United States Court of Appeals For the First Circuit

Nos. 23-1188 23-1192

SEAN BURT, individually and on behalf of himself and all others similarly situated, and LOGAN THOMSON, individually and on behalf of himself and all others similarly situated,

Plaintiffs, Appellants,

v.

BOARD OF TRUSTEES OF THE UNIVERSITY OF RHODE ISLAND,

Defendant, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. John J. McConnell, Jr., U.S. District Judge]

Before

Kayatta, Selya, and Gelpí, Circuit Judges.

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. October 13, 2023 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,

(1st Cir.

2022); Pleasantdale Condos., LLC v. Wakefield,

(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.,

, 161 (1st Cir. 2020)

1 Although the Board of Trustees of URI is the named defendant in both of the underlying actions, the university is the real party in interest. For ease in exposition, we therefore proceed as if URI itself was the defendant-appellee.

- 3 - (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,

(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

2 For some part-time students, such as Thomson, the student activities fee was not part of the student services fee but, rather, was a separate required charge. In the interest of simplification, we treat it as part of the student services fee.

- 4 - 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

- 5 - 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

3Burt's suit was filed directly in the United States District Court for the District of Rhode Island. Thomson's suit was filed in a Rhode Island state court but was subsequently removed to the federal district court. The two cases were heard together at the motion-to-dismiss stage and were formally consolidated thereafter. For present purposes, we need not distinguish between them.

- 6 - 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),

, 228 (D.R.I. 2021).

The district court first determined that URI made no enforceable

contractual promise to provide in-person, on-campus instruction.

4The other universities were Brown University, Johnson & Wales University, and Roger Williams University. We do not consider the application of any of the holdings in the present case to claims against any of these other universities. None of them are parties to these appeals.

- 7 - See

. 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

.

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,"

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,"

.

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."

.

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."

.

- 8 - 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,

, 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 *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 *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

- 9 - 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 purpose of the contract. See id. at *6-7.

The district court also rejected the claim that URI had

been unjustly enriched by retaining the whole of the plaintiffs'

fee payments. In the court's view, the record established that

URI had used the funds received from the payment of the fees to

provide virtual services to students. See id. at *9. The court

found no evidence that URI had unjustly "'pocket[ed]' the funds

from these fees." Id. In that regard, the court observed that

URI had "provided services in an alternative form" and "retain[ed]

little, if any, of the benefit that it was conferred." Id.

These timely appeals followed.

II

We review de novo a district court's allowance of a

motion to dismiss under Rule 12(b)(6). See MacDonald v. Town of

Eastham,

(1st Cir. 2014). We are not bound by the

district court's reasoning but, rather, may affirm an order of

dismissal on any ground made manifest by the record. See Haley v.

City of Boston,

(1st Cir. 2011). In conducting

this review, we accept as true all well-pleaded facts set forth in

a plaintiff's complaint and draw all reasonable inferences

- 10 - therefrom to his behoof. See SEC v. Tambone,

(1st Cir. 2010) (en banc). Although a complaint need not include

exhaustive factual allegations to overcome a motion to dismiss,

"it must nonetheless 'contain sufficient factual matter, accepted

as true, to state a claim to relief that is plausible on its

face.'"

at 442 (quoting Ashcroft v. Iqbal,

(2009)).

In working the decisional calculus applicable to motions

to dismiss, we are not altogether limited to the face of the

complaint. For one thing, we "may look to matters of public

record." Banco Santander de P.R. v. Lopez-Stubbe (In re Colonial

Mortg. Bankers Corp.),

(1st Cir. 2003) (quoting

Boateng v. InterAmerican Univ.,

(1st Cir. 2000)).

For another thing, we may look to the contents of documents

"expressly linked to" the factual allegations of the complaint and

to documents upon which those allegations depend. Beddall v. State

St. Bank & Tr. Co.,

(1st Cir. 1998).

We add, moreover, that a grant of a motion to dismiss

may "be premised on the inevitable success of an affirmative

defense." Nisselson v. Lernout,

(1st Cir. 2006).

When the entry of an order of dismissal depends on the primacy of

an affirmative defense, we will uphold the order as long as "(i)

the facts establishing the defense are definitively ascertainable

from the complaint and the other allowable sources of information,

- 11 - and (ii) those facts suffice to establish the affirmative defense

with certitude."

Because the plaintiffs' actions were brought in

diversity jurisdiction pursuant to the Class Action Fairness Act,

see

(d), state law supplies the substantive rules

of decision, see Erie R.R. Co. v. Tompkins,

(1938).

In this instance, we accept the parties' reasonable agreement that

Rhode Island law controls. See Borden v. Paul Revere Life Ins.

Co.,

(1st Cir. 1991) (holding that "a federal

court sitting in diversity is free, if it chooses, to forgo

independent analysis and accept the parties' agreement" as to which

state's law controls).

A

The plaintiffs argue that the district court erred in

dismissing their tuition claims, which alleged that URI breached

its contract by moving instruction online. To establish a breach

of contract under Rhode Island law, "a plaintiff must prove that

(1) an agreement existed between the parties, (2) the defendant

breached the agreement, and (3) the breach caused (4) damages to

the plaintiff." Barkan v. Dunkin' Donuts, Inc.,

(1st Cir. 2010).

"Contracts are often spoken of as express or implied."

Restatement (Second) of Contracts § 4(a) (1981). The gulf between

an express and an implied contract implicates "no difference in

- 12 - legal effect, but lies merely in the mode of manifesting assent."

Id. Whereas the elements of an express contract must be found in

"a single clearly expressed written document," Marshall

Contractors, Inc. v. Brown Univ.,

(R.I. 1997),

the elements of an implied contract may be "determined from the

relations of, and the communications between the parties," id.;

see Cote v. Aiello,

(R.I. 2016).

Rhode Island courts have recognized that the student-

university relationship is "essentially contractual in nature."

Gorman v. St. Raphael Acad.,

(R.I. 2004). That is

true even though universities enjoy "broad discretion to meet

[their] educational and doctrinal responsibilities."

The

relevant sources for ascertaining the existence and nature of a

contract between a student and a university typically include the

university's catalog, student handbook, and the like. See, e.g.,

Gociman v. Loyola Univ. of Chi.,

(7th Cir. 2022)

(explaining that "school's catalogs, bulletins, circulars,

regulations, and other publications, and customs" are part of

contract between student and university); Havlik v. Johnson & Wales

Univ.,

(1st Cir. 2007) (stating that "relevant

terms of the contractual relationship between a student and a

university typically include language found in the university's

student handbook") (applying Rhode Island law). In examining

language revealed in such sources, we look to "the parties'

- 13 - reasonable expectations, giving those terms the meaning that the

university reasonably should expect the student to take from them."

Havlik,

.

Here, the plaintiffs' complaints allege that the tuition

contract was "set forth by [URI] through its website, academic

catalogs, student handbooks, marketing materials and other

circulars, bulletins, publications, and course of dealing." The

contract, they allege, stipulated — whether expressly or

implicitly — that in return for the payment of tuition, URI "would

enroll . . . and admit them to campus . . . [and provide] live,

in-person instruction in a physical classroom." They further

allege that URI's website and publications, which routinely

mentioned aspects of in-person, on-campus instruction as well as

the benefits of the physical campus, support their claim that they

contracted for an in-person, on-campus education. So does the

fact that URI separately marketed specific programs and classes

that are only available online. Relatedly, they allege that URI's

longstanding pre-pandemic practice of providing in-person, on-

campus education — coupled with the fact that, prior to 2020, the

university "had no plans whatsoever to offer its in-person classes

via an online delivery model" — reinforces their contract claims.

Finally, they allege that the fact that they had received in-

person, on-campus instruction in their prior course of dealing

- 14 - with URI (including the earlier weeks of the spring 2020 semester)

bolsters this claim.

URI hastens to defend the district court's dismissal of

the tuition claims. It submits that it made no contractual promise

in its catalog or other materials to "provide exclusively in-

person instruction." And even if there had been such a promise,

it emphasizes, it retained the discretion to deviate from that

promise. At bottom, URI insists that its relationship and

communications with the plaintiffs did not plausibly give rise to

a contract, express or implied, for in-person, on-campus

instruction.

Fleshing out its defense, URI notes that the various

references to the on-campus experience to which the plaintiffs

allude make no mention of in-person instruction let alone

explicitly promise such instruction. Those references, URI

suggests, are merely "promotional materials." Put another way,

they are "exactly the sort of generalized, aspirational statements

that are insufficiently definite to form a contract." G. v. Fay

Sch.,

(1st Cir. 2019).

B

The plaintiffs' complaints do not plausibly state a

claim for breach of an express tuition contract. It is nose-on-

the-face plain that URI did not explicitly promise exclusive in-

person, on-campus instruction in return for tuition. All the

- 15 - catalog terms to which the plaintiffs have gestured are reasonably

understood as "[v]ague and generalized representations" and, in

turn, "are not contractually enforceable."

Thus, the

plaintiffs have failed to make a plausible showing of an express

contract for in-person, on-campus education.

C

The plaintiffs' implied contract claims regarding

tuition are trickier. To begin, the district court's rationale

for dismissing these claims does not withstand scrutiny. The crux

of the district court's error lies in its brisk extension of its

analysis of implied contract claims against Brown University to

the plaintiffs' claims against URI. See Burt I, 523 F. Supp. 3d

at 223 n.10. An implied contract claim necessarily turns on a

party's own representations and actions, see Bailey v. West,

(1969), and what Brown may have said and done would

in no way bind URI.

With reference to URI, the court stated simply that

"[n]one of the materials cited by Plaintiffs rise to the level of

an implied promise for in-person education — again, at best, the

statements amount to puffery and academic programming within

university discretion." Burt I, 523 F. Supp. 3d at 223. We turn

the lens of our inquiry to this rationale.

- 16 - 1

In assessing whether the plaintiffs plausibly alleged an

implied contract, an inquiring court must go beyond published

materials and examine the university's conduct and course of

dealing with the plaintiffs. See Marshall Contractors, Inc.,

. Having undertaken such an examination, we believe

that the plaintiffs plausibly alleged that there was an implied

contract for in-person, on-campus instruction. The plaintiffs'

payment of tuition and their prior experience receiving in-person,

on-campus instruction at URI support a reasonable inference that

in-person, on-campus education was part of the bargain that they

struck. See Shaffer v. George Washington Univ.,

(D.C. Cir. 2022) (drawing similar inference from plaintiffs'

factual allegations that defendant universities "have a historic

practice of providing on-campus instruction to students who pay

the tuition associated with traditional on-campus — rather than

online — education"); Ninivaggi v. Univ. of Del.,

, 51 (D. Del. 2021) ("This history, custom, and course of

dealing, along with the school's statements, plausibly created an

implied promise of in-person classes.").

Moreover, the university's promotional materials helped

to form the basis for an implied promise of an in-person, on-

campus education. Drawing all reasonable inferences in the

plaintiffs' favor, we conclude that the plaintiffs plausibly

- 17 - alleged that a reasonable person would have assumed that URI

intended to bind itself to provide an in-person, on-campus

education in exchange for the payment of tuition.5 See Shaffer,

.

2

Under Rhode Island law, substantial frustration of a

contract, express or implied, may be found upon the happening of

a supervening event. See Iannuccillo v. Material Sand & Stone

Corp.,

(R.I. 1998). To establish substantial

frustration, a contract must be partially executory; the

supervening event must occur after the making of the contract; the

absence of the event must be a fundamental assumption upon which

the contract was made; and the occurrence of the supervening event

must substantially frustrate the parties' principal purpose for

the making of the contract. See

"If the performance of a

duty is made impracticable by having to comply with a domestic or

foreign governmental regulation or order, that regulation or order

5 To be sure, URI reserved certain rights in the catalog, advising that "[t]uition, fees, and policies set forth in this catalog are subject to change without notice." This reservation was also part and parcel of any implied contract. Here, however, we need not decide whether this reservation would have been reasonably understood to apply to totally unforeseen instances such as the pandemic, URI's response to it, and Governor Raimondo's concomitant emergency orders. As we explain below, any implied contract for in-person, on-campus instruction into which URI and the plaintiffs may have entered was substantially frustrated and, thus, URI's duty was discharged.

- 18 - is an event the non-occurrence of which was a basic assumption on

which the contract was made." Restatement (Second) of Contracts

§ 264 (1981).

Here, the elements of a frustration defense are present

in spades. As we explain below, they are also definitively

ascertainable from the plaintiffs' complaints, documents expressly

linked thereto, and the public record.

The plaintiffs have plausibly alleged that URI breached

its implied tuition contracts with them when it moved instruction

online in the middle of the spring semester of 2020. Consequently,

we can say with assurance that there is a plausible claim that

these contracts were only partially executed. And at the time the

tuition contracts were entered, neither the plaintiffs nor URI

held the basic assumption that Governor Raimondo's emergency

orders would be issued. After all, the pandemic was a once-in-a-

century event, which blossomed without warning and which could not

reasonably have been anticipated. The governor's resulting

orders, in turn, substantially frustrated the principal purpose of

the contracts — the provision of in-person, on-campus instruction

— and made performance of the contract impracticable. Even if the

orders proscribing gatherings of more than five people might have

allowed for small groups of in-person, on-campus instruction, the

stay-at-home order shut the door on any such possibility. Because

the elements of substantial frustration are plainly satisfied, we

- 19 - hold that URI established the affirmative defense at the motion-

to-dismiss stage. It follows inexorably that the plaintiffs'

implied contract claims were appropriately dismissed.

D

Having found that URI was relieved of any contractual

duty to provide in-person, on-campus instruction, we turn to the

plaintiffs' fallback argument that URI was unjustly enriched when

it retained the whole of their tuition payments. The district

court dismissed these unjust enrichment claims, concluding that

they had not been plausibly alleged. See Burt I, 523 F. Supp. 3d

at 225.

The plaintiffs contend that the district court erred in

dismissing their unjust enrichment claims stemming from URI's

retention of their tuition payments. But their appellate briefs

point to no allegations or evidence suggesting that URI spent less

to educate them than the amount of tuition received. In fact,

they argue that URI spent more. And their briefs do not argue

that the value of the education received was less than the tuition

paid and retained. Instead, they stand pat on their expectancy

damage claim: that the value actually received was less than the

value they would have received had URI performed — and even then,

they focus on the fee claims rather than the tuition claims.

Consequently, they have waived any right to appeal the district

court's dismissal of their unjust enrichment claims insofar as

- 20 - those claims involve the retention of tuition payments. See United

States v. Zannino,

(1st Cir. 1990) ("[I]ssues

adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived.").

III

This brings us to the district court's entry of summary

judgment in favor of URI on the fee claims. Summary judgment is

appropriate when the moving party (here, URI) has shown that there

is no genuine issue as to any material fact and that it is entitled

to judgment as a matter of law. See Fed. R. Civ. P. 56(a). Our

review of the district court's ukase is de novo. See Pleasantdale,

. We are not wedded to the district court's

rationale but, rather, may affirm the entry of summary judgment on

any ground supported by the record. See Houlton Citizens' Coal.

v. Town of Houlton,

(1st Cir. 1999).

A

The plaintiffs' fee claims revolve around the question of

whether URI breached its contract when it severely reduced (or in

some instances cancelled) its on-campus services and activities

following the governor's emergency orders. As with the tuition

claims, we interpret any express or implied contract concerning

fees "in accordance with the parties' reasonable expectations,

giving those terms the meaning that the university reasonably

- 21 - should expect the student to take from them." Havlik,

.

1

We start with the express contract claims. In this

regard, URI puts much weight on the generalized nature of the

descriptions of the fees. As noted above, the university catalog

states that the student services fee "covers the cost of" the

Memorial Union, transportation, the Fitness Center, and capital

projects. The student activities fee, which is embedded within

the student services fee, "supports funds that are

distributed . . . for a wide variety of student programs and

activities." The technology fee "covers the cost of various

University technology expenses." And 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."

URI stresses the operative verb phrases "covers the cost

of" and "supports" in these descriptions. In its view, these

phrases belie any notion that it was under a contractual obligation

"to provide exclusively in-person services in exchange for any of

the asserted fees."

The plaintiffs resist this conclusion. They contend

that the catalog's language gave rise to a reasonable expectation

- 22 - that URI would provide them with in-person, on-campus services.

Even while conceding that the descriptions of the various fees did

not commit URI to use them to offer specific services and

activities, the plaintiffs note that they do require URI to

"cover[] the cost[s] of" and "support" the provision of physical

services and activities.

We find the plaintiffs' contention unpersuasive. A

university's representations in a catalog should be interpreted

according to their "normal, everyday meaning." Lyons v. Salve

Regina Coll.,

(1st Cir. 1977). Unlike language

guaranteeing access to on-campus facilities — which has been

interpreted to give rise to a reasonable expectation of in-person

use, see, e.g., Smith v. Univ. of Pa.,

, 475

(E.D. Pa. 2021) — the terms "cover[] the cost of" and "support" do

not, in ordinary quotidian parlance, constitute a promise to

provide such access, see Lyons,

. These terms,

therefore, cannot serve as a basis for a reasonable expectation of

the provision of in-person services and activities. See, e.g.,

Shaffer,

(rejecting breach of contract claim

regarding student activity fee given "no indication that this fee

encompasses only in-person organizations and does not support

student groups operating online"); Fiore v. Univ. of Tampa,

, 374 (S.D.N.Y. 2021) (holding that contract stating

that fees go "toward the 'support' of programs" does not create

- 23 - obligation to provide "access" to any on-campus program); Chong v.

Ne. Univ., No. 20-10844,

, at *4 (D. Mass. Dec. 14,

2020) (holding that fee payments "to 'support' certain facilities

during terms for which [plaintiffs] are enrolled in classes" does

not give rise to "a claim for breach of contract" regarding access

to particular facilities or services). This holds equally true

for the various components of the student services fee, the

technology fee, and the health services fee. We thus conclude

that the plaintiffs have failed to make out a genuine issue of

material fact as to whether an express fee contract existed that

required URI to provide in-person services and activities. A

reasonable factfinder would be compelled to find that it did not.

2

The question remains whether there was an implied

contract to provide such in-person services and activities. As

said, an implied contract may arise from outside a "single clearly

expressed written document," such as through "the relations of,

and communications between the parties." Marshall Contractors,

Inc.,

.

URI argues that there was no such implied contract. In

staking out this position, URI disclaims the district court's

reasoning insofar as that court determined that the portions of

the student services fee that represented the costs of the Memorial

Union and the Fitness Center could give rise to contractual

- 24 - obligations to provide in-person access to those facilities. See

Burt II,

, at *3-4. The catalog's descriptions of

the physical buildings and the associated amenities, URI insists,

could not reasonably have induced an expectation of physical access

thereto. To hammer home this point, URI notes that "[t]hese

descriptions appear far later in the Catalog and are unconnected

to the Catalog's description of the Student Services Fee."

The plaintiffs demur. In their view, the district

court's analysis regarding the portions of the student services

fee representing the costs of the Memorial Union and the Fitness

Center was "spot-on." The catalog's descriptions of these

facilities and amenities, they say, gave rise to the reasonable

expectation that URI would provide them with in-person access in

return for their payment of the fees. The district court's error,

they assert, was "in not applying the same basic framework . . . to

the other fees."

We think that a middle ground carries the day. There is

a genuine issue of material fact as to whether URI's

representations gave rise to implied contracts providing in-person

access in return for the payment of some fees (but not others).

We explain briefly.

We think it clear that there was no implied contract

with respect to the student activities and capital projects

portions of the student services fee. In the catalog, URI only

- 25 - committed itself to use the student activities portion of the fee

to "support[] funds that are distributed . . . for a wide variety

of student programs and activities." URI never promised,

explicitly or implicitly, to furnish any particular program or

activity — let alone an in-person program or activity. Hosting

virtual events was not unheard of even before the spring of 2020

— a fact illustrating that URI never obligated itself to provide

only in-person activities.

The same is true for the capital projects portion of the

fee. There was no basis for a reasonable expectation that URI

would grant in-person access of any kind in return for the payment

of this portion of the fee.

A similar analysis extends to the technology fee. Even

though the plaintiffs have shown that they lost access to

classrooms, computer labs, and print labs, they have not adduced

any evidence that URI promised, explicitly or implicitly, to

furnish any of these particular services. The catalog's broad

language describing the use of the funds from this portion of the

fee discounts this possibility. As the district court aptly

observed, the catalog "does not even mention specific technologies

or services that URI provides." Id. at *5. URI's previous use of

these funds for a host of technological upgrades and licenses —

and not just for in-person services — buttresses its claim that it

made no such promise. The reasonable expectation arising from

- 26 - both the language used in the catalog and URI's course of dealing

did not, therefore, impose on URI any obligation for the furnishing

of specific in-person technological services.

3

The health services fee falls into a different bucket.

The catalog states that this 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." The only real

question is whether the term "routine office visits" gave rise to

an expectation that such visits would be conducted in person. On

the one hand, in the contemporary world, "routine office visits"

easily can mean virtual visits. On the other hand, we recognize

that such virtual services became increasingly normal only in the

wake of the pandemic.

We need not tarry. Even if the term "routine office

visits" gave rise to an expectation of entitlement to in-person

visits, the plaintiffs have failed to show that URI breached its

ensuing obligation. Whereas URI demonstrates that it continued to

provide students with both virtual and in-person visits, the

plaintiffs supply no evidence showing that they were ever denied

access to in-person medical services. As the district court

observed, the plaintiffs "do not make specific allegations — nor

do they adduce specific facts — that they were denied particular

- 27 - in-person medical services." Id. There is thus no genuine issue

of material fact as to whether URI breached an implied contract to

provide in-person office visits for health-related purposes.

4

The Memorial Union, Fitness Center, and transportation

portions of the student services fee are cut from a different

cloth. We think that there is a genuine issue of material fact as

to whether URI implicitly promised in-person services in return

for the payment of these fees. The catalog's description of the

Memorial Union as "hous[ing] a wide variety of social, educational,

cultural, travel, and recreational services and facilities," its

extensive depictions of the various recreational and athletic

facilities (including the Fitness Center), and its regular past

provision of access to these facilities and the campus shuttle

service all reasonably may be thought to have led URI to expect

that students would anticipate that they could access these

facilities in person. As the district court stated with respect

to the catalog's description of the Bradford R. Boss Arena as "one

of only two ice facilities in the state that operate for the entire

year and are open for public skating," it is puzzling "to see how

a student could expect anything less than in-person access to this

facility for the entire semester, given this explicit language

combined with the fact that one cannot virtually skate at this ice

rink." Id. at *4 n.4. Thus, we conclude that it would not be

- 28 - unreasonable for a student reading these catalog descriptions to

expect in-person access to both the Memorial Union and the Fitness

Center. The same holds true for the student's ability to use the

campus shuttle. And these expectations would be strengthened where

the student — in her prior course of dealing with URI — had

previously enjoyed in-person access to these facilities and

services. With these facts in mind, we conclude that the

plaintiffs have made a showing of an implied contract regarding

these portions of the student services fee sufficient to survive

summary judgment.

5

This conclusion, though, does not end the matter.

Notwithstanding the presence of genuine issues of material fact as

to whether these implied contracts existed, it is abundantly clear

that URI was discharged from any such contractual duty due to

frustration. Our analysis resembles the analysis that we employed

as to frustration of the implied tuition contracts. See supra

Part II(C)(2).

For a start, the record shows that these three putative

contracts — the Memorial Union contract, the Fitness Center

contract, and the transportation fee contract — were all partially

executed before Governor Raimondo issued the first emergency

order. What is more, the parties could not have anticipated either

the onset of the pandemic or the issuance of the governor's

- 29 - emergency orders. Those orders constituted the "event the non-

occurrence of which was a basic assumption on which the contract

was made." Restatement (Second) of Contracts § 264 (1981).

There is no doubt that the orders — especially the stay-

at-home order — substantially frustrated the principal purpose of

the contracts: the provision of in-person access to the facilities

covered by the Memorial Union and Fitness Center portions of the

student services fee as well as access to the shuttle service.

Once the plaintiffs were no longer allowed to remain on campus and

were forced to stay at home, there was little ability to go to the

described facilities or to use the shuttle. Because it is

luminously clear that the contracts were substantially frustrated,

there remains no genuine issue of material fact for adjudication:

any reasonable factfinder would be compelled to find that URI was

discharged from its obligations due to frustration.

6

The short of it is that we affirm the district court's

decision to grant summary judgment to URI on all of the fee claims.

URI has demonstrated that there is no genuine issue as to any

material fact concerning its obligations arising out of the fee

contracts. On this record, a reasonable factfinder would be

compelled to find that URI fulfilled its obligations arising out

of the student activities and capital projects portions of the

student services fee, as well as the technology fee. So, too,

- 30 - such a factfinder would be compelled to find that URI fulfilled

any contractual obligations arising out of the health services

portion of the student services fee. Finally, such a factfinder

would be required to find that URI was discharged from any

contractual obligations arising out of the Memorial Union and

Fitness Center portions of the student services fee and out of the

transportation fee by virtue of substantial frustration. As such,

summary judgment in favor of URI was entirely appropriate.

B

This leaves the plaintiffs' final plaint: that even if

URI did not need to fulfill its obligations under various fee

contracts due to substantial frustration, the plaintiffs were

still entitled to full or partial restitution in order to prevent

URI from being unjustly enriched. We must, therefore, determine

whether the record discloses a genuine issue of material fact

concerning unjust enrichment.

To recover under a theory of unjust enrichment, "a

claimant must prove: (1) that he or she conferred a benefit upon

the party from whom relief is sought; (2) that the recipient

appreciated the benefit; and (3) that the recipient accepted the

benefit under such circumstances that it would be inequitable for

[the recipient] to retain the benefit without paying the value

thereof." IDC Clambakes, Inc. v. Carney,

, 933 (R.I.

2021) (alteration in original) (quoting S. Cnty. Post & Beam, Inc.

- 31 - v. McMahon,

(R.I. 2015)). The plaintiffs

argue that the district court blundered when it determined that

URI was entitled to summary judgment on their unjust enrichment

claims. As they describe it, the court's determination that there

were no genuine issues of material fact was both superficial and

problematic. Their argument hinges on the theory that the district

court improperly "shift[ed]" the burden of production to them.

The plaintiffs' riposte misses the mark. The function

of summary judgment is "to pierce the pleadings and to assess the

proof in order to see whether there is a genuine need for trial."

Garside v. Osco Drug, Inc.,

(1st Cir. 1990) (quoting

Fed. R. Civ. P. 56 advisory committee's note to 1963 amendment).

Although it is true that the moving party must start the ball

rolling by averring "an absence of evidence to support the

nonmoving party's case," Celotex Corp. v. Catrett,

(1986), this does not mean that the nonmovant is relieved of

any burden. Even though the nonmovant enjoys a favorable

presumption for the evidence it adduces, it still must point to

evidence that a reasonable factfinder could employ to its behoof.

See Kearney v. Town of Wareham,

(1st Cir. 2002).

Here, the plaintiffs have failed to meet this challenge.

After URI adduced uncontradicted evidence showing that it

continued to "provide[] Plaintiffs the 'benefit of their bargain'

throughout Spring 2020" by continuing to use the funds from the

- 32 - fees to provide students with services — albeit often remotely or

with adaptations — and to cover related maintenance costs, it was

incumbent upon the plaintiffs to rebut this evidence in order to

advance their unjust enrichment claims. Yet, the record is silent

in this respect: the plaintiffs have adduced no evidence that

might support a showing that URI unjustly benefited from these

funds. Instead, they merely contest the district court's

conclusion that URI spent these funds on alternative services and

accuse the court of "completely overlook[ing] the simple premise

that [URI] allegedly spent more money on delivering a different,

inferior product." This conclusory statement, without more, is

wholly inadequate to show that a genuine issue of material fact

exists on the question of unjust enrichment. It follows that URI

was entitled to summary judgment on the plaintiffs' unjust

enrichment claims.

IV

We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.

- 33 -