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Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jun 15 11:01 AM-18CV002305
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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
ED MAP, INC,
Plaintiff, Case No. 18-CV-002305
VS.
DELTA CAREER EDUCATION Judge David Cain
CORPORATION, ET AL.,
Defendants.
AFFIDAVIT OF MICHAEL ZAWISKY
STATE OF TEXAS )
TARRANT COUNTY )ss.
Now comes Michael Zawisky, who being of lawful age and after being duly cautioned
and sworn, hereby states the following:
1 My name is Michael Zawisky. I am the Chief Executive Officer of STVT-AAIL
Education, Inc. dba Ancora Education (“Ancora”) and Ancora Intermediate Holdings, LLC
(“Ancora Holdings”) (collectively, “Ancora Defendants”), Defendants in this action. I make this
Affidavit in support of Ancora Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction.
1 have personal knowledge of the facts set forth in this Affidavit.
2. Ancora is a Texas corporation with its principal place of business in Hurst, Texas.
Tt is in the business of providing career education and related services. It owns and/or operates a
number of career education centers, all outside the State of Ohio.
3 Ancora Holdings is a Texas limited liability company with its principal place of
business in Hurst, Texas. It is a holding company and conducts no operations. No member of
Ancora Holdings is a citizen of Ohio or an entity organized under the laws of Ohio.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jun 15 11:01 AM-18CV002305
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4 Ancora Defendants do not maintain any operations or have any other physical
presence in Ohio, and neither of the Ancora Defendants have any contacts in Ohio related to
Plaintiff Ed Map, Inc.’s (“Plaintiff”) claims.
5. Ancora Defendants’ respective personnel do not regularly travel to Ohio for
business purposes.
6 Ancora Defendants undertake no direct marketing in Ohio.
7. Ancora Defendants are not, and never were, parties to the alleged contract
between Plaintiff and Delta Career Education Corporation (the “Delta Contract”), as described in
the First Amended Complaint. Ancora Defendants did not participate in the negotiation of the
Delta Contract, are not assignees of the Delta Contract, and did not receive any services or
benefits under the Delta Contract.
8 On or about January 18, 2018, well after Delta Career Education Corporation’s
alleged breach of the Delta Contract, Ancora Holdings entered into an asset purchase agreement
(the APA”) with Delta Career Education Corporation and several of its affiliates (collectively,
“Delta”),
9. In this transaction, Delta agreed to transfer specified assets, including certain
Delta career education facilities outside of Ohio, to Ancora, but neither of the Ancora Defendants
acquired Delta itself or assumed any Delta liabilities or debts other than those expressly
identified in the APA. The Delta Contract was neither purchased nor assumed by Ancora
Defendants. In any event, Delta expressly agreed as part of this transaction that any Delta
liability or obligation arising out of any breach or default prior to the closing date belonged
solely to Delta, not Ancora Defendants.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jun 15 11:01 AM-18CV002305
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10. The APA was neither negotiated nor executed in Ohio. No center, facility or
entity that Ancora Holdings acquired or that Ancora received and is operating as a result of the
APA has a physical presence in Ohio, No party to the APA is or was an Ohio entity.
li. Neither of the Ancora Defendants provided any assurance to Plaintiff, in
connection with discussions around the APA or otherwise, that it would pay or guarantee
payment of Delta’s debt, if any, to Plaintiff,
12. IT am aware of the suggestion in Plaintiff's First Amended Complaint that Bill
Nance or Tim Ryder made representations to Plaintiff in December 2017 to the effect that
Ancora Defendants, which were still in negotiations with Delta at the time, would pay or
otherwise stand behind Delta’s debt to Plainuff. I have no personal knowledge of what, if
anything, any Delta representative said to Plaintiff on this subject in December 2017, but as
noted above, I know that neither of the Ancora Defendants, nor any authonzed representative,
made such a statement to Plaintiff.
13. In December 2017, neither Bill Nance nor Tim Ryder were employees or agents
of Ancora Defendants or any of their affiliates, and neither was authorized by Ancora
Defendants to make any statement on their behalf, much less the commitment suggested by
Plaintiff. Ancora Defendants never communicated with Plaintiff about the Delta Contract prior
to January 2018. Moreover, Ancora Defendants never said or did anything whereby Plaintiff
could reasonably have assumed that Messrs. Nance and Ryder spoke for or were acting on behalf’
of Ancora Defendants at that time.
14, Tim Ryder has never been an employee or agent of Ancora Defendants, and has
never been authorized to speak on their behalf. Ancora Defendants have no knowledge of any
instance in which Mr. Ryder purported to provide payment assurances to Plaintiff on their behalf.
Te
Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jun 15 11:01 AM-18CV002305
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tn the unlikely event Mr, Ryder provided any payment assurances to Plaintiff, he did so on
behalfof Delta and was not authorized to do so on behalf of Ancora Defendants.
15 Bill Nance was employed by Delta, not Ancora. Defendants, in December 2017.
Ancora Defendants have no knowledge of any instance in which Mr. Nance purported to provide
payment assurances to Plaintiff on their behalf, and he denies having dons so. In the unlikely
event Mr. Nance provided any payment assurances to Plaintiff, he did so on behalf of Delta and
was not authorized to de so on behalf of Ancora Defendants.
16. in early 2018, after Ancora Holdings and Della closed on the APA, Bill Nance
was hired by Ancora. Atno time during his employment with Ancora has Mr. Nance made any
representation. or given any assurance to Plaintiff about payment on the Delta Contract by
Ancora or its affiliates, inclading Ancora Holdings. He has never been authorized to speak for
either of the Ancora Defendants on this subject.
17. To the best of my knowledge and belief, Ancora Defendants. have never
transacted any business with Plaintiff.
Further alfiant sayeth naught,
~
L. @ Ve Whey
Michael Zawy shy
Swom to and subseribed before-me this yy day of fune, 2018
sent Sl 4)
corsa
aS o%
PONPA
sotary0 gagaseee?
J SANSA
tary Pablic for Texas
Expires Merch2,
cence
My commission expires: awk & ol
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jun 15 11:01 AM-18CV002305 0E195 - L9 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO ED MAP, INC, Plaintiff, Case No. 18-CV-002305 VS. DELTA CAREER EDUCATION Judge David Cain CORPORATION, ET AL., Defendants. AFFIDAVIT OF MICHAEL ZAWISKY STATE OF TEXAS ) TARRANT COUNTY )ss. Now comes Michael Zawisky, who being of lawful age and after being duly cautioned and sworn, hereby states the following: 1 My name is Michael Zawisky. I am the Chief Executive Officer of STVT-AAIL Education, Inc. dba Ancora Education (“Ancora”) and Ancora Intermediate Holdings, LLC (“Ancora Holdings”) (collectively, “Ancora Defendants”), Defendants in this action. I make this Affidavit in support of Ancora Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction. 1 have personal knowledge of the facts set forth in this Affidavit. 2. Ancora is a Texas corporation with its principal place of business in Hurst, Texas. Tt is in the business of providing career education and related services. It owns and/or operates a number of career education centers, all outside the State of Ohio. 3 Ancora Holdings is a Texas limited liability company with its principal place of business in Hurst, Texas. It is a holding company and conducts no operations. No member of Ancora Holdings is a citizen of Ohio or an entity organized under the laws of Ohio. Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jun 15 11:01 AM-18CV002305 0E195 - L9 4 Ancora Defendants do not maintain any operations or have any other physical presence in Ohio, and neither of the Ancora Defendants have any contacts in Ohio related to Plaintiff Ed Map, Inc.’s (“Plaintiff”) claims. 5. Ancora Defendants’ respective personnel do not regularly travel to Ohio for business purposes. 6 Ancora Defendants undertake no direct marketing in Ohio. 7. Ancora Defendants are not, and never were, parties to the alleged contract between Plaintiff and Delta Career Education Corporation (the “Delta Contract”), as described in the First Amended Complaint. Ancora Defendants did not participate in the negotiation of the Delta Contract, are not assignees of the Delta Contract, and did not receive any services or benefits under the Delta Contract. 8 On or about January 18, 2018, well after Delta Career Education Corporation’s alleged breach of the Delta Contract, Ancora Holdings entered into an asset purchase agreement (the APA”) with Delta Career Education Corporation and several of its affiliates (collectively, “Delta”), 9. In this transaction, Delta agreed to transfer specified assets, including certain Delta career education facilities outside of Ohio, to Ancora, but neither of the Ancora Defendants acquired Delta itself or assumed any Delta liabilities or debts other than those expressly identified in the APA. The Delta Contract was neither purchased nor assumed by Ancora Defendants. In any event, Delta expressly agreed as part of this transaction that any Delta liability or obligation arising out of any breach or default prior to the closing date belonged solely to Delta, not Ancora Defendants. Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jun 15 11:01 AM-18CV002305 0E195 - L9 10. The APA was neither negotiated nor executed in Ohio. No center, facility or entity that Ancora Holdings acquired or that Ancora received and is operating as a result of the APA has a physical presence in Ohio, No party to the APA is or was an Ohio entity. li. Neither of the Ancora Defendants provided any assurance to Plaintiff, in connection with discussions around the APA or otherwise, that it would pay or guarantee payment of Delta’s debt, if any, to Plaintiff, 12. IT am aware of the suggestion in Plaintiff's First Amended Complaint that Bill Nance or Tim Ryder made representations to Plaintiff in December 2017 to the effect that Ancora Defendants, which were still in negotiations with Delta at the time, would pay or otherwise stand behind Delta’s debt to Plainuff. I have no personal knowledge of what, if anything, any Delta representative said to Plaintiff on this subject in December 2017, but as noted above, I know that neither of the Ancora Defendants, nor any authonzed representative, made such a statement to Plaintiff. 13. In December 2017, neither Bill Nance nor Tim Ryder were employees or agents of Ancora Defendants or any of their affiliates, and neither was authorized by Ancora Defendants to make any statement on their behalf, much less the commitment suggested by Plaintiff. Ancora Defendants never communicated with Plaintiff about the Delta Contract prior to January 2018. Moreover, Ancora Defendants never said or did anything whereby Plaintiff could reasonably have assumed that Messrs. Nance and Ryder spoke for or were acting on behalf’ of Ancora Defendants at that time. 14, Tim Ryder has never been an employee or agent of Ancora Defendants, and has never been authorized to speak on their behalf. Ancora Defendants have no knowledge of any instance in which Mr. Ryder purported to provide payment assurances to Plaintiff on their behalf. Te Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jun 15 11:01 AM-18CV002305 0E195 - L9 tn the unlikely event Mr, Ryder provided any payment assurances to Plaintiff, he did so on behalfof Delta and was not authorized to do so on behalf of Ancora Defendants. 15 Bill Nance was employed by Delta, not Ancora. Defendants, in December 2017. Ancora Defendants have no knowledge of any instance in which Mr. Nance purported to provide payment assurances to Plaintiff on their behalf, and he denies having dons so. In the unlikely event Mr. Nance provided any payment assurances to Plaintiff, he did so on behalf of Delta and was not authorized to de so on behalf of Ancora Defendants. 16. in early 2018, after Ancora Holdings and Della closed on the APA, Bill Nance was hired by Ancora. Atno time during his employment with Ancora has Mr. Nance made any representation. or given any assurance to Plaintiff about payment on the Delta Contract by Ancora or its affiliates, inclading Ancora Holdings. He has never been authorized to speak for either of the Ancora Defendants on this subject. 17. To the best of my knowledge and belief, Ancora Defendants. have never transacted any business with Plaintiff. Further alfiant sayeth naught, ~ L. @ Ve Whey Michael Zawy shy Swom to and subseribed before-me this yy day of fune, 2018 sent Sl 4) corsa aS o% PONPA sotary0 gagaseee? J SANSA tary Pablic for Texas Expires Merch2, cence My commission expires: awk & ol