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TABLE OF CONTENTS

Page

I. Introduction......................................................................................................................... 1

II. Background ......................................................................................................................... 2

A. Relevant Jurisdictional Facts...................................................................................3

1. Mr. Forrest’s Role in the Flashpoint Companies ........................................3

2. Mr. Forrest’s Contacts With Pennsylvania .................................................4

3. Mr. Rogers’ Factual Presentation................................................................4

a. Section (I)(A) .................................................................................. 4

b. Section (I)(B)................................................................................... 5

III. Argument............................................................................................................................. 6

A. Summary of the Argument ......................................................................................6

B. This Court Lacks In Personam Jurisdiction Over Mr. Forrest Because 

Lexington Has Failed to Plead and Establish the Requisite Minimum 

Contacts Between Mr. Forrest and the Commonwealth of Pennsylvania...............7

1. Lexington Has Not Met the General Standard for Asserting Personal 

Jurisdiction..................................................................................................8

a. The Quantity, Quality, and Nature of Mr. Forrest’s Contacts 

with Pennsylvania Do Not Warrant This Court’s Exercise of 

Personal Jurisdiction ....................................................................... 9

b. The Nature and Extent of Mr. Forrest’s Alleged Role in the 

Alleged Tortious Conduct Does Not Warrant This Court’s 

Exercise of Personal Jurisdiction Over Mr. Forrest ...................... 11

c. Pennsylvania Has Little Interest in Protecting Its Citizens in 

this Action..................................................................................... 12

2. Traditional Notions of Fair Play and Substantial Justice Favor Dismissal 

For Lack of Personal Jurisdiction Over Mr. Forrest .................................13

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3. Lexington Also Has Failed to Allege Any Facts That Would Permit the 

Court to Pierce the Corporate Shield, Which Protects Directors and 

Officers Acting Within Their Corporate Capacity....................................15

C. This Court Lacks Subject Matter Jurisdiction Because Lexington’s Claims 

Do Not Present an Actual Case or Controversy for Adjudication........................17

D. The Doctrine of Forum Non Conveniens Warrants Dismissal .............................18

E. The Court Should Abstain From Adjudicating Lexington’s Suit in 

Deference to the English Proceedings...................................................................19

F. To the Extent Lexington’s RICO Claims Seek Damages in the Form of 

Legal Expenses, They Fail to State a Claim for Relief.........................................19

G. Lexington’s RICO and Common Law Fraud Claims With Respect to 

“Award” and “Regent I” Should Be Dismissed for Failure to Adhere to the 

Heightened Pleading Requirements of Fed. R. Civ. P. 9(b)..................................20

IV. Conclusion......................................................................................................................... 23

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1

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

LEXINGTON INSURANCE COMPANY, : CIVIL ACTION

:

Plaintiff, :

:

v. : NO. 02-CV-4435

:

DAVID FORREST AND :

T. BEAUCLERC ROGERS IV, :

:

Defendants. :

__________________________________________:

FORREST’S MEMORANDUM OF LAW IN SUPPORT

OF HIS MOTION TO DISMISS PLAINTIFF’S COMPLAINT OR,

ALTERNATIVELY, STAY THESE PROCEEDINGS PENDING

 CONCLUSION OF PARALLEL PROCEEDINGS IN ENGLAND1 

I. Introduction

Defendant, David Forrest, submits this Memorandum in Support of his Motion to Dismiss

the Complaint of Lexington Insurance Company ("Lexington") on the grounds that: 

1. the Court lacks personal jurisdiction over Mr. Forrest and subject matter 

jurisdiction over Lexington’s claims; 

2. even if jurisdiction were proper, the doctrine of forum non conveniens warrants 

dismissal; 

3. in the alternative, and in deference to pending parallel proceedings in England, 

the Court should either dismiss or stay these proceedings pending the outcome 

of the U.K. proceedings; and

4. Lexington's RICO claims fail to state a claim for relief. 

 

1

In this Memorandum Mr. Forrest adopts a number of the arguments of co-defendant T. Beauclerc Rogers IV 

with the permission of Mr. Rogers and his counsel, Conrad O’Brien Gellman & Rohn, P.C..

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2

II. Background2

The Flashpoint Companies, a group of now insolvent entertainment financing companies, 

acted as venture capitalists and assisted others in raising financing for the film, television, 

merchandising, and multi-media industries from approximately 1995 to early 2001. Flashpoint’s 

principal achievement was raising funds for the production of more than 40 films, as well as a 

television series, through the sale of future revenues to various Special Purpose Vehicles 

(“SPV’s”), known as Hollywood Funding Numbers 1, 2, 3, 4, 5, and 6, which were wholly owned 

subsidiaries of Credit Suisse First Boston. These SPV’s in turn raised funds through the sale of 

notes issued by and enforceable against them. Pecuniary Loss Indemnity Policie s, such as those 

issued by Lexington, covered the purchasers of the notes against any shortfall between the 

balance due on the notes and the assets of the SPV’s. (Forrest Affidavit, ¶ 2.

3

 

In late 2000, Lexington obtained an injunction against Flashpoint due to the failure of 

Flashpoint to comply with the terms of certain collateral agreements for Hollywood Funding 

Numbers Four, Five, and Six by failing to maintain approximately $9 million in cash in specific 

bank accounts, rather than as a combination of cash and other assets.4 The court in England 

directed Flashpoint to place the cash into designated accounts. Flashpoint’s inability to meet this 

requirement rendered it insolvent and resulted in the institution of Administration proceedings 

 

2 Mr. Forrest respectfully refers the Court to the detailed background provided by Mr. Rogers in his 

Memorandum of Law in support of his Motion to Dismiss. For the ready reference of the Court, Mr. Forrest attaches 

a copy of Mr. Rogers' Memorandum as Exhibit "B." Mr. Forrest will supplement or amend Mr. Rogers' factual 

assertions early in so far as they apply to his own motion.

3 Mr. Forrest's affidavit attached to this motion is not sworn to, but his U.K. counsel is taking the appropriate 

steps to forward a sworn affidavit, which will be identical to the one attached, within the next few days. Counsel will 

substitute the verified affidavit for the current copy when received. A copy of this affidavit is attached hereto as 

Exhibit "A."

4

See Lexington Ins. Co. v. Flashpoint Ltd. & Flashpoint UK Ltd., No. 2000 Folio 1410 (Q.B.), attached 

hereto as Exhibit “C.”

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(the English equivalent of U.S. Chapter 11 bankruptcy proceedings) against Flashpoint in early 

2001. (Forrest Affidavit, ¶ 3). 

Mr. Forrest ran the day-to-day operations of the Flashpoint U.K. entities, Flashpoint (UK) 

Ltd., Flashpoint Investments Ltd., and Flashpoint (Jersey) Ltd. (Forrest Affidavit, ¶ 4) Mr. 

Forrest may have been a director of CIGA (UK) Ltd, which existed for the sole purpose of 

holding the lease to Flashpoint offices in London, and Icestorm Entertainment, Inc., the Canadian 

operation based in Montreal. (Forrest Affidavit, ¶ 5) At no time, however, did Mr. Forrest serve 

as a director of any of the United States companies in which Flashpoint invested. (Forrest 

Affidavit at ¶ 5)

A. Relevant Jurisdictional Facts

1. Mr. Forrest’s Role in the Flashpoint Companies

Until June 2000, Mr. Forrest served as a director of the principal Flashpoint companies 

situated in the U.K., but not as a director of the U.S. companies in which Flashpoint invested. 

(Forrest Affidavit, ¶¶ 4, 5) In March 2001, Mr. Forrest agreed to re-join the board of directors of

one of the Flashpoint Companies, Flashpoint Structure, to assist the lone remaining director with 

certain administrative proceedings in England. No formal paperwork was filed with Companies 

House in England, reinstating Mr. Forrest to Flashpoint’s Board, however, so it is unclear 

whether, under English law, Mr. Forrest served as a director at any point after June 2000. (Forrest 

Affidavit, ¶ 6).

Co-defendant, Mr. Rogers, asserts that Mr. Forrest was the former Chief Executive Officer 

of Flashpoint (UK). (Rogers’ Mem. at 3). Flashpoint (U.K.) never appointed Mr. Forrest to this 

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position, however, nor to the position of Managing Director more commonly found in U.K. 

companies, nor did it pay Mr. Forrest in connection with such positions. (Forrest Affidavit, ¶ 7).

Mr. Forrest was also a disclosed shareholder in Flashpoint Ltd., Flashpoint (UK) Ltd., 

Flashpoint Investments, Ltd., and Icestorm Entertainment Ltd. (Forrest Affidavit, ¶ 8).

2. Mr. Forrest’s Contacts With Pennsylvania

Mr. Forrest has never traveled to Pennsylvania for any Flashpoint business. (Forrest 

Affidavit, ¶ 9). The only contact Mr. Forrest had with Pennsylvania with regard to Flashpoint 

was by telephone and facsimile between Mr. Forrest, from outside this district and most often 

from England, and Mr. Rogers, who resides in this judicial district. (Forrest Affidavit, ¶ 10).5

3. Mr. Rogers’ Factual Presentation

Mr. Forrest adopts Mr. Rogers’ factual presentation in his Memorandum of Law in 

Support of his Motion to Dismiss, with the following supplemental information and 

modifications:

a. Section (I)(A)

In this Section, Mr. Rogers details Hollywood Funding Numbers Four, Five, and Six, for 

which Flashpoint and its directors signed collateral agreements with Lexington, outlining the 

parties’ rights and duties for those film financing transactions, the method for managing the 

funding for the transactions, and the method for resolving disputes in England under English law. 

(Rogers’ Mem. at 5)

 

5 Before Mr. Forrest worked for Flashpoint, he did business with parties in Pittsburgh and visited Pittsburgh 

for his London-based underwriting and insurance broker businesses from time to time for business reasons from 1973 

to 1995. (Forrest Affidavit, ¶¶ 11(a), (b)). In approximately 1995 or 1996, Mr. Forrest visited Philadelphia to attend 

a preparatory meeting with lawyers to prepare for a proceeding in New York in which Mr. Forrest served as an expert 

witness. (Forrest Affidavit, ¶ 11(d)). Since 1995, Mr. Forrest’s only visits to Pennsylvania have been personal in 

nature to visit the godparents of his children in Pittsburgh. (Forrest Affidavit, ¶ 11(c)). 

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Although Mr. Rogers asserts that he does not have access to any of those collateral 

agreements (Rogers’ Mem. at 5 n.5), Mr. Forrest does have in his possession a copy of the 

collateral agreements with respect to the Regent Projects. 

b. Section (I)(B)

In this Section, Mr. Rogers details the suit against Lexington by the Law Debenture Trust, 

in England, to recover sums owed on the Pecuniary Loss Indemnity Policies Lexington issued 

with respect to Hollywood Funding Numbers Four, Five, and Six. See Ex. C. In that suit, 

Lexington has raised the defense of fraud in the inducement by Mr. Rogers and Mr. Forrest. Mr. 

Rogers produced the few related Flashpoint documents remaining in his possession. Mr. Rogers 

had previously forwarded the originals of all other related Flashpoint documents to the Flashpoint 

Administrator. (Rogers’ Mem. at 5-6).

All of the computers previously belonging to the Flashpoint companies and to which Mr. 

Forrest may have had access were left in the offices of Flashpoint after Mr. Forrest finally left

those offices and Flashpoint was put into Administration. (Forrest Affidavit, ¶ 12). Upon 

information and belief, those computers are now in the possession of the Administrators of those 

companies. (Forrest Affidavit, ¶ 14). Before Flashpoint had offices in London until late 1997, 

and subsequently when Mr. Forrest occasionally worked from home, he used his personal 

computer to transmit or receive documents related to Flashpoint. In the English actions, 

Lexington pressed Mr. Forrest to give it access to his personal computer and, despite its efforts to 

force him to give access to the machine as it dictated, Mr. Forrest offered a voluntary undertaking 

that the court in England accepted. Soon thereafter, however, it became clear that Lexington was 

seeking to instigate the instant proceedings against Mr. Forrest, a fact that Lexington omitted to 

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disclose to Mr. Forrest and, more surprisingly, to the court in England. Upon further application 

to the court in England, the Court released Mr. Forrest from his undertaking. (Forrest Affidavit, 

¶ 13). As far as Mr. Forrest is aware, all other documents are in the possession of the Flashpoint 

Administrator in England. (Forrest Affidavit, ¶ 14).

Mr. Forrest is informed that Lexington is not permitted to use documents obtained in 

discovery in the actions in England to support its Complaint in this action, nor will Lexington be 

permitted to divulge documents obtained in the actions in England in an attempt to prove its 

allegations in this action. (Forrest Affidavit, ¶¶ 13, 15).

III. Argument

A. Summary of the Argument

Lexington has brought a complaint against Mr. Forrest, a citizen of England who resides 

in England, notwithstanding:

• the lack of personal jurisdiction over Mr. Forrest or subject matter jurisdiction over 

Lexington's claims;

• the lack of an existing case or controversy between it and Mr. Forrest;

• its lack of standing to bring its claims;

• the inconvenience of this forum when all the physical evidence and witnesses are 

located in England;

• its blatant violation of the principles of international comity and judicial efficiency in 

light of the parallel proceedings in England involving the same parties, issues and 

evidence; and

• its complete failure to properly plead its RICO and fraud claims. 

For any or all of these reasons, the Court should dismiss with prejudice or, at the very 

least, stay these proceedings as to Mr. Forrest.

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B. This Court Lacks In Personam Jurisdiction Over Mr. Forrest Because Lexington

Has Failed to Plead and Establish the Requisite Minimum Contacts Between Mr. 

Forrest and the Commonwealth of Pennsylvania 

Mr. Forrest has borne his initial burden of raising lack of personal jurisdiction under Fed. 

R. Civ. P. 12(b)(2). This accomplished, “the burden [now] shifts to the Plaintiff to prove that 

jurisdiction exists,” D & S Screen Fund II v. Ferrari, 174 F. Supp. 2d 343, 345 (E.D. Pa. 2001), 

“with reasonable particularity” supported by “appropriate affidavits and other competent 

evidence,” Irons v. Transcor America, No. 01-4328, 2002 U.S. Dist. LEXIS 14149, at *8 (July 9, 

2002 E.D. Pa.) (citing Provident Nat’l Bank v. California Fed. Sav. & Loan Ass’n, 819 F.2d 434, 

437 (3d Cir. 1987).

This Court will apply the law of Pennsylvania, the forum state, to determine whether 

personal jurisdiction is proper in this Court. Vetrotex Certainteed Corp. v. Cons. Fiber Glass 

Prod. Co., 75 F.3d 147, 150 (3d Cir. 1996). To obtain personal jurisdiction over a foreign 

defendant, the defendant’s contacts with Pennsylvania must satisfy the requirements of 

Pennsylvania’s long-arm statute, 42 Pa. Const. Stat. Ann. § 5322, and the Constitution of the 

United States. See, e.g., World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1987); 

Perry v. Markman Capital Mgmt., Inc., No. 02-744, 2002 U.S. Dist. LEXIS 19103, at*9 (E.D. Pa. 

Oct. 4, 2002). Since the Pennsylvania long-arm statute reaches to the full extent permitted by the 

U.S. Constitution, 42 Pa. Const. Stat. Ann. § 5322(b), the “two-step inquiry ‘is collapsed into a 

single step,’ requiring the court to determine if personal jurisdiction is consistent with the dictates 

of due process,” Perry, 2002 U.S. Dist. LEXIS, at *10 (quoting IMO Indus., Inc. v. Liekert AG, 

155 F.3d 254, 259 (3d Cir. 1998).

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1. Lexington Has Not Met the General Standard for Asserting Personal 

Jurisdiction 

This Court can properly exercise personal jurisdiction over Mr. Forrest only if it is 

satisfied that Lexington has demonstrated either “specific jurisdiction, meaning that the cause of 

action upon which the suit is based arose from the defendant’s activities in the forum state, or [has 

made a] showing of general jurisdiction, meaning that the defendant had ‘continuous and 

systematic’ contacts with the forum state.” Nagele v. Holy Redeemer Visiting Nurse Agency, 

Inc., 813 F. Supp. 1143, 1145 (E.D. Pa. 1993) (citing Bane v. Netlink, Inc., 925 F.2d 637, 639 (3d 

Cir. 1991)). For the Court to assert general jurisdiction over Mr. Forrest, Lexington must show 

that his contacts with Pennsylvania are "continuous and systematic." Lautman v. Loewen Group, 

No. 99-75, 2000 U.S. Dist. 8241, at *10 (E.D. Pa. June 15, 2000). Alternatively, for the Court to 

exercise specific jurisdiction, it must find that Lexington has alleged sufficient “minimum 

contacts” between Mr. Forrest and Pennsylvania and that Mr. Forrest “’purposely directed’ his 

activities at a resident of the forum and the [alleged] injury arises from or is related to those 

activities.” Perry, 2002 LEXIS 19103, at *16 (citation omitted). See also Lautman, 2000 U.S. 

Dist. 8241, at *13. 

To determine the propriety of personal jurisdiction, Pennsylvania courts balance three 

factors: (1) the quantity and nature of the defendant’s contacts with Pennsylvania; (2) the 

defendant’s connection with the cause of action; and (3) the interest of Pennsylvania in protecting 

its citizens. See Shaffer v. Heitner, 433 U.S. 186 (1977). Even if a plaintiff demonstrates 

sufficient minimum contacts, it must also demonstrate that the court’s exercise of personal 

jurisdiction over the defendant would comport with “traditional notions of fair play and 

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substantial justice.” See, e.g., Id.; Burger King Corp. v. Rudzewicz, 471 U.S. 462, 485-86 (1985); 

Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); IMO Indus., 155 F.3d at 259 (citing 

Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414 n.9 (1984)). As set forth in 

detail below, Lexington has completely failed to allege facts sufficient to permit the Court to 

assert personal jurisdiction over Mr. Forrest.

a. The Quantity, Quality, and Nature of Mr. Forrest’s Contacts with 

Pennsylvania Do Not Warrant This Court’s Exercise of Personal 

Jurisdiction

Lexington does not allege, nor can it demonstrate, sufficient contacts between Mr. Forrest

and Pennsylvania to establish personal jurisdiction. Without reference to Mr. Forrest’s specific 

contacts with Pennsylvania or any harm caused to Pennsylvania or its residents, Lexington asserts 

that 

substantial portions of defendants’ conduct occurred in the United 

States and/or had effects in the United States, including without 

limitation in the financing of motion pictures in this country and the 

harm to plaintiff herein. A portion of the Flashpoint enterprise was 

physically and permanently present in the United States, and

misappropriated proceeds of the financing transactions were

invested in this country. 

(Compl. at ¶ 9) (emphasis added). Simply alleging Mr. Forrest’s contact with this country does 

not establish sufficient contact with Pennsylvania for purposes of establishing in personam 

jurisdiction over Mr. Forrest in this district.

Instead, Lexington’s only allegations of contact between defendant Mr. Forrest and 

Pennsylvania relate to alleged telephone calls and facsimiles between Mr. Forrest in England and 

Mr. Rogers in this district (Compl. at ¶ 39(d)), contacts which Mr. Forrest admits. 6 (Forrest 

 

6 Mr. Forrest does not admit, however, that these contacts were for the purpose of coordinating and 

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Affidavit, ¶ 10). In its only specific reference to communication between England and 

Pennsylvania, Lexington alleges that, “on information and belief, numerous faxes and telephone 

calls [were made] between defendant Mr. Forrest in the United Kingdom and defendant Mr. 

Rogers in this District for the purpose of coordinating and implementing this scheme.” (Compl. at 

¶ 39(d)). 

For purposes of evaluating contacts with the forum, communication by telephone, 

facsimile, and mail, however, does not constitute sufficient minimum contacts to exert personal 

jurisdiction over a defendant. See, e.g., Quandel Group v. Chamberlin, No. 98-5762, 1999 U.S. 

Dist. LEXIS 8822, at *9 (E.D. Pa. June 11, 1999) (telephone, telefax, and mail communication

with plaintiff in forum state did not constitute minimum contacts sufficient to exert personal 

jurisdiction over defendant where contract performance was to be in other state, the alleged 

breach occurred in that other state, and contract payments were sent to another state) (citing 

Vetrotex 75 F.3d 147, 152 (3d Cir. 1996) (communications by telephone and letters between 

resident and nonresident in developing a contract are insufficient to establish personal 

jurisdiction)); D & S Screen Fund II, 174 F. Supp. at 347-48 (telephone conversations and faxes 

are not sufficient to confer personal jurisdiction over a foreign defendant); Nagele, 813 F. Supp. 

at 1145 (that communication with plaintiff’s doctor in Pennsylvania was not enough to establish 

general personal jurisdiction over defendant who provided nursing care in New Jersey, which was 

the subject of the suit). 

Instead, a court must examine “the relationship among the defendant, the forum and the 

litigation.” Chamberlin, 1999 U.S. Dis. LEXIS 8822, at *4 (citing Shaffer, 433 U.S. at 204). 

 

implementing any scheme Lexington alleges.

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Lexington does not and cannot allege any specific conduct, other than alleged and admitted 

telephone and fax communications, to demonstrate contact between Mr. Forrest and Pennsylvania 

with respect to Flashpoint. Mr. Forrest has never traveled to Pennsylvania for any business 

connected in any way with Flashpoint. (Forrest Affidavit, ¶ 9). Indeed, the only contact between 

Mr. Forrest and Pennsylvania with regard to Flashpoint consists of the telephone conversations 

and facsimiles between Messrs. Forrest and Rogers, co-directors of Flashpoint, which are 

insufficient to establish personal jurisdiction. (Forrest Affidavit, ¶ 10). Any other contact Mr. 

Forrest had with Pennsylvania related either to other businesses for which Forrest ceased working 

approximately seven years ago, or to personal matters in Pittsburgh, outside of this judicial 

district. (Forrest Affidavit, ¶ 11). Lexington simply cannot attribute defendant Mr. Rogers’ 

residence and contact with Pennsylvania to Mr. Forrest. “That a court has personal jurisdiction 

over an alleged conspirator does not confer jurisdiction over an alleged co-conspirator which does 

not itself have sufficient minimum contacts with the forum.” Royal Gist-Brocades N.V. v. Sierra 

Products Ltd., NO. 97-1147, 1999 U.S. Dist. LEXIS 12414, at *8 (E.D. Pa. Aug. 11, 1999).

b. The Nature and Extent of Mr. Forrest’s Alleged Role in the Alleged 

Tortious Conduct Does Not Warrant This Court’s Exercise of Personal 

Jurisdiction Over Mr. Forrest

Lexington’s Complaint is replete with conclusory allegations against defendants. For 

example, Lexington alleges that Mr. Forrest conspired with others to provide sales estimates he 

knew “had no basis in fact, were not reasonable or professionally prepared, and were created for 

the sole purpose of inducing insurers to issue” policies. (Compl. at 23(c)(iv)). Lexington further 

alleges that “defendants, acting through Flashpoint UK and Flashpoint Jersey, caused . . . funds 

that had been raised for and were dedicated to” one project to be used for other productions. 

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(Compl. at ¶¶ 29(a)(i), 29(b)(i), 29(c)(i)-(ii), 29 (c)(i)). Conclusory statements alleging 

involvement of a director or officer in alleged wrongful conduct are not sufficient to pierce the 

corporate shield. Instead, a plaintiff must provide evidence and factual support for his allegations. 

See Lautman, 2000 U.S. Dist. LEXIS 8241, at *21 n.9 (declining to consider a conclusory 

allegation that the defendant high-ranking corporate official was “personally . . . involved in the 

[allegedly wrongful] decision to terminate [plaintiff’s] employment and . . . personally concluded 

that [plaintiff] was not entitled to compensation . . .” as evidence that defendant director 

participated in any wrongful conduct without any factual support).

Lexington offers no factual support whatsoever for its conclusory allegations that either 

defendant, and specifically Mr. Forrest, caused funds to be used in an improper manner or 

knowingly misrepresented sales estimates. Moreover, as discussed above, Lexington offers no 

evidence that these alleged wrongful acts had any connection to Pennsylvania. 

Lexington would ask the Court to make the leap between Mr. Forrest's activities as a 

director who ran the daily activities of the main Flashpoint entities located in the U.K., to a 

fanciful conclusion that Mr. Forrest somehow participated in alleged wrongdoing in 

Pennsylvania. The Court should decline the invitation.

c. Pennsylvania Has Little Interest in Protecting Its Citizens in this 

Action

As discussed in more detail below, nearly all of the alleged wrongful conduct purportedly 

took place in England, not in Pennsylvania. Moreover, as discussed above, Lexington alleges 

only that defendants financed motion pictures in the United States, caused harm to Lexington in 

the United States, and invested misappropriated proceeds of the financing transactions in the 

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13

United States (Compl. at ¶ 9). Lexington makes no allegation whatsoever that any of these 

alleged acts took place within Pennsylvania or that any of the alleged harm affected Lexington or 

caused any other injury in Pennsylvania. Accordingly, this Court has little to no interest in 

exercising jurisdiction over Mr. Forrest or, for that matter, over Mr. Rogers. 

Additionally, to establish personal jurisdiction over Mr. Forrest under the theory that Mr. 

Forrest caused harm or tortious injury in Pennsylvania by an act or omission outside the state, 

Lexington must demonstrate that Mr. Forrest “’expressly aimed his tortious conduct at the forum’ 

such that the forum was ‘the focal point’ of that conduct.” Royal Gist-Brocades, 1999 U.S. Dist. 

LEXIS 12414, at *23 (citing IMO Indus., 155 F.3d at 265-66). Significantly, this Court has 

recognized the “important distinction between intentional activity which foreseeably causes injury 

in the forum and intentional acts specifically targeted at the forum.” Royal Gist-Brocades, 1999 

U.S. Dist. LEXIS 12414, at *23 (citation omitted). Lexington has not made one allegation that 

Mr. Forrest "aimed his [alleged] tortious conduct at [Pennsylvania]". 

Given Mr. Forrest’s very limited relationship with Pennsylvania with respect to 

Flashpoint, via telephone and facsimile, the conclusory nature of Lexington’s allegations that Mr. 

Forrest participated in any alleged wrongful conduct, and the slight interest of Pennsylvania in 

adjudicating this case, the exercise of personal jurisdiction over Mr. Forrest would be improper.

2. Traditional Notions of Fair Play and Substantial Justice Favor Dismissal For 

Lack of Personal Jurisdiction Over Mr. Forrest

Even if the Court were to find that Lexington had satisfied the other factors in support of 

the exercise of personal jurisdiction, the exercise of personal jurisdiction over Mr. Forrest would 

not comport with traditional notions of fair play and substantial justice. The interest of Mr. 

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Forrest and the international interest in not subjecting an alien to jurisdiction in this Court in an 

action adjudicating nearly identical facts and issues as two pending actions in England weighs 

heavily in favor of dismissal. See Asahi Metal Indus. Co. v. Super. Ct. of Cal., 480 U.S. 102 

(1987) (a United States court did not have jurisdiction over an alien corporation where the foreign 

manufacturer plaintiff and the forum state had only a slight interest in exercising jurisdiction over 

a defendant who had merely put the product at issue into the stream of commerce and the 

international interest in not subjecting an alien corporation to U.S. jurisdiction was great). 

Nearly all of Mr. Forrest’s potential defense witnesses are residents of England and, more 

than likely, not easily subject to compulsory process in this district. Since the English courts have 

ordered that all discovery obtained in the English actions be used only for the purposes of those 

actions, (Forrest Affidavit, ¶ 15), if the Court were to allow this case to proceed, the parties would 

have to duplicate the time and expense of their discovery efforts. Moreover, unlike other cases 

where this Court has permitted the exercise of personal jurisdiction despite parallel litigation in a 

neighboring state, the parallel litigation is in England. Accordingly, Mr. Forrest cannot use the 

same counsel in the English actions and this action to mitigate costs. Compare Worldcom v. 

Intelnet, No. 00-2284, 2002 U.S. Dist. LEXIS 15892, at *17-18 (E.D. Pa. Aug. 22, 2002) (the 

exercise of personal jurisdiction in the Eastern District of Pennsylvania would comport with 

traditional notions of fair play and substantial justice, even though the parties were engaged in 

parallel litigation in New Jersey state court, because (1) the parties agreed to use the same 

depositions in both cases and defendants therefore would not be forced to undergo additional 

deposition expenses; and (2) defendants were represented by the same counsel in both actions). 

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As this Court has noted, “it is not prudent to proceed in a forum where there is even 

significant doubt about personal jurisdiction. Regardless of the effort or resources expended, any 

judgment rendered in the absence of personal jurisdiction would be void.” Chamberlin, 1999

U.S. Dist. LEXIS 8822, at *10-11 (citations omitted). Where, as here, significant doubt exists as 

to the propriety of exercising personal jurisdiction over a foreign businessman with only 

telephone and telefax contact with Pennsylvania, this Court should dismiss Lexington’s claims for 

lack of personal jurisdiction over Mr. Forrest. 

3. Lexington Also Has Failed to Allege Any Facts That Would Permit the Court 

to Pierce the Corporate Shield, Which Protects Directors and Officers Acting 

Within Their Corporate Capacity

Pursuant to Fed. R. Civ. P. 4 and 42 Pa. Const. Stat. Ann. § 5322(a)(7)(4), this Court may 

exercise personal jurisdiction over a person “who acts directly or by an agent, as to a cause of 

action or other matter arising from such person” who has exercised powers under the authority of 

the Commonwealth of Pennsylvania as a director or officer of a corporation. In addition to the 

general factors for determining the propriety of exercising personal jurisdiction discussed above, 

when a court attempts to exert personal jurisdiction over a director of a corporation, it must also 

consider the implications of the “corporate shield” doctrine, which “protects officers and directors 

by limiting the extent to which their corporate actions may be used to exercise jurisdiction over 

them individually.” Perry, 2002 U.S. Dist. LEXIS 19103, at *17. Under the general rule, 

“actions of corporate employees and officers that are conducted within their corporate capacity do 

not constitute contacts with the forum that support jurisdiction over them.” Id. (citing D & S 

Screen Fund II, 174 F. Supp. at 347; TJS Brokerage & Co., Inc. v. Mahoney, 940 F. Supp. 784, 

789 (E.D. Pa. 1996).

Case 2:02-cv-04435-AB Document 11-2 Filed 11/04/2002 Page 17 of 28
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Although the corporate shield doctrine does not provide absolute protection to corporate 

directors, there are only two exceptions to the doctrine: (1) where the corporate “agent commits a 

tort in the forum state in his corporate capacity”; or (2) the agent “is charged with violating a 

statutory scheme that provides for personal as well as corporate liability.” Lautman, 2000 U.S. 

Dist. LEXIS 8241, at *16-17 (citation omitted). Unquestionably, the first exception does not 

apply here because Lexington has not even alleged that Mr. Forrest committed a tort in 

Pennsylvania. 

Even if the second exception arguably were to apply, the Court must still examine three 

factors to determine whether its exercise of personal jurisdiction is proper: (1) the director’s role 

in the corporate structure; (2) the quality of the director’s contacts with Pennsylvania; and (3) the 

nature and extent of the director’s role in the alleged tortious conduct. See, e.g., Worldcom, 2002 

U.S. Dist. LEXIS 15892; Lautman, 2000 U.S. Dist. LEXIS 8241, at *19. Since the second and 

third factors of the corporate shield balancing test mirror the first two factors of the general

Shaffer v. Heitner minimum contacts balancing test discussed above, the Court must additionally 

consider Mr. Forrest’s role in the Flashpoint corporate structure in the context of the other three

general minimum contacts factors.

Mr. Forrest was a former director of Flashpoint (UK) Ltd., Flashpoint Investments, Ltd.,

and Flashpoint (Jersey) Ltd. (Forrest Affidavit, ¶ 4). Even if Mr. Forrest's position as a director 

and shareholder could be considered significant, however, Lexington has failed to plead, and 

cannot establish, sufficient contacts with the forum. Without sufficient contacts with the forum, a 

significant directorship role will not suffice to pierce the corporate shield and subject Mr. Forrest 

to this Court’s in personam jurisdiction. See, e.g., D & S Screen Fund II, 174 F. Supp. at 347-48 

Case 2:02-cv-04435-AB Document 11-2 Filed 11/04/2002 Page 18 of 28
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(even where it was “clear that [defendant President and owner had] the most significant role in [a 

company’s] corporate structure and that the plaintiff alleged that the defendant had a direct role in 

the alleged tortious conduct, the court will not exercise personal jurisdiction where the only 

contacts defendant, a California resident, had with Pennsylvania consist of several telephone 

conversations and faxes"); Royal Gist-Brocades, 1999 U.S. Dist. LEXIS 12414, at *22

(dismissing for lack of personal jurisdiction plaintiff’s claim against defendant president and 

“mastermind” of the corporate structure where plaintiffs could identify no meaningful contacts 

between defendant and Pennsylvania or that defendant caused any allegedly infringing product to 

be marketed in Pennsylvania). 

The D & S and Royal Gist-Brocades courts were faced with the same level of individual 

involvement in company affairs and the same lack of Pennsylvania contacts as here. Both Eastern 

District of Pennsylvania courts did not hesitate to dismiss the claims against the individual 

defendants. This Court should do no less.

C. This Court Lacks Subject Matter Jurisdiction Because Lexington’s Claims Do Not 

Present an Actual Case or Controversy for Adjudication 

Article III § 2 of the United States Constitution confers jurisdiction on federal district 

courts only for actual cases and controversies. Phillies Tomato & Produce Corp. v. Veneman, 

No. 01-3502, 2002 U.S. Dist. LEXIS 12263, at *15 (E.D. Pa. Mar. 28, 2002). Under this 

requirement, a plaintiff must establish that the case is both ripe for adjudication and that the 

plaintiff has standing to sue. See Id. at 16-17. Here, Lexington’s claims are contingent on the 

outcome of the proceedings in England, and are therefore not ripe. Moreover, even if Lexington’s 

claims were ripe for adjudication now, its speculative, unclear, and indefinite claims for damages 

Case 2:02-cv-04435-AB Document 11-2 Filed 11/04/2002 Page 19 of 28
18

would not confer standing in this action. By way of further argument, Mr. Forrest incorporates 

and adopts the arguments of Mr. Rogers (Rogers’ Mem. at 12-18) as to why no actual case or 

controversy is before the Court.7 

Moreover, the Court should also consider that, in addition to the Ninth Circuit (Rogers 

Mem. at 13 n. 8), this Court has also held that dismissal, not a stay, is the appropriate remedy 

when a claim is not ripe for adjudication because the court lacks subject matter jurisdiction over 

an unripe claim. Karp v. U.S. Billing, Inc., No. 99-4784, 2000 U.S. Dist. LEXIS 571, at *5 (E.D. 

Pa. Jan. 27, 2000) (citing Bernardi v. Swanson Mem. Lodge No. 48 of Fraternal Order of Police, 

920 F.2d 198, 200 (3d Cir. 1990).

Finally, in addition to the Seventh and Fifth Circuits, (Rogers’ Mem. at 13-14), the Third 

Circuit has also held that, as in this case, claims based on contingent events are not ripe for 

adjudication. See Davis v. Thornburgh, 903 F.2d 212, 222 (3d Cir. 1990), cert. denied, Davis v. 

Cohen, 498 U.S. 970 (1990).

D. The Doctrine of Forum Non Conveniens Warrants Dismissal

Mr. Forrest incorporates all arguments made in the corresponding section of Mr. Rogers’

Memorandum (Rogers’ Mem. at 18-26).8 

 

7 Mr. Rogers argues that the Court should dismiss Plaintiff’s Complaint as unripe because the alleged injuries 

are prospective in nature and contingent upon the outcome of two parallel proceedings in the English Courts. As Mr. 

Rogers argues, Lexington’s alleged damages are limited to legal fees for pursuing creditors’ remedies against 

Flashpoint in England and legal fees and payments under the Pecuniary Loss Indemnity Policies “if and to the extent” 

Lexington is forced to pay the Law Debenture Trust’s claims in the English proceedings. (Rogers’ Mem. at 14 (citing 

Compl. at ¶¶ 46, 59, 64-64, & 69)). Since these prospective damages are contingent on the outcome of the English 

proceedings, Lexington’s claims are not ripe for adjudication. Mr. Rogers further argues that Lexington has no 

standing in this matter because it has only alleged speculative, unclear, and indefinite alleged damages related to 

potential liability under the Pecuniary Loss Indemnity Policies. (Rogers’ Mem. at 12-18).

8 Mr. Rogers argues that this Court should dismiss Lexington’s Complaint pursuant to the doctrine of forum 

non conveniens. As Mr. Rogers asserts, England provides a more adequate forum, since both defendants are 

amendable to jurisdiction there and the subject matter of the parties’ dispute can be, and is already being, litigated 

Case 2:02-cv-04435-AB Document 11-2 Filed 11/04/2002 Page 20 of 28
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Mr. Forrest notes, however, that unlike Mr. Rogers, he does have in his possession a copy 

of the collateral agreements for the Regent Projects. Besides occasional transmittals sent and 

received from his personal computer, which have been disclosed to Lexington in the English 

actions, upon information and belief, all other documents are in the possession of the Flashpoint 

Administrator in England. (Forrest Affidavit, ¶¶ 12, 13, 14).

E. The Court Should Abstain From Adjudicating Lexington’s Suit in Deference to the

English Proceedings 

Mr. Forrest incorporates all arguments made in the corresponding section of Mr. Rogers’ 

Memorandum (Rogers’ Mem. at 27-34).9

F. To the Extent Lexington’s RICO Claims Seek Damages in the Form of Legal 

Expenses, They Fail to State a Claim for Relief 

 

there. Next, nearly all of the relevant witnesses are citizens of England, and nearly all of the relevant documents are 

located in England in the possession of the Flashpoint Administrator. Moreover, Lexington conducts extensive 

business in England and would not be significantly inconvenienced by litigation there. Lastly, Mr. Rogers argues that 

this Court has little interest in adjudicating this case. The events at issue in this case took place in England between 

and among English citizens. Moreover, English law may apply to Lexington’s common law claims. Given the 

United States’ slight interest in the adjudication of this matter, this Court should not burden its docket or its jurors 

with this case. (Rogers’ Mem. at 18-26). 

9 As Mr. Rogers notes, this Court has the power to dismiss or stay this action based on the pendency of the 

two parallel English proceedings. Under this doctrine of “international abstention,” the court considers “(1) the 

similarities of the parties involved in the foreign litigation; (2) the promotion of judicial efficiency; (3) the adequacy 

of the relief available in the alternative forum; (4) issues of fairness to and convenience of witnesses, parties and 

counsel; (5) potential prejudice to any of the parties; and (6) which action was filed first.” (Rogers’ Mem. at 27-28 

(citations omitted)). 

As Mr. Rogers argues, this case parallels the two pending English suits, since Lexington’s claims of fraud 

and damages are already being litigated in the Law Debenture Trust action against Lexington in England, and the 

defendants’ alleged misappropriation is being litigated in both pending English actions. Accordingly, dismissing or 

staying this action will promote judicial efficiency and economy. Not only can the English courts provide adequate 

relief for Lexington’s claims, but nearly all of the witnesses and relevant documents are located in England. 

Accordingly, litigation of this matter in this Court would result in unfair prejudice to defendants. Finally, the English 

proceedings are already well underway. To avoid piecemeal litigation, Mr. Rogers argues that this Court should 

dismiss or stay this matter. (Rogers’ Mem. at 27-34). 

Case 2:02-cv-04435-AB Document 11-2 Filed 11/04/2002 Page 21 of 28
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Mr. Forrest incorporates all arguments made in the corresponding section of Mr. Rogers’

Memorandum (Rogers’ Mem. at 36-38).

10

G. Lexington’s RICO and Common Law Fraud Claims With Respect to “Award” and 

“Regent I” Should Be Dismissed for Failure to Adhere to the Heightened Pleading

Requirements of Fed. R. Civ. P. 9(b) 11 

Plaintiff’s RICO claims (Counts I and II), which are premised on mail and wire fraud, and 

common law fraud claim (Count III), with respect to the “Award” and “Regent I” transactions, 

fail to meet the particularity pleading requirements of Fed. R. Civ. P. 9(b). Because these counts 

fail to state claims against Forrest with respect to “Award” and “Regent I,” the Court should 

dismiss them pursuant to Fed. R. Civ. P. 9(b) and 12(b)(6) with respect to those transactions.

Rule 9(b) requires that “[i]n all averments of fraud or mistake, the circumstances 

constituting fraud or mistake shall be stated with particularity.” Fed. R. Civ. P. 9(b). Thus, a 

plaintiff must plead “with particularity the circumstances of the alleged fraud in order to put the 

defendants on notice of the precise misconduct with which they are charged.” Seville Indus. 

Mach. v. Southmost Machinery, 742 F.2d 786, 791 (3d Cir. 1984), cert. denied, 469 U.S. 1211 

(1985). Mere conclusory allegations will not suffice. In re Prudential Ins. Co. of Am. Sales 

Practices Litig., 975 F. Supp. 584, 598 (D.N.J. 1996). Where a claim involves alleged multiple 

wrongdoers, as here, a claimant must make specific and separate allegations against each party. 

 

10 Mr. Rogers argues that a claim for damages in the form of legal fees is sustainable under RICO only where 

the intended consequences of defendants’ alleged racketeering acts are Lexington’s expenditure of legal fees. Since 

Lexington’s expenditure of legal fees does not stem directly from the alleged predicate acts of mail and wire fraud, 

but rather from Lexington’s decision to defend against insurance claims and pursue creditors’ remedies against 

Flashpoint in England, Lexington does not allege any facts from which a reasonable factfinder could find that 

defendants intended to cause Lexington to incur legal fees. Accordingly, as Mr. Rogers asserts, Lexington’s RICO 

claims fail to state a claim for relief under Fed. R. Civ. P. 12(b)(6) to the extent that they seek to recover damages in 

the form of legal fees. (Rogers’ Mem. at 36-38). Mr. Forrest agrees with and adapts these and Mr. Roger's other 

arguments set out in footnotes 6, 7, and 8. 

11 Mr. Forrest incorporates Mr. Rogers’ arguments with respect to the “Award” and “Regent I” film financing 

transactions only.

Case 2:02-cv-04435-AB Document 11-2 Filed 11/04/2002 Page 22 of 28
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“It is insufficient to attribute individual acts of fraud to all defendant’s [sic] generally.” DePage 

Landen Fin. Servs. v. Cardservice Int’l, Inc., No. 00-2355, 2001 U.S. Dist. LEXIS 9692, at *9 

(E.D. Pa. July 12, 2001) (dismissing claims for fraudulent inducement against multiple defendants 

for lack of specificity) (citing Vicom, Inc. v. Harbridge Merchant Servs., 20 F.3d 771-78 (7th Cir. 

1994)).

In the context of RICO claims predicated on allegedly fraudulent acts, a RICO plaintiff 

must meet the heightened pleading requirements of Rule 9(b). See Warden v. McClelland, 288 

F.3d 105, 114 (3d Cir. 2002) (stating that alleged predicate acts of fraud are subject to Rule 9(b)’s 

heightened pleading standard); In re Sumitomo Copper Litig., 995 F. Supp. 451, 455 (S.D.N.Y. 

1998). Thus, the plaintiff must allege the specific person who made the misrepresentation; the 

time, place, and content of the misrepresentation; and the method by which the misrepresentation 

was communicated to the plaintiff. Slaney v. Int’l Amateur Athletic Fed’n, 244 F.3d 580, 599 

(7th Cir. 2001); Moore v. PaineWebber, Inc., 189 F.3d 165, 172-73 (2d Cir. 1999).

Lexington focuses its allegations of fraud in the estimation of projected revenues on five 

productions under Hollywood Funding Numbers Four, Five, and Six, including “Award” and 

“Regent I.” Lexington’s Complaint, however, fails to refer to any acts or misrepresentations 

specifically made by Forrest in connection with the estimates for “Award” and “Regent I,” the 

presentation of those estimates to insurers, or the alleged misrepresentations in connection with 

misappropriation of funds earmarked for certain production slates. 

For example, the only allegations of fraudulent transmissions involving Forrest are, “on 

information and belief, numerous faxes and telephone calls between defendant Forrest in England 

and defendant Rogers in this district for the purposes of implementing the scheme” to defraud. 

Case 2:02-cv-04435-AB Document 11-2 Filed 11/04/2002 Page 23 of 28
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(Compl. at ¶ 39(d)). Lexington fails to identify the specific representations being transmitted, 

who actually made the misrepresentations, when the misrepresentations or their transmission 

occurred, or the content of the misrepresentations. These allegations are clearly insufficient to 

state a claim for relief under RICO or any definition of common law fraud. See, e.g., Russell v. 

Cooley Dickinson Hosp., Inc., 772 N.E.2d 1054, 1066 (Mass. 2002) (defining fraud as material 

misrepresentation made with knowledge of or recklessness as to falsity, with intent of inducing 

reliance, justifiable reliance, and resulting injury); Bortz v. Noon, 729 A.2d 555, 560 (Pa. 1999) 

(same); see also Three Rivers Dist. Council, [2001] UKHL 16 ¶ 53, 2001 WL 239757 (fraud 

claim must allege that defendant, intending to induce reliance, made misrepresentations to 

plaintiff which defendant knew to be untrue) (quoting Davy v. Garret, 7 Ch. D. 473, 489 (1878)).

As to “Award,” Lexington alleges that “defendants” directed Lloyd Thompson to present 

the production to insurers and reinsurers and that “defendants” knew that the sales estimates used 

in the presentation were not derived from a “reasonable analysis.” (Compl. at ¶ 23(b).) 

Lexington makes no mention of any wrongful conduct specifically engaged in by Forrest with 

regard to “Award.” Finally, with regard to “Regent I,” Lexington generally asserts that “the sales 

estimates prepared by or at the direction of defendants . . . were made up of whole cloth,” but fails 

to allege any other details concerning this production. (Compl. at ¶ 23(d)).

In summary, the Complaint is devoid of any specific allegations of wrongdoing by Forrest 

with respect to “Award” and “Regent I.” Accordingly, Lexington, in its general and cursory 

allegations of fraud by “defendants”, fails to state RICO or common law fraud claims against 

Forrest with respect to those film financing transactions.

Case 2:02-cv-04435-AB Document 11-2 Filed 11/04/2002 Page 24 of 28
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IV. Conclusion

After carefully considering the complete failure of Lexington to allege even a scintilla of 

the facts for this Court to exercise personal or subject matter jurisdiction over Mr. Forrest, or to 

fairly charge Mr. Forrest with RICO violations, one can only suspect that Lexington has engaged 

in blatant and impermissible forum shopping. The apparent objective of Lexington's filing in a 

U.S. Court is to enable it to bring a RICO claim with its attendant potential for treble damages. 

The problem, of course, is that Lexington has no damages to treble and it has no basis for this 

Court's exercise of jurisdiction over Mr. Forrest. 

Mr. Forrest respectfully requests that this Court dismiss Lexington's Complaint against 

him for lack of in personam jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2), lack of subject 

matter jurisdiction due to lack of ripeness and standing pursuant to Fed. R. Civ. P. 12(b)(1), 

pursuant to the doctrine of forum non conveniens, or pursuant to principles of internationa l 

fairness. 

Alternatively, Mr. Forrest respectfully requests that this Court stay this action pending 

resolution of the two parallel English proceedings already under way and based on essentially the 

same facts. 

Even if this Court were to permit Lexington's action to continue in this Court, Mr. Forrest

requests that this Court dismiss Lexington’s RICO claims against him for failure to state claims 

for relief pursuant to Fed. R. Civ. P. 12(b)(6) or, in the alternative, dismiss Lexington’s RICO and 

common law fraud claims against Mr. Forrest with respect to the “Award” and “Regent I” film 

financing transactions for failure to plead fraud with specificity pursuant to Fed. R. Civ. P. 9(b). 

Case 2:02-cv-04435-AB Document 11-2 Filed 11/04/2002 Page 25 of 28
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Finally, in light of Lexington's failure to allege even arguable factual claims and to support 

its jurisdictional claims, Mr. Forrest requests such other and further relief as this Court may find 

appropriate.

Respectfully submitted,

DUANE MORRIS LLP

By: 

Edward M. Dunham, Jr.

Identification No. 21550

One Liberty Place

Philadelphia, PA 19103-7396

215.979.1148

Counsel for Defendant

David Forrest

Dated: ______________________

Case 2:02-cv-04435-AB Document 11-2 Filed 11/04/2002 Page 26 of 28
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EXHIBITS

Exhibit A Affidavit of David Forrest

Exhibit B Rogers’ Memorandum of Law in Support of his Motion to Dismiss

Exhibit C Lexington Ins. Co. v. Flashpoint Ltd., No. 2000 Folio 1410 (Q.B.).

Case 2:02-cv-04435-AB Document 11-2 Filed 11/04/2002 Page 27 of 28
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CERTIFICATE OF SERVICE

I hereby certify that on this date I caused a true and correct copy of the foregoing Motion 

to Dismiss, togethe r with Memorandum of Law in Support thereof and all exhibits thereto, to be 

served by U.S. First Class Mail or international mail upon the following:

Jeffrey R. Lerman, Esquire

Montgomery, McCracken, Walker & Rhoads, LLP

123 South Broad Street

Philadelphia, Pennsylvania 19109

and

Edward P. Krugman, Esquire

Cahill, Gordon & Reindel

80 Pine Street

New York, New York 10005

Counsel for Plaintiff

James J. Rohn, Esquire

Conrad O'Brien Gellman & Rohn PC

1515 Market Street, 16th floor

Philadelphia, PA 19102

Counsel for Defendant T. Beauclerc Rogers IV

Dated: ________________ ______________________________

Edward M. Dunham, Jr.

Case 2:02-cv-04435-AB Document 11-2 Filed 11/04/2002 Page 28 of 28