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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.
MOTION OF DEFENDANTS STVT-AAI EDUCATION, INC.
AND ANCORA INTERMEDIATE HOLDINGS, LLC TO
DISMISS FOR LACK OF PERSONAL JURISDICTION
Pursuant to Civ. R. 12(B)(2), Defendants STVT-AAI Education, Inc. dba Ancora
Education (“Ancora”) and Ancora Intermediate Holdings, LLC (“Ancora Holdings”) (collectively,
the “Ancora Defendants”) respectfully move the Court to dismiss all claims against them for lack
of personal jurisdiction. A Memorandum In Support follows, and the affidavit of the CEO of each
of the Ancora Defendants, Michael Zawisky, is attached as Exhibit 1.
Respectfully submitted,
/s/ C. Craig Woods
C. Craig Woods (0010732)
Andrew H. King (0092539)
Michael T. Mullaly (0090202)
SQUIRE PATTON Bocas (US) LLP
2000 Huntington Center
41 South High Street
Columbus, Ohio 43215
Telephone: (614) 365-2700
Facsimile: (614) 365-2499
craig. woods@squirepb.com
andrew. king@squirepb.com
michael.mullaly@squirepb.com
Attorneys for the Ancora Defendants
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MEMORANDUM IN SUPPORT
I. INTRODUCTION
This is a collection matter in which the Ancora Defendants! simply do not belong. Ed
Map, Inc. (“Plaintiff”), a provider of textbooks and related services, seeks to recover on certain
accounts receivable from Defendant Delta Career Education Corporation and several of its
affiliates (collectively, “Delta”). Ancora Holdings purchased certain assets from Delta in 2018,
but not Delta’s alleged contract with, or liability to, Plaintiff. Plaintiff still seeks to hold the Ancora
Defendants accountable on a theory of liability that is not entirely clear from the First Amended
Complaint (“Complaint”). More importantly for purposes of this motion, Ancora is a Texas
corporation and Ancora Holdings is a Texas limited liability company, each with its principal place
of business in Texas. Compl. 7, 8; Zawisky Aff. at Jf 2, 3. Plaintiff
has not alleged, nor do the
Ancora Defendants have, sufficient contacts with Ohio to support the exercise of personal
jurisdiction over them in this matter. The Ancora Defendants thus seek dismissal of all claims
against them pursuant to Civ. R. 12(B)(2).
As to Ancora, this is a renewal of the motion it filed on May 18, 2018 seeking dismissal of
the original complaint on personal jurisdiction grounds. Plaintiff appears to have filed its First
Amended Complaint, at least in part, to moot Ancora’s initial motion Plaintiff's amended
pleading does not, however, assert any additional jurisdictional facts as to Ancora or otherwise
take issue with the facts presented in Ancora’s initial motion Instead, the First Amended
Complaint adds Ancora Holdings as a defendant, possibly on the basis of certain representations
made in Ancora’s initial motion. It still falls well short of pleading facts sufficient for this Court
1 The Ancora Defendants are Defendant STVT-AAI Education, Inc. dba Ancora Education (“Ancora”) and
Defendant Ancora Intermediate Holdings, LLC (“Ancora Holdings”).
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to properly maintain personal jurisdiction over either of the Ancora Defendants, however. Ancora
thus renews its initial motion, and Ancora Holdings joins the motion in its own right.
IL. FACTUAL BACKGROUND
This action arises from a 2012 contract (the “Delta Contract”) between Plaintiff, a
Delaware corporation based in Ohio, and Delta Career Education Corporation, a Delaware
corporation based in Virginia. Compl. 9§ 1, 3.2 Under the Delta Contract, Plaintiff agreed to
furnish course materials and other educational services to students of certain Delta-affiliated
schools. Compl. {§|5, 6. Broadly speaking, Plaintiffs obligation under the Delta Contract was to
“[p]urchase, manage and distribute textbooks and related materials on behalf of [Delta] to meet
the needs of [Delta’s] students as [Delta] may reasonably request from time to time.” Delta
Contract, Ex. A to Compl., at J 1(a). With some exceptions, the Delta Contract set forth the
general process by which this was to occur. /d. at Attachment C, II(1). Certain Delta-affiliated
schools would provide a “textbook adoption list and enrollment information” to Plaintiff, which
then would use this information to create online shopping carts for each enrolled student. /d. Once
a student validated the orders in his or her shopping cart and specified a shipping address, Plaintiff
would “ship the orders from [its] warehouse to the address that the student provides.” /d. Over
time, the scope of the Delta Contract expanded to cover certain Delta-affiliated schools beyond the
two that initially participated in the agreement. Amendment, Ex. B to Compl.
Plaintiff alleges that, by December 2017, Delta had become seriously delinquent in its
payment obligations under the Delta Contract. Compl. 435. Plaintiff also alleges that, around this
same time, Delta informed Plaintiff of a “pending transaction in which Ancora Holdings had
agreed to acquire certain assets of [Delta].” Compl. 134. Plaintiff asserts that it received assurance
? As of this writing, none of the Delta defendants has entered an appearance in this case.
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on or about December 27, 2017 that amounts due under the Delta Contract “would be paid in full
at the closing of the transaction. ..or closely thereafter.” Compl. 38. Plaintiff intimates, but does
not actually allege in any detail, that such assurance was made, in part, on behalf of both Delta and
the Ancora Defendants Compl. 39. This is simply untrue. The individuals alleged to have
provided the assurance were not, and are not alleged to have been, agents of the Ancora Defendants
or otherwise authorized to speak for them. As is set forth in the affidavit of their CEO, Michael
Zawisky, the Ancora Defendants had no knowledge of such assurances — if they were given at all.
Zawisky Aff. at JJ 11-15
On or about January 18, 2018, Ancora Holdings entered into an asset purchase agreement
(“APA”) with Delta and certain Delta affiliates, some of which are defendants in this litigation
Zawisky Aff. at J 8. Like Ancora itself, Ancora Holdings has no physical presence in Ohio and no
contacts in Ohio relative to Plaintiffs claims.’ Jd. at § 4. 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. /d. at 99.
The Delta Contract was neither purchased nor assumed by the Ancora Defendants. /d.
Further, Delta expressly agreed as part of the transaction that any Delta liability or obligation
arising out of a contractual breach or default prior to the closing date belonged solely to Delta, not
the Ancora Defendants. /d. Plaintiff admits that Delta was in breach of the Delta Contract by no
later than December 2017. Compl. § 35. Thus, because the closing on the APA occurred on or
about January 18, 2018, neither of the Ancora Defendants assumed any liability with respect to
the Delta Contract. See Zawisky Aff. at ff 8, 9.
3 Indeed, Ancora Holdings is a holding company and conducts no operations anywhere. Zawisky Aff at § 3.
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In any event, it is undisputed that none of the assets acquired by the Ancora Defendants
from Delta are located in, or have significant ties to, Ohio. Zawisky Aff. at J§ 2-6, 10. The Ancora
Defendants’ dealings with Delta took place outside of Ohio, and the Ancora Defendants do not
maintain any facilities or other business presence in Ohio. /d. The Ancora Defendants have had
no direct dealings with Plaintiff in Ohio or anywhere else for that matter. /d. at ¥ 17.
Til. LAW AND ARGUMENT
Determining whether an Ohio court may exercise personal jurisdiction over an out-of-state
defendant requires a two-part analysis. The Ohio Supreme Court has stated
[T]he court must determine whether the state’s “long-arm” statute
and applicable civil rule confer personal jurisdiction, and, if so,
whether granting jurisdiction under the statute and the rule would
deprive the defendant of the right to due process of law pursuant to
the Fourteenth Amendment to the United States Constitution.
U.S. Sprint Communications Co. v. Mr. K’s Foods, Inc., 68 Ohio St. 3d 181, 183-184 (1994). This
two-part analysis is necessary because Ohio’s long-arm statute and applicable civil rule do not
confer personal jurisdiction to the full limits permitted under the Due Process Clause of the
Fourteenth Amendment.* Goldstein v. Christiansen, 70 Ohio St. 3d 232, 238 n.1 (1994); Simmons
vy. Budde, 10th Dist. Franklin No. 14AP-846, 2015-Ohio-3780, § 13
Under this framework, the initial question here is whether Ohio’s long-arm statute supports
the exercise of personal jurisdiction over the Ancora Defendants Because none of the
requirements for personal jurisdiction under the statute are present in this case, no personal
jurisdiction exists. The Court, therefore, does not even need to consider the constitutional issue.
Simmons, 2015-Ohio-3780, § 23 (“Because the first [step] of Ohio’s ‘two-step analysis’ is not met,
* The civil rule applicable to Ohio’s long-arm statute is Civ. R. 4.3, which governs out-of-state service. The Ohio
Supreme Court has held that Civ. R. 4.3 and Ohio’s long-arm statute are “coextensive” (a conclusion supported by
their nearly identical operative text). U.S. Sprint, 68 Ohio St. 3d at 184 n.2.
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we do not address whether an Ohio court’s assertion of personal jurisdiction...would deprive
[defendant] of due process of law.”). That said, even if the requirements of the long-arm statute
were satisfied (and they are not), personal jurisdiction also is lacking because Plaintiff cannot
demonstrate that either of the Ancora Defendants has “minimum contacts” with Ohio such that the
exercise of personal jurisdiction would comport with due process. International Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945).
A. The Burden Is On Plaintiff to Prove the Existence of Personal Jurisdiction
“Once a defendant moves to dismiss for lack of personal jurisdiction, a plaintiff must
establish that the trial court has personal jurisdiction over the defendant.” Joffe v. Cable Tech,
Inc., 163 Ohio App. 3d 479, 486 (10th Dist. 2005). In order to establish its prima facie case,
Plaintiff must “produce sufficient evidence to allow reasonable minds to conclude that the trial
court has personal jurisdiction.” /d. Based on the facts pled in the Complaint and those set forth
in the affidavit accompanying this motion, Plaintiff simply cannot meet this burden here
B. The Ohio Long-Arm Statute Does Not Support The Exercise of Personal
Jurisdiction Over The Ancora Defendants In This Matter
Ohio’s long-arm statute is codified at R.C. § 2307.382. The statute provides that:
A court may exercise personal jurisdiction over a person who acts
directly or by an agent, as to a cause of action arising from the
person’s:
Q) Transacting any business in this state;
(2) Contracting to supply services or goods in this state;
(3) Causing tortious injury by an act or omission in this state;
(4) Causing tortious injury in this state by an act or omission
outside this state if he regularly does or solicits business, or engages
in any other persistent course of conduct, or derives substantial
revenue from goods used or consumed or services rendered in this
state;
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(5) Causing injury in this state to any person by breach of
warranty expressly or impliedly made in the sale of goods outside
this state 3
(6) Causing tortious injury in this state to any person by an act
outside this state committed with the purpose of injuring persons,
when he might reasonably have expected that some person would
be injured thereby in this state;
1) Causing tortious injury to any person by a criminal act, any
element of which takes place in this state, which he commits or in
the commission of which he is guilty of complicity;
(8) Having an interest in, using, or possessing real property in
this state;
(9) Contracting to insure any person, property, or risk located
within this state at the time of contracting.
R.C. § 2307.382(A). The statute further provides that, “[w]hen jurisdiction over a person is based
solely upon this section, only a cause of action arising from acts enumerated in this section may
be asserted against him.” R.C. § 2307.382(C). The Ancora Defendants are not subject to personal
jurisdiction under any of the enumerated long-arm categories.
1. The Ancora Defendants Have Not Transacted Any Business In Ohio
Under R.C. § 2307.382(A)(1)
R.C. § 2307.382(A)(1) authorizes the exercise of personal jurisdiction with respect to a
cause of action that arises from the defendant “[t]ransacting any business in [Ohio].” The Ohio
Supreme Court has cited the following definition of “transact” in its construction of this provision:
“Transact,” means to prosecute negotiations; to carry on
business; to have dealings. The word embraces in its meaning the
carrying on or prosecuting of business negotiations but it is a
broader term than the word “contract” and may involve business
negotiations which have been either wholly or partly brought to a
conclusion.
Kentucky Oaks Mall Co. v. Mitchell's Formal Wear, Inc., 53 Ohio St.3d 73, 75 (1990) (internal
quotations omitted). Notwithstanding the breadth of this provision, Plaintiff cannot meet its
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burden of establishing that the Ancora Defendants have transacted any business in Ohio pertinent
to Plaintiff's claims. RC, § 2307.382(C) Plaintiff may argue that the Delta Contract was
negotiated, in part, in Ohio, and that it contemplated a substantial and on-going business
relationship between Delta and Plaintiff, which is headquartered in Ohio. See Compl. 1, 5, 6
These arguments are unavailing, however, because as noted above, the Ancora Defendants did not
participate in the negotiations, did not receive goods or services from Plaintiff, and never
purchased or assumed the Delta Contract. Zawisky Aff at {] 7, 9. There is simply no legal basis
to conclude that the Ancora Defendants have conducted any business in Ohio in relation to the
Delta Contract.
Likewise, the agreement between Ancora Holdings and Delta by which Ancora obtained
certain assets of Delta was not negotiated in Ohio, and none of the parties to the APA is an Ohio
entity. Jd. at § 10. No entity that Ancora Holdings acquired or that Ancora received and is
operating as a result of the APA has a physical presence in Ohio. Jd. Thus, while none of
Plaintiff's claims arises from the APA, not even that agreement would provide any basis for
oncluding that the Ancora Defendants transacted business in Ohio pertinent to the allegations of
the Complaint.
2. R.C. § 2307.382(A)(3), (4), (6), and (7) Provide No Basis For Personal
Jurisdiction Because The Ancora Defendants Did Not, Directly or By
An Agent, Make The Representation Alleged In Count II
R.C. § 2307.382(A)(3), (4), (6), and (7) each premise personal jurisdiction, in part, upon a
defendant “[c]ausing tortious injury.” As noted above, however, this is not a tort case despite
Plaintiffs best efforts to make it one. It is, at its heart, a debtor-creditor dispute. Only a single
tort is alleged in Plaintiff's complaint, and, as to the Ancora Defendants, it is so speculative and
demonstrably unfounded that it does not and cannot form the basis of personal jurisdiction over
them
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Count II of the Complaint alleges fraud based on a purported “material misrepresentation”
to Plaintiff. Compl. §§ 61-68. Specifically, Plaintiff alleges that, on December 27, 2017, “Bill
Nance and Tim Ryder, on behalf of Delta, Ancora, and Ancora Holdings, assured Greg Smith of
Ed Map that Ed Map would be paid in full at the closing of the transaction between the Defendants
or closely thereafter.” Compl. 38. Plaintiff further alleges “/u/pon information and belief, [that]
Bill Nance and Tim Ryder made that statement on the authority of Delta, Ancora, and Ancora
Holdings.” Compl. § 39 (emphasis supplied). There is no other fact or circumstance pled by
Plaintiff to suggest that Messrs. Nance or Ryder were employed by, or otherwise authorized to
speak for, the Ancora Defendants.
Even assuming that Messrs. Nance and/or Ryder made the statement alleged in Count II,
neither was an agent of the Ancora Defendants and neither had any authority to speak on their
behalf. Zawisky Aff at {J 11-15. Both were affiliated with Delta, not the Ancora Defendants, at
the time the alleged statement was made. /d. at § 14, 15. Further, whatever representations
regarding payment of Delta’s past due amounts may have been made to Plaintiff, the Ancora
Defendants neither had knowledge of such communications nor had given any indication to
Plaintiff that they would pay or otherwise stand behind Delta’s debt. /d. at J] 11-16. In light of
these facts, Plaintiff cannot and should not be permitted to hale the Ancora Defendants into the
courts of Ohio based solely on a bare allegation, pled “on information and belief”, that someone
purporting to represent Delta and/or the Ancora Defendants might have communicated a
willingness to pay a debt of Delta. CompuServe, Inc. v. Trionfo, 91 Ohio App. 3d 157, 162 (1993)
(exercise of personal jurisdiction must be supported by evidence in record).
In addition, Plaintiff cannot meet certain other requirements of the “tort sections” of Ohio’s
long-arm statute. As to R.C. § 2307.382(A)(3), there is nothing to suggest that the Ancora
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Defendants committed any tortious act in Ohio. Likewise, subsection (4) does not apply because
the Ancora Defendants do not regularly engage in or solicit business in Ohio, nor are they alleged
to do so. Subsection (6) is inapposite because the Ancora Defendants committed no act which
would give rise to a reasonable expectation of injury in Ohio. Subsection (7) is not triggered
because no criminal conduct by any Defendant, much less the Ancora Defendants, is alleged in
the Complaint.
3. The Complaint Does Not Allege Activity Within The Scope of R.C.
§ 2307.382(A)(2), (5), (8), and (9)
Plaintiffs claims do not involve any allegation that the Ancora Defendants contracted to
supply goods or services in Ohio (R.C. § 2307.382(A)(2)); that they breached any warranty in
connection with a sale of goods (id. at (A)(5)); that they had any interest in or used real property
in Ohio (id. at (A)(8)); or that they acted as an insurer (id. at (A)(9)).
Cc. Federal Due Process Also Bars The Exercise Of Personal Jurisdiction Over
The Ancora Defendants In Ohio
As discussed supra, even if Plaintiff could satisfy the requirements of Ohio’s long-arm
statute, it would still have to demonstrate that this Court’s exercise of personal jurisdiction over
the Ancora Defendants comports with basic due process. This it cannot do because the Ancora
Defendants lack the essential “minimum contacts” with Ohio.
Under the second part of the two-step personal jurisdiction analysis referenced above, the
court must assess whether an assertion of personal jurisdiction would comport with the Due
Process Clause of the Fourteenth Amendment. U.S. Sprint Communications Co. v. Mr. K’s Foods,
Inc., 68 Ohio St. 3d 181, 186 (1994). At the crux of this determination is whether the defendant
has established “certain minimum contacts” with the forum state “such that the maintenance of
suit does not offend traditional notions of fair play and substantial justice.” Jnternational Shoe Co.
yv. Washington, 326 U.S. 310, 316 (1945) (internal quotation omitted). In this regard, courts are
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required to be vigilant against efforts by one civil litigant to compel another to defend an action in
a forum where its contacts are “casual” and unrelated to the subject matter of the action. /d. at
318. Indeed, “it is essential in each case that there be some act by which the defendant purposefully
avails itself of the privilege of conducting activities within the forum State, thus invoking the
benefits and protections of its laws.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985).
This requirement “ensures that a defendant will not be haled into a jurisdiction solely as a result
of random, fortuitous, or attenuated contacts, or of the unilateral activity of another party or a third
person.” /d. (internal citations and quotations omitted).
Subject to the “constitutional touchstone” of whether a defendant has created “minimum
ontacts” with the forum state through instances of purposeful availment, id. at 474, the court may
also consider a series of other factors in weighing whether an exercise of personal jurisdiction
complies with due process. /d. at 476-477. These include “the burden on the defendant, the forum
State’s interest in adjudicating the dispute, the plaintiff's interest in obtaining convenient and
effective relief, the interstate judicial system’s interest in obtaining the most efficient resolution of
controversies, and the shared interest of the several States in furthering fundamental substantive
social policies.” /d. (internal quotations omitted)
In this case, there is nothing in the Complaint from which it could be inferred, much less
established, that either of the Ancora Defendants has “purposefully avail[ed] itself of the privilege
of conducting activities within [Ohio]” or has “minimum contacts” with the state sufficient to
warrant the exercise of personal jurisdiction consistent with due process. /d. at 474-475. If there
were any doubt on this point, the accompanying affidavit of the CEO of each of the Ancora
Defendants should lay it to rest As noted there, the Ancora Defendants do not maintain any
operations or have any other physical presence in Ohio. Zawisky Aff. at § 4. The Ancora
10
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Defendants’ respective personnel do not regularly travel to Ohio for business purposes. /d. at 5
The Ancora Defendants undertake no direct marketing in Ohio. /d. at § 6. In short, the Ancora
Defendants have in no way sought to “purposefully derive benefit” from Ohio such that it would
be “unfair” to exempt them from the correlate burden of being subject to personal jurisdiction in
Ohio. Burger King, 471 U.S. at 473-474.
Moreover, to the extent the Ancora Defendants have any contacts with Ohio at all, they are
unrelated to Plaintiff's claims. See International Shoe, 326 U.S. at 318. The fact that the Ancora
Defendants acquired certain assets and liabilities of Delta, a company that allegedly owed money
to Plaintiff, is not a meaningful (or even a direct) jurisdictional contact between the Ancora
Defendants and Ohio. This is particularly true where, as here, the Ancora Defendants acquired
assets from Delta well after the alleged breach of the Delta Contract, did not take assignment of
the Delta Contract, and did not receive any services or benefits under it. Zawisky Aff. at Jf] 7, 8;
compare id. at § 8 with Compl. { 35. As noted above, the Ancora Defendants neither purchased
nor assumed the Delta Contract and expressly disclaimed any liability or obligation arising out of
any breach or default prior to the closing date of Ancora Holdings’ transaction with Delta. Zawisky
Aff at 9. Delta’s pre-existing obligations to Plaintiff, if any, remain strictly between them
Exercising personal jurisdiction on so thin a reed as Plaintiff proposes would exalt a
“random, fortuitous, [and] attenuated contact[]” above the constitutionally-protected due process
rights of the Ancora Defendants, which had no reason whatsoever to anticipate being sued in Ohio
in connection with the APA. Burger King, 471 U.S. at 474-475 (emphasizing foreseeability of
suit in forum state among the indicia of purposeful availment). None of the other factors the court
may consider in its due process analysis justifies a departure in this case from the ordinary
standard, under which the minimum contacts and purposeful availment requirements are strictly
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applied. See id. at 476-477. In particular, Plaintiff’ s “interest in obtaining convenient and effective
relief” is more than fully countermanded by the “burden on the defendant” that would result from
litigation in Ohio, given that the Ancora Defendants are based in Texas and have no presence in
Ohio. Zawisky Aff. at J{ 2-6, 10
IV. CONCLUSION
As detailed above, the exercise of personal jurisdiction over the Ancora Defendants is not
authorized by Ohio’s long-arm statute and would violate the Due Process Clause of the Fourteenth
Amendment. For each of these two independent reasons, the Ancora Defendants respectfully
request that, as to them, the First Amended Complaint be dismissed in its entirety pursuant to Civ
R. 12(B)(2)
Respectfully submitted,
ds/ C. Craig Woods
C. Craig Woods (0010732)
Andrew H. King (0092539)
Michael T. Mullaly (0090202)
SQUIRE PATTON Bocas (US) LLP
2000 Huntington Center
41 South High Street
Columbus, Ohio 43215
Telephone: (614) 365-2700
Facsimile: (614) 365-2499
craig. woods@squirepb.com
andrew.king@squirepb.com
michael.mullaly@squirepb.com
Attorneys for the Ancora Defendants
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and accurate copy of the foregoing was served
this 15th day of June, 2018, via the Court’s electronic filing system and/or by regular U.S. Mail,
upon the following:
Elizabeth L. Moyo Delta Career Education Corporation
Allen T. Carter 99 Canal Center Plaza, Suite 501
Porter, Wright, Morris & Arthur LLP Alexandria, VA 22314
41 South High Street
Columbus, OH 43215
emoyo@porterwright.com
acarter@porterwright.com
Attorneys for Plaintiff
Atlantic Coast Colleges, Inc. Berks Technical Institute, Inc.
c/o Corporation Service Company c/o Corporation Service Company
2626 Glenwood Ave., Suite 550 251 Little Falls Drive
Raleigh, NC 27608 Wilmington, DE 19808
McCann Education Centers, Inc McCann School of Business and
c/o Corporation Service Company Technology, Inc
2595 Interstate Drive, Suite 103 c/o Donald C. Douglass, Jr.
Harrisburg, PA 17110 3320 West Esplanade Ave. North
Metairie, LA 70002
Miller-Motte Business College, Inc. Palmetto Technical College, Inc.
c/o Corporation Service Company c/o VB Business Services, LLC
2626 Glenwood Ave., Suite 550 500 World Trade Ctr.
Raleigh, NC 27608 101 W. Main Street
Norfolk, VA 23510
Piedmont Business Colleges, Inc.
c/o Corporation Service Company
2626 Glenwood Ave., Suite 550
Raleigh, NC 27608
/s/ Michael T. Mullaly
Michael T. Mullaly (0090202)
13
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Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jun 15 11:01 AM-18CV002305 0E195 - L8 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. MOTION OF DEFENDANTS STVT-AAI EDUCATION, INC. AND ANCORA INTERMEDIATE HOLDINGS, LLC TO DISMISS FOR LACK OF PERSONAL JURISDICTION Pursuant to Civ. R. 12(B)(2), Defendants STVT-AAI Education, Inc. dba Ancora Education (“Ancora”) and Ancora Intermediate Holdings, LLC (“Ancora Holdings”) (collectively, the “Ancora Defendants”) respectfully move the Court to dismiss all claims against them for lack of personal jurisdiction. A Memorandum In Support follows, and the affidavit of the CEO of each of the Ancora Defendants, Michael Zawisky, is attached as Exhibit 1. Respectfully submitted, /s/ C. Craig Woods C. Craig Woods (0010732) Andrew H. King (0092539) Michael T. Mullaly (0090202) SQUIRE PATTON Bocas (US) LLP 2000 Huntington Center 41 South High Street Columbus, Ohio 43215 Telephone: (614) 365-2700 Facsimile: (614) 365-2499 craig. woods@squirepb.com andrew. king@squirepb.com michael.mullaly@squirepb.com Attorneys for the Ancora Defendants Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jun 15 11:01 AM-18CV002305 0E195 - L8 MEMORANDUM IN SUPPORT I. INTRODUCTION This is a collection matter in which the Ancora Defendants! simply do not belong. Ed Map, Inc. (“Plaintiff”), a provider of textbooks and related services, seeks to recover on certain accounts receivable from Defendant Delta Career Education Corporation and several of its affiliates (collectively, “Delta”). Ancora Holdings purchased certain assets from Delta in 2018, but not Delta’s alleged contract with, or liability to, Plaintiff. Plaintiff still seeks to hold the Ancora Defendants accountable on a theory of liability that is not entirely clear from the First Amended Complaint (“Complaint”). More importantly for purposes of this motion, Ancora is a Texas corporation and Ancora Holdings is a Texas limited liability company, each with its principal place of business in Texas. Compl. 7, 8; Zawisky Aff. at Jf 2, 3. Plaintiff has not alleged, nor do the Ancora Defendants have, sufficient contacts with Ohio to support the exercise of personal jurisdiction over them in this matter. The Ancora Defendants thus seek dismissal of all claims against them pursuant to Civ. R. 12(B)(2). As to Ancora, this is a renewal of the motion it filed on May 18, 2018 seeking dismissal of the original complaint on personal jurisdiction grounds. Plaintiff appears to have filed its First Amended Complaint, at least in part, to moot Ancora’s initial motion Plaintiff's amended pleading does not, however, assert any additional jurisdictional facts as to Ancora or otherwise take issue with the facts presented in Ancora’s initial motion Instead, the First Amended Complaint adds Ancora Holdings as a defendant, possibly on the basis of certain representations made in Ancora’s initial motion. It still falls well short of pleading facts sufficient for this Court 1 The Ancora Defendants are Defendant STVT-AAI Education, Inc. dba Ancora Education (“Ancora”) and Defendant Ancora Intermediate Holdings, LLC (“Ancora Holdings”). Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jun 15 11:01 AM-18CV002305 0E195 - L8 to properly maintain personal jurisdiction over either of the Ancora Defendants, however. Ancora thus renews its initial motion, and Ancora Holdings joins the motion in its own right. IL. FACTUAL BACKGROUND This action arises from a 2012 contract (the “Delta Contract”) between Plaintiff, a Delaware corporation based in Ohio, and Delta Career Education Corporation, a Delaware corporation based in Virginia. Compl. 9§ 1, 3.2 Under the Delta Contract, Plaintiff agreed to furnish course materials and other educational services to students of certain Delta-affiliated schools. Compl. {§|5, 6. Broadly speaking, Plaintiffs obligation under the Delta Contract was to “[p]urchase, manage and distribute textbooks and related materials on behalf of [Delta] to meet the needs of [Delta’s] students as [Delta] may reasonably request from time to time.” Delta Contract, Ex. A to Compl., at J 1(a). With some exceptions, the Delta Contract set forth the general process by which this was to occur. /d. at Attachment C, II(1). Certain Delta-affiliated schools would provide a “textbook adoption list and enrollment information” to Plaintiff, which then would use this information to create online shopping carts for each enrolled student. /d. Once a student validated the orders in his or her shopping cart and specified a shipping address, Plaintiff would “ship the orders from [its] warehouse to the address that the student provides.” /d. Over time, the scope of the Delta Contract expanded to cover certain Delta-affiliated schools beyond the two that initially participated in the agreement. Amendment, Ex. B to Compl. Plaintiff alleges that, by December 2017, Delta had become seriously delinquent in its payment obligations under the Delta Contract. Compl. 435. Plaintiff also alleges that, around this same time, Delta informed Plaintiff of a “pending transaction in which Ancora Holdings had agreed to acquire certain assets of [Delta].” Compl. 134. Plaintiff asserts that it received assurance ? As of this writing, none of the Delta defendants has entered an appearance in this case. Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jun 15 11:01 AM-18CV002305 0E195 - L8 on or about December 27, 2017 that amounts due under the Delta Contract “would be paid in full at the closing of the transaction. ..or closely thereafter.” Compl. 38. Plaintiff intimates, but does not actually allege in any detail, that such assurance was made, in part, on behalf of both Delta and the Ancora Defendants Compl. 39. This is simply untrue. The individuals alleged to have provided the assurance were not, and are not alleged to have been, agents of the Ancora Defendants or otherwise authorized to speak for them. As is set forth in the affidavit of their CEO, Michael Zawisky, the Ancora Defendants had no knowledge of such assurances — if they were given at all. Zawisky Aff. at JJ 11-15 On or about January 18, 2018, Ancora Holdings entered into an asset purchase agreement (“APA”) with Delta and certain Delta affiliates, some of which are defendants in this litigation Zawisky Aff. at J 8. Like Ancora itself, Ancora Holdings has no physical presence in Ohio and no contacts in Ohio relative to Plaintiffs claims.’ Jd. at § 4. 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. /d. at 99. The Delta Contract was neither purchased nor assumed by the Ancora Defendants. /d. Further, Delta expressly agreed as part of the transaction that any Delta liability or obligation arising out of a contractual breach or default prior to the closing date belonged solely to Delta, not the Ancora Defendants. /d. Plaintiff admits that Delta was in breach of the Delta Contract by no later than December 2017. Compl. § 35. Thus, because the closing on the APA occurred on or about January 18, 2018, neither of the Ancora Defendants assumed any liability with respect to the Delta Contract. See Zawisky Aff. at ff 8, 9. 3 Indeed, Ancora Holdings is a holding company and conducts no operations anywhere. Zawisky Aff at § 3. Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jun 15 11:01 AM-18CV002305 0E195 - L8 In any event, it is undisputed that none of the assets acquired by the Ancora Defendants from Delta are located in, or have significant ties to, Ohio. Zawisky Aff. at J§ 2-6, 10. The Ancora Defendants’ dealings with Delta took place outside of Ohio, and the Ancora Defendants do not maintain any facilities or other business presence in Ohio. /d. The Ancora Defendants have had no direct dealings with Plaintiff in Ohio or anywhere else for that matter. /d. at ¥ 17. Til. LAW AND ARGUMENT Determining whether an Ohio court may exercise personal jurisdiction over an out-of-state defendant requires a two-part analysis. The Ohio Supreme Court has stated [T]he court must determine whether the state’s “long-arm” statute and applicable civil rule confer personal jurisdiction, and, if so, whether granting jurisdiction under the statute and the rule would deprive the defendant of the right to due process of law pursuant to the Fourteenth Amendment to the United States Constitution. U.S. Sprint Communications Co. v. Mr. K’s Foods, Inc., 68 Ohio St. 3d 181, 183-184 (1994). This two-part analysis is necessary because Ohio’s long-arm statute and applicable civil rule do not confer personal jurisdiction to the full limits permitted under the Due Process Clause of the Fourteenth Amendment.* Goldstein v. Christiansen, 70 Ohio St. 3d 232, 238 n.1 (1994); Simmons vy. Budde, 10th Dist. Franklin No. 14AP-846, 2015-Ohio-3780, § 13 Under this framework, the initial question here is whether Ohio’s long-arm statute supports the exercise of personal jurisdiction over the Ancora Defendants Because none of the requirements for personal jurisdiction under the statute are present in this case, no personal jurisdiction exists. The Court, therefore, does not even need to consider the constitutional issue. Simmons, 2015-Ohio-3780, § 23 (“Because the first [step] of Ohio’s ‘two-step analysis’ is not met, * The civil rule applicable to Ohio’s long-arm statute is Civ. R. 4.3, which governs out-of-state service. The Ohio Supreme Court has held that Civ. R. 4.3 and Ohio’s long-arm statute are “coextensive” (a conclusion supported by their nearly identical operative text). U.S. Sprint, 68 Ohio St. 3d at 184 n.2. Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jun 15 11:01 AM-18CV002305 0E195 - L8 we do not address whether an Ohio court’s assertion of personal jurisdiction...would deprive [defendant] of due process of law.”). That said, even if the requirements of the long-arm statute were satisfied (and they are not), personal jurisdiction also is lacking because Plaintiff cannot demonstrate that either of the Ancora Defendants has “minimum contacts” with Ohio such that the exercise of personal jurisdiction would comport with due process. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). A. The Burden Is On Plaintiff to Prove the Existence of Personal Jurisdiction “Once a defendant moves to dismiss for lack of personal jurisdiction, a plaintiff must establish that the trial court has personal jurisdiction over the defendant.” Joffe v. Cable Tech, Inc., 163 Ohio App. 3d 479, 486 (10th Dist. 2005). In order to establish its prima facie case, Plaintiff must “produce sufficient evidence to allow reasonable minds to conclude that the trial court has personal jurisdiction.” /d. Based on the facts pled in the Complaint and those set forth in the affidavit accompanying this motion, Plaintiff simply cannot meet this burden here B. The Ohio Long-Arm Statute Does Not Support The Exercise of Personal Jurisdiction Over The Ancora Defendants In This Matter Ohio’s long-arm statute is codified at R.C. § 2307.382. The statute provides that: A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a cause of action arising from the person’s: Q) Transacting any business in this state; (2) Contracting to supply services or goods in this state; (3) Causing tortious injury by an act or omission in this state; (4) Causing tortious injury in this state by an act or omission outside this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state; Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jun 15 11:01 AM-18CV002305 0E195 - L8 (5) Causing injury in this state to any person by breach of warranty expressly or impliedly made in the sale of goods outside this state 3 (6) Causing tortious injury in this state to any person by an act outside this state committed with the purpose of injuring persons, when he might reasonably have expected that some person would be injured thereby in this state; 1) Causing tortious injury to any person by a criminal act, any element of which takes place in this state, which he commits or in the commission of which he is guilty of complicity; (8) Having an interest in, using, or possessing real property in this state; (9) Contracting to insure any person, property, or risk located within this state at the time of contracting. R.C. § 2307.382(A). The statute further provides that, “[w]hen jurisdiction over a person is based solely upon this section, only a cause of action arising from acts enumerated in this section may be asserted against him.” R.C. § 2307.382(C). The Ancora Defendants are not subject to personal jurisdiction under any of the enumerated long-arm categories. 1. The Ancora Defendants Have Not Transacted Any Business In Ohio Under R.C. § 2307.382(A)(1) R.C. § 2307.382(A)(1) authorizes the exercise of personal jurisdiction with respect to a cause of action that arises from the defendant “[t]ransacting any business in [Ohio].” The Ohio Supreme Court has cited the following definition of “transact” in its construction of this provision: “Transact,” means to prosecute negotiations; to carry on business; to have dealings. The word embraces in its meaning the carrying on or prosecuting of business negotiations but it is a broader term than the word “contract” and may involve business negotiations which have been either wholly or partly brought to a conclusion. Kentucky Oaks Mall Co. v. Mitchell's Formal Wear, Inc., 53 Ohio St.3d 73, 75 (1990) (internal quotations omitted). Notwithstanding the breadth of this provision, Plaintiff cannot meet its Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jun 15 11:01 AM-18CV002305 0E195 - L8 burden of establishing that the Ancora Defendants have transacted any business in Ohio pertinent to Plaintiff's claims. RC, § 2307.382(C) Plaintiff may argue that the Delta Contract was negotiated, in part, in Ohio, and that it contemplated a substantial and on-going business relationship between Delta and Plaintiff, which is headquartered in Ohio. See Compl. 1, 5, 6 These arguments are unavailing, however, because as noted above, the Ancora Defendants did not participate in the negotiations, did not receive goods or services from Plaintiff, and never purchased or assumed the Delta Contract. Zawisky Aff at {] 7, 9. There is simply no legal basis to conclude that the Ancora Defendants have conducted any business in Ohio in relation to the Delta Contract. Likewise, the agreement between Ancora Holdings and Delta by which Ancora obtained certain assets of Delta was not negotiated in Ohio, and none of the parties to the APA is an Ohio entity. Jd. at § 10. No entity that Ancora Holdings acquired or that Ancora received and is operating as a result of the APA has a physical presence in Ohio. Jd. Thus, while none of Plaintiff's claims arises from the APA, not even that agreement would provide any basis for oncluding that the Ancora Defendants transacted business in Ohio pertinent to the allegations of the Complaint. 2. R.C. § 2307.382(A)(3), (4), (6), and (7) Provide No Basis For Personal Jurisdiction Because The Ancora Defendants Did Not, Directly or By An Agent, Make The Representation Alleged In Count II R.C. § 2307.382(A)(3), (4), (6), and (7) each premise personal jurisdiction, in part, upon a defendant “[c]ausing tortious injury.” As noted above, however, this is not a tort case despite Plaintiffs best efforts to make it one. It is, at its heart, a debtor-creditor dispute. Only a single tort is alleged in Plaintiff's complaint, and, as to the Ancora Defendants, it is so speculative and demonstrably unfounded that it does not and cannot form the basis of personal jurisdiction over them Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jun 15 11:01 AM-18CV002305 0E195 - L8 Count II of the Complaint alleges fraud based on a purported “material misrepresentation” to Plaintiff. Compl. §§ 61-68. Specifically, Plaintiff alleges that, on December 27, 2017, “Bill Nance and Tim Ryder, on behalf of Delta, Ancora, and Ancora Holdings, assured Greg Smith of Ed Map that Ed Map would be paid in full at the closing of the transaction between the Defendants or closely thereafter.” Compl. 38. Plaintiff further alleges “/u/pon information and belief, [that] Bill Nance and Tim Ryder made that statement on the authority of Delta, Ancora, and Ancora Holdings.” Compl. § 39 (emphasis supplied). There is no other fact or circumstance pled by Plaintiff to suggest that Messrs. Nance or Ryder were employed by, or otherwise authorized to speak for, the Ancora Defendants. Even assuming that Messrs. Nance and/or Ryder made the statement alleged in Count II, neither was an agent of the Ancora Defendants and neither had any authority to speak on their behalf. Zawisky Aff at {J 11-15. Both were affiliated with Delta, not the Ancora Defendants, at the time the alleged statement was made. /d. at § 14, 15. Further, whatever representations regarding payment of Delta’s past due amounts may have been made to Plaintiff, the Ancora Defendants neither had knowledge of such communications nor had given any indication to Plaintiff that they would pay or otherwise stand behind Delta’s debt. /d. at J] 11-16. In light of these facts, Plaintiff cannot and should not be permitted to hale the Ancora Defendants into the courts of Ohio based solely on a bare allegation, pled “on information and belief”, that someone purporting to represent Delta and/or the Ancora Defendants might have communicated a willingness to pay a debt of Delta. CompuServe, Inc. v. Trionfo, 91 Ohio App. 3d 157, 162 (1993) (exercise of personal jurisdiction must be supported by evidence in record). In addition, Plaintiff cannot meet certain other requirements of the “tort sections” of Ohio’s long-arm statute. As to R.C. § 2307.382(A)(3), there is nothing to suggest that the Ancora Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jun 15 11:01 AM-18CV002305 0E195 - L9 Defendants committed any tortious act in Ohio. Likewise, subsection (4) does not apply because the Ancora Defendants do not regularly engage in or solicit business in Ohio, nor are they alleged to do so. Subsection (6) is inapposite because the Ancora Defendants committed no act which would give rise to a reasonable expectation of injury in Ohio. Subsection (7) is not triggered because no criminal conduct by any Defendant, much less the Ancora Defendants, is alleged in the Complaint. 3. The Complaint Does Not Allege Activity Within The Scope of R.C. § 2307.382(A)(2), (5), (8), and (9) Plaintiffs claims do not involve any allegation that the Ancora Defendants contracted to supply goods or services in Ohio (R.C. § 2307.382(A)(2)); that they breached any warranty in connection with a sale of goods (id. at (A)(5)); that they had any interest in or used real property in Ohio (id. at (A)(8)); or that they acted as an insurer (id. at (A)(9)). Cc. Federal Due Process Also Bars The Exercise Of Personal Jurisdiction Over The Ancora Defendants In Ohio As discussed supra, even if Plaintiff could satisfy the requirements of Ohio’s long-arm statute, it would still have to demonstrate that this Court’s exercise of personal jurisdiction over the Ancora Defendants comports with basic due process. This it cannot do because the Ancora Defendants lack the essential “minimum contacts” with Ohio. Under the second part of the two-step personal jurisdiction analysis referenced above, the court must assess whether an assertion of personal jurisdiction would comport with the Due Process Clause of the Fourteenth Amendment. U.S. Sprint Communications Co. v. Mr. K’s Foods, Inc., 68 Ohio St. 3d 181, 186 (1994). At the crux of this determination is whether the defendant has established “certain minimum contacts” with the forum state “such that the maintenance of suit does not offend traditional notions of fair play and substantial justice.” Jnternational Shoe Co. yv. Washington, 326 U.S. 310, 316 (1945) (internal quotation omitted). In this regard, courts are Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jun 15 11:01 AM-18CV002305 0E195 - L9 required to be vigilant against efforts by one civil litigant to compel another to defend an action in a forum where its contacts are “casual” and unrelated to the subject matter of the action. /d. at 318. Indeed, “it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). This requirement “ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts, or of the unilateral activity of another party or a third person.” /d. (internal citations and quotations omitted). Subject to the “constitutional touchstone” of whether a defendant has created “minimum ontacts” with the forum state through instances of purposeful availment, id. at 474, the court may also consider a series of other factors in weighing whether an exercise of personal jurisdiction complies with due process. /d. at 476-477. These include “the burden on the defendant, the forum State’s interest in adjudicating the dispute, the plaintiff's interest in obtaining convenient and effective relief, the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and the shared interest of the several States in furthering fundamental substantive social policies.” /d. (internal quotations omitted) In this case, there is nothing in the Complaint from which it could be inferred, much less established, that either of the Ancora Defendants has “purposefully avail[ed] itself of the privilege of conducting activities within [Ohio]” or has “minimum contacts” with the state sufficient to warrant the exercise of personal jurisdiction consistent with due process. /d. at 474-475. If there were any doubt on this point, the accompanying affidavit of the CEO of each of the Ancora Defendants should lay it to rest As noted there, the Ancora Defendants do not maintain any operations or have any other physical presence in Ohio. Zawisky Aff. at § 4. The Ancora 10 Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jun 15 11:01 AM-18CV002305 0E195 - L9 Defendants’ respective personnel do not regularly travel to Ohio for business purposes. /d. at 5 The Ancora Defendants undertake no direct marketing in Ohio. /d. at § 6. In short, the Ancora Defendants have in no way sought to “purposefully derive benefit” from Ohio such that it would be “unfair” to exempt them from the correlate burden of being subject to personal jurisdiction in Ohio. Burger King, 471 U.S. at 473-474. Moreover, to the extent the Ancora Defendants have any contacts with Ohio at all, they are unrelated to Plaintiff's claims. See International Shoe, 326 U.S. at 318. The fact that the Ancora Defendants acquired certain assets and liabilities of Delta, a company that allegedly owed money to Plaintiff, is not a meaningful (or even a direct) jurisdictional contact between the Ancora Defendants and Ohio. This is particularly true where, as here, the Ancora Defendants acquired assets from Delta well after the alleged breach of the Delta Contract, did not take assignment of the Delta Contract, and did not receive any services or benefits under it. Zawisky Aff. at Jf] 7, 8; compare id. at § 8 with Compl. { 35. As noted above, the Ancora Defendants neither purchased nor assumed the Delta Contract and expressly disclaimed any liability or obligation arising out of any breach or default prior to the closing date of Ancora Holdings’ transaction with Delta. Zawisky Aff at 9. Delta’s pre-existing obligations to Plaintiff, if any, remain strictly between them Exercising personal jurisdiction on so thin a reed as Plaintiff proposes would exalt a “random, fortuitous, [and] attenuated contact[]” above the constitutionally-protected due process rights of the Ancora Defendants, which had no reason whatsoever to anticipate being sued in Ohio in connection with the APA. Burger King, 471 U.S. at 474-475 (emphasizing foreseeability of suit in forum state among the indicia of purposeful availment). None of the other factors the court may consider in its due process analysis justifies a departure in this case from the ordinary standard, under which the minimum contacts and purposeful availment requirements are strictly 11 Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jun 15 11:01 AM-18CV002305 0E195 - L9 applied. See id. at 476-477. In particular, Plaintiff’ s “interest in obtaining convenient and effective relief” is more than fully countermanded by the “burden on the defendant” that would result from litigation in Ohio, given that the Ancora Defendants are based in Texas and have no presence in Ohio. Zawisky Aff. at J{ 2-6, 10 IV. CONCLUSION As detailed above, the exercise of personal jurisdiction over the Ancora Defendants is not authorized by Ohio’s long-arm statute and would violate the Due Process Clause of the Fourteenth Amendment. For each of these two independent reasons, the Ancora Defendants respectfully request that, as to them, the First Amended Complaint be dismissed in its entirety pursuant to Civ R. 12(B)(2) Respectfully submitted, ds/ C. Craig Woods C. Craig Woods (0010732) Andrew H. King (0092539) Michael T. Mullaly (0090202) SQUIRE PATTON Bocas (US) LLP 2000 Huntington Center 41 South High Street Columbus, Ohio 43215 Telephone: (614) 365-2700 Facsimile: (614) 365-2499 craig. woods@squirepb.com andrew.king@squirepb.com michael.mullaly@squirepb.com Attorneys for the Ancora Defendants 12 Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jun 15 11:01 AM-18CV002305 0E195 - L9 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing was served this 15th day of June, 2018, via the Court’s electronic filing system and/or by regular U.S. Mail, upon the following: Elizabeth L. Moyo Delta Career Education Corporation Allen T. Carter 99 Canal Center Plaza, Suite 501 Porter, Wright, Morris & Arthur LLP Alexandria, VA 22314 41 South High Street Columbus, OH 43215 emoyo@porterwright.com acarter@porterwright.com Attorneys for Plaintiff Atlantic Coast Colleges, Inc. Berks Technical Institute, Inc. c/o Corporation Service Company c/o Corporation Service Company 2626 Glenwood Ave., Suite 550 251 Little Falls Drive Raleigh, NC 27608 Wilmington, DE 19808 McCann Education Centers, Inc McCann School of Business and c/o Corporation Service Company Technology, Inc 2595 Interstate Drive, Suite 103 c/o Donald C. Douglass, Jr. Harrisburg, PA 17110 3320 West Esplanade Ave. North Metairie, LA 70002 Miller-Motte Business College, Inc. Palmetto Technical College, Inc. c/o Corporation Service Company c/o VB Business Services, LLC 2626 Glenwood Ave., Suite 550 500 World Trade Ctr. Raleigh, NC 27608 101 W. Main Street Norfolk, VA 23510 Piedmont Business Colleges, Inc. c/o Corporation Service Company 2626 Glenwood Ave., Suite 550 Raleigh, NC 27608 /s/ Michael T. Mullaly Michael T. Mullaly (0090202) 13