here. - Florida Coastal School of Law

Case 1:12-cv-20785-MGC Document 5 Entered on FLSD Docket 03/02/2012 Page 1 of 22 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION 

TAYLOR CASEY, AUDRA AWAI, 

CLIFFORD KLEIN, JOYCELYN Case No. 12-20785-CIV-MGC 

STINSON, MELISSA SHIPMAN, 

and AMY KISZ, on behalf of 

themselves and all others similarly situated, 

v. 

Plaintiffs, 

FLORIDA COASTAL SCHOOL 

OF LAW, INC., and DOES 1-20, 

March 2, 2012 

Defendants. 

/ 

MOTION TO DISMISS THE COMPLAINT 

AND MEMORANDUM OF POINTS AND AUTHORITIES 

IN SUPPORT OF MOTION TO DISMISS THE COMPLAINT OR, IN THE 

ALTERNATIVE, TO TRANSFER THE ACTION TO THE MIDDLE DISTRICT 

OF FLORIDA, BY FLORIDA COASTAL SCHOOL OF LAW 

OF COUNSEL: 

VENABLE LLP 

ROCKEFELLER CENTER 

1270 AVENUE OF THE AMERICAS, 24 TH FLOOR 

NEW YORK, NEW YORK 10020 

TELEPHONE: (212) 307-5500 

RUSSOMANNO & BORRELLO, P.A. 

MUSEUM TOWER, PENTHOUSE 2800 

150 WEST FLAGLER STREET 

MIAMI, FLORIDA 33130 

TELEPHONE: (305) 373-2101 

ATTORNEYS FOR DEFENDANT FLORIDA COASTAL SCHOOL OF LAW


MOTION TO DISMISS PLAINTIFFS’ COMPLAINT 

AND MEMORANDUM OF LAW IN SUPPORT 

Pursuant to Rules 9(b), 12(b)(3) and 12(b)(6) of the Federal Rules of Civil Procedure, and 

based on the following memorandum of law, the Declaration of C. Peter Goplerud III, dated 

February 23, 2012 (the “Goplerud Decl.”) and the Declaration of Herman J. Russomanno III, 

dated March 2, 2012, with accompanying exhibit (the “Russomanno Decl.”), Defendant Florida 

Coastal School of Law (“FCSL”), through its undersigned counsel, respectfully moves the Court 

for entry of an order dismissing Plaintiffs’ Complaint (“Compl.” or “Complaint”) dated February 

1, 2012 in its entirety, and with prejudice. 

PRELIMINARY STATEMENT 

The Complaint’s principal grievance is that ABA regulations, which govern every 

accredited law school in the country, do not require the reporting of detailed post-graduate 

information, even as the Complaint concedes that the ABA is already undertaking efforts to 

reform its government-authorized reporting requirements. See, e.g., Compl. 11. This Court is 

not the appropriate forum, nor is FCSL the appropriate target, for a crusade against the ABA or 

legal education in America. Consequently, Plaintiffs’ campaign against the ABA and the legal 

industry does not translate into viable fraud-based claims against FCSL. 

Based on nothing more than “reviews of advertising and marketing material, various 

publicly available information and interviews of former students,” id. Preamble, Plaintiffs claim 

that FCSL defrauds consumers by complying with reporting standards that are “mandated” by the 

ABA. Id. 31. The Complaint does not allege that FCSL has deviated from these ABAmandated 

standards in any way. Nor does it allege that FCSL’s post-graduation employment and 

salary data is, or ever has been, false. 

The Complaint alleges that the six named Plaintiffs in this action comprise: a graduate who 

“did not even bother sitting for a bar exam”; attorneys actively practicing in Jacksonville, 

Tennessee and North Carolina—two of whom own and operate their own law firms; a 2011 

graduate “currently studying for the Maryland Bar Exam”; and a member of the State Attorney’s 

office in Miami. Id. 15-20. Each of these named Plaintiffs makes the identical, implausible 

claim that if he or she had a more detailed understanding of FCSL’s post-graduate employment 

statistics, he or she “would have elected to either pay less to [FCSL] or perhaps not attend the 

school at all.” Id. 15-20 (emphases added). Plaintiffs seek to pursue their claims on behalf of a 

1


class of all current FCSL students and all FCSL graduates “within the [unspecified] statutory 

period.” Yet the Complaint fails to provide any common reasons why these lawyers and law 

students chose to attend FCSL, whether they ever saw and relied on any statements by FCSL in 

deciding to enroll, how their law degrees affected their career choices, or the extent to which these 

varied individuals benefited from their respective legal educations. These allegedly aggrieved 

named Plaintiffs claim entitlement to, among other things, restitution and disgorgement in the 

amount of $100 million, punitive damages, injunctive relief and attorneys’ fees. Id. Prayer for 

Relief. 

Each of the consumer fraud, common-law fraud and negligent misrepresentation claims is 

legally unsustainable. First, the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) 

claim fails for three reasons: FCSL’s ABA-compliant employment reporting is encompassed 

within FDUTPA’s safe harbor provision applicable to government mandated or authorized 

disclosures. In addition, Plaintiffs have not plausibly alleged that FCSL’s employment and 

salary disclosures are materially misleading. Lastly, Plaintiffs cannot plead legally sufficient 

theories of injury and damages. Second, Plaintiffs’ fraud claim is fatally flawed because it does 

not properly allege misrepresentation, reliance and damages. Third, the related negligent 

misrepresentation claim suffers from similar, incurable defects. Fourth, all of Plaintiffs’ fraudbased 

claims fail to satisfy the twin pleading requirements of Federal Rule of Civil Procedure 

9(b) and Twombly. There are no plausible or specific allegations about how and why they chose 

to attend FCSL instead of other options; what specific statements they each allegedly read and 

relied on; and how the education they received and their personal performances at FCSL 

impacted their post-graduate employment prospects. 

Fifth, all of the Plaintiffs’ injuries or claims that pre-date February 1, 2008 are barred by 

Florida’s four-year statute of limitations, applicable to every cause of action. Thus, several of 

the named Plaintiffs’ alleged injuries fall outside the statute. And, sixth, the Complaint is 

improperly venued in this District and should be dismissed pursuant to Federal Rule of Civil 

Procedure 12(b)(3) or, alternatively, transferred to the Middle District of Florida. 

For all of these reasons, the Complaint should be dismissed in its entirety and with 

prejudice. 

2


STATEMENT OF RELEVANT ALLEGATIONS 

Every allegation in the Complaint, except the few concerning Plaintiffs’ own purported 

actions, is made entirely on Plaintiffs’ “information and belief.” Compl. Preamble. 

Plaintiffs And The Putative Class 

Plaintiff Awai graduated from FCSL in 2008 and “did not even bother sitting for a bar 

exam.” Id. 16. Plaintiff Casey graduated from FCSL in 2010 and “opened up his own law 

firm” in 2011, which he “currently still operates.” Id. 15. Plaintiff Klein graduated from FCSL 

in 2010, and is “a practicing attorney in Miami, Florida who is currently a member in good 

standing of the Florida bar.” Id. 17. “Following his graduation from law school, [Plaintiff] 

Klein took a position in the Miami office for the Florida State Attorney’s Office.” Id. Plaintiff 

Shipman graduated from FCSL in 2010 and “currently owns and operates her own law firm.” Id. 

19. She “is a practicing attorney in Tennessee [and] is currently a member in good standing of 

both the Tennessee and Florida Bars.” Id. Plaintiff Kisz “is a practicing attorney in North 

Carolina who is currently a member in good standing of both the North Carolina and Florida 

Bars.” Id. 20. She graduated from FCSL in 2010 and “currently works in part-time, temporary 

positions doing mostly document review.” Id. Plaintiff Stinson graduated from FCSL in 2011, 

and then “moved to Maryland and is currently studying for the Maryland Bar Exam.” Id. 18. 

Plaintiffs purport to represent a class of “all persons who currently attend or graduated 

from [FCSL] during the relevant time period.” Id. Preamble; see also id. 85. Principally, 

Plaintiffs claim entitlement to a “refund[] and reimburse[ment]” of tuition paid by every student 

who attended FCSL during the relevant period, along with “attorneys’ and experts’ fees.” Id. 

12. The Complaint does not define “the relevant time period” or “the statutory period.” Id. 

Preamble, 85. 

The Alleged Fraud 

The Complaint first makes numerous allegations regarding negative conditions in the 

legal job market and the economy generally. See, e.g., id. 1, 6, 44, 54-58, 60, 63-64, 76. 

There is no allegation that FCSL is somehow responsible for these conditions, or that 

information regarding these economic conditions is anything but publicly available. 

Next, Plaintiffs contend that FCSL’s alleged failure to differentiate among types of 

employment when publishing its employment statistics, and its publication of post-graduation 

salary data based on information provided by a small group of students rather than a larger 

3


group, amounts to fraud. See, e.g., id. 4, 6. In support of this allegation, Plaintiffs attach two 

exhibits containing FCSL employment information from 2010 and 2007, and bar passage data 

from 2008. See Compl. Exs. 1-2. Exhibit 1, containing the 2010 information, clearly explains 

that “29% of employed graduates shar[ed] their salary.” Id. Ex. 1. Exhibit 1 also contains three 

pages and four graphs of employment information, including employment rates, areas of practice 

and the percentage of graduates working in bar admission-required or JD-preferred positions. Id. 

Exhibit 2 details the bar passage rates for 2008, the employment rate for 2007 and a breakdown 

of graduates’ areas of practice. Id. Ex. 2. Plaintiffs allege that “the salary information that 

[FCSL] reported prior to July 2011 does disclose the percentage of employed graduates who 

actually reported their salary information.” Id. 34 (emphasis added). Plaintiffs do not allege 

that FCSL guaranteed them employment upon graduation. Id. 15-20. 

The ABA And Its Regulations 

FCSL “is accredited by the ABA’s Section of Legal Education and Admissions to the 

Bar” (the “ABA”). Id. 31. As the Complaint alleges, FCSL publishes its employment and 

salary statistics “[p]ursuant to” the requirements of the ABA, which “mandate” that such 

information be published by all accredited law schools. Id. 31-32; see also id. 77-79 (“The 

[ABA] is responsible for accrediting and regulating all accredited legal institutions. . . . [The 

ABA] is directly responsible for regulating the reporting of post-graduate placement data.”). 

According to the Complaint, “law schools . . . satisfy [ABA requirements] by reporting jobs that 

are temporary or part-time” and including those for which a law degree is not required. Id. 31. 

Notably, the Complaint does not allege any of the following: (i) that the employment and 

salary data FCSL published violated the ABA’s standards, rules or policies; (ii) the specific 

“information posted on [FCSL’s] website, marketing material and/or disseminated to third-party 

data clearinghouses and publications” that any of the Plaintiffs allegedly saw, read or relied on, 

15-20; or (iii) that FCSL failed to provide them with a valuable legal education. 

STANDARD OF REVIEW 

To survive a Rule 12(b)(6) motion, a complaint must set forth factual allegations that 

plausibly show that each element of each claim is met. See Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 555, 570 (2007) (plaintiffs must allege facts that “state a claim to relief that is plausible on 

its face” such that the complaint “nudge[s] their claims across the line from conceivable to 

plausible”; plaintiffs do not meet their pleading burden with “labels and conclusions” or a 

4


“formulaic recitation of the elements of a cause of action”). “Factual allegations must be enough 

to raise a right to relief above the speculative level on the assumption that all the allegations in 

the complaint are true.” Id. at 555 (internal citations omitted); see also Nichols v. WM. Wrigley 

Jr. Co., No. 10-80759-CIV, 2011 U.S. Dist. LEXIS 4959, at *4 (S.D. Fla. Jan. 19, 2011) 

(dismissing, among others, fraudulent concealment and negligent misrepresentation claims). 

Under Twombly, when a complaint fails to state sufficient facts to raise “a reasonable 

expectation that discovery will reveal evidence” of the elements of a plaintiff’s claims, the 

complaint should be dismissed. 550 U.S. at 556; see also, e.g., Llado-Carreno v. Guidant Corp., 

No. 09-20971-CIV, 2011 U.S. Dist. LEXIS 17088, at *6 (S.D. Fla. Feb. 22, 2011). In assessing 

whether a complaint can withstand a motion to dismiss, courts engage in a two-step process: (1) 

identification of conclusory allegations that are not entitled to an assumption of truth; and (2) 

determination of whether the remaining, fact-based allegations show an entitlement to relief. 

Llado-Carreno, 2011 U.S. Dist. LEXIS 17088, at *6-7 (“The mere possibility the defendant 

acted unlawfully is insufficient to survive a motion to dismiss. . . . Unwarranted deductions of 

fact in a complaint are not admitted as true for the purpose of testing the sufficiency of plaintiff’s 

allegations.”) (internal citations and quotations omitted); see also Ashcroft v. Iqbal, 129 S. Ct. 

1937, 1950 (2009). 1 

In addition to the Twombly requirements, where—as here—all of the claims in a 

complaint sound in fraud, the entire complaint must satisfy the stringent particularity 

requirements of Rule 9(b). See Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir. 

2001) (“The particularity rule serves an important purpose in fraud actions by . . . protecting 

defendants against spurious charges of immoral and fraudulent behavior.”) (internal quotations 

and citations omitted); Llado-Carreno, 2011 U.S. Dist. LEXIS 17088, at *14-15 (dismissing 

FDUTPA claim for failure to satisfy Rule 9(b)); Sunoptic Techs., LLC v. Integra Luxtec, Inc., 

No. 3:08-cv-878-J-16JRK, 2009 U.S. Dist. LEXIS 23836, at *5-6 (M.D. Fla. Mar. 17, 2009) 

(dismissing FDUTPA, fraud and negligent misrepresentation claims under Rule 9(b)); see also 

1 In evaluating the sufficiency of a complaint, a court may consider extrinsic documents that are 

relied upon in the complaint or that are matters of public record, such as the ABA materials and 

FCSL’s website referenced throughout the Complaint here. See Compl. 31-34, 38, 66-67, 78, 

81; Norring v. Private Escapes, LLC, No. 6:09-cv-2081-Orl-19GJK, 2010 U.S. Dist. LEXIS 

22895, at *5 (M.D. Fla. Mar. 12, 2010) (dismissing, among others, fraudulent inducement claim 

predicated on alleged false statements disseminated on a website and by email). 

5


Fla. Digital Network, Inc. v. N. Telecom, Inc., No. 6:06-cv-889-Orl-31JGG, 2006 U.S. Dist. 

LEXIS 61983, at *14-15 (M.D. Fla. Aug. 30, 2006). 

ARGUMENT 

On a motion to dismiss, the claims of all putative class members rise and fall with the 

claims of the named plaintiffs. See Wooden v. Bd. of Regents of Univ. Sys. of Ga., 247 F.3d 

1262, 1288 (11th Cir. 2001). Because Plaintiffs cannot plead any viable claim for themselves, 

they cannot purport to represent a class going forward. 

POINT I 

THE COMPLAINT FAILS TO STATE A CLAIM UNDER FDUTPA 

FDUTPA claims have three elements: “(1) a deceptive act or unfair practice; (2) 

causation; and (3) actual damages.” Rollins, Inc. v. Butland, 951 So. 2d 860, 869 (Fla. Dist. Ct. 

App. 2006); see also Lydia Sec. Monitoring, Inc. v. Alarm One, Inc., No. 07-80145-CIV, 2007 

U.S. Dist. LEXIS 62087, at *11-12 (S.D. Fla. Aug. 23, 2007) (dismissing FDUTPA claim for 

failure to sufficiently plead facts to show each element). Notably, FDUTPA includes a “safe 

harbor” provision that expressly exempts from the statute any act or practice permitted or 

required by federal law. FLA. STAT. § 501.212(1) (2012). 

Here, FCSL’s alleged statements fall squarely within FDUTPA’s safe harbor provision. 

See id. Additionally, Plaintiffs have failed to plead facts to show that FCSL made materially 

misleading statements concerning post-graduation employment and salary prospects. Separately, 

Plaintiffs cannot allege a legally cognizable injury under the statute causally related to the 

purported misrepresentations and, even if they could, they have failed to plead a measurable loss. 

The purported “damages” claims are inherently speculative and fatally hypothetical. 

A. FCSL’s Purported Statements Fall Within FDUTPA’s Safe Harbor Provision 

As acknowledged in the Complaint, no law school is “required by the ABA, [the U.S. 

Department of Education] or any other governing body to independently audit or verify [its] 

employment data,” 59, or to “distinguish between part-time and full-time jobs or temporary and 

permanent employment.” Id. 37. Simply put, Plaintiffs’ dissatisfaction with FCSL’s reporting 

of post-graduation employment and salary information is, in fact, dissatisfaction with the ABA’s 

standards, and the governing federal statute and Department of Education (“DOE”) regulations. 

FCSL is required to follow—and not, as Plaintiffs would have it, to exceed—those rules, and 

FCSL’s adherence to ABA regulations does not constitute consumer fraud. While Plaintiffs 

6


would like to see more rigorous reporting standards, the dispositive fact here—conceded in the 

Complaint—is that FCSL has complied with the existing ABA reporting rules and governing 

federal regulations. 2 Compl. 31-32. 

The Complaint concedes that FCSL is accredited by the ABA, 2, that the ABA “is 

responsible for accrediting and regulating all accredited legal institutions,” 77, and that FCSL 

publishes its employment statistics “[p]ursuant to” ABA requirements—namely, Standard 509. 

Id. 31-32; see also id. 11 (discussing new ABA guidelines that “would expressly require 

law schools to report” a “break down” of employment data and acknowledging that revisions to 

the applicable standards “come too late for Plaintiffs”) (emphasis added). Thus, Plaintiffs’ 

FDUTPA claim should be dismissed because FCSL’s statements fall squarely within the 

statutory safe harbor provision. 

FDUTPA’s safe harbor provision specifically exempts any “act or practice required or 

specifically permitted by federal or state law.” FLA. STAT. § 501.212(1). The Complaint 

concedes that FCSL’s employment and salary reporting has been consistent with ABA Standard 

509, which is promulgated under the specific requirements of the Higher Education Act (the 

“HEA”), 20 U.S.C. § 1001(a) (2012) et seq., and DOE regulations, 34 C.F.R. § 668.41 (2012) et 

seq. See Compl. 31-32. ABA Standard 509 applies uniformly to every accredited law school 

in the nation. See ABA, Standards and Rules of Procedure for Approval of Law Schools, 

available at http://www.americanbar.org/groups/legal_education/resources/standards.html (last 

visited Feb. 29, 2012), submitted herewith as Exhibit A to the Russomanno Decl. 

Under the HEA, the federal government regulates all institutions of higher education, 

including every accredited U.S. law school. 20 U.S.C. § 1001(a) et seq. The statute requires 

schools to provide prospective and enrolled students with information concerning employment 

and graduation statistics. Id. §§ 1092(a)(1), 1094(a)(8), 1092(a)(1)(R), 1092(c). The HEA 

2 Plaintiffs concede FCSL’s compliance with ABA Standard 509, but take issue with ABA 

regulations generally. See Compl. 31. Plaintiffs’ counsel has repeatedly boasted about its use 

of carbon copy litigations (including this one) as a vehicle to attack the ABA, irrespective of the 

damage wrought on the law schools named as defendants. Indeed, counsel’s professed goal is 

simply to “sue as many law schools as [it] can” and “force a global settlement through the 

ABA.” See, e.g., Staci Zaretsky, Calling All Disgruntled Law School Graduates: Will You Ring 

in the New Year by Suing Your School?, ABOVE THE LAW (Dec. 14, 2011), 

http://abovethelaw.com/2011/12/calling-all-disgruntled-law-school-graduates-will-you-ring-inthe-new-year-by-suing-your-school/?show=comments. 

7


authorizes the DOE to, inter alia, promulgate regulations regarding information requirements 

and select accrediting agencies to ensure that consumer information is disclosed based on the 

federal guidelines. Id. §§ 1099b (delegating authority to DOE under the HEA), 1221e-3 

(authorizing DOE to issue regulations governing law schools); 34 C.F.R. §§ 668.41(d)(5), 

668.41(d)(5)(i), 668.41(d)(5)(iii) (setting forth DOE’s requirements for the timing, source and 

disclosure of post-graduation data by schools). The DOE recognizes the Council and the 

Accreditation Committee of the ABA as the accrediting agency for law schools. Id. § 606.2; see 

also Nationally Recognized Accrediting Agencies, 73 Fed. Reg. 11404, 11405 (Mar. 3, 2008) 

(recognizing the ABA). 

As the federally-appointed accrediting agency, the ABA establishes standards for law 

schools to become or remain accredited, which include requirements for collecting, calculating 

and disclosing post-graduation information. See Russomanno Decl. Ex. A. The ABA’s official 

interpretations of Standard 509 recite “categories of consumer information [that] are considered 

basic,” and provide two means by which a law school may satisfy the Standard. Id. Specifically, 

a law school complies with ABA information publishing requirements by either (1) providing the 

information to a publication designated by the Council, such as NALP, or (2) publishing the 

information in its own publication. See id. Here, FCSL has provided the required information to 

NALP in every year pertinent to the Complaint, and the Complaint’s averment that FCSL 

complies with Standard 509 is dispositive of Plaintiffs’ FDUTPA claim. See Compl. 31-32. 

As a matter of law, FCSL’s compliance requires dismissal under FDUTPA’s safe harbor 

provision. See Prohias v. AstraZeneca Pharms., L.P., 958 So. 2d 1054, 1056 (Fla. Dist. Ct. App. 

2007) (affirming dismissal because FDA-approved advertising and labeling was “specifically 

permitted” by federal law) (internal quotations omitted), review denied, 969 So. 2d 1014 (Fla. 

2007); Brett v. Toyota Motor Sales, U.S.A., Inc., No. 6:08-cv-1168-Orl-28GJK, 2008 U.S. Dist. 

LEXIS 114462, at *21-22 (M.D. Fla. Aug. 29, 2008) (finding “Plaintiff’s argument that it is 

actually Defendant’s omission to advertise [] additional, more accurate” information to be 

“misguided,” and recommending dismissal of claim because practices were “permitted by the 

rules and regulations of the FTC”); Kuenzig v. Kraft Global Foods, Inc., No. 8:11-cv-838-T-24 

TGW, 2012 U.S. Dist. LEXIS 13424 (M.D. Fla. Feb. 3, 2012) (dismissing FDUTPA claim 

where labels complied with federal regulations). 

8


B. There Is No FDUTPA Deceptive Act Or Practice 

Even if Plaintiffs’ FDUTPA claim was not barred by the safe harbor provision, Plaintiffs 

fail to state a claim because the Complaint does not adequately allege that FCSL’s data are 

misleading. Prohias v. Pfizer, 490 F. Supp. 2d 1228, 1235 (S.D. Fla. 2007). While Plaintiffs 

generally attack the post-graduation reporting of all law schools, including FCSL, the Complaint 

barely references FCSL’s actual statements. Compl. 1, 3, 32-34, 66-67. 3 Those few relevant 

allegations are tucked in amidst Plaintiffs’ diatribe against law schools generally, see, e.g., id. 

71-84, and are not supported by factual detail. 4 Plaintiffs’ inability to substantiate their 

“misleading statement” conclusions with fact-based allegations is fatal under Twombly and fails to 

meet the 9(b) standard. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Sunoptic 

Techs., LLC v. Integra Luxtec, Inc., No. 3:08-878-J-16JRK, 2009 U.S. Dist. LEXIS 23836, at *6- 

7, 9-12 (M.D. Fla. Mar. 17, 2009). 

The sole allegedly deceptive acts for which Plaintiffs include any factual support are: (1) 

FCSL’s alleged failure to sufficiently differentiate among types of employment when publishing 

its employment statistics, and (2) FCSL’s alleged publication of post-graduation salary data 

disclosed as, and based on, information provided by a small group of students rather than a larger 

group. See, e.g., Compl. 33-34. Plaintiffs allege that FCSL’s statistics “make[] it appear” that 

“the jobs reported are full-time, permanent positions for which a law degree is required or 

preferred,” and that “[t]hese numbers are false because [FCSL’s] reported employment numbers 

3 

Significantly, the Complaint does not allege that Plaintiffs received anything other than a sound 

legal education, and does not allege that FCSL ever represented to any of the Plaintiffs that he or 

she would find employment immediately upon graduation. Moreover, the Complaint is totally 

bereft of any facts regarding: the reason(s) why Plaintiffs chose to enroll, and to remain enrolled, 

at FCSL; their performances in law school; their individual efforts, if any, to secure employment 

upon graduation; and what resulted from those attempts (if any were made at all). This is 

perhaps because such critical allegations would only highlight the individualized nature of every 

student’s unique academic and professional experience, and the consequent futility of a motion 

for class certification in this case. Indeed, Plaintiffs purport to represent a class that would 

include graduates who never attempted to obtain a legal job (like Plaintiff Awai) and students 

who never saw or relied on any statement from FCSL. See Compl. 16, 85; see also Kuenzig v. 

Kraft Foods, Inc., No. 8:11-cv-838-T-24 TGW, 2011 U.S. Dist. LEXIS 102746, at *32, n.15 

(M.D. Fla. Sept. 12, 2011) (“Plaintiff’s description of the proposed class does not even require 

that the class members have seen Defendants’ websites or non-label advertising.”). 

4 

For example, the Complaint alleges that FCSL made “deceptive and misleading statements . . . 

concerning the value of a [FCSL] degree,” 112(f), without pleading a single detail to support 

that bare assertion. 

9


include any type of employment.” Id. 4 (emphasis in original). However, Plaintiffs openly 

admit that, in the context of law schools’ reporting, “counting all types of jobs as employment . . . 

is a standard practice in calculating employment rates used, for example, by the U.S. Bureau of 

Labor Statistics.” Id. Ex. 6 at 2. The Complaint additionally concedes that even “the 

independent-minded and industry gold-standard NALP,” 83, “includes any kind of employment” 

in its post-graduation employment rate, 47 (emphasis in original), and “does not distinguish 

between temporary and permanent employment.” Id. 49. 

Moreover, the first two exhibits to the Complaint contradict several of Plaintiffs’ “false 

statement” assertions. See Compl. Exs. 1-2. It is well settled that the exhibits themselves—not 

Plaintiffs’ characterizations of those exhibits—control. See Prohias, 490 F. Supp. 2d at 1231. 

Separately, Plaintiffs’ claims that FCSL’s salary data were misleading, because they were based 

on a sample of recent graduates, are unfounded. Compl. 36. That fact is openly disclosed in 

the 2010 publication, and the Complaint itself acknowledges that the 2010 salary information “is 

based on a response rate of 29 percent of all employed graduates . . . .” Id. 33. Likewise, the 

Complaint alleges generally that the salary information “reported prior to July 2011 does 

disclose the percentage of employed graduates who actually reported their salary information.” 

Id. 34 (emphasis added). As shown in Exhibit 2 to the Complaint, the 2007 data, specifically, 

do not include any salary information. Other than alleging that all data reported prior to July 

2011 disclose the percentage of students reporting salary information, Plaintiffs make no fact- 

based allegations about the 2008 and 2009 data. As such, Plaintiffs have failed to allege any 

deceptive act. 5 

C. Plaintiffs Fail To Allege Cognizable Injury And Damages 

As a threshold matter, the Plaintiffs in this action include one graduate who “did not even 

bother sitting for a bar exam” and never attempted to obtain employment in the legal field, two 

owners of private law firms, a Florida State Attorney’s Office attorney and a 2011 graduate who 

is currently studying for the bar exam in Maryland. Compl. 15-20. The sole inference to be 

drawn from the Complaint is that FCSL provided these graduates with a thorough legal 

education that prepared them to practice law—if they even attempted to practice. Thus, the 

5 As detailed in pages 12-13 and 15 infra, the Complaint’s failure to adequately allege that 

FCSL made any materially misleading statement requires dismissal of the fraud and negligent 

misrepresentation claims as well. 

10


Complaint does not allege facts to show that any Plaintiff “was actually aggrieved by an unfair or 

deceptive act.” Sunoptic Techs., 2009 U.S. Dist. LEXIS 23836, at *10 (citations and internal 

quotations omitted); see also Prohias v. Pfizer, 485 F. Supp. 2d 1329, 1335 (S.D. Fla. 2007); 

Lydia Sec. Monitoring, Inc., 2007 U.S. Dist. LEXIS 62087, at *12. 

Nor can Plaintiffs plead a viable theory of damages. The Complaint alleges generally 

that the tuition rate at every law school in the country “has risen exponentially over the past two 6 

decades.” Compl. 9. But beyond mere speculation, the Complaint does not allege how the cost 

of an FCSL education was affected by any alleged misrepresentation. See Clear Marine 

Ventures, Ltd. v. Brunswick Corp., No. 08-22428-CIV, 2009 U.S. Dist. LEXIS 124904, at *12 

(S.D. Fla. Oct. 1, 2009); see also Lydia Sec. Monitoring, 2007 U.S. Dist. LEXIS 62087, at *12 

(dismissing FDUTPA claim for failing to show what injury party actually sustained); accord N.J. 

Citizen Action v. Schering-Plough Corp., 842 A.2d 174 (N.J. Super. Ct. App. Div. 2003). Nor 

does the Complaint point to any law school tuition or degree that might serve as a comparator or 

substitute in the market, for the purpose of determining the “true value” of an FCSL education. 

Compl. Prayer For Relief (3). Thus, Plaintiffs purport to demand damages in the amount of “the 

difference between the inflated tuition paid by Class members . . . and the true value of a [FCSL] 

degree,” id., without alleging a method by which any theoretical difference could ever be 

calculated. Because there is “absolutely no information given as to fair market value” of an 

FCSL degree (or any legal education), the Complaint fails to allege “actual damages” 7 under 

FDUTPA. See Clear Marine Ventures, 2009 U.S. Dist. LEXIS 124904, at *11-12. 

Plaintiffs’ attempt to manufacture a “price inflation” theory is similarly misguided. The 

implausible predicate for that theory appears to be that, had more information about FCSL 

graduates’ employment been publicly disseminated, Plaintiffs would have “elected to [] pay less” 

in tuition. 8 Compl. 15-20; see Prohias, 485 F. Supp. 2d at 1336-37. Proof of inflated tuition 

would (1) require the assumption that the cost of an FCSL education incorporates information 

6 

The Complaint alleges that FCSL was founded in 1996 and accredited by the ABA in 2002. Id. 

21. 

7 

“Actual damages” under FDUTPA do not include consequential damages; it is unclear whether 

Plaintiffs purport to demand such unrecoverable damages here. Rollins, Inc., 951 So. 2d at 869- 

70. 

8 

Given that there is no realistic “open bartering” process for negotiating tuition at U.S. law 

schools, this allegation fails to satisfy the plausibility requirements of Twombly. 

11


about employment or salary statistics, and (2) depend on evidence that there is an “efficient” 

market for legal education, such that the cost of an FCSL degree fluctuates based on the public’s 

knowledge of additional employment data, beyond that required by the ABA. 9 Id. No such 

allegations are found anywhere in the Complaint. Instead, Plaintiffs invite the Court to speculate 

about what “the hypothetical price” of an FCSL education might have been, in the absence of the 

information disclosed in the exhibits to the Complaint. See id. at 1337 (emphasis in original). 

“Determination of such [a] hypothetical price, even with expert proof, is too speculative to be the 

premise of an ‘actual injury’. . . .” Id. Thus, Plaintiffs have failed to “nudge[] their claims 

across the line from conceivable to plausible,” and raise “a reasonable expectation that discovery 

will reveal evidence” of the elements of a FDUTPA claim. Twombly, 550 U.S. at 556, 570. 

Accordingly, dismissal of the FDUTPA claim, with prejudice, is warranted. 

POINT II 

THE FRAUD CLAIM LACKS MULTIPLE ESSENTIAL ELEMENTS 

To plead fraud, a plaintiff must allege, with particularity: (1) misrepresentation of a 

material fact; (2) defendant knew the representation was false; (3) defendant intended to induce 

plaintiff to rely and act on the misrepresentation; (4) plaintiff’s reliance; and (5) injury resulting 

from that reliance. See, e.g., Sunoptic Techs., LLC v. Integra Luxtec, Inc., No. 3:08-cv-878-J- 

16JRK, 2009 U.S. Dist. LEXIS 23836, at *9 (M.D. Fla. Mar. 17, 2009). Several elements are 

absent from the Complaint. 

A. Plaintiffs Do Not Adequately Plead Misrepresentation 

As detailed in Point I supra, FCSL’s compliance with federally-mandated ABA reporting 

standards negates the assertion that FCSL made any material misrepresentation. See Prohias v. 

Pfizer, 490 F. Supp. 2d 1228, 1234-35 (S.D. Fla. 2007). The fraud claim should be dismissed, 

with prejudice, on this ground alone. 

More fundamentally, Plaintiffs cannot even specify the statements they claim are 

misleading. See, e.g., Compl. 96 (alleging that FCSL made “misleading statements . . . 

concerning [FCSL’s] reputation with potential employers,” without identifying any statements). 

Instead, the Complaint relies on bald assertions and innuendo. See, e.g., Compl. 51 (“[FCSL], 

much like many other law schools, tabulates, calculates and tallies the raw data inputted in the 

9 Tellingly, the Complaint alleges that FCSL revised its data reporting for 2010 to include 

numerous additional disclosures, see, e.g., Compl. 6, 33, 45, 67, but does not allege any 

corresponding change in the cost of tuition. 

12


job surveys filled out by recent graduates in a shoddy, slipshod manner . . .”); see also, e.g., id. 

44-58. This conclusory pleading simply fails to make out a viable fraud claim. See Begualg 

Inv. Mgmt. Inc. v. Four Seasons Hotel Ltd., No. 10-22153-CIV, 2011 U.S. Dist. LEXIS 108720, 

at *15 (S.D. Fla. Sept. 23, 2011) (dismissing fraud claim for failure to provide sufficient detail 

surrounding the allegedly false statements); see also Bank v. Brooklyn Law Sch., No. 97-CV- 

7470 (JG), 2000 U.S. Dist. LEXIS 16180, at *18-25 (E.D.N.Y. Oct. 6, 2000) (dismissing fraud 

claims of law school alumnus who failed to plead a material misstatement with specificity). 

For example, in attacking the use of self-reporters to compile FCSL’s compensation 

statistics, Plaintiffs can only speculate that a larger pool of graduates might produce a 

statistically significant deviation from the 2010 reported mean salary data. Compl. 36; see also 

id. 65-70. Even more curious are Plaintiffs’ “apples-to-oranges” assertions. Plaintiffs allege 

that the number of graduates who report salary data (disclosed in Exhibit 1) “strongly suggests” 

that the number of graduates who reported that they were employed (also disclosed in Exhibit 1) 

is actually much lower than Exhibit 1 reflects. Id. 45. Plaintiffs “believe that perhaps fewer 

than 30 percent . . . of recent [FCSL] graduates secure full-time, permanent employment for 

which a JD degree is required or preferred within nine months of graduating.” Compl. 43 

(emphases added). This guesswork is premised strictly on anecdotal information from an 

unknown number of former FCSL students, review of public documents and unspecified “other 

investigatory work.” Id. Plaintiffs’ tenuous string of assumptions is insufficient to state a claim 

under Twombly, let alone Rule 9(b). See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) 

(“Factual allegations must be enough to raise a right to relief above the speculative level.”). 

B. Plaintiffs Fail To Adequately Allege Reliance 

To adequately plead a claim for fraud, each plaintiff “must provide information as to his 

[or her] own state of mind and inform the court as to the manner in which [the alleged 

misrepresentations] misled” each of them specifically. Grills v. Philip Morris USA, Inc., 645 F. 

Supp. 2d 1107, 1129 (M.D. Fla. 2009) (dismissing fraud claims where complaint lacked detailed 

allegations of fraudulent behavior and how this behavior specifically affected plaintiff). The 

Complaint is wholly devoid of details concerning Plaintiffs’ individual choices to attend FCSL. 10 

The Complaint does, however, allege that Plaintiffs enrolled in FCSL during the “Greta [sic] 

Recession,” 44, in which they faced “the grimmest legal job market[] in decades,” 55, and 

10 Here, such allegations undoubtedly would portend a denial of class certification. 

13


notwithstanding reports in U.S. News and World Report that “[FCSL] students graduate on 

average with a staggering $120,410.00 in loans.” Id. 62 (emphasis in original). Against this 

backdrop, Plaintiffs apparently allege that college graduates like themselves justifiably believed 

that they were guaranteed a job in the legal field within nine months of graduation that was 

“commensurate with . . . [their] legal education.” Id. 63. The Complaint does not, because it 

cannot, allege that FCSL made any such guarantee to any of these Plaintiffs. 

Thus, the Complaint does not allege how, specifically, Plaintiffs relied on FCSL 

employment data—namely its relative influence amongst a number of factors that students weigh 

when choosing a law school. Rather, each Plaintiff makes the identical, generalized assertion 

that he or she “relied on salary data and employment information” published “and/or” 

disseminated by the school. Compl. 15-20. This boilerplate pleading is fatal. See, e.g., Robb 

v. Rahi Real Estate Holdings LLC, No. 10-81474-CIV, 2011 U.S. Dist. LEXIS 55119 (S.D. Fla. 

May 23, 2011) (dismissing fraud and negligent misrepresentation claims for failure to adequately 

plead justifiable reliance and resulting injury). 

C. Plaintiffs’ Allegations Of Damages Are Too Speculative 

As detailed in pages 11-12 supra, Plaintiffs do not suggest a method for measuring any 

“difference between the inflated tuition paid . . . and the true value of a [FCSL] degree,” let alone 

allege any facts relating to that measurement. Compl. Prayer for Relief (3). In other words, 

Plaintiffs simply invite the Court to speculate about hypothetical values. See Prohias v. Pfizer, 

485 F. Supp. 2d 1329, 1336-37 (S.D. Fla. 2007); accord Mihalakis v. Cabrini Med. Ctr., 151 

A.D.2d 345, 346 (N.Y. App. Div. 1989) (student’s request for damages, allegedly arising from 

her reliance on misrepresentations about medical internship program, would require the court “to 

indulge in impermissible speculation”); Bank, 2000 U.S. Dist. LEXIS 16180, at *8 (denying 

leave to replead fraudulent inducement and negligent misrepresentation “claim[s] for the 

diminished value of plaintiff’s law degree or loss of earnings following graduation” as “futile”). 

Because these damages allegations are hopelessly vague, the fraud claim must be dismissed. 

POINT III 

THE NEGLIGENT MISREPRESENTATION CLAIM IS DEFICIENT 

To state a claim for negligent misrepresentation, Plaintiffs must allege each of the 

following: (1) a misrepresentation of material fact; (2) that the speaker either knew or should 

have known was false or made without knowledge of truth or falsity; (3) the speaker intended to 

14


induce another to act on the misrepresentation; and (4) resulting injury to a party acting in 

justifiable reliance on the misrepresentation. See Tiara Condo. Ass’n v. Marsh & McLennan 

Cos., 607 F.3d 742, 747 (11th Cir. 2010); Recreational Design & Constr., Inc. v. Wiss, Janney, 

Elstner Assocs., Inc., No. 10-cv-21549, 2011 U.S. Dist. LEXIS 127774, at *26 (S.D. Fla. Jan. 21, 

2011) (dismissing negligent misrepresentation claim for failure to plead details of false 

statements and justifiable reliance). Because negligent misrepresentation claims “sound in 

fraud,” the specificity requirements of Rule 9(b) apply. See, e.g., Harrison Enters., Inc. v. 

Moran, No. 97-4362-CIV, 1999 U.S. Dist. LEXIS 15885, at *8-9 (S.D. Fla. Aug. 30, 1999). 

Under Florida law, there can be no misrepresentation when the facts at issue are 

disclosed, as they are here, for example, in the exhibits to the Complaint. See Ward v. Fla. Bd. of 

Ed., 822 So. 2d 518 (Fla. Dist. Ct. App. 2002) (affirming dismissal of fraud and negligent 

misrepresentation claims based on alleged misrepresentation of degrees available from university 

because a university publication flatly contradicted alleged misrepresentation); Kuenzig v. Kraft 

Foods, Inc., No. 8:11-cv-838-T-24 TGW, 2011 U.S. Dist. LEXIS 102746, at *27 (M.D. Fla. 

Sept. 12, 2011). Separately, the elements of causation and reliance are missing: the Complaint 

fails to allege when or where the Plaintiffs “actually read” the complained-of statements. Compl. 

15-20; see Jovine v. Abbott Labs., Inc., 795 F. Supp. 2d 1331, 1339 (S.D. Fla. 2011) 

(dismissing negligent misrepresentation claim in putative class action where named plaintiff 

“never allege[d] that he actually read the label of the allegedly defective product . . . only that . . . 

[p]laintiff was exposed to the promotion, advertising and marketing”) (internal quotations 

omitted); see also Groom v. Bank of Am., No. 8:08-cv-2567-JDW-EAJ, 2012 U.S. Dist. LEXIS 

2374, at *23 (M.D. Fla. Jan. 9, 2012) (dismissing negligent misrepresentation claim for failure to 

allege reliance). Nor have Plaintiffs pled any actual injury. See Robb v. Rahi Real Estate 

Holdings LLC, No. 10-81474-CIV, 2011 U.S. Dist. LEXIS 55119 (S.D. Fla. May 23, 2011). 

Finally, as detailed in Point IV infra, Plaintiffs have not begun to approach Rule 9(b)’s 

particularized pleading standard for the negligent misrepresentation claim. 

POINT IV 

RULE 9(b) REQUIRES DISMISSAL OF ALL CLAIMS 

As set forth above, Rule 9(b)’s particularity requirements apply to each of the three 

claims in this case. See supra at 5-6, 9-15. The Rule 9(b) standard is satisfied only if the 

complaint sets forth “(1) precisely what statements were made in what documents or oral 

15


representations or what omissions were made, and (2) the time and place of each such statement 

and the person responsible for making (or, in the case of omissions, not making) same, and (3) 

the content of such statements and the manner in which they misled the plaintiff, and (4) what 

the defendants obtained as a consequence of the fraud.” Begualg Inv. Mgmt. Inc. v. Four 

Seasons Hotel Ltd., No. 10-22153-CIV, 2011 U.S. Dist. LEXIS 108720, at *7-8 (S.D. Fla. Sept. 

23, 2011), citing Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001). Dismissal 

of the complaint is warranted whenever those requisites are not met. See, e.g., W. Coast Roofing 

& Waterproofing, Inc. v. Johns Manville, Inc., No. 2:06-cv-118-FtM-29DNF, 2006 U.S. Dist. 

LEXIS 93991, at *9-10 (M.D. Fla. Dec. 29, 2006) (dismissing FDUTPA, negligent 

misrepresentation and fraud claims, among others, for failure to plead with particularity); 

Harrison Enters., Inc. v. Moran, No. 97-4362-CIV, 1999 U.S. Dist. LEXIS 15885, at *9-11 

(S.D. Fla. Aug. 30, 1999). 

Here, the 53-page, 118-paragraph Complaint contains exactly one paragraph describing 

the alleged experience of each named Plaintiff. Compl. 15-20. The Complaint contains no 

allegations concerning: (1) what specific salary data and employment information Plaintiffs 

actually saw or read; (2) when they saw or read it; (3) where they saw or read it; and (4) what, if 

any, impact the unspecified information might have had on their respective decisions to enroll at 

FCSL. Likewise, Plaintiffs provide no information concerning their own alleged damages— 

none of the Complaint’s 118 paragraphs alleges the amount of tuition any of the Plaintiffs paid or 

any of their costs of “room, board and other expenses.” Id. 15-20, 22. Separately, Plaintiffs’ 

mere recitation of the legal term “reliance” fails to meet the particularity required to survive 

dismissal under Rule 9(b), nor do Plaintiffs attempt to allege facts that show how any purported 

reliance could have been reasonable under the recessionary economic circumstances portrayed in 

the Complaint. See id. 6, 44, 54-58, 63. 

Accordingly, Plaintiffs have failed to meet the Rule 9(b) requirements for alleging a 

material misstatement, causation, reliance, injury and damages. These shortcomings require 

dismissal of each of the consumer fraud, common-law fraud and negligent misrepresentation 

claims. 

16


POINT V 

THE RELEVANT STATUTES OF LIMITATIONS BAR ALL CLAIMS ARISING 

PRIOR TO FEBRUARY 1, 2008 

The Complaint was filed in the Circuit Court of Miami-Dade County on February 1, 

2012. The generalized allegations in the Complaint do not specify when any of the purported 

claims of any of the named Plaintiffs arose, or define what Plaintiffs believe to be “the relevant 

time period” or “the statutory period.” Compl. Preamble, 85. In all events, to the extent that 

the FDUTPA, fraud or negligent misrepresentation claims of the named Plaintiffs, or any of the 

class members whom they purport to represent, arose prior to February 1, 2008, those claims are 

barred by the respective statutes of limitations. See FLA. STAT. § 95.11(3)(f) (2012) (providing a 

four-year statute of limitations period for “an action founded on a statutory liability”); McKissic 

v. Country Coach, Inc., No. 8:07-cv-1488-T-17EAJ, 2008 U.S. Dist. LEXIS 104147, at *20-21 

(M.D. Fla. July 16, 2008) (dismissing plaintiffs’ FDUTPA claim for failure to file within the 

four-year statute of limitations period); FLA. STAT. § 95.11(3)(j) (providing a four-year statute of 

limitations period for “a legal or equitable action founded on fraud”); Valentino v. Bond, No. 

3:06cv504/MCR, 2008 U.S. Dist. LEXIS 63485, at *38-40 (N.D. Fla. Aug. 19, 2008) (holding 

that plaintiff’s negligent misrepresentation and fraudulent misrepresentation claims were time- 

barred under the four-year statute of limitations period for such claims). 

POINT VI 

THE COMPLAINT SHOULD BE DISMISSED BECAUSE 

VENUE IS IMPROPER OR, IN THE ALTERNATIVE, THE ACTION SHOULD BE 

TRANSFERRED TO THE MIDDLE DISTRICT OF FLORIDA 

The Complaint should be dismissed because venue is improper in this District. Pursuant 

to 28 U.S.C. § 1391(b), a civil action may be brought in “(1) a judicial district in which any 

defendant resides . . . ; [or] (2) a judicial district in which a substantial part of the events or 

omissions giving rise to the claim occurred . . . .” FCSL is the only named defendant and 

maintains its principal place of business at 8787 Baypine Road, Jacksonville, Florida 32256. 

Goplerud Decl. 3. Accordingly, for venue purposes, FCSL “resides” in Jacksonville, Florida, 

which is within the Middle District of Florida. See 28 U.S.C. § 1391(d) (2012). 

Plaintiffs generally allege that FCSL has “systematically and continually conducted 

business in Miami-Dade County, and throughout the State of Florida,” Compl. 13, and that 

“[t]he circumstances giving rise to this action occurred in part in the county in which this Court 

17


sits, through the circulation of promotional, marketing and advertising material in the County.” 

Id. 14. These conclusory allegations fail to establish that FCSL “resides” in this District for 

purposes of establishing venue pursuant to section 1391(b)(1). “[I]n a State which has more than 

one judicial district and in which a defendant that is a corporation is subject to personal 

jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in 

any district in that State within which its contacts would be sufficient to subject it to personal 

jurisdiction if that district were a separate State. . . .” 28 U.S.C. § 1391(d) (emphasis added). 11 

FCSL has insufficient contacts with the Southern District of Florida to subject it to personal 

jurisdiction here, if this District were a separate State. 

The analysis under section 1391(d), which tracks the federal jurisdictional test for 

establishing general personal jurisdiction, is aptly illustrated in Ferris v. Rollins College Inc., 

No. 1:08-cv-00039-SPM-AK, 2008 U.S. Dist. LEXIS 109791 (N.D. Fla. Oct. 9, 2008). The 

Ferris court considered a lawsuit commenced in the Northern District of Florida against Rollins 

College—located in the Middle District of Florida—and involving an accident that occurred at 

the school. In finding that venue was improper in the Northern District, the court rejected as 

insufficient the following contacts that the school had with the Northern District: sending 

admissions personnel to attend college fairs there; sending sports teams to compete in the 

District; sending alumni newsletters into the District; attending meetings in the District; 

participating as a member in college-related organizations that reside in the District; interacting 

with State agencies located within the District; and receiving State aid that benefits students from 

the District. Ferris, 2008 U.S. Dist. LEXIS 109791, at *2-4. 

The court in Ferris held that none of these contacts suggested that Rollins College 

specifically directed these activities to the Northern District, in particular, rather than simply 

engaging in “the type of inter-district activity which any prominent educational institution would 

engage.” Id. at *8-9 (“[A]lthough Defendant maintains contact with current students and alumni 

within this District, these contacts are insufficient to constitute the continuous and systematic 

contacts which give rise to general jurisdiction.”) (emphasis added). Ferris is particularly 

instructive here, because FCSL’s general dissemination of admissions and alumni material into 

this District—as well as into scores of other Districts around the country—is insufficient to 

11 The Federal Rules’ venue provision, 28 U.S.C. § 1391, was rewritten in amendments to the 

Rules that were adopted at the end of 2011. The cited language from newly-enacted section 

1391(d) was formerly contained in section 1391(c), which also was rewritten. 

18


confer jurisdiction, and thus venue, pursuant to section 1391(d). See id. at *9 (“Plaintiff has not 

produced any evidence that suggests that Defendant or its employees have singled out this 

District as opposed to generally participating in academic activities that may take place in this 

District.”). FCSL has no property in the District, conducts no school business here, sends no 

teams or agents into the District on regular school business here, and otherwise has no 

continuous and systematic presence here to warrant subjecting it to venue here. Goplerud Decl. 

5. Accordingly, FCSL does not “reside” in the Southern District of Florida. 

With respect to venue premised on section 1391(b)(2), virtually none of the “events or 

omissions giving rise to the claim” occurred in this District and virtually all of them occurred in 

the Middle District of Florida. The allegedly misleading statements were all published in 

Jacksonville; the students decided to attend or remain enrolled at FCSL in Jacksonville; and the 

students paid tuition in Jacksonville and received their law degrees from FCSL in Jacksonville. 

See Compl. 15-20. Therefore, because venue is improperly laid in this District, the Complaint 

should be dismissed. 12 

In the alternative, if venue is found to be proper in this District, this action nonetheless 

should be transferred to the Middle District of Florida pursuant to 28 U.S.C. § 1404(a). Courts 

in the Eleventh Circuit look at a number of different factors in deciding whether to transfer a 

case to another, suitable District in the interests of justice: “(1) the convenience of the witnesses; 

(2) the location of documents and other sources of proof; (3) the convenience of the parties; (4) 

the locus of operative facts; (5) the ability of process to compel the attendance of unwilling 

witnesses; (6) the relative means of the parties; (7) the forum’s familiarity with the governing 

law; (8) the weight accorded a plaintiff’s choice of forum; and (9) trial efficiency and the 

interests of justice, based on the totality of the circumstances.” Abbate v. Wells Fargo Bank, 

N.A., No. 09-62047-Civ, 2010 U.S. Dist. LEXIS 95732, at *14 (S.D. Fla. Aug. 31, 2010), citing 

Manuel v. Convergys Corp., 430 F. 3d 1132, 1135 n.1 (11th Cir. 2005). These factors favor 

transfer to the Middle District of Florida. As previously noted, all of the “operative facts” 

occurred in Jacksonville; the school is headquartered there; the documents are there; most of the 

12 The Ferris court exercised its discretion and transferred the case to the Middle District of 

Florida pursuant to 28 U.S.C. § 1406(a), applicable to situations where venue is found to be 

improper, rather than dismiss it outright. See 2008 U.S. Dist. LEXIS 109791, at *13-15. Should 

the case not be dismissed in its entirety for all the reasons set forth herein, FCSL would not 

object to a section 1406(a) transfer to the Middle District of Florida, Jacksonville Division, in the 

interests of justice and judicial economy. 

19


would-be witnesses are located there; the Court’s subpoena power would have greater effect 

there; Florida law governs there as well; one of the named plaintiffs lives there; and it is closer to 

the named Plaintiffs who reside outside of Florida. The only factor that favors keeping the 

action in this District is the presence of one named Plaintiff in Miami, as opposed to the other 

five who live outside Miami. See Compl. 15-20. Accordingly, for the convenience of most of 

the parties and “in the interests of justice,” the action should be transferred to the Middle District 

of Florida, Jacksonville Division, should the Court decline to dismiss it outright. 

CONCLUSION 

For all of the foregoing reasons, FCSL respectfully requests that the Complaint be 

dismissed in its entirety, with prejudice, or, in the alternative, that the Court transfer this action to 

the Middle District of Florida. 

Dated: March 2, 2012 Respectfully submitted, 

RUSSOMANNO & BORRELLO, P.A. 

Museum Tower, Penthouse 2800 

150 West Flagler Street 

Miami, Florida 33130 

Telephone: (305) 373-2101 

Facsimile: (305) 373-2103 

By: /s/ Herman J. Russomanno 

Herman J. Russomanno (Fla. Bar No. 240346) 

Herman J. Russomanno III (Fla. Bar No. 21249) 

Venable LLP 

Rockefeller Center 

1270 Avenue of the Americas, 24th Floor 

New York, NY 10020 

(212) 307-5500 (tel.) 

(212) 307-5598 (fax) 

Counsel for Defendant 

Florida Coastal School of Law 

20


CERTIFICATE OF SERVICE 

I hereby certify that on March 2, 2012, I electronically filed the foregoing document with 

the Clerk of Court using CM/ECF. I also certify that the foregoing document is being served this 

day on the following counsel of record or pro se parties in the manner specified, either via 

transmission of Notices of Electronic Filing generated by CM/ECF and/or via email 

transmission. 

Elio F. Martinez, Jr., Esq. 

Carlos F. Concepcion, Esq. 

Manuel A. Rodriguez, Esq. 

Concepcion Martinez & Bellido 

225 Aragon Avenue, 2 nd Floor 

Coral Gables, Florida 33134 

David Anziska, Esq. 

The Law Offices of David Anziska 

305 Broadway, 9 th Floor 

New York, New York 10007 

Jesse Strauss, Esq. 

Strauss Law, PLLC 

305 Broadway, 9 th Floor 

New York, New York 10007 

/s/ Herman J. Russomanno III 

Herman J. Russomanno III 

21

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