Javier A. Lopez, Esq.jal@kttlaw.com | 305.372.1800

BY EMAIL

KOZYAK • TROPIN THROCKMORTONATTORNEYS AT LAW

March 3, 2021

Bob Shillinger County AttorneyMonroe County Attorney’s Offiee 1111 12th Street, Suite 408 Key West, FL 33040 shillinger-bob@monroecounty-fl.gov

Re: Request for Amieus Support in Verdini v. District Board of Trustees of Miami Dade College

Dear Bob:

My name is Javier Lopez and I appreciate your time on this issue of importanee to Monroe County. I am the Managing Partner at Kozyak Tropin & Throekmorton and write to request that the Monroe County Attorney’s Office eonsider filing an amicus brief in support of a pending sovereign immunity appeal before Florida’s Third District Court of Appeal.

This ease involves a putative elass aetion brought against Miami Dade College (“MDC”), through its board of trustees, for breach of contract and unjust enrichment. Plaintiff asserts that, when he enrolled in MDC for the Spring and Summer 2020 semesters, he entered into a eontract whereby he paid fees to MDC to reeeive “on-campus services.” Aeeording to Plaintiff, MDC breaehed this eontract when, in an effort to mitigate the spread of COVID-19, MDC closed its eampus and moved all courses and instruetion to a virtual format. Plaintiff asserts that he is entitled to a pro-rata refund of the fees for the on-campus services that he alleges were not provided.

As a politieal subdivision of the State of Florida, MDC is protected from both liability and suit under the doctrine of sovereign immunity. Fla. Highway Patrol v. Jackson, 288 So. 3d 1179, 1185 (Fla. 2020). “Unless the immunity is waived, governmental entities in Florida generally are sovereignly immune from suit.” City of Miami Firefighters ’ & Police Officers Ret. Tr. cfe Plan v. Castro, 279 So. 3d 803, 806 (Fla. 3d DCA 2019). While the Florida Legislature “has expressly provided for limited waiver of sovereign immunity in tort through seetion 768.28, Florida Statutes,” “there are no statutory provisions for sovereign immunity, or its waiver, with regard to contracts.” City of Fort Lauderdale v. Israel, 178 So. 3d 444, 446 (Fla. 4th DCA 2015). With respect to contracts, “sovereign immunity is waived only as to an express governmental contraet and its attendant duties.” Castro, 279 So. 3d at 807; see Pan-Am Tobacco Corp. v. Dep’t of Corr.,

2525 Ponce de Leon, 9th Floor, Miami, Florida 33134 | Phone 305.372.1800 j Fax 305.372.3508 | kttlaw.com

Page 2 of 5

471 So. 2d 4, 5-6 (Fla. 1984). Any waiver of sovereign immunity must be “clear and unequivocal.” Am. Home Assurance Co. v. Natl R.R. Passenger Corp., 908 So. 2d 459, 472 (Fla. 2005).

The Plaintiff in this case did not identity any express written contract where MDC clearly and unequivocally waived its sovereign immunity. Instead, Plaintiff attached three pages of invoices and a one-page Financial Obligation Agreement as evidence that MDC clearly and unequivocally waived its immunity from suit. The invoices nowhere state—much less clearly and unequivocally state—that MDC waived its immunity from suit or obligated itself to provide any particular on-campus service. The trial court nonetheless agreed that these few pages of invoices were sufficient to constitute an express contract and denied MDC’s motion to dismiss the case based on sovereign immunity. MDC has now appealed that ruling to the Third District Court of Appeal.

If allowed to stand, the trial court’s ruling will adversely impact MDC by forcing it to defend against meritless claims and face potentially millions of dollars in liability. Plaintiff s counsel has stated in court filings and to the press that he seeks to use this case as a “bellwether” to test whether he can bring similar cases against postsecondary educational institutions and other governmental entities throughout Florida. So the trial court’s rejection of MDC’s sovereign immunity defense could encourage copy-cat suits—opening up public colleges and universities, other governmental entities, and the taxpayers to the cost of defending suits and facing the uncertainty of liability that the doctrine of sovereign immunity exists to protect against.

BACKGROUND

A member of the Florida College System, Miami Dade College educates more than 100,000 students in an academic year across eight campuses, virtually and in person. In March 2020, as the COVID-I9 pandemic spread rapidly across the United States and the State of Florida, the Florida Department of Education ordered all public state colleges closed for the remainder of the spring semester, while encouraging colleges to operate virtually or though other non- classroom-based means to the greatest extent possible. Like public colleges throughout Florida, despite the COVID-19 pandemic, MDC offered courses remotely to thousands of students during the latter half of the Spring 2020 semester and all of the Summer 2020 semester.

Plaintiff Fernando Verdini is a nursing student who was enrolled at MDC during the Spring and Summer 2020 semesters. He alleges that he paid—and is now seeking reimbursement for— certain unspecified fees for services that he asserts MDC agreed to provide but did not. Plaintiff initially filed suit in May 2020 against the Florida State Board of Education in Leon County Circuit Court, seeking to obtain a refund of unspecified student fees on behalf of himself and a proposed class of all students in the Florida College System—a system comprised of 28 colleges across 72 campuses that together serve more than 730,000 students. Plaintiff attached no documents to his complaint. After the State Board of Education moved to dismiss based on sovereign immunity (among other grounds), Plaintiff voluntarily dismissed his complaint.

2525 Ponce de Leon, 9th Floor, Miami, Florida 33134 | Phone 305.372.1800 | Fax 305.372.3508 | kttlaw.com

Page 3 of 5

In August 2020, Plaintiff sued MDC in Miami-Dade County Circuit Court on behalf of himself and a proposed class of all MDC students enrolled in the Spring and Summer 2020 semesters who paid fees that Plaintiff claims entitled them to “on-campus services.” Plaintiff seeks disgorgement of “prorated fees” in the amount of at least $1 million. This time, Plaintiff attached three pages of invoices and a one-page Financial Obligation Agreement to his complaint that, he contends, are express written agreements with MDC under which MDC agreed to provide “on- campus services.”

MDC moved to dismiss, invoking its sovereign immunity from suit. The trial court disagreed and held that the few pages of invoices were enough to survive a motion to dismiss because they “sufficiently contain the express written terms and provide the specific services MDC was contractually obligated to provide in exchange for Plaintiffs payment of ‘fees.’” The trial court said nothing more about which contractual term obligated MDC to provide on-campus services. Nor did the trial court identify any express written contract demonstrating that MDC waived its sovereign immunity from suit. The trial court did, however, dismiss Plaintiff s unjust enrichment claim with prejudice.

THE ADVERSE CONSEQUENCES THE TRIAL COURT’S DECISION PRESENTS TOTHE SOVEREIGN IMMUNITY DEFENSE

The trial court’s decision is wrong and, if upheld on appeal, could expose governmental entities to the cost of defending against suits when no express written contract exists that clearly and unequivocally waives sovereign immunity.

The Florida Supreme Court reaffirmed last year that “sovereign immunity is both an immunity from liability and an immunity from suit.” Jackson, 288 So. 3d at 1185. Given the “important societal interests underlying sovereign immunity[, ejvery wrongly denied claim of sovereign immunity prolongs unnecessary litigation and siphons resources from the government entity’s core mission.” Id. Trial courts therefore must detenuine “entitlement to sovereign immunity ... as early in the litigation as possible.” Id. This is “especially true in light of the separation of powers principles that animate the doctrine of sovereign immunity.” Id. Recognizing the important interests served by sovereign immunity, the Florida Supreme Court recently amended Florida Rule of Appellate Procedure 9.130 to penuit interlocutory appeals of non-final orders denying sovereign immunity. In re Amends, to Fla. Rule of App. Proc. 9.130, 289 So. 3d 866 (Fla. 2020). Trial court decisions that recognize contractual waivers of sovereign immunity based on mere invoices—like the decision below—“insufficiently protect[] the public and governmental interests served by sovereign immunity.” Jackson, 288 So. 3d at 1186.

The trial court’s decision also threatens to weaponize statutes, ordinances, and other government rules to force upon government institutions unwritten, extra-contractual obligations the violation of which would disentitle a government institution from its immunity from suit. Plaintiff contends that the statutory provisions authorizing members of the Florida College System to assess student fees require them to provide on-campus services. In his complaint and response

2525 PoncedeLeon,9thFloor, Miami, Florida 33134 | Phone 305.372.1800 | Fax 305.372.3508 | kttlaw.com

Page 4 of 5

in opposition to MDC’s motion to dismiss, Plaintiff argued that section 1009.23, Florida Statutes— which provides statutory authorization to the boards of trustees of Florida College System institutions to charge a vast array of student fees—somehow prohibits MDC from charging student fees when on-campus services are unavailable.

Plaintiffs seemingly limitless argument would apply to any student fee assessed by any state postsecondary educational institution—or even to other government institutions with statutory or other legal authorization to charge fees. See, e.g., § 1009.22, Fla. Stat. (2020) (authorizing workforce education postsecondary fees); id. § 1009.24 (authorizing state university student fees). Plaintiff seeks to represent a class of “all persons who paid fees” when enrolled in the Spring and Summer 2020 semesters at MDC. Plaintiff does not differentiate between what fee was charged, to whom it was charged, or who paid the fees.

The Third District Court of Appeal has previously expressed reluctance to engage in a “judicial expansion of . . . general duties” contained in municipal ordinances into “express contractual obligations” that waive a government’s sovereign immunity. Castro, 279 So. 3d at 808. A decision not applying this principle to other generally worded legal authorizations—whether by statute, ordinance, or administrative rule—could lead government entities to face significant and unwarranted exposure to suit and liability from which they would otherwise be immune.

POTENTIAL ROLE FOR AMICI

Amicus briefs from state postsecondary educational institutions and other governmental entities would provide the Third District Court of Appeal with invaluable perspectives on the practical importance of the questions presented.

Amicus briefs could help highlight the financial impact and operational disruption that have resulted or could result from similar litigation. A decision affirming the trial court’s order could signal to trial courts that they can find a contractual waiver of sovereign immunity based on documents that cannot be said to be express written contracts (like the invoices in this case). That threatens to expose governmental entities to improper sovereign immunity waivers and further protracted litigation. Amicus briefs could also advise the Court as to the adverse legal consequences posed by turning a statutory authorization to charge fees into a requirement that the fees be used for a different, unspecified purpose—^here, to provide on-campus services when none are required. Another legal consequence would be creating a right to a return of statutory fees where the statute includes no such entitlement. Or amicus briefs could explore the difficulties posed by turning generally worded statutes, ordinances, or administrative rules into express contractual obligations, as Plaintiff attempts to do in this case. We would also invite amici to explain to the Court the additional expenses and costs public institutions have incurred in response to the COVID-19 pandemic.

A robust presence of amicus briefs would be valuable in ensuring that similar suits do not proceed. Plaintiff has already filed a now-dismissed suit against the Florida State Board of Education. As noted. Plaintiff clearly labeled this case a “bellwether” in his complaint. And after

2525 Ponce de Leon, 9th Floor, Miami, Florida 33134 | Phone 305.372.1800 | Fax 305.372.3508 | kttlaw.com

Page 5 of 5

the trial court issued its decision below, Plaintiffs counsel told the press that he intends “to file more class actions against other collegiate academic institutions in the state, with ambitions to eventually recover money for the more than 20 million students around the country with similar tuition woes.”

MDC has already secured amicus support from the Florida Department of Education and the State Board of Education, which will be represented by Eversheds Sutherland (US), with Rocco E. Testani as lead counsel.

Thank you for your time, attention, and assistance. For your convenience, I have attached copies of the trial court’s order. Plaintiffs complaint, and the briefing on MDC’s motion to dismiss. Please do not hesitate to contact us if you have any questions or concerns. Currently, under the expedited briefing schedule for sovereign immunity appeals, our initial brief before the Third District Court of Appeal is due on March 22, 2021. Any amicus brief would be due on April 1, 2021, ten days after service of our initial brief However, under Florida Rule of Appellate Procedure 9.370(c), an amicus brief may be served at a later date with leave of the court. Amicus briefs filed after April 1, 2021 may be subject to a separate response by Plaintiff.

Sincerely,

CC:

Javier A. Ley-Soto, Esq., General Counsel, Miami Dade College

2525 Ponce de Leon, 9th Floor, Miami, Florida 33134 | Phone 305.372.1800 | Fax 305.372.3508 | kttlaw.com

TABLE OF CONTENTS

Order on MDC’s Motion to Dismiss Plaintiff’s Complaint (Feb. 1, 2021)….. A

Class Action Complaint (Aug. 20, 2020)…..………………………….…..…. B

MDC’s Motion to Dismiss Class Action Complaint (Oct. 13, 2020)…….….. C

Plaintiff’s Response in Opposition to MDC’s Motion to Dismiss Class Action

Complaint (Oct. 13, 2020)……………………..…….………….…….…..…. D

MDC’s Reply in Support of Motion to Dismiss Class Action Complaint

(Oct. 28, 2020)………..……..………………………………………….……. E

A

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT, IN

AND FOR MIAMI-DADE COUNTY,

FLORIDA

CASE NO. 2020-17924-CA-44

FERNANDO VERDINI, an individual on

behalf of others similarly situated

Judge William Thomas

Plaintiff,

v.

DISTRICT BOARD OF TRUSTEES OF

MIAMI-DADE COLLEGE

Defendant.

______________________________________/

ORDER ON DEFENDANT, DISTRICT BOARD OF TRUSTEES OF MIAMI-DADE

COLLEGE’S, MOTION TO DISMISS PLAINTIFF’S COMPLAINT

THIS CAUSE came before the Court on Defendant, District Board of Trustees of Miami-

Dade College’s (“MDC”), motion to dismiss Plaintiff’s complaint. The Court having reviewed

the motion, heard argument of counsel, and otherwise being fully advised in the premises, the

Court makes the following findings:

A motion to dismiss tests only the legal sufficiency of a complaint and is not intended to

determine issues of ultimate fact. “[T]he trial court is necessarily confined to the well-pled facts

alleged in the four corners of the complaint." Lewis v. Barnett Bank of S. Florida, N.A. 604 So. 2d

937 (Fla. 3d DCA 1992). The primary purpose of a motion to dismiss is to request the trial court

to determine whether the complaint properly states a cause of action upon which relief can be

granted and, if it does not, to enter an order of dismissal. Provence v. Palm Beach Taverns, Inc.,

676 So. 2d 1022 (Fla. 4th DCA 1996). The court must draw all reasonable inferences in favor of

CASE NO. 2020-17924-CA-44

the nonmoving party. Id. Thus, the question for this court to decide is whether, assuming the well-

pleaded factual allegations in the Complaint are true, Plaintiffs would be entitled to the relief

requested.

Plaintiff alleges that MDC breached an express, written agreement with him concerning

fees that he was required to pay in exchange for registering for courses at MDC. Plaintiff attaches

invoices providing the fees he was charged for the Summer 2020 semester—invoices which list

the specific purpose of each and every fee—and an invoice demonstrating he was charged similar

fees in the Spring 2020 semester. The Plaintiff alleges that these documents constitute an express,

written agreement between Plaintiff and MDC to provide specific services authorized by the

Florida statutes in exchange for the payment of fees. MDC argues that Plaintiff does not identify

the on-campus services or the express written terms that MDC breached by not providing those

services. It is the finding of the Court that Plaintiff’s invoices, as attached to the complaint,

sufficiently contain the express written terms and provide the specific services MDC was

contractually obligated to provide in exchange for Plaintiff’s payment of “fees” to survive a motion

to dismiss. See Waite Development, Inc. v. City of Milton, 866 So. 3d 153, 155 (Fla. 1st DCA

2004) (reversing order dismissing claim against City based on sovereign immunity defense finding

that “[s]everal writings may constitute a valid and binding written contract when they evidence a

complete meeting of the minds of the parties and an agreement upon the terms and conditions of

the contract.”)

MDC argues sovereign immunity bars Plaintiff’s claims. “Sovereign immunity is the

‘privilege of the sovereign not to be sued without its consent.’” City of Fort Lauderdale v. Israel,

178 So. 3d 444, 446 (Fla. 4th DCA 2015) (citation omitted). “Sovereign immunity is a doctrine

designed to protect the public treasury from what would otherwise be countless claims filed by the

CASE NO. 2020-17924-CA-44

vast number of citizens affected by actions of a government.” S. Roadbuilders, Inc. v. Lee Cty.,

495 So. 2d 189, 190 n.1 (Fla. 2d DCA 1986). “[A] [sovereign] waives the protections of sovereign

immunity only when it enters into an express contract.” Israel, 178 So. 3d at 447. Immunity

remains, however, where the claims do not arise from breaches of expressed, written contracts.

See S. Roadbuilders, Inc. v. Lee Cnty., 495 So. 2d at 190- 91. In addition, under Florida law, where

there is an express written contract, “the defense of sovereign immunity does not protect the state

agency from an action arising out of a breach of either an express or implied covenant or condition

of that contract.” Champagne-Webber, Inv. v. City of Fort Lauderdale, 519 So. 2d 696, 698 (Fla.

4th DCA 1988).Therefore, it is

ORDERED AND ADJUDGED that Plaintiff has sufficiently stated a cause of action for

breach of an express contract. Therefore, at the motion to dismiss stage, sovereign immunity is no

bar to Plaintiff’s well pled breach of contract claim and MDC’s motion to dismiss is DENIED.

However, as to the Plaintiff’s unjust enrichment claim, the motion to dismiss is GRANTED with

prejudice as Florida law does not permit a waiver of sovereign immunity based on implied

contracts. MDC has 20 days from the date of this order to file an answer.

DONE AND ORDERED in Chambers at Miami-Dade County, Florida, on 02/01/21.

_________________________________________ WILLIAM THOMAS CIRCUIT COURT JUDGE

No Further Judicial Action Required on THIS MOTION CLERK TO RECLOSE CASE IF POST JUDGMENT

The parties served with this Order are indicated in the accompanying 11th Circuit email confirmation which includes all emails provided by the submitter. The movant shall IMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, email or

CASE NO. 2020-17924-CA-44

hand-delivery, to all parties/counsel of record for whom service is not indicated by the accompanying 11th Circuit confirmation, and file proof of service with the Clerk of Court. Signed original order sent electronically to the Clerk of Courts for filing in the Court file.

B

1

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRUIT IN

AND FOR MIAMI DADE COUNTY, FLORIDA

COMPLEX BUSINESS DIVISION

CASE NO.: ______________________

FERNANDO VERDINI, individually and on behalf of all others similarly situated,

Plaintiff,

v. DISTRICT BOARD OF TRUSTEES OF MIAMI DADE COLLEGE,

Defendant.

CLASS ACTION COMPLAINT

JURY TRIAL DEMANDED

CLASS ACTION COMPLAINT

Plaintiff Fernando Verdini, individually and on behalf of all others similarly situated

(collectively, the “Class,” as more fully defined below), brings this class action complaint against

Defendant the District Board of Trustees of Miami Dade College (“MDC” or “Defendant”).

Plaintiff makes the following allegations upon personal knowledge as to his own acts, and upon

information and belief, and his attorneys’ investigation, as to all other matters, alleging as follows:

I. NATURE OF THE ACTION

1. This is a class action brought by Plaintiff Verdini, a student in the Generic Full

Time Nursing Program at the Medical Campus of Miami Dade College, on behalf of all persons

who paid fees to MDC for the Spring and Summer 2020 academic semesters and who, because of

MDC’s response and policies relating to the Novel Coronavirus Disease 2019 (“COVID-19”)

pandemic, lost and/or will not receive the benefits of the on-campus services for which their fees

were paid, without having a pro-rated portion of those fees and costs refunded to them or otherwise

Filing # 112155528 E-Filed 08/20/2020 05:36:41 PM

2

waived in full and without condition.1 For purposes of this Complaint, “semester” also

encompasses “quarter” and means any academic period for which Plaintiff and the other Class

members paid fees but experienced a loss of services because of COVID-19.

2. Plaintiff’s claims relate solely to fees for on-campus services that are not available

to students with campuses effectively shut down. Plaintiff’s claims do not concern tuition costs.

Many school systems have already done the right thing and agreed to reimburse their students for

these unused and unavailable services and charges. This lawsuit seeks to hold MDC to this same

standard of fairness.

3. On March 17, 2020, the Florida State Board of Education (“FBSE”) took executive

action to require classes at all Colleges to be moved online for the remainder of the Spring 2020

semester due to COVID-19 pandemic.2 Students who lived in on-campus housing were told they

had to move out or were strongly encouraged to do so, such that they had no meaningful choice

but to comply. Further, because all classes were moved online, there was no reason for students to

remain on campus if they had other housing available to them. This is particularly so in the face

of the dangers, risks, and fear associated with the pandemic. On information and belief, many

students chose to leave campus to be closer to their families, or to avoid exposure to COVID-19,

and have stayed off campus to comply with directives from FSBE, the Colleges, and local, state,

and federal governments. In addition, the services that their fees were intended to cover were no

longer available to them.

4. Despite its constructive eviction of students at MDC for the remainder of the

semester and ending all campus activities for at least that same time period, MDC refuses to offer

refunds of fees paid to cover the cost of certain on-campus services which are no longer be

available to students. 1 MDC is one of the many Colleges in Florida’s College System which all refused to provide refunds of fees in violation of their agreements with students. This case will act as a bellwether to test whether similar claims should be brought against the rest of these institutions. 2 See http://www.fldoe.org/newsroom/latest-news/florida-department-of-education-announces-additional-guidance-for-the-2019-20-school-year.stml.

3

5. MDC’s decision to transition to online classes and to request or encourage students

to leave campus were responsible decisions to make, but it is unfair and unlawful for MDC to

retain fees and to pass the losses on to the students and their families. Other higher education

institutions across the United States that also have switched to e-learning and have requested that

students leave campus have recognized the upheaval and financial harm to students and their

families from these decisions and have provided appropriate refunds. That’s the right thing to do.

MDC, unfortunately, has taken the opposite approach by refusing to provide refunds concerning

the fees for on-campus services and activities.

6. Furthermore, MDC has improperly retained funds for services it is not providing,

in violation of its express contracts with students which collect fees only for certain statutorily-

specified purposes. MDC’s actions are unlawful and unfair, and as a matter of both contract and

equity, Plaintiff and Class Members are entitled to disgorgement of the fees and monies paid.

7. In addition to the foregoing, MDC’s campus remained closed for the summer

session yet MDC continued to charge mandatory fees to students for campus services that MDC

knew would not be available for the summer session.

8. Plaintiff brings this class action against MDC for breach of contract (or, in the

alternative, unjust enrichment), seeking to enjoin MDC from continuing to charge and/or retain

fees for services not provided and for damages and/or disgorgement consisting of the pro-rated,

unused amounts of fees that Plaintiff and the other Class members paid, but for which they (or the

students on behalf of whom they paid) will not be provided the benefit.

II. PARTIES

A. Plaintiff

9. Fernando Verdini is a Florida citizen, residing in Miami-Dade County, Florida. He

is a nursing student at Miami-Dade College and paid his fees for the Spring and Summer 2020

semesters.

4

10. Plaintiff paid certain fees for the entire Spring and Summer 2020 semesters, the

benefits of which he will no longer receive because the College urged students (wisely) to move

off-campus and to not utilize any on campus facilities. Plaintiff has neither been offered nor

provided a refund of any fees which he paid. Plaintiff also received a bill from Miami-Dade

College seeking to charge him fees for services that will not be available during the summer

session. MDC has not offered to waive those fees even though it knows the services are

unavailable.

B. Defendants

11. The District Board of Trustees of Miami Dade College is the governing body of

Miami Dade College. MDC resides in Miami Dade County, Florida, with its principal place of

business located at 300 NE 2nd Avenue, Miami, FL 33132.

III. JURISDICTION AND VENUE

12. This is an action for damages and the amount in controversy exceeds this Court’s

minimum jurisdictional amount ($30,000 exclusive of interest, costs, and attorney’s fees).

13. This Court has personal jurisdiction over MDC because MDC is domiciled in

Miami Dade County, Florida.

14. Venue is proper in this District pursuant to section 47.011, Florida Statutes, because

MDC is domiciled in Miami and the events which gave rise to this complaint took place

exclusively in Miami.

15. Assignment to the Complex Business Litigation Division is proper because the

amount in controversy exceeds $1 million, involves complex issues and involves a proposed class

action.

5

IV. FACTUAL ALLEGATIONS

A. Plaintiff and the Other Class Members Paid the Costs Fees for the Spring and Summer 2020 Semesters

16. Plaintiff and the other Class members are individuals who paid the cost of College

fees for the Spring and/or Summer 2020 semesters at MDC. Each College publishes its own

schedule of fees, which can include items such as a Student Services, Capital Improvement,

Technology, and Parking, among others. These fees are established in accordance with section

1001.23, Florida Statutes, which delineates which fees the Colleges can charge and their specific

purposes.

17. Mandatory Student Fees for college credit programs at Miami-Dade College on a

per credit hour basis are as follows:

• Student Services: $8.28

• Financial Aid: $4.14

• Capital Improvement: $15.88

• Technology: $4.14

• Parking: $3.00

See https://www.mdc.edu/about/tuition.aspx.

18. Students in Baccalaureate programs and Career and Technical Education Programs

at Miami-Dade College were also required to pay similar fees for the Spring and Summer 2020

semesters.

19. On information and belief, the fees described herein are not required of students

enrolled in online curricula at MDC. These fees cover campus resources available to students on

or around campus.

20. The fees listed and described in Paragraphs 16-19 (above) are provided by way of

example; the total amount of fees for which this action seeks disgorgement thereof—which may

6

include other fees that are not listed herein—will be proven at trial. For purposes of this action,

“fees” do not include the cost of tuition or the cost of room and board.

21. Plaintiff and Class members agreed to pay these fees in express, written contracts

with MDC. Specifically, Plaintiff and the other Class members entered into contractual agreements

with the Colleges which provided that Plaintiff and the other Class members would pay fees for

or on behalf of students, and in exchange, the Colleges would provide services to students. These

contracts are express written agreements between Plaintiffs and Class members and the Colleges

and are constituted by bills provided to students, invoices provided to students (such as the invoice

provided to Plaintiff for the summer 2020 session attached to this Complaint as Exhibit A), and

other written agreements requiring students to make specific fee payments in exchange for certain

services such as MDC’s “Financial Obligation Agreement,” available at

https://www.mdc.edu/about/pdf/financial-obligation-agreement.pdf and attached as Exhibit B.

Although Plaintiff does not have all of the documents constituting the express contracts currently

in his possession, Plaintiff should be given the opportunity to establish the contracts’ existence by

discovery directed to MDC, who certainly has these express contracts in its sole and exclusive

possession. See, e.g., Amiker v. Mid-Century Ins. Co., 389 So. 3d 974 (Fla. 1st DCA 1981).

B. In Response to COVID-19, MDC Gets It Half Right: Students Are Required or Encouraged to Leave Campus and Not Utilize Campus Services, But Their Fees Are Not Refunded.

22. Beginning in January 2020, COVID-19 began presenting American cities and

Colleges with an unprecedented, modern-day challenge: maintaining the fabric of our economy

and communities while protecting American lives.

23. In March 2020, several U.S. cities, states, and municipalities began calling for

social distancing to slow the spread of COVID-19. Eventually, some cities, states, and

municipalities ordered citizens and residents to “shelter-at-home,” effectively requiring them to

stay home, other than to receive essential services.

7

24. Students at the MDC began to immediately express concerns that, if they stayed on

campus or in student residence halls, the living conditions would threaten their safety, and expose

them to COVID-19. For example, at Miami-Dade College, students began a petition to close the

campuses because they “do not feel comfortable attending classes due to the outbreak of the Novel

Coronavirus. There are people at MDC with a compromised immune system who might easily fall

victim to this contagious virus.” See https://www.change.org/p/students-close-miami-dade-

college-due-to-covid-19-outbreak.

25. On March 9, 2020, Governor DeSantis issued Executive Order 20-52, declaring a

Florida State of Emergency due to COVID-10.

26. On or about March 11, 2020, FSBE issued an order directing all Colleges to

implement a process to transition to remote instruction immediately and encourage students to stay

home (if they had left their campuses for spring break) or to return home.

27. On or about March 17, 2020, FSBE extended remote learning through the end of

the Spring semester at all Colleges and directed all Colleges to develop an alternate schedule or

method of delivery for on-campus commencement ceremonies. On-campus and other co-curricular

activities, including athletic events, were cancelled.

28. On March 20, 2020, Governor DeSantis issued Executive Order 20-71, instructing

the Colleges to close all campus recreation and fitness centers, which were closed that day.

29. On March 24, 2020, Governor DeSantis issued Executive Order 20-83, ordering

the Florida Surgeon General and State Health officer to issue a public health advisory

recommending all Florida residents avoid social gatherings of ten or more people and encouraging

anyone who can work remotely to do so.

30. On April 1, 2020, Governor DeSantis issued Executive Order 20-91, instructing all

Florida residents to limit their movements and interactions outside the home to only those that are

necessary to obtain or provide essential services or activities.

8

31. As students registered for the Summer 2020 term at Miami-Dade College, the

College announced that, for the Summer 2020 terms A, B, and C, students would not be assessed

the parking fee and, if students were already enrolled, the parking fee would be automatically

credited to their account or returned to them if they have paid in full. Additionally, for certain

courses, fees during the Summer term may have been waived if a traditionally face-to-face course

was to be delivered exclusively through remote learning. Again, if students have already enrolled

and paid, these fees will be automatically credit to their accounts or returned to them if they have

paid in full. Despite this limited acknowledgment that certain fees are inapplicable now that the

campuses are closed, Miami-Dade College has not offered similar prorated discounts for the

Spring 2020 semester, nor offered discounts concerning Summer 2020 fees that fund on campus

services which students can no longer access due to the campus closures.

32. The Federal Government has also responded to the COVID-19 pandemic in ways

that benefit the Colleges and help the Colleges cover the costs associated with the disruption.

Specifically, $14 billion of stimulus funds have been set aside to aid institutions of higher

education. On information and belief, Florida will receive over $791 million for higher education,

with approximately $254.7 million going to the Florida College System.3 Just Miami-Dade

College will receive over $47 million.4

33. The effect of MDC’s COVID-19-related protocols and messaging is that all

students have effectively been forced to leave campus, unless they truly had no other safe place to

go. For students who do remain on campus, services are now extremely limited. For students who

do not live on campus, there is no reason to come to campus since all activities have been cancelled

and all classes have moved online.

3 How Much Will States Receive Through the Education Stabilization Fund in the CARES Act? Center on Budget and Policy Priorities (April 3, 2020), https://www.cbpp.org/research/state-budget-and-tax/how-much-will-states-receive-through-the-education-stabilization-fund. See also http://floridacollegeaccess.org/news/how-the-cares-act-can-help-florida-college-students-and-education-institutions/.

9

34. Notwithstanding each of the above-listed facts, MDC has not provided MDC

students refunds of their fees, even though students are no longer able to use the services for which

they paid, and even though it has been accepted by MDC, in approving fee changes for the summer

session, that students should not pay for services they cannot access.

35. While social distancing is recommended by healthcare professionals and even the

Centers for Disease Control and Prevention (“CDC”), the resulting impact to the economy—and

individual families’ wallets—cannot be understated. Rather than acknowledge the difficult

financial stresses that COVID-19 has placed on families, MDC students and their families were

expected to bear the brunt of the stress.

36. MDC has retained the value of monies paid by Plaintiff and the other Class

members for fees, while failing to provide the services for which those fees were paid. MDC’s

refusal to provide any refunds in consideration of its decision to shutter its campuses and move to

remote learning violates its express written contractual agreements with Plaintiff and Class

members to provide specific benefits, such as on campus parking and student activities, in

exchange for certain fee amounts.

37. Even if MDC had a legal right to cancel the fee contracts and no longer provide the

services for which the fees paid, it does not have the right to retain the monies that students and/or

families paid for those services. The inequity is further highlighted by the fact that MDC will be

receiving tens of millions of dollars in aid to help cover the costs associated with the COVID-19

disruption.

38. Class members have demanded the return of the unused portions of the fees that

they paid through a number of channels, including through online forums. See, e.g.,

https://www.change.org/p/florida-governor-prior-online-students-deserve-excess-fees-paid-back-

as-a-result-of-free-online-classes-now. MDC has ignored these demands.

39. In addition, on information and belief, students and/or their families have contacted

the MDC directly and/or left comments on online forums requesting refunds, all to no avail.

10

40. Through this lawsuit, Plaintiff seeks—individually and on behalf of the other Class

members—a judgment requiring MDC to disgorge the pro-rated, unused portion of fees,

proportionate to the amount of time that remained in the Spring 2020 semester when classes moved

online and campus services ceased being provided. These amounts must be fully disgorged and

returned to Plaintiff and the other Class members. It is inequitable, unfair, and illegal for MDC to

retain these funds. Plaintiff also seeks a judgment requiring MDC to stop charging certain fees for

upcoming semesters, such as the Summer 2020 session, which are collected to for on campus

services that will not be provided due to campus closures, and disgorge the portion of those fees

that constitute an unlawful profit.

V. CLASS ACTION ALLEGATIONS

41. Plaintiff brings this case individually and, pursuant to Florida Rule of Civil

Procedure 1.220(a), (b)(2), (b)(3), and/or (c)(4) for damages, equitable relief, and disgorgement

on behalf of the Classes, defined as:

THE SPRING SEMESTER CLASS:

All persons who paid fees for or on behalf of themselves or other students enrolled in classes at any campus in Miami Dade College for the Spring 2020 semester, including students and/or their families or guardians who paid fees (the “Class”).

THE SUMMER SEMESTER CLASS: All persons who paid fees for or on behalf of themselves or other students enrolled in classes at any campus in Miami Dade College for the Summer 2020 semester, including students and/or their families or guardians who paid fees (the “Class”).

42. Excluded from the Classes are MDC and any of their respective members, affiliates,

parents, subsidiaries, officers, directors, employees, successors, or assigns; the judicial officers,

and their immediate family members; and Court staff assigned to this case. Plaintiff reserves the

right to modify or amend the Class definitions, as appropriate, during the course of this litigation.

43. This action has been brought and may properly be maintained on behalf of the

Classes proposed herein under the criteria of Rule 1.220 of the Florida Rules of Civil Procedure.

11

44. Numerosity—Florida Rule of Civil Procedure 1.220(a)(1). The Class members

are so numerous and geographically dispersed that individual joinder of all Class members is

impracticable. The precise number of Class members is unknown to Plaintiff, but may be readily

ascertained from MDC’s records and, based upon publicly available information, is presumed to

be no less than 92,000 students. Class members may be notified of the pendency of this action by

recognized, Court-approved notice dissemination methods, which may include U.S. Mail,

electronic mail, Internet postings, and/or published notice.

45. Commonality—Florida Rule of Civil Procedure 1.220 (a)(2); Predominance—

Florida Rule of Civil Procedure 1.220 (b)(3). This action involves questions of law and fact

common to the Class, which predominate over any individual questions, including, without

limitation:

a. Whether MDC engaged in the conduct alleged herein;

b. Whether MDC breached its contracts with Plaintiff and the other Class

members by retaining fees without providing the services which the fees

were intended to cover;

c. Whether MDC was unjustly enriched by retaining fees of Plaintiff and the

other Class members without providing the services that the fees were

intended to cover;

d. Whether certification of the Class is appropriate under Florida Rule of Civil

Procedure 1.220;

e. Whether Plaintiff and the other Class members are entitled to prospective

declaratory, equitable, or injunctive relief, including disgorgement, and/or

other relief; and

f. The amount and nature of relief to be awarded to Plaintiff and the other

Class members.

12

46. Typicality—Florida Rule of Civil Procedure 1.220(a)(3). Plaintiff’s claims are

typical of the other Class members’ claims because Plaintiff and the other Class members each

paid for fees associated with the Spring 2020 and/or Summer 2020 semester at MDC but were not

provided the services that those fees were meant to cover, nor were they reimbursed therefor.

Plaintiff and the other Class members each suffered harm—namely, MDC retaining their fees and

monies paid—as a direct and proximate result of the same wrongful conduct in which MDC

engaged. Plaintiff’s claims arise from the same practices and course of conduct that give rise to

the other Class members’ claims.

47. Adequacy of Representation—Florida Rule of Civil Procedure 1.220(a)(4).

Plaintiff is an adequate Class representative because his interests do not conflict with the interests

of the other Class members who he seeks to represent. Plaintiff has retained counsel competent

and experienced in complex class action litigation, and Plaintiff intends to prosecute this action

vigorously. Class members’ interests will be fairly and adequately protected by Plaintiff and his

counsel.

48. Declaratory and Injunctive Relief—Florida Rule of Civil Procedure

1.220(b)(2). MDC has acted or refused to act on grounds generally applicable to Plaintiff and the

other Class members, thereby making appropriate final injunctive relief and declaratory relief, as

described below, with respect to the Class as a whole.

49. Superiority—Florida Rule of Civil Procedure 1.220(b)(3). A class action is

superior to any other available means for the fair and efficient adjudication of this controversy,

and no unusual difficulties are likely to be encountered in the management of this class action.

Individualized litigation creates a potential for inconsistent or contradictory judgments and

increases the delay and expense to all parties and the court system. By contrast, the class action

device presents far fewer management difficulties, and provides the benefits of single adjudication,

economy of scale, and comprehensive supervision by a single court.

13

50. Certification of Specific Issues—Florida Rule of Civil Procedure 1.220(c)(4).

To the extent a class does not meet the requirements of Rules 1.220(b)(2) or (b)(3), Plaintiff seeks

the certification of issues that will drive the litigation toward resolution.

VI. CLAIMS ALLEGED

FIRST CLAIM FOR RELIEF Breach of Contract

On behalf of Plaintiff and the Classes

51. Plaintiff repeats and alleges the allegations in Paragraphs 1–50 above, as if fully

alleged herein.

52. Plaintiff brings this claim individually and on behalf of the other Class members.

53. Pursuant to section 1001.64, Florida Statutes, and section 6A-14.054, Florida

Administrative Code, every Florida College System institution board of trustees, including MDC,

establishes fees pursuant to section 1009.22, 1009.23, 1009.25, 1009.26, and 1009.27, Florida

Statutes. The fees established pursuant to section 1009.23 include fees for on campus services.

54. Plaintiff and the other MDC Class members entered into contractual agreements

with MDC which provided that Plaintiff and the other Class members would pay fees for or on

behalf of students, and in exchange, MDC would provide services to students.

55. Plaintiff and the other Class members fulfilled their end of the bargain when they

paid the fees for the Spring 2020 semester.

56. MDC breached its contracts with Plaintiff and the other Class members when it

moved classes online, cancelled on-campus events and activities, and stopped providing services

for which the fees were intended to pay.

57. Even if performance was excused, MDC cannot retain funds for services it will not

provide.

58. MDC retained monies paid by and which belong to Plaintiff and the other Class

members, without providing them the benefit of their bargain.

14

59. Plaintiff and the other Class members have been deprived of the value of the

services the fees they paid were intended to cover, while MDC retained those fees. Plaintiff and

the other Class members are entitled to an equitable remedy—here: disgorgement of the pro-rated,

unused amounts of fees that MDC has already charged and which Plaintiff and the other Class

members have paid.

60. Plaintiff is not suing to recover monies paid by taxes to the public Colleges in

Florida; rather, Plaintiffs files suit against MDC, a corporate body that may be sued, for specific

disgorgement of fees and monies paid by students and their parents, guardians, and families for

services not received. Florida has waived its sovereign immunity for breach of contract suits in its

own courts. See, e.g., Pan–Am Tobacco Corp. v. Dep’t of Corr., 471 So.2d 4, 5 (Fla. 1984)

(“[W]here the state has entered into a contract fairly authorized by the powers granted by general

law, the defense of sovereign immunity will not protect the state from action arising from the

state’s breach of that contract.”).

SECOND CLAIM FOR RELIEF Unjust Enrichment

On behalf of Plaintiff and the Classes

61. Plaintiff repeats and alleges the allegations in Paragraphs 1–50, above, as if fully

alleged herein.

62. Plaintiff brings this claim individually and on behalf of the other Class members

and in the alternative to the breach of contract claim brought on behalf of Plaintiff and the other

Class members (the First Claim for Relief, above).

63. MDC has received a benefit at the expense of Plaintiff and the other Class members

to which it is not entitled. Plaintiff and the other Class members paid fees to MDC and did not

receive the full benefit of their bargain, while MDC continues to retain those fees.

64. Plaintiff and the other Class members paid fees for or on behalf of students, which

were intended to cover services for the Spring and Summer 2020 semesters. In exchange, students

were entitled to receive those services for the entire semester.

15

65. MDC moved classes online, cancelled on-campus events and activities, and stopped

providing the services the fees were intended to cover.

66. MDC has been unjustly enriched by retaining the fees paid by Plaintiff and the other

Class members for the semesters while not providing services for which those fees paid. Equity

requires MDC to return to Plaintiff and the other Class members the remaining, pro-rated amounts

of fees paid for the Spring and Summer 2020 semesters.

67. Plaintiff’s claim for unjust enrichment is not barred by sovereign immunity. Under

well-established Florida law, the state is not entitled to sovereign immunity for a fee charged in

violation of law. See Bill Stroop Roofing Inc. v. Metro. Dade Cnty., 788 So. 2d 365 (Fla. 3d Dist.

Ct. App. 2001).

REQUEST FOR RELIEF

Plaintiff, individually and on behalf of the other Class members, respectfully requests that

the Court enter judgment in his favor and against MDC as follows:

a. Certifying the Classes as requested herein, designating Plaintiff as class

representative, and appointing Plaintiff’s undersigned counsel as Class Counsel;

b. Declaring that MDC is financially responsible for notifying the Class

members of the pendency of this suit;

c. Declaring that MDC has wrongfully retained monies paid for fees, which

belong to Plaintiff and the other Class members and must be disgorged;

d. Awarding injunctive relief as permitted by law or equity, including

enjoining MDC from retaining the pro-rated, unused portion of monies paid for fees;

e. Awarding damages in the form of the portion of the fees that should

properly be returned to students; and

f. Awarding such other and further relief as may be just and proper.

VII. JURY TRIAL DEMANDED

Plaintiff demands a trial by jury on all causes of action so triable.

16

Dated: August 20, 2020 /s/ Adam M. Moskowitz Adam M. Moskowitz Florida Bar No. 984280 Howard M. Busman Florida Bar No. 364230 Adam A. Schwartzbaum Florida Bar No. 93014 THE MOSKOWITZ LAW FIRM 2 Alhambra Plaza Suite 601 Coral Gables, Florida 33134 Tel.: 305-740-1423 adam@moskowitz-law.com adams@moskowitz-law.com

Counsel for Plaintiff and the Proposed Class

Exhibit A

Exhibit B

Financial Obligation Agreement

When you register for classes at MDC, you will be required to acknowledge your financial responsibility, as follows:

All MDC students are required to read and e-sign this agreement prior to enrolling for courses each term.

I am incurring a legal debt to pay all charges assessed to my student account by the due date. These charges include, but are not limited to fees, tuition, books and balances owed due to changes to my financial aid awards. I accept full financial responsibility for each course, including those I may add or drop after initially enrolling for the term. I will check my student account and e-mail often. This will ensure that I am aware of any other charges or changes to my financial aid or third party payments. I am liable for dropping course(s) prior to the last day to drop with 100% refund to avoid charges. If I withdraw after this date or do not attend the course(s), I must pay the full cost of the course(s). I must contact the Bursar's Office to use my Florida Prepaid account to pay for my courses I will be billed and liable for any charges not covered by my Florida Prepaid plan or any other agency. I must meet all requirements for financial aid or third party payments to my student account. If the amount awarded or disbursed changes, I will be liable for the debt. I agree to repay any debt created due to changes of my financial aid awards. The changes may be due to changes in program of study, withdrawals, non-attendance, pending documents, unsatisfactory academic progress, enrollment changes, and failing to meet financial aid eligibility requirements. Outstanding debts due to the College may be deducted from any refunds that are due to me. My financial aid awards will pay tuition, fees, book advances, or any other educational related charges. I cannot receive certain types of financial aid funds at more than one school during a term. If I do not pay my outstanding charges to MDC by the posted due date, a hold will be placed on my account. This hold will not allow me to enroll for future terms or make changes to my current schedule. I will also be prevented from requesting transcripts or receiving my diploma. My account may be referred to a collection agency if I fail to pay any debts owed to MDC by the posted due date. I will be liable for all collection costs. These costs include but are not limited to collection agency, attorney, and court fees. I agree that my debt to MDC is an educational loan to assist in financing my education. It cannot be discharged under the United States Bankruptcy Code, Section 523(a)(8). I will allow MDC and its agents to contact me regarding my account to my cellular phone, wireless device, email, or other form of contact MDC has on file. I may be called using automated telephone systems which may use artificial or pre-recorded voice or text messages.

C

IN THE CIRCUIT COURT OF THE

11TH JUDICIAL CIRCUIT IN AND

FOR MIAMI-DADE COUNTY, FLORIDA

COMPLEX BUSINESS DIVISION

CASE NO: 2020-017924-CA-01

FERNANDO VERDINI, individually and on

behalf of all others similarly situated,

Plaintiff,

v.

DISTRICT BOARD OF TRUSTEES OF

MIAMI DADE COLLEGE, a sovereign

of the State of Florida,

Defendant.

_________________________________/

MOTION TO DISMISS CLASS ACTION COMPLAINT

Introduction

Miami Dade College serves tens of thousands of students in an academic year across nine

campuses, virtually and in person. Opening 60 years ago this year, Miami Dade College was

among the first desegregated institutions of higher education, and its student body today is 88%

minority. Earlier this year, the Covid-19 pandemic ravaged this nation and especially Miami-Dade

County. Miami Dade College closed much of its operations for its students’ and staff’s safety,

offering courses and instruction remotely. The plaintiff admits that the decision was wise. So,

naturally, he is suing the college because of it.

Plaintiff Fernando Verdini (“Plaintiff”) is suing Miami Dade College, through its board of

trustees, for breach of contract and unjust enrichment. Plaintiff asserts that he entered a contract

with the college to perform “on-campus services,” and, because of Covid, the college is not

Filing # 114894885 E-Filed 10/13/2020 02:59:31 PM

2

performing those services. Plaintiff says he is entitled to a pro-rata refund for the services that are

not being provided. He does not say how much that it is but insists he is entitled to it. He is not.

Miami Dade College is a public college that is protected by sovereign immunity. To sue

the college, Plaintiff must clearly and unequivocally show a waiver of immunity. He has not. He

must show the college breached an express, written contractual obligation. He hasn’t. He must

attach that contract to his pleading. He did not do so. Because Plaintiff has done nothing the Third

District Court of Appeal has required him to do, this Court should dismiss his Complaint. This

Court should also dismiss this action because the Plaintiff lacks standing and failed to state a claim.

Factual Allegations as Set Forth in the Complaint

Despite the Covid pandemic, Miami Dade College offered its courses remotely during the

latter half of the Spring 2020 and all of the Summer 2020 semesters to thousands of students. Class

Acton Complaint ¶¶ 3, 44 (“Compl.”). Plaintiff is one of those students. Id. at ¶ 9. He is a nursing

student seeking reimbursement for unspecified fees (not tuition) for unspecified services that he

asserts the college agreed to provide but did not. Id. at ¶ 40.

Plaintiff does not identify the services that Miami Dade College is no longer providing.

See generally Compl. He does not allege that he would have used those services if they were

provided. He does not specify the provisions of an express contract in which Miami Dade College

agreed to provide these unspecified services. Nor, as required by this Court’s rules, does he attach

the contract with the express provisions alleged to be breached to his complaint. Plaintiff demands

discovery to determine whether he can state a claim against Miami Dade College, id. at ¶ 21.

Plaintiff attached two exhibits to his pleading, neither of which contains the terms he

alleged were breached. Exhibit A contains an invoice for tuition and fees he purportedly owed

Miami Dade College for the Summer 2020 semester. Id., Ex. A. Also in Exhibit A is Plaintiff’s

3

invoice for the Spring 2020 semester. Id. Neither includes the terms that Plaintiff asserts are the

basis for his claim, nor are the documents signed by any party. Exhibit B is a “Financial Obligation

Agreement”; that too contains no provisions obligating the college to provide any on-campus

services. Id., Ex. B.

Plaintiff identifies five “mandatory” fees that he is apparently seeking reimbursement for

at unspecified amounts. See id. at ¶ 17. This list is as follows:

• Student Services: $8.28;

• Financial Aid: $4.14;

• Capital Improvement: $15.88;

• Technology: $4.14; and

• Parking: $3.00.

Id. Nowhere in Plaintiff’s 22-page complaint does he allege that Miami Dade College has ceased

to provide financial aid or financial aid services due to remote learning (or what on-campus

services relate to that fee). Nor does he allege that on-campus capital improvements are no longer

necessary due to the temporary disruption of on-campus, in-person learning. He does not allege

that technology services are no longer necessary in light of Covid, nor could he plausibly do so.

Fees for parking are not at issue as Plaintiff admits that Miami Dade College credited or returned

those fees to students in light of Covid. Id. at ¶ 31. So parking fees are not at issue here. As for

student services, there, too, Plaintiff pleads no facts as to student services Miami Dade College

agreed to provide but is not. Plaintiff also references certain baccalaureate and Career and

Technical Education Program fees, but he does not allege that he paid those fees or what services

the college agreed to provide in exchange. Id. at ¶ 18.

4

Purporting to represent himself and other putative class members, Plaintiff is demanding

more than a $1 million from Miami Dade College. Id. at ¶ 15. Count I alleges breach of an

unspecified, yet somehow “expressed” and “written,” contract. Id. at ¶¶ 51-60. Count II alleges

unjust enrichment. Id. at ¶¶ 61-67. Plaintiff demands damages, injunctive relief, and declaratory

relief, among other things. Id. at p. 15.

Argument

Miami Dade College moves to dismiss the complaint as wholly inadequate. Miami Dade

College is entitled to sovereign immunity, and in neither the breach of contract nor unjust

enrichment count does the Plaintiff clearly and unequivocally demonstrate that immunity is

waived, as he must. The breach of contract count fails to set forth an express, written contractual

obligation that Miami Dade College breached. As to the unjust enrichment claim, this Court

should dismiss that count with prejudice as Florida law does not permit a waiver of sovereign

immunity based on implied contracts. This Court thus lacks jurisdiction and should dismiss this

action. Plaintiff also lacks standing. He purports to sue the college for fees he does not allege he

paid, nor does he allege he was injured by whatever services he believes the college promised to

provide but did not. For those similar and additional reasons, he fails to state a claim for a breach

of contract. There are no allegations that the breaches he complains of are actual breaches of the

parties’ written agreement or are even material, and as to damages, he fails to allege he would have

used the services he claims to be deprived of in his Complaint. He also fails to state a claim to the

extent his contract is not attached to his pleading. As to his unjust enrichment count, that claim

cannot exist when the parties have entered into an express contract, as Plaintiff alleges. This action

should be dismissed.

5

I. Plaintiff Has Not Carried His Burden to Clearly and Unequivocally Plead a

Waiver of Sovereign Immunity, So His Action Must Be Dismissed.

“Sovereign immunity is the ‘privilege of the sovereign not to be sued without its consent.’”

City of Fort Lauderdale v. Israel, 178 So. 3d 444, 446 (Fla. 4th DCA 2015). “In Florida, sovereign

immunity is the rule rather than the exception.” Id. “Sovereign immunity is a doctrine designed

to protect the public treasury from what would otherwise be countless claims filed by the vast

number of citizens affected by actions of a government.” S. Roadbuilders, Inc. v. Lee Cty., 495 So.

2d 189, 190 n.1 (Fla. 2d DCA 1986). Sovereign immunity “is a positively necessary and rational

safeguard of taxpayers’ money.” Id.

“[A] [sovereign] waives the protections of sovereign immunity only when it enters into an

express contract.” Israel, 178 So. 3d at 447. Immunity remains, however, where the claims do

not arise from breaches of expressed, written contracts. See S. Roadbuilders, 495 So. 2d at 190-

91; see also Strout v. Sch. Bd. of Broward Cty., Fla., No. 15-61257, 2016 WL 4804075, at *8-9

(S.D. Fla. Feb. 1, 2016). When an alleged contract is merely implied, however, a City’s sovereign

immunity protections remain in force. Israel, 178 So. 3d at 447.

A duly authorized written contact is required to establish that sovereign immunity has been

waived. Pan-Am Tobacco Corp. v. Dep’t of Corr., 471 So. 2d 4, 5-6 (Fla. 1984). And Florida

procedural rules require that a plaintiff attach the contract that forms the basis of his complaint to

his pleading. Fla. R. Civ. P. 1.130(a).

“[A] plaintiff must allege in his complaint the specific methods by which the [sovereign]

waives its sovereign immunity and the waiver must be clear and unequivocal.” Schmauss v. Snoll,

245 So. 2d 112, 114 (Fla. 3d DCA 1971) (emphasis added); see also Levine v. Dade Cty. Sch. Bd.,

442 So. 2d 210 (Fla. 1983) (holding that a plaintiff must allege in his complaint the specific

methods by which the sovereign waives its immunity).

6

The Third District Court of Appeal requires that plaintiffs plead contractual provisions that

“impose the express contractual obligations that the plaintiffs alleged were breached.” City of

Miami Firefighters’ & Police Officers’ Retirement Trust & Plan v. Castro, 279 So. 3d 803, 804

(Fla. 3d DCA 2019). The Castro case is instructive. Lieutenant Jorge Castro and other former

and current Miami police officers sued the City of Miami and other sovereigns related to the City’s

pension plan. Id. at 804. Alleging breach of contract, they claimed that the City gave them

incorrect advice that they would receive a reduction in pension benefits if they failed to retire or

enter a deferred retirement program. Id. at 805. The trial court agreed with the plaintiffs that while

the pension ordinance (which the plaintiffs claimed to be the contract) did not expressly require

the City provide advice regarding the pensions, by voluntarily undertaking that task and failing to

do so accurately, the City and the other defendants breached a contractual obligation. Id. at 807.

The trial court found that the City waived immunity.

The Third District Court of Appeal reversed the denial of sovereign immunity. Id. at 808.

For one, the court expressed skepticism that the ordinance could constitute a contract. Id. at 806

& n.12. More to the point, though, the Third District Court held that while the pension ordinance

required certain benefits for officers and established fiduciary duties of the plan trustee (a

defendant in that action), there was no ordinance providing “an express contractual duty

guaranteeing the accuracy of advice provided to pension beneficiaries” on the pending changes to

the retirement plans. Id. at 808. The Third District held that it was “loath to adopt a rule of law

that transforms general language in a retirement ordinance” into the express duty the plaintiffs

alleged. Id.

U.S. District Judge Kathleen Williams reached a similar conclusion, applying Florida law.

Strout, 2016 WL 4804075, at *8. Plaintiff Matthew Strout served as a substitute teacher in a

7

Broward County school before also serving as its assistant and then head football coach. Id. at *1-

2. Strout contended that the school owed him an additional stipend of $21,000 as head coach as

well as be compensation for time in the classroom and coaching. Id. at *2, *8.

At summary judgment, Strout pointed to several deposit entries and W-2 forms as evidence

of an express contract. Id. at *7. Judge Williams granted summary judgment for the school board

because Strout could point to no express, written agreement obligating the school board to provide

the additional stipend or compensation he demanded. Id. at *8.

A. Because Plaintiff Fails to Identify an Express, Written Agreement that Obligated Miami

Dade College to Offer Certain On-Campus Services, Sovereign Immunity Remains.

Plaintiff has not clearly and unequivocally alleged a waiver of sovereign immunity, so this

Court should dismiss Count I, claiming breach of contract. Schmauss, 245 So. 2d at 114. Alleging

an express agreement existed between the parties is not enough to avoid dismissal, even at the

pleading stage. Castro, 279 So. 3d at 807. Plaintiff must set forth the agreements that “impose

the express contractual obligations that the plaintiffs alleged were breached.” Id.

Plaintiff has not met his burden. Here, Plaintiff alleges he was owed certain on-campus

services. Id. at ¶ 1. What those services are is entirely unclear as he does not identify a single

one in his 22-page complaint. See generally id. He was required to allege (and attach to his

pleading) the express written terms that Miami Dade College allegedly breached. Castro, 279 So.

3d at 807. He did not do so. Reasonable inferences—which do not exist here regardless—are not

enough; the “waiver must be clear and unequivocal.” Schmauss, 245 So. 2d at 114 (emphasis

added). In any event, as detailed above, the Complaint fails to raise even a reasonable inference

that Miami Dade College’s fees Plaintiff identified and purports to pay are now unnecessary in

light of Covid. See supra p. 3. Plaintiff admits that the college credited or refunded parking fees

8

back to students, so that’s not at issue. Compl. ¶ 31. This Court should dismiss Count I, alleging

breach of an express agreement, as barred by sovereign immunity.

B. This Court Should Dismiss the Unjust Enrichment Count Because Sovereign Immunity

Is Waived Only for Breaches of Express, Written Contracts.

Because a sovereign waives immunity only for expressed contracts, Count II, alleging

unjust enrichment, should be dismissed. See Israel, 178 So. 3d at 447 (reversing order denying

summary judgment on an unjust enrichment claim where the Broward sheriff alleged that he

provided services for Fort Lauderdale after their express, written contract had expired). Israel held

that “actions on implied contracts are barred based on” Florida Supreme Court precedent. Id.; see

also S. Roadbuilders, 495 So. 2d at 190-91. For the same reasons, this Court should dismiss

Plaintiff’s unjust enrichment claim as implied contracts do not waive immunity.

In his pleading, Plaintiff suggests that Florida authority allows him to proceed in

contravention of Florida law. Compl. ¶ 67 (citing Bill Stroop Roofing, Inc. v. Metro. Dade Cty.,

788 So. 2d 365 (Fla. 3d DCA 2001)). Stroop does not save Plaintiff’s barred claim. Stroop did

not involve an unjust enrichment claim. That plaintiff filed a declaratory action that also sought

disgorgement based on the county charging “a forbidden ‘registration fee’” “as a prerequisite to

engaging in contracting in Miami-Dade.” Stroop, 788 So. 2d at 366. The Third District agreed

that the county’s practice violated Florida statutes. Id. (referencing Florida Statues, Section

489.113(4)(a) (1994), which prohibited the paying of any fee other than an occupational license

and building permit fee for contractors seeking to conduct business in Florida). The court further

held that municipalities could be forced to refund “illegally extracted monies,” i.e., money

obtained by “refus[ing] to obey a direct legislative mandate.” Id. at 367.

Unlike the plaintiff in Stroop, Plaintiff pleads no fee that Miami Dade College obtained in

contravention of Florida law. See generally Compl. That is because there is none. Sovereign

9

immunity is not waived under such flimsy assertions. This Court should thus dismiss Count II,

alleging unjust enrichment, as barred by sovereign immunity.

II. This Court Should Dismiss this Action to the Extent Plaintiff Lacks Standing.

To extent standing is absent, this Court should dismiss the Complaint. “To satisfy the

standing requirement for a class action claim, the class representative must illustrate that a case or

controversy exists between him or her and the defendant . . . .” Sosa v. Safeway Premium Fin.

Co., 73 So. 3d 91, 116 (Fla. 2011). “A case or controversy exists if a party alleges an actual or

legal injury.” Id. at 117.

Here, Plaintiff lacks standing to bring a number of the claims in his pleading. For instance,

he claims that students in baccalaureate programs and Career and Technical Education Programs

at Miami Dade College had to pay “similar fees” that he had to for the Spring and Summer 2020

semesters. Compl. ¶ 18. But injuries to other students is not controversy between Plaintiff and

Miami Dade College. The Complaint should thus be dismissed to the extent Plaintiff failed to

plead that he paid any fees he seeks to litigate about on behalf of a putative class. See Sosa, 73

So. 3d at 116; see also United Auto. Ins. Co. v. Diag. of S. Fla., 921 So. 2d 23, 25 (Fla. 3d DCA

2006) (holding that a class complaint should be dismissed where the class representative lacked

standing because, unlike other absent class members, the plaintiff was not entitled to statutory

interest from the defendant and thus had no injury).

Plaintiff does not plead a controversy regarding his remaining claims either. Plaintiff

alleges that he is entitled to a refund for on-campus services Miami Dade College did not provide

as a result of Covid. See, e.g., Compl. ¶ 31. Plaintiff, however, fails to plead that he has ever used

or would have used those on-campus services, whatever they may be. See id. He has not

10

adequately pled any injury granting him standing in this class action. His claims should be

dismissed. See United Auto., 921 So. 2d at 25.

III. This Court Should Dismiss the Complaint Because Plaintiff Fails to State a Claim.

“Pleadings must contain ultimate facts supporting each element of the cause of action.”

Clark v. Boeing Co., 395 So. 2d 1226, 1229 (Fla. 3d DCA 1981). A “complaint [is] properly

dismissed for failure to state a cause of action [if it is] so vague and indefinite that it is difficult to

determine whether the essential allegations were made.” Loving v. Viecelli, 164 So. 2d 560, 561

(Fla. 3d DCA 1964). “Mere legal conclusions are not sufficient unless substantiated by allegations

of ultimate fact. Every fact essential to the cause of action must be stated distinctively, definitely

and clearly.” Id.

This Court accepts “well pleaded” allegations as true, but that does not mean that “courts

will by inference on inference or speculation supply essential averments that are lacking.” Ocala

Loan Co. v. Smith, 155 So. 2d 711, 715 (Fla. 1st DCA 1963). Only reasonable inferences, along

with the well-plead allegations, should be construed in Plaintiff’s favor. See Peterson v. Pollack,

290 So. 3d 102, 105 (Fla. 4th DCA 2020).

A. Plaintiff Fails to State a Claim for Breach of Contract.

“To prevail in a breach of contract action, a plaintiff must prove: (1) a valid contract

existed; (2) a material breach of the contract; and (3) damages.” Deauville Hotel Mgmt., LLC v.

Ward, 219 So. 3d 949, 953 (Fla. 3d DCA 2017). For claimants seeking restitution, as Plaintiff is

here, demonstrating a material breach is a prerequisite to bringing any such claim. See Beefy Trail,

Inc. v. Beefy King Int’l, Inc., 267 So. 2d 853, 857 (Fla. 4th DCA 1972). “To constitute a vital or

material breach a defendant’s nonperformance must be such as to go to the essence of the contract;

it must be the type of breach that would discharge the injured party from further contractual duty

11

on his part.” Id. “A defendant’s failure to perform some minor part of his contractual duty cannot

be classified as a material or vital breach.” Id. Plaintiff fails to plead a material breach or damages

and has not attached the contract at issue to his complaint, so this action should be dismissed.

At the heart of this, Plaintiff fails to set forth the terms of a contract that was breached—

much less materially breached—by Miami Dade College. For instance, the Complaint lacks any

allegations of the type of on-campus services Miami Dade College was supposed to (but did not)

provide. See Clark, 395 So. 2d at 1229 (requiring facts to be pled as to each element of a claim).

Nor has Plaintiff pled any allegations showing that a breach was even material. See Beefy Trail,

267 So. 2d at 857. For instance, Plaintiff complains about fees he has to pay for Student Services,

Financial Aid, Capital Improvement, and Technology. Compl. ¶ 17. Plaintiff alleges no on-

campus services that he is owed related to these fees and that are otherwise being denied. No

breach (material or otherwise) is alleged. Because he fails to state a claim, this Court should

dismiss Count I.

Count I should also be dismissed because Plaintiff has not alleged any damages. Plaintiff

asserts he should be entitled to reimbursement for on-campus services Miami Dade College is not

providing. But nowhere does he allege that he would have ever used those on campus services.

He has alleged no damages entitling him to relief. For that reason, Count I should be dismissed.

Plaintiff also fails to state a claim because his breach of contract count fails to attach the

written instrument that is the basis for his claim. “In the case of a complaint based on a written

instrument it does not state a cause of action until the instrument or an adequate portion thereof is

attached to or incorporated in the pleading in question.” Safeco Ins. Co. of Am. v. Ware, 401 So.

2d 1129, 1130 (Fla. 4th DCA 1981). Exhibits A and B do not evidence express contractual

provisions that Miami Dade College purportedly breached. Compl., Exs. A & B. Accordingly,

12

Plaintiff has not met his burden under the civil rules and Florida law, so the Court should dismiss

Count I, alleging breach of contract.

B. Plaintiff Fails to State a Claim for Unjust Enrichment.

“Florida courts have held that a plaintiff cannot pursue a quasi-contract claim for unjust

enrichment if an express contract exists concerning the same subject matter.” Diamond “S” Dev.

Corp. v. Mercantile Bank, 989 So. 2d 696, 697 (Fla. 1st DCA 2008). “We agree that [the] . . .

unjust enrichment claim was precluded by the existence of an express contract between the parties

concerning the same subject matter.” Id.

This Court should dismiss Count II, alleging unjust enrichment. See id. Plaintiff admits

an express contract exists between he and Miami Dade College (albeit, he has not pled a breach of

that contract). See Compl. ¶ 61 (incorporating prior allegations, including the existence of an

express contract). This Court should accordingly dismiss the unjust enrichment claim.

Conclusion

For the foregoing reasons, Miami Dade College, a sovereign, requests that this Court

dismiss the Complaint.

13

Dated: October 13, 2020. Respectfully submitted,

KOZYAK TROPIN & THROCKMORTON, LLP

Attorneys for Defendant, District Board of

Trustees of Miami Dade College

2525 Ponce de Leon Blvd., 9th Floor

Miami, Florida 33134

Tel.: 305-372-1800

Fax: 305-372-3508

By: Javier Lopez

Javier A. Lopez, Esq.

Fla. Bar No. 16727

Email: jal@kttlaw.com

Dwayne A. Robinson, Esq.

Fla. Bar No. 0099976

Email: drobinson@kttlaw.com

Michael R. Lorigas, Esq.

Fla Bar No. 123597

Email: mlorigas@kttlaw.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on October 13, 2020, a true and correct copy of the

foregoing was electronically filed with the Florida Court E-Fling Portal, which will serve it via

electronic mail to all counsel of record.

By: /s/ Javier Lopez

Javier Lopez, Esq.

D

Page 1 of 21

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRUIT IN

AND FOR MIAMI DADE COUNTY, FLORIDA

FERNANDO VERDINI, individually and on behalf of all others similarly situated,

Plaintiff, v. DISTRICT BOARD OF TRUSTEES OF MIAMI DADE COLLEGE,

Defendant.

CASE NO.: 2020 CA 017924

COMPLEX BUSINESS DIVISION

PLAINTIFF’S RESPONSE IN OPPOSITION TO DISTRICT BOARD OF TRUSTEES

OF MIAMI DADE COLLEGE’S MOTION TO DISMISS CLASS ACTION COMPLAINT

Plaintiff, Fernando Verdini (“Plaintiff”), responds in opposition to Defendant, District

Board of Trustees of Miami Dade College’s (“Defendant” or “MDC”) Motion to Dismiss Class

Action Complaint (the “Motion”).

OVERVIEW

The COVID-19 pandemic has adversely affected nearly every aspect of American society

and college students are no exception. Beginning in early March 2020 and continuing into the

summer, more than 4,000 universities and colleges in the United States physically closed their

campuses, affecting at least 25 million enrolled students.1 Some of these institutions, including

MDC, collected thousands of dollars in fees from their students for specific services that they did

1 Anjelica Cappellino, More Than 70 Universities Sued for Refunds Following COVID-19 Campus Closures, Expert Institute (June 25, 2020), https://www.expertinstitute.com/resources/insights/universities-sued-for-covid-19-refunds-following-campus-closures/.

Filing # 115515674 E-Filed 10/23/2020 12:47:03 PM

Page 2 of 21

not provide due to campus closures. While other colleges have agreed to refund those excessive

charges, MDC has refused to provide its students with any refunds of fees its students admittedly

paid and that MDC undisputedly collected for specific and itemized services that MDC could not

and did not provide because the school had closed the physical campus. As the Complaint makes

perfectly clear, these specific charges (like “laboratory fees” and “parking fees”) are itemized on

the bills that are charged to and paid by each and every MDC student. Accordingly, this is a simple

breach of contract class action case where: (1) the contract between each Plaintiff and each MDC

student is identical; (2) MDC does not dispute that Plaintiff and all MDC students (i.e., putative

class members) paid those charges; (3) MDC does not dispute that it collected all of the these

specific costs for each of the itemized services; and (4) the sole question common to every class

member is: was it is fair and legal for MDC to not provide any refund of the amounts students paid

for services which MDC did not provide. This is a very basic class action.

INTRODUCTION

Students across the country have filed class action lawsuits requesting that their colleges

and universities return fees for itemized services they could not access or use. It is unfair to expect

students alone to shoulder all of the financial burdens associated with COVID-19, when the nation

is in the midst of a national student loan debt crisis, with over 44 million Americans owing over

$1.5 trillion in student loan debt.2 Florida students are racking up student loan debt at a higher rate

than anywhere else in the country.3 A recent study concludes that 32% of Americans filing for

2 See National Consumer Law Center, Student Debt Collection, https://www.nclc.org/images/Student-Debt-Collection.pdf. 3 Scott Travis and Annie Martin, New Florida law requires colleges to spell out student debt, South Florida Sun Sentinel (July 13, 2017), http://www.sun-sentinel.com/news/education/fl-student-debt-information-20170713-story.html (explaining that loan debt in Florida ballooned 35 percent to $89.4 billion between the third quarter of 2015 and the same period in 2018, according to estimates from the credit rating agency Experian).

Page 3 of 21

bankruptcy have student loan debt, and of that group, student loan debt comprised 49% of their

total debt on average.4 COVID-19 has caused an unemployment crisis and looming financial and

eviction crises5 as well. In light of these facts, Plaintiffs and other MDC students—i.e., the Class

members—cannot afford to allow Defendant to keep money paid for services and activities that

were never provided. That money belongs to the students and should be promptly refunded.

Indeed, the opening section of MDC’s motion to dismiss reveals that as much as 88% of Class

Members are comprised of minorities, who MDC still chose to charge and collect fees from despite

study after study showing that minorities have been disproportionately affected by the COVID-19

crisis. MDC’s mistreatment of the most vulnerable in our population should not be countenanced.

A major contributor to the student loan crisis are the aggressive collections agencies tasked

with collecting student loan debt. When collection agencies collect students on the debts they owe

on these massive loans, they attach contracts just like the express, written contracts attached to the

Complaint. See Compl., Exs., A & B. Both the government and guaranty agencies hire private

collection agencies to collect defaulted student loans. According to the Student Loan Borrower

Association (“SLBA”), student loan collection agencies often engage in abusive or deceptive

behavior that violates state or federal fair debt collection laws.6 Even amidst the COVID-19 crisis,

it has been business as usual in the private sector, with private education lenders and creditors

4 Hillary Hoffower, An astounding number of bankruptcies are being driven by student loan debt, Business Insider (June 13, 2019), https://www.businessinsider.com/people-filing-for-personal-bankruptcy-carry-student-loan-debt-2019-6#:~:text=According%20to%20a%20new%20LendEDU%20study%2C%2032%25%20of%20consumers%20filing,national%20total%20of%20%241.5%20trillion. 5 Tim Dutton and Randall H. Russell, A rent and eviction crisis is looming next week, Tampa Bay Times (May 26, 2020), https://www.tampabay.com/opinion/2020/05/26/a-rent-and-eviction-crisis-is-looming-next-week-column/. 6 See https://www.studentloanborrowerassistance.org/collections/collection-agencies/.

Page 4 of 21

filing a flurry of lawsuits throughout March to recover past-due debts, according to advocates and

court records.7 “It is appalling,” said Seth Frotman, Executive Director of the Student Borrower

Protection Center, an advocacy group, “that the private student loan industry continued to threaten

litigation and file lawsuits against distressed borrowers in the midst of a pandemic.”8 For example,

National Collegiate Student Loan Trusts, one of the nation’s largest holders of private education

debt, employs an army of lawyers to aggressively recoup past-due student loans. Throughout

March, as COVID-19 ground the national economy to a halt and as advocates pressured lenders to

stand down, the group’s lawyers filed dozens of cases against borrowers across the country.9

It is against this backdrop that Plaintiff Fernando Verdini, like thousands of other students

enrolled in courses at Miami Dade College, was contractually obligated to pay fees in exchange

for the ability to register for courses there. Indeed, the Complaint attaches the express written

agreement that Plaintiff entered into with MDC in which Plaintiff agreed to pay all fees in

exchange for specifically enumerated services. The Complaint alleges that Plaintiff made those

payments, MDC collected the payments, enumerated services were not provided to Plaintiff, and

MDC now refuses to make any refunds. For example, although Plaintiff (who is studying nursing)

was unable to study physically in any laboratories for nearly most of the Spring 2020 semester and

the entire Summer 2020 semester, he was charged laboratory fees which that are forbidden by

Florida law because they “do not apply to a distance learning course.” § 1009.23(12)(a), Fla.

7 See Student Borrower Protection Center, Embattled Private Student Lenders Finally Cease Abusive Lawsuits During the Coronavirus Pandemic (April 3, 2020), https://protectborrowers.org/embattled-private-student-lenders-finally-cease-abusive-lawsuits-during-the-coronavirus-pandemic/. 8 Id. 9 See Danielle Douglas Gabriel, As Americans faced layoffs and lost wages, student loan companies kept going to court to collect, The Washington Post (April 3, 2020), https://www.washingtonpost.com/education/2020/04/03/student-loans-collection-lawsuits-coronavirus/.

Page 5 of 21

Stat. If Plaintiff had not paid the fees he was charged for services he was never provided, there is

no question that MDC would right now be hounding and harassing Mr. Verdini (and any other

class member) to immediately pay his fees and turning the case over to a collection agency.

Based on these facts, Plaintiff’s class action lawsuit alleges that Plaintiffs and all Class

members paid fees in accordance with their contractual obligations, and that MDC breached its

contracts with them (or, in the alternative, was unjustly enriched) when it cancelled all on-campus

events and activities and stopped providing services for which fees had already been paid. Plaintiff

seeks to certify two classes of “all persons who paid fees for or on behalf of themselves or other

students enrolled in classes at any campus in Miami Dade College” for the Spring and Summer

20202 semesters, “including students and/or their families or guardian who paid fees.” Compl., ¶

41.10

This action presents one of two very different types of class actions that have been brought

against colleges across the country as a direct result of the campus closures due to the COVID-19

pandemic. The first type of class action (as this proposed class action) solely seeks reimbursement

of specific fees that students paid and schools collected for specific services that were not provided

due to the physical closure of campuses during the COVID-19 pandemic. Plaintiff intends to move

for summary judgment on these individual and class claims because the relevant, underlying facts

are not disputed.

The second type of class action seeks a reduction in the amount of tuition that students

were required to pay based upon various theories, such as that a Zoom education might be worth

10 Instead of addressing these basic breach of contract claims on their merits, query why MDC’s Counsel decided to open its Motion with completely irrelevant information about how Miami Dade College was “among the first desegregated institutions of higher learning, and its student body today is 88% minority.” Mot. at 1.

Page 6 of 21

less than in-person classes (without regard to the actual cost to the college). While MDC would

like to compare this second type of case to this case, the only aspect these two sets of cases have

in common is that they both name colleges as Defendants who have refused to do right by their

students. Beyond that, however, they are fundamentally different on the claims and the merits. In

this case, students seek reimbursement of specific costs they paid that they were wholly denied to

them. In the latter set of cases, students seek a refund to account for the lower quality of education

associated with distance learning. This case involves straightforward claims for breach of contract

and unjust enrichment.

MDC’S MOTION TO DISMISS AND SANCTIONS THREAT TO MR. VERDINI

MDC has moved to dismiss the Complaint based on arguments that that: (1) the claims are

barred by sovereign immunity, (2) that the Plaintiff lacks standing, and (3) that Plaintiff fails to

state claim for breach of contract or unjust enrichment. Also, in a transparent attempt to multiply

the proceedings, run up the fees and expenses of this litigation, and to intimidate this nursing

student Plaintiff, MDC Counsel also served Plaintiff with a frivolous and desperate Section 57.105

Motion, threatening Plaintiff with Sanctions unless he immediately dismiss this case which is

allegedly brought in “bad faith.” Rest assured, Plaintiff will not be dismissing this proposed class

action, but will instead work diligently to certify this class action to protect the rights of Plaintiff

and every student that MDC has similarly cheated out of thousands of dollars. Plaintiff’s two

claims are more than legally sufficient and its Motion should be denied.

First, sovereign immunity clearly does not bar Plaintiff’s claim for breach of contract

because, as MDC admits, state actors waive sovereign immunity whenever they enter into express

written contracts. Plaintiff’s Complaint attaches two contracts: the (1) “Financial Obligation

Agreement” with MDC in which he agreed to pay all “fees” charged by MDC, and (2) invoices

Page 7 of 21

(which are all “contracts” under Florida law) detailing the specific amount and purpose of every

fee. MDC’s argument that these two documents are insufficient to create a contractual obligation

for it to provide specific services (such as “on-campus parking”, “use of a laboratory”, “use of

campus technology”, and “use of student services”) in exchange for the specific payments of fees,

defies both the law and common sense. Are we to believe that if Plaintiff and all of the other

students simply refused to pay these charges (or called their credit card company and disputed the

charges), that MDC would not immediately bring a collection lawsuit against them based on the

invoices and the Financial Obligation Agreement?

Taking the Complaint’s allegations in the light most favorable to the non-moving party,

Plaintiff has certainly pled sufficient facts concerning the existence and substance of his express

contract with MDC to avoid dismissal at this stage. Plaintiff’s unjust enrichment claim is also not

barred because, pursuant to well-established Florida law, the state is not entitled to sovereign

immunity for a fee charged in violation of law, such as the laboratory fees charged to Plaintiff

while distance learning. See § 1009.23(12)(a), Fla. Stat.

The Court should easily reject the remainder of MDC’s silly arguments which ignore both

the standard applicable to a motion to dismiss and the extensive and detailed factual allegations in

Plaintiffs’ Complaint. By alleging that he lost the value of the services for which he paid fees when

he was denied the use of on-campus services during the campus shutdowns, Plaintiff clearly has a

sufficient stake in this controversy to establish standing to seek redress for his own economic

injuries. Furthermore, Plaintiff sufficiently states a claim for breach of contract. Plaintiff identifies

his express contract with MDC and sufficiently alleges that he was damaged when MDC breached

that contract by failing to provide the services funded by his fees, yet refused to provide any refund

for the portion of the fees that should be disgorged. Plaintiff also sufficiently states an alternative

Page 8 of 21

claim for unjust enrichment which this Court may adjudicate should it conclude that there is no

express contract concerning the subject matter of Plaintiff’s claims. Plaintiff respectfully requests

the Court deny the Motion to Dismiss and permit this case to proceed to discovery and class

certification.

KEY FACTUAL ALLEGATIONS

The Florida Legislature authorizes district boards of trustees, including MDC, to establish

“fees” to be charged to all enrolled students. Compl., ¶ 16 (citing § 100.64(10), Fla. Stat.). These

fees include “student fees” authorized by section 1009.23, Florida Statutes, and encompass a

variety of charges which fund on campus services, including a “activity and service fee,” a

“technology fee,” a “capital improvement fee,” “laboratory fees, which do not apply to a distance

learning course[,]” “parking fees and fines[,]” and “library fees and fines.” Id., ¶¶ 16–21 (citing at

§§ 1009.23(7), (10), (11), & (12), Fla Stat.).

Plaintiff and all putative Class members have no choice and must agree to pay all of these

specific fees in express written contracts with MDC that Plaintiff has attached to the Complaint.

Compl., ¶ 21; id. at Exs. A, B. In a “Financial Obligation Agreement” that students must “read and

e-sign . . . prior to enrolling for courses each term,” all student (including Plaintiff) agree that they

are “incurring a legal debt to pay all charges assessed to my student account by the due date. These

charges include, but are not limited to fees.” Id. at Ex. B (emphasis added). The use of the word

“fees” is a specific reference to the “fees” that MDC is authorized to charge under Florida law. Id.,

¶¶ 16, 53. Students also receive invoices from MDC which outline the specific fees they are

charged and the purposes of those fees. Compl., ¶ 21. For example, for the Summer 2020 semester,

Plaintiff received a detailed invoice listing thousands of dollars in fees, including fees specifically

for student services, capital improvement, laboratory fees, and technology fees. Id., Ex. A. These

Page 9 of 21

invoices, which are provided to every putative Class member, identify the specific fees charged to

every student and their purposes. Id., ¶ 21. Plaintiff’s invoice also provides information on the

amount he paid in the Spring 2020 semester. Id., Ex. A.11

In March 2020, MDC shut down its campuses in response to the COVID-19 pandemic and

orders issued by the Governor and the Florida State Board of Education. Compl., ¶¶ 3, 22–30.

Because of the shutdown, students were denied access to on campus services for which MDC

charges a host of fees. Id., ¶¶ 16–20. Plaintiff Fernando Verdini is a student in the Generic Full

Time Nursing Program at the Medical Campus of Miami Dade College who, like all students

enrolled in MDC during Spring and Summer 2020 semesters, paid fees for on-campus services

that were not made available to him due to the campus shutdown. Id., ¶¶ 1–2, 9–10. For example,

although Plaintiff was denied access to any laboratories as part of his nursing program, MDC

provided no pro-rated refund for the e-learning portion of his Spring 2020 courses and imposed

laboratory fees upon him in the Summer 2020 semester. Id., ¶ 10; Ex. A. MDC illegally imposed

these charges, despite the fact under Florida law, laboratory fees “do not apply to a distance

learning course.” § 1009.23(12)(a), Fla. Stat.

While MDC’s decision to transition to online classes and to request or encourage students

to leave campus were their decision, it is unfair and unlawful for MDC to subsequently retain those

fees and to pass the losses on to the students and their families. Id., ¶ 5. Importantly, other higher

11 Because Plaintiff does not have possession of his itemized invoice from the Spring 2020 semester, Plaintiff served requests for production with the Complaint seeking “MDC’s contract(s) with Plaintiff Fernando Verdini concerning Fees he paid to MDC for the Spring 2020 and Summer 2020 semesters at MDC,” “[a]l agreements Plaintiff Fernando Verdini has accepted in exchange for registering for courses at MDC,” and “[r]ecord of all payments Plaintiff Fernando Verdini has made to MDC during the Spring 202 and Summer 2020 semesters at MDC for Fees.” Instead of producing any documents which are clearly relevant to the sovereign immunity defense, MDC unilaterally decided to stay all discovery.

Page 10 of 21

education institutions across the United States that also switched to e-learning, have appropriately

provided pro-rated refunds to all of their students. Id.12 That’s the right thing to do. MDC,

unfortunately, has taken the opposite approach by refusing to provide refunds concerning the fees

for on-campus services and activities and instead actually threaten this student with sanctions

unless he immediately dismisses this case. Id. MDC’s threats will not succeed to do away with this

proposed class action case.

MDC has actually recognized the inequity of its decision not to refund at least some portion

of the enormous fees that students were contractually obligated to pay, in exchange for specific,

statutorily-authorized purposes. Id., ¶ 31. Specifically, for the Summer 2020 semester, MDC

announced that students would not be assessed a parking fee and, if students were already enrolled,

the parking fee would be automatically credited to their account or returned to them if they have

paid in full. Id. Additionally, for certain courses, fees for the Summer have been waived if a

traditionally face-to-face course was to be delivered exclusively through remote learning. Id.

Despite this tacit acknowledgement that it is inequitable to collect fees for services it is not

providing to students due to the campus shut down, MDC has not offered pro-rated refunds of the

parking fees, laboratory fees, and other fees that Plaintiff and other students already paid for on

campus services during the Spring 2020 semester, nor offered discounts concerning Summer 2020

fees that fund on campus services which students can no longer access due to the campus closures.

Id., ¶¶ 31–40.13

12 For example, the entire University of Georgia school system implemented a “Student Refund Plan for student who have paid or been assessed these fees for the Spring 2020 semester.” See https://busfin.uga.edu/bursar/refund/. UGA’s plan provides for pro-rated refunds of a portion of the Athletic Fee, Green Fee, Recreation Fee, Transportation Fee, Student Center Facility Fee, Student Activity Fee, and Parking Permit Fees. 13 Thus, MDC’s claim that “parking fees are not an issue here” (mot. at 3) is false and misleading.

Page 11 of 21

LEGAL ARGUMENT

I. PLAINTIFF’S CLAIMS ARE NOT BARRED BY SOVEREIGN IMMUNITY.

A. MDC Has Waived Sovereign Immunity for Claims that it is not Providing Fees in Accordance with its Express Contractual Agreements.

MDC recognizes, as it must, that it will be deemed to have waived its sovereign immunity

if the relationship between Plaintiff and MDC was governed by an express written contract. See

Mot. at 5; Calderone v. Scott, No. 2:14-CV-519-FTM-29CM, 2015 WL 1800315, at *1 (M.D. Fla.

Apr. 16, 2015) (“the Florida Supreme Court has found an

implied waiver of sovereign immunity for breach of contract claims [which] applies to claims for

breach of the express and implied conditions of a written contract….”); Maynard v. Bd. of Regents

of Civ. Of Univs. of Fla. Dep’t of Educ. Ex rel. Univ. of S. Fla., 342 F.3d 1281, 1287 (11th Cir.

2003) (quoting Pan–Am Tobacco Corp. v. Dep’t of Corr., 471 So.2d 4, 5 (Fla. 1984) (“[W]here

the state has entered into a contract fairly authorized by the powers granted by general law, the

defense of sovereign immunity will not protect the state from action arising from the state’s breach

of that contract.”)). Plaintiff alleges that MDC breached an express, written agreement with him

concerning fees that he was required to pay in exchange for registering for courses at MDC: The

Financial Obligation Agreement. Compl., Ex. B. Plaintiff also attaches invoices providing the fees

he was charged for the Summer 2020 semester—invoices which list the specific purpose of each

and every fee—and an invoice demonstrating he was charged similar fees in the Spring 2020

semester. Id., Ex. A. Taken together, these documents clearly constitute an express, written

agreement between Plaintiff and MDC to provide specific services authorized by the Florida

statutes in exchange for the payment of fees. See Waite Development, Inc. v. City of Milton, 866

So. 3d 153 (Fla. 1st DCA 2004) (reversing order dismissing claim against City based on sovereign

Page 12 of 21

immunity defense based on plaintiff’s allegation that two documents should be construed together

as an express written contract).

MDC argues that Plaintiff does not identify the on-campus services or the express written

terms that MDC breached by not providing those services. Mot. at 7. It is well-recognized,

however, that an invoice is an express contract. See, e.g. Int’l Star Registry of Illinois v. Omnipoint

Mktg., LLC, 510 F. Supp. 2d 1015, 1022 (S.D. Fla. 2007)

(“the invoices constitute contracts between the parties”). Moreover, “several writing may

constitute a valid and binding contract written contract when they evidence a complete meeting of

the minds of the parties and an agreement upon the terms and conditions of the contract. Waite

Development, Inc., 866 So. 3d at 155. The Court should conclude, in accordance with MDC’s own

cited case law, that Plaintiff’s invoices are a “subsequent legally operative instrument” that provide

the specific services MDC was contractually obligated to provide in exchange for Plaintiff’s

payment of “fees.” S. Roadbuilders, Inc. v. Lee Cnty., 495 So. 2d 189, 190 (Fla. 2d DCA 1986).

In addition, under Florida law, where there is an express written contract, “the defense of

sovereign immunity does not protect the state agency from an action arising out of a breach of

either an express or implied covenant or condition of that contract.” Champagne-Webber, Inv. v.

City of Fort Lauderdale, 519 So. 2d 696, 698 (Fla. 4th DCA 1988) (emphasis added), aff’d, County

of Brevard v. Miorelli Eng’g, Inc., 703 So. 2d 1049 (Fla. 1997). Clearly, an implied covenant or

condition of the Financial Obligation Agreement is that MDC provide the services specified in

both the Florida Statutes and its invoices with the Plaintiff. If, as MDC suggests, this is untrue,

then the Financial Obligation Agreement would not obligate MDC to provide anything in exchange

for the payment of fees. MDC’s flawed contractual interpretation, which would render this

agreement illusory, is plainly unreasonable and contrary to the parties’ intent. See M & G Polymers

Page 13 of 21

USA, LLC v. Tackett, 574 U.S. 427, 441 (2015) (instructing “courts to avoid constructions of

contracts that would render promises illusory because such promises cannot serve as consideration

for a contract”).

Where, as here, Plaintiff alleges that a state agency has violated express contracts, it is

axiomatic that sovereign immunity is no bar to a breach of contract claim—particularly at the

motion to dismiss stage, where the Court should draw all reasonable inferences in favor of

Plaintiff’s factual allegations. Corcoran v. Geffin, 250 So. 3d 779, 786-87 (Fla. 1st DCA 2018).

For example, in Corcoran, the First District Court of Appeal affirmed the portion of an order

denying a motion to dismiss based on its conclusion that a breach of contract claim against state

officials and entities, including Florida Board of Governors of the State University System, was

not barred by sovereign immunity. As the Court reasoned:

Here, neither sovereign immunity nor the separation of powers doctrine prohibits respondents from bringing a breach of contract claim against governmental entities. A number of issues remain for the court to determine, including whether the gift agreements were express written contracts that the governmental entities were authorized to enter into, which entities were parties to those contracts, and whether any of the parties breached those contracts. However, assuming respondents can prove this claim, the trial court may have the authority to establish an appropriate remedy for breach of contract.

Id. at 787. As in Corcoran, the Court in this case should conclude that, because Plaintiff alleges

the breach of express contracts, the motion to dismiss should be denied. Id.; see also Zainulabeddin

v. Univ. of S. Fla. Bd. of Trustees, No. 16-cv-637-T-30TGW, 2016 WL 1451726, at *3 (M.D. Fla.

April 13, 2016) (denying motion to dismiss breach of contract claim against a university based on

sovereign immunity because plaintiff alleged that it “entered into a contractual relationship with

the University of South Florida,’ one in which ‘[s]ome terms …. [were] contained within the

University of South Florida College of Medicine Medical Student Handbook.’ This factual

pleading is sufficient to survive a motion to dismiss. Whether the allegation will be supported by

Page 14 of 21

evidence is a question for summary judgment”). Whether Plaintiff’s allegations will be supported

by sufficient evidence is a question this Court should reach at summary judgment based on a fully

developed factual record.14

MDC relies heavily on City of Miami Firefighters’ & Police Officers’ Retirement Trust &

Plan v. Castro, 279 So. 3d 803 (Fla. 3d DCA 2019), where the Third DCA concluded that plaintiffs

did not state a “cause of action for breach of contract for which the Pension Defendants have

waived sovereign immunity.” Id. at 808. Although the Third DCA reasoned that a group of city

ordinances “might have imposed upon the Pension Defendants an express contractual duty to

provide retirement benefits to pension beneficiaries,” it concluded that plaintiffs could not

transform “general language in a retirement plan ordinance – requiring that the performance of a

pension administrator be observed and evaluated – into an express contractual duty guaranteeing

the accuracy of advice provided to pension beneficiaries on pending legislation.” Id. at 808

(emphasis in original). Here, by contrast, Plaintiff does not ask this Court to transform some

“general language” in the Financial Obligation Agreement and his invoices into a specific

obligation not contemplated by the parties (or by Florida law). Instead, Plaintiff seeks to enforce

the express contractual obligations MDC undertook when it legally obligated Plaintiff to pay

specific fees in exchange for the provision of a specific set of services listed in itemized invoices.

14 Indeed, several of the cases MDC cites to support its argument that the Court should dismiss the complaint based on sovereign immunity concern orders on summary judgment. See Strout v. Sch. Bd. of Broward Cnty., Fla., No. 15-61257, 2016 WL 4804075 (S.D. Fla. Feb. 1, 2016) (granting summary judgment for City based on sovereign immunity); City of Fort Lauderdale v. Israel, 178 So. 3d 444 (Fla. 4th DCA 2015) (reversing denial of City’s motion for summary judgment based on sovereign immunity); see also Schmauss v. Snoll, 245 So. 3d 112 (Fla. 3d DCA 1971) (affirming grant of motion to dismiss and motion for summary judgment based on sovereign immunity). Finally, the few cases MDC relies upon to argue that the Court should dismiss this case based on sovereign immunity are not only distinguishable, they also support Plaintiff’s argument that MDC has waived sovereign immunity as to Plaintiff’s claims.

Page 15 of 21

The fact that the Florida Statutes further clarify the nature of these enumerated fees is, as Castro

suggests, only further indication that MDC is contractually required to provide certain services in

exchange for the fees it collects. Id. at 808.

Plaintiff’s express written contract—constituted by the Financial Obligation Agreement

and his invoices—is also very different from the hodgepodge of deposit entries and W-2 forms

that Judge Williams concluded did not constitute a written employment agreement when granting

summary judgment for the defendant in Strout, 2016 WL 4804075. Far from merely identifying a

few documents a “vaguely assert[ing] some conceivable combination of them [that] creates at least

one express contract with unknown terms,” here Plaintiff points to express language in his written

agreements with MDC in which he is obligated to pay “fees”—a term with specific meaning under

the Florida Statutes—in exchange for certain services enumerated in his invoices. Id. at *7. It

defies credulity for MDC to suggest that there was no “meeting of the minds” concerning what

Plaintiff and putative Class members were expecting to receive in exchange for the fees that MDC

contractually obligated them to pay in exchange for course registration. Id. at *8–*9.

In summary, Plaintiff has clearly alleged that MDC breached an express written contract

when it refused to provide pro-rated refunds for services for which he was charged but could not

utilize as a consequence of the campus shutdowns in the Spring and Summer 2020 semesters and,

therefore, sovereign immunity has been waived. Pan-Am Tobacco Corp., 471 So. 2d at 4–5.

B. Plaintiff’s Alternative Claim for Unjust Enrichment is not Barred.

Under well-established Florida law, the state is not entitled to sovereign immunity for a fee

charged in violation of law. See Bill Stroop Roofing Inc. v. Metro. Dade Cnty., 788 So. 2d 365

(Fla. 3d DCA 2001). By requiring students to pay fees for services that the Universities did not

provide for nearly half the semester, MDC is acting in violation of its own legislative mandate to

Page 16 of 21

only charge fees to fund specific items authorized by the Florida Legislature. See §§ 1006.4,

1009.23, Fla. Stat. This is particularly true for the laboratory fees charged to Plaintiff which “do

not apply to a distance learning course.” Id. at § 1009.23(12).

MDC argues that Bill Stroop is inapplicable because it “did not involve an unjust

enrichment claim.” Mot. at 8. In Parker v. American Traffic Solutions, Inc., No. 140CUV-24010-

MORENO, 2015 WL 4755175 (S.D. Fla. Aug. 10, 2015), however, Judge Moreno denied a motion

to dismiss an unjust enrichment claim based on sovereign immunity because, pursuant to Bill

Stroop, “state actors are not immune from suit for unlawful monetary extractions.” Id. at *4. The

Court should conclude that sovereign immunity does not bar the unjust enrichment claim because

it is based on MDC’s deliberate flouting of Florida law.

II. PLAINTIFF HAS STANDING TO ASSERT HIS CLAIMS.

MDC’s argument that Plaintiff lacks standing should be denied because, on its face, the

Complaint plainly pleads factual content sufficient to show that Plaintiff “has ‘a sufficient stake in

an otherwise justiciable controversy to obtain judicial resolution of that controversy.” Demircan

v. Mikhaylov, -- So. 3d --, 2020 WL 2550067, at *2 (Fla. 3d DCA May 20, 2020) (citing Kumar

Corp. v. Nopal Lines, Ltd., 462 So. 2d 1178, 1182 (Fla. 3d DCA 1985)). MDC specifically argues

that Plaintiff lacks standing because he fails to assert “an actual or legal injury.” Mot. at 9. “An

actual injury includes an economic injury for which the relied will grant redress[,]” and “[t]hat

injury must be distinct and palpable, not abstract or hypothetical.” Sosa v. Safeway Premium Fin.

Co., 73 So. 3d 91, 116 (Fla. 2011). As in Sosa, Plaintiff “has suffered an economic injury, fulfilling

the actual injury requirement of standing.” Id. Plaintiff alleges that, by moving classes online,

cancelling on-campus events and activities, and stopping the provision of services for which his

fees were intended to pay, MDC retained monies belonging to him without providing him with the

Page 17 of 21

benefit of his bargain. Compl., ¶¶ 54–58. Plaintiff alleges that he has “been deprived of the value

of the services the fees [he] paid were intended to cover, while MDC retained those fees,” and that

he is entitled to “disgorgement of the pro-rated, unused amounts of fees that MDC has already

charged and which Plaintiff and the other Class members have paid.” Id., ¶ 59; see also id., § 66

(“MDC has been unjustly enriched by retaining the fees paid by Plaintiff and the other Class

members for the semesters while not providing services for which those fees paid.”). The Court

should easily conclude that Plaintiff’s alleged economic injury fulfills the standing requirement of

“actual or legal injury.” Sosa, 73 So. 3d at 116.

MDC’s standing argument appears to be directed at the sufficiency of Plaintiff’s allegations

that he was personally denied the value of specific services as a consequence of MDC’s actions.

Id. at 9. This argument ignores the factual allegations in the Complaint, including its attachments,

detailing the many fees Plaintiff was charged for services which were not and could not be

provided when the campuses were shuttered, such as parking fees, laboratory fees, and fees to fund

student services. Compl., ¶¶ 16–21. MDC’s inapposite case law, where it was only clear after

lengthy discovery and briefing on class certification that the plaintiff had not suffered a

quantifiable injury, provides no grounds to dismiss this case at this early stage. See United Auto.

Ins. Co. v. Diagnostics of S. Fla., Inc., 921 So. 2d 23 (Fla. 3d DCA 2006).

III. PLAINTIFF ADEQUATELY STATES CAUSES OF ACTION FOR BREACH OF CONTRACT AND UNJUST ENRICHMENT.

This case is one of many similar cases across the country in which students have brought

claims for breach of contract or, alternatively, unjust enrichment, to seek refunds for services their

colleges and universities did not provide due to campus closures. This Court should conclude, in

Page 18 of 21

line with many of these cases, that the plaintiffs state causes of action for breach of contract and

unjust enrichment.15

15 See, e.g., Salerno v. Florida Southern College, No. 8:20-cv-1494-30SPF, 2020 WL 5583522 (M.D. Fla. Sept. 16, 2020) (denying defendant’s motion to dismiss breach of contract and unjust enrichment claims concerning tuition fees for classes moved online during the COID-19 pandemic because plaintiff “has adequately pled a breach of contract claim” and because unjust enrichment claim can be plead in the alternative); Stenger v. Ferris State Univ., 20-000084-MK (Mi. Ct. Cl. Oct. 1, 2020) (denying defendant’s motion for summary disposition as to plaintiff’s claims that defendant university was unjustly enriched by retaining the amounts paid by students for tuition and fees when students did not receive these services for the second half of the winter/spring 2020 semester); Waitt v. Kent State Univ., 2020-00392JD (Oh. Ct. Cl. Sept. 28, 2020) (holding that defendant university’s contention that plaintiff’s claims for breach of contract, unjust enrichment, and conversion are “baseless” is “of no moment” because a motion to dismiss “does not test the merits of a claim, and whether a plaintiff can prove the facts is an issue for a later determination. Based on the Court’s review, it does not appear beyond doubt that, after all reasonable inferences are afforded in favor of [the plaintiff] and the proposed class, [plaintiff] and the proposed class can prove no set of facts entitling her, or members of the proposed class, to relief based on claims of breach of contract, unjust enrichment, and conversion”); Smith v. The Ohio State Univ., 2020-00321JD (Oh. Ct. Cl. Sept. 9, 2020) (denying defendant’s motion to dismiss plaintiff’s class action claims for breach of contract, unjust enrichment, and conversion, which seek a refund of tuition and fees); McDermott v. Ohio State Univ., No. 2020-00286JD, 2020 Ohio Misc. LEXIS 127 (Ct. Cl. Aug. 24, 2020) (in action seeking to recover prorated amount of student union fee and clinical support fee, denying defendant’s combined partial motion to dismiss and motion for a definite statement and holding that plaintiff had sufficiently stated claims for unjust enrichment and breach of contract based on and asserting that express contracts were either in defendant’s possession or could be obtained through discovery); Mellowitz v. Ball State Univ. & Bd. of Trs. of Ball State Univ., No. 49D114-2005-PL-015026, 2020 Ind. Super. LEXIS 854 (Marion Sup. Ct. Civil Div. 14 Aug. 12, 2020) (denying defendants’ motion to dismiss plaintiff’s class action claims for breach of contract and unjust enrichment); Milanov v. Univ. of Mich., No. 8:20-cv-1494-30SPF, 2020 Mich. Ct. Cl. LEXIS 1 (Ct. Cl. July 27, 2020) (denying defendants’ claim for summary disposition against plaintiffs’ class action claims for breach of contract and unjust enrichment, seeking refunds of amounts they paid for benefits they did not receive in the 2020 winter/spring semester due to actions defendants took in response to the onset of the COVID-19 pandemic); Cross v. Univ. of Toledo, No. 2020-00274JD, 2020 Ohio Misc. LEXIS 121 (Ct. Cl. July 8, 2020) (denying university’s motion to dismiss plaintiff’s class action claims for breach of contract and unjust enrichment based on university’s refusal to prove restitution for tuition, room and board, and fees after campus closures, holding that “it did not appear beyond doubt that, after all reasonable inferences were afforded in favor of plaintiff, he could prove no set of facts entitling him, or members of the proposed class, to relief”).

Page 19 of 21

A. Plaintiff States a Claim for Breach of Contract.

MDC’s contention that the Complaint fails to state a claim for breach of contract simply

rehashes its failed argument that there is no express written contract and that Plaintiff has failed to

allege that he was actually harmed as a consequence of MDC’s breach of that contract. MDC’s

calls for mathematical precision as to the precise value of the services Plaintiff was denied as a

consequence of MDC’s actions ignores the liberal pleading standard at a motion to dismiss, which

requires the Court to “treat the factual allegations of the complaint as true and to consider those

allegations in the light most favorable to the plaintiffs.” Siegle v. Progressive Consumers Ins. Co.,

891 So. 2d 732, 735 (Fla. 2002). It should therefore come as no surprise that the only breach of

contract case that MDC cites for the proposition that the breach of contract claim is insufficiently

plead is an appeal from a final judgment directing a verdict in favor of the defendant after trial

because, in that case, the “record reflect[ed]” that the plaintiff had “failed to introduce any evidence

to show diminution in value of the franchise resulting from defendant’s alleged breaches.” Beefy

Trail, Inc. v. Beefy King Int’l, Inc., 267 So. 2d 853, 855 (Fla. 4th DCA 1972). Similarly, the Court

should ignore MDC’s speculation concerning whether Plaintiff actually lost the value of certain

services for which he was charged fees. Mot. at 3–4. These issues will be fully explored in

discovery—not at the pleading stage.

B. Plaintiff States an Alternative Claim for Unjust Enrichment.

MDC does not dispute that Plaintiff’s allegations meet all the requirements to state a claim

for unjust enrichment. Mot. at 12. Instead, MDC argues that the claim should be dismissed because

“Florida courts have held that a plaintiff cannot pursue a quasi-contract claim for unjust enrichment

if an express contract exists concerning the same subject matter.” Diamond “S” Dev. Corp. v.

Mercantile Bank, 989 So. 2d 696, 697 (Fla. 1st DCA 2008). Once again, MDC is taking liberties

Page 20 of 21

with the case law. Diamond was an appeal from a final judgment where, at trial, the existence of a

contract concerning the subject matter of the unjust enrichment claim had been proven. Id. Here,

by contrast, MDC vehemently denies that a contract exists. Should the Court conclude that there

is no express contract between the parties, then it may consider the unjust enrichment claim in the

alternative. See Haskel Realty Group, Inc. v. KB Tyrone, LLC, 253 So. 3d 84, 86 (Fla. 2d DCA

2018) (concluding defendant’s argument that claim for unjust enrichment had to be dismissed

because it was “negated by allegations in count one stating that the parties had an express oral

contract” had “no merit” because plaintiffs “pleaded these counts as alternative to its claim for

breach of an oral contract. The Florida Rules of Civil Procedure clearly permit a plaintiff to state

causes of action in the alternative”) (citing Fla. R. Civ. P. 1.110(g)); see also supra at 18 n.15.

CONCLUSION

Plaintiff respectfully requests that the Court deny the Motion to Dismiss.

Respectfully submitted,

/s/ Adam M. Moskowitz Adam M. Moskowitz Florida Bar No. 984280 Adam A. Schwartzbaum Florida Bar No. 93014 Howard M. Bushman

Florida Bar No. 0364230 THE MOSKOWITZ LAW FIRM 2 Alhambra Plaza Suite 601 Coral Gables, Florida 33134 Tel.: 305-740-1423 adam@moskowitz-law.com adams@moskowitz-law.com Counsel for Plaintiff and the Proposed Classes

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on October 23, 2020, a true and correct copy of the foregoing

was furnished via the Florida Courts’ e-Filing Portal to on all counsel of record on the attached

service list.

Service List KOZYAK TROPIN & THROCKMORTON, LLP 2525 Ponce de Leon Blvd., 9th Floor Miami, Florida 33134 Tel.: 305-372-1800 Fax: 305-372-3508 Javier A. Lopez, Esq. Fla. Bar No. 16727 Email: jal@kttlaw.com Secondary Email: ya@kttlaw.com Dwayne A. Robinson, Esq. Fla. Bar No. 0099976 Email: drobinson@kttlaw.com Secondary Email: ems@kttlaw.com Michael R. Lorigas, Esq. Fla Bar No. 123597 Email: mlorigas@kttlaw.com Second Email: ga@kttlaw.com Attorneys for Defendant, District Board of Trustees of Miami Dade College

E

IN THE CIRCUIT COURT OF THE

11TH JUDICIAL CIRCUIT IN AND

FOR MIAMI-DADE COUNTY, FLORIDA

COMPLEX BUSINESS DIVISION

CASE NO: 2020-017924-CA-01

FERNANDO VERDINI, individually and on

behalf of all others similarly situated,

Plaintiff,

v.

DISTRICT BOARD OF TRUSTEES OF

MIAMI DADE COLLEGE, a sovereign

of the State of Florida,

Defendant.

_________________________________/

REPLY IN SUPPORT OF MOTION TO DISMISS CLASS ACTION COMPLAINT

In moving to dismiss, Miami Dade College represented to this Court that the Third District

Court of Appeal requires that Plaintiff (and his class action counsel) “must allege in his complaint

the specific methods by which the [sovereign] waives its sovereign immunity and the waiver must

be clear and unequivocal.” See Motion to Dismiss Class Action Complaint (“Motion”) at 5

(quoting Schmauss v. Snoll, 245 So. 2d 112, 114 (Fla. 3d DCA 1971)). As Miami Dade College

also stated, the Third District also requires that Plaintiff establish in his pleading the contractual

terms the sovereign allegedly breached. Motion at 6 (citing City of Miami Firefighters’ & Police

Officers’ Retirement Trust & Plan v. Castro, 279 So. 3d 803, 804 (Fla. 3d DCA 2019)).

Plaintiff’s response does not dispute either contention. Plaintiff simply wants this Court to

ignore the law because, as he and his counsel puts it, it is “unfair.” See Response at 2, 9. But see

City of Fort Lauderdale v. Israel, 178 So. 3d 444, 447 (Fla. 4th DCA 2015) (holding that Fort

Filing # 115793372 E-Filed 10/28/2020 10:06:59 PM

2

Lauderdale had no liability for not paying the Broward County Sheriff’s Office for approximately

three years of police services because the sheriff’s lawsuit was barred by sovereign immunity).

A tacit admission that the complaint is deficient, Plaintiff attempts to amend his complaint

through new allegations solely from his Response to the motion to dismiss. By way of example,

Plaintiff’s Response mentions “laboratory fees” or “laboratory” at least twelve times—in a vain

attempt to find any express writing that the college has purportedly breached. See generally

Response. His 67-paragraph complaint, however, references laboratory fees (or laboratory) a total

of zero times. See generally Compl. Plaintiff cannot amend his complaint through a response to

a motion to dismiss. Cf. Chodorow v. Porto Vita, Ltd., 954 So. 2d 1240, 1242 (Fla. 3d DCA 2007)

(“[T]he trial court failed to confine itself to the facts alleged in the four corners of the complaint

as the trial court is required to do on the review of a motion to dismiss.”).

Nor may Plaintiff amend his pleading to assert a claim based on laboratory fees—or, at

least, not without facing sanctions. Miami Dade College refunded or otherwise waived all of its

students’ laboratory fees, including Plaintiff’s, as a result of Covid-19 for all courses that were not

held face to face before this lawsuit commenced. See Declaration of Associate Vice Provost,

Student Financial Services Mercedes Amaya, attached here as Exhibit 1 (including documentation

related to Plaintiff).

Plaintiff also attempts to amend his complaint by now claiming he is demanding relief for

a breach of an implied (but nondescript) covenant. See Response at 12. But the complaint sets

forth no such claim. See Compl. And rightfully so: Plaintiff has not set forth a basis for a breach

of an implied covenant.

A claim alleging a breach of an implied covenant must set forth an express term of a

contract that has been breached, which, again, Plaintiff fails to do. See Progressive Am. Ins. Co.

3

v. Rural/Metro Corp. of Fla., 994 So. 2d 1202, 1207 (Fla. 5th DCA 2008) (“Because the implied

covenant is not a stated contractual term, to operate it attaches to the performance of a specific or

express contractual provision. There can be no cause of action for breach of the implied

covenant absent an allegation that an express term of the contract has been breached.”

(emphasis added)); see also Flagship Resort Dev. Corp. v. Interval Int’l, Inc., 28 So. 3d 915, 924

(Fla. 3d DCA 2010) (“‘A duty of good faith must relate to a performance of an express term of the

contract . . . . Indeed, it must be anchored to the performance of an express contractual

obligation.”).

Plaintiff’s new (but unpled) claim for breach of an implied covenant thus fails for the same

reason his original claim fails: it identifies no express, written contractual obligation that Miami

Dade College allegedly breached. Progressive Am., 994 So. 2d at 1207-08 (“In this case, [the

plaintiff] points to neither a contractual provision nor a statutory provision which requires

production of the information[, i.e., the alleged breach]. . . . [The plaintiff] cannot use the implied

duty of good faith to create a duty which does not otherwise exist.”). Neither the Response nor

the complaint identifies (or attaches) the allegedly breached, written contractual provisions. The

Response alleges breaches of Florida statutes but only with respect to the unpled and unfounded

laboratory fee assertions. Response at 4, 7-9, 16; see also infra pp. 5-6. The Response also cites

to a Florida Statutes, Section 1006.4 that Miami Dade College purportedly breached, Response

at 16; not only is that outside the pleadings but no such statute exists nor could it be applicable

here in any event. See Chapter 1006, pt. I, Fla. Stat. (regulating K-12 education).

Focusing then on the claims that were actually raised in the complaint, Plaintiff’s Response

fails to establish any term of an express written agreement that Miami Dade College breached (or

any authority excusing Plaintiff from pleading that breach clearly and unequivocally). The

4

Response also fails to address numerous points supporting dismissal, implicitly conceding that

Plaintiff’s complaint does not set forth a cause of action against Miami Dade College. This Court

should thus dismiss this action.

A. Miami Dade College Is Entitled to Sovereign Immunity.

Plaintiff’s Response fails to set forth any legal basis to maintain this action against an

undisputed sovereign that is consistent with Third District Court of Appeal precedent. Plaintiff

initially contends that the various writings attached to his pleading constitute an express contract.

See Response at 11-12. That may be true, but it is also irrelevant to the question at hand. The

Third District Court of Appeal requires, at the pleading stage, that the Plaintiff identify the express,

written contractual terms that he alleges were breached. Castro, 279 So. 3d at 804 (reversing denial

of a motion to dismiss). Like the complaint, the Response identifies no such term, a further

indication that Plaintiff is unable to meet basic pleading requirements. See Schmauss, 245 So. 2d

at 114 (requiring that a complaint alleging waiver of immunity “must be clear and unequivocal”).

But see Response at 14 n.14 (suggesting that Schmauss is somehow inapplicable because the Third

District Court of Appeal affirmed, on immunity grounds, a trial court order that granted Dade

County’s motion to dismiss along with Dade’s motion for summary judgment).

Plaintiff tells this Court that it “should conclude” that the invoices attached to its complaint

are a “‘subsequent legally operative instrument’” obligating Miami Dade College to provide the

complained about services. Response at 12 (citing S. Roadbuilders, Inc. v. Lee Cty., 495 So. 2d

189, 190 (Fla. 2d DCA 1986)). There are two problems with that suggestion, not including that is

inconsistent with Third District Court of Appeal precedent. See authorities supra.

First, the authority he cites contradicts his position. In Southern Roadbuilders, a

construction company entered an express, written contract with Lee County for a certain road

5

construction project. 495 So. 2d at 189. The company sought $840,729.20 in additional costs that

were not specified in the contract with the county. Id. In addition to discarding the company’s

off-contract claim of quatum meruit1 as “meritless,” id. at 190, the Second District Court of Appeal

rejected the attempt to establish additional contractual obligations based on invoices. Id. (“The

additional costs claimed by [the company] were neither addressed in the original contract nor in

any subsequent legally operative instrument.”). Southern Roadbuilders thus contradicts the

approach Plaintiff (and his counsel) urges this Court to adopt here.

The second problem with following Plaintiff’s approach to presume a contract for on

campus services based on the nondescript invoices is that the invoices attached to the complaint

do not specify that Miami Dade College must provide on campus services related to those fees.

See Ex. A, Compl. The complaint is bereft of any allegation that Miami Dade College is ceasing

to provide technology services, student services, financial aid services, etc. altogether even during

Covid-19. Instead, Plaintiff seeks to vindicate an undefined right to receive certain “enumerated”

and “specific” on campus services that neither he nor his counsel is able to articulate or otherwise

define in a 67-paragraph complaint or a 21-page Response.

Plaintiff, at most, points to Florida statutes discussing certain of those fees but none of

which requires on campus services. See Response at 8 (citing § 1009.23(7), (10), (11), (12), Fla.

Stat.). Subsection 7 relates to the student activity service fees and provides only that fees “shall

be expended for lawful purposes to benefit the student body in general,” which “include, but are

not limited to, student publications and grants to duly recognized student organizations.”

§ 1009.23(7), Fla. Stat. Subsection 10 addresses the technology fee and provides that it “shall be

1 Florida courts have “synonymously” used the terms “quantum meruit” and “unjust enrichment”

“[t]o describe the cause of action encompassed by a contract implied in law.” Commerce P’ship

8098 Ltd. P’ship v. Equity Contracting Co., 695 So. 2d 383, 386 (Fla. 4th DCA 1997) (collecting

representative cases). Plaintiff’s unjust enrichment claim is, indeed, meritless. See infra pp. 7-8.

6

used to enhance instruction technology resources for students and faculty.” § 1009.23(10)

(providing also that half of the fee may be pledged to repay debt). Subsection 11 relates to capital

improvement fees that “shall be . . . expended only to acquire improved real property or construct

and equip, maintain, improve, or enhance the educational facilities” of the college. § 1009.23(11)

(providing also that capital fee revenue may be pledged to repay debt). Lastly, Subsection 12

provides other examples of permissive services related to fees enumerated in the complaint, but it

does not mandate any particular on campus services. § 1009.23(12). That subsection likewise

permits parking fee revenues to be used to repay debt. Id. The Complaint accordingly does not

clearly and unequivocally allege that Miami Dade College breached any of these statutory

provisions by simply providing services remotely.

Unable to clear the hurdle the Third District Court of Appeal requires, Plaintiff ultimately

requests this Court rely on “reasonable inferences” instead of the clear and unequivocal waiver of

immunity that must be pled here. See Response at 13-14. But once again, the authorities Plaintiff

cites are of no aid. In Corcoran v. Geffin, the First District Court of Appeal did not “affirm” a

portion of an order denying a motion to dismiss based on sovereign immunity. Compare id. at 13

with 250 So. 3d 779, 787 (Fla. 1st DCA 2008) (refusing to grant a writ of prohibition). That court

initially said that sovereign immunity did not bar claims where Florida statutes appeared to require

the State to provide matching funds for donations to Florida colleges; thus, even in Corcoran, the

plaintiffs had to establish an expressed written provision that was allegedly breached by a

sovereign. See id. at 786-87. But, less than a year later, the First District Court of Appeal reversed

course. See DeSantis v. Geffin, 284 So. 3d 599, 602 (Fla. 1st DCA 2019) (reversing trial court

order that denied a motion to dismiss a complaint based on sovereign immunity). The First District

Court of Appeal held that “the matching statutes at issue fail to provide even implicit authority to

7

bind the Legislature to make appropriations. . . . Therefore as a matter of law, Appellants are

entitled to sovereign immunity protection from the breach of contract claims.” Id.

Plaintiff also relies on a Middle District of Florida decision to escape the mandates of the

Third District Court of Appeal. See Response at 13 (citing Zainulabeddin v. Univ. of S. Fla. Bd.

of Trustees, No. 16-cv-637-T-30TGW, 2016 WL 1451726, at *3 (M.D. Fla. Apr. 13, 2016)). He,

again, misses the mark. Unlike here, that plaintiff alleged “some” written terms that the university

allegedly breached, although the decision includes no discussion as to what they were. Id.

Zainulabeddin further held that the plaintiff “does not need to identify a written contract, but

merely allege one.” Id. That may be fine for federal court, but Florida’s Civil Rules require that

the plaintiff attach the contract at issue to the complaint and the Third District Court of Appeal

requires that the waiver of immunity be pled clearly and unequivocally, setting forth the terms of

the contract that were breached. See supra. This Court is bound by the decisions of the Third

District Court of Appeal even in the face of contrary decisions elsewhere. See Pardo v. State, 596

So. 2d 665, 667 (“[I]f the district court of the district in which the trial court is located has decided

the issue, the trial court is bound to follow it.”). This Court should accordingly dismiss Count I.

Finally, as it relates to sovereign immunity, Plaintiff fails to contest that the City of Fort

Lauderdale case forecloses his unjust enrichment claim. Response at 15-16. He relies on one

narrow purported exception based on a breach of a clear statutory prohibition. See id. Plaintiff

thus implicitly concedes that any unjust enrichment claim unrelated to a statutory prohibition is

barred. See id. The Florida Statutes, however, do not otherwise spare dismissal of this claim. For

one, Plaintiff only cites to a purported violation of a statutory prohibition as to his laboratory fee

8

assertions, which are not before the Court. 2 Regarding the fees actually at issue in the complaint,

the Response underscores that Miami Dade College did not violate any clear statutory prohibition

by either collecting those fees or providing services related thereto during Covid-19. See supra

pp. 5-6. Count II, alleging unjust enrichment, should be dismissed based on sovereign immunity.

B. Because Plaintiff Fails to State a Claim for Relief, His Case Should Be Dismissed.

Plaintiff asserts no substantive argument that his complaint sets forth an adequate breach

of contract claim except citing to other courts—all, but one, outside of Florida—that found other

plaintiffs had pled adequate claims in other cases. Response at 18-19 & n. 15.3 He offers no

response as to his failure to follow Florida’s Civil Rules by attaching the purportedly breached

contractual provisions to his pleading. See Motion at 11 (citing Safeco Ins. Co. of Am. v. Ware,

401 So. 2d 1129, 1130 (Fla. 4th DCA 1981) (requiring dismissal for failing to attach the relevant

instrument to a complaint)). Nor does Plaintiff make any attempt to assert materiality regarding

2 As to those unpled laboratory fees, the Florida Statutes do not create a clear statutory prohibition

that Plaintiff may vindicate here. Florida Statutes, Section 1009.23(12) merely authorizes Miami

Dade College “to establish fee schedules for the following user fees and fines: laboratory fees,

which do not apply to a distance learning course . . . .” Plaintiff is not complaining that the college

improperly established a fee schedule assessing laboratory fees for distance learning courses. At

most, he is saying—in his Response, not his actual pleading—that the college should have

retroactively reviewed courses that had to be presented in part remotely and refund part or all of

the laboratory fees. But this statute has no such backward-looking review and refund requirement.

3 None of the cases Plaintiff relies on are applicable here because they either involve implied-in-

fact contracts, contain no analysis of the plaintiff’s allegations, or address whether a breach of

contract claim should be characterized as a claim for educational malpractice. See Salerno v. Fla.

S. Coll., No. 8:20-cv-1494-30SPF (M.D. Fla. Sept. 16, 2020) (implied-in-fact contract); Waitt v.

Kent State Univ., No. 2020-00392JD, 2020 WL 5894543 (Ohio Ct. Cl. Sep. 28, 2020) (educational

malpractice); Smith v. The Ohio State Univ., No. 2020-00321JD, 2020 WL 5694224 (Ohio Ct. Cl.

Sep. 09, 2020) (educational malpractice); McDermott v. The Ohio State Univ., No. 2020-00286JD,

2020 WL 5239892 (Ohio Ct. Cl. Aug. 24, 2020) (implied-in-fact contract and educational

malpractice); Mellowitz v. Ball State Univ., No. 49D14-2005-PL-015026, 2020 WL 5524659 (Ind.

Super. Ct. Aug. 14, 2020) (one-sentence order denying motion to dismiss without any recitation

of the allegations); Cross v. Univ. of Toledo, No. 2020-00274JD, 2020 WL 4726814 (Ohio Ct. Cl.

July 08, 2020) (educational malpractice).

9

the breaches of the “enumerated” and “specific” on campus services (which are neither enumerated

nor specified in the complaint or the Response). See Response at 18-19. He simply suggests he

pled damages even if he is unsure of what they are at the moment. Id. at 19.

His response in defense of his unjust enrichment claim is lacking even more. Plaintiff

suggests that he can plead in the alternative, asserting a breach of contract in Count I and an implied

contract in Count II. No, he cannot do so here. For one, the college is immune from implied

contractual claims. See City of Fort Lauderdale, 178 So. 3d at 447. Two, in an ordinary case, a

plaintiff could plead an implied contractual count in the alternative but not if he incorporates

allegations into that count admitting an express contract exists. See JI-EE Indus. Co., Ltd. v.

Paragon Metals, Inc., No. 09-81590-CIV, 2010 WL 1141103, at *1 (S.D. Fla. March 23, 2010)

(holding that an unjust enrichment claim that incorporated allegations of an express contract did

not state a claim (citing Poe v. Levy's Estate, 411 So. 2d 253, 256 (Fla. 4th DCA 1982)). That is

precisely what Plaintiff has done. See Compl. ¶ 61 (incorporating earlier allegations of an express

contract). Thus, Plaintiff’s unjust enrichment claim fails to state a claim.

Conclusion

For the foregoing reasons and reasons stated in the motion to dismiss, Miami Dade College,

a sovereign, requests that this Court dismiss the Complaint.

Dated: October 28, 2020. Respectfully submitted,

KOZYAK TROPIN & THROCKMORTON, LLP

Attorneys for Defendant, District Board of

Trustees of Miami Dade College

2525 Ponce de Leon Blvd., 9th Floor

Miami, Florida 33134

Tel.: 305-372-1800

Fax: 305-372-3508

10

By: Javier Lopez

Javier A. Lopez, Esq.

Fla. Bar No. 16727

Email: jal@kttlaw.com

Dwayne A. Robinson, Esq.

Fla. Bar No. 0099976

Email: drobinson@kttlaw.com

Michael R. Lorigas, Esq.

Fla Bar No. 123597

Email: mlorigas@kttlaw.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on October 28, 2020, a true and correct copy of the foregoing

was electronically filed with the Florida Court E-Fling Portal, which will serve it via electronic

mail to all counsel of record.

By: /s/ Javier Lopez

Javier Lopez, Esq.

EXHIBIT 1

IN THE CIRCUIT COURT OF THE11TH JUDICIAL CIRCUIT IN ANDFOR MIAMI-DADE COUNTY, FLORIDA

COMPLEX BUSINESS DIVISION

CASE NO: 2020-017924-CA-01

FERNANDO VERDINI, individually and onbehalf of all others similarly situated,

Plaintiff,

v.

DISTRICT BOARD OF TRUSTEES OFMIAMI DADE COLLEGE, a sovereignof the State of Florida,

Defendant._________________________________/

DECLARATION OF MERCEDES AMAYA

I, Mercedes Amaya, make this declaration pursuant to Florida Statutes, Section 92.525,

Florida Statutes:

1. My name is Mercedes Amaya, and I currently serve as the Associate Vice Provost,

Student Financial Services of Miami Dade College. I make this Declaration from personal

knowledge gained in my position and based upon my review of the financial records related to

Plaintiff Fernando Verdini’s (“Plaintiff[’s]”) account with Miami Dade College. Plaintiff’s

financial records were made at or near the time of the occurrence of the matters set forth therein,

or from information transmitted by, a person having knowledge of those matters; made as a regular

practice in the course of the regularly conducted activity of Miami Dade College; and kept in the

course of the regularly conducted activity of Miami Dade College.

2. Miami Dade College refunded or otherwise waived any laboratory fees for all

courses which were not offered face to face for the Summer 2020 semester.

3. Likewise, Plaintiff was not charged any laboratory fees for the Summer 2020

semester. Attached as Exhibit A is a composite of Plaintiff’s Summer 2020 Payment Details

reflecting Miami Dade College’s waiver of those laboratory fees. See Exhibit A.

4. The invoice for the Summer 2020 semester attached to the Complaint as Exhibit A

purports to show charges for laboratory fees. But that invoice reflects that it was printed on

May 19, 2020, so it is outdated. As reflected in the Summer 2020 Payment Details, Miami Dade

College reduced to zero all laboratory fees for courses that were not offered face to face on May 27,

2020, 12 weeks before this action was filed.

5. For the Summer 2020 and Spring 2020 semesters, Miami Dade College did not

charge its students or Plaintiff laboratory fees for courses unless the courses were held face to face.

Under penalties of perjury, I declare that I have read the foregoing declaration and that the

facts stated in it are true.

Executed this 28th day of October, 2020, in Miami-Dade County, Florida.

____________________Mercedes Amaya

%+-)+*+. ",(0( 8&)/ 346 3131 32732 $#'9

EXHIBIT A