Burt v. Bd. of Trs. of Univ. of R.I.

84 F.4th 42

Sean BURT, individually and on behalf of himself andall others similarly situated, and Logan Thomson,individually and on behalf of himself andall others similarly situated, Plaintiffs, Appellants, v. BOARD OF TRUSTEES OF the UNIVERSITY OF RHODE ISLAND, Defendant, Appellee.

No. 23-1188

No. 23-1192

United States Court of Appeals, First Circuit

October 13, 2023

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. John J. McConnell, Jr., U.S. District Judge] Paul J. Doolittle, with whom Todd M. Friedman, Law Offices of Todd M. Friedman, P.C., Jason A. Ibey, Kazerouni Law Group, Peter N. Wasylyk, Law Offices of Peter N. Wasylyk, Blake G. Abbott, Roy T. Willey, IV, Eric M. Poulin, Poulin, Willey, Anastopoulo, LLC, Robert J. Caron, Caron Law Office, John M. Bradham, Peter B. Katzman, and Morea Schwartz Bradham Friedman & Brown LLP were on brief, for appellants.

Kathleen M. Sullivan, with whom Alex H. Loomis, Crystal Nix-Hines, Shon Morgan, Marina Lev, and Quinn Emanuel Urquhart & Sullivan, LLP were on brief, for appellee.

Before Kayatta, Selya, and Gelpí, Circuit Judges.

SELYA, Circuit Judge.

The COVID-19 pandemic left a great many casualties in its roiled wake. Institutions of higher education were not spared. These appeals, which arise out of the curtailment of classes and services at the University of Rhode Island (URI) during the first months of the pandemic, are emblematic of the point.¹ The district court dismissed some of the plaintiffs' claims early in the litigation and proceeded — after the close of discovery — to grant summary judgment in favor of URI on the remaining claims. The plaintiffs appeal. Although our reasoning differs in certain respects from that of the district court, we affirm.

I

We briefly rehearse the relevant facts and travel of the case. For this purpose, we construe the facts in the light most flattering to the nonmoving parties (here, plaintiffs-appellants Sean Burt and Logan Thomson) and draw all reasonable inferences in their favor. See Aubee v. Selene Fin. LP, 56 F.4th 1, 4 (1st Cir. 2022); Pleasantdale Condos., LLC v. Wakefield, 37 F.4th 728, 730 (1st Cir. 2022). Of course, different ground rules apply to motions to dismiss and motions for summary judgment. Compare Lanza v. Fin. Indus. Regul. Auth., 953 F.3d 159, 161 (1st Cir. 2020) (explaining that in review of decision granting motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) facts are drawn from complaint and attachments), with McKenney v. Mangino, 873 F.3d 75, 78 (1st Cir. 2017) (explaining that evidence of record supplies template for review of decision granting summary judgment under Federal Rule of Civil Procedure 56). In our ensuing discussion, we adjust as needed for these differences.

A

URI is a public research university with a main campus in Kingston. In the spring semester of 2020, Burt was enrolled at URI as a full-time undergraduate student and Thomson was enrolled as a part-time undergraduate student.

To enroll, the plaintiffs were required to pay tuition and mandatory fees. The fees included a student services fee, a technology fee, and a health services fee. The multi-layered student services fee was composed of a student activities fee, a fee for the Memorial Union, a fee for the Fitness and Wellness Center (Fitness Center), a transportation fee, and a fee for capital projects.²

The dollar amounts for tuition and for fees were laid out in URI's 2019-2020 catalog. The catalog reserved a number of rights to the university. As relevant here, it stated:

• "Tuition, fees, and policies set forth in this catalog are subject to change without notice."

• "The student services fee covers the cost of the Memorial Union, transportation, Fitness and Wellness Center, and capital projects. The undergraduate [activities] fee supports funds that are distributed to the Student Senate for a wide variety of student programs and activities."

• "The technology fee covers the cost of various University technology expenses."

• "The health [services] fee covers the cost of . . . routine office visits with URI staff providers . . . ambulance/emergency transport services . . . pharmacy . . . administrative services provided at Health Services, and health education."

B

URI's spring semester began as scheduled on January 22, 2020. On March 9, though, the tectonic plates shifted: Rhode Island's chief executive, Governor Gina Raimondo, issued an executive order declaring a statewide disaster emergency in view of the rapid spread of COVID-19. One week later, she prohibited gatherings of twenty-five people or more. And on March 28, she issued a stay-at-home order proscribing gatherings of more than five people.

In response, URI — like nearly all other colleges and universities in the country — moved its in-person classes online for the remainder of the semester, required almost all students to vacate campus housing, closed its recreation facilities (including the Fitness Center), and cancelled most in-person student services. Although URI offered a twenty-five percent refund of housing and meal-plan payments, it declined to refund any portion of tuition or other mandatory fees.

The plaintiffs remained enrolled at URI and continued to make progress toward their degrees even as the university shifted instruction online and restricted access to its campus. But they took steps to recover all or part of the tuition and fees that they had paid, filing separate putative class actions against URI.³ Their complaints alleged breach of contract and unjust enrichment.

Specifically, each plaintiff alleged that he had entered a contract in which he paid tuition and fees to URI in return for URI's promises to provide both in-person, on-campus instruction and access to campus facilities and activities. The plaintiffs argued that the alleged contracts and promises were made either expressly or implicitly. And they argued that URI had breached its contract when it stopped providing in-person, on-campus instruction and circumscribed access to the campus. In the alternative, they argued that URI had been unjustly enriched by its retention of tuition and fees. As relevant here, they sought to recover pro-rated tuition and fees.

These actions were not only consolidated with each other, see supra note 3, but also were consolidated with similar actions against three other universities located in Rhode Island. All four universities moved to dismiss the pending complaints for failure to state claims upon which relief could be granted.⁴ See Fed. R. Civ. P. 12(b)(6). With respect to URI, the district court granted the motions to dismiss regarding the tuition claims but denied them regarding the fee claims. See Burt v. Bd. of Trs. of Univ. of R.I. (Burt I), 523 F. Supp. 3d 214, 228 (D.R.I. 2021). The district court first determined that URI made no enforceable contractual promise to provide in-person, on-campus instruction. See id. at 221-22. In addition, the court determined that URI had reserved the right to alter the administration of its academic offerings unilaterally, including transferring instruction to an online format. See id. at 223.

There was more. The court proceeded to dismiss the plaintiffs' implied breach of contract claims regarding tuition. It noted that the plaintiffs had not "allege[d] breach of implied contract specifically," id. at 223 n.10, but nonetheless went on to state that any such claim was impuissant because the plaintiffs had not sufficiently alleged that anything in the university's conduct "suggest[ed] an intent to promise access to in-person education," id. at 223.

So, too, the court dismissed the unjust enrichment claims as to tuition. The plaintiffs, it concluded, had failed sufficiently to allege that it was unjust for URI to retain tuition — "the school[ ] provided students with the promised courses and credits, while constantly adapting in the face of the pandemic no less." Id. at 225.

The district court viewed the fee claims differently. To that extent, the court denied URI's motions to dismiss on the ground that the plaintiffs had made "plausible claims that they reasonably expected certain services . . . in exchange for the fees they paid." Id. at 224.

Following the completion of discovery, URI moved for summary judgment. See Fed. R. Civ. P. 56(a). The plaintiffs opposed the motion, but the district court granted it. See Burt v. Bd. of Trs. of Univ. of R.I. (Burt II), No. 20-295, — F.Supp.3d —, —, 2023 WL 1408202, at *9 (D.R.I. Jan. 31, 2023). The contractual language concerning the portions of the student services fee charged for student activities, transportation, and capital projects was — the court concluded — insufficient to create a specific or unconditional obligation for in-person access to any particular facility or service. See id. at —, 2023 WL 1408202, at *3. To the contrary, the language was elastic enough to afford URI the "discretionary use of these funds." Id.

In a similar vein, the district court viewed the statement that "[t]he technology fee covers the cost of various University technology expenses" as suggesting "no particular benefit, let alone access to specific physical facilities." Id. at —, 2023 WL 1408202, at *5. And as to the health services fee, the court concluded that the plaintiffs had failed to produce evidence adequate to make out a genuine issue of material fact. See id.

To wrap up the package, the district court granted URI's motion with respect to the portions of the student services fee charged for the Memorial Union and the Fitness Center. It determined that the record left genuine issues of material fact about what a student's reasonable expectations might be concerning the contractual obligations attached to these fees and whether URI had met those expectations. Still, the court concluded that COVID-19 and the governor's ensuing prohibitions on public gatherings substantially frustrated and made impossible or impracticable the principal...