Evans v. Brigham Young Univ.

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ROSCOE EVANS, an individual on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. BRIGHAM YOUNG UNIVERSITY, a Utah corporation, Defendant-Appellee.

No. 22-4050

United States Court of Appeals, Tenth Circuit

May 5, 2023

(D.C. No. 1:20-CV-00100-TS-CMR) (D. Utah)

Before TYMKOVICH, BACHARACH, and PHILLIPS, Circuit Judges.

ORDER AND JUDGMENT ^[*]

Gregory A. Phillips, Circuit Judge

The COVID-19 pandemic disrupted life for people around the world. College students were no exception. When the pandemic hit in March 2020, universities across the country shut down their campuses, and students finished their classes online. Named Plaintiff Roscoe Evans was one of these affected students. After Brigham Young University (BYU) moved the last month of its Winter 2020 semester online because of the pandemic Evans brought a class action lawsuit on behalf of all persons who paid tuition or fees to attend inperson classes at BYU. The district court denied class certification because this class wasn't ascertainable. Evans's proposed class left the district court unable to discern who actually paid a student's tuition and whether the payor did so for the purpose of attending in-person classes. Because the district court did not abuse its discretion when it denied class certification we affirm the district court's order.

BACKGROUND

Evans registered for Winter 2020 semester classes at BYU. As part of class registration, Evans paid $2,895 in tuition and fees. The payment came from various sources, including his personal contributions, family contributions, and a federal direct subsidized loan. Tuition at BYU ranged from $2,800 to $5,900 per semester for undergraduate students and $430 to $860 per credit hour for graduate students. The tuition was the same whether a student enrolled in in-person or online classes.

Evans also signed a Financial Responsibility Declaration (FRD) which stated that he "accept[ed] full responsibility to pay all tuition, fees, and other associated costs assessed as a result of [his] registration and/or receipt of services."^[1] BYU required all enrolled students to sign the FRD for each school year that they attended classes. Had Evans not signed the FRD, he could not have registered for classes or used campus services.

The Winter 2020 semester started on January 6, 2020. Two months later, on March 6, 2020, the Utah Governor declared a "State of Emergency" to "prepare for the likely arrival of the [COVID-19] virus in Utah." Exec. Order, Declaring a State of Emergency Due to Infectious Disease Covid-19 Novel Corona Virus (Utah Mar. 6, 2020), https://governor.utah.gov/eo-2020-1/. Soon after-in response to the pandemic-BYU moved all in-person classes online. From March 13, 2020, until the semester's end on April 15, 2020,^[2] BYU conducted classes by online instruction. BYU also closed many campus facilities, including its health center and fitness centers, and canceled attendance at in-person events such as sporting matches and commencement. Evans alleges that as a result, all students could not use campus facilities and receive the in-person instruction that they expected when they paid tuition for the Winter 2020 semester.

The University did not refund any portion of the students' tuition or fees. The University continued online instruction through the rest of 2020. Despite the partially online education, Evans completed his classes for the Winter 2020 semester and obtained his bachelor's degree in computer science from BYU at the end of the Winter 2021 semester.

In response to the unexpected switch to online education, Evans brought a class-action lawsuit against BYU under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2)(A).^[3] He alleged two grounds for relief: breach of contract and unjust enrichment. Evans stated that BYU had breached its contract with students by failing to "provide an in-person and on-campus live education" during semesters that moved to online classes because of COVID-19. Once students had paid their tuition and fees, they expected "in-person and on-campus educational services," but they did not receive the full benefit of the promised in-person education.

Evans alleged that BYU had been unjustly enriched when it retained all tuition payments. Evans and the class "paid tuition and fees with the expressed understanding that such costs included the in-person classes, services, opportunities, and experiences that BYU [had] previously marketed, promoted, or made available prior to Covid-19." But BYU "retained the benefits of the amount of tuition and fees that Plaintiffs have provided - without providing the benefits that Plaintiffs are owed."

After BYU responded to the complaint, Evans moved for class certification. Evans asked the district court to certify the following class:

All persons who paid tuition and/or the Mandatory Fees to attend inperson class(es) during the Winter 2020 term/semester affected by COVID-19 at BYU and had their class(es) moved to online only learning.

App. vol. 1, at 49. Evans argued that the proposed class met all four requirements of Federal Rule of Civil Procedure 23(a). Specifically, Evans assured the district court that the proposed class met Rule 23(a)(1)'s numerosity requirement because about 33,000 students were enrolled at BYU for the 2019-2020 school year.

BYU opposed class certification, in part because it could not ascertain the identity of "all persons who paid tuition" in the proposed class definition. BYU pointed out that it "receives tuition payments for students from a variety of sources," including family members, individual students, loans, grants, and scholarships. Because BYU lacked records showing who paid the tuition for individual students, it contended that it could not identify the class members. And since the class was unascertainable, BYU contended that the proposed class did not satisfy Rule 23(a)(1)'s numerosity requirement.

The district court held a hearing on the motion for class certification, where it alerted the parties that it was "concerned about ascertainability and whether or not this class is identifiable." In response to this concern, Evans stated that he didn't "see ascertainability as much of a problem" because "[t]he students were the obligors of the payment of tuition and fees." He contended that any other view would "eviscerate basic contract law." The district court asked Evans if he could "identify . . . the number of students who actually paid their own tuition and fees during the winter semester of 2020[.]" Evans admitted that he could not "because that was not subject to discovery" but "didn't envision that as being material to the definition of the class."

BYU also addressed this issue, stating that "the proposed class is not talking about family and friends giving students money and then the students pay [tuition to BYU]." "Rather, their proposed class is persons who actually paid the tuition to BYU. That definition necessarily requires the Court to determine who are all such persons." Because BYU lacked records showing who had paid tuition for individual students, it argued that the district court would need "to conduct an individual and administratively unfeasible inquiry to determine who made all tuition payments for all 30 some odd thousand students during that winter of 2020 semester."

In response, Evans stated that BYU credited the students (not third-party payors) once tuition and fees were paid into the student's account. And it was the students who could not attend in-person classes if they did not pay tuition. The agreement to pay tuition in exchange for class registration "is between the university and the student." Evans concluded by stating that the court's "question about ascertainability really goes to damages."

After the hearing, the court issued a written order denying Evans's motion for class certification. Evans v. Brigham Young Univ., No. 20-CV-100-TS, 2022 WL 596862 (D. Utah Feb. 28, 2022). The court noted that a proposed class must satisfy all four threshold requirements of Federal Rule of Civil Procedure 23(a). Id. at *2. But Evans's proposed class could not satisfy Rule 23(a)(1)'s numerosity requirement. Id. at *3-4. Though Evans "identified 33,000 BYU students enrolled during the Winter 2020 semester," he could not identify "any ascertainable number of individuals who paid tuition to attend in-person classes." Id. at *3.

The court noted two main problems with Evans's ascertainability showing. First, BYU's records did not "reflect whether the student or a third party paid the tuition." Id. (footnote omitted). And so the proposed class was "not identifiable by 'objective criteria'" because BYU did not have records of "all people who paid tuition and/or fees to attend in-person class(es) during the Winter 2020 semester." Id. (footnote omitted). Even though Evans argued that the students were responsible to pay tuition and fees under the FRD, the court noted that the "plain language" of the proposed class definition was "'all persons who paid tuition and/or fees to attend in person classes,' not all students who signed a[n] [FRD]." Id. at *4.

Second even if the proposed class could be identified using only the FRD, all students (regardless of whether they were enrolled in on-campus or online classes and regardless of whether they paid tuition and fees themselves) signed the FRD. Id. Thus, "the Court would have to individually inquire whether [the students who paid their own tuition] made those payments to attend in-person classes." Id. (emphasis added). The court found that this type of individualized inquiry was not administratively feasible. Id. Because Evans's proposed class was unascertainable, "class certification [was] inappr...