Walkowiak v. Bridgepoint Education, Inc., 2:16-cv-00438

Plaintiff Monica Walkowiak alleges Bridgepoint Education (d/b/a Ashford University) called her repeatedly after she asked the calls to stop, and she sued under the Telephone Consumer Protection Act and the Indiana Deceptive Consumer Sales Act (IDCSA).
Defendant moved under Fed. R. Civ. P. 12(b)(6) to dismiss Count Two (IDCSA claim) for failure to state a claim.
Walkowiak clarified her IDCSA theory rested on an "incurable" deceptive act, which under Indiana law requires intent to defraud or mislead and thus triggers Rule 9(b)’s particularity requirement for fraud-based claims.
The complaint alleged continued calls after a cessation request but did not plead specific facts showing who made misrepresentations, what was said, when, or how Bridgepoint intended to defraud or mislead.
The district court found the pleading deficient under Twombly/Iqbal and Rule 9(b), and concluded the IDCSA count failed to plausibly allege intent or satisfy fraud particularity, mirroring a similar decision in a related Bridgepoint case.
Result: Court granted the partial motion to dismiss and dismissed Count Two without prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Walkowiak pleaded an actionable IDCSA "incurable" deceptive act	Walkowiak contends repeated calls after a stop request constitute an incurable deceptive act under IDCSA	Bridgepoint argues the complaint lacks facts showing an intent to defraud or mislead required for an incurable act	Dismissed: plaintiff failed to plausibly allege intent; claim deficient
Whether Rule 9(b) particularity applies and was satisfied	Walkowiak argued her allegation of an incurable act obviates notice and is sufficient	Bridgepoint argued Rule 9(b) applies to incurable-act claims and the complaint lacks the who/what/when/where/how	Held: Rule 9(b) applies and complaint did not meet its heightened pleading standard
Whether the complaint met Twombly/Iqbal plausibility standards	Walkowiak relied on factual allegations of repeat calls and request to stop as sufficient	Bridgepoint argued allegations are conclusory and do not plausibly show deceptive intent or scheme	Held: Allegations are threadbare/conclusory; do not state a plausible claim
Whether dismissal should be with prejudice	Walkowiak sought to proceed on IDCSA count	Bridgepoint sought dismissal	Held: Count Two dismissed without prejudice (plaintiff may replead)

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (pleading must state a plausible claim and legal conclusions are not entitled to be presumed true)
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (complaint must allege enough facts to state a claim that is plausible on its face)
Pugh v. Tribune Co., 521 F.3d 686 (7th Cir. 2008) (all reasonable inferences drawn in plaintiff's favor at pleading stage)
Perry v. Gulf Stream Coach, Inc., 814 N.E.2d 634 (Ind. Ct. App. 2004) (incurable deceptive act requires intent to defraud or mislead under IDCSA)
McKinney v. State, 693 N.E.2d 65 (Ind. 1998) (interpretation of IDCSA and requirement of intent for incurable acts)
Kesling v. Hubler Nissan, Inc., 997 N.E.2d 327 (Ind. 2013) (IDCSA to be liberally construed to protect consumers)