Walkowiak v. Bridgepoint Education, Inc.

Filing 31

OPINION AND ORDER: For the reasons set forth in the Opinion and Order, the 17 Motion to Dismiss is GRANTED. Count Two of the complaint is DISMISSED WITHOUT PREJUDICE. Signed by Judge Rudy Lozano on 6/5/17. (jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
MONICA LYNN WALKOWIAK,
Plaintiff,
vs.
BRIDGEPOINT EDUCATION, INC.
d/b/a ASHFORD UNIVERSITY, LLC.,
et al.,
Defendants.

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NO. 2:16-CV-438

OPINION AND ORDER
This matter is before the Court on Defendant’s Partial Motion
to Dismiss Count Two of Plaintiff’s Complaint, filed on December 9,
2016 (DE #17).
GRANTED.

Count

For the reasons set forth below, the motion is
Two

of

the

Complaint

is

DISMISSED

WITHOUT

PREJUDICE.

BACKGROUND
Monica Lynn Walkowiak (“Walkowiak”) brought suit against
Bridgepoint

Education,

(“Bridgepoint”).

She

Inc.,

d/b/a/

alleges

that

Ashford
she

University,

received

calls

LLC.
from

Bridgepoint, that she requested that Bridgepoint cease calling her,
and that Bridgepoint has continued to call her despite her request.
She asserts violations of the Telephone Consumer Protection Act
(“TCPA”) and the Indiana Deceptive Consumer Sales Act (“IDCSA”).

Bridgepoint filed the instant motion to dismiss arguing that
Count Two of the complaint, alleging a violation of IDCSA, fails to
state a claim upon which relief can be granted.

The motion is

fully briefed and ripe for adjudication.

DISCUSSION
Federal Rule of Civil Procedure 12(b)(6) allows a complaint to
be dismissed if it fails to “state a claim upon which relief can be
granted.”

Fed. R. Civ. P. 12(b)(6).

Allegations other than fraud

and mistake are governed by the pleading standard outlined in
Federal Rule of Civil Procedure 8(a), which requires a “short and
plain statement” that the pleader is entitled to relief. Maddox v.
Love, 655 F.3d 709, 718 (7th Cir. 2011).
In order to survive a Rule 12(b)(6) motion, the complaint
“must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’”

Ashcroft

v. Iqbal, 129 S. Ct. 1937, 1949 (2009)(quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). All well-pleaded facts must
be accepted as true, and all reasonable inferences from those facts
must be resolved in the plaintiff’s favor.
521 F.3d 686, 692 (7th Cir. 2008).

Pugh v. Tribune Co.,

However, pleadings consisting

of no more than mere conclusions are not entitled to the assumption
of truth.
conclusions

Iqbal, 556 U.S. at 678-79.
couched

as

factual

2

This includes legal

allegations,

as

well

as

“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements.”

Id. at 678 (citing

Twombly, 550 U.S. at 555).
Furthermore, when fraud is alleged Rule 9(b) requires that a
party “state with particularity the circumstances constituting
fraud.”

Fed. R. Civ. P. 9(b).

“[A] plaintiff ordinarily must

describe the ‘who, what, when, where, and how’ of the fraud.”
Pirelli

Armstrong

Tire

Corp.

Retiree

Med.

Benefits

Trust

v.

Walgreen Co., 631 F.3d 436, 441–42 (7th Cir. 2011) (citation
omitted).

Indiana Deceptive Consumer Sales Act
The

IDCSA

is

a

remedial

statute

designed

to

“provide[]

remedies to consumers . . . for practices that the General Assembly
deemed deceptive in consumer transactions.”

Banks v. Jamison, 12

N.E.3d 968, 974, n. 6 (Ind. Ct. App. 2014) (citing McKinney v.
State, 693 N.E.2d 65, 67 (Ind. 1998)).

The IDCSA is to be

liberally construed to protect the consumer. See Kesling v. Hubler
Nissan, Inc., 997 N.E.2d 327, 332 (Ind. 2013).

If a supplier1

engages in “deceptive acts,” a consumer may file suit pursuant to
the IDCSA.

Perry v. Gulf Stream Coach, Inc., 814 N.E.2d 634, 646

(Ind. Ct. App. 2004).

A deceptive act is actionable if it is

1

Supplier is defined as “[a] seller, lessor, assignor, or other person
who regularly engages in or solicits consumer transactions.” Ind. Code § 245-0.5-2(a)(3)(A) (2007) (emphasis added).

3

either “uncured” or “incurable.”

Perry, 814 N.E.2d at 647.

In

general, an action may not be brought pursuant to the IDCSA based
on an uncured act unless notice is provided in accordance with the
IDCSA. Ind. Code § 24-5-0.5-5(a); McCormick Piano & Organ Co., Inc.
v. Geiger, 412 N.E.2d 842, 849 (Ind. Ct. App. 1980).
In response to the instant motion, Walkowiak clarified that
her claim is based upon an allegedly incurable deceptive act. An
incurable deceptive act is one that is “done by a supplier as part
of

a

scheme,

mislead.”

artifice,

or

device

with

Ind. Code § 24-5-0.5-2(a)(8).

intent

to

defraud

or

“Intent to defraud or

mislead is thus clearly an element of an incurable deceptive act.”
Perry, 814 N.E.2d at 647 (citing McKinney v. State, 693 N.E.2d 65,
68 (Ind. 1998)).

As a result, a plaintiff pleading an IDCSA claim

must meet the heightened standards of Federal Rule of Civil
Procedure 9(b). See Lyons v. Leatt Corp., No. 4:15-cv-17-TLS, 2015
WL 7016469, at *4 (N.D. Ind. Nov. 10, 2015)(citing McKinney v.
State, 693 N.E.2d 65, 67 (Ind. 1998)); Jasper v. Abbott Labs.,
Inc., 834 F.Supp.2d 766, 773 (N.D. Ill. 2011)(“Without actual
written notice to Abbott, Jasper may only recover against Abbott
for an incurable deceptive act, which requires that she satisfy
Rule 9(b)’s heightened pleading standard.”).
The complaint at issue here is nearly identical to the
complaint before Judge Richard L. Young in Eha v. Bridgepoint
Education, Inc., 1:17-CV-96-RLY-TAB (S.D. Ind. May 3, 2017)(order
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granting partial motion to dismiss).

When faced with a similar

motion to dismiss, Judge Young found the complaint did not allege
that Bridgepoint intended to defraud or mislead the plaintiff and
that the complaint did not meet the requirements of Rule 9(b)
because it did not allege who the plaintiff spoke with, what was
said, or how she relied on the representations made to her. (DE
#29-1). The same is true here. Accordingly, the motion to dismiss
must be granted.

CONCLUSION
For the aforementioned reasons, the instant motion to dismiss
(DE # 17) is GRANTED.

Count Two of the complaint is DISMISSED

WITHOUT PREJUDICE.

DATED: June 5, 2017

/s/ RUDY LOZANO, Judge
United States District Court

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