised, it is 

ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss Plaintiff’s Class 

Action Complaint [ECF No. 15] is DENIED for the reasons set forth herein. 

1

 Pink Floyd, Another Brick in the Wall, Pt. 2 (Columbia Records 1979).

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BACKGROUND

Plaintiff Raymond Gibson, an undergraduate student at Lynn, contends that he and 

similarly situated students contracted with Lynn for “live on-campus instruction and access to 

campus facilities,” and were deprived of the benefit of their bargain when Lynn closed its facilities 

and moved its courses online due to the COVID-19 pandemic. See Am. Compl. ¶ 1, 3. Plaintiff

alleges that Lynn’s relationship with its students “is based on the terms and conditions set forth 

inter alia, in Lynn’s Academic Catalog, in its University Policies, and its invoices, and is informed 

by Lynn’s common course of conduct and procedures.” Id. ¶ 15. He indicates that Lynn offers 

students the opportunity to enroll in one of three divisions—the Undergraduate Day Division, the 

Online Division, and the Graduate Division—and that when students enroll in the Undergraduate 

Day Division, which costs more per credit than the Online Division, they are specifically 

contracting with the university to provide in-person instruction and access to campus facilities and 

activities. Id. ¶ 16-22. 

Plaintiff contends that Lynn’s promises are set forth in a variety of university publications 

and documents. For example, for students who enroll in the Undergraduate Day Division, Lynn’s 

University Policies expressly state that “[t]he University believes that ... the classroom experience 

is the most important part of the student’s educational experience.” Id. ¶ 30. Lynn’s Academic 

Catalog also indicates that “[t]he student’s involvement in classroom activities and discussions is 

encouraged and expected ... [t]herefore, attendance is not only important, but essential to the 

learning experience.” Id. ¶ 31. Plaintiff alleges that the Academic Catalog “boasts a rich and 

lively on-campus student experience,” including social activities, intramural sports, and a fitness 

center. Id. ¶ 37. He also asserts that the tuition and fees reflected in his invoice for the Spring 

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2020 term clearly reflect enrollment in the University’s Undergraduate Day Division. Id. ¶ 47. 

Plaintiff contends that he and similarly situated students are entitled to “the prorated portion of 

tuition and fees necessary to compensate them for the difference in value between what they

bargained and paid for and what they received.” Id. ¶ 119. 

In its Motion to Dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), 

Lynn contends that the Amended Complaint does not allege any contractual provisions requiring 

Defendant to provide exclusively in-person education or requiring a refund of fees. See Mot. at 6-

12. Lynn asserts that, in fact, the University Policies cited by Plaintiff expressly state that “[t]here 

will be no refund of tuition, [or] fees ... in the event the operation of the University is suspended 

at any time as a result of an act of God, strike, riot, disruption or for any other reasons beyond the 

control of the University.” Id. at 9. 

Lynn further argues that Plaintiff fails to allege a material breach and non-speculative 

damages; that Plaintiff ratified any alleged breach; and that impossibility and/or frustration of 

purpose bar Plaintiff’s breach of contract claim. Id. at 13-17. Lynn also seeks dismissal of 

Plaintiff’s alternative unjust enrichment claim, arguing that Plaintiff (i) has an adequate remedy at 

law because of its contractual relationship with Lynn; and (ii) cannot establish that it would be 

inequitable for Lynn to retain the cost of tuition and other fees for the Spring 2020 semester. Id.

at 17-20. 

LEGAL STANDARD

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “a complaint must include 

‘enough facts to state a claim to relief that is plausible on its face.’” Hunt v. Aimco Properties,

L.P., 814 F.3d 1213, 1221 (11th Cir. 2016) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

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570 (2007)). “A ‘claim has facial plausibility when the plaintiff pleads factual content that allows 

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” 

Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). When reviewing a motion to dismiss, a 

court must view the complaint in the light most favorable to the plaintiff and accept the plaintiff’s 

well-pleaded facts as true. Id. However, a court need not accept plaintiff’s legal conclusions as 

true. Sinaltrainal v. Coca–Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009); see also Iqbal, 556 

U.S. at 678. 

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

“‘limited to the four corners of the complaint.’” Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 

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

2002)). However, the court may also consider “documents incorporated into the complaint by 

reference and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & 

Rights, Ltd., 551 U.S. 308, 322 (2007). 

ANALYSIS

A. Breach of Contract

Under Florida law, the elements of a breach of contract action are (1) a valid contract; (2) 

a material breach; and (3) damages. Beck v. Lazard Freres & Co., LLC, 175 F.3d 913, 914 (11th 

Cir. 1999) (citing Abruzzo v. Haller, 603 So. 2d 1338, 1340 (Fla. 1st DCA 1992)). In its Motion, 

Lynn argues that no contractual provision existed regarding in-person education and that even if 

such an agreement existed, Plaintiff has not shown a material breach and non-speculative damages. 

Lynn further asserts ratification, impossibility, and frustration of purpose defenses. The Court will 

address these arguments in turn.

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i. Whether Plaintiff sufficiently alleged the existence of a valid contract, a material 

breach, and damages.

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

‘solely contractual in character.’” Sirpal v. Univ. of Miami, 509 F. App’x 924, 929 (11th Cir. 

2013) (quoting Jallali v. Nova Se. Univ., Inc., 992 So. 2d 338, 342 (Fla. 4th DCA 2008)). “The 

university ‘may set forth the terms under which it will admit and subsequently graduate students 

who subject themselves to the rules, regulations and regimen of the college.’” Id. (quoting Univ. 

of Miami v. Militana, 184 So. 2d 701, 704 (Fla. 3d DCA 1966)). It is generally accepted that the 

terms of that contractual relationship “may be derived from university publications such as the 

student handbook and catalog.” Id. (citing Jallali, 992 So. 2d at 342); Orzechowitz v. Nova Se. 

Univ., No. 13-62217-CIV, 2014 WL 1329890, at *3 (S.D. Fla. Mar. 31, 2014) (“[A] student 

handbook or publication can create contractual obligations on the part of university that are not 

necessarily limited to the ‘service’ of providing a college degree.”); see also McCawley v. 

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

publications are terms of an “implied-in-fact contract” rather than an express contract. Jarzynka 

v. St. Thomas Univ. of Law, 310 F. Supp. 2d 1256, 1269 (S.D. Fla. 2004); Williams v. Fla. State 

Univ., No. 4:11-CV-350-MW/CAS, 2014 WL 340562, at *6 (N.D. Fla. Jan. 29, 2014).

Here, Plaintiff alleges that he entered into a binding contract with Lynn for in-person 

education when he enrolled in and paid for the Undergraduate Day Division. See Am. Compl. ¶¶ 

16-27. Plaintiff contends that the terms of that contract are dictated by the university’s 

publications, policies, invoices, and the parties’ course of conduct. See id. ¶ 15. Throughout the 

Amended Complaint, Plaintiff cites to portions of Lynn’s publications and policies that suggest

courses would be conducted in-person and students would have access to campus facilities and 

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activities. See id. ¶¶ 30-41. At this early stage of the case—given that Florida law recognizes that 

the university/student contract may be implied in the university’s publications—these factual 

allegations are sufficient to plead the existence of a valid contract for in-person education. 

Indeed, two courts applying Florida law recently denied universities’ motions to dismiss 

nearly identical breach-of-contract claims in the COVID-19 context. See Rosado v. Barry Univ. 

Inc., No. 1:20-CV-21813, 2020 WL 6438684, at *3 (S.D. Fla. Oct. 30, 2020) (concluding that 

Plaintiff’s “allegations that [Defendant] accepted $773 more per credit for in-person classes from 

[Plaintiff], and actually provided in-person education to [Plaintiff] until March 19, 2020, in the 

backdrop of numerous other documents referring to in-person classes and amenities, are sufficient 

to establish, at minimum, an implied contract.”); Salerno v. Fla. S. Coll., No. 8:20-CV-1494-

30SPF, 2020 WL 5583522, at *5 (M.D. Fla. Sept. 16, 2020) (finding that Plaintiff’s allegations 

that “the College’s publications clearly implied that courses would be conducted in-person” and 

that the “College’s materials also touted its many resources and facilities—all of which were 

located on the campus thereby implying in-person participation” were sufficient to establish an 

implied contract). 

To be sure, an implied contract between the parties may well have contemplated that the 

students would bear the risk of a university closure caused by a global pandemic. As Lynn points 

out, the University Policies referenced in the Amended Complaint state that “[t]here will be no 

refund of tuition, [or] fees ... in the event the operation of the University is suspended at any time 

as a result of an act of God, strike, riot, disruption or for any other reasons beyond the control of 

the University.” (“Force Majeure Provision”). Plaintiff insists that this Force Majeure Provision

does not apply to the facts in this case because Lynn’s operations were not entirely “suspended,” 

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but instead moved online. See Resp. at 15. However, under Plaintiff’s reading of the provision,

if Lynn had shut down entirely, it would be entitled to keep all tuition and fees—but because Lynn

opted to provide some continuity for its students through remote learning, it is required to provide 

prorated refunds. The Court is unconvinced that the Force Majeure Provision should be construed

to produce such illogical results.

Nevertheless, a determination of whether the Force Majeure Provision or other statements 

in Lynn’s policies and publications foreclose Plaintiff’s breach-of-contract claim is more 

appropriate at the summary judgment stage. Although Plaintiff has sufficiently pleaded the 

existence of a contract for in-person education, this is not necessarily “a typical contract situation 

where there is an express document with delineated terms that a plaintiff can reference.” Salerno, 

2020 WL 5583522, at *5.2

 Therefore, further factual development is needed to clarify the terms 

and conditions that govern the parties’ relationship. See Resnick v. AvMed, Inc., 693 F.3d 1317, 

1326 n.3 (11th Cir. 2012) (“In Florida, whether a contract is implied in fact is inferred from the 

2

 In its Reply, Lynn argues for the first time that the Financial Responsibility Agreement attached to one 

of its Notices of Supplemental Authority [ECF No. 17] is in fact the controlling express contract between 

the parties—and the Court should therefore reject Plaintiff’s argument that there was an implied contract. 

See Reply at 5-6. However, the Financial Responsibility Agreement is not referenced in Lynn’s Motion, 

and the Court will not entertain arguments raised by Lynn for the first time in its Reply, thereby foreclosing 

Plaintiff’s opportunity to respond. See Tafel v. Lion Antique Investments & Consulting Servs., 459 F. App’x 

847, 849 (11th Cir. 2012) (“The district court had no obligation to consider an argument raised for the first 

time in the reply brief.”); see also Thuan Viet Doan v. United States, No. 18-21841, 2018 WL 4953353, at 

*5 (S.D. Fla. Oct. 12, 2018); Grant v. Miami-Dade Cty., No. 13-22008, 2014 WL 11412699, at *3 (S.D. 

Fla. Mar. 4, 2014). Even if the Court were to consider this argument, upon construing the facts in the light 

most favorable to Plaintiff—as the Court must do at this stage—it is not clear that the Financial 

Responsibility Agreement exclusively governs the subject of this dispute—i.e., whether Plaintiff contracted 

with Lynn for in-person learning and access to Lynn’s campus facilities and which party was intended to 

bear the financial risk of an event like a pandemic. In the case Lynn relies on, plaintiffs had specifically 

alleged a breach of the Financial Responsibility Agreement, so the governing contractual terms were not in 

dispute as they are here. See Chong v. Ne. Univ., No. CV 20-10844, 2020 WL 5847626, at *2 (D. Mass. 

Oct. 1, 2020). 

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facts and circumstances of the case.”) (internal quotation omitted); Tracfone Wireless, Inc. v. 

Simply Wireless, Inc., 275 F. Supp. 3d 1332, 1342 (S.D. Fla. 2017) (“Typically, in [implied-infact] contracts, the parties have in fact entered into an agreement, but without sufficient clarity, so 

a fact finder must examine and interpret their conduct to define their unspoken agreement.”); Willis 

of Fla., Inc. v. All Risks, Ltd., No. 2:12-CV-14148, 2012 WL 5504786, at *3 (S.D. Fla. Nov. 13, 

2012) (denying Defendant’s motion to dismiss Plaintiff’s claim for breach of an implied-in-fact 

contract “because Defendant is attacking the merits of Plaintiff's claim and the ‘examination of the 

parties’ conduct is a fact-based inquiry, something that cannot be resolved in a motion to

dismiss.’”) (quoting Watershed Treatment Programs, Inc. v. United Healthcare Ins. Co., No. 07-

80091, 2007 WL 1099124, at *2 (S.D. Fla. Apr. 10, 2007)); see also Rosado, 2020 WL 6438684, 

at *4 (S.D. Fla. Oct. 30, 2020) (noting that discovery may reveal whether “the contractual 

provisions referenced by [the university] govern this dispute.”).

The lack of clarity regarding precisely which terms control this dispute is evidenced by the 

parties’ pleadings. Plaintiff’s Amended Complaint cites to the University Policies, among other 

documents, to support the existence of a contract for in-person education. See Am. Compl. ¶¶ 15, 

30, 38, 40, and 106. However, when confronted with the Force Majeure Provision, Plaintiff 

disavows those same policies, pointing to a disclaimer stating that the policies “do[] not create an 

express or implied contract.” See Resp. at 15. Conversely, Lynn contends that Plaintiff is bound 

by the Force Majeure Provision found in the University Policies, see Mot. at 9-10 and 18-19, but 

then insists in its Reply that the controlling terms are those found in the Financial Responsibility 

Agreement, which does not appear to incorporate the language of the Force Majeure Provision. 

See Reply at 5-6; Statement of Financial Responsibility [ECF No. 33-1]. Thus, the universe of 

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terms and conditions governing the parties’ relationship is a disputed matter to be resolved when 

the full factual record is before the Court—not on a motion to dismiss.

3

 

The Court is also unpersuaded by Lynn’s position that Plaintiff has not sufficiently pleaded 

materiality and damages. Lynn argues that if it breached its contractual duty by transitioning to 

remote learning, the breach was minimal and did not go to the essence of the bargain because 

students still received education and credits. See Mot. at 13. Borrowing Judge Martinez’s apt

analogy from Rosado, “This is kind of like purchasing a Cadillac at full price and receiving an 

Oldsmobile. Although both are fine vehicles, surely it is no consolation to the Cadillac buyer that 

the ‘Olds’ can also go from Point A to Point B.” Rosado, 2020 WL 6438684, at *4. Moreover, 

Plaintiff has cited various statements by Lynn emphasizing the importance of campus life and the 

classroom experience and has pointed to the differences in the market value of Lynn’s online 

program versus its on-campus program. See Am. Compl. ¶¶ 30-37, 46. With respect to damages, 

Plaintiff asserts that he is entitled to the “prorated portion of tuition and fees necessary to 

compensate him” for the difference in value between the in-person, on-campus education he 

bargained for and what he received. Id. ¶ 119. At this stage, such allegations are enough to draw

3

 The Court notes that even when included in an undisputed express contract between parties, force majeure

provisions are “narrowly construed” and “will generally only excuse a party’s nonperformance if the event 

that caused the party’s nonperformance is specifically identified.” See ARHC NVWELFL01, LLC v. 

Chatsworth at Wellington Green, LLC, No. 18-80712, 2019 WL 4694146, at *3 (S.D. Fla. Feb. 5, 2019). 

Although “[p]recedent on the enforcement of force majeure clauses is limited in Florida,” id., this District, 

upon addressing the applicability of a force majeure clause in the context of COVID-19 regulations, has 

found it to be “a factual question that cannot be determined on a motion to dismiss.” Palm Springs Mile 

Assocs., Ltd. v. Kirkland’s Stores, Inc., No. 20-21724, 2020 WL 5411353, at *2 (S.D. Fla. Sept. 9, 2020). 

Here, the Court is similarly reluctant to assess the applicability of the Force Majeure Provision without the 

benefit of a full factual record, particularly considering that: (i) the Force Majeure Provision is found in a 

policy that purports not to create an express or implied contract; and (ii) government orders and guidance 

concerning COVID-19 are constantly evolving. 

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reasonable inferences that the alleged breach was not trivial and that damages flowed from the 

breach. 

The Court emphasizes that this is not a case about the quality of the education Lynn 

provided students during the Spring 2020 semester. Lynn is correct that Florida does not recognize 

a cause of action for educational malpractice. See McCurdy v. Virginia Coll., LLC, No. 3:17-CV562-J-32JBT, 2018 WL 1886579, at *4 (M.D. Fla. Mar. 7, 2018). Rather, Plaintiff’s claim is based 

on Lynn’s alleged failure to provide in-person, on-campus instruction and access to campus 

facilities and resources. To be clear, the Court does not opine on the merits of this breach of 

contract claim at this stage of the proceedings. It simply finds that the elements of the claim have 

been sufficiently pleaded, particularly considering that Florida law recognizes an implied 

contractual relationship between a university and its students derived from the university’s 

publications. 

ii. Whether Plaintiff’s breach of contract claim is barred by impossibility of 

performance or frustration of purpose. 

“Under the doctrine of impossibility of performance or frustration of purpose, a party is 

discharged from performing a contractual obligation which is impossible to perform and the party 

neither assumed the risk of impossibility nor could have acted to prevent the event rendering the 

performance impossible.” Marathon Sunsets, Inc. v. Coldiron, 189 So. 3d 235, 236 (Fla. 3d DCA

2016). “[N]ormally an affirmative defense cannot be decided at the motion to dismiss stage.” 

Perlman v. Wells Fargo Bank, N.A., 559 F. App’x 988, 994 (11th Cir. 2014). However, “[a]

complaint is subject to dismissal for failure to state a claim when its allegations, on their face, 

show that an affirmative defense bars recovery on the claim.” Douglas v. Yates, 535 F.3d 1316, 

1321 (11th Cir. 2008) (internal quotation and citation omitted). 

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Lynn argues that impossibility and frustration of purpose are evident on the face of the 

Amended Complaint. See Mot. at 16. Lynn contends that the Court “can take judicial notice of 

the existence of the basis for the frustration of purpose and impossibility affirmative defenses” and 

cites to orders from the Governor of Florida and the Palm Beach County government mandating 

certain closures due to COVID-19. Id. at 16. However, as discussed above, at this stage in the 

litigation, significant questions remain as to which contractual provisions govern the parties’ 

dispute and when they came into effect. Until those questions are resolved, the Court is unable to 

definitively ascertain which party assumed the risk of impossibility. See Rosado, 2020 WL 

6438684, at *5. Although the Force Majeure Provision in the University Policies suggests that 

students may have assumed the risk, the University Policies also purport not to create an express 

or implied contract, so it is unclear at this juncture the extent to which those policies formed the 

parties’ contractual expectations. See, e.g., Incwebs, Inc. v. First Student, Inc., No. 8:15-CV-1661-

T-33TGW, 2016 WL 727577, at *4 (M.D. Fla. Feb. 24, 2016) (denying motion to dismiss impliedin-fact contract claim based on terms in letter of intent that purported not to create a binding 

agreement between the parties). Accordingly, the Court finds that the facts alleged in the pleadings 

do not conclusively establish that Plaintiff’s breach of contract claim is barred by impossibility or 

frustration of purpose. 

iii. Whether the pleadings establish that Plaintiff ratified the alleged breach. 

Lynn further argues that Plaintiff’s breach of contract claim is barred because Plaintiff 

ratified the allegedly breaching conduct by continuing to attend courses remotely and accepting 

credits. See Mot. at 16. “Ratification is conduct that indicates an intention, with full knowledge 

of the facts, to affirm a contract which the person did not enter into or which is otherwise void or 

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voidable.” Citron v. Wachovia Mortg. Corp., 922 F. Supp. 2d 1309, 1321–22 (M.D. Fla. 2013); 

see also Zurstrassen v. Stonier, 786 So. 2d 65, 71 (Fla. 4th DCA 2001) (“Ratification occurs where 

a party with full knowledge of all the material facts makes an affirmative showing of his or her 

express or implied intention to adopt an act or contract entered into without authority.”). 

The Court disagrees that the issue of ratification is established on the face of the pleadings.

It is not apparent from the allegations in the Amended Complaint what information was conveyed 

to students at the time Lynn moved its courses online or what actions, if any, Plaintiff took upon 

learning of the transition. Nor do the pleadings show that Plaintiff knew he could reject the 

contract at any point during the Spring semester. See In re Standard Jury Instructions–Contract 

& Bus. Cases, 116 So. 3d 284, 328–29 (Fla. 2013) (ratification occurs where (1) a defendant 

performs an act which breached contract; (2) plaintiff knew of the act and that he could reject the 

contract because of the act; and (3) plaintiff accepted the act). Without a developed factual record, 

the Court cannot ascertain whether Plaintiff affirmatively manifested an intent to approve Lynn’s 

actions with “full knowledge of all the material facts.” See First Sw. Fin. Servs., LLC v. Best Light, 

LLC, No. 13-20049, 2015 WL 13777174, at *12 (S.D. Fla. Feb. 6, 2015) (“While ratification need 

not be expressed in words, there must be some intelligent act or conduct of the principal, made 

with a full knowledge of the facts, which clearly shows an intention to be bound.”) (internal 

quotation and citation omitted).

Here, the Court will not draw the conclusion that Plaintiff relinquished his contractual 

remedies solely based on allegations that he did not—in the face of an unpredictable, novel, and 

rapidly evolving pandemic—quit school mid-semester and risk forfeiting his tuition. See Rosado, 

2020 WL 6438684, at *5. 

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B. Unjust Enrichment

Lynn maintains that Plaintiff’s unjust enrichment claim should be dismissed because: (1) 

the relationship between students and an institute of higher education is contractual in nature and 

unjust enrichment can only survive where there is no adequate remedy at law; and (2) Plaintiff has 

not established that it would be inequitable for Lynn to retain the cost of tuition and other fees for 

the Spring 2020 semester. 

Unjust enrichment may be properly pleaded where “(1) plaintiff has conferred a benefit 

on the defendant, who has knowledge thereof; (2) defendant voluntarily accepts and retains the 

conferred benefit; and (3) the circumstances are such that it would be inequitable for the defendant 

to retain the benefit without paying the value thereof to the plaintiff.” Extraordinary Title Servs., 

LLC v. Fla. Power & Light Co., 1 So. 3d 400, 404 (Fla. 3d DCA 2009) (quotation omitted). 

Although a party may only recover under an unjust enrichment theory when there is no valid 

express or implied-in-fact contract, unjust enrichment and breach of contract may be pleaded in 

the alternative where one of the parties asserts that the contract governing the dispute is invalid. 

See Cent. Magnetic Imaging Open MRI of Plantation, Ltd. v. State Farm Mut. Auto. Ins. Co., 789 

F. Supp. 2d 1311, 1317 (S.D. Fla. 2011); Martorella v. Deutsche Bank Nat. Tr. Co., 931 F. Supp. 

2d 1218, 1227 (S.D. Fla. 2013).

Here, the Court finds it premature to dismiss Plaintiff’s unjust enrichment claim. Although 

Lynn does not dispute that the relationship between a university and its students is contractual in 

nature, it vehemently disputes the existence of a contract for in-person education. See Mot. at 6-

7. Furthermore, in its Reply, Defendant argues that the Court should “reject Plaintiff’s invitation 

to manufacture an implied contract” because the Financial Responsibility Agreement constitutes 

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an express agreement between the parties governing the same subject matter. See Reply at 6, n.5. 

Thus, although the Amended Complaint adequately pleads the existence of a valid implied-in-fact 

contract, an undisputed express or implied-in-fact contract has yet to be established at this stage in 

the proceedings—and, therefore, dismissal of Plaintiff’s unjust enrichment claim is not warranted. 

See Raven v. Lincoln Nat. Life Ins. Co., No. 07-23137-CIV, 2011 WL 5553837, at *7 (S.D. Fla. 

Nov. 15, 2011) (“It is only upon a showing that an express contract exists that the unjust 

enrichment ... count fails.”) (internal quotation marks and citation omitted); Martorella, 931 F. 

Supp. 2d at 1228 (“[I]t is not upon the allegation of the existence of a contract, but upon a showing 

that an express contract exists that the unjust enrichment count fails.”); see also Salerno, 2020 WL 

5583522, at *5 (denying motion to dismiss student’s alternative unjust enrichment claim); Rosado, 

2020 WL 6438684, at *5 (same). 

Without opining on the merits of Plaintiff’s unjust enrichment claim, the Court also finds 

that Plaintiff has adequately pleaded it would be inequitable for Lynn to retain the full tuition and 

fees paid by him and similarly situated students for the full Spring 2020 semester. Plaintiff has 

alleged that the tuition and fees were at least in part intended to cover services, resources, and 

access to facilities that Lynn did not provide or only partially provided. At this stage in the 

litigation, these allegations are sufficient to state a plausible claim for unjust enrichment. 

CONCLUSION

For the foregoing reasons, it is ORDERED AND ADJUDGED as follows:

1. Lynn’s Motion to Dismiss Plaintiff’s Class Action Complaint [ECF No. 15] is DENIED. 

2. The stay of discovery imposed by the Court in its Order dated October 29, 2020 [ECF 

No. 40] is hereby LIFTED. 

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3. On or before December 14, 2020, Plaintiff shall file a Second Amended Complaint 

removing claims concerning the Summer 2020 term given Plaintiff’s concession that he does not 

have an actionable claim for that term. See Resp. at 20, n.24. 

DONE AND ORDERED in Fort Lauderdale, Florida, this 29th day of November, 2020.

 _________________________________

 RODOLFO A. RUIZ II

 UNITED STATES DISTRICT JUDGE

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