United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
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.
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
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.
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).
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
“[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
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
Deceptive Consumer Sales Act '
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
supplierengages 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
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.
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.”).
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 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, ...