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UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ETTA CALHOUN, ON BEHALF OF HERSELF AND


ALL OTHER PERSONS SIMILARLY SITUATED, Civil Case No: 18-01022 RCM

Plaintiff,

v.

INVENTION SUBMISSION CORPORATION, D/B/A


INVENTHELP, TECHNOSYSTEMS CONSOLIDATED
CORP., TECHNOSYSTEMS SERVICE CORP.,
WESTERN INVENTION SUBMISSION CORP.,
UNIVERSAL PAYMENT CORPORATION,
INTROMARK INCORPORATED, INNOVATION
CREDIT CORP., ROBERT J. SUSA, THOMAS FROST,
P.A., THOMAS FROST, LAW OFFICE OF KYLE
FLETCHER, P.C., KYLE A. FLETCHER, CROSSLEY
& STEVENSON, CROSSLEY PATENT LAW,
ICAUFHOLD & DIX, ABOVE BOARD DRAFTING,
INC., JOHN DOE COMPANIES 1-10, JOHN DOE
INDIVIDUALS 1-10,

Defendants.

MEMORANDUM OF LAW IN OPPOSITION TO


ATTORNEY DEFENDANTS’ OBJECTIONS

OXMAN LAW GROUP, PLLC


Attorneys for Plaintiffs
120 Bloomingdale Road, Suite 100
White Plains, New York 10605
(914) 422-3900
(914) 422-3636 (Fax)
Plaintiff Etta Calhoun submits the instant memorandum of law in opposition to the

objections of Attorney Defendants Thomas Frost and Thomas Frost P.A. (collectively, “Frost”)

to Magistrate Judge Mitchell’s January 3, 2019 Report and Recommendation (ECF 48) (“Report

and Recommendation”). Plaintiff respectfully requests that this Court overrule Frost’s

objections.1

Plaintiff adopts and incorporates by reference her December 6, 2018 submissions in

opposition to the Attorney Defendants’ motion to dismiss (ECF 43) in their entirety.

PRELIMINARY STATEMENT AND ARGUMENT

The Report and Recommendation properly found that this Court should exercise specific

jurisdiction over Attorney Defendant Frost. (ECF 48 at pp. 16-21). It likewise properly found

that the Amended Complaint states tort and breach of contract claims against him. (ECF 48 at

pp. 32-43). Mr. Frost’s arguments to the contrary are unavailing.

Plaintiff largely rests on the fulsome analysis conducted by Magistrate Mitchell (ECF

48), as well as her memorandum of law and documentary evidence submitted in opposition to the

Attorney Defendants’ motion to dismiss, (ECF 43). A brief rebuttal of Attorney Defendant

Frost’s objections is set forth below.

1Abbreviations used herein are those defined in Plaintiffs October 24, 2018 Memorandum in
Opposition to the InventHelp Defendants’ motion to dismiss. (ECF 36).
I. This Court Should Exercise Specific Jurisdiction Over Defendant Frost

Plaintiff has established specific personal jurisdiction over Attorney Defendant Frost. The

Report and Recommendation properly found two independent grounds for personal jurisdiction:

(a) pursuant to Pennsylvania’s long-arm statute, 42 Pa. C.S. § 5322(a)(4) (see ECF 48 pp. 17­

18); and (b) pursuant to the absent co-conspirator doctrine (see ECF 48 pp. 19-21).

The December 6, 2018 Affidavit of Julie Pechersky Plitt, Esq. (ECF 43) attaches three

Preliminary Patentability Search and Opinion Letters (“Patentability Opinions”) signed by Mr.

Frost. (ECF 43 Exs. A, D, and H). Two of those Patentability Opinions are addressed to

Pennsylvania residents, putative Plaintiffs in the instant suit. (ECF 43 Exs. D, H). All three of

those Patentability Opinions, as well as the Patentability Opinion attached to the Affidavit of

Julie Pechersky Plitt Esq. dated January 31, 2019 (“Plitt Aff.”), Ex. B, submitted herewith, were

sent by InventHelp’s Pittsburgh headquarters to the recipients

Moreover, the Amended Complaint alleges, and documentary evidence proves, that

Defendant Frost receives the information that he purportedly uses to draft these Patentability

Opinions directly from Pittsburgh-based InventPIelp, not from the thousands of InventHelp

customers themselves, (fflf 75, 79; ECF 43 Exs. B, C; Plitt Aff. 4, 8, Ex. A Ex. A).

Plaintiff Calhoun (and all InventHelp customers) sign contracts providing that it is

Pittsburgh-based InventHelp that collects information about consumers’ proposed inventions

(ECF 43 Ex. B; Plitt Aff. %4, Ex. A); it is Pittsburgh-based InventHelp that passes this

information along to Defendant Frost (ECF 43 Ex. C; Plitt Aff. flf 4, 8, Ex. A); it is Pittsburgh-

based InventHelp that pays Frost for the Patentability Opinions (ECF 43 Ex. B; Plitt Aff. ^[4, Ex.

A); and it is Pittsburgh-based InventHelp that receives Frost’s Patentability Opinions and then

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transmits them to consumers. (ECF 43 Ex. C; 74-75; Plitt Aff. |f4, 8, Ex. A). Given that the

Amended Complaint also alleges that Frost receives all or a substantial portion of his business

from Pittsburgh-based InventHelp (%|f 76, 79), including that of named Plaintiff Etta Calhoun, he

cannot seriously argue that Plaintiffs claims do not arise from his forum-related activities.

Independently, Magistrate Judge Mitchell properly found that the absent co-conspirator

doctrine applies here. (ECF 48 pp. 19-21). “Under Pennsylvania law personal jurisdiction of a

non-forum co-conspirator may be asserted ... where a plaintiff demonstrates that substantial acts

in furtherance of the conspiracy occurred in Pennsylvania and that the non-forum co-conspirator

was aware or should have been aware of those acts.” Santana Prod.., Inc. v. Bobrick Washroom

Equip., 14 F.Supp.2d 710, 718 (M.D.Pa. 1998)

Certainly, given the Amended Complaint’s detailed allegations that the Basic Information

Package (which includes Attorney Frost’s Patentability Opinions) is the crucial first step in the

InventHelp Defendants’ conspiracy to lure consumers into spending tens of thousands of dollars

to engage InventHelp 4, 74-82), as well as the allegations and evidence that Frost acts in

concert with InventHelp, Magistrate Judge Mitchell’s conclusion should stand. See ECF 43 at

pp. 4-8; Aluminum Bahrain B.X.C. v. Alcoa Inc., 866 F.Supp.2d 525, 528-29 (W.D.P.A. 2012)

(personal jurisdiction over foreign defendant proper where complaint “sufficiently alleged that

the Alcoa Defendants engaged in substantial acts in furtherance of the conspiracy in

Pennsylvania [and that] [non-resident] Dahdaleh was an active and key participant in the

enterprise and thus was, or should have been aware of those acts.”).

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Of note is Exhibit C to the Plitt Affidavit submitted herewith, which is a letter from

Intellectual Property Attorneys Kain Spielman, P.A.. In reference to Frost’s Patentability

Opinion, that letter states: "I believe that any patent attorney or patent agent who

recommended or stated that there was a reasonable chance or any possibility that you

could get a utility patent on the wheelchair-walker invention has committed legal

malpractice.” (Plitt Aff. ^ 13, Ex. C). This too constitutes proof that Frost’s nefarious activity

with Pittsburgh-based InventHelp supports personal jurisdiction over him.

II. The Amended Complaint Alleges Tort And Contract Claims Against Frost

Pennsylvania law holds that co-conspirators can be held liable for the torts of one another,

and an independent stand-alone claim for civil conspiracy need not be alleged in the complaint to

do so. See WhiteSandResearch LLC v. Sehn, 2018 WL 2728847, *3-4 (Pa. Super. 2018).

Here, as set forth at length in the Amended Complaint, InventHelp’s entire business model is

constructed to fraudulently induce consumers into purchasing exorbitantly expensive

“Submission Services.” (e.g., f 81). The mechanism for doing so - the Basic Information

Package - includes Frost’s Patentability Opinions, which inevitably inform consumers that their

ideas are suitable for utility patents. In short, the Amended Complaint repeatedly avers that

Frost acted in concert to defraud Plaintiffs, and repeatedly characterizes the scheme as an

ongoing conspiracy, with Frost playing an integral role. (|j 7, 9, 79, 118, 119, 121, 133, 218,

219);(see ECF 48 at 18-21).

The Report and Recommendation also properly allowed Plaintiff to assert claims of breach of

contract alongside claims for breach of duty of good faith and fair dealing and unjust enrichment

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against Frost at this stage of the proceedings. (ECF 48 38-39); see Davis v. Wells Fargo, 824

F.3d 333, 352 (3d Cir. 2016)(citing cases).

Finally, Frost is a patent attorney who himself asserts that he has attorney-client privilege

with InventHelp consumers. (Plitt Aff. f 10, Ex. B at 5). Thus the Report and Recommendation

properly held that the Amended Complaint states a claim for breach of fiduciary duty against

him. (ECF 48 at 42).

CONCLUSION

For the reasons set forth herein, together with those in Plaintiffs papers in opposition to

the Attorney Defendants’ motion to dismiss (ECF 43), and those set forth in Magistrate

Mitchell’s January 3, 2019 Report and Recommendation (ECF 48), Plaintiff respectfully requests

that the Court overrule Frost’s objections in toto.

Dated: White Plains, New York


January 31, 2019
Respectfully submitted,
OXMAN LAW GROUP, PLJ
Attorneys for PlaintiJ

JULI&f'ECHERS]
Bar#: JP-8607
120 Bloomingdale Road, Suite 100
White Plains, New York 10605
(914) 422-3900
(914) 422-3 63 6 (Fax)
iplitt@oxmanlaw.com