IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
Voice Tech Corporation,
Plaintiff,
vs.

Case No. 4:20-cv-00111-RK

Mycroft AI Inc.,

Jury Trial Demanded
Defendant.

PLAINTIFF VOICE TECH CORPORATION’S
SUGGESTIONS IN SUPPORT OF MOTION FOR RELIEF TO
REQUIRE DECOROUS AND CIVIL CONDUCT BY THE PARTIES
I.

INTRODUCTION
This is a straightforward patent infringement action, which Plaintiff Voice Tech

Corporation (“Voice Tech”) sought to resolve directly with Defendant Mycroft AI Inc.
(“Mycroft”) even before filing suit. Regrettably, however, Mycroft, through its CEO/First Officer,
Joshua Montgomery, has responded to Voice Tech’s professional and respectful handling of this
business dispute with an aggressive campaign of harassment, identity theft, cyber-attacks, and even
death threats directed personally at Voice Tech’s counsel, Tod Tumey, and Mr. Tumey’s family.1
Under these extraordinary circumstances, Voice Tech brings this Motion to ask the Court’s
intervention at the outset of this case to require Mycroft and Montgomery to remove the
threatening content it has published online and cease its assaultive campaign against Mr. Tumey
and his family; to admonish Mycroft and Montgomery that such bad faith conduct is unacceptable
and will not be tolerated; to express the Court’s expectation and requirement that the parties will
refrain from such abusive behavior going forward; and to place Mycroft and Montgomery on

1

Since the bad faith conduct identified in this Motion, Montgomery has been replaced as CEO and changed his title
to “First Officer.”

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 notice that they may be subjected to further sanctions and consequences for their misconduct
should they fail to heed the Court’s direction.
Voice Tech plans on conducting this case professionally and with civility. In short, by this
Motion, it merely seeks an order requiring Mycroft and Montgomery to do the same.
II.

MYCROFT’S THREATS AND BAD FAITH CONDUCT
Voice Tech owns two patents that it believes Mycroft infringes.2 On November 11, 2019,

counsel for Voice Tech began sending correspondence to Mycroft’s CEO/First Officer, Joshua
Montgomery, in an effort to address Mycroft’s infringement without resorting to litigation. See
Exhibit 1 attached to Declaration of Tod T. Tumey. As the correspondence record reflects, after
Mycroft and its counsel ignored Voice Tech’s overtures for over two months, Voice Tech advised
Mycroft’s counsel that it would be proceeding with its lawsuit, and then filed a patent infringement
complaint in the Eastern District of Texas,3 which it served on Mycroft on January 31, 2020. See
Exhibits 2-13. To be clear, the parties’ correspondence throughout that period was in writing, and
the record of it has been tendered to the Court as Exhibits 1-8 and 10-12 to this Motion. See Tumey
Declaration at ¶ 2. As such, the Court can readily see for itself that Voice Tech and its counsel
were professional and conciliatory in all of their communications with Mycroft and did nothing to
instigate Mycroft/Montgomery’s hostile and abusive actions.
Yet, almost immediately after serving Mycroft, Voice Tech’s law firm, Tumey L.L.P.,
began receiving harassing phone calls in which someone would call its office and breathe heavily
before hanging up. See Declaration of Marisa Robinson at ¶ 2, attached hereto. This is not a normal
occurrence for Tumey L.L.P. See id. Then, less than a week later, on February 5, 2020, Mycroft

2

U.S. Patent Nos. 9,794,348 and 10,491,679.

3

Voice Tech Corporation v. Mycroft AI, Inc., No. 6:20-cv-00015-JDK, in the United States District Court for the
Eastern District of Texas.

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 published an article on its website, written by Mycroft’s CEO/First Officer, Joshua Montgomery,
and showing him photographed in chainmail, which argued that, in dealing with plaintiffs’ counsel
like Voice Tech’s, “it’s better to be aggressive and ‘stab, shoot and hang’ them then dissolve them
in acid.” See Exhibit 14. The next day Mycroft republished this article advocating for Voice
Tech’s counsel’s grisly death and posthumous corpse desecration on its Facebook page, its Twitter
account, and Reddit. See Exhibits 15-17. Then, that evening, a little after midnight, the following
email linking to Mycroft’s online diatribe was sent to Tumey L.L.P.’s general email account
through its website:

See Exhibit 18.
The timing and nature of this email strongly suggested that Montgomery (or, at the very
least, someone acting for him/Mycroft) sent it. Indeed, it includes a link to Montgomery’s Reddit
post, and brags about posting Mr. Tumey’s correspondence on the Mycroft website—something,
presumably, only Montgomery or someone else at Mycroft could have done. See id. Moreover, the
subsequent avalanche of orchestrated assaults on Mr. Tumey and his firm further evidence a
purposeful campaign by Montgomery/Mycroft against counsel in apparent retribution for Voice
Tech’s orderly, lawful pursuit of its rights through the justice system:
First, the next morning after receiving the email shown above, Tumey L.L.P. received
another email to its general email account seemingly from the same source (i.e.,

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 Montgomery/Mycroft), which, among other hostile content, recommended—in graphic and highly
disturbing terms—death and acts of violence against counsel (as Montgomery’s online post had
also done):

See Exhibit 19. Then, that night, a little after midnight (CST), yet another threatening email was
sent to Tumey L.L.P.’s general email address stating that “you all deserve horrible things. Every
one of you.” See Exhibit 22. A few hours later, around 3 a.m., additional insulting emails of a
similar nature were sent to the Tumey L.L.P.’s general email account. See Exhibits 23-25. And,
about 30 minutes later, Mr. Tumey received an alert that someone had tried to hack into his
Facebook account, and another alert that an attempt had also been made to create a Twitter account
using his name. See Exhibits 26-27. Mere minutes later, someone used Mr. Tumey’s personal
information to sign him up for various online memberships. See Exhibits 28-30. And then, a few
minutes after that, also signed Mr. Tumey up for multiple mailing lists. See Exhibits 31-32.
About 15 minutes later, a little after 4 a.m., Mr. Tumey’s identity and personal contact
information were used to submit multiple inquiries to various sources about debt relief services
and insurance quotes, among other things. See Exhibits 34-37. One such insurance quote
specifically asked for information related to one of Mr. Tumey’s family vehicles, an Audi. See
Exhibit 35. This unsettling invasion of Mr. Tumey’s privacy was followed up with an ominous
email to Tumey L.L.P. stating “Nice Audi.” See Exhibit 38.

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 Soon after, unauthorized efforts were made to access (and presumably tamper with) Tumey
L.L.P.’s GoDaddy® account for its website, and even more requests for insurance quotes and
quotes for various services were submitted under the guise of Mr. Tumey’s identity. See Exhibits
40-45. Then, just before 6 a.m., someone began signing Mr. Tumey up for various pornography
websites. See Exhibits 46-48. About an hour after that, the culprit resumed signing Mr. Tumey up
for even more mailing lists, generating notices to Mr. Tumey that attempts had been made to sign
him up for roughly 40 different email mailing lists.4 See Exhibits 49-89.
Later that day, February 8, 2020, as a result of the online attack he had been suffering, Mr.
Tumey received follow-up emails and messages from various businesses regarding the myriad
online inquiries that had been made under his name. See Exhibits 92 and 95; see also Tumey
Declaration at ¶ 3. The next day, February 9, 2020 (Sunday), an email address usurping Mr.
Tumey’s name (TodTumey@gmx.com) was used to send a very disturbing, violence-filled,
rambling email to Mr. Tumey. See Exhibits 93-94.
The timing and pattern of these activities, as well as the nature of the emails, and
similarities and connections with Montgomery’s published posts led Voice Tech’s counsel to
conclude that Montgomery, alone or in concert with others, was most likely the individual behind
this onslaught of harassment.
Fearful of Montgomery’s vitriolic assaults and seeming lack of limits, Mr. Tumey notified
the police, increased security at his home for the protection of his family, and similarly increased
security precautions at Tumey L.L.P., including locking the firm’s doors at all times, bolstering its
online security systems, and alerting its building security and property management. See Tumey
Declaration at ¶ 4. In the wake of this abuse, and in an effort to further protect Mr. Tumey, his

4

These mailing lists were from the same source as Exhibits 31-32.

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 family, and his firm from potential risk, on February 11, 2020, Voice Tech voluntarily dismissed
the infringement lawsuit in Texas with a view towards refiling it in Missouri (i.e., in Mycroft’s
home state and away from Mr. Tumey’s residence and business) in hopes that it might temper
Mycroft’s bad faith conduct, avoid any disputes over venue, and more efficiently allow the
litigation to proceed on the merits. See Exhibit 96. Voice Tech refiled here a week later.
Montgomery, in response, purported to claim victory by virtue of the voluntary dismissal
and—consistent with the fact that he/Mycroft had been behind the flurry of assaultive behavior—
the “anonymous” emails and online harassment all abruptly stopped.5 Voice Tech and its counsel,
however, remain gravely concerned that his misconduct will resume—if not worsen—as the case
proceeds.6
Accordingly, to protect not only the safety and well-being of the persons involved, but also
the sanctity of this proceeding, Voice Tech brings its Motion seeking this Court’s intervention to
require a base level of civil conduct going forward in this action.
III.

LEGAL STANDARD
According to the Eighth Circuit, it is well-settled that a “district court is vested with

discretion to impose sanctions upon a party under its inherent disciplinary power.” Van Deelen v.
City of Kansas City, Missouri, No. 04-989-CV WGAF, 2006 WL 2077640, at *13 (W.D. Mo. July
24, 2006), aff'd as modified, 262 F. App’x 723 (8th Cir. 2007) (quoting Bass v. General Motors
Corp., 150 F.3d 842, 851 (8th Cir. 1998)); see also Sylla-Sawdon v. Uniroyal Goodrich Tire

5

Voice Tech also attaches a timeline of the conduct described herein. See Exhibit 97. When viewed in sequence
chronologically, Voice Tech respectfully submits that it is evident that one individual (Montgomery) was behind the
campaign of harassment and intimidation.
6

In response to Montgomery/Mycroft’s posts calling on others to join his crusade against Voice Tech, Voice Tech’s
counsel did receive a few other messages and emails from individuals complaining about the patent infringement case,
but these other messages identified the individual sending the message, and the nature of those messages was different.
See Exhibits 20, 33, 39, 90, and 91.

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 Co., 47 F.3d 277, 280 (8th Cir. 1995); Dillon v. Nissan Motor Co., Ltd., 986 F.2d 263, 267 (8th
Cir. 1993). “These powers are ‘governed not by rule or statute but by the control necessarily vested
in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of
cases.’” Id. (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (quoting Link v. Wabash
R.R. Co., 370 U.S. 626, 630-31 (1962)). “Because of the potency of inherent powers, ‘[a] court
must exercise its inherent powers with restraint and discretion, and a primary aspect of that
discretion is the ability to fashion an appropriate sanction.’” Id. (quoting Plaintiffs’ Baycol Steering
Committee v. Bayer Corp., 419 F.3d 794, 802 (8th Cir. 2005) (quoting Harlan v. Lewis, 982 F.2d
1255, 1262 (8th Cir. 1993)); see also Chambers, 501 U.S. at 44-45. “Over the years, the Supreme
Court has found inherent power to include the ability to dismiss actions, assess attorneys’ fees, and
to impose monetary or other sanctions appropriate ‘for conduct which abuses the judicial
process.’” Id. (quoting Harlan, 982 F.2d at 1259 (quoting Chambers, 501 U.S. at 43-45)).
“[W]hereas each of the other mechanisms [outlined in the Federal Rules of Civil Procedure]
reaches only certain individuals or conduct, the inherent power extends to a full range of litigation
abuses.” Id. (quoting Chambers, 501 U.S. at 46).
For example, in Frumkin the Eighth Circuit affirmed a district court’s issuance of a
restraining order in light of death threats by the plaintiff against witnesses in the case. Frumkin v.
Mayo Clinic, 965 F.2d 620, 627 (8th Cir. 1992). Further, the district court stated that it would
dismiss the suit if the plaintiff disobeyed the restraining order, and the Eighth Circuit stated that
even if the district court had chosen to dismiss the case, “we would have found it difficult to
reverse.” Id. In another case, Harlan, the Eighth Circuit affirmed a district court’s application of
its inherent powers to impose a $5,000 monetary sanction against an attorney who engaged in two

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 unauthorized ex parte communications with nonparty treating physicians. Harlan, 982 F.2d at
1265.
District Courts in other parts of the country have reached similar conclusions. In Petito v.
Brewster, No. 3-08-CV-0006-L, 2008 WL 631326, at *1 (N.D. Tex. Mar. 10, 2008), the plaintiff
made death threats against witnesses. The plaintiff’s death threats were made in two emails
wherein the plaintiff referred to “known families in New York and New Jersey” and “contracts”
on the witnesses. Petito, 2008 WL 631326 at *1-2. After reviewing the plaintiff’s emails, the
district court found that “[t]he court has little difficulty in concluding that a litigant who threatens
to cause physical harm to another party or attorney has ‘defiled the very temple of justice’ and
acted in bad faith.” Id. at *2. The district court also stated that even if it were inclined to accept
the plaintiff’s “bizarre explanations,” the emails still constituted “bad faith litigation conduct.” Id.
at *3. The district court then granted the motion for sanctions and sanctioned the plaintiff $500 for
sending the threatening emails to opposing counsel. Id.
In Muniz v. Harris, No. 13-4343, 2018 WL 4252521, at *1 (E.D. Pa. Sept. 4, 2018), the
plaintiff sent a letter to the district court threatening violence against the district court and the
defendant’s witnesses. The district court found that “[w]hen a party to a lawsuit…abuses the
litigation process in a manner utterly inconsistent with the orderly administration of justice or so
as to undermine the integrity of the judicial process, the court has the inherent power to dismiss
the suit.” Muniz, 2018 WL 4252521 at *3 (quoting Richardson v. Cabarrus County Bd. of Educ.,
1998 WL 371999, at *2 (4th Cir. June 9, 1998)). The district court also found that regardless of
the plaintiff’s motive, “his conduct was part of a deliberate plan to manipulate the judicial system.”
Id. The court further stated that “the sanctions should serve ‘not merely to penalize those whose
conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to

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 such conduct in the absence of such a deterrent.’” Id. (quoting National Hockey League v.
Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976)).
In this case, Mycroft’s threatening suggestions of physical harm and death towards Voice
Tech’s counsel,7 as well as its litany of other harassing and abusive behavior, are antithetical to an
orderly and fair judicial process, and undermine the sanctity of this proceeding. As the above
authorities demonstrate, it is well within this Court’s inherent authority to make it clear that such
conduct will not be tolerated. Indeed, Voice Tech notes that, even in the absence of the
extraordinary circumstances of this case, courts routinely issue orders and adopt standing
procedures directing civil and professional behavior by those appearing before them. See, e.g., this
Court’s “Courtroom Procedures and Decorum Policy.” Here, Voice Tech respectfully submits that
a pointed order to require such conduct in this case is uniquely appropriate and necessary.
Accordingly, Voice Tech requests that its Motion be granted.
IV.

CONCLUSION
The Court has a great deal of discretion in dealing with the very troubling type of behavior

that has occurred in this case. From the beginning, Voice Tech’s counsel has sought to resolve the
patent infringement issues professionally and only filed its lawsuit after months of being ignored.
See Exhibits 1-8 and 10-12. Voice Tech submits that such courtesy and professionalism should be
observed by all in this action. Unfortunately, however, Mycroft’s pattern of abusive conduct is
inconsistent with this basic tenet. Accordingly, and in light of the record in this matter, Voice Tech
has filed this Motion to ask the Court to step in to set a baseline for its expectations going forward.

7
Voice Tech anticipates that Mycroft may argue that its CEO/First Officer’s threatening comments did not directly
indicate he would follow through to do violence against Voice Tech or its counsel. Such an argument, on its face,
would in no way exonerate or excuse Mycroft/Montgomery, and would serve only to exhibit a lack of remorse.
Moreover, even in cases where the threats are vague or veiled, district courts have taken this type of behavior no less
seriously. Petito, 2008 WL 631326 at *3.

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 Voice Tech respectfully submits that it is important that this issue be addressed at the beginning
of this case to deter any recurrence of the abuse that has been inflicted upon Voice Tech and its
counsel, and to allow this case to proceed and be heard without fear of personal reprisals, so that
justice may be done.

Dated: April 2, 2020.

Respectfully submitted,
BERKOWITZ OLIVER LLP
By:
/s/ Stacey R. Gilman
Stacey R. Gilman (MO Bar #55690)
2600 Grand Boulevard, Suite 1200
Kansas City, Missouri 64108
(816) 561-7007
(816) 561-1888 fax
sgilman@berkowitzoliver.com
-andTUMEY L.L.P.
Tod T. Tumey (admitted pro hac vice)
Eric M. Adams (admitted pro hac vice)
5177 Richmond Avenue, Suite 1188
Houston, Texas 77056
(713) 622-7005
(713) 622-0220 fax
ttumey@tumeyllp.com
eadams@tumeyllp.com
ATTORNEYS FOR PLAINTIFF
VOICE TECH CORPORATION

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 CERTIFICATE OF SERVICE
I hereby certify that on this 2nd day of April 2020, the above and foregoing was filed
electronically with the Clerk of the Court to be served by operation of the Court’s ECF system
upon the following:
Christopher M. DeBacker
chris@midwestip.com
LAW OFFICE OF MARK BROWN
7225 Renner Rd, Suite 201
Shawnee, KS 66217

Hissan Anis
Hissan.anis@lathropgpm.com
A. Justin Poplin
Justin.poplin@lathropgpm.com
LATHROP GPM
10851 Mastin Blvd.
Building 82, Suite 1000
Overland Park, KS 66210

/s/ Stacey R. Gilman
Stacey R. Gilman
ATTORNEY FOR PLAINTIFF
VOICE TECH CORPORATION

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