UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Kacey Lynn and Aniecia Vargas Case No. 20-cv-632-PB v. Opinion No.

Merrimack College

MEMORANDUM AND ORDER

The COVID-19 pandemic forced colleges across the country to

move from in-person to online instruction in the Spring of 2020.

After many colleges refused to refund a portion of the tuition

students paid for what they expected would be an in-person

educational experience, class actions followed.

The named plaintiffs in this case are a student and a

parent of a student at Merrimack College. They seek to

represent a class of undergraduate and graduate students who

were enrolled at Merrimack during the Spring 2020 semester. The

complaint asserts claims for breach of contract, unjust

enrichment, a violation of New Hampshire’s Consumer Protection

Act (CPA), and money had and received. Merrimack argues in a

motion to dismiss that the complaint fails to state a claim for

relief. Its principal argument is that the complaint does not

allege a plausible claim that the college made an enforceable

promise to provide students with an in-person education. I. BACKGROUND

Merrimack is a private college located in North Andover,

Massachusetts. It has an enrollment of over 4,000 students in

undergraduate and graduate departments, including science and

engineering, business, education and social policy, health

sciences, and liberal arts.

Students registered for classes and paid tuition for the

Spring 2020 semester before the pandemic began in the United

States. In addition to a tuition charge, students were required

to pay a separate “comprehensive fee” of $1,285, which the

college assessed to cover services such as access to the

library, an on-site health center, and on-site exercise

facilities. The college also published promotional materials

that touted the quality of its facilities and the beauty of its

campus.

The college maintains an online course search function that

allows students to search for classes using multiple criteria

such as course subject, professor, meeting days and times, and

course location. Under the “method” search option, students

were able to select from several alternatives that included

“lecture only” and “internet.” Students then registered for

classes using an online class registration function that

confirmed the instructor, meeting days and times, and location

of each selected class. In accordance with Merrimack’s past

2 practices, students began the Spring 2020 semester by attending

classes in-person.

On March 10, 2020, Merrimack announced that Spring break,

originally scheduled for March 9-13, would extend to March 22,

due to concerns about COVID-19. Three days later, Merrimack

announced its decision to move all classes to an online format

through April 13 and close all campus residence areas for the

rest of the semester. On March 31, 2020, Merrimack informed

students that classes would be provided exclusively online

through the end of the semester. The college refused to refund

any tuition or mandatory fees for the Spring 2020 semester but

offered partial refunds for room and board.

Merrimack’s educational policies are described in a course

catalog made available to students when they enrolled for the

Spring semester. The catalog does not expressly promise

students that they will be provided with in-person rather than

online instruction. Instead, it states more generally that

“Merrimack College reserves the right to make[] changes at any

time with respect to regulations, course offerings, and degree

and program requirements contained in the academic catalog

without prior notice.”

II. STANDARD OF REVIEW

To survive a motion to dismiss for failure to state a

claim, a plaintiff must make factual allegations sufficient to

3 “state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal,

(2009) (quoting Bell Atl.

Corp. v. Twombly,

(2007)). This standard

“demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.”

A claim is facially plausible if it

pleads “factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.”

In testing a complaint’s sufficiency, I employ a two-step

approach. See Ocasio–Hernández v. Fortuño-Burset,

(1st Cir. 2011). First, I screen the complaint for

statements that “merely offer legal conclusions couched as fact

or threadbare recitals of the elements of a cause of action.”

(internal quotation marks and alterations omitted). A claim

consisting of little more than “allegations that merely parrot

the elements of the cause of action” may be dismissed.

Second, I credit as true all non-conclusory factual allegations

and the reasonable inferences drawn from those allegations, and

then determine if the claim is plausible.

“Plausible, of

course, means something more than merely possible, and gauging a

pleaded situation’s plausibility is a context-specific job . . .

.” Justiniano v. Walker,

(1st Cir. 2021)

(quoting Zell v. Ricci,

(1st Cir. 2020)). The

plausibility requirement “simply calls for enough fact to raise

4 a reasonable expectation that discovery will reveal evidence” of

illegal conduct. Twombly,

. The “make-or-break

standard” is that those allegations and inferences, “taken as

true, must state a plausible, not a merely conceivable, case for

relief.” Sepúlveda–Villarini v. Dep’t of Educ. of P.R.,

(1st Cir. 2010) (citing Ashcroft,

-

79).

III. ANALYSIS

Plaintiffs base their breach of contract, unjust

enrichment, and money had and received claims on what they

assert was an implied promise by Merrimack to provide its

students with an in-person education. Merrimack challenges

these claims by arguing both that plaintiffs have failed to

plead sufficient facts to support their assertion and that any

such promise is unenforceable in any event because the college

reserved the right to move classes online at any time in the

course catalog.1 I address these arguments first and then turn

to plaintiffs’ CPA claim.

1 Merrimack also attempts to recharacterize plaintiffs’ breach of contract and unjust enrichment claims as impermissible educational malpractice claims. I reject this argument, as have most courts that have considered it. See, e.g., Hassan v. Fordham Univ., No. 20-CV-3265,

, at *3 (S.D.N.Y. Jan. 28, 2021), amended in part, No. 20-CV-3265,

(S.D.N.Y. Apr. 6, 2021); Rhodes v. Embry-Riddle Aeronautical Univ., Inc., No. 6:20-cv-927-Orl-40EJK,

, at *3 (M.D. Fla. Jan. 14, 2021).

5 A. Breach of Contract, Unjust Enrichment, and Money Had and Received Claims

Plaintiffs do not allege that Merrimack ever expressly

promised to provide them with an in-person education. Instead,

they cite the college’s online course search and registration

functions, its assessment of a comprehensive fee to defray the

costs of various in-person activities, and college promotional

materials to support their contention that Merrimack made an

implied promise to educate them onsite rather than online. I

examine plaintiffs' argument by using “the standard of

‘reasonable expectation — what meaning the party making the

manifestation [here Merrimack] should reasonably expect the

other party to give it.’” Schaer v. Brandeis Univ.,

(Mass. 2000) (quoting Cloud v. Trs. of Bos. Univ.,

(1st Cir. 1983)).

Drawing all inferences in plaintiffs’ favor, as I must at

this stage of the proceedings, plaintiffs have pleaded minimally

sufficient claims for breach of contract, unjust enrichment and

money had and received. Merrimack has a well-established

history of providing its students with an in-person education.

It also promotes its campus as the place where that education

will occur and charges students a fee for what students might

reasonably expect will be in-person services. While this type

of evidence cannot by itself give rise to a binding commitment

6 to provide students with an in-person education, it can affect

how students construe the information Merrimack provides them

when they use its on-line course search and registration

functions. When I view these allegations as a whole and

construe them in the light most favorable to plaintiffs, they

state a plausible claim for relief. Whether the evidence

supporting these allegations will ultimately prove sufficient to

justify a trial will depend upon what additional information is

uncovered during the course of discovery.

Merrimack alternatively argues that plaintiffs' contract

and unjust enrichment claims fail in any event because the

college reserved the right in the course catalog to make

“changes at any time with respect to regulations, course

offerings, and degree and program requirements.” Although this

provision may ultimately prove dispositive at a later stage of

the proceedings, it is not so clearly stated that it can only

reasonably be read to preclude plaintiffs’ claims. Thus, I

agree with those courts that have concluded that further factual

development is warranted to determine whether plaintiffs have an

enforceable right to in-person instruction. See Chong v. Ne.

Univ., No. CV 20-10844-RGS,

, at *3 (D. Mass.

Dec. 14, 2020) (“Drawing all inferences in plaintiffs’ favor,

the court cannot, as a matter of law, say that no student who

read these statements could have reasonably expected that . . .

7 registering for on campus courses would entitle them to in-

person instruction.”); see also In re Bos. Univ. COVID-19 Refund

Litig., No. CV 20-10827-RGS,

, at *2 (D. Mass. Jan.

7, 2021) (“Drawing all inferences in plaintiffs’ favor, the

court cannot, as a matter of law, say that no student could have

reasonably expected that paying the tuition charged for the

Spring semester of 2020 and registering for on-campus courses

would entitle them to in-person instruction.”); Bahrani v. Ne.

Univ., No. CV 20-10946-RGS,

, at *2 (D. Mass.

Dec. 30, 2020) (same); Doe v. Bradley Univ., No. 20-1264,

, at *2 (C.D. Ill. Dec. 22, 2020) (agreeing with

reasoning of sister courts who have “largely denied

universities’ motions to dismiss on nearly identical breach of

contract claims because they found there were sufficient facts

to allege a contract for in-person instruction based on

university handbooks, catalogs, and brochures.”); Ford v.

Rensselaer Polytechnic Inst., No. 1:20-CV-470,

,

at *7 (N.D.N.Y. Dec. 16, 2020) (“What matters at this moment is

that plaintiffs have plausibly alleged that defendant

specifically promised in its circulars a bevy of in-person

academic programs that it did not provide.”); Rosado v. Barry

Univ. Inc.,

, 1157 (S.D. Fla. 2020) (holding

student sufficiently alleged existence of an implied contract

and breach arising from university’s failure to reimburse

8 student after transition from in-person to remote instruction

due to COVID-19 pandemic). Accordingly, I deny Merrimack’s

motion as to plaintiffs’ breach of contract, unjust enrichment

and money had and received claims.2

B. CPA Claim

The CPA makes it unlawful to “use any unfair method of

competition or any unfair or deceptive act or practice in the

conduct of any trade or commerce within this state.”

-A:2. The CPA provides a nonexclusive list of

unfair or deceptive acts and also recognizes that unlisted

conduct can violate the CPA if it “attain[s] a level of

rascality that would raise an eyebrow of someone inured to the

2 Merrimack also argues that plaintiffs’ unjust enrichment and money had and received claims should be dismissed because they cannot simultaneously maintain these claims while also asserting a breach of contract claim. Unjust enrichment, and money had and received claims, however, may be pleaded in the alternative. Tomasella v. Nestlé USA, Inc.,

(1st Cir. 2020); see also Lass v. Bank of Am., N.A.,

(1st Cir. 2012) (“[I]t is accepted practice to pursue both theories [unjust enrichment and breach of contract] at the pleading stage.”); see also Walbridge v. Ne. Credit Union,

(D.N.H. 2018) (citing Jelmoli Holding, Inc. v. Raymond James Fin. Servs., Inc.,

, 17 n.2 (1st Cir. 2006)) (“Generally, a claim for money had and received is construed to have the same elements as a claim for unjust enrichment, except that it is limited to enrichment by money.”). Merrimack vigorously disputes the existence of a contract for in-person education. Thus, although the amended complaint adequately pleads the existence of an implied-in-fact contract, an undisputed contract has yet to be established and plaintiffs may plead multiple theories in the alternative, even contradictory ones, at this stage in the proceeding.

9 rough and tumble of the world of commerce.” State v. Moran,

(2004) (quoting Milford Lumber Co. v. RCB Realty,

Inc.,

(2001)). Plaintiffs assert that Merrimack

violated the CPA by subtracting scholarship grants intended for

tuition from the room and board credits Merrimack offered

students when it closed the campus. I reject this argument

because plaintiffs have failed to plead sufficient facts to

support a viable CPA claim.

Plaintiffs assert that Merrimack committed a listed

violation of the CPA by “passing off goods or services as those

of another” but they have neither pleaded any facts to support

this assertion nor offered a persuasive legal argument in

defense of their position. Plaintiffs have followed a similar

tactic in arguing in the alternative that they can satisfy the

CPA’s rascality test. Neither argument is sufficient. Rule

12(b)(6) requires more from the plaintiff than a series of

conclusory statements that track the elements of a claim for

relief. Because plaintiffs have failed to plead sufficient

facts to support their CPA claim, I agree with Merrimack that

the claim must be dismissed.3

3 Because I dismiss plaintiffs’ CPA claim on the merits, I need not determine whether plaintiffs can base their claim on New Hampshire’s Consumer Protection Law even though they attended a college based in Massachusetts.

10 IV. CONCLUSION

For the foregoing reasons, defendant’s motion to dismiss

(Doc. No. 21) is granted in part and denied in part.

Plaintiffs’ CPA claim is dismissed and Merrimack’s motion to

dismiss plaintiffs’ breach of contract, unjust enrichment, and

money had and received claims is denied.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

June 24, 2021

cc: Philip Lawrence Fraietta, Esq. Benjamin T. King, Esq. Crystal Nix-Hines, Esq. Kathleen M. Sullivan, Esq. Marina Eudjienii Lev, Esq. Mark B. Rosen, Esq. Michele E. Kenney, Esq. Shon Morgan, Esq. Thomas Scott Mills, Jr., Esq.

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