Soueidan v. St. Louis University

Filing 18

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that Saint Louis University's Motion to Dismiss Plaintiffs Complaint (ECF No. 14 ) is GRANTED. An appropriate Judgment is filed herewith. Signed by District Judge Ronnie L. White on 4/27/2018. (NEP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

AHMED SOUEIDAN,

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Plaintiff,

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V.

SAINT LOUIS UNIVERSITY,
Defendant.

No.4:17-CV-2777RLW

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MEMORANDUM AND ORDER
This matter is before the court on Saint Louis University's Motion to Dismiss Plaintiffs
Complaint (ECF No. 14). This matter is fully briefed and ready for disposition.
BACKGROUND 1
Plaintiff Ahmed Soueidan ("Soueidan") was enrolled as a doctoral student at Saint Louis
University ("SLU") in the Parks College of Engineering, Aviation and Technology in 2012.
(Complaint ("Compl."), ECF No. 1, ili!l, 7). SLU represented to Soueidan that he would earn his
Ph.D. in mechanical aerospace engineering in four years. (Compl., i!8). Soueidan met with the
department chair in August 2012, and together they drafted a plan for Soueidan to graduate with
his doctoral degree in four years. (Compl., i!9). Soueidan, however, was unable to find a Ph.D
advisor who had research or funding to supervise his graduate studies.

(Compl., ill 0).

In

December 2013, Professor Raymond Lebeau ("Lebeau") agreed to act as Soueidan's Ph.D.
1

In deciding a motion to dismiss under Rule 12(b)(6), a court assumes all facts in the complaint
to be true and construes all reasonable inferences most favorably to the complainant. US. ex rel.
Raynor v. Nat'l Rural Utilities Co-op. Fin., Corp., 690 F.3d 951, 955 (8th Cir. 2012); Eckert v.
Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008).

advisor. (Compl., ~12). Lebeau indicated that he could get Soueidan through the program in two
more years, even though he had no research or funding for him. (Compl., ~12). Due to Lebeau's
uncertainty regarding the requisite qualifying examination for Soueidan, Lebeau referred
Soueidan to the SLU Graduate Student Handbook ("the Handbook"). (Compl.,

~13).

Professor

Lebeau later told Soueidan to disregard the Handbook. (Id.).
In August 2014, the graduate coordinator, graduate programs assistant, department chair
(who drafted Soueidan's plan of study), and several professors within the department, left SLU
simultaneously. (Compl.,

~14).

By August 2015, the graduate programs' assistant and the Dean

of the College of Engineering left their positions. (Id.). As of then, Soueidan had completed ten
graduate-level courses to fulfill the course credits requirement for his Ph.D., as stated in the
Handbook. (Id.).
In June 2015, Lebeau told Soueidan that he needed to attend a conference to prepare for
his qualifying examination. Lebeau and Soueidan attended the AIAA SciTech 2016 conference
in San Diego, California, where Soueidan presented his thesis work. (Compl.,

~15).

In May

2016, Soueidan met with the graduate coordinator and Lebeau to discuss preparing for
Soueidan's qualifying examination.

(Compl.,

~16).

A few months later, after Soueidan's

practice examination, Lebeau told Soueidan that two of the committee members said Soueidan
would not pass his examination. (Compl.,

~16).

A third committee member said he would have

passed Soueidan. (Compl., ~16).
In August 2016, Soueidan took the actual qualifying examination. (Compl.,

~17).

One

committee member told Soueidan before the examination that he did not follow the guidelines
for writing his paper and questioned his preparedness for the examination. (Id.) After Soueidan
did not pass the examination, Soueidan was instructed to take another written examination and

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perform additional course work. (Compl., if18). In the fall of 2016, Soueidan downgraded to a
Master's degree after over four years in the Ph.D. program. (Compl., ifl 9).
Soueidan refers to several sections of the Handbook that he claims were not followed
during his matriculation through the Ph.D. program:
•

"You should have an advisor assigned within the first few weeks of classes
starting." (Compl., if27).

•

Students are to meet with their advisor in January to complete their Annual
Student Review. This review provides an opportunity to "have a review of [his]
work completed, create goals for the next year of studies and research, and ensure
you are staying on track for graduation." (Compl., if29).

•

For 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." (CompI., if3 l ).

The 2015-2016 SLU Graduate Education Catalog ("the Catalog") indicates that the Parks
College of Engineering has a Ph.D. program. (Compl., if22). Soueidan alleges, "[h]owever, in
practice, students who register for the SLU College of Engineering Ph.D. program are faced with
insurmountable hurdles that make it essentially impossible to actually obtain a Ph.D." (Compl.,
if34). Soueidan states that he has been damaged by nearly $200,000.00 in tuition payments, the
difference in the value of a Ph.D. over his career, and the loss of four years or more of his career.
(Compl., ifif36, 42, 43).

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DISCUSSION
I.

Standard of Review

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, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Bell Atlantic Corp., v.
Twombly, 550 U.S 544, 570 (2007). A "formulaic recitation of the elements of a cause of

action" will not suffice. Twombly, 550 U.S. at 555. "The plausibility standard is not akin to a
'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted
unlawfully." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556).
II.

Discussion

A. Educational Malpractice

Soueidan purports to allege a breach of contract claim against SLU. '"In order to make a
submissible case of breach of contract, the complaining party must establish the existence of a
valid contract, the rights of plaintiff and obligations of defendant under the contract, a breach by
defendant, and damages resulting from the breach."' Lucero v. Curators of Univ. of Missouri,
400 S.W.3d 1, 5 (Mo. Ct. App. 2013) (citing C. Am. Health Sciences Univ., Belize Med. College
v. Norouzian, 236 S.W.3d 69, 84 (Mo. Ct. App. 2007) (internal citation omitted)). Soueidan

states that he has alleged a valid contract (both express and implied).

(ECF No. 16 at 6).

Soueidan alleges that SLU, in exchange for tuition, promised Soueidan a course of study that
would yield a doctorate in mechanical and aerospace engineering. (ECF No. 16 at 7). The
alleged terms of the contract were derived from SLU's Handbook, Catalog, "policies and
procedures," and the specific course of study SLU's Department chair drafted in August of 2012.
(ECF No. 16 at 7). Soueidan alleged SLU breached its contract with Soueidan by

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inter alia, (1) failing to timely provide the services of a Ph.D. advisor to ...
Soueidan within the first few weeks of him starting the program pursuant to the
official policy to set forth in its handbook; (2) failing to timely provide an advisor
to meet with ... Soueidan in January each year to compete an Annual Student
Review altering . . . Soueidan as to his progress or the timing for other necessary
requirements to complete his degree; (3) failing to timely schedule the Qualifying
Examination; and (4) failing to award ... Soueidan the doctorate degree he was
promised after . . . Soueidan complied with Defendant's directive and completed
the course of study laid out by SLU.
(ECF No. 16 at 7 (citing Compl., ifif37-39)).
Soueidan also attempts to assert a claim for breach of the contract of good faith and fair
dealing.

Missouri law implies a duty of good faith and fair dealing in every contract.

Countrywide Servs. Corp. v. SIA Ins. Co., 235 F.3d 390, 393 (8th Cir. 2000) (citing Acetylene
Gas Co. v. Oliver, 939 S.W.2d 404, 410 (Mo. Ct. App. 1996); Slone v. Purina Mills Inc., 927
S.W.2d 358, 368 (Mo. Ct. App. 1996)). This implied duty "prevents one party to a contract to
[sic] exercise a judgment conferred by the express terms of the agreement in such a manner that
evades the spirit of the transaction or denies the other party the expected benefit of the contract."

Acetylene Gas, 939 S.W.2d at 410. Put another way, "[i]t is the duty of one party to a contract to
cooperate with the other to enable performance and achievement of the expected benefits."

Slone, 927 S.W.2d at 368. Soueidan asserts that SLU breached the contract of good faith and
fair dealing when it failed to provide the promised course of study and resources necessary to
complete his Ph.D. (ECF No. 16 at 8).
Soueidan asserts that his claims are not barred by the educational malpractice doctrine
because he has alleged that SLU failed to provide specifically promised educational services. In
tum, SLU maintains that all of Plaintiffs claims invoke the educational malpractice doctrine and
require dismissal.
In Gillis v. Principia Corporation, the Eighth Circuit recognized that Missouri has
adopted the educational malpractice doctrine.
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Id., 832 F.3d 865, 872 (8th Cir. 2016).

"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, 400 S.W.3d at 8 (alteration in original)
(quoting Miller v. Loyola Univ. of New Orleans, 829 So.2d 1057, 1061 (La. Ct. App. 2002)).
"Missouri ... has found that educational malpractice claims are not cognizable because there is no
duty." Dallas Airmotive, Inc. v. FlightSafety Int'!, Inc., 277 S.W.3d 696, 699 (Mo. Ct. App.
2008) (citations omitted). "In refusing to recognize a claim for educational malpractice,
[Missouri courts have] emphasized that it is not [the court's] place to micromanage a university's
daily operations." Lucero, 400 S.W.3d at 8 (citing Dallas Airmotive, 277 S.W.3d at 700). A
breach-of-contract claim that "'raises questions concerning the reasonableness of the educator's
conduct in providing educational services' ... 'is one of educational malpractice,' which Missouri
courts have recognized as a non-cognizable claim." Id. (quoting Dallas Airmotive, 277 S.W.3d at
700).
To determine whether Soueidan has stated a breach-of-contract claim, the Court must
necessarily identify the promises that Soueidan relies upon and determine whether these
purported promises create rights and obligations on SLU's behalf. Gillis, 832 F.3d at 872. The
Court must decide whether the trier of fact would have to inquire into the nuances of educational
processes and theories in order to determine whether the alleged representations were false.

Blake v. Career Educ. Corp., No. 4:08CV00821ERW, 2009 WL 2567011, at *5 (E.D. Mo. Aug.
18, 2009). The Court holds that, under Soueidan's claims, it would have 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. Likewise, the Court
would have to analyze whether SLU breached its contract by "failing to award ... Soueidan the

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Ph.D. degree he was promised after completing all directives and 5 years of requisite
coursework." (ECF No. 16 at 13 (citing (Compl., if39)). In particular, this allegation would
require the Court to address not only the quality of the Ph.D. program but also whether Soueidan
comprehensively and adequately completed all of his coursework. The Court holds that such an
examination would ultimately require the Court to become entangled in a disputes "over the
pedagogical methods employed," Dallas Airmotive, 277 S.W.3d at 700, and would "involve an
inquiry into the nuances of educational processes and theories." Blake, 2009 U.S. Dist. LEXIS
72167, at *6, 2009 WL 2567011; Love v. Career Educ. Corp., No. 4:11CV1585 JAR, 2012 WL
1684572, at *2 (E.D. Mo. May 15, 2012). As a result, the Court holds that Soueidan's claims are
barred by the educational malpractice doctrine.

B. Contractual Promises Allegedly Relied Upon by Soueidan

As another basis for dismissing this action, the Court holds that Soueidan's breach of
contract claim and breach of the covenant of good faith and fair dealing claims cannot stand
based upon the timing of this action and of the alleged discrete, contractual promises relied upon
by Soueidan. That is, SLU claims that Soueidan has failed to allege and the Court "cannot
identify any 'contractual' promise that [SLU] has failed to honor." Nickel v. Stephens Coll., 480
S.W.3d 390, 397 (Mo. Ct. App. 2015). Soueidan has alleged that "[b]y admitting ... Soueidan
and accepting his tuition payments, Defendant has an express and implied contract with ...
Soueidan in connection with rights explicitly guaranteed by SLU pursuant to the Handbook and
also the Catalog." (Compl., if38; see also ECF No. 16 at 8 (Soueidan specifically alleged that
"both an implied and express contract was formed when he paid his tuition and fees in return for
educational services")). Soueidan was admitted and accepted into the Ph.D. program in 2012,
which is when the alleged contract would have been formed. Soueidan bases his claims upon

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specific statements in the Handbook and Catalog. Soueidan, however, alleges that he received
all of these alleged promises after his 2012 contract with SLU was formed. He first reviewed the
Handbook in December 2013. Similarly, he bases his claims on promises contained in the 20152016 Catalogue. Thus, Soueidan could not have relied upon these promises in the Handbook and
Catalog when he emolled in the Ph.D. program in 2012.

Soueidan's claims for breach of

contract and for breach of the covenant of good faith and fair dealing fail as a matter of law
because he has failed to identify any promises that he relied upon when he emolled in 2012.
C. Fraudulent Misrepresentation
Under Missouri law, to state a claim for fraudulent misrepresentation, a plaintiff must
plead: "(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its
falsity or ignorance of its truth; (5) the speaker's intent that it should be acted on by the person in
the manner reasonably contemplated; (6) the hearer's ignorance of the falsity of the
representation; (7) the hearer's reliance on the representation being true; (8) the hearer's right to
rely thereon; and (9) the hearer's consequent and proximately caused injury. A plaintiffs failure
to establish any one of the essential elements of fraud is fatal to recovery." Arthur v. Medtronic,
Inc., 123 F. Supp. 3d 1145, 1149 (E.D. Mo. 2015) (citing Renaissance Leasing, LLC v. Vermeer
Mfg. Co., 322 S.W.3d 112, 131-32 (Mo. 2010)).

SLU claims that Soueidan cannot be permitted to restate his breach of contract claim as a
fraud claim. (ECF No. 15 at 12-13 (citing RehabCare Grp. E., Inc. v. Future Focus of U-City,
LLC, No. 4:12CV1509 JCH, 2012 WL 5994295, at *3 (E.D. Mo. Nov. 30, 2012)). SLU asserts

that the source of the duty that Soueidan alleges SLU violated under his fraud claim "arises from
what Soueidan pleads is part of his contract with the University." (ECF No. 15 at 13). Soueidan
pleaded in his fraud claim that "the 2015-2016 SLU Graduate Education Catalog falsely

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indicates on page 111 that students may obtain a Ph.D. degree there." (Compl., il52). SLU
maintains that "[b ]ecause Soueidan alleges that the source of his fraud claim (i.e. the purported
false statement that students may obtain a Ph.D. degree at the University) is rooted in the Catalog
that he pleads is part of the contract, his fraud claim fails as a matter of law." (ECF No. 15 at
13).
Soueidan claims that he has properly identified the relevant "who, what, when where, and
how" of the alleged fraud.

Specifically, Soueidan states that he alleged that Defendant's

representations of a Ph.D. program in mechanical and aerospace engineering in its Catalog were
false.

(ECF No. 16 at 9 (citing Compl., i152)).

Soueidan further states that SLU made the

representations with the intent that Soueidan would rely on its representations when deciding
whether to attend SLU and pay tuition. (Comp., ili153-56).
The Eighth Circuit has held that "[a] fraud claim independent of the contract is
actionable, but it must be based upon a misrepresentation that was outside of or collateral to the

contract, such as many claims of fraudulent inducement. That distinction has been drawn by
courts applying traditional contract and tort remedy principles." AKA Distrib. Co. v. Whirlpool

Corp., 137 F.3d 1083, 1086 (8th Cir.1998) (citing Bridgestone/Firestone, Inc. v. Recovery Credit
Servs., Inc., 98 F.3d 13, 19-20 (2d Cir.1996); Kee v. Nat'l Reserve Life Ins. Co., 918 F.2d 1538,
1543 (1 lth Cir.1990); OHM Remediation Servs. Corp. v. Hughes Envtl. Sys., Inc., 952 F.Supp.
120, 122-23 (N.D.N.Y.1997)) (emphasis added); Compass Bankv. Eager Rd. Assocs., LLC, 922
F. Supp. 2d 818, 827 (E.D. Mo. 2013). The Court holds that Soueidan has 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. As a result, the
Court holds that Soueidan's fraud claim fails as a matter oflaw.

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D. Leave to Amend
As a last ditch effort, Soueidan argues that Rule 15(a) requires this Court allow him to
amend his Complaint, rather than dismiss it in absence of substantial reasons. (ECF No. 16 at
14). SLU asks this Court to deny Soueidan's request for leave to amend because amendment
would be futile. (ECF No. 17 at 10).

The Court denies Soueidan's request to file an amended complaint because he has failed
to provide a proposed amendment along with his request. "Although leave to amend 'shall be
freely given when justice so requires,' see Fed.R.Civ.P. 15(a), plaintiffs do not have an absolute
or automatic right to amend." US. ex rel. Lee v. Fairview Health Sys., 413 F.3d 748, 749 (8th
Cir.2005). "[I]n order to preserve the right to amend the complaint, a party must submit the
proposed amendment along with its motion." Clayton v. White Hall Sch. Dist., 778 F.2d 457, 460
(8th Cir.1985). "The Eighth Circuit has repeatedly held that district courts do not abuse their
discretion in denying leave to amend where the plaintiff did not file a motion for leave to amend
and submit a proposed amended complaint, and merely asked for leave to amend in its response
to a motion to dismiss." Tracy v. SSM Cardinal Glennon Children's Hosp., No. 4:15-CV-1513
CAS, 2016 WL 3683000, at *16 (E.D. Mo. July 12, 2016) (citing Geier v. Missouri Ethics

Comm'n, 715 F.3d 674, 678 n.4 (8th Cir. 2013); Minneapolis Firefighters' ReliefAss'n v. MEMC
Electronic Materials, Inc., 641 F.3d 1023, 1030 (8th Cir. 2011); In re 2007 Novastar Financial,
Inc., Secs. Litig., 579 F.3d 878, 884-85 (8th Cir. 2009); Clayton, 778 F.2d at 460). Soueidan has
failed to file a motion for leave to file an amended complaint and has failed to provide a
proposed amended complaint. Because Soueidan has failed to follow this critical procedural
step, his request is denied. In re 2007 Novastar Fin. Inc., Sec. Litig., 579 F.3d 878, 884 (8th Cir.
2009).
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Accordingly,
IT IS HEREBY ORDERED that Saint Louis University's Motion to Dismiss Plaintiffs

Complaint (ECF No. 14) is GRANTED.
An appropriate Judgment is filed herewith.

Dated this 27th day of April, 2018.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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