IN THE COURT OF CLAIMS OF OHIO
STATE OF OHIO
CAITLYN WAITT
Plaintiff,
-vsKENT STATE UNIVERSITY
c/o Todd Diacon, President
Executive Offices, 2nd Floor Library
Kent State University
800 E. Summit St
Kent, Ohio 44240
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

CASE NO.
JUDGE:
COMPLAINT
(Jury Demand Respectfully
Requested)

CLASS ACTION COMPLAINT
Now comes Plaintiff, Caitlyn Waitt (“Plaintiff”), by and through her undersigned counsel,
brings this class action against Defendant, Kent State University (the “University” or
“Defendant”), and alleges as follows based upon information and belief, except as to the
allegations specifically pertaining to her, which are based on personal knowledge:
NATURE OF THE ACTION
1.

This is a class action lawsuit on behalf of all persons who paid tuition and/or fees

to attend Kent State University for an in-person, hands-on education for the Spring 2020 semester,
Summer 2020 semester, and any future semester, and had their course work moved to online
learning. Such persons paid all or part of the tuition for this semester that ranged from
approximately $4,633.43 to $9,071.43 for undergraduate students, and ranged from approximately
$5,073.30 to $10,167.30 for graduate students; housing fees of approximately $5,853 (if they lived
in University housing); meal plans ranging from approximately $516 to $2,624; and mandatory
fees for the semester including the University’s “General Fee” and “Enrollment Fee” (collectively,
1
Ohio Court of Claims
By: GLB

Case #: 2020-00392JD
Envelope ID: 27378

Filed Date: 6/17/2020 3:16 PM

 the “Mandatory Fees”). Kent State University has not refunded any amount of the tuition or any
of the Mandatory Fees, even though it canceled all face-to-face, in-person classes on March 10,
2020; implementing online distance learning starting on March 16, 2020. The University has also
not refunded any amount of the housing or dining fees for students who were unable to move out
prior to March 30, 2020.
2.

Because of the University’s response to the Coronavirus Disease 2019 (“COVID-

19”) pandemic, on or about March 16, 2020, the University also stopped providing any of the
services or facilities the Mandatory Fee was intended to cover.
3.

The University’s failure to provide the services which tuition and the Mandatory

Fees were intended to cover since approximately March 10, 2020 is a breach of contract and
breach of the covenant of good faith and fair dealing between the University and Plaintiff and the
members of the Class and is unjust.
4.

The University only provided pro-rated refunds to students for housing and dining

who vacated their campus housing on or before March 30, 2020. Those students who did not move
out of University housing until after March 30 should also be entitled to a pro-rated refund.
5.

In short, Plaintiff and the members of the Class have paid tuition for a first-rate

education and an on-campus, in-person educational experience, with all the appurtenant benefits
offered by a first-rate university, and were provided a materially deficient and insufficient
alternative, which constitutes a breach of the contracts entered into by Plaintiff and the Class with
the University.
6.

As to the Mandatory Fees, Plaintiff and the Class have paid fees for services and

facilities which are simply not being provided; this failure also constitutes a breach of the contracts
entered into by Plaintiff and the Class with the University.

2

 7.

Plaintiff seeks, for herself and Class members, the University’s disgorgement and

return of the pro-rated portion of its tuition, housing, dining, and Mandatory Fees, proportionate
to the amount of time that remained in the Spring Semester 2020, and the entirety of the Summer
2020, and any future semesters when the University closed and switched to online distance
learning or, in the case of housing and dining, for any members of the Class that moved out of
University housing after March 30, 2020, a pro-rated portion of the housing and dining fee for the
days left in the semester after they moved out.
PARTIES
8.

Plaintiff, Caitlyn Waitt, is a citizen of the Commonwealth of Pennsylvania. She

paid to attend the Spring 2020 semester at Kent State University as an undergraduate student, and
at all times relevant to the causes of action herein, was enrolled at the University. Plaintiff paid out
of state tuition for the Spring 2020 semester to enable her to obtain a full and fulsome, in-person,
on-campus education experience, and enable her to participate in the activities and to utilize the
services covered by the Mandatory Fees that she paid. She has not been provided a pro-rated refund
of the tuition or the Mandatory Fees she paid.
9.

Defendant is a “State university” as defined by Ohio Rev. Code § 3345.011 and,

pursuant to such statute, is a “body politic and corporate.” Defendant is located and has its principal
place of business in Kent, Ohio.
JURISDICTION AND VENUE
10.

Plaintiff restates each and every allegation set forth in the preceding paragraphs of this

Complaint as if fully rewritten.

11.

This Court has jurisdiction over this dispute, and venue is proper in this Court,

pursuant to R.C. 2743.02(A) and R.C. 2743.03(A).

3

 FACTS
12.

Plaintiff restates each and every allegation set forth in the preceding paragraphs of

this Complaint as if fully rewritten.
13.

Plaintiff and Class Members paid for themselves or for full-time students to attend

Kent State University Spring 2020 semester, including tuition, housing, and dining (if they lived
on campus), and the Mandatory Fees. The Spring 2020 semester at the University began on or
about January 13, 2020. The Spring 2020 semester ended on or around May 6, 2020.
14.

Class Members paid for themselves or for full-time students to attend Kent State

University Summer 2020 semester, including tuition and Mandatory Fees. The Summer 2020
semester began on or about May 14, 2020 and is scheduled to end on or about August 12, 2020.
15.

Tuition costs at the University for the Spring and Summer 2020 semesters for a

full-time student were as follows:
For Undergraduates

4

 For Graduates

16.

Plaintiff and the members of the Class paid all or part of the applicable tuition for

the benefit of on-campus live interactive instruction and an on campus educational experience
throughout the entire semester.
17.

Housing at Kent State University for the Spring 2020 semester cost, on average,

approximately $5,853, and dining fees ranged from approximately $516 to $2,624. The members
of the Class who lived on campus during the Spring 2020 semester paid the applicable cost for the
benefit of on-campus housing and meals throughout the entire semester.
18.

Plaintiff and the members of the Class paid the Mandatory Fees for the semester so

they could benefit throughout the semester from the University’s facilities and in-person services,
organizations, and recreation.

5

 In Response to COVID-19, the University Closed Campus, Preventing Access to its Facilities,
Services, Housing, and Dining, and Cancelled All In-Person Classes
19.

On or about March 10, 2020, the University announced that it was ceasing all face

to face in-person classes immediately, and that classes would resume on March 16, 2020, using
remote online programs only. The University anticipated that face to face in-person classes would
resume on April 13, 2020. This announcement strongly encouraged students not to return to
campus following their extended Spring Break.
20.

On or about March 10, 2020, the University cancelled all sports and events,

discouraging large gatherings of people and students. The University also closed the Recreation
and Wellness Center through April 13.
21.

On or about March 13, 2020, the University extended remote online learning and

cancelled all face to face in-person classes through the remainder of the Spring 2020 semester. The
University subsequently extended remote online learning throughout the entire Summer 2020
semester.
22.

In its March 13 announcement, the University informed students of the possibility

of obtaining a refund for housing and dining if students were to vacate prior to March 30, 2020.
23.

On or about March 16, 2020, the University announced that it was reducing on-

campus operations, closing, and locking most of the facilities except those that it deemed necessary
and essential.
24.

On or about March 20, 2020, the University offered students the ability to switch

from a traditional letter-grading system to a Pass/No Pass grading system.
25.

In its March 20 announcement, the University postponed the in-person ceremony

for the Spring 2020 graduates.
6

 26.

The University has not held any in-person classes since March 10, 2020. Classes

that have continued since March 16, 2020 have only been offered in a remote online format with
no in-person instruction or interaction.
27.

In tacit acknowledgement that the online education system is substantially different

and inadequate, the University allowed students to receive a “Pass/No Pass” grade rather than the
traditional letter grading system.
28.

On or about March 30, 2020, the University announced that refunds will be issued

for parking, housing, and dining for those students who vacated by 5:00 p.m. on March 30. The
refunds were to be issued by April 30, 2020.
The University’s Online Courses Are Subpar to In-Person Instruction, For Which Plaintiff
and the Class Members Contracted with the University to Receive by Paying Tuition and Fees
29.

Students attending the Kent State University’s Spring 2020 semester did not choose

to attend an online institution of higher learning, but instead chose to enroll in the University’s inperson educational program.
30.

On its website, the University markets its on-campus experience as a benefit of

enrollment, touting extensive on-campus or neighboring shopping, dining, recreation, clubs and
organizations, health and wellness facilities, and other amenities:

7

 31.

The online learning options being offered to the University’s students are sub-par

in practically every aspect as compared to what the educational experience afforded Plaintiff and
the members of the Class once was. During the online portion of the semester, the University
principally posted power point presentations and reading assignments online, and the University’s
students were left to self-learn the materials. Therefore, there was a lack of classroom interaction
among teachers and students and among students themselves in multiple arenas that is instrumental
in interpersonal skill development, bonding, safety and all important networking. Further, the
online formats being used by Kent State University do not require memorization or the
development of strong study skills given the absence of any possibility of being called on in class
and the ability to consult books and other materials when taking exams.
32.

Students have been deprived of the opportunity for collaborative learning and in-

person dialogue, feedback, and critique.

8

 33.

Further, the ability to change to a Pass/No Pass system provides an educational

leniency that does not require the motivation or discipline that would be otherwise required under
the usual in-person letter grading system.
34.

Access to facilities such as libraries, laboratories, computer labs, and study rooms,

are also integral to a college education, and access to the myriad activities offered by campus life
fosters social development and independence, and networking for future careers, all substantial
and materials parts of the basis upon which Kent State University can charge the tuition it charges,
are not being provided.
35.

The University has not made any refund of any portion of the tuition Plaintiff and

the members of the Class paid for the Spring 2020 or Summer 2020 semester for the period it
moved to subpar on-line distance learning.
36.

Nor has the University refunded any portion of the Mandatory Fees it collected

from Plaintiff and the members of the Class for the Spring 2020 semester even though it closed or
ceased operating the services and facilities for which the Mandatory Fees were intended to pay
for.
37.

There are also members of the Class who were not able to move out prior to March

30, 2020, who should be entitled to a pro-rated portion of housing and dining after moving out.
38.

Plaintiff and the Class members are therefore entitled to a pro-rated refund of the

tuition and Mandatory Fees they paid for the Spring 2020 semester, Summer 2020 semester, and
any future semesters, and any students who were unable to move out until after March 30, 2020
are entitled to a pro-rated refund of the housing and dining fees paid for the Spring 2020 semester
for the remaining days of that semester after they left the campus.

9

 CLASS ACTION ALLEGATIONS
39.

Plaintiff brings this case individually and, pursuant to Rule 23 of the Ohio Rules of

Civil Procedure, on behalf of the class defined as all persons who paid tuition, housing and dining
(for those who lived on-campus) and/or the Mandatory Fees for a student to be enrolled at Kent
State University during the Spring 2020 semester, Summer 2020 semester, and any future semester
and had their class(es) were moved to online learning (the “Class”).
40.

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

proposed herein under the criteria of Rule 23 of the Ohio Rules of Civil Procedure.
41.

The requirements of Rule 23(a)(1) have been met. The Class is so numerous that

joinder of all members is impracticable. Although the precise number of Class members is
unknown to Plaintiff, the University has reported that approximately 40,817 students were enrolled
in the Spring 2020 semester. The number of Summer 2020 students and future semester enrollment
is unknown at this time. The identity of all such students is known to the University and can be
identified through the University’s records. 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.
42.

The requirements of Rule 23(a)(2) have been met. There are questions of law and

fact common to the members of the Class including, without limitation:
a. Whether the University accepted money from Plaintiff and the Class
members in exchange for the promise to provide an in-person and oncampus live education, as well as certain facilities and services
throughout the Spring 2020 semester;

10

 b.

Whether Defendant breached its contracts with Plaintiff and the
members of the Class by failing to provide them with an in-person and
on-campus live education after March 10, 2020;

c. Whether Defendant breached its contracts with Plaintiff and the
members of the Class by failing to provide the services and facilities to
which the Mandatory Fees pertained after mid-March 2020;
d. Whether Defendant breached its contracts with members of the Class by
failing to issue pro rata refunds of fees paid for University housing and
dining for students who could not vacate prior to March 30, 2020;
e. Whether Defendant intentionally interfered with the rights of the
Plaintiff and the Class when it moved all in-person classes to a remote
online format, cancelled all on-campus events, strongly encouraged
students to stay away from campus, and discontinued services for which
the Mandatory Fees were intended to pay, all while retaining the tuition,
housing, dining and Mandatory Fees paid by Plaintiff and the Class; and
f. The amount of damages and other relief to be awarded to Plaintiff and
the Class members.
43.

The requirements of Rule 23(a)(3) have been met. Plaintiff’s claims are typical of

the claims of the members of the Class because Plaintiff and the other Class members each
contracted with Defendant for it to provide an in-person and on-campus live education for the
tuition they paid, on-campus housing and dining options (for those who lived on-campus), and the
services and facilities for the Mandatory Fees that they paid, that the University stopped providing
in mid-March.

11

 44.

The requirements of Rule 23(a)(4) have been met. Plaintiff is an adequate class

representative because her interests do not conflict with the interests of the other Class members
who she seeks to represent, Plaintiff has retained competent counsel who are 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 her counsel.
45.

Class certification of Plaintiff’s claims is also appropriate pursuant to Rule 23(b)(3)

because the above questions of law and fact that are common to the Class predominate over
questions affecting only individual members of the Class, and because a class action is superior to
other available methods for the fair and efficient adjudication of this litigation. The damages or
financial detriment suffered by individual Class members are relatively small compared to the
burden and expense of individual litigation of their claims against the University. It would, thus,
be virtually impossible for the Class, on an individual basis, to obtain effective redress for the
wrongs committed against them. Furthermore, individualized litigation would create the danger
of inconsistent or contradictory judgments arising from the same set of facts. Individualized
litigation would also increase the delay and expense to all parties and the court system from the
issues raised by this action.

By contrast, the class action device provides the benefits of

adjudication of these issues in a single proceeding, economies of scale, and comprehensive
supervision by a single court, and presents no unusual management difficulties under the
circumstances.
FIRST CLAIM FOR RELIEF
BREACH OF CONTRACT
(On Behalf of Plaintiff and the Class)
46.

Plaintiff repeats and re-alleges the factual allegations above as if fully alleged

herein.
12

 47.

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

48.

By paying the University tuition, housing and dining (if living on-campus), and the

Mandatory Fees for the Spring 2020 semester, the University agreed to, among other things,
provide an in-person and on-campus live education, University housing and dining options, as well
as the services and facilities to which the Mandatory Fees they paid pertained throughout the
Spring 2020 semester. As a result, Plaintiff and each member of the Class entered into binding
contract with the University.
49.

The University has failed to provide this contracted for in-person and on-campus

live education, University housing and dining options, as well as the services and facilities to which
the Mandatory Fees pertained throughout the Spring 2020 semester, yet has retained monies paid
by Plaintiff and the Class for a live in-person education and access to these housing, dining,
services and facilities during the entire Spring 2020 semester. Plaintiff and the members of the
Class have therefore been denied the benefit of their bargain.
50.

Plaintiff and the members of the Class have suffered damage as a direct and

proximate result of the University’s breach in the amount of the pro-rated portion of the tuition
and Mandatory Fees they each paid during the remainder of the Spring 2020 semester, Summer
2020 semester, and any future semesters, as well as any unused housing and meal plans for those
Class members who moved out after March 30, 2020.
51.

The University should return such portions to Plaintiff and each Class Member.
SECOND CLAIM FOR RELIEF
UNJUST ENRICHMENT
(On Behalf of Plaintiff and the Class)

52.

Plaintiff repeats and re-alleges the factual allegations above, as if fully alleged

herein.
13

 53.

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

in the alternative to the First Claim for Relief.
54.

Plaintiff and members of the Class conferred a direct, monetary benefit on the

University in the form of tuition, housing and dining (if living on-campus), and Mandatory Fees
paid for the benefit of an in-person and on-campus live education, University housing and dining
options, and the services and facilities to which the Mandatory Fees pertained. The payment of
tuition and Mandatory Fees for the Spring 2020 semester were intended to provide these benefits
to Plaintiff and the members of the Class throughout the Spring 2020 semester. Similarly, the
payment of University housing and dining fees for the Spring 2020 semester conferred a benefit
on the University that was intended to provide housing and dining for such students throughout
the Spring 2020 semester.
55.

The University has retained the full benefit of the tuition and Mandatory Fee

payments by Plaintiff and the members of the Class for the Spring 2020 semester, Summer 2020
semester, and any future semesters, yet has failed to provide the quality of education and services
and facilities for which tuition and the Mandatory Fees were paid, including those for an in-person
and on-campus live education, and access to the University’s services and facilities. In addition,
the University has retained the full benefit of the housing and dining fees paid by those Class
members who were unable to move out prior to March 30, 2020.
56.

The University’s retention of the portion of the tuition and Mandatory Fees during

the period of time the University has been closed, and Plaintiff and the members of the Class have
been denied an in-person and on-campus live education and access and the services and facilities
for which the Mandatory Fees were paid, is unjust and inequitable under the circumstances.

14

 Similarly, the University’s retention of the portion of the value of housing and dining fees
following the mandatory vacating of Class members is also unjust and inequitable.
57.

Accordingly, the University should return the prorated portion of the tuition and

Mandatory Fees that Plaintiff and the Class members each paid during remainder of the Spring
2020 semester, as well as any unused housing and meal plans for those who were unable to move
out of University housing by March 30, 2020.
THIRD CLAIM FOR RELIEF
CONVERSION
(On Behalf of Plaintiff and the Class)
58.

Plaintiff repeats and re-alleges the factual allegations above, as if fully alleged

59.

In the alternative to the First Claim For Relief, Plaintiff brings this claim

herein.

individually and on behalf of the members of the Class.
60.

Plaintiff and members of the Class have a right to the services, facilities, housing,

dining, and face to face instruction that was supposed to be provided in exchange for their
payments of tuition and Mandatory Fees to the Universities.
61.

The University intentionally interfered with the rights of the Plaintiff and the Class

when it moved all in-person classes to a remote online format, cancelled all on-campus events,
strongly encouraged students to stay away from campus, and discontinued services for which the
Mandatory Fees were intended to pay, all while retaining the tuition, housing, dining and
Mandatory Fees paid by Plaintiff and the Class.
62.

Class members demanded the pro-rata return of their tuition, housing, dining and

Mandatory Fees for the period of time in the semester when the Universities switched to remote

15

 online learning, encouraged students to stay off campus, and stopped providing the services for
which the Mandatory Fees were intended to pay.
63.

The University’s retention of the tuition, housing, dining and Mandatory Fees paid

by Plaintiff and the Class without providing the services for which they paid, deprived Plaintiff
and Class of the benefits for which the tuition and Mandatory Fees were paid.
64.

The University’s interference with the services for which Plaintiff and the Class

paid harmed Plaintiff and the Class in that the University have retained monies that rightfully
belong to the Plaintiff and Class.
65.

Plaintiff and the Class are entitled to the return of the pro-rated amounts of tuition

and Mandatory Fees for the remainder of the Spring 2020 semester, Summer 2020 semester, and
any future semesters, when in-person and on-campus live education, and access to the University’s
services and facilities were unavailable. Similarly, Plaintiff and the Class are entitled to the return
of the pro-rated amount of housing dining if they moved out after March 30, 2020.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that judgment be entered in favor of Plaintiff
and the Class against Defendant as follows:
a. For an order certifying the Class under Rule 23 of the Ohio Rules of
Civil Procedure and naming Plaintiff as representative of the Class and
Plaintiff’ attorneys as Class Counsel to represent the Class;
b.

For an order finding in favor of Plaintiff and the Class on all counts
asserted herein;

c. For compensatory damages in an amount to be determined by the trier
of fact;

16

 d. For an order of restitution and all other forms of equitable monetary
relief;
e. Awarding Plaintiff’ reasonable attorneys’ fees, costs, and expenses;
f. Awarding pre- and post-judgment interest on any amounts awarded;
and,
g. Awarding such other and further relief as may be just and proper.
JURY DEMAND
In accordance with R.C. 2743.11 and Rule 38(B) of the Ohio Rules of Civil Procedure,
Plaintiff hereby demands a trial by jury on any and all issues in this action so triable.

Dated: June 17, 2020

Respectfully submitted,

THE LAW OFFICES OF SIMON & SIMON
By: /s/ James L. Simon
James L. Simon (OH No. 0089483)
Andrew J. Simon
5000 Rockside Road, Suite 520
Independence, OH 44131
Telephone: (216) 525-8890
Facsimile: (216) 642-5814
Email: james@bswages.com
BENDAU & BENDAU PLLC
By: /s/ Clifford P. Bendau, II
Clifford P. Bendau, II (OH No. 0089601)
P.O. Box 97066
Phoenix, Arizona 85060
Telephone AZ: (480) 382-5176
Fax: (480) 304-3805
Email: cliffordbendau@bendaulaw.com

17

 s/ Gary F. Lynch
Gary F. Lynch (pro hac vice forthcoming)
Edward W. Ciolko (pro hac vice forthcoming)
CARLSON LYNCH LLP
1133 Penn Avenue
5th Floor
Pittsburgh, PA 15222
P (412) 322-9243
F. (412) 231-0246
E. glynch@carlsonlynch.com
eciolko@carlsonlynch.com

Counsel for Plaintiff and Proposed Class

18