Case 3:20-cv-05526-MAS-DEA Document 52 Filed 12/29/21 Page 1 of 18 PageID: 899
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`NOT FOR PUBLICATION
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
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`JODI FITTIPALDI and LEXI
`FITTIPALDI, on behalf of themselves and
`others similarly situated,
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`Civil Action No. 20-5526 (MAS) (DEA)
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`MEMORANDUM OPINION
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`Plaintiffs,
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`v.
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`MONMOUTH UNIVERSITY,
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`Defendant.
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`SHIPP, District Judge
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`This matter comes before the Court on Defendant Monmouth University’s (“Monmouth”)
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`Motion for Reconsideration of this Court’s June 1, 2021 Memorandum Opinion and Order (the
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`“Opinion”). (ECF No. 39.) Plaintiffs Jodi and Lexi Fittipaldi (“Plaintiffs”) opposed (ECF No. 41),
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`and Monmouth did not reply. The Court has carefully considered the parties’ submissions and
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`decides the motion without oral argument under Local Civil Rule 78.1. For the reasons below, the
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`Court grants in-part and denies in-part Monmouth’s Motion.
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`I.
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`BACKGROUND
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`The Court adopts the factual background set forth in its Opinion and adds detail to that
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`background here. As in its Opinion, the Court accepts as true all factual allegations in Plaintiff’s
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`First Amended Complaint. See Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2018)
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`(citing Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).1
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`A.
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`Factual Background
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`Like so many others over the past two years, this backstory finds its roots in the novel
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`coronavirus. A serious threat to public health, the World Health Organization declared the
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`coronavirus a public health emergency in late January 2020. (First Am. Compl. (“FAC”) ¶ 48,
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`ECF No. 20.) In response to that declaration and the spread of the coronavirus in New Jersey,
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`Governor Murphy declared a state of emergency and enacted a series of executive orders. Most
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`salient here, on March 16, 2020, Governor Murphy issued Executive Order 104, which mandated
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`that “[a]ll institutions of higher education shall cease in-person instruction beginning on
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`Wednesday, March 18, 2020, and shall cease such in-person instruction as long as this Order
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`remains in effect.” N.J. Exec. Order 104, at 5 (Mar. 16, 2020). Governor Murphy reiterated that
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`mandate in another executive order issued five days later. See N.J. Exec. Order 107, at 10 (Mar.
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`21, 2020). Alongside other universities across New Jersey, Defendant Monmouth complied with
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`these executive orders, cancelling all in-person classes and shutting its doors on March 9, 2020.
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`(FAC ¶¶ 3-7.)
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`This lawsuit followed. Plaintiff Lexi Fittipaldi is enrolled at Monmouth and is majoring in
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`Cybersecurity, which “relies extensively on
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`in-person
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`instruction, meaningful student
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`presentations, peer collaboration, and access to university facilities.” (Id. ¶ 18.) She alleges that
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`she chose to enroll in Monmouth’s Cybersecurity program because of the “on-campus experience,”
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`including “the variety of educational and extracurricular opportunities.” (Id. ¶ 19.) Plaintiff Jodi
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`1 Although Plaintiffs have filed a Second Amended Complaint, the Court draws the following facts
`from the First Amended Complaint, which was operative when the Court issued its Opinion.
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`2
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`Fittipaldi is Lexi’s mother and helped pay for her daughter’s education. (Id. ¶ 17.) Specifically,
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`Lexi enrolled in 18 credits at Monmouth in the spring 2020 semester for $19,796; Jodi paid roughly
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`$12,500 out-of-pocket, and Lexi financed the rest. (Id. ¶¶ 17-18.) Regarding the courses Lexi chose
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`for the spring semester and the consequent tuition payments, Plaintiffs’ First Amended Complaint
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`alleges that “Plaintiffs would not have paid as much, if any, tuition and fees for the Spring 2020
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`semester at Monmouth had they known that the courses would not, in fact, be taught in-person.”
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`(Id. ¶ 20.)
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`To that end, several allegations buttress the significance of in-person education to both
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`Plaintiffs and Monmouth. For example, the First Amended Complaint cites to two webpages from
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`the Monmouth University website, which were “the primary means through which [Monmouth]
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`target[ed] prospective students.” (Id. ¶¶ 29, 31, 35.) A sampling of the first webpage, entitled “Why
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`Monmouth, Why Now,” highlights the benefits of an in-person experience at Monmouth:
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`•
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`•
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`•
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`•
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`From athletics to clubs, fraternity and sorority life, to social
`gatherings
`and multicultural
`activities, Monmouth
`University has staked a place among the top private
`universities.
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`With new academic buildings and residence halls,
`Monmouth provides new students with a rewarding and
`meaningful college experience.
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`Come visit our 170-acre campus, and you’ll quickly feel our
`warm, friendly atmosphere and experience our historic
`architecture mingled among new academic buildings and
`residence halls.
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`Given Monmouth’s coastal location and its proximity to
`cities like New York and Philadelphia, students enjoy easy
`access to many cultural and recreational opportunities.
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`(Id. ¶ 29.) The second, called “Location is Everything,” is more to-the-point, noting that
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`Monmouth has a “location that directly impacts and enhances learning experiences every day.”
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`(Id. ¶ 31.) As part of the enhanced learning experience, Monmouth touted the “clear ocean waters
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`at the beach through the Urban Coast Institute,” “[g]roup excursions” and “internship
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`opportunities” in New York City and Philadelphia, and “Monmouth’s 168-acre campus full of
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`wide green lawns and historic yet state-of-the-art facilities.” (Id.) Indeed, Monmouth advertised
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`that its “location can lead you to opportunities anywhere in the world.” (Id.)
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`Echoing those advertisements, Monmouth recognized the premium it placed on an
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`in-person experience. For example, Plaintiffs’ First Amended Complaint alleges that, before the
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`pandemic, Monmouth did not offer online undergraduate degrees and offered limited
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`undergraduate and graduate virtual coursework. (Id. ¶¶ 36, 58.) According to the First Amended
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`Complaint, “[b]y offering such limited course and programs online, [Monmouth] acknowledged
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`that virtual education is a unique format and, moreover, that [it] was not prepared to deliver the
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`breadth of programs and degrees it offers on-campus in a virtual format.” (Id. ¶ 58.) As another
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`example, the First Amended Complaint alleges that Monmouth’s pre-pandemic attendance policy
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`stressed the significance of in-person learning by requiring students to physically attend and
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`participate in classroom courses. (Id. ¶ 38.) As a final example, Plaintiffs’ First Amended
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`Complaint alleges that, during the pandemic, in the summer 2020 semester, Monmouth reduced
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`the cost for virtual courses by 15% vis-à-vis in-person courses—thereby “demonstrat[ing]
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`[Monmouth’s] own belief that the online-only courses are worth less than in-person courses.” (Id.
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`¶ 39.)
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`Advertising and in-person premium notwithstanding, Monmouth was unable to offer
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`in-person classes for part of the spring 2020 semester due to Governor Murphy’s executive orders.
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`(See id. ¶ 54.) Although the State forced Monmouth to switch to virtual courses, Monmouth
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`continued to charge the in-person tuition and fees for the spring 2020 semester. (Id. ¶ 41.)
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`According to Plaintiffs’ First Amended Complaint, however, Monmouth’s decision to charge the
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`same tuition and fees ignored that Plaintiffs never received the benefits of the in-person premium.
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`(Id. ¶¶ 55-59.) Specifically, Plaintiffs’ First Amended Complaint alleges that Plaintiffs never
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`received the benefits of “in-person learning from . . . peers and school faculty,” “use of on-campus
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`facilities,” “laboratory and research experience,” and “attendance at on-campus events.” (Id. ¶ 59;
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`see also id. ¶ 55 (“[Monmouth] has not delivered the educational services, facilities, access and/or
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`opportunities that Plaintiff[s] and the putative class contracted and paid for.”).) As a result of these
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`deprivations, Plaintiffs’ First Amended Complaint requests “a refund of tuition and fees for
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`services, facilities, access and/or opportunities that [Monmouth] has not provided.” (Id. ¶ 55.)
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`B.
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`The Court’s June 1, 2021 Opinion
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`Plaintiffs’ First Amended Complaint proceeded primarily under a breach-of-contract
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`theory, whereby Monmouth breached an express or implied contract with Plaintiffs by failing to
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`offer in-person education. See Fittipaldi v. Monmouth Univ., No. 20-5526, 2021 WL 2210740, at
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`*2 (D.N.J. June 1, 2021), ECF No. 37. Plaintiffs alternatively alleged claims for unjust enrichment,
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`conversion, and money had and received. Id. In response, Monmouth moved to dismiss Plaintiffs’
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`First Amended Complaint, arguing, among other reasons, that Plaintiffs had alleged no express
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`contract between the parties and that New Jersey law did not recognize implied contracts between
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`universities and students. See id. Further, Monmouth argued that the Court should dismiss
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`Plaintiffs’ remaining claims as duplicative or derivative of Plaintiffs’ breach-of-contract claim.
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`See id. at *3.
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`The Court resolved Monmouth’s motion to dismiss in its Opinion. There, as relevant here,
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`the Court agreed with Monmouth that Plaintiffs could not proceed under an express or implied
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`breach-of-contract theory. See id. at *8. Relying on the Law Division’s decision in Beukas v. Board
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`of Trustees of Fairleigh Dickinson University, the Court concluded that Plaintiffs’ traditional
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`breach-of-contract theory failed as a matter of law but that Plaintiffs could proceed under a theory
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`of quasi-contract. See Fittipaldi, 2021 WL 2210740, at *7-8 (citing 605 A.2d 776 (N.J. Super. Ct.
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`Law Div. 1991), aff’d, 605 A.2d 708 (N.J. Super. Ct. App. Div. 1992)). To that end, the Court
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`reasoned that under Beukas, New Jersey courts would apply a “good faith and fair dealing”
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`standard to Plaintiffs’ quasi-contract claim. Id. at *8 (citing 605 A.2d at 784-85.) Notably, the
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`Court observed that it was not alone in applying this standard: Judge McNulty applied the same
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`standard in a recent case. See id. at *9 (citing Dougherty v. Drew Univ., No. 21-249, 2021 WL
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`1422935 (D.N.J. Apr. 14, 2021), reconsideration denied, 2021 WL 2310094 (June 7, 2021)).
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`Applying the Beukas standard, the Court asked whether “Plaintiffs (at a minimum) allege
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`that Monmouth acted arbitrarily and other than in good faith by failing to reduce the cost per credit
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`due to the remote instruction.” Id. It concluded that Plaintiffs had. Id. Construing the First
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`Amended Complaint in the light most favorable to Plaintiffs (as the Court must on a motion to
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`dismiss), the Court reasoned that Plaintiffs’ First Amended Complaint contained sufficient factual
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`allegations to set forth a plausible quasi-contract theory. Id. at *9-10. As an example, the Court
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`noted that the First Amended Complaint alleged that Monmouth reduced the cost for virtual
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`summer 2020 courses by 15% vis-à-vis in-person courses. Id. at *9 (citing FAC ¶ 39). The Court
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`further reasoned that, to the extent Monmouth invited the Court to inquire further into the factual
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`foundations for the First Amended Complaint’s allegations, that request was inappropriate at the
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`motion-to-dismiss stage. See id. at *10 (“Here, the Court finds it appropriate to consider the bona
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`fides of Monmouth’s decision making and the fairness of its COVID-19 remote learning
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`implementation upon a full factual record.”). As to Plaintiffs’ remaining claims for unjust
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`enrichment, conversion, and money had and received, the Court allowed those claims to proceed
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`for similar reasons. See id. at *10-11.
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`C. Monmouth’s Motion for Reconsideration
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`Disagreeing with the Court’s holding, Monmouth moved for reconsideration. (Def.’s
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`Moving Br., ECF No. 39.) In its supporting brief, Monmouth asserts that the Court erred in three
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`ways: (1) finding that Plaintiffs’ First Amended Complaint adequately alleged bad faith under the
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`Beukas standard; (2) disregarding cases from this District disposing of quasi-contract claims; and
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`(3) allowing Plaintiffs’ unjust enrichment, conversion, and money had and received claims to
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`proceed. (See id.)
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`The Court summarizes Monmouth’s three arguments in turn. First, Monmouth’s Moving
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`Brief advances that it did not “act[] in bad faith when it transitioned to remote instruction in order
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`to comply with a government order.” (Id. at 5-6.) Second, Monmouth advises that the Court
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`overlooked two May 2021 decisions from this District: Mitelberg v. Stevens Institute of
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`Technology, No. 21-1043, 2021 WL 2103265 (D.N.J. May 25, 2021), and Kostic v. Seton Hall
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`University, No. 20-5566 (D.N.J. May 27, 2021), ECF No. 37. (Id. at 10-12.) Monmouth’s Moving
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`Brief argues that the Court should adopt the reasoning of these cases—specifically, that
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`Monmouth’s reservation-of-rights provision bars any quasi-contract claim because Monmouth
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`reserved the right to cancel classes. (See id.) Finally, Monmouth’s Moving Brief asserts that the
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`Court should reconsider its holdings regarding Plaintiff’s unjust enrichment, conversion, and
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`money had and received claims for the same reasons above. (See id. at 12-13.)
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`II.
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`LEGAL STANDARD
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`Reconsideration under Local Civil Rule 7.1 is “an extraordinary remedy” that is rarely
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`granted. Interfaith Cmty. Org v. Honeywell Int’l, Inc., 215 F. Supp. 2d 482, 507 (D.N.J. 2002)
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`(citations omitted). It requires the moving party to set forth the factual matters or controlling legal
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`authorities it believes the Court overlooked when rendering its decision. See L. Civ. R. 7.1(i). To
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`succeed on a motion for reconsideration, a movant must show at least one of three factors: “(1) an
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`intervening change in the controlling law; (2) the availability of new evidence that was not
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`available when the court granted the motion [at issue]; or (3) the need to correct a clear error of
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`law or fact or to prevent manifest injustice.” Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros,
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`176 F.3d 669, 677 (3d Cir. 1999) (citing N. River Ins. Co. v. CIGNA Reins. Co., 52 F.3d 1194,
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`1218 (3d Cir. 1995)). Significantly, a motion for reconsideration is not an opportunity to raise new
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`matters or arguments that could have been raised before the court decided the original decision.
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`See Bowers v. NCAA, 130 F. Supp. 2d 610, 612-13 (D.N.J. 2001). Nor is a motion for
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`reconsideration an opportunity to “ask the court to rethink what it ha[s] already thought through.”
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`Interfaith Cmty. Org., 215 F. Supp. 2d at 507 (alteration in original) (quoting Oritani Sav. & Loan
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`Ass’n v. Fid. & Deposit Co., 744 F. Supp. 1311, 1314 (D.N.J. 1990)). “Rather, the rule permits a
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`reconsideration only when ‘dispositive factual matters or controlling decisions of law’ were
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`presented to the court but were overlooked.” Id. (quoting Khair v. Campbell Soup Co., 893 F.
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`Supp. 316, 337 (D.N.J. 1995)).
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`III. DISCUSSION
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`The Court now assesses whether to reconsider its Opinion. Before addressing Monmouth’s
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`Motion, however, the Court writes to provide additional context regarding its earlier Opinion.
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`First, this matter is before the Court on a motion to dismiss. As such, the Court will accept
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`as true all well-pled factual allegations in the First Amended Complaint and draw all inferences in
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`favor of Plaintiffs. The Court will dismiss only where, as a matter of law, Plaintiffs have failed to
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`raise a plausible claim for relief. At this stage, the Court does not weigh evidence or make factual
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`determinations about what is and is not. Rather, the Court’s role is to assess the legal plausibility
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`of the factual allegations in the complaint. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11
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`(3d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
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`Second, this matter is not about Monmouth’s decision to cancel in-person classes. Both
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`parties correctly recognize that Monmouth had no discretion in deciding whether to close its doors,
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`as multiple executive orders demanded that universities “cease in-person instruction.” N.J. Exec.
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`Order 104; N.J. Exec. Order 107. What this matter is about, however, is Monmouth’s decision to
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`charge the same tuition and fees following its closure. Unlike its decision to close, Monmouth’s
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`decision as to what to charge its students following the transition to remote education was within
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`its control and discretionary. Thus, the focal point of the Court’s analysis under the Beukas
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`standard is whether Monmouth’s decision to charge the same tuition and fees for both in-person
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`and virtual education in the spring 2020 semester was nonarbitrary and made in good faith.
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`Conversely, Monmouth’s nondiscretionary decision to close and whether Monmouth made that
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`decision in bad faith is irrelevant to the analysis under the Beukas standard.2
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`Finally, this matter concerns the benefits students expected to receive, in exchange for
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`paying tuition and fees, upon enrolling in an institution of higher learning. When paying tuition
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`and fees, students anticipate receiving certain features from their universities. For example, a
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`prospective undergraduate student would expect to receive access to on-campus facilities,
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`participation in on-campus extracurricular events, facetime with professors in class and office
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`hours, and myriad other features. That’s especially so when the university advertises the in-person
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`experience. Baked into any university’s tuition and fees, therefore, are the costs associated with
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`students’ expectations—such as maintenance for facilities, funding for extracurricular activities,
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`2 Further, as the Court suggested in its Opinion, if the relevant decision were switching to virtual
`education, then claims under that theory would likely smack of educational malpractice and the
`quality of education offered. See Fittipaldi, 2021 WL 2210740, at *5 (“Any breach of contract
`claim that avoids such ‘quality’ assertions, however, is capable of stating a claim upon which relief
`can be granted.”).
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`and salaries for professors. Indeed, if a university did not charge tuition and fees commensurate
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`with students’ expectations, students would likely not enroll at the university.
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`In this regard, tuition and fees are like the prices charged by manufacturers and retailers
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`for other commodities. Take, for example, a car purchase. A car buyer expects to receive certain
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`features with the purchase of a car: acceleration, fuel economy, interior refinements, etc. Car
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`manufacturers thus build and advertise cars that accelerate quickly, refuel cheaply, and drive
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`comfortably—and price those cars according to those built-in features. To that end, manufacturers
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`price their cars according to what willing buyers would pay for the accumulation of features those
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`buyers expect. If car buyers do not receive one of those features, they expect to pay less than
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`comparable cars (if the car is not yet purchased) or to receive a refund for the feature not received
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`(say, in the event of a recall for a defective part). All this to say that both buyers and sellers of cars
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`cannot divorce the purchase price of cars from the underlying features inherent to those cars.
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`The Court applies a similar analytic framework to the facts of this case. When students
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`enroll in a university, they do so by paying tuition and fees that bake in all the features they expect
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`to receive. As relevant here, at least one of those features is a premium associated with an in-person
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`experience. Students not receiving that in-person experience would expect to (a) pay less tuition
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`and fees or (b) receive a refund commensurate with the cost of the in-person premium. The precise
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`contours of what constitutes the in-person premium are not for the Court to decide at this stage. It
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`may very well be that the in-person premium charged by Monmouth is de minimis or perhaps even
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`nonexistent. It may also be that the in-person premium is accounted for entirely by fees and costs
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`not at issue in this litigation (such as fees associated with on-campus living or Monmouth’s
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`endowment). But the Court is not now answering questions about the scope of the in-person
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`premium, which is, in all events, best left for fact and expert discovery to solve.
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`Against
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`that backdrop,
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`the Court now addresses Monmouth’s arguments for
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`reconsideration.
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`A.
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`The Court Does Not Reconsider Its Finding that the First Amended Complaint
`Adequately Alleged that Monmouth Acted Arbitrarily.
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`Up first is Monmouth’s argument that the Court failed to adequately consider the First
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`Amended Complaint’s dearth of allegations regarding Monmouth’s bad faith. Before considering
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`the substance, the Court notes that this argument could have been raised in Monmouth’s original
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`motion to dismiss and reply brief. But see Pizarro v. Wells Fargo Bank, N.A., 762 F. App’x 115,
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`118 (3d Cir. 2019) (affirming district court’s denial of reconsideration motion where movant
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`“raised arguments that could have been raised before” and “did not provide a basis for
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`reconsideration” (citing Max’s Seafood Café, 176 F.3d at 677)); Mid-American Salt, LLC v. Morris
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`Cnty. Coop. Pricing Council, 964 F.3d 218, 230 (3d Cir. 2020) (affirming district court’s denial
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`of reconsideration motion where movant “had ample opportunity” to assert a new claim “but
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`decided not to”). Monmouth also fails to specify which of the three grounds this argument fits
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`under. Because the argument appears to take issue with the Court’s findings regarding application
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`of the Beukas standard and findings regarding the First Amended Complaint’s allegations over
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`Monmouth’s arbitrariness, the Court analyzes this argument under the third prong—the need to
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`correct a clear error of law or fact. Max’s Seafood Café, 176 F.3d at 677.
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`Under that prong, Monmouth has not met its burden to demonstrate reconsideration
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`because it has not shown any clear error. To start, Monmouth agrees that “Beukas provides the
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`proper analytical framework for assessing pandemic-related breach of contract claims against
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`universities for failing to provide in-person instruction.” (Def.’s Moving Br. 5.) As the Court stated
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`in its Opinion, under Beukas, the proper inquiry is “whether the institution acted in good faith and
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`dealt fairly with its student body,” which in turn looks to “the bona fides of the decisionmaking
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`and the fairness of its implementation.” 605 A.2d at 784. Monmouth, however, morphs the inquiry
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`into something else: “whether the university acted in good faith when it [made a decision].” (Def.’s
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`Moving Br. 5 (citing Mitelberg, 2021 WL 2103265, at *3).) That framing ignores half of the
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`Beukas standard—namely, whether Monmouth dealt fairly with its students when implementing
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`its decision to charge students the same tuition for the spring 2020 semester.
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`With the proper question set, the Court finds that Monmouth has not advanced clear error
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`regarding the First Amended Complaint’s allegations of unfair dealings with Monmouth’s
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`students. To the contrary, and as already found by the Court, Plaintiffs’ First Amended Complaint
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`alleges numerous facts showing that Monmouth acted in less than good faith and dealt unfairly
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`with its students. Plaintiffs’ First Amended Complaint alleges that, before the pandemic,
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`Monmouth did not offer online undergraduate degrees and offered limited undergraduate and
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`graduate virtual coursework. (FAC ¶¶ 36, 58.) Taking that allegation as true and taking all
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`inferences in favor of Plaintiffs, the Court can reasonably infer that Monmouth was not prepared
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`to offer widespread virtual courses at the onset of the pandemic and that Monmouth may have
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`therefore thought to reduce the costs of those courses. Yet Monmouth chose to charge the same
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`for virtual and in-person classes in the spring 2020 semester. As another example, Plaintiffs’ First
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`Amended Complaint alleges that, during the pandemic, in the summer 2020 semester, Monmouth
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`reduced the cost for virtual courses by 15% vis-à-vis in-person courses. (Id. ¶ 39.) Taking that
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`allegation as true and all inferences in favor of Plaintiffs, the Court can reasonably infer that
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`Monmouth recognized the premium placed on in-person classes by deciding to reduce the cost for
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`virtual courses. Yet Monmouth appears to have arbitrarily charged students the same for in-person
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`and virtual courses in spring 2020. Cf. Wilson v. Amerada Hess Corp., 773 A.2d 1121, 1130 (N.J.
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`2001) (“[A] party exercising its right to use discretion in setting price under a contract breaches
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`the duty of good faith and fair dealing if that party exercises its discretionary authority arbitrarily,
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`unreasonably, or capriciously, with the objective of preventing the other party from receiving its
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`reasonably expected fruits under the contract.”).
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`Monmouth’s counterarguments do not sway the Court. Monmouth first argues that
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`“Plaintiffs did not allege the transition to remote instruction was made in bad faith.” (Def.’s
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`Moving Br. 5.) That argument fails, however, for the reasons above: in determining the fairness of
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`Monmouth’s conduct under the quasi-contract, the relevant decision is Monmouth’s decision to
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`charge the same rate of tuition for virtual courses not Monmouth’s decision to switch to virtual
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`education. Monmouth also argues that the summer 2020 reduction in tuition was a “subsequent
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`remedial measure” and therefore inadmissible under Federal Rule of Evidence 407. (Id. at 6-8.)
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`This argument fails because it rests on the flawed presumption that the Court is weighing evidence
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`and making evidentiary determinations at this stage. See Mele v. Fed. Rsrv. Bank of N.Y., 359 F.3d
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`251, 257 (3d Cir. 2004) (“It is black-letter law that [a] motion to dismiss for failure to state a claim
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`. . . is to be evaluated only on the pleadings.” (alterations in original) (quoting A.D. Bedell
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`Wholesale Co. v. Philip Morris, Inc., 263 F.3d 239, 266 (3d Cir. 2001))); Ricciuiti v. N.Y.C. Transit
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`Auth., 941 F.2d 119, 123 (2d Cir. 1991) (“The fact that a pleading contains references to documents
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`that may eventually be ruled inadmissible in evidence is not a proper basis for dismissal pursuant
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`to Rule 12(b)(6).”).
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`Finally, Monmouth argues that the Court erred because it misconstrued the quasi-contract
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`between Monmouth and its students. (Def.’s Moving Br. 8-9.) Monmouth appears to suggest that
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`the Court based its holding on the remedy sought and not Monmouth’s bad-faith or arbitrary
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`conduct in performing the quasi-contract. (See id. at 8.) Not so. From what the Court can glean at
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`this early stage, the quasi-contract at issue is an exchange of tuition payments for education. Part
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`of that education is a premium for the in-person experience that Monmouth advertised. So to fulfill
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`its end of the bargain, Monmouth had to deliver education with an in-person experience; it could
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`not because the State demanded that all institutions of higher education close their campuses.
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`Instead, Monmouth delivered education without an in-person experience but, in performing its end
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`of the quasi-contract, decided to charge students the same tuition as if those students received the
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`in-person experience. Viewed in this light, Monmouth’s failure to provide pro-rated tuition is
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`simply another allegation of Monmouth’s failure to perform the quasi-contract. See Gourdine v.
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`Felician Coll., 2006 WL 2346278, at *5 (N.J. Super. Ct. App. Div. Aug. 15, 2006) (per curiam)
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`(“[W]e do not interpret Beukas to require financial support in exchange for ending a program.
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`Rather, we consider that as an aspect of the manner in which the institution sought to ease the
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`closing of the program that must be considered in the context of whether the institution acted in
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`good faith.” (emphasis added)).
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`B.
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`The Court Does Not Reconsider Its Opinion Based on Non-Controlling
`Contrary Authority.
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`Monmouth next advances that the Court overlooked two factually similar cases from this
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`District, Mitelberg v. Stevens Institute of Technology and Kostic v. Seton Hall University. Neither
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`case, however, merits reconsideration of the Court’s Opinion. Reconsideration requires controlling
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`law, and neither case is controlling. See Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (“A
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`decision of a federal district court judge is not binding precedent in either a different judicial
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`district, the same judicial district, or even upon the same judge in a different case.” (citation
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`omitted)); Threadgill v. Armstrong World Indus., Inc., 928 F.2d 1366, 1371 (3d Cir. 1991)
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`(“Where a second judge believes that a different result may obtain, independent analysis is
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`appropriate.” (citation omitted)). Although this reason alone routs Monmouth’s argument, the
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`Court considers whether the substance of these two cases alters the Court’s prior Opinion.
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`As Monmouth notes, both cases reason that a university’s reservation-of-rights policy
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`defeats any contract claim. In Mitelberg, the court found that, through its course catalog, the
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`defendant Stevens Institute of Technology “expressly retained the right to alter requirements and
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`procedures.” 2021 WL 2103265, at *4. Specifically, the defendant’s policy stated that it “reserves
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`the right to change the information, regulations, requirements, procedures and policies announced
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`in th[e] catalog including but not limited to: requirements for admission; graduation or degrees;
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`scheduling; credit or content of courses; fees; and calendars.” Id. (alteration in original) (citation
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`omitted). Similarly, in Kostic, the court found that “[t]ransitioning classes to remote learning due
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`to the COVID-19 pandemic no doubt falls within Seton Hall’s authority reserved in the Course
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`Catalogue.” Slip op. at 4. As relevant there, the defendant Seton Hall University’s course catalogue
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`provided that the university “reserves the right to . . . change the time and place of any course
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`offered” and further “reserves the right to close, cancel or modify any academic program.” Id.3
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`The Court respectfully disagrees with its sister courts. Conclusions about whether a
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`reservation-of-rights clause defeats a quasi-contract necessarily turn on determining the proper
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`scope of the quasi-contract itself. The courts in Mitelberg and Kostic appear to construe the
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`quasi-contract (and the universities’ consequent obligations) as narrowly applying to courses,
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`credits, and professors. See Mitelberg, 2021 WL 2103265, at *4; Kostic, slip op. at 4-5. Because
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`those courts construe the quasi-contract narrowly, they construe the reservation-of-rights
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`provisions as broadly applying to the universities’ decisions to switch to virtual education. By
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`contrast, this Court finds that questions about the proper scope of the quasi-contract and the
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`application of Monmouth’s reservation-of-rights policy are best left for discovery and summary
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`3 The Court also notes that both cases rely heavily on Judge McNulty’s decision in Dougherty.
`The Court discussed that decision at length in its Opinion; Monmouth’s decision to provide
`additional support for that case thus does little to persuade the Court to reconsider.
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`judgment. See, e.