Dutra v. Trustees of Boston University

Filing 63

Judge Richard G. Stearns: ORDER entered granting in part and denying in part 55 Motion to Dismiss for Failure to State a Claim. The court dismisses the portions of Counts I, II, and III premised on the failure to provide room and board for the week between March 15, 2020 and March 22, 2020. The portions of Count I, II, and III premised on the failure to provide in-person instruction and the closure of on-campus facilities and resources, however, survive defendants motion. (RGS, law3)

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 20-10827-RGS
IN RE: BOSTON UNIVERSITY
COVID-19 REFUND LITIGATION
MEMORANDUM AND ORDER ON
DEFENDANT’S MOTION TO DISMISS
January 7, 2020
STEARNS, D.J.
Plaintiffs Julia Dutra, Gabriella Dube, Shakura Cox, Valaauina Silulu,
Natalia Silulu, Olivia Bornstein, and Venus Tran filed this putative class
action against defendant Trustees of Boston University (BU).1 By way of a
Second Consolidated Amended Class Action Complaint (SCAC) (Dkt. # 49),
they allege that BU breached an express or implied contract with its students
(Counts I and II, respectively) or, alternatively, unjustly enriched itself at its
students’ expense (Count III) when it retained tuition and fees collected for
the Spring semester of 2020 despite ceasing in-person instruction and
closing its on-campus facilities and resources in March of 2020. BU moves

Plaintiffs initially filed separate actions (1:20-cv-10827; 1:20-cv10834; 1:20-cv-10914; 1:20-cv-11118; and 1:20-cv-11260). The court
consolidated these actions into the present case in September of 2020.
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to dismiss all claims pursuant to Fed. R. Civ. P. 12(b)(6). For the following
reasons, the court will ALLOW the motion in part and DENY it in part.
BACKGROUND
The essential facts, drawn from the SCAC and documents incorporated
by reference and, as required by the Rule, viewed in the light most favorable
to the plaintiffs, are as follows.

BU is a university located in Boston,

Massachusetts. It “is the fourth largest private, not-for-profit, residential
research university in the United States, with over 35,000 students across
over 300 programs of study.” SCAC ¶ 34. Plaintiffs are undergraduate and
graduate students who enrolled in classes at BU during the Spring semester
of 2020.2
According to the SCAC, plaintiffs entered into a contractual agreement
with BU to pay tuition and fees for the Spring semester of 2020 in exchange
for, inter alia, access to campus facilities and activities, in-person instruction
in a physical classroom, and room and board. See id. ¶¶ 165-166, 184; see
also id. ¶ 33 (“[T]he tuition and fees for which BU charged Student Plaintiffs
were predicated on access to and constant interaction with and feedback

Plaintiff Valaauina Silulu is not a student at BU, but the SCAC
includes him as a party because he “agreed to repay N[atalie] Silulu’s loans,
which she used to pay a portion of her tuition and fees.” Id. ¶ 32.
2

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from peers, mentors, professors, and guest lecturers; access to technology,
libraries, and laboratories; opportunities to attend or participate in spectator
sports and athletic programs; access to student government and health
services; and participation in extracurricular groups and learning, among
other things.”). Plaintiffs purport to derive the terms of this contract from
representations made by BU regarding tuition and fee payments and from
representations made in BU’s course registration materials for the Spring
semester of 2020. 3
Plaintiffs allege that they fulfilled their obligations under the contract
when they paid the required “tuition, mandatory fees, and room and/or
board costs” for the Spring semester of 2020.4 Id. ¶ 166. They enrolled in
in-person courses designated in registration materials to occur at specific
times at specific locations on campus and received syllabi imposing strict

Plaintiffs also highlight the existence of several writings they view as
consistent with the terms of this alleged contract, e.g., course syllabi and
university marketing materials.
3

The undergraduate students (Dutra, Dube, Natalie Silulu, and
Bornstein) paid $27,360.00 in tuition; a $60.00 Community Service Fee; a
$307.00 Student Services Fee; and a $219.00 Health & Wellness Fee for the
spring semester of 2020. They also paid an annual Sports Pass Fee of
$130.00 at the beginning of the 2019-2020 academic year. The graduate
students (Cox and Tran) paid tuition that “differs based on degree and course
of study” (e.g., $17,568.00 for the School of Social Work), see id. ¶ 111, and
fees that “vary based on program of study” (e.g., $378.00 for the medical
sciences program), see id. ¶ 112.
3
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attendance requirements. For the first half of the semester, they attended
their classes in-person as specified in these documents. On March 11, 2020,
however, BU informed students “that classes would transition to online-only
classes for at least a month, from March 16, 2o20 through April 13, 2020.”
Id. ¶ 117. Less than a week later, BU notified students “that the remainder of
the semester would be limited to online only [instruction] and that students
. . . would be requested to vacate campus residential facilities” by March 22,
2020. Id. ¶ 118. BU closed many of its on-campus resources (e.g., the Fitness
& Recreation Center) at the same time it closed the residential facilities and
dramatically curtailed the services and activities offered at others (e.g., the
Student Services and Health and Wellness centers). Plaintiffs did not have
access to these shuttered services at any point during the remainder of the
semester.
On April 3, 2020, BU agreed to refund a prorated portion of students’
room and board fees dating from the March 22, 2020 closing of the
residential facilities. It refused, however, to offer students a refund for
tuition or any other semester fees. Plaintiffs seek through this putative class
action to obtain a refund for a portion of these payments. They assert three
claims on behalf of “[a]ll people who paid BU tuition, fees and/or room and
board for in-person educational service, programs, access, and room and
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board that BU failed to provide during the Spring Term, and whose tuition
and/or fees have not been refunded”: breach of an express contract (Count
I); breach of an implied contract (Count II); and unjust enrichment (Count
III). Id. ¶ 147.
DISCUSSION
“To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). Two basic principles guide the
court’s analysis. “First, the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions.”
Iqbal, 556 U.S. at 678. “Second, only a complaint that states a plausible claim
for relief survives a motion to dismiss.” Id. at 679. A claim is facially
plausible if its factual content “allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. at 678.
a. Counts I and II, breach of contract
Counts I and II assert claims for breach of contract (express and
implied, respectively) relative to the payment of tuition and fees for the

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Spring semester of 2020.5 “Under Massachusetts law, a breach of contract
claim requires the plaintiff to show that (1) a valid contract between the
parties existed, (2) the plaintiff was ready, willing, and able to perform,
(3) the defendant was in breach of the contract, and (4) the plaintiff
sustained damages as a result.” Bose Corp. v. Ejaz, 732 F.3d 17, 21 (1st Cir.
2013), citing Singarella v. City of Boston, 342 Mass. 385, 387 (1961).
BU argues that plaintiffs have failed to state a claim because they have
articulated no legal basis for any contractual right to in-person instruction.
Plaintiffs respond that the contractual right to in-person instruction derives
from their payment of tuition, which purportedly gave them the opportunity
to register for courses, and from representations in BU’s course registration
materials, which implied that plaintiffs would receive traditional, face-toface instruction at physical locations on campus for each of the courses for
which they registered. Drawing all inferences in plaintiffs’ favor, the court
cannot, as a matter of law, say that no student could have reasonably

The court is not convinced that plaintiffs’ contract claim is a disguised
educational malpractice claim, as BU implies. The SCAC appears to
challenge the fact of the switch from in-person to online instruction, not the
quality of the online education BU provided. See Salerno v. Florida S. Coll.,
2020 WL 5583522, at *5 (M.D. Fla. Sept. 16, 2020). And while it is possible
that the measure of damages for this alleged breach will so inextricably
implicate the issue of quality as to render the claim non-actionable, the court
needs more information before it can make an informed judgment.
5

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expected that paying the tuition charged for the Spring semester of 2020 and
registering for on-campus courses would entitle them to in-person
instruction. See Bleiler v. Coll. of Holy Cross, 2013 WL 4714340, at *15 (D.
Mass. Aug. 26, 2013) (“When interpreting contracts between students and
their academic institutions, under Massachusetts law courts employ the
standard of reasonable expectation — what meaning the party making the
manifestation, the university, should reasonably expect the other party to
give it.” (internal quotation marks omitted)), quoting Schaer v. Brandeis
Univ., 432 Mass. 474, 478 (2000). The court needs the benefit of further
factual development of the contractual claims to resolve the issue on the
merits. 6 The court accordingly denies the motion to dismiss the portions of
Counts I and II premised on payment of tuition.
The portions of Counts I and II premised on the failure to provide
access to on-campus facilities and resources present a closer question.
Plaintiffs allege that their payment of certain fees entitled them to access the

Other documents unavailable to the court at the motion to dismiss
stage, for example, may undercut the reasonableness of any expectation of
in-person instruction.
In a similar vein, review of the specific
representations BU made during the billing and course registration
processes (the court has not yet seen the documents relevant to these
processes) may reveal that no student could have reasonably expected
payment of tuition and fees and registration for classroom courses to entitle
him or her to in-person instruction and access to on-campus facilities and
resources.
7
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referenced facilities and services.

To assess the parties’ reasonable

expectations, the court turns to the descriptions provided by BU for each fee.
BU describes the fees in general terms of “support[ing]” programs or
“offset[ting] costs.” SCAC ¶¶ 100, 102, 104. But see id. ¶¶ 6, 108 (noting that
students pay the Sports Pass fee in exchange for “admission to all home
events for ice hockey, basketball, lacrosse and soccer”). While such broad
language would ordinarily weigh against a finding of a contractual right to
access any particular on-campus facilities or resources, the court finds it
significant that the descriptions in this case also refer to specific activities
occurring at specific locations (e.g., “services at the George Sherman Union,
East Campus Student Service Center, Residence Halls and other such
student support spaces,” or operations at the “student Health Services clinic
at 881 Commonwealth Avenue as well as the Fitness & Recreation Center and
their satellite operations”), and that BU “dramatically curtailed” or no longer
provided these activities after March 22, 2020. Id. ¶¶ 100-108. Under the
circumstances, the court cannot say, as a matter of law, that plaintiffs could
not have reasonably expected that their payment of mandatory fees would
grant them access to at least some of the on-campus facilities and resources
shut down by BU on March 22, 2020. Further factual development is needed
to resolve the issue on the merits. The court will therefore deny the motion
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to dismiss the portions of Counts I and II premised on the failure to provide
access to on-campus facilities and resources.
Turning to the remaining aspect of plaintiffs’ contract claims – the
portions seeking a refund on room and board costs for the week between
March 15, 2020 and March 22, 2020 – the court determines that plaintiffs
have not shown any plausible entitlement to relief. BU does not appear to
dispute that it had a contractual obligation to provide housing for students
during this week. Instead, it asserts that plaintiffs have not shown any
breach of the referenced obligation.

The court agrees.

BU may have

encouraged its students vacate housing “sooner [than March 22, 2020] if
possible,” but it did not require any student to vacate on-campus housing
prior to this date. See SCAC ¶ 141. And the court declines to find that
encouragement alone, without any indication BU acted to prevent plaintiffs
from returning to their housing during the relevant period, is sufficient to
establish constructive eviction. The court accordingly grants the motion to
dismiss the portions of Counts I and II premised on the failure to provide
room and board during the week between March 15, 2020 and March 22,
2020.

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b. Count III, unjust enrichment
Count III asserts a claim of unjust enrichment. To establish unjust
enrichment, a plaintiff must show (1) “she conferred a benefit upon the
defendant,” (2) “the defendant accepted the benefit,” and (3) “the
defendant’s retention of the benefit would be inequitable without payment
for its value.” Reed v. Zipcar, Inc., 883 F. Supp. 2d 329, 334 (D. Mass. 2012).
BU argues that plaintiffs cannot, as a matter of law, state a claim for
unjust enrichment because they have an adequate alternative remedy
available, namely, a breach of contract action. See Shaulis v. Nordstrom,
Inc., 865 F.3d 1, 16 (1st Cir. 2017) (noting that “a party with an adequate
remedy at law cannot claim unjust enrichment”). BU, however, disputes the
existence of any contract between the parties requiring in-person instruction
or access to on-campus facilities and resources, and plaintiffs plead unjust
enrichment only to the extent the parties do not have a valid contract on
these grounds. It would thus be inappropriate for the court to find plaintiffs
limited to a contractual remedy at this juncture. See Lass v. Bank of Am.,
N.A., 695 F.3d 129, 140-141 (1st Cir. 2012).
BU alternatively suggests that plaintiffs have failed to establish the
existence of unjust circumstances warranting application of an equitable
remedy. The court agrees as to the portions of plaintiffs’ claim premised on
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the failure to provide room and board during the week of March 15, 2020
through March 22, 2020. As noted above, plaintiffs have not sufficiently pled
that they were constructively evicted from their housing during this period,
and they do not assert any other basis to find the existence of unjust
circumstances. The court accordingly dismisses these portions of Count III.
The court declines to dismiss the remaining portions of Count III,
however. Unjustness is “a quality that turns on the reasonable expectations
of the parties.” See Metro. Life Ins. Co. v. Cotter, 464 Mass. 623, 644 (2013),
quoting Glob. Invs. Agent Corp. v. Nat’l Fire Ins. Co., 76 Mass. App. Ct. 812,
826 (2010). Here, plaintiffs allege that they reasonably expected to receive
in-person instruction and access to on-campus facilities and resources in
return for payment of tuition and fees and that BU failed to provide these
services. Because the court cannot say, as a matter of law, that no reasonable
juror taking these allegations as true could determine that BU’s failure to
refund tuition and fees was unjust under the circumstances, the court
declines to dismiss the portions of Count III premised on the failure to
provide in-person instruction or access to on-campus facilities and
resources.

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ORDER
For the foregoing reasons, the motion to dismiss is ALLOWED in part
and DENIED in part. Specifically, the court dismisses the portions of Counts
I, II, and III premised on the failure to provide room and board for the week
between March 15, 2020 and March 22, 2020. The portions of Count I, II,
and III premised on the failure to provide in-person instruction and the
closure of on-campus facilities and resources, however, survive defendant’s
motion.
SO ORDERED.
/s/ Richard G. Stearns___ _____
UNITED STATES DISTRICT JUDGE

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