Buschauer v. Columbia College Chicago et al
OPINION AND ORDER. For the reasons stated in the accompanying Opinion and Order, the Court grants Columbia's motion to dismiss 58 . The Court dismisses the SAC with prejudice and terminates this case. The clerk is directed to mail the ILND 450. Civil case terminated. Signed by the Honorable Sara L. Ellis on 1/10/2022. Mailed notice(rj, )
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
DAVID BUSCHAUER, individually and on
behalf of all others similarly situated,
COLUMBIA COLLEGE CHICAGO,
No. 20 C 3394
Judge Sara L. Ellis
OPINION AND ORDER
In light of the COVID-19 pandemic, in March 2020, Defendant Columbia College
Chicago (“Columbia”) shifted its classes online and closed its campus for the remainder of the
spring 2020 semester. Unhappy with this change and believing that it negatively affected the
value of his education, Plaintiff David Buschauer, a Columbia undergraduate student, filed this
putative class action on behalf of himself and all Columbia undergraduate and graduate students.
The Court dismissed his first amended complaint, finding that Buschauer had not sufficiently
alleged that Columbia made any specific promise of on-campus, in-person instruction or services
to allow him to proceed on a breach of contract claim and that the existence of a contract
governing the parties’ relationship foreclosed Buschauer’s unjust enrichment claim. Doc. 52.
Buschauer has now filed a second amended complaint (“SAC”), seeking a refund of a portion of
the technology, activity, and health center fees he paid for the spring 2020 semester during which
he did not receive any services funded by the fees under a theory of unjust enrichment.
Columbia has moved to dismiss the SAC. Because Buschauer cannot avoid the fact that a
contract continues to govern his relationship with Columbia, the existence of that contract bars
his unjust enrichment claim and requires the Court to dismiss the SAC with prejudice.
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Columbia, a private, nonprofit college with almost 7,000 students in over sixty
undergraduate and graduate programs, offers a curriculum that blends creative and media arts,
liberal arts, and business. Columbia offers classes in fifteen-week fall and spring semesters. In
marketing the spring 2020 semester, Columbia indicated that classes would occur from January
27 through May 15, 2020, with a one-week spring break from March 30 to April 4. Columbia
noted, however, that “while the usual term of a class is 15 weeks, some subjects may be offered
in shorter periods, ranging from three to eight weeks.” Doc. 54 ¶ 13.
Buschauer, a resident of Lemont, Illinois, attended Columbia for the spring 2020
semester as a full-time undergraduate student. Buschauer anticipated graduating in May 2021
with a degree in entertainment marketing and music business. 2 For the spring 2020 semester,
Columbia charged him several mandatory fees. Specifically, Buschauer paid a $45 health center
fee, which funded health services for students; a $75 activity fee, which funded student events
and activities; and a $150 technology fee, which funded computer labs, software, on-campus
internet access, and student technology support. In addition to funding clubs and special events,
the activity fee also provided access to Columbia’s on-campus student center, which housed a
maker space, a fitness center, a career center, workspaces, meeting rooms, game rooms, and
music practice rooms.
Partway through the spring 2020 semester, due to the COVID-19 pandemic, Columbia
suspended all on-campus, in-person classroom instruction, as well as access to on-campus
facilities and services, from March 12 to April 6, 2020. During this period, Columbia did not
The Court takes the facts in the background section from the SAC and presumes them to be true for the
purpose of resolving Columbia’s motion to dismiss. See Phillips v. Prudential Ins. Co. of Am., 714 F.3d
1017, 1019–20 (7th Cir. 2013).
Buschauer dropped out of Columbia on September 19, 2020 due to the continuation of online classes.
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provide any services, facilities, or technologies funded by the health center, activity, and
In addition to the tuition and fees students paid for the spring 2020 semester, Columbia
also received $6,341,542 in grant funding from the CARES Act–HEERF, up to 50% of which
Columbia could use to cover costs associated with significant changes to the delivery of
instruction due to COVID-19. Columbia did not refund or provide any reimbursement for the
health center, activity, and technology fees students paid for the spring 2020 semester.
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not
its merits. Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.
1990). In considering a Rule 12(b)(6) motion, the Court accepts as true all well-pleaded facts in
the plaintiff’s complaint and draws all reasonable inferences from those facts in the plaintiff’s
favor. Kubiak v. City of Chicago, 810 F.3d 476, 480–81 (7th Cir. 2016). To survive a Rule
12(b)(6) motion, the complaint must assert a facially plausible claim and provide fair notice to
the defendant of the claim’s basis. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007); Adams v. City of Indianapolis, 742 F.3d 720, 728–29 (7th
Cir. 2014). A claim is facially plausible “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.
Unjust Enrichment as a Standalone Claim
First, Columbia argues that Buschauer cannot pursue a standalone claim for unjust
enrichment. “Illinois law is arguably somewhat confused on whether a claim of unjust
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enrichment requires an underlying tort or breach of contract or whether, instead, there can be a
free-standing claim based on the proposition that it would be unjust for the defendant to retain a
benefit that it obtained at the plaintiff’s expense.” Stevens v. Interactive Fin. Advisors, Inc., No.
11 C 2223, 2015 WL 791384, at *16 (N.D. Ill. Feb. 24, 2015); see also Mason W. Kienzle &
Samuel M. Zuidema, Unjust Enrichment in Illinois: Uncommon Confusion over a Common
Claim, 2020 U. Ill. L. Rev. Online 53 (analyzing cases addressing unjust enrichment under
Illinois law and noting that “[a]s things now stand, it is no exaggeration to say that parties
litigating in certain Illinois and federal courts have no idea whether a claim for unjust enrichment
can stand independently--and neither, apparently, do the judges”). Columbia relies on an Illinois
Appellate Court case, Martis v. Grinnell Mutual Reinsurance Co., which held that “unjust
enrichment is not a separate cause of action that, standing alone, will justify an action for
recovery.” 388 Ill. App. 3d 1017, 1024 (2009). Instead, according to Martis, unjust enrichment
“is a condition that may be brought about by unlawful or improper conduct as defined by law,
such as fraud, duress, or undue influence, and may be redressed by a cause of action based upon
that improper conduct.” Id. (quoting All. Acceptance Co. v. Yale Ins. Agency, 271 Ill. App. 3d
483, 492 (1995)). On the other hand, Buschauer argues that, in Cleary v. Philip Morris, Inc., the
Seventh Circuit suggested that unjust enrichment may proceed as an independent cause of action
because “the Illinois Supreme Court has articulated the elements of unjust enrichment without
reference to a separate underlying claim in tort, contract, or statute.” 656 F.3d 511, 516 (7th Cir.
2011) (citing Raintree Homes, Inc. v. Vill. of Long Grove, 209 Ill. 2d 248, 258 (2004)). But the
Cleary court refused to “resolve definitively whether Illinois law recognizes unjust enrichment as
an independent cause of action.” Id. at 518. Without addressing Cleary’s prediction that the
Illinois Supreme Court would recognize unjust enrichment as a separate cause of action,
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subsequent Seventh Circuit cases have disagreed with Cleary and aligned with Martis,
concluding that unjust enrichment may not proceed as a separate claim. See Mashallah, Inc. v.
W. Bend Mut. Ins. Co., --- F.4th ----, 2021 WL 5833488, at *7 (7th Cir. 2021); Benson v. Fannie
May Confections Brands, Inc., 944 F.3d 639, 648 (7th Cir. 2019); Vanzant v. Hill’s Pet
Nutrition, Inc., 934 F.3d 730, 739–40 (7th Cir. 2019).
The Court need not resolve the issue here because, as Buschauer notes in his response, he
predicates his unjust enrichment claim on the existence of a quasi-contract. A quasi-contract,
also referred to as a contract implied in law, “is a duty imposed to prevent injustice when there is
no actual agreement between the parties.” Callahan v. H.E. Wisdom & Sons, Inc., No. 20 C
2852, 2021 WL 4552553, at *2 (N.D. Ill. Oct. 5, 2021). Thus, even if unjust enrichment cannot
survive as a standalone claim, Buschauer argues that he may proceed because he bases the claim
on a quasi-contract. Because a plaintiff need not specifically plead legal theories in federal court
and the SAC sufficiently provides notice to Columbia of a quasi-contractual theory, the Court
does not find it necessary to dismiss the SAC because it only specifically references an unjust
enrichment claim. See Hatmaker v. Mem’l Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010). The
Court thus turns to Columbia’s argument that Buschauer has not sufficiently stated an unjust
enrichment claim predicated on a quasi-contractual theory.
Sufficiency of the Allegations
To state an unjust enrichment claim, Buschauer must allege that Columbia has “unjustly
retained a benefit to [Buschauer’s] detriment, and that [Columbia’s] retention of the benefit
violates the fundamental principles of justice, equity, and good conscience.” HPI Health Care
Servs. v. Mt. Vernon Hosp., 131 Ill. 2d 145, 160 (1989). Among other arguments, Columbia
contends that Buschauer cannot proceed on an unjust enrichment claim based on quasi-contract
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because an express contract governs the parties’ relationship concerning the payment of fees.
See People ex rel. Hartigan v. E & E Hauling, Inc., 153 Ill. 2d 473, 497 (1992) (“Because unjust
enrichment is based on an implied contract, ‘where there is a specific contract which governs the
relationship of the parties, the doctrine of unjust enrichment has no application.’” (citation
omitted)). Buschauer contends that the Court cannot consider his prior allegations concerning
the existence of a Financial Responsibility Agreement (“FRA”) because the SAC supersedes his
prior pleadings. While that generally is the case, because his amended allegations “flatly
contradict the originals, and there is no suggestion that the originals were made in error,” the
Court may consider the FRA and his prior concession that the FRA governed the parties’
relationship “in the interest of justice.” Nat’l Fair Hous. All. v. Deutsche Bank Nat’l Tr., No. 18
CV 839, 2019 WL 5963633, at *12 (N.D. Ill. Nov. 13, 2019). Here, it appears that Buschauer
intentionally omitted any reference to the FRA to avoid the Court’s prior ruling on whether his
unjust enrichment claim can go forward, Doc. 52 at 13, yet he does not dispute that he agreed to
the FRA and instead sets forth reasons why the FRA does not bar his unjust enrichment claim,
Doc. 68 at 4–7. Thus, the Court considers it here.
The FRA, which Columbia students sign at the start of each semester, indicates that
students “accept full responsibility to pay all tuition, fees, housing charges, meal plan charges,
and other associated costs assessed as a result of [their] registration and/or receipt of services.”
Doc. 66 at 10. Under the heading “Changes to Curriculum,” students agree “that changes made
to the curriculum do not absolve [them] of [their] financial responsibility to pay the correct
amount of tuition, fees, and other associated financial obligations assessed as a result of [their]
registration and/or services received at” Columbia. Id. at 11. Finally, as relevant here, the FRA
provides that it “supersedes all prior understandings, representations, negotiations and
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correspondence between the student and Columbia College Chicago, constitutes the entire
Agreement between the parties with respect to the matters described, and shall not be modified
or affected by any course of dealing or course of performance.” Id. at 13.
Buschauer argues that, even treating the FRA as an express contract between the parties,
it does not address the specific subject matter he raises in his unjust enrichment claim, namely,
the services Columbia agreed to provide Buschauer in exchange for payment of the health center,
activity, and technology fees. But “Illinois courts look to the subject matter of the contract,
rather than the contract’s specific terms or any provisions related to the claim, and they interpret
the contract’s subject matter broadly.” Callahan, 2021 WL 4552553, at *2. As the Court
previously noted, “[t]he relevant question is whether the parties’ relationship is governed by a
contract,” not “[w]hether a specific provision of the contract applies.” Miszczyszyn v. JPMorgan
Chase Bank, N.A., No. 18-cv-3633, 2019 WL 1254912, at *4 (N.D. Ill. Mar. 19, 2019). Here,
the FRA expressly governs the financial relationship between Columbia and Buschauer.
Therefore, it bars Buschauer’s claim seeking a prorated refund of the health center, activity, and
technology fees for the three weeks during which Columbia allegedly did not provide any
services to its students. See Utility Audit, Inc. v. Horace Mann Serv. Corp., 383 F.3d 683, 689
(7th Cir. 2004) (“Utility Audit is correct that its contract with Horace Mann contains no terms or
provisions dealing specifically with soliciting cheaper proposals for telephone service. But
despite the absence of specific terms, the subject matter of the contract clearly encompasses the
work it did for Horace Mann identifying sources of savings including potential ‘future savings.’
Therefore we agree with the district court that the contract governs Utility Audit’s proposed
claim that it is entitled to a share of Horace Mann’s savings.”); Indus. Lift Truck Serv. Corp. v.
Mitsubishi Int’l Corp., 104 Ill. App. 3d 357, 361 (1982) (“Plaintiff asserts its complaint states a
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valid cause of action in quasi-contract despite the existence of a contract because the contract
does not cover the specific service plaintiff rendered-the development of the design changes. It
is perhaps true that the contract did not expressly cover the design changes, but it does not follow
that an action in quasi-contract is therefore allowable. If a quasi-contract action could be brought
every time a party under contract performs a service not precisely covered by the contract, then
the rule preventing quasi-contract actions when a contract exists would have little meaning.”).
And because Buschauer has had several opportunities to state a valid claim and further
amendment would be futile, the Court dismisses the SAC with prejudice. See Camasta v. Jos. A.
Bank Clothiers, Inc., 761 F.3d 732, 734–35 (7th Cir. 2014) (affirming dismissal with prejudice of
first amended complaint after initial complaint was dismissed without prejudice); Pirelli
Armstrong Tire Corp., Retiree Med. Benefits Tr. v. Walgreen Co., No. 09 C 2046, 2010 WL
624709, at *1 (N.D. Ill. Feb. 18, 2010) (dismissing amended complaint with prejudice after
previous dismissal of ICFA and unjust enrichment claims without prejudice), aff’d, 631 F.3d 436
(7th Cir. 2011).
For the foregoing reasons, the Court grants Columbia’s motion to dismiss . The
Court dismisses the SAC with prejudice and terminates this case.
Dated: January 10, 2022
SARA L. ELLIS
United States District Judge
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