Goldberg v. Pace Univ.

88 F.4th 204

Brett GOLDBERG, Plaintiff-Appellant, v. PACE UNIVERSITY, Defendant-Appellee.

Docket No. 21-1377

August Term, 2023

United States Court of Appeals, Second Circuit

Argued: May 19, 2022

Decided: December 8, 2023

Morris E. Cohen (Lee A. Goldberg, on the brief), Goldberg Cohen LLP, New York, NY for Brett Goldberg.

Johnathan B. Fellows (Suzanne M. Messer, on the brief), Bond, Schoeneck & King, PLLC, Syracuse, NY for Pace University.

Before: Raggi, Carney, and Nathan, Circuit Judges.

Carney, Circuit Judge:

Brett Goldberg sued Pace University for breach of contract, unjust enrichment, promissory estoppel, and violation of New York General Business Law § 349 after the onset of the COVID-19 pandemic caused Pace to postpone certain aspects of Goldberg's master's degree program in the performing arts and to move other aspects online during the spring 2020 semester. On Pace's motion for judgment on the pleadings, the district court dismissed Goldberg's complaint as to all but an ancillary claim for fees that is no longer at issue. Goldberg v. Pace Univ., 535 F. Supp. 3d 180 (S.D.N.Y. 2021) (Engelmayer, J.).

The court concluded that Goldberg's claims were not ripe as to the program's postponed components for two reasons: first, an explicit provision in Pace's graduate course catalog, the Emergency Closings provision, incorporated into Goldberg's complaint by reference, entitled Pace in its discretion to reschedule courses and assignments in the event of unforeseen circumstances beyond the University's control; second, the complaint showed that Pace planned to conduct the postponed components after pandemic-related restraints were relaxed.

It also determined that Goldberg failed to state a claim as to Pace's transition of some of Goldberg's classes to an online format in the remaining weeks of the spring 2020 semester. It reasoned that Goldberg did not identify any sufficiently specific promise by Pace to provide only in-person instruction and that such a promise was required by New York law to sustain a student's breach of contract claim against a university. The district court further ruled that Goldberg's unjust enrichment and promissory estoppel claims failed both on the merits and because they were impermissibly duplicative of his breach of contract claims, and that his § 349 claims were wanting because "the facts pled do not, at all, make out a deceptive business practice." Id. at 201.¹

On de novo review, we conclude that the Emergency Closings provision set forth in Pace's Graduate School Course Catalog permitted Pace to delay some aspects of Goldberg's program, making Goldberg's postponement-related claims not ripe. We also decide that the Emergency Closings provision allowed Pace to move four of Goldberg's courses online from March through May; accordingly, we do not reach the question whether Goldberg sufficiently alleged a specific promise of in-person instruction as to those courses. We further agree with the district court that Goldberg's unjust enrichment and promissory estoppel claims warranted dismissal because they were impermissibly duplicative of his breach of contract claim. And, on appeal, Goldberg does not challenge the dismissal of his § 349 claim and has disclaimed any intent to pursue his ancillary claim for fees. Accordingly, we affirm the district court's award to Pace of judgment on the pleadings.

BACKGROUND²

A. The Actors Studio MFA Program

In 2017, Brett Goldberg enrolled in Pace's Master of Fine Arts (MFA) program, also known as the Actors Studio Drama School, or "Actors Studio." The Actors Studio is a three-year graduate degree program for aspiring actors, directors, and playwrights. An important part of the program is the Repertory Season, or "Rep Season," during which students work together to produce a professional grade play and to stage it for "representatives from the theater, film, and television industries." Second Amended Complaint ("Complaint") ¶ 2. Pace's marketing materials described the Rep Season as the "culmination" of students' time in the Actors Studio and as their "introduction to the professional theater world." Id. ¶ 6.

Pace's public marketing materials also highlighted other aspects of the Actors Studio program. For example, its informational webpage about the Actors Studio stated that all of its students "train side-by-side as actors," that the school's "black-box studios for professional training are designed and equipped according to state-of-the-art standards," and that its location in New York City gave Actors Studio students "incomparable resources for the development of their art and the launching of their careers." Id. ¶ 27.³ Although Pace also offered certain graduate programs that were fully online, its materials did not identify the Actors Studio as an online program, and tuition for the Actors Studio was significantly more expensive than Pace's online offerings. Id. ¶¶ 25-26.

Along with its program-related text, Pace's 2019-20 Graduate Catalog addressed "Emergency Closings and Other Changes in Class Schedules." It stated in relevant part:

Occasionally, the University is confronted by the need to close because of inclement weather or other reasons beyond the University's control . . . . Although classes are planned to commence and conclude on the dates indicated in the academic calendar, unforeseen circumstances may necessitate adjustment to class schedules and extension of time for completion of class assignments. Examples of such circumstances may include faculty illness, malfunction of University equipment (including computers), unavailability of particular University facilities occasioned by damage to the premises, repairs or other causes, and school closings because of inclement weather. The University shall not be responsible for the refund of any tuition or fees in the event of any such occurrence.

App'x at 218 (the "Emergency Closings provision").

Goldberg is an aspiring playwright. In his third year of the Actors Studio program, which was scheduled to end on May 16, 2020, he collaborated with his classmates to stage one of his own plays. The production was to take place during the Spring 2020 Rep Season. As part of the project of staging his play, Goldberg and his classmates were required to take a class called the Process Lab, during which they would collaborate on production particulars. Goldberg was also enrolled in four other classes: "Voice and Speech 3.2," "Improvisational Movement 6," "Playwriting 6," and "Film and TV Writing Workshop II." App'x at 226.⁴

During the first six weeks of the spring 2020 semester, which began on January 27, 2020, these classes were held in person, as had been Goldberg's previous five semesters of Actors Studio classes. Pace's policies required in-person attendance; students were advised that failure to attend could affect their grades. Compl. ¶ 20.

B. Pandemic-related Disruptions

As the world well knows, the COVID-19 pandemic reached New York City in early 2020. Starting on March 7, Governor Andrew Cuomo declared a state of emergency and began issuing orders restricting public activities. See Rynasko v. New York Univ., 63 F.4th 186, 191 & n.4 (2d Cir. 2023) (taking judicial notice of New York executive orders). By email dated March 10, Pace advised students that it had decided—effective March 11 and subject to further updates—to suspend in-person class meetings through March 29, "to keep everyone in [its] community healthy." See id. ¶ 80 n.7.⁵

Pace determined that the Rep Season could neither go forward as scheduled nor transition effectively to an online format. Instead, on March 12, Pace put the Rep Season "on hold," aiming to "re-boot" and resume production on either March 30 (Plan A) or August 31, 2020 (Plan B), depending on how the pandemic developed. App'x at 52-53. Pace also postponed the remaining five sessions of the Process Lab and stated its intention to "more than ma[k]e up for" those sessions once preparation for the "future Rep Season" resumed. Id. at 51.

On March 18, as it became clear that the pandemic was not going to abate in a matter of weeks, Pace advised students that it had decided to continue online instruction of classes through the rest of the spring semester and that it had postponed Commencement. Compl. ¶ 82.⁶ See also App'x 213 (Executive Order [A. Cuomo] No. 202.6, 9 NYCRR § 8.202.6 (Mar. 18, 2020)).

C. Procedural History

Goldberg filed suit on May 13, 2020, alleging that Pace breached its contract with him by refusing to refund the tuition he had paid for the Actors Studio program. Compl. ¶ 44. He sought either a full refund of the $90,000 he had paid in tuition and fees over the course of his two and one-half years to date in the Actors Studio program, or an unspecified pro rata reimbursement of his tuition, along with compensation for "the value of the Rep-Season." Id. ¶ 11; see id. ¶¶ 50-52, 79. In the alternative to his breach of contract claims, he brought claims for unjust enrichment, promissory estoppel, and for "deceptive business practices" in violation of New York General Business Law § 349. See id. ¶ 11.

After Goldberg twice amended his complaint and Pace answered, Pace moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). The district court denied Pace's motion as to Goldberg's claim for refund of certain non-tuition fees,⁷ but granted Pace's motion as to all other claims.

Goldberg timely appealed. We held decision on the appeal pending this Court's determination of an earlier case that raised similar New York law questions regarding alleged breaches of student-university contracts arising from the pandemic. See Rynasko, 63 F.4th 186, rehearing en banc denied (Jul. 31, 2023), ECF No. 154.

DISCUSSION

We review de novo a district court's grant of a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011). "To survive a motion for judgment on the...