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, 56 F.4th 1, 4 (1st Cir.
2022); Pleasantdale Condos., LLC v. Wakefield, 37 F.4th 728, 730
(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., 953 F.3d 159, 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, 873
F.3d 75, 78 (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), 523 F. Supp. 3d 214, 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 id. at 221-22. 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 id. at 223.
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," id. 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," id. at 223.
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." Id. at 225.
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." Id. at 224.
- 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, 2023 WL
1408202, 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, 745 F.3d 8, 11 (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, 657 F.3d 39, 46 (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, 597 F.3d 436, 441
(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.'" Id. at 442 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(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.), 324 F.3d 12, 15-16 (1st Cir. 2003) (quoting
Boateng v. InterAmerican Univ., 210 F.3d 56, 60 (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., 137 F.3d 12, 17 (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, 469 F.3d 143, 150 (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." Id.
Because the plaintiffs' actions were brought in
diversity jurisdiction pursuant to the Class Action Fairness Act,
see 28 U.S.C. § 1332(d), state law supplies the substantive rules
of decision, see Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
In this instance, we accept the parties' reasonable agreement that
Rhode Island law controls. See Borden v. Paul Revere Life Ins.
Co., 935 F.2d 370, 375 (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).
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., 627 F.3d 34, 39
(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., 692 A.2d 665, 669 (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, 148 A.3d 537, 545 (R.I. 2016).
Rhode Island courts have recognized that the student-
university relationship is "essentially contractual in nature."
Gorman v. St. Raphael Acad., 853 A.2d 28, 34 (R.I. 2004). That is
true even though universities enjoy "broad discretion to meet
[their] educational and doctrinal responsibilities." Id. 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., 41 F.4th 873, 883 (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., 509 F.3d 25, 34 (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, 509 F.3d at 34.
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., 931 F.3d 1, 12 (1st Cir. 2019).
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." Id. 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, 249
A.2d 414, 416 (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., 692
A.2d at 669. 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., 27 F.4th 754, 764
(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., 555 F. Supp. 3d
44, 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,
27 F.4th at 764.
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., 713 A.2d 1234, 1238 (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 id. "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, 895 F.2d 1, 17 (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,
37 F.4th at 732. 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, 175 F.3d 178, 184 (1st Cir. 1999).
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, 509 F.3d at
34.
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., 565 F.2d 200, 203 (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., 534 F. Supp. 3d 463, 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, 565 F.2d at 203. 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, 27 F.4th at 767 (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, 568 F.
Supp. 3d 350, 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, 2020 WL 7338499, 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.
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., 692 A.2d at 669.
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, 2023 WL 1408202, 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.
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.
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.
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.
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.
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, 246 A.3d 927, 933 (R.I.
2021) (alteration in original) (quoting S. Cnty. Post & Beam, Inc.
- 31 - v. McMahon, 116 A.3d 204, 210-11 (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., 895 F.2d 46, 50 (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, 477 U.S. 317,
325 (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, 316 F.3d 18, 22 (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 -