Amable v. The New School

Filing 51

OPINION & ORDER re: 44 MOTION to Dismiss . filed by The New School. Defendant's Motion is granted and the Complaint is dismissed with prejudice. See Denny v. Barber, 576 F.2d 465, 471 (2d Cir. 1978) (holding that the plaintiff was not entitled to "a third go-around"); Maione v. Zucker, No. 18-CV-7452, 2022 WL 784483, at *9 (S.D.N.Y. Mar. 15, 2022) (granting motion to dismiss with prejudice where "[the] [p]laintiff has already had two bites at the apple, a nd they have proven fruitless" (quoting Melvin v. County of Westchester, No. 14-CV-2995, 2016 WL 1254394, at *24 n.19 (S.D.N.Y. Mar. 29, 2016)); Bryant v. Capra, No. 18-CV-10198, 2021 WL 323263, at *5 (S.D.N.Y. Feb. 1, 2021) (same).9 The Clerk is respectfully directed to terminate the Motion to Dismiss, (Dkt. No. 44), and to close this case. SO ORDERED. (Signed by Judge Kenneth M. Karas on 5/6/22) (yv) Transmission to Orders and Judgments Clerk for processing.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ELIZABETH AMABLE and KAITLYN
AMABLE, individually and on behalf of all
others similarly situated,
Plaintiff,

No. 20-CV-3811 (KMK)
OPINION & ORDER

v.
THE NEW SCHOOL,
Defendant.
Appearances:
Alec M. Leslie, Esq.
Philip L. Fraietta, Esq.
Bursor & Fisher, P.A.
New York, NY
Counsel for Plaintiffs
Sarah Westcot, Esq.
Bursor & Fisher, P.A.
Miami, FL
Counsel for Plaintiffs
Jonathan M. Kozak, Esq.
Isaac J. Burker, Esq.
Susan Deegan Friedfel, Esq.
Jackson Lewis P.C.
White Plains, NY
Counsel for Defendant
KENNETH M. KARAS, District Judge:

Elizabeth Amable (“Elizabeth”) and Kaitlyn Amable (“Kaitlyn”; collectively,
“Plaintiffs”) bring this putative class action against The New School (“Defendant”), alleging that
Defendant’s transition to online classes amid the Covid-19 pandemic deprived students and
parents of students of the educational experience for which they bargained, giving rise to breach

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of contract and unjust enrichment claims. (See generally Second Am. Compl. (“SAC”) (Dkt.
No. 37).) Before the Court is Defendant’s Motion to Dismiss the SAC (the “Motion”). (See Not.
of Mot. (Dkt. No. 44).) For the following reasons, Defendant’s Motion is granted.
I. Background
A. Factual Background
Unless otherwise stated, the following facts are drawn from Plaintiffs’ SAC and are
assumed true for the purpose of resolving the instant Motion. See Div. 1181 Amalgamated
Transit Union-N.Y. Emps. Pension Fund v. N.Y.C. Dep’t of Educ., 9 F.4th 91, 94 (2d Cir. 2021)
(per curiam).
1. The Parties and Injuries
Defendant “is a private research university” centered in New York. (SAC ¶ 39.)
Elizabeth was “the parent of an undergraduate student at [Defendant] . . . pursuing a Bachelor of
Fine Arts in Communication Design” who, on her daughter’s behalf, “paid approximately
$11,000 in tuition and fees to Defendant for the Spring 2020 semester.” (Id. ¶ 34.) Kaitlyn, an
undergraduate student attending Defendant during the Spring 2020 semester pursuing a Bachelor
of Fine Arts in Communication Design, “paid approximately $4,000 in tuition and fees to
Defendant for the Spring 2020 semester.” (Id. ¶ 35.)
In order for Kaitlyn to enroll in the Spring 2020 Semester, Plaintiffs were responsible for
the following fees for the Spring 2020 semester: $55.00 EPP Enrollment Fee; $600.00 University

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Services Fee; and $8.00 Student Senate Fee. (Id. ¶ 47.) 1, 2 Plaintiffs allege that the University
Services Fee “covers a range of supportive services for students at The New School.” (Id. ¶ 48
(quotation marks omitted).) 3 Having paid these fees, Kaitlyn was able to participate in
Defendant’s Spring 2020 Semester, which began on January 21, 2020 and which proceeded
without incident for the next eight weeks; however, the Covid-19 pandemic brought normal
university operations to an abrupt halt in March, as Defendant announced that all classes would
only be conducted online for the remainder of the Spring 2020 semester. (Id. ¶¶ 20, 23, 25.)
2. Contractual Promises
Plaintiffs allege that they “entered into a contractual agreement” with Defendant “for
specific services,” namely “an on-campus, in-person education.” (Id. ¶ 3.) Specifically,
Plaintiffs aver that in exchange for payment “in the form of tuition and fees,” Defendant “was to
provide in-person educational services, experiences, opportunities, and other related services.”
(Id.) Plaintiffs assert that the terms of the contract were “set forth in publications from
[Defendant],” including: (1) Defendant’s Spring Semester 2020 Course Catalog (“Course

1

Though the Complaint does not explicitly state whether a relationship exists between
Elizabeth and Kaitlyn, based on Plaintiffs’ opposition briefing, Plaintiffs’ shared last names, and
the overlapping facts regarding Elizabeth’s daughter’s course of study and Kaitlyn’s course of
study, the Court presumes that Elizabeth is Kaitlyn’s mother for purposes of this Opinion.
2

Neither the SAC nor additional documents define the term “EPP.” Ultimately,
however, this has no bearing on the Court’s holding.
3

According to Plaintiffs, Defendant reduced this fee to $225.00 “for the 2020-2021
Academic Year, during which all Fall 2020 classes were held online, and increased the same fee
back up to $600 for the 2021-22 Academic Year after resuming in-person instruction.” (Id. ¶ 49
(footnote omitted).) Plaintiffs also allege that the reduction in fees “indicates that [Defendant’s]
‘supportive services’ available to students as part of the fee were limited as a result of the switch
to remove learning.” (Id. ¶ 50.)
3

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Catalog”), (id.); (2) Defendant’s “Attendance Statement,” (id. ¶ 18); (3) Kaitlyn’s Course
schedule, (id. ¶ 37); and (4) “The New School’s webpage,” (id. ¶ 3).
First, Plaintiffs allege that Defendant’s Spring 2020 Course Catalog articulated particular
information about courses to be offered by Defendant, including “the instructor, the days and
times during which the courses would be held, and the location (including the building and room
number).” (Id. ¶ 5.) To that end, Plaintiffs aver that university students like Kaitlyn chose
courses specifically based on the information provided in the Course Catalog, including if they
were based in “New York City,” “Paris,” or “Online.” (Id. ¶¶ 6, 7.)
Second, Plaintiffs aver that Defendant’s “Attendance Statement” emphasizes the
importance of regular class attendance and participation. (Id. ¶ 18.) Plaintiffs allege that the
Statement informs students “that ‘[r]egular attendance and class participation are important
factors in student learning,’ and faculty are ‘expected to articulate this idea,’ as well as ‘monitor
student progress and attendance regularly.’” (Id. (alteration in original).)
Third, Plaintiffs allege that Kaitlyn’s Semester Course schedule makes clear that “the
classes in which she enrolled were to be taught in-person at [Defendant’s] New York City
Campus.” (Id. ¶ 37) (emphasis added).
Fourth, and finally, Plaintiffs allege that Defendant’s online marketing, and specifically
Defendant’s “Campus Life” page, “promoted the value provided by its on-campus experience
and related on-campus services . . . .” (Id. ¶ 8; see also id. ¶¶ 8–15.) Plaintiffs allege that the
“Campus Life” page on Defendant’s website states that Defendant’s Innovation Center “is ‘open
to New School students and faculty 24 hours a day,’” (id. ¶ 9), “further emphasizes the updated
facilities and materials available to students, including ‘a series of extensive labs and information
technology services,’” (id. ¶ 10), “advertises its various university performance facilities,” such

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as recording studios, to be available in-person to students, (id. ¶¶ 13, 14), and “advertises to
students that they will have access to the ‘University Learning Center’ where students can utilize
specialized one-on-one or group tutoring sessions at the center,” (id. ¶ 15).
Plaintiffs allege more broadly that “[t]he Communication Design program [with which
Kaitlyn is affiliated] at The New School relies extensively on in-person instruction, peer
collaboration, and access to The New School’s facilities.” (Id. ¶ 35.)
Given the promises that Plaintiffs contend are implicit within these four fields of
publication, Plaintiffs allege that by shifting its instruction to an online format, “Defendant [did]
not deliver[] the educational services, facilities, access and/or opportunities that Plaintiffs and the
putative class contracted and paid for,” because none of the facilities or services was available to
students during the suspension of in-person learning. (Id. ¶ 26; see also id. at ¶¶ 17, 63.)
Plaintiffs further allege that they have not been provided a refund of any tuition monies or fees
paid for the Spring 2020 semester, despite the shift to online learning, as Defendant has only
“provided refunds ‘on a pro-rated basis for residential students leaving campus and those
students who are on university meal plans.’” (Id. ¶ 28 n.5; see also id. ¶¶ 28–30.)
Accordingly, Plaintiffs bring claims for breach of contract and unjust enrichment. (See
id. ¶¶ 73–93.) Plaintiffs seek “disgorgement of the pro-rated portion of tuition and fees . . .
proportionate to the amount of time that remained in the Spring Semester 2020 when classes
moved online and campus services ceased being provided.” (Id. ¶ 63.) Plaintiffs also seek an
order certifying a class and subclass under Rule 23 of the Federal Rules of Civil Procedure,
compensatory and punitive damages, prejudgment interest, an order of restitution “and all other
forms of equitable monetary relief,” any injunctive relief deemed proper, and an order awarding
reasonable attorneys’ fees to the putative class counsel. (See id. Prayer for Relief.)

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B. Procedural History
Plaintiffs filed their initial complaint on May 15, 2020, on behalf of themselves and all
people who paid tuition and fees for the Spring 2020 semester at the New School. (Dkt. No. 1.)
On July 29, 2020, Defendant filed a letter seeking leave to file a motion to dismiss Plaintiff’s
Complaint. (Dkt. No. 7.) In response, on August 5, 2020, Plaintiffs filed a letter requesting
permission to file an amended complaint, (Dkt. No. 12), which the Court granted the same day,
(Dkt. No. 13). Plaintiffs’ First Amended Complaint was thereafter filed on September 2, 2020.
(Dkt. No. 14.) Defendant subsequently filed a Motion To Dismiss Plaintiff’s First Amended
Complaint and supporting papers on November 20, 2020. (Dkt. Nos. 23–26.) Plaintiffs filed
their opposition papers on December 23, 2020. (Dkt. Nos. 27–28.) Defendant filed its Reply on
January 7, 2021, (Dkt. No. 31). On July 27, 2021, the Court granted Defendant’s Motion To
Dismiss without prejudice. (Op. (“2021 Op.”) (Dkt. No. 36).)
On August 26, 2021, Plaintiffs filed their SAC. (Dkt. No. 37.) Defendant sought leave to
file the instant Motion on September 9, 2021. (Dkt. No. 38.) Following a pre-motion telephone
conference on October 19, 2021, (see Dkt. (minute entry for Oct. 19, 2021)), the Court adopted a
briefing schedule for the instant Motion, (Dkt. No. 43). Pursuant to this schedule, Defendant
filed the instant Motion and supporting papers on November 18, 2021. (See Not. of Mot.; Aff’n
of Jonathan M. Kozak (“Kozak Aff’n”) (Dkt. No. 45); Decl. of Rebecca Hunter (Dkt. No. 46);
Def.’s Mem. of Law in Supp. of Mot. (“Def.’s Mem.”) (Dkt. No. 47).) After a modification to
the briefing schedule was made, (see Dkt. No. 48), Plaintiffs timely filed their Opposition on
December 20, 2021, (Pls.’ Mem. of Law in Opp. to Mot. (“Pls.’ Mem.”) (Dkt. No. 49)). Finally,
Defendant filed a Reply on January 19, 2022. (Def.’s Reply Mem. of Law in Supp. of Mot.
(“Def.’s Reply Mem.”) (Dkt. No. 50).)

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II. Discussion
A. Standard of Review
The Supreme Court has held that while a complaint “does not need detailed factual
allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(alteration and quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked assertions
devoid of further factual enhancement.” Id. (alteration and quotation marks omitted). Rather, a
complaint’s “[f]actual allegations must be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555.
“[O]nce a claim has been stated adequately, it may be supported by showing any set of
facts consistent with the allegations in the complaint,” id. at 563, and a plaintiff must allege
“only enough facts to state a claim to relief that is plausible on its face,” id. at 570. However, if
a plaintiff has not “nudged [his] claim[] across the line from conceivable to plausible, the[]
complaint must be dismissed.” Id.; see also Iqbal, 556 U.S. at 679 (“Determining whether a
complaint states a plausible claim for relief will . . . be a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense. But where the wellpleaded facts do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” (second
alteration in original) (citation omitted) (quoting Fed. R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8
marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior

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era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.”).
“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam), and “draw[] all reasonable inferences in favor of the plaintiff,” Daniel v. T&M Prot.
Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC,
699 F.3d 141, 145 (2d Cir. 2012)). Additionally, “[i]n adjudicating a Rule 12(b)(6) motion, a
district court must confine its consideration to facts stated on the face of the complaint, in
documents appended to the complaint or incorporated in the complaint by reference, and to
matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d
99, 107 (2d Cir. 1999) (quotation marks omitted); see also Wang v. Palmisano, 157 F. Supp. 3d
306, 317 (S.D.N.Y. 2016) (same).
B. Analysis
Defendant premises its Motion on two chief arguments: (1) that Elizabeth, as a parent of
a university student not in privity of contract with the university itself, has no standing to sue,
and (2) that Plaintiffs fail to state a claim for either breach of contract or unjust enrichment. (See
generally Def.’s Mem; Def.’s Reply Mem.) 4 The Court evaluates each separately.

4

Defendant also maintains its argument that Plaintiffs claims are barred by the
educational malpractice doctrine, but avoids expounding upon it “in light of this Court’s prior
opinion” rejecting such an argument. (Def.’s Mem. 4 n.3; see also 2021 Op. 7–10.) “[W]here
litigants have once battled for the court’s decision, they should neither be required, nor without
good reason permitted, to battle for it again.” Zdanok v. Glidden Co., Durkee Famous Foods
Div., 327 F.2d 944, 953 (2d Cir. 1964). In its prior opinion, the Court diligently analyzed its
reasoning and concluded that the educational malpractice doctrine did not apply to this Action.
(See 2021 Op. 7–10.) The limited new allegations Plaintiff raises, see infra Section II.B.2.c, do
not bear on this question or the Court’s prior analysis. Accordingly, the Court remains of the
opinion that the doctrine does not apply in this Action. (See 2021 Op. 7–10.)
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1. Elizabeth’s Standing
Defendant argues that Elizabeth, as the parent of a student and not in contractual privity
with Defendant, lacks standing to enforce the terms of an agreement insofar as she is a thirdparty beneficiary. (Def.’s Mem. 8–9; see also Def.’s Reply Mem. 2–3.) Plaintiffs argue
otherwise, stating that Elizabeth’s monetary injury—that she did not get what was bargained
for—gives rise to standing. (See Pls.’ Mem. 2–5.)
Standing asks “whether the litigant is entitled to have the court decide the merits of the
dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975). “Under New York
law, unless a party has contractual privity or is a third-party beneficiary of a contract, it lacks
standing to enforce the terms of the agreement.” Eaton Vance Mgmt. v. ForstmannLeff Assocs.,
LLC, No. 06-CV-1510, 2006 WL 2331009, at *6 (S.D.N.Y. Aug. 11, 2006) (footnote omitted)
(collecting cases). Moreover, “[a]lthough a third party need not be specifically mentioned in the
contact before third-party beneficiary status is found, New York law requires that the parties’
intent to benefit a third party must be shown on the face of the agreement.” Newman & Schwartz
v. Asplundh Tree Expert Co., 102 F.3d 660, 663 (2d Cir. 1996) (quoting In re Gulf Oil/Cities
Serv. Tender Offer Litig., 725 F. Supp. 712, 733 (S.D.N.Y. 1989)); see also Hylte Bruks
Aktiebolag v. Babcock & Wilcox Co., 399 F.2d 289, 292 (2d Cir. 1968) (“The agreement under
which the third party claims must clearly express an intention to assume a direct duty to him. It
is essential not merely that the contract shall operate for the benefit of the third person, but that it
shall have been so intended.” (quoting 10 N.Y. Juris, Contracts § 239, 162)); Brown v. AXA RE,
No. 02-CV-10138, 2004 WL 941959, at *4 (S.D.N.Y. May 3, 2004) (“[T]he case law makes it
clear that under New York law, the parties’ intent to benefit the third party must be evident on
the face of the contract for that third party to be considered an ‘intended beneficiary.’”);

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Dormitory Auth. v. Samson Constr. Co., 94 N.E.3d 456, 459 (N.Y 2018) (“[A] third party may
sue as a beneficiary on a contract made for [its] benefit. However, an intent to benefit the third
party must be shown and, absent such intent, the third party is merely an incidental beneficiary
with no right to enforce the particular contracts.” (alterations in original) (quoting Port Chester
Elec. Const. Co. v. Atlas, 357 N.E.2d 983, 986 (N.Y. 1976)).
The New York Court of Appeals has instructed that finding such an intent “generally
require[s] express contractual language stating that the contracting parties intended to benefit a
third party. . . .” Id. at 460. “In the absence of express language, ‘such parties are generally
considered mere incidental beneficiaries.’” Id. (quoting Port Chester, 357 N.E.2d at 986); see
also In re Gulf Oil, 725 F. Supp. at 733 (“Absent such intent, the third party is merely an
incidental beneficiary with no right to enforce the contract.”). In this Action, to the extent a
contract exists, Elizabeth is such an incidental beneficiary.
Throughout the entirety of the SAC, Elizabeth is mentioned only three times: the case
caption, the introduction, and one paragraph explaining her identity. (See generally SAC.) In
other words, at no point do Plaintiffs allege that Elizabeth is in privity of contract with Defendant
or that she is an expressly intended third party beneficiary. (See Def.’s Mem. 9.) Rather,
Elizabeth’s injury is not tied to Defendant, but rather “traceable to the arrangement between
[mother] and daughter.” Romankow v. N.Y. Univ., No. 20-CV-4616, 2021 WL 1565616, at *3
(S.D.N.Y. Apr. 21, 2021). Accordingly, Plaintiffs cannot establish Elizabeth’s standing to bring
this Action.
Plaintiffs nonetheless attempt to argue around this reality by citing inapposite New York
caselaw. For example, Plaintiffs point to Uddin v. New York Univ., wherein a parent brought “a
viable breach of contract claim” against a university on behalf of his son upon the university’s

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removal of the plaintiff’s son, 6 N.Y.S.3d 900, 901 (N.Y. App. Term. 2014). (See Pls.’ Mem. 3.)
However, this lone case is inapposite, as the opinion does not reference, let alone determine, the
parent plaintiff’s standing. See generally Uddin, 6 N.Y.S.3d 900. Thus, it cannot provide a
foothold for Plaintiffs in this Action, particularly amidst the overwhelming precedent to the
contrary. See supra.
In another example, Plaintiffs point to Ericson v. Syracuse Univ., where parents and
students alike sued a university following the students’ sexual harassment, see 35 F. Supp. 2d
326, 327–28 (S.D.N.Y. 1999). (See Pls.’ Mem. 4.) Once again, this case cannot carry Plaintiffs’
water. The plaintiffs in Ericson raised no claims sounding in contract; rather, they sought to
assert claims under Title IX, the Violence Against Women Act, 42 U.S.C. § 1985, and the state
law tort of intentional infliction of emotional distress, Ericson, 35 F. Supp. 2d at 327–28, 330.
Moreover, the Ericson court never considered standing questions. Thus, even assuming that the
court would have held that the parent plaintiffs had standing to sue, that holding would be wholly
irrelevant where it did not pertain to contract law.
Plaintiffs’ final attempt to establish Elizabeth’s standing to bring these claims is a set of
citations to out-of-state cases. But “where, as here, [] [P]laintiff’s ‘state law cause of action is
structured as a run-of-the-mill state law contract claim, governed by state law standards and
analyzed using the familiar elements applied in a New York breach of contract action.’”
CWCapital Cobalt VR Ltd. v. CWCapital Invs. LLC, No. 17-CV-9463, 2018 WL 2731270, at *7
(S.D.N.Y. May 23, 2018) (quoting Liana Carrier Ltd. v. Pure Biofuels Corp., 672 F. App’x 85,
92 (2d Cir. 2016)). Thus, out-of-state precedent, which is already non-binding, is even less
persuasive. Cf. Doe v. Emory Univ., No. 20-CV-2002, 2021 WL 358391, at *3 (N.D. Ga. Jan.
22, 2021) (refusing to consider cases cited by plaintiffs “from other jurisdictions” in analogous

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state law claims regarding university closure following the onset of the Covid-19 pandemic).
The same is true with respect to Plaintiffs’ unjust enrichment claims. Cf. In re Grand Theft Auto
Video Game Consumer Litig., 251 F.R.D. 139, 147 (S.D.N.Y. 2008) (collecting cases that show
that “several courts have determined that the states’ unjust-enrichment laws vary in relevant
respects”). Therefore, Plaintiffs’ citations to inapposite jurisprudence—both within and without
the Second Circuit—hold little if any persuasive value. The Court will accordingly join the
chorus of courts in New York, the Second Circuit, and elsewhere in holding that parents
asserting state law claims of breach of contract and unjust enrichment lack standing in the
absence of contractual provisions establishing that they are intended beneficiaries. See Rynasko
v. New York Univ., No. 20-CV-3250, 2021 WL 1565614, at *3 (S.D.N.Y. Apr. 21, 2021)
(granting a motion to dismiss claims brought by parents of university students sounding in state
law breach of contract and unjust enrichment because the parent “does not plausibly allege that
[his or] her [child] is a minor child or that [he or she] was an intended third-party beneficiary of
the contract between” the child and the defendant university); Meissner v. Syracuse Univ., No.
20-CV-839, 2021 WL 1536676, at *3–4 (N.D.N.Y. Apr. 13, 2021) (dismissing similar claims for
the same reason); Metzner v. Quinnipiac Univ., 528 F. Supp. 3d 15, 24–26 (D. Conn. Mar. 25,
2021) (same); Espejo v. Cornell Univ., 523 F. Supp. 3d 228, 236 (N.D.N.Y. 2021) (same);
Gociman v. Loyola Univ. of Chi., 515 F. Supp. 3d 861, 86 (N.D. Ill. Jan. 25, 2021) (same);
Bergeron v. Rochester Inst. of Tech., No. 20-CV-6283, 2020 WL 7486682, *3–4 (W.D.N.Y.
Dec. 18, 2020) (same); Lindner v. Occidental Coll., No. 20-CV-8481, 2020 WL 7350212, *5–6
(C.D. Cal. Dec. 11, 2020) (same); Salerno v. Fla. S. Coll., 488 F. Supp. 3d 1211, 1215–17 (M.D.
Fla. 2020) (same).

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2. Failure to State a Claim for Breach of Contract
a. Applicable Law
“In a breach of contract case, a plaintiff must plead ‘(1) the existence of a contract
between itself and that defendant; (2) performance of the plaintiff’s obligations under the
contract; (3) breach of the contract by that defendant; and (4) damages to the plaintiff caused by
that defendant’s breach.’” Thales Alenia Space France v. Thermo Funding Co., LLC, 959 F.
Supp. 2d 459, 464 (S.D.N.Y. 2013) (quoting Diesel Props S.r.l. v. Greystone Bus. Credit II LLC,
631 F.3d 42, 52 (2d Cir. 2011)). As occurred in the Court’s prior round of briefing, Defendant
argues that Plaintiffs have not identified a specific promise in which it agreed to provide
exclusively in-person instruction, and that, even if there were such a promise, Plaintiffs cannot
adequately plead the breach or damages elements of their contract claim. (See Def.’s Mem. 10–
18.) 5
“Under New York law, there exists an implied contract between a student and their
college or university.” Goldberg v. Pace Univ., 535 F. Supp. 3d 180, 193 (S.D.N.Y. 2021); see
also Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 93 (2d Cir. 2011)
(“Under New York law, an implied contract is formed when a university accepts a student for
enrollment . . . .”). The “essence” of this implied contract is that the academic institution “must
act in good faith in its dealings with its students,” Olsson v. Bd. of Higher Educ., 402 N.E.2d
1150, 1153 (N.Y. 1980); see also Goldberg, 535 F. Supp. 3d at 193 (same), and “[t]he terms of
th[is] implied contract are contained in the university’s bulletins, circulars[,] and regulations
made available to the student,” Papelino, 633 F.3d at 93 (citation and internal quotation marks
5

Defendant also argues that Plaintiffs’ breach of contract claim must also be dismissed as
a result of impossibility of performance, (Def.’s Mem. 19–20), and due to the doctrine of
acceptance, (id. at 20–21). Because the Court rules on Defendant’s primary arguments related to
contractual promise and damages, the Court need not—and does not—opine on these arguments.
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omitted). “The interpretation of a university’s catalogue, like the interpretation of any contract,
is a matter of law for the Court.” In re Columbia Tuition Refund Action, 523 F. Supp. 3d 414,
421 (S.D.N.Y. 2021) (citation omitted).
Thus, to state a claim for breach of this implied contract, “a student must identify specific
language in the school’s bulletins, circulars, catalogues[,] and handbooks which establishes the
particular ‘contractual’ right or obligation alleged by the student.” Id. (citation omitted); see also
Goldberg, 535 F. Supp. 3d at 193 (observing that the student “must identify specifically
designated and discrete promises” (citation and internal quotation marks omitted)). Stated
differently, the student “must point to a provision that guarantees ‘certain specified services,’” In
re Columbia, 523 F. Supp. 3d at 421 (quoting Baldridge v. State, 740 N.Y.S.2d 723, 725 (App.
Div. 2002)), as opposed to a “general statement of policy,” id. (brackets and citation omitted),
“or to statements of ‘opinion or puffery,’” id. (quoting Bader v. Siegel, 657 N.Y.S.2d 28, 29
(App. Div. 1997)). The Court’s role, consequently, “is circumscribed to enforcing specific
promises.” Goldberg, 535 F. Supp. 3d at 193 (quoting Ford v. Rensselaer Polytechnic Inst., 507
F. Supp. 3d 406, 414 (N.D.N.Y. Dec. 16, 2020)). “General policy statements and broad and
unspecified procedures and guidelines will not suffice.” Nungesser v. Columbia Univ., 169 F.
Supp. 3d 353, 370 (S.D.N.Y. 2016) (citation and internal quotation marks omitted); see also,
e.g., Chira v. Columbia Univ. in N.Y.C., 289 F. Supp. 2d 477, 485–86 (S.D.N.Y. 2003)
(dismissing breach of contract claim where the plaintiff could not “point[] to [a] document or
conversation that [gave] rise to a promise which [the institution] breached”); Gally v. Columbia
Univ., 22 F. Supp. 2d 199, 207 (S.D.N.Y. 1998) (noting that “the mere allegation of mistreatment
without the identification of a specific breached promise or obligation does not state a claim on
which relief can be granted”).

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b. Law of the Case Doctrine: Course Catalog, Kaitlyn’s Schedule, and the
Attendance Policy
As was the case with Plaintiffs’ FAC, Plaintiffs attempt to divine a specific promise from
a collection of documents Defendant published, including Defendant’s Course Catalog (SAC ¶¶
3, 5–7, 36, 75–78, 81), Kaitlyn’s Course Schedule (id. ¶ 37), and Defendant’s Attendance
Statement, (id. ¶¶ 18, 79), as well as promotional materials Defendant posted on its website, (id.
¶¶ 8–11, 13–16, 61, 76).
In its prior opinion, the Court addressed the promises allegedly made via the Course
Catalog, the Course Schedule, the Attendance Statement, and certain promotional statements.
(See 2021 Op. 13–25.) Plaintiffs’ Second Amended Complaint is nearly identical to the First
Amended Complaint with respect to the allegations regarding the first three cornerstones of
Plaintiffs’ theory of Defendant’s promise. (Compare First Am. Compl. (“FAC”) (Dkt. No. 14)
¶¶ 1–2, 4–6, with SAC ¶¶ 1–2, 4–6 (stating identical background information regarding the
context of the suit and Kaitlyn’s Course Catalog, including identical screenshots); compare FAC
¶ 7, with SAC ¶ 18 (stating identical allegations regarding Defendant’s “Policies and Procedures
including the Attendance Statement”); compare FAC ¶¶ 8–11, 12–15, 28–33, 34–38, 40–41, with
SAC ¶¶ 20, 22–23, 25–28, 32, 43–46, 54–56, 61–63 (stating identical allegations regarding the
timing of semester and Defendant’s announcements and cancellation of classes in light of the
Covid-19 pandemic); compare FAC ¶¶ 17–24, with SAC ¶¶ 34–39, 49, 51 (stating identical
allegations regarding the parties identities and fees paid); compare FAC ¶¶ 25–27, with SAC ¶¶
40–42 (stating nearly identical claims to jurisdiction and venue); compare FAC ¶¶ 42–50, with
SAC ¶¶ 64–72 (stating identical class allegations); compare FAC ¶¶ 51–63, with SAC ¶¶ 73–86
(stating identical allegations for Count I, breach of contract, save for SAC ¶ 79, which repeats

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SAC ¶ 18, which itself duplicates FAC ¶ 7); compare FAC ¶¶ 64–70, with SAC ¶¶ 87–93
(stating identical allegations for Count II, unjust enrichment).
Conversely, the new substantive allegations Plaintiffs raise only speak to the fees paid,
(see SAC ¶¶ 47–50), an allegation of Defendant’s bad faith, (id. ¶ 29), and more detailed
information regarding statements from Defendant’s website which purportedly speak to
Defendant’s promises of in-person education, (id. ¶¶ 7–17). 6 Finally, Plaintiffs removed
allegations that spoke to the educational malpractice argument already decided by the Court from
the SAC, (see FAC ¶ 39; see also 2021 Op. 8), as well as claims of conversion and money had
and received, (see FAC ¶¶ 71–78, 79–85).
The law of the case doctrine “posits that when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent stages of the same case.” Az.
Premium Fin. Co. v. Employers Ins. of Wausau, of Wausau Am Mut. Co., 586 F. App’x. 713, 716
(2d Cir. 2014) (summary order) (quoting Arizona v. California, 460 U.S. 605, 618 (1983)). To
prevent the parties from re-litigating previously decided issues, the doctrine “counsels a court
against revisiting its prior rulings in subsequent stages of the same case absent ‘cogent’ and
‘compelling’ reasons such as an ‘intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent manifest injustice.’” Starbucks Corp. v.
Wolfe’s Borough Coffee, Inc., 736 F.3d 198, 208 (2d Cir. 2013) (quoting Ali v. Mukasey, 529
F.3d 478, 490 (2d Cir. 2008)). A court should therefore be “‘loathe’ to revisit an earlier decision
‘in the absence of extraordinary circumstances . . . .’” N. River Ins. Co. v. Philadelphia

6

There are also some smaller, non-substantive additions in the SAC that do not bear
directly on the Action, such as the claim that “[t]here are hundreds, if not thousands, of
institutions of higher learning in this country. Each institution markets and offers different and
competing educational products.” (SAC ¶ 57.)
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Reinsurance Corp., 63 F.3d 160, 165 (2d Cir. 1995) (quoting Christianson v. Colt Industries
Operating Corp., 486 U.S. 800, 817 (1988)); see also Prisco v. A & D Carting Corp., 168 F.3d
593, 607 (2d Cir. 1999) (“[T]he decision whether or not to apply law-of-the-case is . . . informed
principally by the concern that disregard of an earlier ruling not be allowed to prejudice the party
seeking the benefit of the doctrine.” (citations omitted) (alterations in original)). “Although
prudential and discretionary, the doctrine may be raised by a court sua sponte.” LPD New York,
LLC. v. Adidas Am., Inc., No. 15-CV-6360, 2019 WL 1433055, at *8 (E.D.N.Y. Mar. 29, 2019);
see also United States v. Lacouture, 721 F. App’x. 1, 4 (1st Cir. 2018) (citing United States v.
Wallace, 573 F.3d 82, 90 n.6 (1st Cir. 2009)); United States v. Anderson, 772 F.3d 662, 669
(11th Cir. 2014); F.T.C. v. Consumer Health Benefits Ass’n, No. 10-CV-3551, 2012 WL
1890242, at *4 (E.D.N.Y. May 23, 2012).
With respect to Plaintiffs’ argument that a promise can be found in language in the
Course Catalog, Kaitlyn’s Course Schedule, or the Attendance Policy, “[t]he Court previously
addressed Plaintiff[s’] argument that [their] allegations in the Complaint are sufficient to show
that a contract existed between the parties [on these bases] and declines to do so again.” LPD,
2019 WL 1433055, at *8. Regarding these three hallmarks of Plaintiffs’ complaint, “[t]he SAC
does not include any additional allegations sufficient to preclude application of the law of the
case doctrine,” id., which holds that “[t]he mere filing of an [a]mended [c]omplaint does not
entitle Plaintiff[s] to relitigate [their] claims absent new factual allegations.” Weslowski v.
Zugibe, 96 F. Supp. 3d 308, 316–17 (S.D.N.Y. 2015), aff’d, 626 F. App’x. 20 (2d Cir. 2015).
Because these duplicative touchpoints all speak to in-person instruction as compared to in-person
services, facilities, or opportunities, the Court will not disturb its holding: “the Court dismisses
Plaintiffs’ breach of contract claim to the extent this claim is based on Defendant’s alleged

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promise to provide exclusively in-person classes.” (2021 Op. 25; see also id. at 13–18 (rejecting
Plaintiffs’ argument that the Course Catalog, Kaitlyn’s Course Schedule, and the Attendance
Policy created an implied promise of in-person instruction); id. at 18–19 (rejecting Plaintiffs’
argument that the Attendance Policy created an implied promise of in-person instruction).)
c. New Allegations
Because Plaintiffs added allegations regarding content Defendant placed on its website,
all of which speak to in-person “educational services, facilities, access and/or opportunities,”
(SAC ¶ 56), the Court considers these allegations anew.
Plaintiffs put forward new allegations regarding Defendant’s “Campus Life” webpage,
which “touts the updated and modern technological facilities available to students, offering a
‘hands-on experience,’ including the ‘Innovation Center’ which is ‘open to New School students
and faculty 24 hours a day.’” (Id. ¶ 9.) The same page also allegedly “emphasizes the updated
facilities and materials available to students, including ‘a series of extensive labs and information
technology services’ such as ‘[d]igital projectors, surround sound, and active white boards’ that
students can use for presentations in the classroom setting.” (Id. ¶ 10.) Plaintiffs also point to
additional notes on Defendant’s web pages that speak to “the benefits of its on-campus
facilities,” (id. ¶ 11), including “its various university performance facilities,” (id. ¶ 13), as well
as access to the “‘University Learning Center,’ where students can utilize specialized one-on-one
or group tutoring sessions,” (id. ¶ 15).
As the Court stated in its prior opinion, detailed promises to furnish facilities can
certainly be “sufficiently specific to be actionable.” (2021 Op. 23.) Only one of Plaintiffs’
newly added statements evinces such specificity: Defendant’s statement regarding the Innovation
Center. The remaining new allegations regarding impressive and career-improving facilities
simply “tout[]” the benefits of these potential services or facilities when they are available to
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students, therefore more closely resembling marketing “‘opinion or puffery’ that is ‘too vague to
be enforced as a contract,” In re Columbia, 523 F. Supp. 3d at 423 (quoting Bader, 657 N.Y.S.2d
at 29); see also Morales v. N.Y. Univ., No. 20-CV-4418, 2021 WL 1026165, at *1 n.1 (S.D.N.Y.
Mar. 17, 2021) (holding similarly that general references to the advantages or benefits of some
opportunities listed in marketing materials were non-actionable statements of “opinion or
puffery” (quoting Bader, 657 N.Y.S.2d at 29)).
With respect to the lone potentially actionable promise, Defendant’s website claims that
the “Innovation Center” is “open to New School students and faculty 24 hours a day.” (SAC ¶
9.) But even if the Court were to interpret that such marketing material is “sufficiently specific
to be actionable,” (2021 Op. 23), Plaintiffs’ rights to access this facility is far from unfettered.
Rather, Defendant’s website contains a broad reservation of rights:
The information included in the catalogs and all materials of [Defendant] represents
the plans of [Defendant] at the time they are made public. [Defendant] reserves the
right to change without notice any matter contained in this publication, including
but not limited to tuition, fees, policies, degree programs, names of programs,
course offerings, academic activities, academic requirements, facilities, faculty,
and administrators. Payment of tuition for or attendance in any classes shall
constitute a student’s acceptance of the administration’s rights as set forth in this
notice.
(Kozak Aff’n Ex. 2 (“Your Right To Know”), at 1 (emphases added) (Dkt. No. 45-2).) 7 Plainly,
this disclaimer explicitly reserves Defendant’s right to modify the facility access granted to
7

Additionally, an identical disclaimer is repeated in Defendant’s Couse Catalog. (Kozak
Aff’n Ex. 1 (“Course Catalog”), at 2 (Dkt. No. 45-1).) Importantly, the Court can consider
exhibits submitted by Defendant in support of its Motion.
As stated above, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine
its consideration to facts stated on the face of the complaint, in documents appended to the
complaint or incorporated in the complaint by reference, and to matters of which judicial notice
may be taken.” Leonard F., 199 F.3d at 107.
“To be incorporated by reference, the [c]omplaint must make a clear, definite[,] and
substantial reference to the documents.” Thomas v. Westchester Cty. Health Care Corp., 232 F.
Supp. 2d 273, 275 (S.D.N.Y. 2002) (citations omitted). “Where a document is not incorporated
by reference, the court may never[the]less consider it where the complaint ‘relies heavily upon
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students without demanding an explanation or notice, let alone reimbursement. Thus,
Defendant’s decision to restrict access pursuant to applicable state law and/or based on public
health concerns “represents an exercise of authority expressly reserved to [Defendant], and the
exercise of that authority cannot constitute a breach.” Michel v. Yale Univ., 547 F. Supp. 3d 179,
190 (D. Conn. 2021).
This reasoning has been adopted by myriad courts where the disclaimers in question are
specific to in-person instruction and absolve universities from liability under a breach of contract
theory specific to in-person instruction. See, e.g., Freeman v. N.Y. Univ., No. 21-CV-1029, 2022
WL 445778, at *2 (S.D.N.Y. Feb. 14, 2022) (holding that because the defendant university
“expressively reserved the right to modify ‘course offerings, schedules, [and] activities,’
including the ‘elimination,’ ‘cancellation,’ ‘relocation,’ or ‘modification’ of academic activities
or programs,” “[t]he [p]laintiff has failed to plead an expressed or implied promise to provide
exclusively in-person learning”); Moore v. Long Island Univ., No. 20-CV-3843, 2022 WL
203988, at *5 (E.D.N.Y. Jan. 24, 2022) (joining “[o]ther courts in [the Second] Circuit [that]
have found that disclaimers in course catalogs with a . . . ‘broad scope’ mean that ‘plaintiffs

its terms and effect,’ thereby rendering the document ‘integral’ to the complaint.” United States
ex rel. Foreman v. AECOM, 19 F.4th 85, 106 (2d Cir. 2021) (alteration in original) (quoting
DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010)).
Here, Plaintiffs expressly refer to both Defendant’s Course Catalog and website
throughout the Complaint, (see SAC ¶¶ 3, 5–7, 36, 75–78, 81 (Course Catalog); id. ¶¶ 8–11, 13–
16, 61, 76 (Defendant’s website)), meaning “[P]laintiff[s] had to rely on their content ‘in order to
explain what the actual unlawful course of conduct was on which the [d]efendant[] embarked.’”
Pilla v. Gilat, No. 19-CV-2255, 2020 WL 1309086, at *4 (S.D.N.Y. Mar. 19, 2020) (quoting
Thomas, 232 F. Supp. 2d at 276). Therefore, the Court considers these documents integral to the
SAC and within its purview at this stage. See Gantt v. Ferrara, No. 15-CV-7661, 2017 WL
1192889, at *14 (S.D.N.Y. Mar. 29, 2017) (finding documents were integral to the complaint
where the plaintiff “relied heavily upon [them] in framing the [c]omplaint” (alterations in
original) (citation omitted)); Munno v. Town of Orangetown, 391 F. Supp. 2d 263, 269 (S.D.N.Y.
2005) (same).
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cannot plausibly allege that [the defendant] breached its contract in violation of the catalog’s
statement that certain classes would be held in person”); Romankow, 2021 WL 1565616, at *3–4
(concluding that a disclaimer in the school’s bulletin made “clear that [the institution] expressly
reserved the right to change, relocate, and/or modify its course offerings”); Smith v. Univ. of
Penn., 534 F. Supp. 3d 463, 474, (E.D. Pa. 2021) (“[The university] retained [through its
‘Suspension of Normal Operations’ provision] the right to modify and cancel classes if the
circumstances called for it, further underscoring the lack of a guarantee of in-person
instruction.”); Dougherty v. Drew Univ., 534 F. Supp. 3d 363, 378, (D.N.J., 2021) (“If, viewed in
contractual terms, the [plaintiffs] paid the University tuition in exchange for an education which
the University expressly provided that it could modify, then the [plaintiffs] have no claim of
breach based on the University’s having provided such a modified education.”), reconsideration
denied sub nom. Dougherty v. Univ., 2021 WL 2310094 (D.N.J. June 7, 2021). The Court sees
no reason as to why this reasoning would not apply with equal force with regard to in-person
learning experiences beyond classroom instruction.
Plaintiffs aim to undermine Defendant’s argument by relying on Bergeron, where the
court held that the university’s “so-called disclaimer” was insufficiently broad to immunize the
defendant university from breach of contract claims following its Covid-19-driven shutdown, see
2020 WL 7486682, at *7. (See Pls.’ Mem. 9–10.) However, Plaintiffs try to stretch Bergeron
much too far. Given the chasmic difference between the disclaimers in Bergeron and the one in
this Action, the cases are plainly distinguishable from one another. In Bergeron, the disclaimer,
in relevant part, reads: “[The university] reserves the right to alter any of its courses at any time.”
2020 WL 7486682, at *7 (citation omitted) (emphasis added). In other words, this disclaimer
speaks only to the university’s course instruction, while the Bergeron plaintiffs’ “allegations

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clearly extend beyond coursework to the entirety of the educational experience.” Id.
Accordingly, the Bergeron court found the narrow disclaimer insufficient. Id. However, the
Bergeron disclaimer is a far cry from Defendant’s exceedingly broad and fully encompassing
disclaimer, which includes both classrooms and facilities, (see Your Right To Know
(“[Defendant] reserves the right to change without notice any matter contained in this
publication, including but not limited to tuition, fees, policies, degree programs, names of
programs, course offerings, academic activities, academic requirements, facilities, faculty, and
administrators.” (emphases added))). See Bridget McCarthy v. Loyola Marymount Univ., No.
20-CV-4668, 2021 WL 268242, at *5 (C.D. Cal. Jan. 8, 2021) (rejecting a disclaimer argument
in reliance on Bergeron because the university’s disclaimer was insufficiently broad, speaking
only to changes regarding “degree program requirements, academic and administrative polices
and regulations, financial charges, and course offering” and not including additional nonclassroom related to facilities and offerings). Accordingly, the Court is not persuaded that
Bergeron sufficiently rebuts Defendant’s argument concerning the relevant disclaimer.
Plaintiffs’ reliance on a pre-Covid university breach of contract case, Deen v. New Sch.
Univ., No. 05-CV-7174, 2007 WL 1032295, (S.D.N.Y. Mar. 27, 2007), is similarly unavailing.
(See Pl.’s Mem. 10.) The Deen plaintiffs were current and former drama students at the same
university in this Action who sued following the university’s dissolution of its partnership with
The Actors Studio, a separate, prestigious organization with which the university partnered. See
2007 WL 1032295, at *1. Because the dissolution prompted changes in the drama program,
including modifying the courses and facilities as well as a unique degree jointly awarded, the
students brought breach of contract claims. See id. Ultimately, the Deen court granted summary
judgment for the university on all breach of contract claims related to modification of

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instructional methods, course offerings, faculty, and facilities, each of which sufficiently
disclaimed from a nearly identical disclaimer. See id. at *4–5. The claims on which the Deen
court granted summary judgment are directly analogous to the claims in this Action.
The only breach of contract claim the Deen court denied summary judgment pertained
specifically to the degree conferred; the university’s disclaimer in that case—like this Action—
did not expressly include the degree to which students are entitled, meaning the university would
not be within its right pursuant to the disclaimer to change the degree without notice. See id. at
*3–4. Here, Plaintiffs do not quarrel with the degree ultimately conferred, nor can Plaintiffs
reasonably argue that the disclaimer fails to incorporate the very facilities about which they
claim breach of contract. Accordingly, Deen similarly cannot salvage Plaintiffs’ breach of
contract claims and they are therefore dismissed.
3. Failure to State a Claim for Unjust Enrichment
“The basic elements of an unjust enrichment claim in New York require proof that (1)
defendant was enriched, (2) at plaintiff’s expense, and (3) equity and good conscience militate
against permitting defendant to retain what plaintiff is seeking to recover.” Briarpatch Ltd., L.P.
v. Phoenix Pictures, Inc., 373 F.3d 296, 306 (2d Cir. 2004); see also Kaye v. Grossman, 202 F.3d
611, 616 (2d Cir. 2000) (holding that, under New York law, a claim for unjust enrichment
demands that a plaintiff allege “1) that the defendant benefitted; 2) at the plaintiff’s expense; and
3) that equity and good conscience require restitution.” (internal quotation marks omitted)).
Unjust enrichment “lies as a quasi-contract claim” that “contemplates ‘an obligation imposed by
equity to prevent injustice, in the absence of an actual agreement between the parties,’” Ga.
Malone & Co. v. Rieder, 973 N.E.2d 743, 746 (N.Y. 2012) (citation omitted), and such claims
are available “only in unusual situations when, though the defendant has not breached a contract

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nor committed a recognized tort, circumstances create an equitable obligation running from the
defendant to the plaintiff,” such as when “the defendant, though guilty of no wrongdoing, has
received money to which he or she is not entitled,” Corsello v. Verizon N.Y., Inc., 967 N.E.2d
1177, 1185 (N.Y. 2012). However, “[a]n unjust enrichment claim is not available where it
simply duplicates, or replaces, a conventional contract or tort claim.” In re Columbia, 523 F.
Supp. 3d at 430 (quoting Corsello, 967 N.E.2d at 1185); see also Stanley v. Direct Energy Servs.,
LLC, 466 F. Supp. 3d 415, 430–31 (S.D.N.Y. 2020) (gathering authorities for the proposition
that “where the validity of a contract that governs the subject matter at issue is not in dispute, and
the claimant alleges breach of the contract, the claimant cannot plead unjust enrichment in the
alternative under New York law”).
Defendant argues that Plaintiffs’ claim for unjust enrichment, (see SAC ¶¶ 87–93), is
duplicative of its breach of contract claim and thus must be dismissed, (Def.’s Mem. 21–22).
Defendant alternatively argues that Plaintiff has not sufficiently plead the elements of such an
unjust enrichment claim, even if they were entitled to assert such a claim. (Id. at 22–23.)
Plaintiffs rebut Defendant by framing the latter’s argument as questioning the existence of a
contract. (Pls.’ Mem. 18–19.)
Plaintiffs plainly misconstrue Defendant’s argument: Defendant does not “disput[e] the
nature and existence” of a contract, implied or otherwise, (id.); as the Court noted in its prior
opinion, “[t]hough the Parties dispute the scope of the contractual relationship, and whether it
encompassed certain promises and obligations, they do not contest the existence of the
contractual relationship itself,” (2021 Op. 28 n.8). Defendant has not abandoned this argument,
but only reaffirmed and elucidated its position as to what it promised Kaitlyn following her
matriculation to the university and her subsequent payment of tuition. (See Def.’s Mem. 9–21;

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Def.’s Reply Mem. 3–10.) To that end, Defendants are correct that “Plaintiffs’ unjust
enrichment claim must be dismissed as duplicative of Plaintiffs’ breach of contract cause of
action.” (Def.’s Mem. 21; see also 2021 Op. 28–29 (collecting cases to show that a university
student plaintiff cannot sustain an unjust enrichment claim where there exists a contract or quasicontract between the plaintiff and the university if the alleged unjust enrichment replicates the
breach of contract action).) 8

8

Additionally, the Court notes that Plaintiffs’ claims for unjust enrichment would also
fail on the merits. “When assessing considerations of equity and justice, courts generally
consider, among other things, ‘whether the defendant’s conduct was tortious or fraudulent.’”
Hassan v. Fordham Univ., 515 F. Supp. 3d 77, 93 (S.D.N.Y. 2021) (quoting Clark v. Daby, 751
N.Y.S.2d 622, 624 (App. Div. 2002)), opinion amended and superseded on other grounds, 533
F. Supp. 3d 164 (S.D.N.Y. 2021). Because Plaintiffs failed to allege any facts that “rise to the
level of tortious or fraudulent conduct sufficient to support an unjust enrichment claim,” Hassan,
533 F. Supp. 3d at 169, Plaintiffs’ unjust enrichment claims must be dismissed.
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III. Conclusion
For the foregoing reasons, Defendant’s Motion is granted and the Complaint is dismissed
with prejudice. See Denny v. Barber, 576 F.2d 465, 471 (2d Cir. 1978) (holding that the plaintiff
was not entitled to “a third go-around”); Maione v. Zucker, No. 18-CV-7452, 2022 WL 784483,
at *9 (S.D.N.Y. Mar. 15, 2022) (granting motion to dismiss with prejudice where “[the]
[p]laintiff has already had two bites at the apple, and they have proven fruitless” (quoting Melvin
v. County of Westchester, No. 14-CV-2995, 2016 WL 1254394, at *24 n.19 (S.D.N.Y. Mar. 29,
2016)); Bryant v. Capra, No. 18-CV-10198, 2021 WL 323263, at *5 (S.D.N.Y. Feb. 1, 2021)
(same). 9 The Clerk is respectfully directed to terminate the Motion to Dismiss, (Dkt. No. 44),
and to close this case.
SO ORDERED.
DATED:

May 6, 2022
White Plains, New York

____________________________________
KENNETH M. KARAS
UNITED STATES DISTRICT JUDGE

9

“[T]o the extent that Plaintiff[s] seeks to represent a proposed class, those allegations
cannot survive where Plaintiff[s’] individual claims have failed to state a claim, as they have
failed to do so here.” Poughkeepsie Waterfront Dev. LLC v. Travelers Indem. Co. et al., No. 20CV-4890, 2021 WL 4392304, at *3 n.4 (S.D.N.Y. Sept. 24, 2021). Thus, the Court will not
consider allegations related to the proposed class.
26