United States Court of Appeals

For the Eighth Circuit

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No. 18-2124

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Ahmed Soueidan

lllllllllllllllllllllPlaintiff - Appellant

v.

St. Louis University

lllllllllllllllllllllDefendant - Appellee

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Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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Submitted: January 17, 2019

Filed: June 14, 2019

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Before SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.

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SMITH, Chief Judge.

Ahmed Soueidan appeals from the district court’s order dismissing his

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Missouri state-law claims for breach of contract, breach of the implied covenant of

good faith and fair dealing, and fraudulent misrepresentation against St. Louis

The Honorable Ronnie L. White, United States District Judge for the Eastern 1

District of Missouri. 
University (SLU). Soueidan argues that the district court erroneously dismissed the

claims under the educational malpractice doctrine and for failure to prove the required

elements. He further asserts that the district court erred in denying his request for

leave to amend his complaint. We affirm.

I. Background

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Soueidan enrolled as a doctoral student at SLU in the Parks College of

Engineering, Aviation and Technology in 2012. SLU represented to Soueidan that he

would obtain his Ph.D. in mechanical and aerospace engineering in four years. In

August 2012, Soueidan met with the department chair to discuss a plan of study. The

department chair drafted a plan for Soueidan to graduate with his doctoral degree in

four years. Soueidan began following the plan and enrolled in coursework. 

Soueidan attempted to find a Ph.D. advisor to supervise his graduate studies,

but he was unable to find anyone willing and able to accept new graduate students.

One professor even told Soueidan that he “should not be in this program.” Compl. at

2, ¶ 10, Soueidan v. St. Louis Univ., No. 4:17-cv-02777 (E.D. Mo. Nov. 27, 2017),

ECF No. 1. As a result, Soueidan completed his first three semesters without an

advisor. 

In December 2013, Professor Raymond Lebeau agreed to serve as Soueidan’s

advisor. Lebeau indicated that he could get Soueidan through the program in two

more years, even though Lebeau had no research or funding for Soueidan. Lebeau

was uncertain about the requisite qualifying examination for Soueidan. As a result,

Soueidan referred to the SLU Graduate Student Handbook (“Handbook”) for

In reviewing the grant of a motion to dismiss, we recite the facts as alleged in 2

Soueidan’s complaint and assume them to be true. See Zink v. Lombardi, 783 F.3d

1089, 1098 (8th Cir. 2015) (en banc) (per curiam) (“We assume all facts in the

complaint to be true, and [we] draw all reasonable inferences in favor of the nonmoving party.”). 

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guidance. But Lebeau advised Soueidan to disregard the Handbook’s guidelines.

Lebeau told Soueidan that they would “do it our way” and that Soueidan was “a

guinea pig for this program.” Compl. at 3, ¶ 13. 

In August 2014, the graduate coordinator, graduate programs assistant,

department chair, and several professors in the department simultaneously left SLU.

By August 2015, the graduate programs assistant and the Dean of the College of 3

Engineering left their positions. By that time, Soueidan had completed ten graduatelevel courses toward satisfying the course credits requirement for his Ph.D. in

accordance with the Handbook. 

In June 2015, Lebeau advised Soueidan that he needed to attend a conference

to prepare for the qualifying examination. In January 2016, they attended the AIAA

SciTech 2016 conference in San Diego, California. At that conference, Soueidan

presented his thesis work. Soueidan paid for all of his conference expenses. 

In May 2016, Soueidan met with Lebeau and the graduate coordinator to

discuss the timing of Soueidan’s qualifying examination. Thereafter, Lebeau

recommended that Soueidan do a practice exam in preparation for the actual exam.

Following Soueidan’s practice examination, Lebeau told Soueidan that two of the

committee members said Soueidan would not pass his examination. But, Lebeau

noted, a third committee member said he would have passed Soueidan. Lebeau

relayed this information to Soueidan before the actual exam so “bullets wouldn’t go

flying.” Id. at 4, ¶ 16. 

Soueidan averred that the “graduate programs assistant” left SLU “[i]n August 3

2014,” but he also averred that the “graduate programs assistant” left “[o]ne year

later, in 2015.” Id. at 3, ¶ 14. The complaint does not explain if a new graduate

assistant was hired after August 2014 and departed by August 2015. 

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In August 2016, at the start of his fifth year at SLU, Soueidan took the

qualifying examination. One committee member informed Soueidan prior to the

examination that Soueidan did not follow the guidelines for writing his paper and

questioned his preparednessfor the examination. After the examination, Lebeau told

Soueidan that he “should not have been let in here” because Lebeau was “not

interested in new ideas” and was “afraid of putting Mr. Soueidan out there because

Mr. Leabeau didn’t know what Mr. Lebeau was doing and didn’t want to bear that

responsibility.” Id. at 4, ¶ 17 (brackets omitted). 

After not passing the qualifying examination, Soueidan was instructed to take

another written examination and perform additional course work. Notably, Soueidan

had suggested to Lebeau years prior that he take this same written exam. The exam

is normally taken within the first year of Ph.D. studies. Soueidan did enroll in the

recommended additional course. He also met an additional time with the graduate

coordinator and Lebeau to discuss his progress. 

In the fall of 2016, after over four years, Soueidan left the Ph.D. program and

downgraded to a Master’s degree. But, in a final attempt to obtain his Ph.D., Soueidan

spoke with the SLU Provost of Academic Affairs about his situation. The Provost

initially advised Soueidan to leave SLU to join a new program and that the Provost

would help him get his dissertation credits refunded. Later, after speaking with the

Dean of the College of Engineering, the Provost advised Soueidan to find an

established research project. Soueidan was unable to find one. 

In February 2017, at the Provost’s behest, Soueidan renewed his relationship

with Lebeau. Lebeau, however, still showed uncertainty advising Soueidan going

forward. Lebeau directed Soueidan to the Handbook’s guidelines. Lebeau told

Soueidan, “We do it the way SLU does it.” Id. at 5, ¶ 25. Nevertheless, Lebeau

remained unfamiliar with the exam format and procedures. At this point, Soueidan

decided to earn his Ph.D. by beginning anew at a different university.

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Soueidan filed suit against SLU, alleging Missouri state-law claims for breach

of contract, breach of the implied covenant of good faith and fair dealing, and

fraudulent misrepresentation. In support of his claims, Soueidan referred to several

sections of the Handbook that he claimed SLU failed to follow during his time in the

Ph.D. program. According to Soueidan, SLU’s failure to “meet their obligation[s]”

set forth in the Handbook “made it very unlikely from the beginning that [he] would

be able to achieve his Ph.D. degree at SLU.” Id. at 6, ¶ 30. First, the Handbook

provided that “[y]ou should have an advisor assigned within the first few weeks of

classes starting.” Id. at 6, ¶ 27 (quoting Handbook at 9). Soueidan alleged that “SLU

did not assign an advisor to [him]” within the first few weeks of the program. Id.

Instead, Soueidan was without an advisor until December 2013, “a year and a half

after [he] began the Ph.D. program.” Id. at 6, ¶ 28. 

Second, the Handbook “indicate[d] thatstudents are to meet with their advisor

in January to complete their Annual Student Review.” Id. at 6, ¶ 29 (citing Handbook

at 9). Soueidan alleged that he was deprived of this review, which “would have been

an opportunity for Mr. Soueidan to ‘have a review of [his] work completed, create

goals for the next year of studies and research, and ensure [he was] staying on track

for graduation.’” Id. (bold omitted) (first alteration in original). 

Third, the Handbook stated that “‘[f]or Engineering students, the Qualifying

Exam is scheduled after 2 semesters,’ and that ‘[t]he Qualifying Exam is designed to

determine if the student is prepared to continue Ph.D. studies and carry on with

research.’” Id. at 6, ¶ 31 (second alteration in original) (quoting Handbook at 12).

Soueidan alleged that because he was without an advisor after two semesters, the

Qualifying Exam was not scheduled and he “missed out on another opportunity to

ensure he was on track to obtain a Ph.D.” Id. at 7, ¶ 31. He noted that he did not take

the Qualifying Exam “until August 2016, at the start of his fifth year at SLU.” Id. at

7, ¶ 32 (bold omitted). 

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In support of his claims, Soueidan additionally cited the 2015–2016 SLU

Graduate Education Catalog (“Catalog”). The Catalog “indicate[d] that the Parks

College of Engineering does in fact have a Ph.D. program.” Id. at 7, ¶ 33 (citing

Catalog at 111). Soueidan alleged that “in practice, students who register for the SLU

College of Engineering Ph.D. program are faced with” an insufficient number of

“professors with funding or research to serve as advisorsto these Ph.D. Students.” Id.

at 7, ¶ 34. Soueidan alleged that “[a]s a prospective student, [he] had a right to rely

upon the Catalog and that is what he did when enrolling in the Ph.D. program at

SLU.” Id. at 7, ¶ 35. 

Soueidan alleged that SLU’s fraudulent conduct “cost [him] nearly

$200,000.00 in tuition payments.” Id. at 7, ¶ 36. 

SLU moved to dismiss Soueidan’s complaint, and the district court granted the

motion. First, the court determined that Missouri’s educational malpractice doctrine

applied to all of Soueidan’s claims and required dismissal. According to the court,

Soueidan’s claims would impermissibly require it “to determine whether SLU timely

assigned a Ph.D. advisor, conducted a student review, and scheduled the qualifying

examination and how those decisions affected Soueidan’s matriculation.” Soueidan

v. Saint Louis Univ., No. 4:17-cv-02777, 2018 WL 1997287, at *3 (E.D. Mo. Apr. 27,

2018). His claims would also require the court “to analyze whether SLU breached its

contract by ‘failing to award . . . Soueidan the Ph.D. degree he was promised after

completing all directives and 5 years of requisite coursework’” and “to address not

only the quality of the Ph.D. program but also whether Soueidan comprehensively

and adequately completed all of his coursework.” Id. (ellipsis in original) (quoting

Compl. at 8, ¶ 39). The court held that making such determinations would require the

court to examine SLU’s educational process. Thus, the educational malpractice

doctrine barred Soueidan’s claims. 

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Second, the district court alternatively held that Soueidan’s claims of breach

of contract and breach of the covenant of good faith and fair dealing required

dismissal “based upon the timing ofthis action and ofthe alleged discrete, contractual

promises relied upon by Soueidan.” Id. at *4. According to the court, “Soueidan was

admitted and accepted into the Ph.D. program in 2012, which is when the alleged

contract would have been formed.” Id. But Soueidan did not receive the alleged

promises until “after his 2012 contract with SLU was formed.” Id. The court noted

that Soueidan “first reviewed the Handbook in December 2013.” Id. Furthermore,

Soueidan’s claims were also premised on “promises contained in the 2015–2016

Catalog[ ].” Id. “Thus,” the court concluded, “Soueidan could not have relied upon

these promisesin the Handbook and Catalog when he e[nr]olled in the Ph.D. program

in 2012.” Id. The court held that Soueidan’s breach claims failed because Soueidan

failed “to identify any promises that he relied upon when he e[nr]olled in 2012.” Id.

Third, the court held that Soueidan’s fraudulent misrepresentation claim

required dismissal because “Soueidan . . . failed to allege a fraud that is independent

of his contract action. Rather, his fraud claim is based upon the same promises and

actions that he alleged to support his breach of contract claim.” Id. 

Finally, the district court “denie[d] Soueidan’s request to file an amended

complaint because he . . . failed to provide a proposed amendment along with his

request.” Id. at *5. 

II. Discussion

On appeal, Soueidan argues that the district court erroneously dismissed his

Missouri state-law claims for breach of contract, breach of the covenant of good faith

and fair dealing, and fraudulent misrepresentation. Specifically, Soueidan contends

he provided sufficient evidence of all the required elements in each cause of action

and that the court should not have applied Missouri’s educational malpractice

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doctrine. He further asserts that the district court erred in denying his request for

leave to amend his complaint. 

A. Educational Malpractice Doctrine

We review de novo a district court’s grant of a motion to dismiss. BNSF Ry.

Co. v. Seats, Inc., 900 F.3d 545, 546 (8th Cir. 2018). To survive a motion to dismiss,

the plaintiff must show that he “is entitled to relief, by alleging sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.” Id.

(quoting In re Pre-Filled Propane Tank Antitrust Litig., 860 F.3d 1059, 1063 (8th

Cir. 2017) (en banc)).

The district court determined that the educational malpractice doctrine bars all

of Soueidan’s claims. We agree. 

In educational malpractice cases, a plaintiff sues his or her academic

institution for tortiously failing to provide adequate educational

services. If a negligence claim raises questions concerning the

reasonableness of the educator’s conduct in providing educational

services, then the claim is one of educational malpractice. Similarly, if

the claim requires an analysis of the quality of education received and

in making that analysis the fact-finder must consider principles of duty,

standards of care, and the reasonableness of the defendant’s conduct,

then the claim is one of educational malpractice. If the duty alleged to

have been breached is the duty to educate effectively, the claim is one

of educational malpractice. A claim that educational services provided

were inadequate, substandard, or ineffective constitutes a claim of

educational malpractice. Where the court is asked to evaluate the course

of instruction or the soundness of the method of teaching that has been

adopted by an educational institution, the claim is one of educational

malpractice.

Dallas Airmotive, Inc. v. FlightSafety Int’l, Inc., 277 S.W.3d 696, 700 (Mo. Ct. App.

2008) (cleaned up). 

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“Generally, courts have refrained from recognizing educational malpractice

claims, either in tort or contract, on the premise that ‘[u]niversities must be allowed

the flexibility to manage themselves and correct their own mistakes.’” Lucero v.

Curators of Univ. of Mo., 400 S.W.3d 1, 8 (Mo. Ct. App. 2013) (alteration in original)

(quoting Miller v. Loyola Univ. of New Orleans, 829 So.2d 1057, 1061 (La. Ct. App.

2002)). Missouri courts have “refuse[d] to recognize a claim for educational

malpractice” because it is not the role of courts “to micromanage a university’s daily

operations.” Id. (citing Dallas Airmotive, Inc., 277 S.W.3d at 700 (“[C]ourts have

refused to become the overseers of both the day-to-day operation of [the] educational

process as well as the formulation of its governing policies” (second alteration in

original) (internal quotations omitted))). 

In the present case, Soueidan relies on the Catalog and Handbook in support

of his contract and fraudulent misrepresentation claims. But all of the statements

provided in these sources are “aspirational in nature.” Id. at 6. First, the Handbook’s

statement that “[y]ou should have an advisor assigned within the first few weeks of

classes starting,” Compl. at 6, ¶ 27 (quoting Handbook at 9) (emphasis added), does

not create an obligation on the part of SLU to assign Soueidan an advisor. Not only

does the Handbook fail to specify who assigns the advisor, but it also uses the term

“should,” not “must” or “shall.” Cf. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581,

599 (1999) (“The Developmentally Disabled Assistance and Bill of Rights Act, a

1975 measure, stated in aspirational terms that ‘[t]he treatment, services, and

habilitation for a person with developmental disabilities. . . should be provided in the

setting that is least restrictive of the person’s personal liberty.’” (first emphasis

added) (alterationsin original) (citation omitted)); Gutierrez de Martinez v.Lamagno,

515 U.S. 417, 432 n.9 (1995) (“Though ‘shall’ generally means ‘must,’ legal writers

sometimes use, or misuse, ‘shall’ to mean ‘should,’ ‘will,’ or even ‘may.’”); Union

Elec. Co. v. Consolidation Coal Co., 188 F.3d 998, 1001 (8thCir. 1999) (“The parties

could easily have made the GIC obligatory by using mandatory language, such as

‘must and shall’ rather than ‘may and should.’”). 

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Second, Soueidan’s allegation that the Handbook provided that “students are

to meet with their advisor in January to complete their Annual Student Review,”

Compl. at 6, ¶ 29 (citing Handbook at 9), creates no obligation on SLU’s behalf. This

alleged promise is dependent on the Handbook’s prior statement that the student

“should have an advisor assigned.” Id. at 6, ¶ 27 (quoting Handbook at 9).

Furthermore, Soueidan has not alleged that the Handbook says that the advisors

“must” or “shall” meet with the students; instead, he alleges that the Handbook places

the onus on the students to meet with their advisor. Therefore, the Handbook

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language, as Soueidan alleges that it reads, indicates more of a recommendation or

goal and is “aspirational in nature.” See Lucero, 400 S.W.3d at 6. 

Third, the Handbook’s statement that “‘[f]or Engineering students, the

Qualifying Exam is scheduled after 2 semesters,’” Compl. at 6, ¶ 31 (quoting

Handbook at 12), does not constitute an obligation that SLU owed to Soueidan. As

with the two prior provisions, the cited language contains no mandatory language that

the Qualifying Exam “must” or “shall” be scheduled within two semesters. And, the

provision does not say who schedules the Qualifying Exam. 

In addition to the Handbook, Soueidan’s complaint alleges that the Catalog

“indicates that the Parks College of Engineering does in fact have a Ph.D. program.”

Id. at 7, ¶ 33 (citing Catalog at 111). Like the Handbook, the Catalog does not

affirmatively set forth any obligation on behalf of SLU. Soueidan has cited no

mandatory language from the Catalog guaranteeing that Soueidan will earn his Ph.D.

degree in a certain number of years or earn the degree at all.

Soueidan’s complaint did not directly quote the actual language from the

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Handbook; however, nowhere does he indicate that the Handbook uses mandatory

language. 

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If we “wade[d] into the issue of how closely [SLU] operated within the

constructs of the . . . aspirational [Handbook and Catalog] provisions cited by

[Soueidan], [we] would be forced to engage—with complete disregard for Missouri

law—in an educational malpractice analysis rife with . . . practical and policy

concerns.” Gillis v. PrincipiaCorp., 111 F. Supp. 3d 978, 985 (E.D. Mo. 2015), aff’d,

832 F.3d 865 (8th Cir. 2016). As the district court aptly explained, Soueidan’s claims

would impermissibly require it “to determine whether SLU timely assigned a Ph.D.

advisor, conducted a student review, and scheduled the qualifying examination and

how those decisions affected Soueidan’s matriculation”; “to analyze whether SLU

breached its contract by ‘failing to award . . . Soueidan the Ph.D. degree he was

promised after completing all directives and 5 years of requisite coursework’”; and

“to address not only the quality of the Ph.D. program but also whether Soueidan

comprehensively and adequately completed all of his coursework.” Soueidan, 2018

WL 1997287, at *3 (ellipsis in original) (quoting Compl. at 8, ¶ 39). Such

“intervention by the court would amount to judicial supervision of [SLU’s] internal

proceduresfor monitoring” the progress ofits doctoralstudents.” Lucero, 400 S.W.3d

at 8 (“With this purpose in mind, any intervention by the court would amount to

judicial supervision of a university’s internal proceduresfor monitoring its faculty.”).

Accordingly, we affirm the district court’s dismissal of Soueidan’s claims

based on the educational malpractice doctrine. 

B. Request for Leave to Amend Complaint

Soueidan also challenges the district court’s denial of his request for leave to

amend his complaint. Soueidan conditionally requested leave to amend his complaint

in his response to SLU’s motion to dismiss. Soueidan did not disclose what he would

change in the complaint, nor did he attach a proposed amended pleading or file a

separate motion for leave to amend. The district court denied Soueidan’s request to

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file an amended complaint “because he . . . failed to provide a proposed amendment

along with his request.” Soueidan, 2018 WL 1997287, at *5. 

Soueidan argues that the district court abused its discretion in denying his

request for leave to amend his complaint. See Wolgin v. Simon, 722 F.2d 389, 394

(8th Cir. 1983) (standard of review). We addressed a substantially similar situation

in Wolgin. In that case, the appellant, “[i]n his brief in opposition to the appellees’

motion to dismiss, . . . concluded his argument by requesting leave to amend the

complaint if the court granted the appellees’ motion.” Id. (emphases added). The

appellant contended that the district court construe the request “as a motion for leave

to amend.” Id. We rejected the appellant’s argument based on his failure to preserve

the right to amend by submitting a proposed amendment with a motion. Id. at 394–95. 

Soueidan attempts to distinguish Wolgin by arguing that the appellant in that

case filed a motion for leave to amend pursuant to Federal Rule of Civil Procedure

15(a), while Soueidan did not file a Rule 15(a) motion but rather only sought

permission to file a Rule 15 motion. Contrary to Soueidan’s argument, the appellant

in Wolgin did precisely what Soueidan did here—“concluded his argument [in his

brief in opposition] by requesting leave to amend the complaint if the court granted

the appellees’ motion.” Id. at 394. As a result, Wolgin is controlling. We, therefore,

hold that the district court did not abuse its discretion in denying Soueidan leave to

amend when Soueidan “did not submit a proposed amendment to the trial court, nor

[include] anything in [his] brief to indicate what an amended complaint would have

contained.” Id.

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Even if Soueidan were allowed to amend his complaint, such amendment

5

would be futile. Plymouth Cty., Iowa v. Merscorp, Inc., 774 F.3d 1155, 1160 (8th Cir.

2014) (“[A] party is not entitled to amend a complaint without making a showing that

such an amendment would be able to save an otherwise meritless claim.”). Soueidan

argues his amended complaint would “add an allegation that he looked at the

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III. Conclusion

Accordingly, we affirm the judgment of the district court. 

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Handbook at the time he enrolled or that the Handbook terms were in existence at that

time” to remedy the district court’s conclusion that Soueidan’s contract claims failed

because Soueidan could not have relied upon alleged promises set forth in the

Handbook and Catalog that he received after he formed his alleged 2012 contract

with SLU. Appellant’s Br. at 31. Additionally, he asserts he would “clarify that the

representation that there is a Ph.D. program at all, through which any student can

obtain a Ph.D., is distinct from a promise to provide a Ph.D. within a certain

timeframe so long as he followed certain steps, and was a representation made at the

time he applied for the program.” Id. But these amendments would not remedy the

fact that the educational malpractice doctrine bars Soueidan’s claims. 

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