Dettling et al v. Medtech College, Llc et al

MOTION to Dismiss for Failure to State a Claim

E.D. Va.February 13, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION MICHAEL DETTLING, LADONNA LINDSEY, PATRICIA OWENS, KIM- BERLY PERRY, MICHAEL ZDANO- VICH, and on behalf of themselves and a class of simi- larly situated former employees of Defen- dants, Plaintiffs, v. MEDTECH COLLEGE, LLC; SANZ SCHOOL, INC.; RADIANS COLLEGE, LLC; JTC EDUCATION, INC.; JTC ED- UCATION HOLDINGS, INC.; and EX- CELLERE PARTNERS, LLC Defendants. Civ. No. 17-00009-AJT-MSN BRIEF IN SUPPORT OF EXCELLERE PARTNERS, LLC’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Case 1:17-cv-00009-AJT-MSN Document 24 Filed 02/13/17 Page 1 of 16 PageID# 74 TABLE OF CONTENTS Page I. INTRODUCTION .............................................................................................................. 1 II. BACKGROUND ................................................................................................................ 2 III. LEGAL STANDARD ......................................................................................................... 3 IV. ARGUMENT ...................................................................................................................... 4 A. Plaintiffs allege no facts plausibly showing de facto control. ................................ 5 B. Plaintiffs allege no facts plausibly showing a unity of personnel policies. ............ 7 C. Plaintiffs allege no facts plausibly showing a dependency of operations. .............. 7 D. Plaintiffs’ conclusory allegations of common ownership and officers do not outweigh their other failings. .................................................................................. 8 V. CONCLUSION ................................................................................................................. 10 Case 1:17-cv-00009-AJT-MSN Document 24 Filed 02/13/17 Page 2 of 16 PageID# 75 ii TABLE OF AUTHORITIES Page(s) CASES Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...............................................................................................................3, 7 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ...............................................................................................................3, 7 Cancun Adventure Tours, Inc. v. Underwater Designer Co., 862 F.2d 1044 (4th Cir. 1988) ...................................................................................................9 Cleary v. Am. Capital, Ltd., 59 F. Supp. 3d 249 (D. Mass. 2014) ..........................................................................................9 Francis v. Giacomelli, 588 F.3d 186 (4th Cir. 2009) .....................................................................................................3 Guippone v. BH S & B Holdings LLC, 737 F.3d 221 (2d Cir. 2013).......................................................................................................4 Harman v. Unisys Corp., 356 F. App’x 638 (4th Cir. 2009) ..............................................................................................1 In re AFA Inv., Inc., 2012 WL 6544945 (Bankr. D. Del. 2012) ...................................................................6, 7, 8, 10 In re APA Transp. Corp. Consol. Litig., 541 F.3d 233 (3d Cir. 2008)...........................................................................................4, 5, 7, 8 In re Consol. Bedding, Inc., 432 B.R. 115 (Bankr. D. Del. 2010) ........................................................................5, 6, 7, 9, 10 In re Tweeter OPCO, LLC, 453 B.R. 534 (Bankr. D. Del. 2011) ..........................................................................................6 McCleary-Evans v. Maryland Dep’t of Transp., 780 F.3d 582 (4th Cir. 2015) .....................................................................................................5 Migdal v. Rose Price-Fleming Int’l Corp., 248 F.3d 321 (4th Cir. 2001) .....................................................................................................4 Pearson v. Component Tech. Corp., 247 F.3d 471 (3d Cir. 2001).......................................................................................4, 5, 6, 7, 8 Case 1:17-cv-00009-AJT-MSN Document 24 Filed 02/13/17 Page 3 of 16 PageID# 76 iii Richards v. Advanced Accessory Sys., LLC, 2010 WL 3906958 (E.D. Mich. Sept. 30, 2010) ........................................................................8 Spain v. Virginia Com. Univ., 2009 WL 2461662 (E.D. Va. Aug. 11, 2009) ............................................................................1 United Mine Workers of Am. v. Martinka Coal Co., 202 F.3d 717 (4th Cir. 2000) .....................................................................................................4 United States v. Bestfoods, 524 U.S. 51 (1998) .....................................................................................................................9 Vogt v. Greenmarine Holding, LLC, 318 F. Supp. 2d 136 (S.D.N.Y. 2004)................................................................................6, 8, 9 Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599 (4th Cir. 2009) .....................................................................................................3 Zuberi v. Hirezi, 2017 WL 436278 (E.D. Va. Jan. 30, 2017) ...............................................................................1 STATUTES 29 U.S.C. § 2101(a) .........................................................................................................................4 OTHER AUTHORITIES 20 C.F.R. § 639.3(a)(2) ................................................................................................................5, 8 Fed. R. Civ. P. 8 ...........................................................................................................................1, 5 Fed. R. Civ. P. 8(a) ..........................................................................................................................3 Fed. R. Civ. P. 12(b)(6)..................................................................................................................10 Case 1:17-cv-00009-AJT-MSN Document 24 Filed 02/13/17 Page 4 of 16 PageID# 77 I. INTRODUCTION Through this motion, Excellere Partners, LLC seeks dismissal of Plaintiffs’ complaint for failure to state a claim under the federal Worker Adjustment and Retraining Notification Act (the “WARN Act”). The WARN Act prohibits “an employer of 100 or more employees” from “or- der[ing] a plant closing or mass layoff until the end of a 60-day period after the employer serves written notice.” Spain v. Virginia Com. Univ., 2009 WL 2461662, at *3 (E.D. Va. Aug. 11, 2009) (citation omitted). According to Plaintiffs, they “were terminated without cause as part of … plant closings,” yet “were not provided 60 days advance written notice.” Compl. ¶ 1. Plaintiffs do not allege that they were employed by Excellere, but rather that Excellere was somehow a “single employer” with the other defendants-and therefore it is liable under the WARN Act. Id. ¶ 3. Plaintiffs offer no facts plausibly showing that Excellere is a “single employer” with the Plaintiffs’ employers. Instead, Plaintiffs recite the “single employer” legal standards: “At all times … Defendants … were a ‘single employer’ … for reasons including but not limited to: a. the lack of independence between parent and subsidiary; b. common ownership; c. common directors; d. actual control; e. de facto control; f. unitary corporate policies; and g. dependency of operations.” Id. ¶ 29. Then, Plaintiffs assert that various individuals were involved in operating the “single employer” here “on information and belief.” Id. ¶¶ 30-39 (emphasis added). But “information and belief” allegations are “conclusory” and “insufficient to defeat a motion to dismiss.” Harman v. Unisys Corp., 356 F. App’x 638, 640-41 (4th Cir. 2009). Although “Rule 8 does not require ‘detailed factual allegations,’ a plaintiff must still pro- vide ‘more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.’” Zuberi v. Hirezi, 2017 WL 436278, at *3 (E.D. Va. Jan. 30, 2017) (Trenga, J.) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Because that is all the Complaint offers here, the Court should dismiss this case as to Excellere. Case 1:17-cv-00009-AJT-MSN Document 24 Filed 02/13/17 Page 5 of 16 PageID# 78 2 II. BACKGROUND According to the Complaint, Plaintiffs were employed at “Medtech’s Falls Church cam- pus,” “Radians,” “Medtech’s District of Columbia campus,” and “Medtech’s Silver Spring cam- pus” “until they were terminated in either August or September of 2016.” Compl. ¶¶ 6-11. The Complaint alleges that either Sanz School Inc. or Medtech College, LLC “owned and operated the Medtech campuses.” Id. ¶¶ 12-13. “Radians College LLC owned and operated” a Radians cam- pus. Id. ¶¶ 14, 21. All three of these entities are allegedly owned by Defendant JTC Education, Inc. Id. ¶¶ 12-14. In turn, JTC Education, Inc. is allegedly “a wholly owned subsidiary of De- fendant JTC Education Holdings, Inc.” Id. ¶ 15. Finally, Plaintiffs say that “Excellere Partners, LLC … is a Delaware limited liability company” that “together with or through JTC and/or Hold- ings, maintained an ownership interest in Medtech and Radians, had ongoing involvement in Medtech’s and Radians’ financial matters, and operated the schools.” Id. ¶¶ 17, 30. To support this conclusory statement, Plaintiffs assert that “[a]t all times material hereto, Defendants … were a ‘single employer’ with all other Defendants for reasons including but not limited to” “the lack of independence between parent and subsidiary,” “common ownership,” “common directors,” “actual control,” “de facto control,” “unitary corporate policies,” and “de- pendency of operations.” Id. ¶ 29. They continue: “Excellere, JTC, and Holdings regularly di- rected the operations of Medtech and Radians and were solely or jointly the decision makers re- sponsible for the employment practice giving rise to the litigation.” Id. ¶ 31. Then come the “information and belief” assertions: “[U]pon information and belief, David Kessenich, co-founder and managing partner of Excellere, is also a director and/or officer of JTC, Medtech, LLC, Sanz School, Inc., and Radians College, LLC and was integrally involved in the operations and decision-making of each entity.” Id. ¶ 32. And “[u]pon information and belief, Patrick O’Keefe, principal of Excellere, is also director and/or officer of Holdings, JTC, Medtech Case 1:17-cv-00009-AJT-MSN Document 24 Filed 02/13/17 Page 6 of 16 PageID# 79 3 LLC, Sanz School, Inc., and Radians College, LLC and was integrally involved in the operations and decisionmaking of each entity.” Id. ¶ 33. And on-and on. Id. ¶¶ 34 (“information and be- lief”), 35 (same), 36 (same), 37 (same), 38 (same), 39 (same). Plaintiffs say they “received less than 60[-]day notice of their terminations,” and “[a]ny notice given did not satisfy the requirements of the WARN Act.” Id. ¶ 46. Thus, they seek to bring a class action for “themselves and other similarly situated former employees.” Id. ¶ 49. III. LEGAL STANDARD Federal Rule of Civil Procedure 8(a) requires a pleading to contain a “short and plain state- ment of the claim showing that the pleader is entitled to relief.” Although this “does not require detailed factual allegations,” “it demands more than an unadorned, the-defendant-unlawfully- harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Id. (internal quotation marks omitted). A party may not rely on mere conclusions, but instead must allege “sufficient factual matter … [showing that] relief is plausible on its face.” Id. “[N]aked assertions devoid of further factual enhancement” are insuf- ficient. Id. (internal quotation marks and brackets omitted); see also Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 616 n.26 (4th Cir. 2009) (“[F]actual allegations must be enough to raise a right to relief above the speculative level and have enough facts to state a claim to relief that is plausible on its face.”) (internal quotation marks omitted)). The Supreme Court’s instructions in Iqbal and Twombly address the problem of plaintiffs “making largely groundless claims to justify conducting extensive and costly discovery with the hope of forcing the defendant to settle at a premium to avoid the costs of the discovery.” Francis v. Giacomelli, 588 F.3d 186, 193 n.2 (4th Cir. 2009). As the Fourth Circuit has explained, “[c]on- clusory allegations in a complaint … are a danger sign that the plaintiff is engaged in a fishing Case 1:17-cv-00009-AJT-MSN Document 24 Filed 02/13/17 Page 7 of 16 PageID# 80 4 expedition.” Migdal v. Rose Price-Fleming Int’l Corp., 248 F.3d 321, 326 (4th Cir. 2001). IV. ARGUMENT The Complaint fails to state a claim against Excellere. Plaintiffs have not alleged (nor could they) that Excellere is their “employer” under the WARN Act. As noted, the Act defines “employer” as “any business enterprise” that employs 100 or more full-time employees. 29 U.S.C. § 2101(a). Although the Act does not define “business enterprise,” WARN Act regulations “pro- vide that two or more affiliated companies may be considered a single business enterprise for WARN Act purposes” in limited circumstances discussed below. In re APA Transp. Corp. Consol. Litig., 541 F.3d 233, 242 (3d Cir. 2008) (citing 20 C.F.R. § 639.3(a)(2)). Plaintiffs do not allege they were directly employed by Excellere, but rather by “Medtech” (Compl. ¶¶ 6, 8-10) or Radians College LLC (id. ¶ 7). Thus, to assert a WARN Act violation against Excellere, Plaintiffs must establish Excellere “to be a single ‘business enterprise’ with [‘Medtech’ and Radians College LLC] such that it is responsible for [their] WARN Act obligations.” Pearson v. Component Tech. Corp., 247 F.3d 471, 482 (3d Cir. 2001). This “single employer” test provides only a narrow exception to the general rule against investor liability. Although “[t]he WARN Act itself does not address such situations,” the Second and Third Circuits have followed the federal regulation interpreting the Act. Id. at 483; Guippone v. BH S & B Holdings LLC, 737 F.3d 221, 226 (2d Cir. 2013). The Fourth Circuit has said that this regulation has “the force of law” as to “substantive” issues. United Mine Workers of Am. v. Martinka Coal Co., 202 F.3d 717, 720 n.2 (4th Cir. 2000). Under the regulation, “independent contractors and subsidiaries which are wholly or partially owned by a parent company are treated as separate employers or as a part of the parent or contracting company depending upon the degree of their independence from the parent.” 20 C.F.R. § 639.3(a)(2). Five “factors to be considered in making this determination are (i) common ownership, (ii) common directors and/or officers, Case 1:17-cv-00009-AJT-MSN Document 24 Filed 02/13/17 Page 8 of 16 PageID# 81 5 (iii) de facto exercise of control, (iv) unity of personnel policies emanating from a common source, and (v) the dependency of operations.” Id.; Pearson, 247 F.3d at 483. These factors “require that two corporations be highly integrated with respect to ownership and operations before they will be considered a single employer.” Id. at 505 (internal quotation marks omitted). And the “factors are not balanced equally: the first and second factors, common ownership and common directors and/or officers, are not sufficient to establish that two entities are a ‘single employer.’” APA, 541 F.3d at 243. A plaintiff seeking to state a claim based on the “single employer” test must plead facts that, if true, would demonstrate “a very high degree of integration”-or face dismissal. E.g., In re Consol. Bedding, Inc., 432 B.R. 115, 123-25 (Bankr. D. Del. 2010) (“The properly alleged facts, viewed in a light most favorable to Plaintiffs, do not provide a basis from which the Court can infer the high degree of integration required under Pear- son. Accordingly, the Court will dismiss the Plaintiffs’ WARN Act claims[.]”). Here, the Complaint’s conclusory allegations that Excellere is a “single employer” with Plaintiffs’ direct employers do not satisfy Rule 8. Instead, parroting the “single employer” factors, the Complaint merely recites that “Defendants … were a ‘single employer’ with all other Defend- ants for reasons including but not limited to” “common ownership,” “common directors,” “actual control,” “de facto control,” “unitary corporate policies,” and “dependency of operations.” Compl. ¶ 29. Such “‘naked’ allegations-a ‘formulaic recitation’ of the necessary elements-‘are no more than conclusions’ and therefore do not suffice.” McCleary-Evans v. Maryland Dep’t of Transp., 780 F.3d 582, 585 (4th Cir. 2015) (quoting Iqbal, 556 U.S. at 678-79). Plaintiffs must allege “factual matter.” Id. The Complaint provides none. A. Plaintiffs allege no facts plausibly showing de facto control. Although no single factor is dispositive, “special weight” is given to a parent’s de facto exercise of control, particularly over the decision to lay off employees and close facilities. In re Case 1:17-cv-00009-AJT-MSN Document 24 Filed 02/13/17 Page 9 of 16 PageID# 82 6 Tweeter OPCO, LLC, 453 B.R. 534, 546 (Bankr. D. Del. 2011). But liability cannot result “merely [from] the control ordinarily exercised by a parent corporation over a subsidiary by virtue of its ownership.” Pearson, 247 F.3d at 490. Rather, Plaintiffs must allege facts sufficient to make it plausible that Excellere “was the decisionmaker responsible for the employment practice giving rise to the litigation.” Id. at 504. According to the Complaint (¶ 31), Excellere, JTC Education, Inc. and JTC Education Holdings, Inc. “regularly directed the operations of Medtech and Radians and were solely or jointly the decision makers responsible for the employment practice giving rise to the litigation.” This allegation is fatally deficient. First, it merely repeats the legal standard; it is not a factual allega- tion. Second, as other courts have explained, “[s]imply stating that [the defendant] made the de- cision to order the mass layoff is insufficient.” In re AFA Inv., Inc., 2012 WL 6544945, at *4 (Bankr. D. Del. 2012). In AFA, the court considered an allegation that “[a]ll of the Defendants exercised de facto control over the labor practices governing the Plaintiff and Class Members, including the decision to order the mass layoff or plant closing.” Id. (internal quotation marks omitted). This statement was “insufficient” because Plaintiffs did “not allege any specific facts showing how [the defendant] controlled the decision-making process.” Id. So too here. Because Plaintiffs do not allege “facts showing that” Excellere was “wearing [its] investor hat[] while [also] making difficult decisions for the [subsidiary],” the allegation of de facto control is insufficient. Id. (internal quotation marks and brackets omitted); see also Consol. Bedding, 432 B.R. at 122 (same); Vogt v. Greenmarine Holding, LLC, 318 F. Supp. 2d 136, 144 (S.D.N.Y. 2004) (holding that an allegation that “‘[t]he Defendants controlled the capitalization of OMC, engaged in major reorganizational activities at OMC in the several years prior to the bankruptcy, made the Case 1:17-cv-00009-AJT-MSN Document 24 Filed 02/13/17 Page 10 of 16 PageID# 83 7 decisions regarding lay-offs and plant closings, and made the decision to file for Chapter 11 bank- ruptcy’” was too “broad and conclusory” because it “fail[ed] to name any specific actions taken by specific defendants” (brackets omitted)). B. Plaintiffs allege no facts plausibly showing a unity of personnel policies. To allege a unity of personnel policies from a common source between Excellere and the other Defendants, Plaintiff must offer facts showing, for example, identical “policies regarding compensation, vacation and sick time,” as well as “centralized hiring and firing, payment of wages, and personnel and benefits recordkeeping.” APA, 541 F.3d at 244-45; see also Pearson, 247 F.3d at 499-500. Yet the Complaint simply asserts that there were “unitary corporate policies.” Compl. ¶ 29(f). It “does not allege that [Excellere] established any specific personnel policies on behalf of the [other Defendants] or that it enforced any such policies.” AFA, 2012 WL 6544945, at *5. Nor does it allege, much less with facts, that Excellere had “any particularized interest … in the [other Defendants’] personnel policies.” Consol. Bedding, 432 B.R. at 122. Under Twombly and Iqbal, it is not enough to parrot the legal standard. See id. at 123 (considering such “allegations to be legal conclusions or factually unsupported and therefore not entitled to an assumption of truth”). C. Plaintiffs allege no facts plausibly showing a dependency of operations. The Complaint similarly fails to allege any specific facts showing a dependency of opera- tions. Here, too, this factor “cannot be established [merely] by the parent corporation’s exercise of its ordinary powers of ownership, i.e., to vote in directors and set general policies.” Pearson, 247 F.3d at 501. Moreover, “the mere fact that the subsidiary’s chain-of-command ultimately results in the top officers of the subsidiary reporting to the parent corporation does not establish the kind of day-to-day control necessary to establish an interrelation of operations.” Id. Here, Plaintiffs assert a “dependency of operations” between the “Defendants … with all other Defendants” (Compl. ¶ 29(g)), yet they offer no facts whatsoever supporting this conclusion. Case 1:17-cv-00009-AJT-MSN Document 24 Filed 02/13/17 Page 11 of 16 PageID# 84 8 Plaintiffs do not allege, for instance, any “sharing of administrative or purchasing services, inter- changes of employees or equipment, [or] commingled finances.” Pearson, 247 F.3d at 500 (cita- tions omitted). Courts have found allegations similar to Plaintiffs’-i.e., that a parent company “provided the Defendants’ subsidiaries [sic] with managerial, financial, operational and adminis- trative support on which they substantially depended”-to be “conclusory” and insufficient. AFA, 2012 WL 6544945, at *5. Because “[t]here are no allegations in the [C]omplaint that would demonstrate that [Excellere] controlled the day-to-day operations,” Plaintiffs fail to allege a de- pendency of operations. Vogt, 318 F. Supp. 2d at 143. D. Plaintiffs’ conclusory allegations of common ownership and officers do not outweigh their other failings. Plaintiffs’ conclusory allegations of common ownership and common officers are not enough to overcome their failings on the more significant “single employer” factors. As discussed, the “common ownership and common directors and/or officers” factors “are not sufficient to es- tablish that two entities are a ‘single employer.’” APA, 541 F.3d at 243; see, e.g., Richards v. Advanced Accessory Sys., LLC, 2010 WL 3906958, at *8 (E.D. Mich. Sept. 30, 2010) (holding that “factors one and two … are alone insufficient to establish that [the defendants] constituted a single business enterprise”); AFA, 2012 WL 6544945, at *4 (same). As to common ownership, Plaintiffs allege that “Excellere, together with or through JTC and/or Holdings, maintained an ownership interest in Medtech and Radians, had ongoing involve- ment in Medtech’s and Radians’ financial matters, and operated the schools as a going concern.” Compl. ¶ 30. These are unsubstantiated claims, mimicking the language of 20 C.F.R. § 639.3(a)(2) without providing any factual details. In any event, whether Excellere “owned” some stake in the other Defendants “by itself merits little weight,” for “[i]t is a bedrock principle of corporate law that ‘the corporation and its shareholders are distinct entities.’” Cleary v. Am. Capital, Ltd., 59 F. Case 1:17-cv-00009-AJT-MSN Document 24 Filed 02/13/17 Page 12 of 16 PageID# 85 9 Supp. 3d 249, 256 (D. Mass. 2014) (WARN Act case) (quoting Dole Food Co. v. Patrickson, 538 U.S. 468, 474 (2003)); see also Cancun Adventure Tours, Inc. v. Underwater Designer Co., 862 F.2d 1044, 1047 (4th Cir. 1988) (“A corporation exists as a legal entity separate and distinct from its corporate shareholders.”). “[I]t is hornbook law that the exercise of the ‘control’” which follows ownership “will not create liability beyond the assets of the subsidiary.” Id. (quoting United States v. Bestfoods, 524 U.S. 51, 61-62 (1998)) (internal quotation marks omitted). And “[w]hile de facto exercise of control is one of the factors of the DOL test, it ‘is not intended to support liability based on a parent’s exercise of control pursuant to the ordinary incidents of … ownership.’” Id. at 256-57 (quoting Pearson, 247 F.3d at 503). Similarly, to the extent Plaintiffs have alleged common officers and directors (Compl. ¶¶ 32-33), this factor does not outweigh their other failings, as “it is entirely appropriate for direc- tors of a parent corporation to serve as directors of its subsidiary.” Bestfoods, 524 U.S. at 69. “Since courts generally presume that the directors are wearing their ‘subsidiary hats’ and not their ‘parent hats’ when acting for the subsidiary, it cannot be enough to establish liability here that dual officers and directors made policy decisions and supervised activities at the [subsidiary].” Id. at 69-70 (internal quotation marks and citations omitted); Vogt, 318 F. Supp. 2d at 142. As noted, the “single employer” test “clearly requires a very high degree of integration” for “WARN Act … liability to arise.” Consol. Bedding, 432 B.R. at 124. Even where a parent company “supervise[s] much of the [subsidiary’s] activities and [the parent’s officers] occupied seats on the [subsidiary’s] boards of directors,” and even where such facts are “viewed in a light most favorable to Plaintiffs,” they “do not provide a basis from which the Court can infer the high degree of integration required.” Id. After all, “[t]o survive a motion to dismiss, factual allegations Case 1:17-cv-00009-AJT-MSN Document 24 Filed 02/13/17 Page 13 of 16 PageID# 86 10 must be more than consistent with liability, but must plausibly entitle a party to relief.” Id. (em- phasis added). Plaintiffs’ conclusory allegations do not meet this standard. V. CONCLUSION In short, “the allegations of the Complaint are bald assertions of the corresponding legal factors and do not provide a basis from which the Court can infer the high degree of integration required.” AFA, 2012 WL 6544945, at *5. Accordingly, Excellere respectfully submits that the Court should dismiss Plaintiffs’ action against Excellere for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Case 1:17-cv-00009-AJT-MSN Document 24 Filed 02/13/17 Page 14 of 16 PageID# 87 11 Dated: February 13, 2017 Respectfully submitted, /s/ Andrew C. Nichols Andrew C. Nichols (Va. Bar #66679) Mary M. Lenahan Christopher E. Mills John W. Harding (Va. Bar #87602) Winston & Strawn LLP 1700 K Street, N.W. Washington, D.C. 20006-3817 (202) 282-5000 anichols@winston.com William C. O’Neil Winston & Strawn LLP 35 West Wacker Drive Chicago, IL 60601 (312) 558-5600 Attorneys for Defendant Excellere Partners, LLC Case 1:17-cv-00009-AJT-MSN Document 24 Filed 02/13/17 Page 15 of 16 PageID# 88 CERTIFICATE OF SERVICE I certify that on this 13th day of February, 2017, a true and correct copy of the foregoing document was served using the Court’s CM/ECF system on all attorneys of record by electronic means. /s/ Andrew C. Nichols Andrew C. Nichols (Va. Bar #66679) Mary M. Lenahan Christopher E. Mills John W. Harding (Va. Bar #87602) Winston & Strawn LLP 1700 K Street, N.W. Washington, D.C. 20006-3817 (202) 282-5000 anichols@winston.com William C. O’Neil Winston & Strawn LLP 35 West Wacker Drive Chicago, IL 60601 (312) 558-5600 Attorneys for Defendant Excellere Partners, LLC Case 1:17-cv-00009-AJT-MSN Document 24 Filed 02/13/17 Page 16 of 16 PageID# 89 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division DETTLING, et al. ) ) Plaintiffs, ) ) v. ) Civ. No. 17-00009-AJT-MSN ) MEDTECH COLLEGE, LLC, et al, ) ) Defendants. ) ) ORDER Upon consideration of Defendant’s motion to dismiss for failure to state a claim upon which relief can be granted, it is hereby ORDERED that the motion is GRANTED. Accordingly, the Complaint is hereby DISMISSED as to defendant Excellere Partners, LLC. Date: February 13, 2017 _________________________________ U.S. District Judge Anthony J. Trenga Case 1:17-cv-00009-AJT-MSN Document 24-1 Filed 02/13/17 Page 1 of 1 PageID# 90