IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

OMAR HERNANDEZ, individually and 

on behalf of all others similarly 

situated,

Plaintiff,

v.

ILLINOIS INSTITUTE of 

TECHNOLOGY,

Defendant.

No. 20-cv-3010

Judge Franklin U. Valderrama

MEMORANDUM OPINION AND ORDER

COVID-19 is a novel coronavirus that has affected nearly every aspect of 

everyday life. From mask wearing to social distancing, it has changed the way we live 

and interact with each other. Not surprisingly, the upheaval caused by COVID-19 

extended to education. Plaintiff Omar Hernandez (Hernandez) was enrolled at the 

Illinois Institute of Technology (IIT) as a student for the Spring 2020 semester. 

However, mid-way through the Spring 2020 semester, as a result of the COVID-19 

pandemic, IIT suspended all in-person classes, transitioned to an online-only format 

and closed all non-essential campus, student, and recreational facilities. IIT required 

students to vacate the campus. IIT refused to issue refunds to students for the Spring 

2020 semester.

Hernandez subsequently brought this lawsuit, individually and as a class 

action suit against IIT, alleging state law claims of breach of contract, unjust 

enrichment (in the alternative), and breach of implied contract (in the alternative).

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R. 28, Am. Compl.1 Hernandez seeks refunds of the amount he and members of the 

proposed classes are owed on a pro-rata basis, along with other damages. Before the 

Court is Defendant IIT’s Motion to Dismiss the Amended Complaint under Federal 

Rule of Civil Procedure 12(b)(6). R. 35, Mot. Dismiss. For the reasons that follow, IIT’s

motion is granted.

Background2

IIT is a nonprofit higher education institution with campuses in Chicago and 

Wheaton, Illinois. Am. Compl. ¶¶ 6, 76. IIT’s spring term began on January 13, 2020, 

with instruction slated to end on May 1, 2020 and final exams set to conclude on May 

9, 2020. Id. ¶¶ 40–41. Spring break began on March 16, 2020 with students scheduled 

to return to class March 23, 2020. Id. ¶ 42.

On March 9, 2020, Illinois Governor J.B. Pritzker, in response to the COVID19 pandemic, issued a disaster proclamation for the State of Illinois. On March 20, 

2020, Governor Pritzker issued Executive Order 2020-10 (the March 20 Executive 

Order).3 R. 35, Memo. Dismiss at 3–4. The March 20 Executive Order, among other 

1Citations to the docket are indicated by “R.” followed by the docket number and, where 

necessary, a page or paragraph citation.

2The Court accepts as true all of the well-pleaded facts in the Complaint and draws all 

reasonable inferences in favor of Hernandez. Platt v. Brown, 872 F.3d 848, 851 (7th Cir. 

2017).

3The Court may take “judicial notice of matters which are so commonly known within the 

community as to be indisputable among reasonable men, or which are capable of certain 

verification through recourse to reliable authority.” McCray v. Hermen, 2000 WL 684197, at 

*2 n.1 (N.D. Ill. May 23, 2000) (quoting Green v. Warden, U.S. Penitentiary, 699 F.2d 364, 

369 (7th Cir. 1983)). “Included in these matters are ‘proceedings in other courts, both within 

and outside of the federal judicial system, if the proceedings have a direct relation to matters 

at issue.’” Id. (quoting same); see also Ennenga v. Starns, 677 F.3d 766, 774 (7th Cir. 2012)

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things, ordered citizens to stay at home at their places of residence and limited travel 

within the State. Id. at 4 (citing Exec. Order 2020-10). 

In light of the COVID-19 pandemic, on March 12, 2020, IIT announced that 

beginning on March 23, 2020, all classes would move from in-person to online and all 

class, athletic activities, and conference attendance would be suspended. Am. Compl. 

¶¶ 43, 45. On March 16, 2020, IIT announced that its libraries and SportsCenter 

would not re-open to students following Spring break. Id. ¶ 46. On March 20, 2020, 

students were asked not to return to campus absent extraordinary circumstances and 

those who returned were restricted to dorms, dining facilities, and travel only for 

essential services. Id. ¶¶ 50–51. 

Hernandez was an IIT student who paid his Spring 2020 tuition and 

mandatory fees. Am. Compl. ¶¶ 17–18, 38. Due to the campus closure, campus 

activities were canceled, organizations no longer offered campus programming, 

students could not host or travel to conferences, all campus events were canceled, 

athletics were suspended, and all campus buildings were closed. Id. ¶ 39.

Hernandez subsequently filed this individual and class action4 lawsuit against 

IIT. The operative complaint is the five-count Amended Complaint, consisting of two 

(“Taking judicial notice of matters of public record need not convert a motion to dismiss into 

a motion for summary judgment.”).

4 Plaintiff seeks to bring this lawsuit on behalf of two classes. The Tuition Class is comprised 

of “[a]ll people who paid tuition for or on behalf of students enrolled in classes at [IIT] for the 

Spring 2020 semester but were denied live, in-person instruction and forced to use online 

distance learning platforms for the latter portion of that semester.” Am. Compl. ¶ 58. The 

Fees Class is comprised of “[a]ll people who paid fees for or on behalf of students enrolled in 

classes at [IIT] for the Spring 2020 semester.” Id.

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classes. Count I alleges breach of contract (Tuition Class); Count II asserts an unjust 

enrichment claim in the alternative (Tuition Class); Count III asserts a breach of 

implied contract in the alternative (Tuition Class); Count IV alleges a breach of 

contract (Fees Class); and Count V asserts unjust enrichment in the alternative (Fees

Class). R. 28. IIT moves to dismiss the Amended Complaint pursuant to Federal Rule 

of Civil Procedure 12(b)(6). Mot. Dismiss. 

Standard

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the 

complaint. Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 

820 (7th Cir. 2009). Under Rule 8(a)(2), a complaint must include only “a short and 

plain statement of the claim showing that the pleader is entitled to relief.” FED. R.

CIV. P. 8(a)(2). To survive a motion to dismiss, a complaint need only contain factual 

allegations, accepted as true, sufficient to “state a claim to relief that is plausible on 

its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 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.” Iqbal, 556 U.S. at 678 (citing 

Twombly, 550 U.S. at 556). The allegations “must be enough to raise a right to relief 

above the speculative level.” Twombly, 550 U.S. at 555. The allegations that are 

entitled to the assumption of truth are those that are factual, rather than mere legal 

conclusions. Iqbal, 556 U.S. at 678–79. 

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Analysis

IIT advances three arguments in support of dismissal. Memo. Dismiss. First, 

it maintains that Hernandez seeks damages for academic malpractice, a claim not 

recognized under Illinois law. Id. at 8. Second, even if Hernandez’s academic 

malpractice is a recognized cause of action, IIT contends that Hernandez fails to 

allege a breach of contract. Id. at 14. Third, Hernandez does not and cannot establish 

that IIT was unjustly enriched or breached an implied contract. Id. at 20. The Court 

addresses each argument in turn.

I. Educational Malpractice

IIT argues that, whether framed as a breach of contract claim, a breach of 

implied contract claim, or an unjust enrichment claim, each count of Hernandez’s 

Amended Complaint asserts that IIT engaged in academic malpractice. Memo. 

Dismiss at 8. However, IIT asserts that such a claim is not recognized in Illinois. Id.

(citing Waugh v. Morgan Stanley & Co., 966 N.E.2d 540, 549 (Ill. App. Ct. 2012);

Fleming v. Chi. Sch. Of Prof’s Psychology, 2019 WL 247537 (N.D. Ill. Jan. 16, 2019); 

Ross v. Creighton Univ., 957 F.2d 410, 415 (7th Cir. 1992)). Hernandez denies that 

his claims allege educational malpractice, as he is not asking the Court to evaluate 

the subjective opinions of educators in making specialized academic decisions. R. 46, 

Resp. at 8. Nor does he seek to evaluate educators against a standard of care 

regarding their teaching practices. Id. Instead, he alleges that IIT failed to provide 

Hernandez with the on-campus, in-person instruction and services it allegedly 

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promised to students, which he contends form the basis of a breach of contract or

unjust enrichment claim. Id. at 9. The Court agrees with Hernandez.

In Illinois, claims that “raise[] questions about the reasonableness of an 

educator’s conduct in providing educational services” or that “require[] an analysis of 

the quality of education,” are claim[s] for educational malpractice and are noncognizable.” Waugh, 966 N.E.2d at 555 (internal citations omitted). To overcome the 

prohibition on educational malpractice claims, “the essence of the plaintiff’s 

complaint” must be “not that the institution failed to perform adequately a promised 

educational service, but rather that it failed to perform that service at all.” Ross, 957 

F.2d at 417.

IIT insists that Hernandez’s claims, notwithstanding their title, are, in 

essence, claims for academic malpractice because Hernandez asks the Court to review 

the substance, quality, and value of the education provided by IIT in the last six 

weeks of the Spring 2020 semester. Memo. Dismiss at 11. Not so. Admittedly, the 

Amended Complaint includes some allegations that may be read as challenging the 

quality of the online instruction. See, e.g., Am. Compl. ¶ 111 (seeking a disgorgement 

of “difference between the fair market value of the online learning provided versus 

the fair market value of the live, in-person instruction in a physical classroom on a 

physical campus with all the attendant benefits for which they contracted”). 

However, a fair reading of Hernandez’s Amended Complaint reveals that at 

bottom, Hernandez is complaining that he and IIT had a contract pursuant to which

he paid tuition and fees to IIT to attend in-person classes and participate in in-person 

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activities and that IIT breached that agreement by moving to online classes and 

shuttering the campus, while refusing to return a portion of Hernandez’s tuition and 

fees. See Am. Compl. ¶¶ 105–10, 115–20, 129–35, 153–56, 164–67. In short, this is a

classic breach of contract case. Hernandez’s Amended Complaint does not require the 

Court to engage in an analysis regarding the quality of the education Hernandez 

received at IIT. Accordingly, IIT’s attempt to recast Hernandez’s claim as one for 

educational malpractice fails. See Miller v. Lewis Univ., 2021 WL 1379488, at *2–3

(N.D. Ill. Apr. 11, 2021) (rejecting defendant university’s contention that plaintiffstudent’s nearly identical complaint asserted an educational malpractice claim); 

Buschauer v. Columbia College Chi., 2021 WL 1293829, at *4 (N.D. Ill. Apr. 6, 2021) 

(same); Oyoque v. Depaul Univ., 2021 WL 679231, at *2 (N.D. Ill. Feb. 21, 2021) 

(same). But see Gociman v. Loyola Univ. of Chicago, 2021 WL 243573, at *3 (N.D. Ill. 

Jan. 25, 2021) (finding the complaint “clearly challenges the quality of the online 

instruction, not whether defendant provided education ‘at all’” where the plaintiffstudents acknowledged receiving online instruction and credits but argued that that 

instruction was “worth less” than in-person instruction). The Court, having 

determined that Hernandez does not allege a noncognizable claim for educational 

malpractice, now addresses whether he has sufficiently alleged breach of contract, 

unjust enrichment, and breach of implied contract claims.

II. Breach of Contract

In Counts I and IV, Hernandez claims a breach of contract. Hernandez brings 

Count I on behalf of the Tuition Class and alleges that in exchange for tuition, IIT 

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would enroll the students and grant them full access to campus activities and live, 

in-person instruction. Am. Compl. ¶ 72. According to Hernandez, IIT breached this 

contract when it moved to online-only instruction and refused to refund members of 

the Tuition Class a pro-rata share of the tuition. Id. ¶ 103. Hernandez brings Count 

IV on behalf of the Fees Class and alleges that students paid IIT certain fees in 

exchange for certain on-campus services and activities, and IIT breached that 

contract by failing to refund them a pro-rata share of fees paid. Id. ¶¶ 138–40, 153–

56. 

To state clam for breach of contract under Illinois law, a plaintiff “must allege

(1) the existence of a valid and enforceable contract; (2) substantial performance by 

the plaintiff; (3) a breach by the defendant; and (4) the resultant damages.” Hongbo 

Han v. United Cont’l Holdings., Inc., 762 F.3d. 598, 600 (7th Cir. 2014) (internal 

citations and quotations omitted). In an educational setting, a plaintiff “must point 

to an identifiable contractual promise that the defendant failed to honor.” Fleming v. 

Chicago Sch. Of Prof’s Psychology, 2019 WL 247537, *3 (N.D. Ill. Jan. 16, 2019).

Under Illinois law, the relationship between students and a university is contractual 

in nature. Bissessur v. Ind. Univ. Bd. Of Trs., 581 F.3d 599, 601 (7th Cir. 2009). The 

rights and obligations of the parties generally are contained in the university’s 

catalogs and bulletins. DiPierna v. Chicago Sch. Of Prof’l Psychology, 893 F.3d 1001, 

1006–07 (7th Cir. 2018).

The first element is not at issue in this case, as IIT does not dispute the fact 

that a contractual relationship existed between Hernandez and IIT. R. 48, Reply at 

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7. Instead, the question is whether Hernandez has sufficiently pled that IIT had a 

specific contractual obligation to provide in-person instruction and activities and 

services, and that IIT breached that obligation when it moved to online-only 

instruction and closed the campus and refused to offer pro-rated tuition and fee 

refunds. The breach of contract claims are predicated on Hernandez’s contention that 

IIT promised its students in-person instruction and activities and services. IIT argues

that Counts I and IV should be dismissed because Hernandez fails to identify a

specific contractual provision requiring IIT to provide in-person instruction or 

activities and services. Memo. Dismiss at 14–15. Therefore, IIT contends that

Hernandez fails to adequately plead a breach of contract cause of action in the 

educational setting. Id. at 15 (citing Roe v. Loyola University New Orleans, 2007 WL 

4219174 (E.D. La. Nov. 26, 2007)). The Court agrees.

To sustain his breach of contract claim, Hernandez must point to a concrete 

promise of in-person instruction or activities that IIT made and failed to honor. See 

Buschauer, 2021 WL 1293829, at *4. Notably, Hernandez’s Response does not cite to 

any paragraph in his Amended Complaint where he identifies that promise. See 

generally Resp. at 11–14. Instead, Hernandez first points to IIT’s website and certain 

publications as containing IIT’s promise of in-person instruction. Specifically, he 

alleges that IIT’s publications are full of references to the on-campus experience, 

including references to student activities, class size, and student-teacher ratio. Am. 

Compl. ¶¶ 79–80. Hernandez also points out that when students formally accept their 

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offers for enrollment in the on-campus program, they are directed to visit the 

admitted students page on IIT’s website. The website, according to Hernandez, states:

Congratulations on your admission to Illinois Tech! You’re about to embark on 

a new journey at Chicago’s only tech-focused university. Experience an ideadriven curriculum with access to high-caliber research opportunities, an 

exciting campus life, and a window to the world through our location in the 

great global city of Chicago.

Id. ¶ 85

This webpage, however, can hardly be said to contain a promise of in-person 

instruction. In fact, the Court can discern no promise at all by IIT in this passage. 

Instead, IIT is merely touting the experience that students can expect to gain at IIT. 

Next, Hernandez goes into great detail about how IIT markets its campus and 

programs. For example, he alleges that part of IIT’s marketing strategy is to recruit 

students by promoting “the campus experience it offers, along with face-to-face,

personal interaction with skilled and renowned faculty and staff, through ‘hands on 

learning.’” Am. Compl. ¶ 21. Marketing materials, however, “are not among the terms 

of the contract between universities and their students.” Oyoque, 2021 WL 679231, 

at *5 (internal citation omitted). No matter, as the marketing materials referenced in 

the Amended Complaint do not contain any concrete promises that the instruction

the students would receive at IIT, nor that the activities covered by the mandatory 

fees, would be in-person. See, e.g., Am. Compl. ¶¶ 21–22, 35, 37, 79–80; see Buschauer 

2021 WL 1293829, at *5 (defendant-school’s marketing materials advertising its 

“prime location in downtown Chicago, [and] describing ways that its location can 

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benefit students . . . amount to unenforceable expectations or aspirational statements, 

not concrete promises”) (internal citations and quotations omitted). 

Hernandez next contends that class registration is another area where IIT 

specifically promises in-person instruction, which IIT calls “traditional instruction.” 

Am. Compl. ¶ 88. Hernandez notes that classes offered for in-person instruction are 

listed not only by description, but by meeting and physical classroom location. Id.

¶ 94. Conversely, Hernandez pleads that classes offered for online instruction are 

offered through the “Internet Campus” and designated, “Online Instructional 

Method.” Id. ¶ 95. IIT requires all undergraduate students to obtain approval for 

online classes. Id. ¶ 92. Again, Hernandez misses the mark. Nothing in the class 

registration materials evinces a concrete promise by IIT that instruction would be inperson.

Last, Hernandez maintains that the parties’ course of conduct further supports 

the proposition that students expected to receive in-person instruction on campus. 

Am. Compl. ¶ 96. Hernandez notes that for the weeks and months leading up to 

March 16, 2020, students attended physical classrooms to receive in-person 

instruction and IIT provided in-person instruction. Id. ¶ 98. However, the fact that 

IIT provided in-person instruction prior to the pandemic, does not “imply a 

contractual entitlement to instruction in the same location and manner.” In re 

Columbia Tuition Refund Action, 2021 WL 790638, at *4 (S.D.N.Y. Feb. 26, 2021). It 

merely reflects the pre-pandemic practice. Id.

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True, several out-of-jurisdiction cases based on similar allegations support 

Hernandez’s contention that he has sufficiently pled a breach of contract action. See, 

e.g., R. 47, Pl.’s Suppl. Auth. (citing Rosado v. Barry University, Inc., 2020 WL 

6438684 (S.D. Fla. Oct. 31, 2020).5 The Court, however, sees no need to look to other 

jurisdictions when several courts in the Northern District, applying Illinois law, have 

dismissed nearly identical claims to those made by Hernandez, finding that the 

plaintiffs failed to point to concrete promises by the defendant universities to provide 

in-person instruction or activities.

In Gociman, 2021 WL 243573, at *3–5, the district court dismissed the 

plaintiffs-students’ complaint, finding that the plaintiffs failed to allege a specific 

promise for in-person instruction. The court found nothing in the defendantuniversity’s course offering materials or course catalog that constituted a promise for 

in-person instruction. Id. at *4. The court also rejected the plaintiffs’ contention that 

in-person instruction was implied by the difference in tuition for the “in-person” and 

“online-program. Id. It held that “[a] difference in tuition is insufficient to allege a 

specific contractual promise.” Id.

In Oyoque, 2021 WL 679231, at *2, the plaintiff-student alleged that the 

defendant-university had promised in-person instruction in its academic catalog, 

5Hernandez filed a second notice of supplemental authority citing five out-of-jurisdiction 

cases with similar holdings. R. 49. IIT filed a motion to strike the second notice, R. 50, which 

the Court granted because it was filed without leave of Court, R. 51. Hernandez did not file 

a motion requesting that the Court consider the cases cited in his second notice; even if he 

had, it would not have changed the Court’s finding that such out-of-jurisdiction cases are of 

limited value in the face of multiple well-reasoned Opinions from this District applying 

Illinois law. 

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student handbook, and marketing materials. The district court found that the cited 

materials contained no concrete promises to provide in-person instruction and 

accordingly dismissed the plaintiff’s breach of contract claim. Id. at *3–5. 

Similarly, in Buschauer, 2021 WL 1293829, at *2, the plaintiff-student’s breach 

of contract claim was premised on tuition payments and mandatory fees, which the 

plaintiff claimed were paid in part due to the defendant-university’s promises for oncampus, in-person instruction, and access to on-campus facilities. The court found 

that the cited materials did not show any specific promises of on-campus, in-person

instruction and services for the spring 2020 semester. Id. at *5–6. Most recently, the 

student-plaintiff in Miller alleged nearly identical claims, which the district court 

dismissed for the same reasons. 2021 WL 1379488, at *3–6.

This Court finds the reasoning of the above cases persuasive. The Court finds, 

in viewing the allegations of the Amended Complaint in the light most favorable to 

Hernandez, that the Amended Complaint fails to sufficiently plead a breach of 

contract action based on the payment of tuition or mandatory fees.6 Accordingly, IIT’s

Motion to Dismiss Counts I and IV is granted.

III. Unjust Enrichment

In Counts II and V, Hernandez asserts claims for unjust enrichment in the 

alternative to his breach of contract claims. To state an unjust enrichment cause of 

action under Illinois law, Hernandez must allege that IIT has unjustly retained a 

6In light of the Court’s finding, the Court need not address IIT’s additional arguments that 

Hernandez’s claims are barred by IIT’s tuition and refund policies and that IIT’s conduct was 

not arbitrary and capricious. See Memo. Dismiss at 15–19. 

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benefit to his detriment and that IIT’s retention of the benefit violates the 

fundamental principles of justice, equity, and good conscience. Banco Panamericano, 

Inc. v. City of Peoria, Ill., 880 F.3d 329, 333 (7th Cir. 2018) (citing HPI Health Care 

Servs., Inc. v. Mt. Vernon Hosp., Inc., 545 N.E.2d 672, 679 (Ill. 1989)). IIT argues that 

Hernandez’s claim for unjust enrichment cannot stand in the presence of an express 

contract governing the same subject matter. Memo. Dismiss at 21. The Court agrees.

Generally, breach of contract and unjust enrichment may be pleaded in the 

alternative, so long as the plaintiff has not incorporated allegations of contract into 

his or her unjust enrichment claim. Shaw v. Hyatt Int’l Corp., 461 F.3d 899, 902 (7th 

Cir. 2006). Here, the parties do not dispute the existence of a valid, enforceable

contract between IIT and its students. Indeed, in its Reply, IIT acknowledges that 

“IIT’s catalogs, bulletins, and student handbooks form a contractual relationship with 

students.” Reply at 14. What IIT has denied is that it promised, in that contract, to 

provide its students with in-person instruction or on-campus services and activities. 

See Memo. Dismiss at 14. 

Here, Hernandez’s allegations in his unjust enrichment counts, however, are 

premised on IIT’s failure to fulfill the terms of the express contract between the 

parties. See Am. Compl. ¶¶ 112, 115, 118–19, 160, 164–67. A plaintiff cannot state a 

claim for unjust enrichment where an express contract exists between the parties and 

concerns the same subject matter. Gagnon v. Schickel, 983 N.E.2d 1044, 1052 (Ill. 

App. Ct. 2012); see also Ford v. Pacific Webworks, Inc., 2011 WL 529265, at *4 n.7 

(N.D. Ill. Feb. 4, 2011) (“[B]reach of contract and unjust enrichment may be pleaded 

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in the alternative as long as plaintiffs have not incorporated allegations of a contract 

into their unjust enrichment claim.”). Hernandez’s argument that his unjust 

enrichment claims must be maintained because IIT may still raise a defense 

regarding the enforcement of the contract (via impossibility, impracticability, or 

frustration of purpose) is meritless. Resp. at 21. As noted above, both parties agree 

that a valid, enforceable contract exists; nowhere in the Amended Complaint or the 

parties’ briefs does either party contest the enforceability of the contract. Hernandez 

simply speculates that IIT may raise such a defense in the future because it has not 

waived the defense. Id. But where a plaintiff never alleges that the contract is 

unenforceable, his unjust enrichment claim must fail. US Dealer License, LLC v. US 

Dealer Licensing LLC, 2019 WL 7049927, at *5 (N.D. Ill. Dec. 23, 2019). 

Like Hernandez’s breach of contract claims, nearly identical unjust enrichment 

claims have been considered and dismissed by other courts in this District because—

like Hernandez’s claim—each unjust enrichment claim was premised on the 

defendant-university’s failure to fulfill contractual terms. See Miller, 2021 WL 

1379488, at *6; Buschauer, 2021 WL 1293829, at *6; Oyoque, 2021 WL 679231, at *5.

Gociman, 2021 WL 243573, at *5. So too must this Court dismiss Counts II and V. 

IV. Breach of Implied Contract

Finally, in Count III, Hernandez asserts claims for breach of implied contract,

again in the alternative to his breach of contract claims. The elements of both an 

implied and express contract are the same under Illinois law: offer, acceptance, and 

consideration. Nissan N. Am., Inc., v. Jim M’Lady Oldsmobile, Inc., 486 F.3d 989, 996 

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(7th Cir. 2007). As an initial matter, the Court is not convinced that a cause of action 

for a breach of an implied contract can stand in the educational setting. See, e.g., 

Buschauer 2021 WL 1293829, at *4 (“In the educational setting, [plaintiff] cannot

merely state that . . . an implied contract existed, but instead must point to an

identifiable contractual promise that the defendant failed to honor.”) (quoting

Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 603 (7th Cir. 2009); Ross, 957 F.2d

at 416–17) (internal quotations marks omitted). However, IIT does not raise the

educational setting issue, but rather argues that, like his unjust enrichment claims,

Hernandez’s implied contract claim cannot survive because an express contract

governs the same subject matter. Reply at 13–14 (citing Conway Corp. v. Alpha 

Distributors, Ltd., 993 F.2d 1549, at *7 (7th Cir. 1993); People ex rel. Hartigan v. 

Knecht Services, Inc., 575 N.E.2d 1378, 1383 (Ill. App. Ct. 1991); Heavey v. Ehret, 519 

N.E.2d 996, 1001 (Ill. App. Ct. 1988)). The Court agrees. 

In response, Hernandez relies on Otto Real Estate, Inc. v. Shelter Investments, 

506 N.E.2d 351 (Ill. App. Ct. 1987) for the proposition that the existence of an express 

contract “does not prevent the parties from making another one tacitly, concerning 

the same subject matter or a different one.” Resp. at 16. But Otto is distinguishable, 

as the court held that an implied contract claim could proceed in the face of an express 

contract where the plaintiff provided a service to defendants different from that which 

was the subject of the express contract. 506 N.E.2d at 354. As in Conway, in support 

of his implied contract claim, Hernandez does not allege that he or members of the 

Tuition Class provided a form of consideration to IIT different from that provided 

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under the express contract. Compare Am. Compl. ¶ 72 (Hernandez and the Tuition 

Class paid tuition to enroll in classes) with id. ¶ 133 (Hernandez and the Tuition 

Class “register[ed] and pa[id] for on-campus courses and access to on-campus 

facilities and services for the Spring 2020 semester”). On the facts alleged in the 

Amended Complaint, the Court cannot find an implied contract concerning subject 

matter different from that of the express contract between the parties. As such, Count 

III must also be dismissed. 

Conclusion

For the foregoing reasons, Defendant Illinois Institute of Technology’s Motion 

to Dismiss [35] is granted. The Amended Complaint is dismissed without prejudice.

Hernandez is granted leave to file a Second Amended Complaint consistent with this 

Order on or before May 14, 2021. 

DATED: April 23, 2021

United States District Judge

Franklin U. Valderrama

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