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Plaintiff,
v.
Defendants.
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
opposition to the Attorney Defendants’ motion to dismiss (ECF 43) in their entirety.
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
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
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
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
(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
2
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
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
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.”).
3
Of note is Exhibit C to the Plitt Affidavit submitted herewith, which is a letter from
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
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
“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,
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
4
against Frost at this stage of the proceedings. (ECF 48 38-39); see Davis v. Wells Fargo, 824
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
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
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