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Jay L. Thomas v. Nova Southeastern University

July 27, 2011


The opinion of the court was delivered by: Hon. William J. Martini




This matter comes before the Court on Defendant Nova Southeastern University, Inc.'s ("NSU") motions to dismiss Plaintiff's Complaint and Plaintiff's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b). There was no oral argument. Fed. R. Civ. P. 78. For the reasons stated below, Defendant's motion is GRANTED and Plaintiff's claims are DISMISSED.


This case arises out of a contract between Plaintiff and Defendant regarding tuition for online classes. Plaintiff was an online student at NSU. (Compl. ¶ 4.) NSU and Plaintiff entered an enrollment agreement under which Plaintiff agreed to pay $6,215.00 in tuition for the classes. (Compl. ¶ 8.) Plaintiff paid that tuition using a student loan. (Id.) Plaintiff alleges that he withdrew from NSU after he had difficulty attending the online classes for the first ten days, and that under the enrollment agreement NSU owed Plaintiff a refund of 50% of the tuition price. (Compl. ¶¶ 11-12.) Plaintiff claims that NSU did not refund 50% of his tuition payment to him directly, and that this amounted to a breach of the enrollment agreement and a violation of the Higher Education Act ("HEA"). Defendant moved to dismiss the complaint on May 26, 2011. In response, Plaintiff sent a first amended complaint to Defendant, and filed an application for leave to amend the complaint with the Court on June 16, 2011. (Docket Entry No. 13.) Even though Plaintiff never officially filed his first amended complaint with the Court, Defendant filed a motion to dismiss the first amended complaint out of an abundance of caution. (Docket Entry No. 14.) In Plaintiff's opposition to Defendant's second motion to dismiss, Plaintiff essentially includes a motion to amend and a proposed second amended complaint. Therefore, since Plaintiff is proceeding pro se and since the Court therefore wishes to exercise an abundance of caution, the Counts raised in both versions of the complaint in front of the Court (Plaintiff's complaint and Plaintiff's proposed second amended complaint) will be addressed in evaluating Defendant's motions to dismiss.


Plaintiff's two-count original complaint asserts the following claims: (1) breach of contract, and (2) violation of the HEA. In Plaintiff's proposed second amended complaint (and, according to Defendant, in his first amended complaint), Plaintiff alleges the following two counts: (1) breach of contract, and (2) breach of fiduciary duty. Plaintiff further requests punitive damages in association with his breach of fiduciary duty claim. Defendant argues, among other things, that Plaintiff's complaint should be dismissed for lack of subject matter jurisdiction. Defendant then brought the instant motions to dismiss under Federal Rule of Civil Procedure 12(b)(1), (2), (3) and (6).

A. Motion to Dismiss Standard

Since Defendant has brought a facial attack for lack of subject matter jurisdiction under Rule 12(b)(1), the applicable standard of review is "similar to the standard governing a Rule 12(b)(6) motion." New Jersey Mfrs. Ins. Co. v. U.S., Civ. No. 07-2653, 2008 WL 2168006, at *1 (D.N.J. May 22, 2008). Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and dismissal is appropriate only if, accepting all of the facts alleged in the complaint as true,*fn1 the plaintiff has failed to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). The factual allegations must be sufficient to raise a plaintiff's right to relief above a speculative level, see Twombly, 550 U.S. at 570, such that the court may "draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556). Furthermore, the Plaintiff must "provide the 'grounds' of his 'entitlement to relief,'" which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. While "[t]he plausibility standard is not akin to a 'probability requirement' ... it asks for more than a sheer possibility..." Iqbal, 129 S.Ct. at 1949 (2009).

In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] document[s]." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Coll. Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002).

B. Subject Matter Jurisdiction

Defendant argues, among various things, that all versions of Plaintiff's complaint should be dismissed because the facts alleged, on their face, do not support subject matter jurisdiction. Plaintiff, however, asserts jurisdiction ...

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