22-393-cv Hofmann v. Long Island Univ.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of July, two thousand twenty-four.

PRESENT: BARRINGTON D. PARKER, GERARD E. LYNCH, RAYMOND J. LOHIER, JR., Circuit Judges. ------------------------------------------------------------------ JAMES HOFMANN,

Plaintiff-Appellant,

v. 22-393-cv

LONG ISLAND UNIVERSITY,

Defendant-Appellee.* ------------------------------------------------------------------

* The Clerk of Court is directed to amend the caption as set forth above. FOR PLAINTIFF-APPELLANT: BLAKE G. ABBOTT (Roy T. Willey, IV, on the brief), Poulin, Willey, Anastopoulo LLC, Charleston, SC

FOR DEFENDANT-APPELLEE: JONATHAN B. FELLOWS (Suzanne M. Messer, on the brief), Bond, Schoeneck & King, PLLC, Syracuse, NY

Appeal from a judgment of the United States District Court for the Eastern

District of New York (Brian M. Cogan, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the District Court is AFFIRMED.

James Hofmann appeals from a January 25, 2022 judgment of the United

States District Court for the Eastern District of New York (Cogan, J.) dismissing

his suit against Long Island University (“LIU”) for breach of contract, unjust

enrichment, conversion, and deceptive business practices and false advertising

under New York General Business Law §§ 349 and 350, all arising from LIU’s

transition from in-person classes to remote instruction during the COVID-19

pandemic. On appeal, Hofmann argues that the District Court erred in

dismissing his claims. We assume the parties’ familiarity with the underlying

2 facts and the record of prior proceedings, to which we refer only as necessary to

explain our decision to affirm.

The District Court granted LIU’s motion for judgment on the pleadings

and dismissed Hofmann’s claims under Federal Rule of Civil Procedure 12(c).

See Moore v. Long Island Univ., No. 20-CV-3843,

(E.D.N.Y. Jan. 24,

2022). We review that decision de novo. Hayden v. Paterson,

(2d

Cir. 2010). “In deciding Rule 12(c) motions, we employ the same standard

applicable to Rule 12(b)(6) motions to dismiss, accepting all factual allegations in

the Complaint as true and drawing all reasonable inferences in the nonmoving

party’s favor.” Vega v. Hempstead Union Free Sch. Dist.,

(2d Cir.

2015) (quotation marks omitted).

Hofmann argues that the District Court erred in dismissing his breach of

contract claims for tuition and fees. He asserts that LIU’s “bulletins, circulars

and regulations” created an implied contract with its students, requiring LIU to

provide “in-person instruction when they paid tuition [and fees] for the Spring

2020 semester.” Appellant’s Br. 14‒15. Even if it is true that an implied contract

mandated in-person instruction, we have held that “[u]niversities may limit or

qualify their promises by including a force majeure provision in their implied

3 contracts with students.” Goldberg v. Pace Univ.,

(2d Cir. 2023);

see Tapinekis v. Pace Univ., No. 22-1058-CV,

, at *1 (2d Cir. May

30, 2024). Here, LIU’s bulletin contains an express force majeure clause, which

warns that “[t]he University assumes no liability for interruption of classes or

other instructional activities due to fire, flood, strike, war or other force majeure.”

Supp. App’x-A 94 (emphasis added). Thus, this case is distinguishable from

Rynasko v. New York University, on which Hofmann relies, because the disclaimer

at issue in Rynasko “d[id] not purport to serve as a force majeure clause” and was

worded too broadly to be interpreted as one.

, 200 (2d Cir. 2023);

accord Goldberg,

. In view of the express force majeure clause in

LIU’s bulletin, the District Court correctly determined that LIU did not breach an

implied contract with Hofmann.

Hofmann also challenges the District Court’s dismissal of his unjust

enrichment claim. In New York, unjust enrichment claims “are ordinarily

precluded if a valid and enforceable written contract, even an implied contract,

governs the relevant subject matter.” Goldberg,

(quotation marks

omitted). A “plaintiff may plead unjust enrichment . . . in the alternative if there

is ‘a dispute over the existence, scope, or enforceability of the putative contract.’”

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at 215 (quoting Reilly v. Natwest Mkts. Grp. Inc.,

, 263 (2d Cir.

1999)). There is no dispute that an implied contract existed between Hofmann

and LIU; rather, their dispute goes to “the terms of that implied contract.”

Tapinekis,

, at *2. Accordingly, Hofmann’s unjust enrichment

claim is “entirely duplicative of his breach of contract claims, and the [D]istrict

[C]ourt properly dismissed [it].” Goldberg,

; see Tapinekis,

, at *2.

Hofmann’s conversion claim likewise fails. Under New York law, “‘an

action will lie for the conversion of money where there is a specific, identifiable

fund and an obligation to return or otherwise treat in a particular manner the

specific fund in question.’” Bascuñán v. Elsaca,

, 820 n.56 (2d Cir.

2017) (quoting Mfrs. Hanover Tr. Co. v. Chem. Bank,

(1st

Dep’t 1990)). We affirm the District Court’s dismissal of Hofmann’s conversion

claim for at least two reasons. First, Hofmann did not allege a “specific,

identifiable fund.”

He did not, for example, distinguish the portion of his

tuition and fees paid for in-person instruction before the pandemic from the

portion of his tuition and fees directed to remote instruction once the pandemic

began. Second, under New York law “[a] cause of action for conversion cannot

5 be predicated on a mere breach of contract.” Jeffers v. Am. Univ. of Antigua,

(1st Dep’t 2015) (quotation marks omitted). Here, Hofmann’s

conversion claim rests on the same factual allegations as his breach of contract

claim.

Lastly, Hofmann argues that the District Court erred in dismissing his

deceptive business practices and false advertising claims under New York

General Business Law §§ 349 and 350. To state a claim under either section, “‘a

plaintiff must allege that a defendant has engaged in (1) consumer-oriented

conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a

result of the allegedly deceptive act or practice.’” Orlander v. Staples, Inc.,

(2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit Co.,

(2012)). “A defendant’s actions are materially misleading when they are

likely to mislead a reasonable consumer acting reasonably under the

circumstances.” Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v.

Matthew Bender & Co., Inc.,

, 178 (2021) (quotation marks omitted).

Hofmann’s General Business Law claims fail largely for the same reasons

as his breach of contract claims. Hofmann does not allege that LIU promised that

its on-campus experience would remain indefinitely in place, even if burdened

6 by events outside of its control such as a global pandemic. Indeed, as discussed

above, LIU’s bulletin expressly addressed emergencies and force majeure events

that might require it to alter the on-campus, in-class experience. A reasonable

consumer thus would not have been misled by LIU’s bulletin. Accordingly, the

District Court properly dismissed Hofmann’s claims under New York’s General

Business Law because he failed to allege conduct that was materially misleading.

We have considered Hofmann’s remaining arguments and conclude that

they are without merit. For the foregoing reasons, the judgment of the District

Court is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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