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Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 May 18 2:34 PM-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.
MOTION OF DEFENDANT STVT-AAI EDUCATION, INC. (““ANCORA”)
TO DISMISS FOR LACK OF PERSONAL JURISDICTION
Pursuant to Civ. R. 12(B)(2), Defendant STVT-AAI Education, Inc. dha Ancora Education
(“Ancora”) respectfully moves the Court to dismiss all claims against it for lack of personal
jurisdiction. A Memorandum In Support follows, and the affidavit of Ancora’s CEO, 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 Boacs (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 Defendant STVT-AAI
Education, Inc. dba Ancora Education
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MEMORANDUM IN SUPPORT
I INTRODUCTION
This is a collection matter in which Defendant STVT-AAI Education, Inc. dba Ancora
Education (“Ancora”) simply does 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”). An Ancora affiliate
purchased certain assets from Delta in 2018, but not Delta’s alleged contract with, or liability to,
Plaintiff. Plaintiff still seeks to hold Ancora accountable on a theory of liability that is not entirely
clear from the Complaint. More importantly for purposes of this motion, Plaintiff acknowledges
that Ancora is a Texas corporation with its principal place of business in Texas. Compl. § 7
Plaintiff has not alleged, nor does Ancora have, sufficient contacts with Ohio to support the
exercise of personal jurisdiction over it in this matter. Ancora thus seeks dismissal of all claims
against it pursuant to Civ. R. 12(B)(2)
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. J] 1,3. Under the Delta Contract, Plaintiff agreed to furnish
course materials and other educational services to students of certain Delta-affiliated schools.
Compl. J§ 5, 6. Broadly speaking, Plaintiff's 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, f II(1). Certain Delta-affiliated
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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. 132. Plaintiff also alleges that, around this
same time, Delta informed Plaintiff of a “pending transaction in which Ancora had agreed to
acquire certain assets of [Delta].” Comp/. { 31. Plaintiff asserts that it received assurance 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. § 35. Plaintiff intimates, but does not
actually allege in any detail, that such assurance was made, in part, on behalf of both Delta and
Ancora. Compl. § 36. This is simply untrue. The individuals alleged to have provided the
assurance were not, and are not alleged to have been, agents of Ancora or otherwise authorized to
speak for Ancora. As is set forth in the affidavit of Michael Zawisky, Ancora’s CEO, Ancora had
no knowledge of such assurances — if they were given at all. Zawisky Aff. at {| 10-14
On or about January 18, 2018, an affiliate of Ancora, Ancora Intermediate Holdings LLC
(“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 7. Ancora
Holdings is a Texas limited liability company and, like Ancora itself, has no physical presence in
Ohio and no contacts in Ohio relative to Plaintiffs claims. /d. In this transaction, Delta agreed to
transfer specified assets, including certain Delta career education facilities outside of Ohio, to
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Ancora, but neither Ancora nor Ancora Holdings acquired Delta itself or assumed any Delta
liabilities or debts other than those expressly identified in the APA. /d. at § 8
The Delta Contract was neither purchased nor assumed by Ancora. /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 Ancora. /d.
Here, Plaintiff admits that Delta was in breach of the Delta Contract by no later than December
2017. Compl. 32. Thus, because the closing on the APA occurred on or about January 18, 2018,
neither Ancora nor its affiliates assumed any liability with respect to the Delta Contract. See
Zawisky Aff. at § 7, 8.
In any event, it is undisputed that none of the assets acquired by Ancora from Delta are
located in, or have significant ties to, Ohio. Zawisky Aff. at JJ 2-5, 9. Ancora’s dealings with
Delta took place outside of Ohio, and Ancora does not maintain any facilities or other business
presence in Ohio. /d. Ancora has had no direct dealings with Plaintiff in Ohio or anywhere else
for that matter. /d. at ¥ 16.
Ti. 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
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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 Ancora. Because none of the requirements for personal
jurisdiction under the statute are present in this case, no personal jurisdiction over Ancora 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, 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
Ancora 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 of Ancora’s CEO, Plaintiff simply cannot meet this burden here.
B. The Ohio Long-Arm Statute Does Not Support The Exercise of Personal
Jurisdiction Over Ancora In This Matter
Ohio’s long-arm statute is codified at R.C. § 2307.382. The statute provides that:
| 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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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:
qa) Transacting any business in this state;
(2) Contracting to supply services or goods in this state;
Q) 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;
(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). Ancora is not subject to personal jurisdiction under
any of the enumerated long-arm categories.
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1. Ancora Has Not Transacted Any Business In Ohio Under R.C.
§ 2307.382(A)(1)
RC. § 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
burden of establishing that Ancora has transacted any business in Ohio pertinent to Plaintiff's
claims. R.C. § 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. J 1, 5, 6. These arguments are
unavailing, however, because as noted above, Ancora 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 JJ 6, 8. There is simply no legal basis to conclude that Ancora has 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. /d. at] 9. No entity that Ancora is operating as a result of the APA has a physical presence
in Ohio. /d. Thus, while none of Plaintiff's claims arises from the APA, not even that agreement
would provide any basis for concluding that Ancora transacted business in Ohio pertinent to the
allegations of the Complaint.
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2. RC. § 2307.382(A)(3), (4), (6), and (7) Provide No Basis For Personal
Jurisdiction Because Ancora Did Not, Directly or By An Agent, Make
The Representation Alleged In Count IT
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
Plaintiff's 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 Ancora, it is so speculative and demonstrably
unfounded that it does not and cannot form the basis of personal jurisdiction over this Defendant.
Count II of the Complaint alleges fraud based on a purported “material misrepresentation”
to Plaintiff. Compl. {{ 56-63 Specifically, Plaintiff alleges that, on December 27, 2017, “Bill
Nance and Tim Ryder, on behalf of Delta and Ancora, 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. § 35. Plaintiff further alleges “/u/pon information and belief, [that] Bill Nance and Tim
Ryder made that statement on the authority of Delta and Ancora.” Compl. {| 36 (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, Ancora
Even assuming that Messrs. Nance and/or Ryder made the statement alleged in Count II,
neither was an agent of Ancora and neither had any authority to speak on Ancora’s behalf. Zawisky
Aff at Ff 10-14. Both were affiliated with Delta, not Ancora, at the time the alleged statement was
made. /d. at J§ 13, 14. Further, whatever representations regarding payment of Delta’s past due
amounts may have been made to Plaintiff, Ancora neither had knowledge of such communications
nor had given any indication to Plaintiff that it would pay or otherwise stand behind Delta’s debt.
Id. at Jf 10-15. In light of these facts, Plaintiff cannot and should not be permitted to hale Ancora
into the courts of Ohio based solely on a bare allegation, pled “on information and belief”, that
someone purporting to represent Delta and/or Ancora might have communicated a willingness to
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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 Ancora committed
any tortious act in Ohio. Likewise, subsection (4) does not apply because Ancora does not
regularly engage in or solicit business in Ohio, nor is it alleged to do so. Subsection (6) is
inapposite because Ancora 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 Ancora, 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)
Plaintiff's claims do not involve any allegation that Ancora contracted to supply goods or
services in Ohio (R.C. § 2307.382(A)(2)); that Ancora breached any warranty in connection with
a sale of goods (id. at (A)(5)); that Ancora had any interest in or used real property in Ohio (id. at
(A)(8)); or that Ancora acted as an insurer (id. at (A)(9)).
Cc Federal Due Process Also Bars The Exercise Of Personal Jurisdiction Over
Ancora 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
Ancora comports with basic due process. This it cannot do because Ancora lacks 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
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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.” International Shoe Co.
v. Washington, 326 U.S. 310, 316 (1945) (internal quotation omitted). In this regard, courts are
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
contacts” 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 Ancora 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. Jd. at 474-475. If there were any doubt on this
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point, the accompanying affidavit of Ancora’s CEO should lay it to rest. As noted there, Ancora
does not maintain any operations or have any other physical presence or in Ohio. Zawisky Aff. at
q3 Ancora personnel do not regularly travel to Ohio for business purposes. /d. at 4. Ancora
undertakes no direct marketing in Ohio. /d. at §.5. In short, Ancora has in no way sought to
“purposefully derive benefit” from Ohio such that it would be “unfair” to exempt Ancora from the
correlate burden of being subject to personal jurisdiction in Ohio. Burger King, 471 U.S. at 473-
474.
Moreover, to the extent Ancora has any contacts with Ohio at all, they are unrelated to
Plaintiff's claims. See /nternational Shoe, 326 U.S. at 318. The fact that Ancora 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 Ancora and Ohio. This is particularly
true where, as here, Ancora 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 Af. at J] 6, 7, compare id. at J 7 with Compl. | 32. As noted above, Ancora
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 its transaction with Delta
Zawisky Aff. at { 8. 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 Ancora, 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
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inits due process analysis justifies a departure in this case from the ordinary standard, under which
the minimum contacts and purposeful availment requirements are strictly 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 Ancora is based in Texas and has no presence in Ohio. Zawisky Aff. at [¥] 2-5, 9.
Iv. CONCLUSION
As detailed above, the exercise of personal jurisdiction over Ancora 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, Ancora respectfully requests that, as to it, the
Complaint be dismissed in its entirety pursuant to Civ. R. 12(B)(2)
Respectfully submitted,
isi C. Craig Woods
C. Craig Woods (0010732)
Andrew H. King (0092539)
Michael T. Mullaly (0090202)
SQUIRE PATTON Boacs (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 Defendant STVT-AAI
Education, Inc. d/b/a Ancora Education
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and accurate copy of the foregoing was served
this 18th day of May, 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)
12