Hannibal-Fisher v. Grand Canyon University

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Seth Hannibal-Fisher, et al., No. CV-20-01007-PHX-SMB

10 Plaintiffs, ORDER

11 v.

12 Grand Canyon University,

13 Defendant. 14 15 Pending before the Court is Plaintiffs’ Motion for Class Certification and 16 Appointment of Class Counsel. (Doc. 81.) Defendant Grand Canyon University (“GCU”) 17 filed a Response (Doc. 84), and Plaintiffs filed a Reply (Doc. 85). After considering the 18 pleadings and applicable law, the Court will now deny Plaintiffs’ Motion. 19 I. Background 20 On May 22, 2020, Plaintiff filed a class action complaint (the “Complaint”) against 21 GCU alleging that the university failed to provide proper refunds of on-campus tuition, 22 fees, and room and board costs after GCU cancelled in-person courses in response to the 23 COVID-19 pandemic. (See generally Doc. 17.) Plaintiffs’ Complaint sought to represent 24 “all people who paid GCU on-campus tuition, room and board costs, and/or fees for in- 25 person educational services and facilities that GCU failed to provide during the Spring 26 Term, and whose tuition, costs, and/or fees have not been refunded.” (Id. at 12 ¶ 55.) The 27 Complaint brought claims for breach of contract, unjust enrichment, conversion, money 28 had and received, and accounting. (Id. at 15–22 ¶¶ 64–105.) The basic factual allegations 1 are as follows.1 2 Defendant GCU is a private university with its main campus in Phoenix, Arizona. 3 (Doc. 17 at 7 ¶ 22.) During the Spring 2020 semester, Plaintiffs Hannibal-Fisher and Tran 4 were undergraduate students at GCU enrolled in on-campus degree programs. For the 5 Spring 2020 semester, on-campus tuition was $687.50 per credit, while online tuition 6 ranged from $395 to $449 per credit. (Id. at 8 ¶ 29.) Plaintiffs were also charged various 7 fees for the Spring 2020 term. (Id. ¶ 30.) 8 In March 2020, in response to the COVID-19 pandemic, GCU instructed students 9 to leave campus and begin attending classes remotely. (Id. at 9 ¶ 34.) On March 12, 2020, 10 GCU announced that as of March 23, 2020, all but a few in-person classes would be moved 11 to an online-only format for its on-campus students through the end of the Spring 2020 12 term. (Id. ¶ 35.) Plaintiffs allege that the online classes offered by GCU were subpar in 13 practically every respect compared to on-campus in-person classes. (Id. at 11–12 ¶ 49.) 14 GCU also cancelled campus events and closed on-campus facilities. (Id. at 9 ¶¶ 35–37.) 15 Throughout March 2020, GCU repeatedly encouraged students to return to their homes to 16 finish the semester through online classes and asked students that had left campus to refrain 17 from returning. (Id. at 9–10 ¶¶ 39–40.) 18 In the First Amended Complaint (“FAC”), Plaintiffs allege that they entered into a 19 contractual agreement with GCU “where Plaintiffs would provide payment in the form of 20 tuition and fees and [GCU], in exchange, would provide in-person educational services, 21 experiences, opportunities, and other related services.” (Id. at 2 ¶ 3.) Plaintiffs allege that 22 the terms of the contract were set forth in publications from GCU that contained multiple 23 references to in-person instructions. (Id. at 3 ¶¶5–9.) 24 In sum, Plaintiffs allege that GCU “did not deliver the educational services, 25 facilities, access, experiences, and/or opportunities that Plaintiffs and the putative class 26 contracted and paid for” and therefore breached the contract. (Id. at 5 ¶ 14.) Plaintiffs 27 1 For a more robust recitation of the factual allegations, please refer to the Court’s order 28 granting in part and denying in part Defendant’s Motion to Dismiss Plaintiffs’ First Amended Complaint. (See generally Doc. 42.) 1 allege that they are entitled to a refund of all tuition and fees for services, facilities, 2 equipment, access, and/or opportunities that GCU did not provide during the Spring 2020 3 term. 4 On March 5, 2021, the Court ruled on GCU’s Motion to Dismiss Plaintiff’s First 5 Amended Complaint. (Doc. 42.) The Court permitted Plaintiffs’ breach of contract claim 6 for housing costs and fees, unjust enrichment, and money had and received claims to 7 proceed. (Id. at 16.) However, the Court dismissed the breach of contract claim for tuition 8 along with Plaintiffs’ conversion and account claims. (Id. at 16–17.) The breach of 9 contract claim for housing costs and fees has already been certified as part of the Little 10 litigation. See Little v. Grand Canyon Univ., No. CV-20-00795-PHX-SMB, 2022 WL 11 266726 (D. Ariz. Jan. 28, 2022). Plaintiffs have since conceded they are not proceeding 12 on those claims. Here, the Court is only analyzing the certification of the remaining unjust 13 enrichment claim and money had and received claim regarding tuition costs. Due to the 14 Court’s ruling on Defendant’s Motion to Dismiss First Amended Complaint (Doc. 42), 15 Plaintiffs now seek certification of the following amended class: “All Grand Canyon 16 University students who paid on-campus tuition during the Spring 2020 semester and 17 whose tuition has not been refunded.” (Doc. 81 at 2.) 18 II. Legal Standard 19 Class actions are governed by Federal Rule of Civil Procedure 23, which provides 20 as follows: (a) Prerequisites. One or more members of a class may sue or be sued as 21 representative parties on behalf of all members only if: 22 (1) the class is so numerous that joinder of all members is impracticable; 23 (2) there are questions of law or fact common to the class; 24 (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and 25 (4) the representative parties will fairly and adequately protect the 26 interests of the class. (b) Types of Class Actions. A class action may be maintained if Rule 23(a) 27 is satisfied and if: 28 (1) prosecuting separate actions by or against individual class members would create a risk of: 1 (A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible 2 standards of conduct for the party opposing the class; or 3 (B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests 4 of the other members not parties to the individual adjudications 5 or would substantially impair or impede their ability to protect their interests; 6 (2) the party opposing the class has acted or refused to act on grounds 7 that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as 8 a whole; or 9 (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual 10 members, and that a class action is superior to other available methods 11 for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include: 12 (A) the class members’ interests in individually controlling the 13 prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the 14 controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the 15 litigation of the claims in the particular forum; and 16 (D) the likely difficulties in managing a class action. 17 Fed. R. Civ. P. 23(a)–(b). Plaintiffs seeking class certification must show that they have 18 met the requirements of the four subsections in Rule 23(a) and at least one subsection of 19 Rule 23(b). Ellis v. Costco Wholesale Corp., 657 F.3d 970, 979–80 (9th Cir. 2011) (citing 20 Zinser v. Accufix Rsch. Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001)). When considering 21 class certification, courts must engage in “a rigorous analysis.” Id. at 350–51 (quoting 22 Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982)). Overall, district courts retain 23 broad discretion to certify a class, so long as the discretion is exercised within the 24 framework of Rule 23. Zinser, 253 F.3d at 1186. 25 The party seeking class certification carries the burden of proving the facts 26 necessary to establish that the prerequisites for certification are met by a preponderance of 27 the evidence. Olean Wholesale Grocery Coop., Inc., v. Bumble Bee Foods LLC, 31 F.4th 28 651, 665 (9th Cir. 2022). “Failure to meet any one of the requirements set forth in Rule 23 1 precludes class certification.” Miller v. Am. Standard Ins. Co. of Wis., 759 F. Supp. 2d 2 1144, 1146 (D. Ariz. 2010). 3 III. DISCUSSION 4 A. Standing 5 GCU first argues that Plaintiffs lack standing to bring the proposed class claims 6 because students that paid on-campus tuition “could choose to take classes in person or 7 ‘virtual classes’ online or a mix of some in-person classes and some virtual classes.” (Doc. 8 84 at 5–6.) Therefore, students could have paid on-campus tuition and enrolled in 9 exclusively virtual classes that then continued as virtual classes. (See id. at 6.) GCU claims 10 that students in this situation lack Article III standing. (See id. at 5–6.) Plaintiffs counter 11 that on-campus tuition is “paid in exchange for ‘a traditional campus environment’” and 12 that affected students “lost access to courses in the traditional campus format for which 13 they paid on-campus tuition rates that were higher than online tuition rates.” (Doc. 85 at 14 3.) 15 The Court rejects GCU’s argument that some members of the class lack standing if 16 they originally signed up entirely for online courses during the Spring 2020 term. 17 Regardless of the method of instruction for the courses they selected, these putative class 18 members paid full on-campus tuition in exchange for the option of a traditional campus 19 environment. These students suffered the same type of harm as students who were taking 20 all in-person courses—they were unable to take advantage of the services, facilities, and 21 amenities that they rightly paid for. Regardless of whether these students used the 22 facilities, GCU failed to offer facilities or services due to COVID-19 related closures. The 23 putative class numbers are entitled to have what they paid for, regardless of whether they 24 chose to take any in-person courses or use any on-campus facilities or services. 25 Accordingly, students not affected by the lack of change in instruction are still considered 26 injured by the alleged breach of contract. As such, these students have Article III standing. 27 B. Scope of the Class 28 The scope of the proposed class also acts as a threshold inquiry to class certification. 1 Here, Plaintiff has put forth an amended class. (Doc. 81 at 2.) Some district courts in the 2 Ninth Circuit have rejected attempts to amend a class definition at the certification stage 3 without a plaintiff requesting leave to amend their complaint. See, e.g., Gusman v. 4 Comcast Corp., 298 F.R.D. 592, 597 (S.D. Cal. 2014) (“[T]he Court is bound by the class 5 definition provided in the Complaint.”); see also Costelo v. Chertoff, 258 F.R.D. 600, 604– 6 605 (C.D. Cal. 2009) (“The Court is bound to class definitions provided in the complaint 7 and, absent an amended complaint, will not consider certification beyond it.”). However, 8 other courts in the Ninth Circuit take a more nuanced approach. These courts entertain 9 certification of a class other than that described in the complaint if the proposed 10 modifications to the class definition are minor, require no additional discovery, and cause 11 no prejudice to defendants. See Davis v. AT&T Corp., No. 15CV2342-DMS (DHB), 2017 12 WL 1155350, at *2 (S.D. Cal. Mar. 28, 2017). Additionally, some courts will allow more 13 than minor modifications to a class definition “if it is narrower than the class alleged in the 14 complaint.” Id.; see Gold v. Lumber Liquidators Inc., No. 14-CV-05373-THE, 2017 WL 15 2688077, at *3–4 (N.D. Cal. June 22, 2017). 16 Initially, Plaintiffs had proposed the following class: “All people who paid GCU 17 on-campus tuition, room and board costs, and/or fees for in-person educational services 18 and facilities that GCU failed to provide during the Spring Term, and whose tuition, costs, 19 and/or fees have not been refunded.” (Doc. 17 at 12.) Plaintiffs now seek to narrow this 20 definition and certify the following class: “All Grand Canyon University students who paid 21 on-campus tuition during the Spring 2020 semester and whose tuition has not been 22 refunded.” (Doc. 81 at 2.) GCU reiterates its argument that even this narrower class lacks 23 standing. (Doc. 84 at 5–6.) The Court disposed of this argument above. 24 Here, Plaintiffs’ proposed change to the class definition is minor, will not require 25 additional discovery, and will not prejudice GCU. The proposed definition is also narrower 26 than the original. (See Doc. 42.) As such, the Court finds that the scope of the class is 27 appropriate. 28 1 C. Definite and Ascertainable 2 Rule 23 contains a threshold requirement that the class be adequately definite and 3 ascertainable. Gustafson v. Goodman Mfg. Co., No. CV-13-08274-PCT-JAT, 2016 WL 4 1029333, at *6 (D. Ariz. Mar. 14, 2016). Here, the Court finds that the class is definite and 5 ascertainable. GCU’s financial records will show precisely which students paid on-campus 6 tuition. Therefore, the class members can be easily ascertained, and this threshold 7 requirement of Rule 23 is satisfied. 8 D. Rule 23(a) Requirements 9 1. Numerosity 10 Rule 23 requires that the class be so numerous that joinder is impracticable. Fed. R. 11 Civ. P. 23(a)(1). A proposed class of at least forty members presumptively satisfies the 12 numerosity requirement. Mix v. Asurion Servs. Inc.., No. CV-14-02357-PHX-GMS, 2016 13 WL 7229140, at *8 (D. Ariz. Dec. 14, 2016); see also USAA Cas. Ins. Co., 266 F.R.D. 360, 14 365 (D. Ariz. 2009). Here, Plaintiffs have proposed a class with at least 20,000 members. 15 (See Doc. 81 at 6–7). Accordingly, the Court finds the numerosity requirement satisfied. 16 2. Commonality 17 Rule 23 next requires that there be questions of law or fact common to the class. 18 Fed. R. Civ. P. 23(a)(2). This analysis requires a plaintiff to demonstrate that class 19 members have suffered the same injury. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 20 349–50 (2011). The common contention “must be of such a nature that it is capable of 21 classwide resolution—which means that determination of its truth or falsity will resolve an 22 issue that is central to the validity of each of the claims in one stroke.” Id. at 350. A 23 plaintiff need only present “a single common question of law or fact that resolves a central 24 issue.” Castillo v. Bank of Am., NA, 980 F.3d 723, 728 (9th Cir. 2020). Satisfying this 25 requirement is a “‘relatively light burden’ that ‘does not require that all the questions of 26 law and fact raised by the dispute be common . . . or that the common questions of law or 27 fact predominate over individual issues.’” Esparza v. SmartPay Leasing, Inc., No. C 17- 28 03421 WHA, 2019 WL 2372447, at *2 (N.D. Cal. June 6, 2019) (quoting Vega v. T-Mobile 1 USA, Inc., 564 F.3d 1256, 1268 (11th Cir. 2009)). 2 Here, the putative class members allege a common injury that may be proven 3 through the introduction of common proof. This alleged injury was uniformly experienced 4 by all members of the class at the same time and manner, thereby raising a common issue. 5 GCU’s argument that some students may have initially signed up for virtual courses 6 does not preclude a finding of commonality. Regardless of the type of classes these 7 students ultimately selected, they paid the on-campus price tag. Therefore, the alleged 8 injury is sufficiently common to the class. Accordingly, the Court finds that Plaintiffs have 9 satisfied the requirement for commonality. 10 3. Typicality 11 Rule 23 also requires that the claims or defenses of the representative parties are 12 “typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). This requirement 13 focuses on the class representative’s claim to ensure that the interest of the class 14 representative “aligns with the interests of the class.” Hanon v. Dataproducts Corp., 976 15 F.2d 497, 508 (9th Cir. 1992). Representative claims need to be reasonably coextensive 16 with those of absent class members. Parsons v. Ryan, 754 F.3d 657, 685 (9th Cir. 2014). 17 Courts must determine “whether other members have the same or similar injury, whether 18 the action is based on conduct which is not unique to the named plaintiffs, and whether 19 other class members have been injured by the same course of conduct.” Hanon, 976 F.2d 20 at 508 (quoting Schwartz v. Harp, 108 F.R.D. 279, 287 (C.D. Cal. 1985)). Lastly, this 21 requirement “is not primarily concerned with whether each person in a proposed class 22 suffers the same type of damages; rather, it is sufficient for typicality if the plaintiff endured 23 a course of conduct directed against the class.” Just Film Inc. v. Buono, 847 F.3d 1108, 24 1118 (9th Cir. 2017). 25 Plaintiffs argue typicality is satisfied because the injury suffered stems from GCU’s 26 conduct that caused injury to the rest of the class. (Doc. 81 at 9.) GCU argues that Plaintiffs 27 cannot meet this requirement because the claims show dissimilarity between putative class 28 members. (Doc. 84 at 10.) Here, Plaintiffs’ injury is based on the same conduct suffered 1 by the rest of the class. Moreover, the fact that some students may have elected to take 2 some or all courses online is irrelevant to typicality. Much of GCU’s argument echoes 3 their standing argument that the Court disposed of above. More importantly, however, 4 Plaintiffs endured a course of conduct directed against the class. And GCU’s alleged 5 actions impacted the entire class. Even if the damages of some members differ from others, 6 typicality is not defeated. See Just Film, Inc., 847 F.3d at 1118. Accordingly, Plaintiffs 7 have satisfied the typicality requirement. 8 4. Adequacy 9 The final requirement of Rule 23(a) is that the class representative “will fairly and 10 adequately represent the interests of the class.” Fed. R. Civ. P. 23(a)(4). “Adequacy of 11 representation is satisfied if the named representatives appear ‘able to prosecute the action 12 vigorously through qualified counsel’ and if the representatives have no ‘antagonistic or 13 conflicting interests with the unnamed members of the class.’” Winkler v. DET, Inc., 205 14 F.R.D. 235, 242 (D. Ariz. 2001) (quoting Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 15 507, 512 (9th Cir. 1978)). 16 Plaintiffs assert that they can fairly and adequately represent the interests of the 17 class. Additionally, Plaintiffs avow that they have no conflicts of interest with unnamed 18 class members and have qualified counsel. (Doc. 81 at 10.) GCU alleges several 19 deficiencies with the adequacy of proposed class counsel. (Doc. 84 at 17.) However, these 20 alleged past deficiencies do not overcome the required level of adequacy of the proposed 21 counsel. Thus, the Court finds that Plaintiffs have satisfied Rule 23(a)(4) and will 22 adequately represent the class. 23 Given the above analysis, Plaintiffs have satisfied the requirements of Rule 23(a). 24 E. Rule 23(b) 25 Having determined that Plaintiffs have satisfied the requirements of Rule 23(a), the 26 Court now pivots to analyze whether Plaintiffs have satisfied at least one subsection of 27 Rule 23(b). See Zinser, 253 F.3d at 1186. The Court finds that Plaintiffs have not satisfied 28 their selected subsection of Rule 23(b). 1 Plaintiffs rely on Rule 23(b)(3). This subsection requires that “the questions of law 2 or fact common to the class predominate over any questions affecting only individual 3 members, and that a class action is superior to other available methods for fairly and 4 efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Both predominance 5 and superiority must be shown for certification. 6 A finding of predominance requires more than a finding of mere commonality and 7 is more demanding that Rule 23(a)(2)’s commonality requirement. Comcast Corp. v. 8 Behrend, 569 U.S. 27, 34 (2013). However, “[w]hen common questions present a 9 significant aspect of the case and they can be resolved for all members of the class in a 10 single adjudication, there is clear justification for handling the dispute on a representative 11 rather than on an individual basis.” Vega v. All My Sons Bus. Dev., 583 F. Supp. 3d 1244, 12 1263 (D. Ariz. 2022) (quoting LaCross v. Knight Transp. Inc., No. CV-15-00990-PHX- 13 JJT, 2022 WL 101196, at *4 (D. Ariz. Jan. 11, 2022)). “[C]ourts have a duty to take a 14 close look at whether common questions predominate over individual ones to ensure that 15 individual questions do not overwhelm questions common to the class.” Senne v. Kansas 16 City Royals Baseball Corp., 934 F.3d 918, 927 (9th Cir. 2019) (quotations omitted). 17 In determining superiority, courts must consider the four factors of Rule 23(b)(3), 18 which focus on the efficiency and economy concerns of class actions. The factors are: (A) the class members’ interests in individually controlling the prosecution 19 or defense of separate actions; (B) the extent and nature of any litigation 20 concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims 21 in the particular forum; (D) and the likely difficulties in managing a class 22 action. 23 Fed. R. Civ. P. 23(b)(3); see also LaCross, 2022 WL 101196, at *6. 24 1. Predominance 25 Plaintiffs argue that the common issues clearly predominate over any individual 26 issues and that the calculation of damages will not overwhelm questions common to the 27 class. (Doc. 81 at 12–13.) GCU counters that that individual issues predominate for both 28 remaining claims and that unjust enrichment claims are generally unsuitable for class 1 certification. (Id.) 2 The Court finds that both claims fail the predominance inquiry. To prevail on a 3 claim of unjust enrichment under Arizona law, a Plaintiff must prove: “(1) an enrichment, 4 (2) an impoverishment, (3) a connection between the enrichment and impoverishment, (4) 5 the absence of justification for the enrichment and impoverishment, and (5) the absence of 6 a remedy provided by law.” Perez v. First Am. Title Ins. Co., 810 F. Supp 2d 986, 991 (D. 7 Ariz. 2011) (quoting Freeman v. Sorchych, 245 P.3d 927, 936 (Ariz. Ct. App. 2011)). 8 Because the circumstances of a particular case must necessarily be examined before a court 9 can grant relief on such an equitable claim, courts have found unjust enrichment claims 10 inappropriate for class treatment. See T-Mobile USA, Inc., 564 F.3d at 1274 (“[C]ommon 11 questions will rarely, if ever, predominate an unjust enrichment claim, the resolution of 12 which turns on individualized facts.”); see also Collinge v. IntelliQuick Delivery, Inc., No. 13 2:12-CV-00824 JWS, 2015 WL 129444, at *14 (D. Ariz. Mar. 23, 2015) (finding that 14 unjust enrichment claims “are inherently unsuitable for class certification”). 15 To counter this general rule, Plaintiffs cite to Perez v. First Am. Title Ins. Co., No. 16 CV-08-1184-PHX-DGC, 2009, 2009 WL 2486003 (D. Ariz. Aug. 12, 2009). However, 17 this case is factually distinguishable. The Perez court dealt with an insurance company 18 that allegedly charged more than their published rates. Id. at *6. Here, there is no claim 19 that GCU charged Plaintiffs more than their published tuition rates. Rather, the claim 20 concerns individual students that did not receive the benefits they expected when they paid 21 on-campus tuition and GCU’s failure to refund their money in any way. This distinction 22 shows the level to which these claims will turn on the individual facts of each student. 23 Plaintiffs’ citation to Salt River Pima-Maricopa Indian Cmty. v. United States, 266 F.R.D. 24 375 (D. Ariz. 2010) is equally unavailing. In that case, the court did not separately discuss 25 the applicability of the unjust enrichment in its predomination analysis. Id. at 379. The 26 citation points to a result rather than any analysis from which the Court can draw a parallel. 27 The Court agrees with other courts that have refused to certify a class for unjust 28 enrichment claims. Common questions simply will not predominate these unique, 1 individual claims. Moreover, Plaintiffs have failed to provide an expert to show that 2 damages can be determined on a classwide basis. While individual differences in damages 3 calculations is not dispositive for the predominance factor, the Court is not convinced that 4 they can be accounted for on a classwide basis given the lack of evidence to show 5 otherwise. These damages will therefore need to be calculated individually for each 6 student. This task is only made more complex by the fact that GCU distributed CARES 7 Act funds to students that met certain criteria to assist with their costs, scholarships were 8 awarded to some students, and some students enrolled in online classes before the COVID- 9 19 related changes. 10 Additionally, under Arizona law, “unjust enrichment is a ‘flexible equitable remedy 11 which is available whenever the court finds that the defendant . . . is obliged by the ties of 12 natural justice and equity to make compensation for the benefits received.’” Isofoton, S.A. 13 v. Giremberk, No. CV-04-0798-PHX-ROS, 2006 WL 1516026, at *3 (D. Ariz. May 30, 14 2006) (quoting Arnold & Assocs., Inc. v. Misys Healthcare Systems, 275 F. Supp. 2d 1013, 15 1024 (D. Ariz. 2003)) (internal quotation marks omitted). The analysis requires some 16 evaluation of the parties’ expectations. And, as Plaintiffs’ note, Arizona courts have held 17 that restitution for unjust enrichment should take into account the plaintiff’s expectations 18 and the circumstances which make it unjust to allow a defendant to retain the benefits. See, 19 e.g., Pyeatte v. Pyeatte, 661 P.2d 196, 207 (Ariz. Ct. App. 1982). This requires some 20 consideration of what each Plaintiff expected and the circumstances of each Plaintiffs 21 experience with online versus in person classes. Plaintiffs may have had different 22 understandings of what they were paying for by choosing in person status. See T-Mobile 23 USA, Inc., 564 F.3d at 1274–75 (denying class certification on an unjust enrichment claim 24 where the particular circumstances of each individual case was required to determine if 25 inequity resulted). Overall, the highly individual nature of each claim ensures that the 26 individual concerns will overwhelm the common questions. Accordingly, the Court finds 27 that Plaintiffs have not met the predominance requirement for their unjust enrichment 28 claim. 1 For the same reasons, the money had and received claim fails the predominance 2 requirement. Money had and received is an equitable claim and requires a showing that 3 “the defendant has received or obtained possession of money of the plaintiff which in 4 equity and good conscience he ought to pay over to the plaintiff.” Copper Belle Mining Co. 5 of W. Va. v. Gleeson, 14 Ariz. 548, 551 (1913); Dream Team Holdings LLC v. Alarcon, 6 No. CV-16-01420-PHX-DLR, 2017 WL 3460806, at *3 (D. Ariz. Aug. 11, 2017). The 7 action is similar to an action for unjust enrichment because it requires “‘that the defendant 8 received a benefit, that by receipt of that benefit the defendant was unjustly enriched at the 9 plaintiff’s expense, and that the circumstances were such that in good conscience the 10 defendant should provide compensation.’” Dream Team, 2017 WL 3460806, at *3 11 (quoting Freeman, 245 P.3d at 936). 12 Much like the unjust enrichment claim, the money had and received claim will 13 require a per-plaintiff analysis. The claim concerns individual students that each paid 14 differing amounts of tuition to GCU. Similarly, precise damages will need to be calculated 15 individually and an analysis of each individual plaintiff’s circumstance will have to be 16 conducted, thereby making the claims unsuitable to class certification. Each of these 17 claims will turn on individual facts that would overwhelm questions common to the 18 putative class. Accordingly, the predominance element is also not met for the money had 19 and received claim. 20 The Court finds that because both claims fail the predominance inquiry of Rule 21 23(b)(3), the class cannot be certified. 22 2. Superiority 23 Because the Court finds that Plaintiffs’ claims fail the predominance inquiry, the 24 superiority analysis is not required. 25 V. CONCLUSION 26 Accordingly, 27 … 28 … 1 IT IS ORDERED denying Plaintiffs’ Motion for Class Certification and || Appointment of Class Counsel (Doc. 81). 3 Dated this 12th day of September, 2023. 4 5 Ss > fonorable Susan M. Brnovich = 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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