IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

MONICA LYNN WALKOWIAK, )

)

Plaintiff, )

) NO. 2:16-CV-438

vs. )

)

BRIDGEPOINT EDUCATION, INC. )

d/b/a ASHFORD UNIVERSITY, LLC., )

et al., )

)

Defendants. )

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). For the reasons set forth below, the motion is

GRANTED. Count Two of the Complaint is DISMISSED WITHOUT

PREJUDICE. 

BACKGROUND 

Monica Lynn Walkowiak (“Walkowiak”) brought suit against

Bridgepoint Education, Inc., d/b/a/ Ashford University, LLC.

(“Bridgepoint”). She alleges that she received calls 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. Pugh v. Tribune Co.,

521 F.3d 686, 692 (7th Cir. 2008). However, pleadings consisting

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

of truth. Iqbal, 556 U.S. at 678-79. This includes legal

conclusions couched as factual allegations, as well as

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“[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 § 24-

5-0.5-2(a)(3)(A) (2007) (emphasis added). 

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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, artifice, or device with intent to defraud or

mislead.” Ind. Code § 24-5-0.5-2(a)(8). “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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