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Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 30 3:00 PM-18CV002305
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IN THE FRANKLIN COUNTY COURT OF COMMON PLEAS
CIVIL DIVISION
ED MAP, INC.
Plaintiff,
Case No. 2018 CV 2305
Judge Cain
DELTA CAREER EDUCATION
CORPORATION, et al.,
Defendants.
PLAINTIFF ED MAP’S MOTION FOR LEAVE TO FILE A SUR-REPLY, INSTANTER,
TO DEFENDANTS STVT-AAI EDUCATION, INC.’S AND
ANCORA INTERMEDIATE HOLDINGS LLC’S REPLY FILED JULY 6, 2018
Plaintiff Ed Map, Inc. (“Ed Map”) respectfully requests leave to file a sur-reply,
instanter, in opposition to Defendants STVT-AAI Education Inc. (“Ancora”), and Ancora
Intermediate Holdings LLC’s (“Ancora Holdings”) (collectively, the “Ancora
Defendants”) Reply in Support Of Their Motion dismiss filed July 6, 2018 (“Reply”). In
their Reply, the Ancora Defendants mistakenly contend that Ed Map was required to
submit one or more competing affidavits and that it could not rely only on the
Amended Complaint, the documentary evidence attached to the Amended Complaint,
and on the statements in the affidavit that the Ancora Defendants submitted. A sur-
reply is warranted to address those misstatements in the Ancora Defendants’ Reply.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 30 3:00 PM-18CV002305
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Respectfully submitted
/s/ Allen T. Carter
Elizabeth L. Moyo (0081051)
Allen T. Carter (0085393)
Porter, Wright, Morris & Arthur LLP
41 South High Street, 29" Floor
Columbus, Ohio 43215
Telephone (614) 227-2000
Facsimi (614) 227-2100
Attorneys for Plaintiff Ed Map, Inc.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 30 3:00 PM-18CV002305
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MEMORANDUM IN SUPPORT
The Court should exercise its discretion and permit Ed Map to file a sur-reply to
address the misstatements that the Ancora Defendants made in their Reply. See First
Fin. Servs. v. Cross Tabernacle Deliverance Church, Inc., 10th Dist. Franklin No. 0O6AP-404,
2007-Ohio-4274, {| 39 (“[I]t was within the discretion of the trial court whether to grant
the appellant's motion for leave to file a surreply.”), citing Morris-Walden v. Moore, 8th
Dist. Cuyahoga No. 87989, 2007-Ohio-262, {| 27. A sur-reply is appropriate when it
addresses new matters or matters that could not have been raised in the initial response.
Id.
The Ancora Defendants’ Reply raises a new argument that distorts the legal
standard for granting a motion to dismiss for lack of personal jurisdiction, arguing that
the law requires affidavit evidence to be construed in favor of the moving party over
the well-pleaded allegations in a plaintiff's complaint. (Reply at 2-3.) In support, the
Ancora Defendants claim that Ed Map failed to include a rebuttal affidavit or additional
evidence, despite the fact that Ed Map is not required to submit a competing affidavit
particularly where, as here, Defendants have not requested an evidentiary hearing. See
Info. Leasing Corp. v. Baxter, 1st Dist. Hamilton No. C-020029, 2002-Ohio-3930, {| 4. In
fact, the Ancora Defendants seek to avoid any jurisdictional discovery that would
reveal unfavorable evidence and contend that an evidentiary hearing is unnecessary.
(Reply at 5-6.) Under these circumstances and as set forth in the attached sur-reply , a
Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 30 3:00 PM-18CV002305
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defendant's well-pleaded allegations must be construed favorably on a motion to
dismiss, even against a plaintiff's affidavit. Reed Elsevier, Inc. v. Feder, 2d Dist.
Montgomery No. 26680, 2015-Ohio-5013, {[] 26-27; Clow Water Sys. Co. v. Giuliani
Assocs., 5th Dist. No. 99-CA-008, 1999 Ohio App. LEXIS 3872 (Aug. 18, 1999), at *6.
Although the Ancora Defendants are mistaken about the legal standard, out of
an abundance of caution, Ed Map has attached an affidavit to its sur-reply to support its
well-pleaded factual allegations in its Amended Complaint. The Court should consider
the affidavit and resolve the issue of personal jurisdiction on its merits — not on
procedural formalities. See Cross v. Biviano, 11th Dist. Trumbull No. 2000-T-0123, 2001
Ohio App. LEXIS 4629, *13 (“Decisions on the merits should not be avoided on the basis
of mere technicalities.”), citing Conley v. Gibson, 355 U.S. 41, 48 (1957). Upon construing
the allegations in the Amended Complaint, the documentary evidence attached to the
Amended Complaint, and the affidavits in Ed Map’s favor, the Court should exercise
jurisdiction over the Ancora Defendants.
For the foregoing reasons, Ed Map requests leave to file the attached sur-reply,
instanter. A proposed order also has been submitted for the Court’s convenience.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 30 3:00 PM-18CV002305
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Respectfully submitted
/s/ Allen T. Carter
Elizabeth L. Moyo (0081051)
Allen T. Carter (0085393)
Porter, Wright, Morris & Arthur LLP
41 South High Street, 29" Floor
Columbus, Ohio 43215
Telephone (614) 227-2000
Facsimi (614) 227-2100
Attorneys for Plaintiff Ed Map, Inc.
CERTIFICATE OF SERVICE
The undersigned certifies that on July 30, 2018, the foregoing was served via the court’s
electronic filing system on the following:
C. Craig Woods, Esq.
Andrew H. King, Esq
Michael T. Mullaly, Esq.
Squire Patton Boggs (US) LLP
2000 Huntington Center
41 South High Street
Columbus, Ohio 43125
Counsel for Defendants
STVT-AAI Education, Inc.
dba Ancora Education and
Ancora Intermediate Holdings LLC
/s/ Allen T. Carter
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 30 3:00 PM-18CV002305 0E258 - H92 IN THE FRANKLIN COUNTY COURT OF COMMON PLEAS CIVIL DIVISION ED MAP, INC. Plaintiff, Case No. 2018 CV 2305 Judge Cain DELTA CAREER EDUCATION CORPORATION, et al., Defendants. PLAINTIFF ED MAP’S MOTION FOR LEAVE TO FILE A SUR-REPLY, INSTANTER, TO DEFENDANTS STVT-AAI EDUCATION, INC.’S AND ANCORA INTERMEDIATE HOLDINGS LLC’S REPLY FILED JULY 6, 2018 Plaintiff Ed Map, Inc. (“Ed Map”) respectfully requests leave to file a sur-reply, instanter, in opposition to Defendants STVT-AAI Education Inc. (“Ancora”), and Ancora Intermediate Holdings LLC’s (“Ancora Holdings”) (collectively, the “Ancora Defendants”) Reply in Support Of Their Motion dismiss filed July 6, 2018 (“Reply”). In their Reply, the Ancora Defendants mistakenly contend that Ed Map was required to submit one or more competing affidavits and that it could not rely only on the Amended Complaint, the documentary evidence attached to the Amended Complaint, and on the statements in the affidavit that the Ancora Defendants submitted. A sur- reply is warranted to address those misstatements in the Ancora Defendants’ Reply. Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 30 3:00 PM-18CV002305 0E258 - H93 Respectfully submitted /s/ Allen T. Carter Elizabeth L. Moyo (0081051) Allen T. Carter (0085393) Porter, Wright, Morris & Arthur LLP 41 South High Street, 29" Floor Columbus, Ohio 43215 Telephone (614) 227-2000 Facsimi (614) 227-2100 Attorneys for Plaintiff Ed Map, Inc. Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 30 3:00 PM-18CV002305 0E258 - H94 MEMORANDUM IN SUPPORT The Court should exercise its discretion and permit Ed Map to file a sur-reply to address the misstatements that the Ancora Defendants made in their Reply. See First Fin. Servs. v. Cross Tabernacle Deliverance Church, Inc., 10th Dist. Franklin No. 0O6AP-404, 2007-Ohio-4274, {| 39 (“[I]t was within the discretion of the trial court whether to grant the appellant's motion for leave to file a surreply.”), citing Morris-Walden v. Moore, 8th Dist. Cuyahoga No. 87989, 2007-Ohio-262, {| 27. A sur-reply is appropriate when it addresses new matters or matters that could not have been raised in the initial response. Id. The Ancora Defendants’ Reply raises a new argument that distorts the legal standard for granting a motion to dismiss for lack of personal jurisdiction, arguing that the law requires affidavit evidence to be construed in favor of the moving party over the well-pleaded allegations in a plaintiff's complaint. (Reply at 2-3.) In support, the Ancora Defendants claim that Ed Map failed to include a rebuttal affidavit or additional evidence, despite the fact that Ed Map is not required to submit a competing affidavit particularly where, as here, Defendants have not requested an evidentiary hearing. See Info. Leasing Corp. v. Baxter, 1st Dist. Hamilton No. C-020029, 2002-Ohio-3930, {| 4. In fact, the Ancora Defendants seek to avoid any jurisdictional discovery that would reveal unfavorable evidence and contend that an evidentiary hearing is unnecessary. (Reply at 5-6.) Under these circumstances and as set forth in the attached sur-reply , a Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 30 3:00 PM-18CV002305 0E258 - H95 defendant's well-pleaded allegations must be construed favorably on a motion to dismiss, even against a plaintiff's affidavit. Reed Elsevier, Inc. v. Feder, 2d Dist. Montgomery No. 26680, 2015-Ohio-5013, {[] 26-27; Clow Water Sys. Co. v. Giuliani Assocs., 5th Dist. No. 99-CA-008, 1999 Ohio App. LEXIS 3872 (Aug. 18, 1999), at *6. Although the Ancora Defendants are mistaken about the legal standard, out of an abundance of caution, Ed Map has attached an affidavit to its sur-reply to support its well-pleaded factual allegations in its Amended Complaint. The Court should consider the affidavit and resolve the issue of personal jurisdiction on its merits — not on procedural formalities. See Cross v. Biviano, 11th Dist. Trumbull No. 2000-T-0123, 2001 Ohio App. LEXIS 4629, *13 (“Decisions on the merits should not be avoided on the basis of mere technicalities.”), citing Conley v. Gibson, 355 U.S. 41, 48 (1957). Upon construing the allegations in the Amended Complaint, the documentary evidence attached to the Amended Complaint, and the affidavits in Ed Map’s favor, the Court should exercise jurisdiction over the Ancora Defendants. For the foregoing reasons, Ed Map requests leave to file the attached sur-reply, instanter. A proposed order also has been submitted for the Court’s convenience. Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 30 3:00 PM-18CV002305 0E258 - H96 Respectfully submitted /s/ Allen T. Carter Elizabeth L. Moyo (0081051) Allen T. Carter (0085393) Porter, Wright, Morris & Arthur LLP 41 South High Street, 29" Floor Columbus, Ohio 43215 Telephone (614) 227-2000 Facsimi (614) 227-2100 Attorneys for Plaintiff Ed Map, Inc. CERTIFICATE OF SERVICE The undersigned certifies that on July 30, 2018, the foregoing was served via the court’s electronic filing system on the following: C. Craig Woods, Esq. Andrew H. King, Esq Michael T. Mullaly, Esq. Squire Patton Boggs (US) LLP 2000 Huntington Center 41 South High Street Columbus, Ohio 43125 Counsel for Defendants STVT-AAI Education, Inc. dba Ancora Education and Ancora Intermediate Holdings LLC /s/ Allen T. Carter