                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-2124
                        ___________________________

                                  Ahmed Soueidan

                        lllllllllllllllllllllPlaintiff - Appellant

                                           v.

                                St. Louis University

                       lllllllllllllllllllllDefendant - Appellee
                                      ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                           Submitted: January 17, 2019
                              Filed: June 14, 2019
                                 ____________

Before SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.
                              ____________

SMITH, Chief Judge.

     Ahmed Soueidan appeals from the district court’s1 order dismissing his
Missouri state-law claims for breach of contract, breach of the implied covenant of
good faith and fair dealing, and fraudulent misrepresentation against St. Louis

      1
       The Honorable Ronnie L. White, United States District Judge for the Eastern
District of Missouri.
University (SLU). Soueidan argues that the district court erroneously dismissed the
claims under the educational malpractice doctrine and for failure to prove the required
elements. He further asserts that the district court erred in denying his request for
leave to amend his complaint. We affirm.

                                  I. Background2
      Soueidan enrolled as a doctoral student at SLU in the Parks College of
Engineering, Aviation and Technology in 2012. SLU represented to Soueidan that he
would obtain his Ph.D. in mechanical and aerospace engineering in four years. In
August 2012, Soueidan met with the department chair to discuss a plan of study. The
department chair drafted a plan for Soueidan to graduate with his doctoral degree in
four years. Soueidan began following the plan and enrolled in coursework.

       Soueidan attempted to find a Ph.D. advisor to supervise his graduate studies,
but he was unable to find anyone willing and able to accept new graduate students.
One professor even told Soueidan that he “should not be in this program.” Compl. at
2, ¶ 10, Soueidan v. St. Louis Univ., No. 4:17-cv-02777 (E.D. Mo. Nov. 27, 2017),
ECF No. 1. As a result, Soueidan completed his first three semesters without an
advisor.

      In December 2013, Professor Raymond Lebeau agreed to serve as Soueidan’s
advisor. Lebeau indicated that he could get Soueidan through the program in two
more years, even though Lebeau had no research or funding for Soueidan. Lebeau
was uncertain about the requisite qualifying examination for Soueidan. As a result,
Soueidan referred to the SLU Graduate Student Handbook (“Handbook”) for

      2
      In reviewing the grant of a motion to dismiss, we recite the facts as alleged in
Soueidan’s complaint and assume them to be true. See Zink v. Lombardi, 783 F.3d
1089, 1098 (8th Cir. 2015) (en banc) (per curiam) (“We assume all facts in the
complaint to be true, and [we] draw all reasonable inferences in favor of the non-
moving party.”).

                                         -2-
guidance. But Lebeau advised Soueidan to disregard the Handbook’s guidelines.
Lebeau told Soueidan that they would “do it our way” and that Soueidan was “a
guinea pig for this program.” Compl. at 3, ¶ 13.

      In August 2014, the graduate coordinator, graduate programs assistant,
department chair, and several professors in the department simultaneously left SLU.
By August 2015, the graduate programs assistant3 and the Dean of the College of
Engineering left their positions. By that time, Soueidan had completed ten graduate-
level courses toward satisfying the course credits requirement for his Ph.D. in
accordance with the Handbook.

       In June 2015, Lebeau advised Soueidan that he needed to attend a conference
to prepare for the qualifying examination. In January 2016, they attended the AIAA
SciTech 2016 conference in San Diego, California. At that conference, Soueidan
presented his thesis work. Soueidan paid for all of his conference expenses.

       In May 2016, Soueidan met with Lebeau and the graduate coordinator to
discuss the timing of Soueidan’s qualifying examination. Thereafter, Lebeau
recommended that Soueidan do a practice exam in preparation for the actual exam.
Following Soueidan’s practice examination, Lebeau told Soueidan that two of the
committee members said Soueidan would not pass his examination. But, Lebeau
noted, a third committee member said he would have passed Soueidan. Lebeau
relayed this information to Soueidan before the actual exam so “bullets wouldn’t go
flying.” Id. at 4, ¶ 16.




      3
        Soueidan averred that the “graduate programs assistant” left SLU “[i]n August
2014,” but he also averred that the “graduate programs assistant” left “[o]ne year
later, in 2015.” Id. at 3, ¶ 14. The complaint does not explain if a new graduate
assistant was hired after August 2014 and departed by August 2015.

                                         -3-
       In August 2016, at the start of his fifth year at SLU, Soueidan took the
qualifying examination. One committee member informed Soueidan prior to the
examination that Soueidan did not follow the guidelines for writing his paper and
questioned his preparedness for the examination. After the examination, Lebeau told
Soueidan that he “should not have been let in here” because Lebeau was “not
interested in new ideas” and was “afraid of putting Mr. Soueidan out there because
Mr. Leabeau didn’t know what Mr. Lebeau was doing and didn’t want to bear that
responsibility.” Id. at 4, ¶ 17 (brackets omitted).

      After not passing the qualifying examination, Soueidan was instructed to take
another written examination and perform additional course work. Notably, Soueidan
had suggested to Lebeau years prior that he take this same written exam. The exam
is normally taken within the first year of Ph.D. studies. Soueidan did enroll in the
recommended additional course. He also met an additional time with the graduate
coordinator and Lebeau to discuss his progress.

        In the fall of 2016, after over four years, Soueidan left the Ph.D. program and
downgraded to a Master’s degree. But, in a final attempt to obtain his Ph.D., Soueidan
spoke with the SLU Provost of Academic Affairs about his situation. The Provost
initially advised Soueidan to leave SLU to join a new program and that the Provost
would help him get his dissertation credits refunded. Later, after speaking with the
Dean of the College of Engineering, the Provost advised Soueidan to find an
established research project. Soueidan was unable to find one.

      In February 2017, at the Provost’s behest, Soueidan renewed his relationship
with Lebeau. Lebeau, however, still showed uncertainty advising Soueidan going
forward. Lebeau directed Soueidan to the Handbook’s guidelines. Lebeau told
Soueidan, “We do it the way SLU does it.” Id. at 5, ¶ 25. Nevertheless, Lebeau
remained unfamiliar with the exam format and procedures. At this point, Soueidan
decided to earn his Ph.D. by beginning anew at a different university.

                                         -4-
       Soueidan filed suit against SLU, alleging Missouri state-law claims for breach
of contract, breach of the implied covenant of good faith and fair dealing, and
fraudulent misrepresentation. In support of his claims, Soueidan referred to several
sections of the Handbook that he claimed SLU failed to follow during his time in the
Ph.D. program. According to Soueidan, SLU’s failure to “meet their obligation[s]”
set forth in the Handbook “made it very unlikely from the beginning that [he] would
be able to achieve his Ph.D. degree at SLU.” Id. at 6, ¶ 30. First, the Handbook
provided that “[y]ou should have an advisor assigned within the first few weeks of
classes starting.” Id. at 6, ¶ 27 (quoting Handbook at 9). Soueidan alleged that “SLU
did not assign an advisor to [him]” within the first few weeks of the program. Id.
Instead, Soueidan was without an advisor until December 2013, “a year and a half
after [he] began the Ph.D. program.” Id. at 6, ¶ 28.

        Second, the Handbook “indicate[d] that students are to meet with their advisor
in January to complete their Annual Student Review.” Id. at 6, ¶ 29 (citing Handbook
at 9). Soueidan alleged that he was deprived of this review, which “would have been
an opportunity for Mr. Soueidan to ‘have a review of [his] work completed, create
goals for the next year of studies and research, and ensure [he was] staying on track
for graduation.’” Id. (bold omitted) (first alteration in original).

       Third, the Handbook stated that “‘[f]or Engineering students, the Qualifying
Exam is scheduled after 2 semesters,’ and that ‘[t]he Qualifying Exam is designed to
determine if the student is prepared to continue Ph.D. studies and carry on with
research.’” Id. at 6, ¶ 31 (second alteration in original) (quoting Handbook at 12).
Soueidan alleged that because he was without an advisor after two semesters, the
Qualifying Exam was not scheduled and he “missed out on another opportunity to
ensure he was on track to obtain a Ph.D.” Id. at 7, ¶ 31. He noted that he did not take
the Qualifying Exam “until August 2016, at the start of his fifth year at SLU.” Id. at
7, ¶ 32 (bold omitted).



                                         -5-
       In support of his claims, Soueidan additionally cited the 2015–2016 SLU
Graduate Education Catalog (“Catalog”). The Catalog “indicate[d] that the Parks
College of Engineering does in fact have a Ph.D. program.” Id. at 7, ¶ 33 (citing
Catalog at 111). Soueidan alleged that “in practice, students who register for the SLU
College of Engineering Ph.D. program are faced with” an insufficient number of
“professors with funding or research to serve as advisors to these Ph.D. Students.” Id.
at 7, ¶ 34. Soueidan alleged that “[a]s a prospective student, [he] had a right to rely
upon the Catalog and that is what he did when enrolling in the Ph.D. program at
SLU.” Id. at 7, ¶ 35.

      Soueidan alleged that SLU’s fraudulent conduct “cost [him] nearly
$200,000.00 in tuition payments.” Id. at 7, ¶ 36.

       SLU moved to dismiss Soueidan’s complaint, and the district court granted the
motion. First, the court determined that Missouri’s educational malpractice doctrine
applied to all of Soueidan’s claims and required dismissal. According to the court,
Soueidan’s claims would impermissibly require it “to determine whether SLU timely
assigned a Ph.D. advisor, conducted a student review, and scheduled the qualifying
examination and how those decisions affected Soueidan’s matriculation.” Soueidan
v. Saint Louis Univ., No. 4:17-cv-02777, 2018 WL 1997287, at *3 (E.D. Mo. Apr. 27,
2018). His claims would also require the court “to analyze whether SLU breached its
contract by ‘failing to award . . . Soueidan the Ph.D. degree he was promised after
completing all directives and 5 years of requisite coursework’” and “to address not
only the quality of the Ph.D. program but also whether Soueidan comprehensively
and adequately completed all of his coursework.” Id. (ellipsis in original) (quoting
Compl. at 8, ¶ 39). The court held that making such determinations would require the
court to examine SLU’s educational process. Thus, the educational malpractice
doctrine barred Soueidan’s claims.




                                         -6-
       Second, the district court alternatively held that Soueidan’s claims of breach
of contract and breach of the covenant of good faith and fair dealing required
dismissal “based upon the timing of this action and of the alleged discrete, contractual
promises relied upon by Soueidan.” Id. at *4. According to the court, “Soueidan was
admitted and accepted into the Ph.D. program in 2012, which is when the alleged
contract would have been formed.” Id. But Soueidan did not receive the alleged
promises until “after his 2012 contract with SLU was formed.” Id. The court noted
that Soueidan “first reviewed the Handbook in December 2013.” Id. Furthermore,
Soueidan’s claims were also premised on “promises contained in the 2015–2016
Catalog[ ].” Id. “Thus,” the court concluded, “Soueidan could not have relied upon
these promises in the Handbook and Catalog when he e[nr]olled in the Ph.D. program
in 2012.” Id. The court held that Soueidan’s breach claims failed because Soueidan
failed “to identify any promises that he relied upon when he e[nr]olled in 2012.” Id.

       Third, the court held that Soueidan’s fraudulent misrepresentation claim
required dismissal because “Soueidan . . . failed to allege a fraud that is independent
of his contract action. Rather, his fraud claim is based upon the same promises and
actions that he alleged to support his breach of contract claim.” Id.

      Finally, the district court “denie[d] Soueidan’s request to file an amended
complaint because he . . . failed to provide a proposed amendment along with his
request.” Id. at *5.

                                   II. Discussion
      On appeal, Soueidan argues that the district court erroneously dismissed his
Missouri state-law claims for breach of contract, breach of the covenant of good faith
and fair dealing, and fraudulent misrepresentation. Specifically, Soueidan contends
he provided sufficient evidence of all the required elements in each cause of action
and that the court should not have applied Missouri’s educational malpractice



                                          -7-
doctrine. He further asserts that the district court erred in denying his request for
leave to amend his complaint.

                         A. Educational Malpractice Doctrine
       We review de novo a district court’s grant of a motion to dismiss. BNSF Ry.
Co. v. Seats, Inc., 900 F.3d 545, 546 (8th Cir. 2018). To survive a motion to dismiss,
the plaintiff must show that he “is entitled to relief, by alleging sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Id.
(quoting In re Pre-Filled Propane Tank Antitrust Litig., 860 F.3d 1059, 1063 (8th
Cir. 2017) (en banc)).

      The district court determined that the educational malpractice doctrine bars all
of Soueidan’s claims. We agree.

      In educational malpractice cases, a plaintiff sues his or her academic
      institution for tortiously failing to provide adequate educational
      services. If a negligence claim raises questions concerning the
      reasonableness of the educator’s conduct in providing educational
      services, then the claim is one of educational malpractice. Similarly, if
      the claim requires an analysis of the quality of education received and
      in making that analysis the fact-finder must consider principles of duty,
      standards of care, and the reasonableness of the defendant’s conduct,
      then the claim is one of educational malpractice. If the duty alleged to
      have been breached is the duty to educate effectively, the claim is one
      of educational malpractice. A claim that educational services provided
      were inadequate, substandard, or ineffective constitutes a claim of
      educational malpractice. Where the court is asked to evaluate the course
      of instruction or the soundness of the method of teaching that has been
      adopted by an educational institution, the claim is one of educational
      malpractice.

Dallas Airmotive, Inc. v. FlightSafety Int’l, Inc., 277 S.W.3d 696, 700 (Mo. Ct. App.
2008) (cleaned up).

                                          -8-
       “Generally, courts have refrained from recognizing educational malpractice
claims, either in tort or contract, on the premise that ‘[u]niversities must be allowed
the flexibility to manage themselves and correct their own mistakes.’” Lucero v.
Curators of Univ. of Mo., 400 S.W.3d 1, 8 (Mo. Ct. App. 2013) (alteration in original)
(quoting Miller v. Loyola Univ. of New Orleans, 829 So.2d 1057, 1061 (La. Ct. App.
2002)). Missouri courts have “refuse[d] to recognize a claim for educational
malpractice” because it is not the role of courts “to micromanage a university’s daily
operations.” Id. (citing Dallas Airmotive, Inc., 277 S.W.3d at 700 (“[C]ourts have
refused to become the overseers of both the day-to-day operation of [the] educational
process as well as the formulation of its governing policies” (second alteration in
original) (internal quotations omitted))).

       In the present case, Soueidan relies on the Catalog and Handbook in support
of his contract and fraudulent misrepresentation claims. But all of the statements
provided in these sources are “aspirational in nature.” Id. at 6. First, the Handbook’s
statement that “[y]ou should have an advisor assigned within the first few weeks of
classes starting,” Compl. at 6, ¶ 27 (quoting Handbook at 9) (emphasis added), does
not create an obligation on the part of SLU to assign Soueidan an advisor. Not only
does the Handbook fail to specify who assigns the advisor, but it also uses the term
“should,” not “must” or “shall.” Cf. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581,
599 (1999) (“The Developmentally Disabled Assistance and Bill of Rights Act, a
1975 measure, stated in aspirational terms that ‘[t]he treatment, services, and
habilitation for a person with developmental disabilities . . . should be provided in the
setting that is least restrictive of the person’s personal liberty.’” (first emphasis
added) (alterations in original) (citation omitted)); Gutierrez de Martinez v. Lamagno,
515 U.S. 417, 432 n.9 (1995) (“Though ‘shall’ generally means ‘must,’ legal writers
sometimes use, or misuse, ‘shall’ to mean ‘should,’ ‘will,’ or even ‘may.’”); Union
Elec. Co. v. Consolidation Coal Co., 188 F.3d 998, 1001 (8th Cir. 1999) (“The parties
could easily have made the GIC obligatory by using mandatory language, such as
‘must and shall’ rather than ‘may and should.’”).

                                          -9-
      Second, Soueidan’s allegation that the Handbook provided that “students are
to meet with their advisor in January to complete their Annual Student Review,”
Compl. at 6, ¶ 29 (citing Handbook at 9), creates no obligation on SLU’s behalf. This
alleged promise is dependent on the Handbook’s prior statement that the student
“should have an advisor assigned.” Id. at 6, ¶ 27 (quoting Handbook at 9).
Furthermore, Soueidan has not alleged that the Handbook says that the advisors
“must” or “shall” meet with the students; instead, he alleges that the Handbook places
the onus on the students to meet with their advisor.4 Therefore, the Handbook
language, as Soueidan alleges that it reads, indicates more of a recommendation or
goal and is “aspirational in nature.” See Lucero, 400 S.W.3d at 6.

       Third, the Handbook’s statement that “‘[f]or Engineering students, the
Qualifying Exam is scheduled after 2 semesters,’” Compl. at 6, ¶ 31 (quoting
Handbook at 12), does not constitute an obligation that SLU owed to Soueidan. As
with the two prior provisions, the cited language contains no mandatory language that
the Qualifying Exam “must” or “shall” be scheduled within two semesters. And, the
provision does not say who schedules the Qualifying Exam.

       In addition to the Handbook, Soueidan’s complaint alleges that the Catalog
“indicates that the Parks College of Engineering does in fact have a Ph.D. program.”
Id. at 7, ¶ 33 (citing Catalog at 111). Like the Handbook, the Catalog does not
affirmatively set forth any obligation on behalf of SLU. Soueidan has cited no
mandatory language from the Catalog guaranteeing that Soueidan will earn his Ph.D.
degree in a certain number of years or earn the degree at all.




      4
      Soueidan’s complaint did not directly quote the actual language from the
Handbook; however, nowhere does he indicate that the Handbook uses mandatory
language.


                                        -10-
       If we “wade[d] into the issue of how closely [SLU] operated within the
constructs of the . . . aspirational [Handbook and Catalog] provisions cited by
[Soueidan], [we] would be forced to engage—with complete disregard for Missouri
law—in an educational malpractice analysis rife with . . . practical and policy
concerns.” Gillis v. Principia Corp., 111 F. Supp. 3d 978, 985 (E.D. Mo. 2015), aff’d,
832 F.3d 865 (8th Cir. 2016). As the district court aptly explained, Soueidan’s claims
would impermissibly require it “to determine whether SLU timely assigned a Ph.D.
advisor, conducted a student review, and scheduled the qualifying examination and
how those decisions affected Soueidan’s matriculation”; “to analyze whether SLU
breached its contract by ‘failing to award . . . Soueidan the Ph.D. degree he was
promised after completing all directives and 5 years of requisite coursework’”; and
“to address not only the quality of the Ph.D. program but also whether Soueidan
comprehensively and adequately completed all of his coursework.” Soueidan, 2018
WL 1997287, at *3 (ellipsis in original) (quoting Compl. at 8, ¶ 39). Such
“intervention by the court would amount to judicial supervision of [SLU’s] internal
procedures for monitoring” the progress of its doctoral students.” Lucero, 400 S.W.3d
at 8 (“With this purpose in mind, any intervention by the court would amount to
judicial supervision of a university’s internal procedures for monitoring its faculty.”).

      Accordingly, we affirm the district court’s dismissal of Soueidan’s claims
based on the educational malpractice doctrine.

                     B. Request for Leave to Amend Complaint
        Soueidan also challenges the district court’s denial of his request for leave to
amend his complaint. Soueidan conditionally requested leave to amend his complaint
in his response to SLU’s motion to dismiss. Soueidan did not disclose what he would
change in the complaint, nor did he attach a proposed amended pleading or file a
separate motion for leave to amend. The district court denied Soueidan’s request to




                                          -11-
file an amended complaint “because he . . . failed to provide a proposed amendment
along with his request.” Soueidan, 2018 WL 1997287, at *5.

       Soueidan argues that the district court abused its discretion in denying his
request for leave to amend his complaint. See Wolgin v. Simon, 722 F.2d 389, 394
(8th Cir. 1983) (standard of review). We addressed a substantially similar situation
in Wolgin. In that case, the appellant, “[i]n his brief in opposition to the appellees’
motion to dismiss, . . . concluded his argument by requesting leave to amend the
complaint if the court granted the appellees’ motion.” Id. (emphases added). The
appellant contended that the district court construe the request “as a motion for leave
to amend.” Id. We rejected the appellant’s argument based on his failure to preserve
the right to amend by submitting a proposed amendment with a motion. Id. at 394–95.

       Soueidan attempts to distinguish Wolgin by arguing that the appellant in that
case filed a motion for leave to amend pursuant to Federal Rule of Civil Procedure
15(a), while Soueidan did not file a Rule 15(a) motion but rather only sought
permission to file a Rule 15 motion. Contrary to Soueidan’s argument, the appellant
in Wolgin did precisely what Soueidan did here—“concluded his argument [in his
brief in opposition] by requesting leave to amend the complaint if the court granted
the appellees’ motion.” Id. at 394. As a result, Wolgin is controlling. We, therefore,
hold that the district court did not abuse its discretion in denying Soueidan leave to
amend when Soueidan “did not submit a proposed amendment to the trial court, nor
[include] anything in [his] brief to indicate what an amended complaint would have
contained.” Id.5


      5
       Even if Soueidan were allowed to amend his complaint, such amendment
would be futile. Plymouth Cty., Iowa v. Merscorp, Inc., 774 F.3d 1155, 1160 (8th Cir.
2014) (“[A] party is not entitled to amend a complaint without making a showing that
such an amendment would be able to save an otherwise meritless claim.”). Soueidan
argues his amended complaint would “add an allegation that he looked at the


                                         -12-
                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




Handbook at the time he enrolled or that the Handbook terms were in existence at that
time” to remedy the district court’s conclusion that Soueidan’s contract claims failed
because Soueidan could not have relied upon alleged promises set forth in the
Handbook and Catalog that he received after he formed his alleged 2012 contract
with SLU. Appellant’s Br. at 31. Additionally, he asserts he would “clarify that the
representation that there is a Ph.D. program at all, through which any student can
obtain a Ph.D., is distinct from a promise to provide a Ph.D. within a certain
timeframe so long as he followed certain steps, and was a representation made at the
time he applied for the program.” Id. But these amendments would not remedy the
fact that the educational malpractice doctrine bars Soueidan’s claims.


                                        -13-
