Ferretti v. Nova Se. Univ., Inc.

586 F.Supp.3d 1260

Leo FERRETTI, individually and on behalf of all others similarly situated, Plaintiff,

v.NOVA SOUTHEASTERN UNIVERSITY, INC., Defendant.

CASE NO. 20-CIV-61431-RAR

United States District Court, S.D. Florida.

Signed February 16, 2022

Brenton Jeremy Goodman, Rebecca K. Timmons, Matthew David Schultz, Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A., Pensacola, FL, Patrick F. Madden, Pro Hac Vice, Berger & Montague, P.C., Philadelphia, PA, for Plaintiff.

Mendy Halberstam, Allison Gluvna Folk, David Zvi Feingold, Shayla Nicole Waldon, Jackson Lewis P.C., Miami, FL, Stephanie Leigh Adler-Paindiris, Jackson Lewis, Orlando, FL, Richard Arthur Beauchamp, Panza Maurer & Maynard, Fort Lauderdale, FL, for Defendant.

ORDER DENYING MOTION FOR DISPOSITIVE RELIEF UNDER FLORIDA STATUTE SECTION 768.39

RODOLFO A. RUIZ II, UNITED STATES DISTRICT JUDGE

Nearly every segment of society has been impacted, in one way or another, by the COVID-19 pandemic. Higher education is no exception. Throughout the state of Florida, many colleges and universities took measures to promote the health and safety of their students, faculty, and staff in the early days of the pandemic. These efforts—which often involved the online delivery of educational services and limited access to campus facilities—have been met with increased litigation. To stem this tide of COVID-related litigation, the Florida Legislature and the Governor responded by immunizing colleges and universities from liability via the passage of section 768.39—the Florida Immunity Statute for Educational Institutions for Actions Related to the COVID-19 Pandemic ("Immunity Statute").

However, despite its laudable purpose, the Immunity Statute impermissibly—and unconstitutionally—impinges upon the property rights of individual plaintiffs. Thus, as explained herein, Defendant's Motion for Dispositive Relief Under Florida Statute Section 768.39 [ECF No. 66] ("Motion"), which seeks to dismiss Plaintiff's claims with prejudice pursuant to the Immunity Statute, is DENIED .¹

BACKGROUND

This action joins a flurry of cases brought by disgruntled college students against their schools for moving classes online in response to a global pandemic. In 2020, Plaintiff Leo Ferretti was enrolled at Defendant Nova Southeastern University as a full-time undergraduate student during the winter academic term. First Am. Compl. ("FAC") [ECF No. 25] ¶ 1. Defendant is a private, for-profit educational institution based in Fort Lauderdale, Florida, that offers a variety of course delivery options to its approximately 25,000 students. Id. ¶¶ 12, 13, 24.

Defendant's undergraduate tuition for the 2019–20 academic year was $15,575 per semester. FAC ¶ 21. In addition to the tuition, Defendant charges fees for explicitly delineated purposes, including a Student Services Fee of $250 per semester for students taking one to three credits or $500 per semester for students taking four or more credits. Id. Defendant describes the Student Services Fee as used "to help offset university expenses for classroom technology, labs, facilities, curriculum enhancement, parking technology, and other student services." Id. For the 2019–20 academic year, Defendant offered 242 degree programs. Id. ¶ 24. Students can apply to degree programs offered at one of Defendant's eight regional campuses in a "variety of formats including traditional day, evening, online, or off-campus." Id. Sixty-six of Defendant's degree programs are offered entirely online. Id.

Defendant differentiates between "face-to-face" and "online" instruction. FAC ¶ 29. Face-to-face classes may include some online instruction but principally comprise "regular classroom instruction." Id. Online students, by contrast, make use of "email, bulletin boards, chat rooms, electronic journals, synchronous conferencing tools, content-sharing tools, video lectures, and other digital and web-based tools and resources" without any "classroom instruction." Id. Some courses are "hybrid," which the Student Catalog describes as those in which students complete "a portion of activities in the on-ground classroom" and a portion online. Id.

In response to official guidance on the global COVID-19 pandemic, on March 13, 2020, Defendant suspended all in-person classes and announced it would resume instruction on March 23, 2020, exclusively online. FAC ¶ 2. All athletic events were canceled, dining and recreational facilities were closed, on-campus transportation was suspended, tutoring and testing services were unavailable, and no gatherings of more than fifty people were permitted at any university location. Id. Defendant did not reopen access to its on-campus, in-person facilities, events, or services, nor did it provide in-person instruction, through the end of the winter 2020 term. Id. ¶ 3.

Shortly after the winter term, Plaintiff filed his class action Complaint [ECF No. 1] on July 15, 2020, followed by his FAC [ECF No. 25] on September 25, 2020. The FAC alleges two counts: (1) breach of contract for unilaterally changing the terms of the parties’ agreement by transitioning Plaintiff from an on-campus program to an online program, and (2) unjust enrichment for retaining the full benefit of Plaintiff's tuition, which was charged at the rate for full on-campus instruction. FAC ¶¶ 100–132. On October 16, 2020, Defendant filed a motion to dismiss, which was fully briefed. [ECF Nos. 32, 39, 41].

While Defendant's motion to dismiss was pending, the Florida Legislature passed and the Governor signed the Immunity Statute, which became effective on July 1, 2021. Subsection (1) of the Immunity Statute sets out the Legislature's findings:

The Legislature finds that during the COVID-19 public health emergency, educational institutions had little choice but to close or restrict access to their campuses in an effort to protect the health of their students, educators, staff, and communities. Despite these efforts, more than 120,000 cases of COVID-19 have been linked to colleges and universities nationwide, and the deaths of more than 100 college students have been attributed to the disease. The Legislature further finds that lawsuits against educational institutions based on their efforts to provide educational services while keeping students, faculty, staff, and communities safe during the COVID-19 public health emergency are without legal precedent. One court has even acknowledged that the "legal system is now feeling COVID-19's havoc with the current wave of class action lawsuits that seek tuition reimbursement related to forced online tutelage." Under these circumstances, the Legislature finds that there is an overpowering public necessity for, and no reasonable alternative to, providing educational institutions with liability protections against lawsuits seeking tuition or fee reimbursements or related damages resulting from the institutions changing the delivery of educational services, limiting access to facilities, or closing campuses during the COVID-19 public health emergency.

Fla. Stat. § 768.39(1). The statute defines "educational institution" to include both public and nonpublic postsecondary institutions. Id. § 768.39(2).

Subsection (3)(a) establishes an affirmative defense of immunity for any "educational institution that has taken reasonably necessary actions in compliance with federal, state, or local guidance to diminish the impact or the spread of COVID-19" against "any civil damages, equitable relief, or other remedies relating to such actions." Fla. Stat. § 768.39(3)(a). This provision sets out a non-exclusive list of "reasonably necessary actions taken while a state of emergency was declared": (1) "Shifting in-person instruction to online or remote instruction for any period of time;" (2) "Closing or modifying the provision of facilities, other than housing or dining facilities, on the campus of the educational institution;" or (3) "Pausing or modifying ancillary student activities and services available through the educational institution." Id. Under the statute, "[t]he provision of in-person or on-campus education and related services" is deemed to have been "impossible" during any time in which educational institutions were responding to COVID-19, id. § 768.39(3)(b), and all reasonably necessary actions, as defined in subsection (3)(a), are "deemed justified" owing to "the various governmental orders and the need for educational institutions to protect their communities," id. § 768.39(3)(c).

In addition to its built-in affirmative defenses, the Immunity Statute includes a provision governing evidence: "invoices, catalogs, and general publications of an educational institution are not evidence of an express or implied contract to provide in-person or on-campus education and related services or access to facilities during the COVID-19 public health emergency" in a suit against an educational institution. Fla. Stat. § 768.39(4). It also codifies a heightened burden of proof in COVID-19 tuition cases, requiring that a plaintiff present clear and convincing evidence that he or she is entitled to damages. Id. § 768.39(7).

On July 15, 2021, the parties jointly moved to file briefs regarding the Immunity Statute. [ECF No. 63]. The Court granted leave for supplemental filing and removed the case from the trial calendar on July 19, 2021. [ECF Nos. 64, 65]. Defendant filed the instant Motion on August 16, 2021. [ECF No. 66].

ANALYSIS

Defendant contends that subsection (3)(a) of the Immunity Statute immunizes it, as an educational institution, from Plaintiffs’ claims. Mot. at 2–3. Defendant further argues that, even without that provision, Plaintiffs’ claims are fatally undermined by other parts of the statute, including the evidentiary provision and the provision establishing a heightened burden of proof. Id. at 3–7. Plaintiff counters that the Immunity Statute does not apply retroactively to actions pending when it became effective. Resp. at 1–9. Plaintiff...