Hassan v. Fordham University

Filing 42

OPINION & ORDER: re: 35 LETTER MOTION for Leave to File Second Amended Complaint addressed to Judge Kimba M. Wood from Philip L. Fraietta dated February 11, 2021 filed by Kareem Hassan. For the foregoing reasons, Plaintiff's motion for lea ve to amend is GRANTED IN PART and DENIED IN PART. Plaintiff may file a Second Amended Class Action Complaint that is consistent with this Opinion. It is further ORDERED that: 1. Plaintiff shall submit the Second Amended Class Action Complaint on or before April 16, 2021. 2. Fordham shall file an Answer on or before May 7, 2021. 3. The parties shall confer as to the next steps in this litigation. On or before May 14, 2021, the parties shall submit a joint letter to the Court, attaching a propose d Civil Case Management Plan and Scheduling Order. The parties may refer to the Court'swebsite for models of such documents. To the extent that the parties disagree as to any case management issues, the joint letter shall explain the parties 9; respective positions. 4. Part II.B of the Court's January 28, 2021 Opinion is superseded. 5. The Clerk of Court is respectfully directed to terminate the motion at ECF No. 35. SO ORDERED., ( Amended Pleadings due by 4/16/2021.) (Signed by Judge Kimba M. Wood on 4/06/2021) (ama)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------X
KAREEM HASSAN, individually and on
behalf of all others similarly situated,

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: __________________
DATE FILED: __4/6/21_______

Plaintiff,

20-CV-3265 (KMW)

-against-

OPINION & ORDER

FORDHAM UNIVERSITY,
Defendant.
--------------------------------------------------------X
KIMBA M. WOOD, United States District Judge:
On January 28, 2021, the Court granted Fordham University’s (“Fordham”) motion to
dismiss the First Amended Class Action Complaint filed by Plaintiff Kareem Hassan (“Plaintiff”).
The Court permitted Plaintiff to file a letter motion seeking leave to amend.

That motion was

filed on February 11, along with a proposed Second Amended Class Action Complaint.

For the

reasons set forth below, Plaintiff’s motion is GRANTED IN PART and DENIED IN PART.
BACKGROUND
On August 5, 2020, Plaintiff filed a First Amended Class Action Complaint (“FAC”), on
behalf of “all people who paid tuition and other fees for the Spring 2020 academic semester at
Fordham” and who “lost the benefit of the education for which they paid” after the COVID-19
pandemic caused Fordham to suspend in-person instruction and to begin holding classes “in an
online format, with no in-person instruction.”

(FAC ¶¶ 1, 12, 42, ECF No. 18.)

Plaintiff

sought relief on four grounds: breach of contract, unjust enrichment, conversion, and money had
and received.
On January 28, 2021, the Court granted Fordham’s motion to dismiss, because Plaintiff
had failed to state a claim as to each of these four grounds.

(Jan. 28 Op., ECF No. 34.)

On

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February 11, Plaintiff sought leave to amend and submitted a Proposed Second Amended Class
Action Complaint (the “Proposed SAC”). (Mot. at 1, Ex. A, ECF No. 35.)
seeks relief on two grounds: breach of contract and unjust enrichment.
77-98.)

The Proposed SAC

(Proposed SAC ¶¶

On February 26, Fordham filed a letter opposing Plaintiff’s motion and, on March 5,

Plaintiff submitted a reply.

(ECF Nos. 38, 39.)

On March 26 and March 30, respectively,

Plaintiff and Defendant submitted notices of supplemental authority.

(ECF Nos. 40, 41.)

LEGAL STANDARD
Federal Rule of Civil Procedure 15(a)(2) provides that courts “should freely give leave [to
amend] when justice so requires.”

Fed. R. Civ. P. 15(a)(2).

Courts have discretion, however,

to deny leave “for good reason, including futility, bad faith, undue delay, or undue prejudice to
the opposing party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007).
An amendment will be “futile” if it could not withstand a motion to dismiss pursuant to Rule
12(b)(6).

Pettaway v. Nat’l Recovery Sols., LLC, 955 F.3d 299, 304 (2d Cir. 2020) (quoting

Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002)); see
Panther Partners Inc. v. Ikanos Commc’ns, Inc., 347 F. App’x 617, 622 (2d Cir. 2009)
(“Granting leave to amend is futile if it appears that plaintiff cannot address the deficiencies
identified by the court and allege facts sufficient to support the claim.”).
DISCUSSION
I.

Contract Claims
A.

Standard for Pleading Breach of Contract

As an initial matter, the Court takes this opportunity to correct one portion of its January
28 Opinion.

Interlocutory orders are “subject to modification or adjustment prior to the entry of

a final judgment adjudicating the claims to which they pertain.” Grace v. Rosenstock, 228 F.3d
40, 51 (2d Cir. 2000); see Fed. R. Civ. P. 54(b).

Provided a district court has jurisdiction over a
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case, it possesses “inherent power” to reconsider interlocutory orders “when it is consonant with
justice to do so.” Grace, 228 F.3d at 51 (quoting United States v. LoRusso, 695 F.2d 45, 53 (2d
Cir. 1982)); see Chartis Seguros Mexico, S.A. de C.V. v. HLI Rail Rigging, LLC, 2015 WL
545565, at *2 (S.D.N.Y. Feb. 9, 2015) (Carter, J.) (“[A] district court also possesses the inherent
authority to sua sponte reconsider its own interlocutory orders before they become final.”).
Because the January 28 Opinion dismissed Plaintiff’s claims without prejudice and allowed
Plaintiff to seek leave to amend, the Opinion is subject to such reconsideration. See Hayden v.
Feldman, 159 F.R.D. 452, 455 n.4 (S.D.N.Y. 1995) (Sprizzo, J.) (citing Connecticut Nat. Bank v.
Fluor Corp., 808 F.2d 957, 960 (2d Cir. 1987)) (“Dismissal[s] without prejudice to the filing of
an amended complaint are not final orders . . . .”).
In the January 28 Opinion, the Court held that, in order to assert a breach of contract
claim against Fordham, Plaintiff must allege that Fordham acted arbitrarily or in bad faith.
28 Op. at 13-17.)

(Jan.

In the Reply brief, Plaintiff cites to a February 26, 2021 decision by Judge

Furman in a similar action involving Columbia University and Pace University.

In that decision,

Judge Furman pointed out that “where courts applying New York law have assessed whether an
educational institution breached a specific promise to provide discrete services – as opposed to
reviewing decisions involving academic standards – they generally have not inquired into
whether the challenged decision was arbitrary or made in bad faith.” In re Columbia Refund
Action, 2021 WL 790638, at *7 (S.D.N.Y. Feb. 26, 2021) (Furman, J.).
Reconsidering this issue sua sponte, the Court agrees with Judge Furman’s analysis.

In

its January 28 Opinion, the Court did not give full effect to the distinction in New York case law
between decisions involving “academic” judgments left largely to the judgment of educators and
those involving specific, non-academic services that a university allegedly promises to provide
through the written publications that reflect the terms of the contract between a university and its
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students.

In its January 28 Opinion, the Court held that a standard according particular

deference to a decision by an educational institution is appropriate where a “university-wide
transition to remote instruction reflects educators’ judgments as to what may have been
‘appropriate and necessary’ to [Fordham’s] continued existence.”

(Jan. 28 Op. at 15-16, 15

n.4.) Plaintiff does not challenge, however, whether Fordham’s judgment to make this
transition was appropriate.

Rather, Plaintiff alleges that the transition breached a written

promise to provide in-person educational services.

(See, e.g., Proposed SAC ¶¶ 26.)

If such a

promise is set forth in writing in a university’s publications, then the terms of that promise, and
the question of whether or not it has been breached, can be evaluated by a court without judicial
intrusion into the academic affairs of the university. See In re Columbia Refund Action, 2021
WL 790638, at *7.
Accordingly, the Court sua sponte revises the analysis in its January 28 Opinion and
holds that, with respect to pleading the breach element of a contract claim, Plaintiff is not
required to plead that Fordham acted arbitrarily or in bad faith.

To the extent that Part II.B of

the January 28 Opinion holds otherwise, it is hereby superseded.
B.

The Proposed Second Amended Complaint

Because the Proposed SAC contains at least one set of allegations that would survive a
motion to dismiss, granting leave to amend would be in the interests of justice. See Fed. R. Civ.
P. 15(a)(2).
In its January 28 Opinion, the Court held that Plaintiff had not sufficiently pleaded that
Fordham had promised to provide “certain specified services” and had not identified a “specific
promise” to provide in-person education.

(Jan. 28 Op. at 13.)

The Court’s analysis focused on

allegations based on Fordham’s course catalog, Academic Policies and Procedures, and
statements regarding transfer credits, class attendance, and marketing.
4

(Jan. 28 Op. at 10-13.)

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Ultimately, the Court agreed with Fordham that Plaintiff had not identified specific promises to
provide “in-person educational services, experiences, opportunities, and other related services” or
statements reflecting that Fordham promised to provide all classes exclusively in-person and
on-campus throughout the semester.

(Jan. 28 Op. at 9.)

The Court further stated that there

was a “lack of specificity” in the FAC with respect to non-tuition fees.

(Jan. 28 Op. at 17 n.5.)

Plaintiff, for example, “ha[d] not even identified the specific non-tuition fees to which the
putative class may be entitled, nor alleged any statements by Fordham reflecting promises to
provide services in connection with those fees.”

(Jan 28 Op. at 17.)

To some extent, the Proposed SAC provides greater specificity and remedies the FAC’s
deficiencies with respect to non-tuition fees.

For example, Plaintiff now alleges that Fordham

promised to provide students with access to on-campus computing, and that, on the Rose Hill
campus, “[w]hen classes are not in session, most of these [computer] labs are open to all
members of the University community with a valid ID.”

(Proposed SAC ¶ 22.)

The Proposed

SAC then alleges that Fordham “breached these promises once it shut down campus and
transitioned to remote learning.”

(Proposed SAC ¶ 26.)

And the Proposed SAC further

alleges that, although Fordham refunded some fees, it did not refund the “Technology Access
Fee.”

(Proposed SAC ¶ 38.)

Such allegations adequately plead that Fordham promised to

provide a “certain specified service[],” namely access to on-campus computer facilities.
Baldridge v. State, 740 N.Y.S.2d 723, 725 (3d Dep’t 2002) (quoting Paladino v. Adelphi Univ.,
454 N.Y.S.2d 868, 873 (2d Dep’t 1982)).
Fordham argues that such amendments are futile, because there are no allegations that
Fordham “ceased providing technology services . . . after the mandated shift to virtual education
and services.”

(Opp’n at 3.)

In fact, Fordham states that it incurred additional technology

costs in connection with supporting the transition to virtual instruction.
5

(Opp’n at 3.)

At this

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stage, however, the Court must accept as true the factual allegations in the Complaint.

Those

allegations, at least with respect to the Technology Access Fee, are sufficient to state a claim for
breach of a specific promise to provide access to on-campus computer facilities.

Whether

Fordham incurred additional costs in supporting a transition to virtual instruction does not negate
the existence of that promise, and the Court will not hold as a matter of law that Plaintiff suffered
no damages from Fordham’s retention of the Technology Access Fee.
Even though the Proposed SAC adequately states a claim with respect to at least one
specific service and set of fees, however, the Court is not persuaded that Plaintiff has alleged a
specific promise by Fordham to provide in-person instruction.

The additional allegations with

respect to in-person classes are based on Fordham’s Continuous University Strategic Planning
Plan (the “Strategic Plan”), excerpts from different portions of the Fordham website, and the
allegation that Fordham’s course catalog “does not include a reservation of rights to unilaterally
change contracted for educational services from in-person to online remote format.”
SAC ¶¶ 9-16, 23-25.)

(Proposed

These allegations do not, however, reflect a specific promise to provide

only live, in-person classes. See, e.g., Zagoria v. New York Univ., 2021 WL 1026511, at *4
(S.D.N.Y. Mar. 17, 2021) (Daniels, J.) (citing Ford v. Rensselaer Polytechnic Inst., 2020 WL
7389155, at *3 (N.D.N.Y. Dec. 16, 2020)) (stating that a court’s review of contractual claims is
“circumscribed to enforcing specific promises”).
First, as Fordham points out, Plaintiff has not identified any statement in the Strategic
Plan or website materials in which Fordham promised to provide solely on-campus classes.
(Opp’n at 2.)

In addition, many of the statements in both the Strategic Plan and on Fordham’s

website refer in general terms to the benefits of Fordham’s location in New York City.
e.g., Proposed SAC ¶¶ 12-13.)

(See,

Like those in the FAC, these statements, such as that

“[Fordham’s] Connection to the City Enhances Practical Learning,” Proposed SAC ¶ 16, are
6

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insufficient to support a claim that Fordham specifically promised to provide in-person classes.
Second, the allegation that Fordham did not include a reservation of rights in its course catalog
does not alter the Court’s prior analysis.

Analyzing Fordham’s course catalog and Academic

Policies and Procedures, the Court held that none of the alleged statements constituted a specific
promise on Fordham’s part to provide “certain specified services.”
Baldridge v. State, 293 A.D.2d 941, 943 (3d Dep’t 2002)).)

(Jan. 28 Op. at 10 (citing

The existence or absence of a

reservation of rights does not directly address that defect.
For these reasons, the Proposed SAC, to a limited extent, remedies the defects that were
present in the FAC.

Accordingly, Plaintiff may file a Second Amended Class Action Complaint

that is consistent with the foregoing.
II.

Unjust Enrichment Claims
Plaintiff’s attempt to seek leave to amend with respect to the unjust enrichment claim is

unavailing for two reasons.
First, in the January 28 Opinion, the Court held that “there [were] no facts alleged
regarding tortious or fraudulent conduct.”
cure this defect.

(Jan. 28 Op. at 19.)

The Proposed SAC does not

The Proposed SAC alleges, in conclusory fashion, that Fordham’s “refusal to

issue refunds is in bad faith” and “was also decided arbitrarily” because Fordham “issued some
partial refunds for services not provided, while retaining other fees and monies paid for tuition.”
(Proposed SAC ¶¶ 35-37.) The Proposed SAC alleges further that, “although Fordham has
refunded 50% of residence hall activity fees, 50% of general and lab fees, and 50% of ensemble
fees, it has chosen not to refund other mandatory fees, such as its Technology Access Fee and its
Health Insurance Fee,” and that Fordham “did not provide any reason at all” as to why it made
such decisions.

(Proposed SAC ¶¶ 38-39.)

These allegations do not rise to the level of

tortious or fraudulent conduct sufficient to support an unjust enrichment claim. See Clark v.
7

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Daby, 751 N.Y.S.2d 622, 643 (3d Dep’t 2002) (citing Paramount Film Distrib. Corp. v. State,
285 N.E.2d 695, 698 (N.Y. 1972)).
Second, granting leave to amend would be futile because the unjust enrichment claims are
duplicative of Plaintiff’s breach of contract claims.

As the New York Court of Appeals has held,

“[a]n unjust enrichment claim is not available where it simply duplicates, or replaces” a contract
claim. Corsello v. Verizon N.Y., Inc., 967 N.E.2d 1177, 1185 (N.Y. 2012).

As a result, courts

in this district have dismissed unjust enrichment claims when they are based—as Plaintiff’s
claims are—on the same factual allegations underlying the breach of contract claims, and when
the parties do not dispute that they share a contractual relationship. See In re Columbia Refund
Action, 2021 WL 790638, at *9 (collecting cases).
For these reasons, to the extent that Plaintiff seeks leave to amend with respect to the
claim of unjust enrichment, that request is denied.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for leave to amend is GRANTED IN PART
and DENIED IN PART.

Plaintiff may file a Second Amended Class Action Complaint that is

consistent with this Opinion.
It is further ORDERED that:
1. Plaintiff shall submit the Second Amended Class Action Complaint on or before April
16, 2021.
2. Fordham shall file an Answer on or before May 7, 2021.
3. The parties shall confer as to the next steps in this litigation.

On or before May 14,

2021, the parties shall submit a joint letter to the Court, attaching a proposed Civil
Case Management Plan and Scheduling Order.
website for models of such documents.
8

The parties may refer to the Court’s

To the extent that the parties disagree as to

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any case management issues, the joint letter shall explain the parties’ respective
positions.
4. Part II.B of the Court’s January 28, 2021 Opinion is superseded.
5. The Clerk of Court is respectfully directed to terminate the motion at ECF No. 35.

SO ORDERED.
Dated: New York, New York
April 6, 2021

/s/ Kimba M. Wood
KIMBA M. WOOD
United States District Judge

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