United States District Court, W.D. Missouri, Western Division
ROBBY BROWN, Individually and o/b/o all others similarly situated, Plaintiff,
ADTALEM GLOBAL EDUCATION, INC., a Delaware Corporation, et al., Defendants.
ORDER AND OPINION GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION TO DISMISS
D. SMITH, SENIOR JUDGE.
is Defendants' motion to dismiss for failure to state a
claim. Doc. #13. For the following reasons, Defendants'
motion is granted in part and denied in part.
is a former student of Defendant DeVry University
(“DeVry”), a for-profit university. At all times
relevant to this matter, DeVry was owned and operated by
Defendant Adtalem Global Education, Inc.
(“Adtalem”). Plaintiff states he enrolled at
DeVry because of Defendants' marketing campaigns, which
allegedly were false and misleading, and included
misrepresentations. He identifies two marketing campaigns.
Defendants claimed 90% of their students actively seeking
employment had careers in their fields of study within six
months of graduation (“90% Placement Claim”).
Plaintiff contends the 90% Placement Claim included graduates
who continued employment with jobs they had prior to
attending DeVry, included graduates who were not employed in
their chosen fields, and excluded graduates who were
unsuccessful in obtaining jobs after graduation. Second,
Defendants represented DeVry graduates obtained jobs with
significantly higher incomes than graduates of other colleges
or universities (“Higher Income Claim”).
alleges he saw or heard Defendants' 90% Placement Claim
and Higher Income Claim (collectively, “the
Claims”) in television and radio advertisements, in
telephone calls with DeVry representatives, on DeVry's
website, in brochures, and during in-person meetings in 2010.
Based on the Claims made to him, Plaintiff enrolled at DeVry
and began taking classes in June 2010 in Kansas City,
January 2016, the Federal Trade Commission
(“FTC”) filed a lawsuit against DeVry alleging
the Claims were false, deceptive, unfair, misleading,
unsubstantiated, and illegal. Doc. #1, at 8 n.6. At the same
time, “DeVry received a Notice of Intent to Limit from
the Department of Education (“DOE”) Office of
Federal Student Aid…, informing DeVry of the DOE's
intention to impose certain limitations on DeVry because of
its statements regarding the post-graduation employment
outcomes of DVU students.” Id. According to
Plaintiff the DOE concluded “DeVry could not provide
evidence to substantiate th[e] [90% Placement] claim.”
Id. In March 2016, the Department of Veterans
Affairs (“VA”), in light of the FTC's
lawsuit, suspended DeVry from participating in a program
wherein it was identified as a school “doing a good job
of serving former troops.” Id. State attorneys
general also launched investigations into DeVry. Id.
Although DeVry denied the allegations against it, it
stipulated to the entry of an order for permanent injunction
and monetary judgment. Fed. Trade Comm'n. v. DeVry
Educ. Grp. Inc., No. 16-CV-579 (C.D. Cal. Dec. 15, 2016)
(Doc. #97). Among other things, DeVry agreed to pay $49, 400,
000.00 to the FTC, $30, 351, 019.00 “in forgiveness of
unpaid private student loans that DeVry issued directly to
current or past students, ” and $20, 248.981.00
“in forgiveness of debts from accounts receivable,
relating to debts of” DeVry students. Id. at
learning of the FTC's allegations against DeVry,
Plaintiff and three others filed a complaint against
Defendants in the United States District Court for the
Northern District of Illinois alleging claims under unfair
competition, consumer fraud, and false advertising statutes,
and asserting claims based on contract and tort theories of
relief. Robinson v. DeVry Educ. Grp., Inc., No. 16
CV 7447, 2018 WL 828050, at *1 (N.D.Ill. Feb. 12, 2018). The
Northern District found Plaintiff, who resides in Missouri
and took DeVry classes in Missouri, could not bring a claim
under the Illinois statutes. Id. at *2, 4. Because
his claims did “not fall within the scope of the
statute[s], ” the Northern District dismissed
Plaintiff's claims. Id. The Northern District
did not evaluate the merits of Plaintiff's fraud-based
is one of three cases asserting similar claims against
Defendants in which the Northern District has considered
motions to dismiss. See also Polly v. Adtalem Global
Educ., Inc., No. 16 CV 9754, 2019 WL 587409 (N.D.Ill.
Feb. 13, 2019); Petrizzo v. DeVry Educ. Grp. Inc.,
No. 16 CV 9754, 2018 WL 827995 (N.D.Ill. Feb. 12, 2018).
Petrizzo met the same demise as Robinson in that the Northern
District found the plaintiffs failed to “allege facts
sufficient to show that [they] suffered actual, measurable,
non-speculative damages.” 2018 WL 827995, at *5-6. In
Polly, the Northern District concluded the plaintiffs
sufficiently pleaded a cognizable theory of damages but
dismissed the complaint because the plaintiffs failed to
specifically plead their fraud claims. 2019 WL 587409, at
March 29, 2019, Plaintiff, individually and on behalf of
others similarly situated, filed a lawsuit against Defendants
in this Court alleging fraudulent misrepresentation,
fraudulent concealment, violations of the Missouri
Merchandising Practices Act (“MMPA”), negligence,
breach of fiduciary duty, conversion, and unjust enrichment.
Doc. #1. Defendants move to dismiss Plaintiff's
claims, arguing he fails to state a claim upon which relief
may be granted. Doc. #13.
liberal pleading standard created by the Federal Rules of
Civil Procedure requires “a short and plain statement
of the claim showing that the pleader is entitled to
relief.” Erickson v. Pardus, 551 U.S. 89, 93
(2007) (per curiam) (quoting Fed.R.Civ.P. 8(a)(2)).
“Specific facts are not necessary; the statement need
only 'give the defendant fair notice of what
the…claim is and the grounds upon which it
rests.'” Id. (citing Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). The Court must
accept the plaintiff's factual allegations as true
“and view them in the light most favorable to the
Plaintiff[ ].” Stodghill v. Wellston Sch.
Dist., 512 F.3d 472, 476 (8th Cir. 2008).
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face. A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. The
plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility
that a defendant has acted unlawfully. Where a complaint
pleads facts that are merely consistent with a
defendant's liability, it stops short of the line between
possibility and plausibility of entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
considering a motion to dismiss, the court “can choose
to begin by identifying pleadings that, because they are no
more than conclusions, are not entitled to the assumption of
truth.” Id. at 679. “[L]egal conclusions
can provide the framework” for a claim, but the legal
conclusions “must be supported by factual
faced with “well-pleaded factual allegations, a court
should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.”
parties agree Plaintiff's “damages cannot rest upon
guesswork, conjecture, or speculation beyond inferences that
can reasonably decide the case.” McLean v.
Ponder,418 S.W.3d 482, 496 (Mo.Ct.App. 2013) (citation
and internal quotations omitted); Doc. #14, at 15-17; Doc.
#20, at 15-18. Defendants argue Plaintiff does not adequately