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Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Aug 08 3:15 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.
REPLY OF PLAINTIFF ED MAP TO THE ANCORA DEFENDANTS’
MEMORANDUM CONTRA MOTION FOR LEAVE FILED JULY 30, 2018
The Court should not permit the Ancora Defendants to evade their contractual
and financial obligations based on their misrepresentations of law and fact concerning
personal jurisdiction. It is precisely because those misrepresentations were made for
the first time in the Ancora Defendants’ reply to Ed Map’s memorandum contra the
motion to dismiss (“Reply”) that Plaintiff Ed Map, Inc. (“Ed Map”) properly sought
leave from the Court to file a sur-reply.
To clarify, by requesting leave to file a sur-reply, Plaintiff Ed Map has not done a
“complete about face” as the Ancora Defendants contend, nor has Ed Map conceded
that an affidavit is necessary to survive the Ancora Defendants’ motion to dismiss for
lack of personal jurisdiction (“Motion to Dismiss”). On the contrary, Ed Map had all
that it needed to support its memorandum contra the Motion to Dismiss including: (1)
the allegations in the Amended Complaint; (2) the documentary evidence attached to
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the Amended Complaint; and (3) the affidavit of Mr. Zawisky that the Ancora
Defendants filed in support of the Motion to Dismiss. Those allegations and evidence,
which must be construed in Ed Map’s favor, provided more than a sufficient basis for
the Court to deny the Motion to Dismiss.
For the first time in their Reply, however, the Ancora Defendants advocated for a
higher standard of review, claiming that Ed Map had to submit a competing affidavit or
additional evidence to survive the Civ.R. 12(B)(2) motion to dismiss. That is not the law
in Ohio, and the Court should permit Ed Map to file its sur-reply to address those new
and inaccurate statements.
I Ed Map’s Proposed Sur-Reply is Warranted and Timely
The Ancora Defendants have not cited any authority to refute that Ed Map’s
proposed sur-reply is warranted and timely in this instance.! This Court should permit
Ed Map to file a sur-reply to address those new and inaccurate statements made for the
first time in the Ancora Defendants’ Reply. See First Fin. Servs. v. Cross Tabernacle
Deliverance Church, Inc., 10th Dist. Franklin No. 06AP-404, 2007-Ohio-4274, 4] 39, citing
Morris-Walden v. Moore, 8th Dist. Cuyahoga No. 87989, 2007-Ohio-262, {| 27. Ed Map’s
proposed sur-reply and Smith’s affidavit are limited to addressing those
1
Ed Map prepared and timely requested leave to file its sur-reply one week
after it received the Ancora Defendants’ Reply. Unfortunately, due to an administrative
error, Ed Map filed its motion for leave to file a sur-reply instanter without a signature
page or the memorandum in support of the motion for leave. Ed Map did not catch the
error until receiving notice from the Court of the missing signature. On that same day,
Ed Map re-filed its complete motion for leave to file the sur-reply instanter.
2
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misrepresentations in the Reply concerning the applicable legal standard for a
Civ.R. 12(B)(2) motion and the affidavit evidence that the Ancora Defendants
improperly contend is necessary.
a. Ed Map’s Proposed Sur-Reply Corrects the Ancora Defendants’
Misrepresentation Concerning the Applicable Legal Standard.
In their Reply, the Ancora Defendants argued that to make a prima facie showing
of personal jurisdiction sufficient to survive a Civ.R. 12(B)(2) motion, a plaintiff must
come forward with an affidavit or similar admissible evidence. While that may be
appropriate to survive a Civ.R. 56(C) motion, similar language is not found in
Civ.R. 12(B)(2). Nor would such a requirement be consistent with the Ohio Supreme
Court's ruling that the trial court must construe the complaint allegations and any
documentary evidence in favor of the non-moving party. See Goldstein v. Christiansen,
70 Ohio St. 3d 232, 236 (1994), cited in Heritage Funding & Leasing Co. v. Phee, 120 Ohio
App. 3d 422, 425 (10th Dist. 1997). Because Ohio law does not go so far as to require a
plaintiff to submit affidavit evidence to make a prima facie showing of personal
jurisdiction, Ed Map could not have predicted that the Ancora Defendants were going
to contend in their Reply that the law requires Ed Map to do just that.
Under Civ.R. 12(B)(2) and Ohio Supreme Court precedent, the allegations in the
Amended Complaint, the documentary evidence attached to the Amended Complaint,
and the evidence in Zawisky’s affidavit demonstrate that this Court has jurisdiction
over the Ancora Defendants:
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e First, the allegations in the Amended Complaint are far from conclusory,
as the Ancora Defendants contend, and provide factual details concerning
the Ancora Defendants’ purchase of Delta’s assets including its acquisition
of and subsequent liability under the Agreement. (See Am. Compl. {IJ 45-
50.)
Second, the documents attached to the Amended Complaint show that the
Agreement (attached as Exhibits A-B to the Amended Complaint), which
the Ancora Defendants acquired, included a forum selection clause
making proper this Court’s exercise of personal jurisdiction over the
Ancora Defendants. See Ranco, Inc. of Delaware v. Gold Sec. Australia, Ltd.,
10th Dist. Franklin No. 90AP-114, 1991 Ohio App. LEXIS 406, *6-8 (Jan. 31,
1991). The correspondence attached as Exhibit D to the Amended
Complaint further demonstrates that the Ancora Defendants acquired the
Agreement because they relied on the books and services that Ed Map
provided to Ancora students pursuant to the Agreement.
Third, even Zawisky’s affidavit must be construed in favor of Ed Map.
Mr. Zawisky and Ed Map dispute whether the Ancora Defendants
acquired the Agreement. Mr. Zawisky’s interpretation of the asset
purchase agreement between Delta and Ancora Holdings, which was not
attached to his affidavit, is no more reliably based on factual evidence
than the allegations in the Amended Complaint. At this stage of the
litigation, that dispute must be resolved in favor of Ed Map and in
support of the Court's exercise of personal jurisdiction over the Ancora
Defendants. See Reed Elsevier, Inc. v. Feder, 2d Dist. Montgomery No.
26680, 2015-Ohio-5013, {[ 26. Likewise, Mr. Zawisky’s admissions that the
Ancora Defendants acquired certain assets and contracts of Delta and that
Bill Nance is currently an agent of Ancora provide at least some further
evidence in support of Ed Map’s successor in interest and agency
allegations.
In light of the well-pleaded allegations and documentary evidence noted above,
a competing affidavit or additional evidence is unnecessary. Indeed, the Ancora
Defendants have not and cannot cite a single case to support their position that a
plaintiff must submit admissible evidence in the form of an affidavit to survive a
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Civ.R. 12(B)(2) motion. Although the Ancora Defendants try to distinguish Reed Elsevier
and Clow Water Sys. Co. v. Guiliani Assocs., No. 99-CA-008, 1999 Ohio App. LEXIS 3872
(5th Dist. Aug. 18, 1999), both of those courts found that the trial courts had personal
jurisdiction over the defendants based on complaint allegations construed in favor of
plaintiffs and without any affidavits from plaintiffs. See Reed, at {| 29; Clow, at *6.
b. Greg Smith’s Affidavit Provides Additional, Albeit Unnecessary,
Support for the Court’s Exercise of Personal Jurisdiction.
In response to the Ancora Defendants’ new and unsupported legal position
oncerning the alleged necessity for affidavit evidence, Ed Map also submitted the
affidavit of its chief financial officer — Greg Smith — with its proposed sur-reply.
Although Ed Map was not required to submit an affidavit to make a prima facie showing
of personal jurisdiction, Ed Map submits it to the extent it is helpful to the Court in
understanding the factual bases for the allegations in the Amended Complaint.
Attached to Mr. Smith’s affidavit is a redacted copy of the asset purchase agreement
between Delta and Ancora Holdings, so the Court can see for itself the favorable
language about contracts that Ancora Holdings acquired to continue operating the
assets purchased from Delta. (See Smith Aff. {| 12, attached as Ex. A to Sur-Reply, APA,
Section 2.3(a), attached as Aff. Ex. 1.) Noticeably absent from the redacted APA is the
list of excluded contracts or any provision expressly excluding the Agreement.
In addition to the language of the APA, Mr. Smith’s affidavit states that pursuant
to the Agreement, Ed Map provided books and services to students in Ohio in
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January 2018. (Smith Aff. {[ 11.) Based on the timing of those shipments and the closing
of the APA between Delta and Ancora Holdings, it is reasonable to conclude that those
materials were shipped to Ohio residents who were enrolled at schools acquired by the
Ancora Defendants. See id., [J 11-13; see also Randleman v. Dick Masheter Ford, Inc., No.
91-AP-201, 1991 Oho App. LEXIS 4032, at *14 (10th Dist. Aug. 22, 1991) (ruling that in
construing the evidence in favor of the nonmoving party, the court must also draw all
reasonable inferences to be made from the nonmoving party’s affidavits), Zageris v.
Whitehall, 72 Oho App. 3d 178, 183 (same). Such evidence of minimum contacts with
Ohio must be construed in Ed Map’s favor and in support of the Court’s jurisdiction
over the Ancora Defendants. See Perrow v. Grand Canyon Educ., Inc., S.D. Ohio No. 2:09-
cv-670, 2010 U.S. Dist LEXIS 9538, *13-14 (Jan. 15, 2010); P&G Co. v. Team Techs, Inc., S.D.
Ohio No. 1:12-cv-552, 2012 U.S. Dist. LEXIS 167208, *11-12 (Nov. 26, 2012).
Il. Ed Map’s Proposed Sur-Reply Alleviates the Need for Any Further
Briefing on Personal Jurisdiction at This Time.
If the Court grants Ed Map’s request for leave to file its proposed sur-reply, there
is no need for any further briefing on whether the Court has personal jurisdiction over
the Ancora Defendants. Any additional briefing from the Ancora Defendants will do
nothing more than highlight the underlying dispute between Ed Map and the Ancora
Defendants concerning whether the Ancora Defendants acquired the Agreement and
are liable for payment under the Agreement. At this preliminary stage of litigation, that
Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Aug 08 3:15 PM-18CV002305
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dispute cannot be resolved on the merits, and discovery will be needed to determine
whether the issue can be resolved as a matter of law or at trial.
For purposes of resolving the Civ.R. 12(B)(2) motion, however, the Court must
construe the allegations in the Amended Complaint and the documentary evidence in
favor of Ed Map. The Court should grant Ed Map’s request for leave and consider Ed
Map’s sur-reply, as well as Mr. Smith’s affidavit, because they address the new matters
raised for the first time in Ancora’s Reply. Based on the well-pleaded allegations and
evidence cited in each of Ed Map’s memorandum contra the Ancora Defendants’
Motion to Dismiss and the proposed sur-reply, the Court should find it has jurisdiction
over the Ancora Defendants.
Respectfully submitted
/s/ Elizabeth L. Moyo
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
Facsimile (614) 227-2100
YS, fap, Inc.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Aug 08 3:15 PM-18CV002305
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CERTIFICATE OF SERVICE
The undersigned certifies that on August 8, 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/ Elizabeth L. Moyo
DMs/11470010v.1
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Aug 08 3:15 PM-18CV002305 0E273 - G3 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. REPLY OF PLAINTIFF ED MAP TO THE ANCORA DEFENDANTS’ MEMORANDUM CONTRA MOTION FOR LEAVE FILED JULY 30, 2018 The Court should not permit the Ancora Defendants to evade their contractual and financial obligations based on their misrepresentations of law and fact concerning personal jurisdiction. It is precisely because those misrepresentations were made for the first time in the Ancora Defendants’ reply to Ed Map’s memorandum contra the motion to dismiss (“Reply”) that Plaintiff Ed Map, Inc. (“Ed Map”) properly sought leave from the Court to file a sur-reply. To clarify, by requesting leave to file a sur-reply, Plaintiff Ed Map has not done a “complete about face” as the Ancora Defendants contend, nor has Ed Map conceded that an affidavit is necessary to survive the Ancora Defendants’ motion to dismiss for lack of personal jurisdiction (“Motion to Dismiss”). On the contrary, Ed Map had all that it needed to support its memorandum contra the Motion to Dismiss including: (1) the allegations in the Amended Complaint; (2) the documentary evidence attached to 1 Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Aug 08 3:15 PM-18CV002305 0E273 - G3 the Amended Complaint; and (3) the affidavit of Mr. Zawisky that the Ancora Defendants filed in support of the Motion to Dismiss. Those allegations and evidence, which must be construed in Ed Map’s favor, provided more than a sufficient basis for the Court to deny the Motion to Dismiss. For the first time in their Reply, however, the Ancora Defendants advocated for a higher standard of review, claiming that Ed Map had to submit a competing affidavit or additional evidence to survive the Civ.R. 12(B)(2) motion to dismiss. That is not the law in Ohio, and the Court should permit Ed Map to file its sur-reply to address those new and inaccurate statements. I Ed Map’s Proposed Sur-Reply is Warranted and Timely The Ancora Defendants have not cited any authority to refute that Ed Map’s proposed sur-reply is warranted and timely in this instance.! This Court should permit Ed Map to file a sur-reply to address those new and inaccurate statements made for the first time in the Ancora Defendants’ Reply. See First Fin. Servs. v. Cross Tabernacle Deliverance Church, Inc., 10th Dist. Franklin No. 06AP-404, 2007-Ohio-4274, 4] 39, citing Morris-Walden v. Moore, 8th Dist. Cuyahoga No. 87989, 2007-Ohio-262, {| 27. Ed Map’s proposed sur-reply and Smith’s affidavit are limited to addressing those 1 Ed Map prepared and timely requested leave to file its sur-reply one week after it received the Ancora Defendants’ Reply. Unfortunately, due to an administrative error, Ed Map filed its motion for leave to file a sur-reply instanter without a signature page or the memorandum in support of the motion for leave. Ed Map did not catch the error until receiving notice from the Court of the missing signature. On that same day, Ed Map re-filed its complete motion for leave to file the sur-reply instanter. 2 Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Aug 08 3:15 PM-18CV002305 0E273 - G3 misrepresentations in the Reply concerning the applicable legal standard for a Civ.R. 12(B)(2) motion and the affidavit evidence that the Ancora Defendants improperly contend is necessary. a. Ed Map’s Proposed Sur-Reply Corrects the Ancora Defendants’ Misrepresentation Concerning the Applicable Legal Standard. In their Reply, the Ancora Defendants argued that to make a prima facie showing of personal jurisdiction sufficient to survive a Civ.R. 12(B)(2) motion, a plaintiff must come forward with an affidavit or similar admissible evidence. While that may be appropriate to survive a Civ.R. 56(C) motion, similar language is not found in Civ.R. 12(B)(2). Nor would such a requirement be consistent with the Ohio Supreme Court's ruling that the trial court must construe the complaint allegations and any documentary evidence in favor of the non-moving party. See Goldstein v. Christiansen, 70 Ohio St. 3d 232, 236 (1994), cited in Heritage Funding & Leasing Co. v. Phee, 120 Ohio App. 3d 422, 425 (10th Dist. 1997). Because Ohio law does not go so far as to require a plaintiff to submit affidavit evidence to make a prima facie showing of personal jurisdiction, Ed Map could not have predicted that the Ancora Defendants were going to contend in their Reply that the law requires Ed Map to do just that. Under Civ.R. 12(B)(2) and Ohio Supreme Court precedent, the allegations in the Amended Complaint, the documentary evidence attached to the Amended Complaint, and the evidence in Zawisky’s affidavit demonstrate that this Court has jurisdiction over the Ancora Defendants: Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Aug 08 3:15 PM-18CV002305 0E273 - G3 e First, the allegations in the Amended Complaint are far from conclusory, as the Ancora Defendants contend, and provide factual details concerning the Ancora Defendants’ purchase of Delta’s assets including its acquisition of and subsequent liability under the Agreement. (See Am. Compl. {IJ 45- 50.) Second, the documents attached to the Amended Complaint show that the Agreement (attached as Exhibits A-B to the Amended Complaint), which the Ancora Defendants acquired, included a forum selection clause making proper this Court’s exercise of personal jurisdiction over the Ancora Defendants. See Ranco, Inc. of Delaware v. Gold Sec. Australia, Ltd., 10th Dist. Franklin No. 90AP-114, 1991 Ohio App. LEXIS 406, *6-8 (Jan. 31, 1991). The correspondence attached as Exhibit D to the Amended Complaint further demonstrates that the Ancora Defendants acquired the Agreement because they relied on the books and services that Ed Map provided to Ancora students pursuant to the Agreement. Third, even Zawisky’s affidavit must be construed in favor of Ed Map. Mr. Zawisky and Ed Map dispute whether the Ancora Defendants acquired the Agreement. Mr. Zawisky’s interpretation of the asset purchase agreement between Delta and Ancora Holdings, which was not attached to his affidavit, is no more reliably based on factual evidence than the allegations in the Amended Complaint. At this stage of the litigation, that dispute must be resolved in favor of Ed Map and in support of the Court's exercise of personal jurisdiction over the Ancora Defendants. See Reed Elsevier, Inc. v. Feder, 2d Dist. Montgomery No. 26680, 2015-Ohio-5013, {[ 26. Likewise, Mr. Zawisky’s admissions that the Ancora Defendants acquired certain assets and contracts of Delta and that Bill Nance is currently an agent of Ancora provide at least some further evidence in support of Ed Map’s successor in interest and agency allegations. In light of the well-pleaded allegations and documentary evidence noted above, a competing affidavit or additional evidence is unnecessary. Indeed, the Ancora Defendants have not and cannot cite a single case to support their position that a plaintiff must submit admissible evidence in the form of an affidavit to survive a Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Aug 08 3:15 PM-18CV002305 0E273 - G3 Civ.R. 12(B)(2) motion. Although the Ancora Defendants try to distinguish Reed Elsevier and Clow Water Sys. Co. v. Guiliani Assocs., No. 99-CA-008, 1999 Ohio App. LEXIS 3872 (5th Dist. Aug. 18, 1999), both of those courts found that the trial courts had personal jurisdiction over the defendants based on complaint allegations construed in favor of plaintiffs and without any affidavits from plaintiffs. See Reed, at {| 29; Clow, at *6. b. Greg Smith’s Affidavit Provides Additional, Albeit Unnecessary, Support for the Court’s Exercise of Personal Jurisdiction. In response to the Ancora Defendants’ new and unsupported legal position oncerning the alleged necessity for affidavit evidence, Ed Map also submitted the affidavit of its chief financial officer — Greg Smith — with its proposed sur-reply. Although Ed Map was not required to submit an affidavit to make a prima facie showing of personal jurisdiction, Ed Map submits it to the extent it is helpful to the Court in understanding the factual bases for the allegations in the Amended Complaint. Attached to Mr. Smith’s affidavit is a redacted copy of the asset purchase agreement between Delta and Ancora Holdings, so the Court can see for itself the favorable language about contracts that Ancora Holdings acquired to continue operating the assets purchased from Delta. (See Smith Aff. {| 12, attached as Ex. A to Sur-Reply, APA, Section 2.3(a), attached as Aff. Ex. 1.) Noticeably absent from the redacted APA is the list of excluded contracts or any provision expressly excluding the Agreement. In addition to the language of the APA, Mr. Smith’s affidavit states that pursuant to the Agreement, Ed Map provided books and services to students in Ohio in 5 Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Aug 08 3:15 PM-18CV002305 0E273 - G3 January 2018. (Smith Aff. {[ 11.) Based on the timing of those shipments and the closing of the APA between Delta and Ancora Holdings, it is reasonable to conclude that those materials were shipped to Ohio residents who were enrolled at schools acquired by the Ancora Defendants. See id., [J 11-13; see also Randleman v. Dick Masheter Ford, Inc., No. 91-AP-201, 1991 Oho App. LEXIS 4032, at *14 (10th Dist. Aug. 22, 1991) (ruling that in construing the evidence in favor of the nonmoving party, the court must also draw all reasonable inferences to be made from the nonmoving party’s affidavits), Zageris v. Whitehall, 72 Oho App. 3d 178, 183 (same). Such evidence of minimum contacts with Ohio must be construed in Ed Map’s favor and in support of the Court’s jurisdiction over the Ancora Defendants. See Perrow v. Grand Canyon Educ., Inc., S.D. Ohio No. 2:09- cv-670, 2010 U.S. Dist LEXIS 9538, *13-14 (Jan. 15, 2010); P&G Co. v. Team Techs, Inc., S.D. Ohio No. 1:12-cv-552, 2012 U.S. Dist. LEXIS 167208, *11-12 (Nov. 26, 2012). Il. Ed Map’s Proposed Sur-Reply Alleviates the Need for Any Further Briefing on Personal Jurisdiction at This Time. If the Court grants Ed Map’s request for leave to file its proposed sur-reply, there is no need for any further briefing on whether the Court has personal jurisdiction over the Ancora Defendants. Any additional briefing from the Ancora Defendants will do nothing more than highlight the underlying dispute between Ed Map and the Ancora Defendants concerning whether the Ancora Defendants acquired the Agreement and are liable for payment under the Agreement. At this preliminary stage of litigation, that Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Aug 08 3:15 PM-18CV002305 0E273 - G3 dispute cannot be resolved on the merits, and discovery will be needed to determine whether the issue can be resolved as a matter of law or at trial. For purposes of resolving the Civ.R. 12(B)(2) motion, however, the Court must construe the allegations in the Amended Complaint and the documentary evidence in favor of Ed Map. The Court should grant Ed Map’s request for leave and consider Ed Map’s sur-reply, as well as Mr. Smith’s affidavit, because they address the new matters raised for the first time in Ancora’s Reply. Based on the well-pleaded allegations and evidence cited in each of Ed Map’s memorandum contra the Ancora Defendants’ Motion to Dismiss and the proposed sur-reply, the Court should find it has jurisdiction over the Ancora Defendants. Respectfully submitted /s/ Elizabeth L. Moyo 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 Facsimile (614) 227-2100 YS, fap, Inc. Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Aug 08 3:15 PM-18CV002305 0E273 - G3 CERTIFICATE OF SERVICE The undersigned certifies that on August 8, 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/ Elizabeth L. Moyo DMs/11470010v.1