Robbe v. Webster University
OPINION MEMORANDUM AND ORDER re: 9 MOTION to Dismiss Case filed by Defendant Webster University motion is IT IS HEREBY ORDERED that Defendants Motion to Dismiss [Doc. No. 9 ] is DENIED. Signed by District Judge Henry Edward Autrey on 03/25/2015. (CLK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
No. 4:14CV1223 HEA
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion to Dismiss. Plaintiff filed a
Response in Opposition to the Motion. Defendant filed a Reply, to which Plaintiff filed a SurReply. Suffice to say, the Motion has been more than fully briefed. For the reasons set forth
below, the Motion to Dismiss will be denied.
Facts and Background 1
Plaintiff Lily Robbe (“Plaintiff”) is a foreign citizen who resides in Geneva, Switzerland.
Defendant Webster University (“Defendant”) is a non-profit corporation based in Missouri
which has academic campuses in Missouri and other locations, including Geneva. Plaintiff
graduated from Defendant’s campus in Geneva in 2010 with a Bachelor’s degree in International
Relations. Thereafter, she enrolled in Defendant’s Master’s Degree Program in the Department
of International Relations in Geneva in Fall 2010.
Before Plaintiff enrolled in the Master’s Program, Defendant’s agents and representatives
advised her that during the Program she would be able to prepare a Master’s thesis as part of her
course work and, if it was deemed passable, defend her thesis. the opportunity to prepare and
The recitation of facts is taken from Plaintiff’s Complaint and are taken as true for the purposes of this
motion. Such recitation in no way relieves any party from the necessary proof thereof in later proceedings.
defend a thesis was important to Plaintiff because her sole motivation for obtaining a Master’s
Degree was to undertake further studies in a PhD program, with the aim to pursue a desired
After maintaining a cumulative grade point average of 4.0 throughout the required
coursework for her degree program, Plaintiff enrolled in her final 6 credit Master’s thesis course
in August 2011. Plaintiff was to prepare a thesis and, when it was deemed passable by a thesis
committee, defend the thesis before the committee. Plaintiff avers that a date for a defense
meeting is only set when a thesis committee comprised of two readers deems the thesis passable.
Plaintiff’s official thesis committee was comprised of Dr. Michael Veuthey and Dr.
Sabina Donati. After Plaintiff submitted her thesis to Dr. Veuthey and Dr. Donati in April and
May 2012, the head of the Geneva campus’s International Relations Department, Dr. Alexandre
Vautravers, officially confirmed the constitution and establishment of Plaintiff’s thesis
committee in an email sent on June 11, 2012. Through emails sent on June 14 and 15, 2012, Dr.
Veuthey and Dr. Donati established July 10, 2012 at 3:30 p.m. as Plaintiff’s defense date.
Thereafter, on June 19, 2012, Dr. Veuthey requested a first draft of Plaintiff’s thesis, as
though he had never seen a draft of it. However, by that date he had already provided two sets of
comments on thesis drafts and had proposed to hold the defense meeting promptly. Plaintiff,
confused by Dr. Veuthey’s request, contacted Ron Daniel, the Academic Director, who
immediately investigated the matter, including proof from Plaintiff that she had provided her
thesis to Dr. Veuthey and Dr. Donati. Mr. Daniel promised Plaintiff that he would resolve the
situation and that she could defend her thesis as planned on July 10, 2012.
Plaintiff appeared to defend her thesis, as planned, at 3:30 p.m. on July 10, 2012.
However, the thesis committee failed and/or refused to appear at the meeting. Plaintiff
immediately went to see Mr. Daniel, who expressed surprise that the thesis committee had failed
to appear. Thereafter, Dr. Spencer emailed Dr. Donati about the matter, who then falsely stated
in her reply that she had never received any draft of Plaintiff’s thesis.
Plaintiff next went to the office of the Geneva campus’s General Director, Dr. Robert
Spencer. After Plaintiff provided Dr. Spencer with the evidence of the wrongs committed by the
thesis committee, Dr. Spencer promised to resolve the matter and asked Plaintiff not to take
Plaintiff met again with Dr. Spencer two days later, on July 12, 2012. At the meeting, Dr.
Spencer acknowledged that the thesis was officially submitted and ready for defense, and that
Plaintiff had an official, properly constituted thesis defense committee which had established a
defense date. Dr. Spencer promised Plaintiff that a new defense date would be set for midAugust 2012, and requested that Plaintiff take no further action, such as taking the matter higher
or otherwise pursuing Dr. Veuthey and Dr. Donati’s failure to co conduct the July 10, 2012
meeting. Plaintiff agreed.
On July 18, 2012, Dr. Spencer sent Plaintiff an email falsely stating that Plaintiff
incorporated neither Dr. Veuthey nor Dr. Donati’s advice into her thesis. Based on the strength
of these false statements, Dr. Spencer annulled his July 12 promise to set a new defense date for
mid-August. Dr. Spencer encouraged Plaintiff to take additional courses at Webster University in
Geneva, at Plaintiff’s expense.
Plaintiff appealed the matter to the Dean’s office of the St. Louis, Missouri campus.
However, the Dean’s office attempted to cover the wrongs that occurred in Geneva, and did not
honor Plaintiff’s demands.
Plaintiff filed this action on July 8, 2014, alleging violations of the Missouri
Merchandising Practices Act, breach of the duty of good faith and fair dealing, breach of
contract, and promissory estoppel. Plaintiff seeks damages, attorneys’ fees, and a declaratory
judgment that she was entitled to a defense meeting under the terms established by the parties.
A complaint must set out a “short and plain statement of [a plaintiff’s] claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To test the legal sufficiency of a
complaint, a defendant may file a motion to dismiss for failure to state a claim upon which relief
can be granted. Fed. R. Civ. P. 12(b)(6). “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 Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). In other words, a plaintiff must plead facts from which the court can draw
a “reasonable inference” of liability. Iqbal, 556 U.S. at 678. The complaint need not contain
“detailed factual allegations” but must contain more than mere “labels and conclusions, and a
formulaic recitation of the elements” or “naked assertion[s]” devoid of “further factual
enhancement.” Twombly, 550 U.S. at 555, 557. An “unadorned, the-defendant-unlawfullyharmed-me accusation” will not suffice. Iqbal, 556 U.S. at 678. “While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations,” id. at 679,
which “raise a right to relief above the speculative level,” Twombly, 550 U.S. at 555.
Under Twombly and Iqbal, “[a] plaintiff . . . must plead facts sufficient to show that her
claim has substantive plausibility.” Johnson v. City of Shelby, 135 S. Ct. 346, 347 (2014). If the
plaintiff “inform[s] the [defendant] of the factual basis for [her] complaint, [she] [is] required to
do no more to stave off threshold dismissal for want of an adequate statement of [her] claim.” Id.
In evaluating a motion to dismiss, the court can “choose to begin by identifying pleadings
that, because they are no more than conclusions, are not entitled to the assumption of truth.”
Iqbal, 556 U.S. at 679. Turning to any “well-pleaded factual allegations,” the court should
“assume their veracity and then determine whether they plausibly give rise to an entitlement to
relief.” Id. The court may only consider the initial pleadings. Brooks v. Midwest Heart Grp., 655
F.3d 796, 799 (8th Cir. 2011).
Defendant argues that Plaintiff has failed to state a claim for violation of the Missouri
Merchandising Practices Act (“MMPA”), breach of contract, breach of the duty of good faith and
fair dealing, and promissory estoppel. Defendant further argues that Plaintiff’s claims should be
considered noncognizable educational malpractice claims. Because the Court rejects Defendant’s
arguments at the pleading stage, the Court will deny Defendant’s Motion to Dismiss.
Missouri Merchandising Practices Act
Defendant contends that Plaintiff failed to state a claim under the MMPA because the
alleged conduct took place in Switzerland; she failed to plead her claim with particularity
required of fraud allegations; and that applying the MMPA to conduct in Switzerland would
constitute a violation of the commerce clause.
The MMPA prohibits “[t]he act, use or employment by any person of any deception,
fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment,
suppression, or omission of any material fact in connection with the sale or advertisement of any
merchandise in trade or commerce or the solicitation of any funds for any charitable purpose . . .
in or from the state of Missouri.” R.S. Mo. § 407.020.1. The MMPA provides a private right of
action for “[a]ny person who purchases or leases merchandise primarily for personal, family or
household purposes and thereby suffers an ascertainable loss of money or property, real or
personal, as a result of the use or employment by another person of a method, act or practice
declared unlawful by section 407.020.” R.S. Mo. § 407.025.1. Thus, to prevail on her MMPA
claim, Plaintiff must show that she: “(1) [purchas]ed merchandise from defendant; (2) for
personal, family, or household purposes; and (3) suffered an ascertainable loss of money or
property; (4) as a result of an act declared unlawful by section 407.020.” Chochorowski v. Home
Depot U.S.A., Inc., 295 S.W.3d 194, 198 (Mo. Ct. App. 2009).
The Court rejects Defendants arguments regarding the MMPA. The alleged conduct is
clearly geographically encompassed by the MMPA as Plaintiff alleged that “Webster University
supervises and regulates its foreign campuses from its home campus in Webster Groves,
Missouri.” [Doc. No. 1 at ¶ 3]. Plaintiff’s complaint meets the heightened pleading standard
required by Rule 9(b) of the Federal Rules of Civil Procedure in that she extensively detailed the
factual events underpinning her claims—including the names of relevant individuals, as well as
the dates times, and locations of key events. Finally, the case law Defendant cites for its
commerce clause argument is wholly inapposite. Accordingly, the Court finds that Plaintiff has
stated a claim for a violation of the MMPA.
Breach of Contract
Plaintiff alleges that her July 12, 2012 meeting with Dr. Spencer produced a contract,
through which he promised to set a new defense date in mid-August, and Plaintiff promised that
she would not “take the matter higher, or otherwise pursue the failure to conduct the July 10,
2012 meeting.” [Doc. No. 1 at ¶ 60]. Defendant contends that Plaintiff’s allegations are too
vague to properly aver a meeting of the minds between Dr. Spencer and Plaintiff; that any
alleged agreement fails for want of a specific date for the August meeting; that Plaintiff’s actions
in refraining from further pursuing the matter did not constitute valuable consideration; and that
the alleged oral contract is unenforceable under the statute of frauds.
“To make a submissible case for breach of contract claim, a plaintiff must allege and
prove: (1) a mutual agreement between parties capable of contracting; (2) mutual obligations
arising out of the agreement; (3) valid consideration; (4) part performance by one party; and (5)
damages resulting from the breach of contract.” Intertel, Inc. v. Sedgwick Claims Mgmt. Servs.,
204 S.W.3d 183, 203 (Mo. Ct. App. 2006) (citing Norber v. Marcotte, 134 S.W.3d 651, 658
(Mo. Ct. App. 2004)).
The Court finds that Plaintiff’s allegations are not too vague to allege a meeting of the
minds between Dr. Spencer and Plaintiff. Defendant’s arguments that Plaintiff failed to
adequately allege any conditions precedent Plaintiff would need to take prior to the August
meeting and what specific further action Plaintiff promised to refrain from taking are unavailing.
Accepting Plaintiff’s allegations as true—as the Court must, Iqbal, 556 U.S. at 679—the terms of
the alleged contract were quite clear: Dr. Spencer promised to set a date in mid-August for
Plaintiff’s thesis defense, and Plaintiff promised not to pursue the matter further. Per the alleged
agreement, Plaintiff did not need to meet any conditions precedent before the August meeting,
and the actions she promised to refrain from taking involved bringing the matter to a level of
authority higher than Dr. Spencer. Further, the fact that Plaintiff alleges only that she and Dr.
Spencer agreed that Dr. Spencer would set a date in mid-August for her thesis defense, but did
not agree to an exact date, is not enough to derail her claim at the pleadings stage. Plaintiff
alleges that Dr. Spencer promised to set a date for the thesis defense. This allegation is sufficient
to state a claim.
With regard to whether Plaintiff’s actions in refraining from pursuing the matter further
constitutes valuable consideration, the Court notes that “[c]onsideration for a simple contract
may consist of a party refraining from doing anything he has a legal right to do.” State ex rel.
Goldberg v. Barber & Sons Tobacco, Inc., 649 S.W.2d 859, 862 (Mo. 1983) (citing Wells v.
Hartford Acc. & Indem. Co., 459 S.W.2d 253, 260 (Mo. 1970)); see also Duvall v. Duncan, 341
Mo. 1129, 1136 (Mo. 1937) (“[A] waiver of any legal right, at the request of another party, or
any benefit to the defendant, or detriment to the plaintiff, or any act done at the defendant's
request and for his convenience, or to the inconvenience of the plaintiff, would be sufficient to
support a promise by the defendant.”) (internal citation and quotation marks omitted). Plaintiff
clearly had a legal right to pursue the cancellation of her scheduled July thesis defense with an
authority higher than Dr. Spencer, but refrained from doing so. Thus, Plaintiff has pled that he
gave valid consideration.
Finally, Defendant contends that, because the statute of limitations for contract claims in
Missouri is five years, Plaintiff could not have fully performed her promise—refraining from
pursuing the matter past Dr. Spencer—within one year and, therefore, it is an unenforceable oral
contract under the statute of limitations. [Doc. No. 10 at 9] [citing R.S. Mo. §§ 432.010,
516.120]. However, as Plaintiff notes in her Response, “the agreement was that the meeting
occur within one month (not one year).” [Doc. No. 13 at 10]. Thus, Plaintiff has alleged the
existence of an oral contract that could be fully performed within a year and is therefore not
rendered unenforceable by the statute of limitations.
Defendant contends that Plaintiff failed to state a claim for promissory estoppel because
she failed to allege detrimental reliance on a promise made by Defendant. Because the Court
finds that Plaintiff has adequately alleged detrimental reliance, the Court will deny Defendant’s
Motion as to this claim.
“To state a claim of promissory estoppel, a plaintiff must allege a promise made by the
defendant; foreseeable, detrimental reliance on the promise by the plaintiff; and that an injustice
would occur unless the promise is enforced.” Jamison Elec., LLC v. Dave Orf, Inc., 404 S.W.3d
896, 898 (Mo. Ct. App. 2013) (citing Clark v. Wash. Univ., 906 S.W.2d 789, 792 (Mo. Ct. App.
Plaintiff asserts that she pled detrimental reliance in the form of: (1) paying tuition for her
degree program to participate in the thesis opportunity which Defendant sabotaged through
clearly false statements; (2) giving her time and effort and opportunity cost to produce her thesis,
and dealing with bad faith misrepresentations via a St. Louis appeal process; (3) incurring
incidental and consequential damages associated with her lengthy appeal and the filing of this
lawsuit after the St. Louis campus further and covered up the clearly fantastical misstatements
used to annul the meetings; and (4) being deprived of the alleged benefits of her degree program.
The Court finds that Plaintiff’s allegations that she paid tuition for the opportunity to
defend a thesis if it were deemed passable, coupled with her allegation that the setting of a thesis
defense date by definition means that the thesis has been deemed passable, and her allegation
that she was deprived of the opportunity to so defend her thesis after a defense date was set, are
sufficient allegations of detrimental reliance. Accordingly, the Court finds that Plaintiff has
stated a claim for promissory estoppel and therefore will deny Defendant’s Motion as to this
claim. See Twombly, 550 U.S. at 557 (“And, of course, a well-pleaded complaint may proceed
even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery
is very remote and unlikely.”) (internal citation and quotation marks omitted).
Good Faith Fair Dealing
Defendant argues that the Court should dismiss Plaintiff’s claim for breach of the duty of
good faith and fair dealing because “no enforceable contracts exist between the parties.” [Doc.
No. 10 at 9]. Because the Court has found that Plaintiff sufficiently pled the existence of a
contract created between herself and Dr. Spencer at the July 12, 2012 meeting—and because a
contract between Plaintiff and Webster University in which tuition was exchanged for
educational services clearly existed—the Court will deny Defendant’s Motion to Dismiss as to
Defendant argues that Plaintiff’s claims amount to claims for educational malpractice,
which are not recognized under Missouri law, because the courts “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.” See Dallas Airmotive, Inc. v. FlightSafety Int’l, 277 S.W.3d 696, 700
(Mo. Ct. App. 2008) (alteration in original) (quoting Alsides v. Brown Inst., Ltd., 592 N.W.2d
468, 472 (Minn. Ct. App. 1999)). However, the Court agrees with Plaintiff’s argument that her
allegations—that the setting of a thesis defense date signifies a determination that the thesis has
been deemed to be passable, and that Dr. Veuthey and Dr. Donati, after establishing a thesis
defense date, failed to permit Plaintiff to defend her thesis—“challenge [Defendant’s] failure to
provide the promised service, not its quality.” [Doc. No. 19 at 3].
Accordingly, the Court rejects Defendant’s argument that plaintiff’s claims should be
dismissed as noncognizable educational malpractice claims.
Defendant argues that once the claims discussed above are dismissed, Plaintiff will have
alleged no legal rights in the Complaint from which the Court could issue a declaratory
judgment. Because the Court will deny Defendant’s Motion to Dismiss as to the other counts,
Defendant’s argument for dismissing Plaintiff’s request for declaratory judgment fails.
Based on the foregoing, Defendant’s Motion to Dismiss will be denied.
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss [Doc. No. 9] is
- 10 -
Dated this 25th day of March, 2015.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
- 11 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?