ABPA Pet. for Writ of Mandamus

8/20/2019 ABPA Pet. for Writ of Mandamus

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Docket No. ________

______________________________________

In The

United States Court Of Appeals

For The Federal Circuit

IN RE AUTOMOTIVE BODY PARTS ASSOCIATION,

Petitioner.

On Petition for Writ of Mandamus to the

United States District Court for the Eastern District of Michigan

Case No. 2:15-cv-10137, Judge Laurie J. Michelson

______________________

PETITION FOR WRIT OF MANDAMUS

______________________

Robert G. Oake, Jr.

OAKE LAW OFFICE

825 Market Street, Suite 250

Allen, Texas 75013

(214) 207-9066

Attorney for Petitioner

September 24, 2015 Automotive Body Parts Association

______________________________________


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i

CERTIFICATE OF INTEREST

Counsel for Petitioner Automotive Body Parts Association certifies the following:

1. The full name of every party represented by me is:

Automotive Body Parts Association

2. The names of the real parties in interest represented by me are:

See response to number 1.

3. All parent corporations and any publicly held companies that own 10 percent

or more of the stock of the parties represented by me are:

Automotive Body Parts Association discloses that it has no parent

corporation and that no publicly held corporation owns 10% or more of its

stock.

4. The names of all law firms, and the partners or associates, that appeared for

the parties represented by me in the trial court or are expected to appear in

this Court are:

Robert G. Oake, Jr.

OAKE LAW OFFICE

825 Market Street, Suite 250

Allen, Texas 75013

(214) 207-9066

September 24, 2015 /s/ Robert G. Oake, Jr.

Robert G. Oake, Jr.

OAKE LAW OFFICE

825 Market Street, Suite 250Allen, Texas 75013

(214) 207-9066

[email protected]

Attorney for Petitioner

Automotive Body Parts Association


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TABLE OF CONTENTS

Page

CERTIFICATE OF INTEREST ................................................................... i

TABLE OF AUTHORITIES ........................................................................ iv

INTRODUCTION ........................................................................................ 1

RELIEF SOUGHT ....................................................................................... 4

ISSUE PRESENTED ................................................................................... 4

JURISDICTIONAL STATEMENT ............................................................ 4

STANDARD OF REVIEW ........................................................................ 4

FACTUAL BACKGROUND AND PROCEDURAL HISTORY ............. 5

A. Automotive Body Parts Association ...................................... 5

B. Ford Global Technologies, LLC ............................................ 5

C. Procedural Posture of the Litigation ...................................... 5

REASONS FOR ISSUING THE WRIT .................................................... 12

I. THE CASE FILE TRANSFER VIOLATED LOCAL RULE

CV-83(B) ......................................................................................... 12

A. The Local Rule and its History ............................................. 12

B. The Case Transfer Violated the Local Rule .......................... 13

II. DENIAL OF ABPA'S MOTION TO RETRANSFER

CONSTITUTED CLEAR ERROR ................................................. 17

A. Background ........................................................................... 17


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B. Denial of the Motion to Retransfer Constituted Clear Error 18

1. The law of the case doctrine is not applicable ............ 18

(a) Judge Mazzant Lost Jurisdiction of the Case ... 18

(b) Judge Mazzant's ruling that the transfer of the

case file was not premature is clearly erroneous 19

2. An Amendment cannot be made under Rule 60(a) .... 20

III. THE REQUIREMENTS OF A PETITION FOR MANDAMUS

ARE MET SO THE CASE SHOULD BE RETRANSFERRED ..... 28

A. ABPA has a Clear Legal Right to Relief ................................ 28

B. There are No Adequate Alternative Legal Channels through

which ABPA may Obtain that Relief ..................................... 28

C. The Grant of Mandamus is Appropriate under the

Circumstances ......................................................................... 28

CONCLUSION ........................................................................................... 30

CERTIFICATE OF FILING AND SERVICE ............................................ 31


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iv

TABLE OF AUTHORITIES

CASES Page

Arizona v. California,

460 U.S. 605 (1983) ...................................................... 20

Association for Molecular Pathology v. USPTO,

669 F. Supp.2d 365 (S.D.N.Y. 2009),

affirmed in part and reversed in part ,

Association for Molecular Pathology v. USPTO,

653 F.3d 1329, 1308 (Fed. Cir. 2011),

rev’d in part on other grounds, 133 S. Ct. 2107 ............. 6

ABPA v. FGTL,

Case 4:13-cv-00705 (EDTX) ............................................ 5

ABPA v. FGTL,

Case no. 2:15-cv-10137 (EDMI) .................................. 11

Beck v. Ashley Distribution Servs., Ltd .,

Case No. 11-219 (W.D. Pa., Feb. 24, 2012) ........................ 14

Blue Cross & Blue Shield Ass'n v. Am. Express Co.,

467 F.3d 634 (7th Cir. 2006) ............................................ 22

Burton v. Johnson,

975 F.2d 690 (10th Cir.1992) ............................................ 26

Cheney v. U.S. Dist. Court ,

542 U.S. 367 (2004) ...................................................... 5

Christianson v. Colt Indus. Operating Corp.,486 U.S. 800 (1988) ...................................................... 30

Chrysler Credit Corp. v. Country Chrysler, Inc.,

928 F.2d 1509 (10th Cir. 1991) ............................................ 19


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v

Dawson v. Marshall ,

561 F.3d 930 (9th Cir. 2009) ............................................ 8

Frye v. Warden,

No. Civ. S-99-0628 (Temp), (E.D. Ca. Jan. 14, 2011) ........ 8

Garamendi v. Henin,

683 F.3d 1069 (9th Cir. 2012) ............................................ 26

In re Galiardi,

745 F.2d 335 (5th Cir.1984) (per curiam) ....................... 25

In re LWD, Inc.,

335 Fed. Appx. 523 (6th Cir. 2009) ................................. 21

In re Nine Mile Limited,

673 F.2d 242 (8th Cir. 1982) ............................................ 29

In re Princo Corp.,

478 F.3d 1345 (Fed. Cir. 2007) ............................................ 4

In re Rémy Cointreau USA, Inc.,

Misc. Docket 160 (Fed. Cir. October 3, 2013) ............. 29

In re Rothman,

2014-110 (Fed. Cir. March 19, 2014) (non-precedential) .. 11

In re Vistaprint Ltd .,

628 F.3d 1342 (Fed. Cir. 2010) ............................................ 29

In re Walter ,

282 F.3d 434 (6th Cir. 2002) ............................................ 22

Keeley v. Grider , No. 14-5228 (6th Cir. November 3, 2014) ....................... 22

Lands v. St. Louis Railroad Co.,

648 F. Supp. 322 (E.D. Tex., 1986) ................................. 13


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Micron Technology v. Mosaid Technologies,

518 F.3d 897 (Fed. Cir. 2008) ............................................ 10

Midwest Motor Express, Inc. v. Central States Southeast ,

70 F.3d 1014 (8th Cir. 1995) ............................................ 17

Miller v. Toyota Motor Corporation,

554 F.3d 653 (6th Cir. 2009) ............................................ 18

Moses v. Business Card Exp., Inc.,

929 F.2d 1131 (6th Cir. 1991) ............................................ 19

Olle v. Henry & Wright Corp.,

910 F.2d 357 (6th Cir. 1990) ............................................ 21

Pogor v. Makita U.S.A., Inc.,

135 F.3d 384 (6th Cir. 1998) ............................................ 22

Ritz Hotel, Ltd. v. Shen Mfg. Co.,

384 F.Supp.2d 678 (S.D.N.Y., 2005) ................................. 15

Rivera v. PNS Stores, Inc.,

647 F.3d 188 (5th Cir. 2011) ............................................ 5, 23

Robert Lewis Rosen Assocs., Ltd. v. Webb,

473 F.3d 498 (2d Cir. 2007) ............................................ 22

Sartin v. McNair Law Firm PA,

756 F.3d 259 (4th Cir. 2014) ............................................ 27

Sildack v. Corizon Health, Inc.,

Case No. 11-12939 (E.D. Mich., March 22, 2013) ............. 21

Smith v. Heyns,Case No. 2:14-11601 (E.D. Mich., July 16, 2014) ............. 19

Starnes v. McGuire,

512 F.2d 918 (C.A.D.C., 1974) ............................................ 17


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Tanzman v. Midwest Express Airlines, Inc.,

916 F. Supp. 1013 (S.D. Cal., 1996) ................................. 18

U.S. v. Jordan,

49 F.3d 152 (5th Cir. 1995) ............................................ 8

Verint Sys. Inc. v. Envision Telephony Inc.,

Case No. C14-1507 (W.D. Wash., February 23, 2015) ...... 29

Weeks Marine, Inc. v. Stokes,

Case No. 2:11-cv-112 (S.D. Miss., Feb 1, 2012) ............. 14

Whitaker v. Associated Credit Servs., Inc.,

946 F.2d 1222 (6th Cir. 1991) ............................................ 22

STATUTES AND RULES

28 U.S.C. § 636(b)(1)(C) ................................................................. 6, 7

28 U.S.C. § 1295 ........................................................................... 4

28 U.S.C. § 1404(a) ................................................................. 25

28 U.S.C. § 1406(a) ................................................................. 25

Fed. R. Civ. P. 59(e) ................................................................. 5

Fed. R. Civ. P. 60(a) ................................................................. passim

Fed. R. Civ. P. 60(b) ................................................................. 5

EDTX Local Rule CV-83(b) ...................................................... passim

EDTX Gen. Order 02-11 ................................................................. 13

EDTX Gen. Order 10-1 ................................................................. 13

EDTX Gen. Order 13-5 ................................................................. 13


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SECONDARY

12 Moore's Federal Practice § 60.11[2][b] .................................. 27

Shaun P. Martin, Dawson v. Marshall

(9th Cir. - Feb. 9, 2009),

http://calapp.blogspot.com/2009/02/dawson-v-marshall-9th-cir-feb-9-2009.html

........................ 8


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"

INTRODUCTION

Although this case has a unique and complicated procedural history, the

issue in this petition for writ of mandamus is straightforward: whether this Court

should compel case retransfer when the original case transfer violated a local rule

that prohibits transfer prior to a specified period of time. Eastern District Texas

Local Rule CV-83(b) provides in relevant part "[a]bsent an order of the court to the

contrary, no sooner than the twenty-first day following an order of the court

transferring the case to another district court or remanding it to the appropriate

state court, the clerk shall transmit the case file to the directed court." (Exhibit 1).

The purpose of the local rule is to provide a reasonable amount of time to

file a motion for reconsideration or other appropriate motions before the transferor

court loses jurisdiction under the rule that "jurisdiction follows the file." In this

case, although the transfer order was entered on January 8, 2015 and there was no

"order of the court to the contrary," the case was transferred on January 14, 2015,

just six days after the transfer order was entered.

ABPA pointed out the premature transfer error in a motion to retransfer filed

in the transferor court based upon the legal principle that a premature transfer is

void. The transferor court denied the motion to retransfer stating "[ABPA's]

reliance on the local rule was misguided, as the undersigned’s Memorandum

Opinion and Order (Dkt. #62) concludes ( sic [includes]) just such an order,


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directing the Clerk to transfer this case immediately to the United States District

Court for the Eastern District of Michigan." (emphasis added). With respect, this

statement constitutes clear error because the word "immediately" is not in the

transfer order (Dkt. #62) and there is no contemporaneous evidence in the record

that transfer should be immediate. The premature transfer denied ABPA an

opportunity to obtain substantive rulings on motions that pointed out the multiple

clear errors in the transfer order and procedure and that were filed in the transferor

court after the case file was transferred on January 14, 2015.

ABPA then sought relief in the transferee court by filing a motion requesting

that the court decline jurisdiction of the case based on the premature and void

transfer. The transferee court denied the motion reasoning that the court was

bound by the transferor court's order denying retransfer under the "law of the case"

doctrine, or alternatively that even though the transfer order did not state

"immediately," the transferee court could amend the original transfer order to

reflect the transferor court's alleged intent (even though there was no

contemporaneous evidence of such intent in the record and ABPA had relied upon

the absence of the word "immediately" in the original order).

ABPA then filed a motion to retransfer so this Court would have an order

denying retransfer to review on petition for writ of mandamus. The transferee

court denied the motion to retransfer and stated "[t]he Court will not entertain any


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further motions on the propriety of the case being transferred to the Eastern District

of Michigan" and "[i]f ABPA continues to believe that this case should not be here,

its recourse is in the Federal Circuit Court of Appeals." ABPA then filed this

petition for writ of mandamus.

The premature transfer improperly prevented ABPA from obtaining

substantive rulings on motions filed in the transferor court after the case file was

transferred. The motions are ABPA's motion to retransfer case and/or court file

back to the Eastern District of Texas, sealed motion for reconsideration of order of

transfer, motion for reconsideration of order denying as moot plaintiff's motion to

supplement evidence, motion to vacate order of transfer, and second motions for

reconsideration of order of transfer and order denying as moot plaintiff's motion to

supplement evidence. The transferor court denied these motions on the basis that

the court no longer had jurisdiction after the case was transferred. The transferor

court also substantively denied a motion to disqualify, but a question exists

whether the court had jurisdiction to rule on the motion.

ABPA files this petition for writ of mandamus for a retransfer so the

transferor court will have jurisdiction to consider ABPA's motions, and if the

transferor court denies the motions, this Court then will have rulings upon which to

consider a writ of mandamus on the original transfer issue. The transferee court is

not entertaining any further motions on the transfer issue, and even if it was, such


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motions if filed would not be in the same procedural posture as the motions

originally filed in the transferor court due to such doctrines as the "law of the case

doctrine," which require a district court to give great deference to the rulings of

another district court, particularly on venue transfer issues.

RELIEF SOUGHT

ABPA respectfully requests a writ of mandamus directing the U.S. District

Court for the Eastern District of Michigan to vacate the August 17, 2015 order

denying ABPA’s motion to retransfer, and compelling the court to retransfer this

case to the U.S. District Court for the Eastern District of Texas.

ISSUE PRESENTED

Whether this Court should compel the transferee court to retransfer this case

to the transferor court when the case transfer occurred just six days after the order

of transfer and in clear violation of Eastern District of Texas Local Rule CV-83(b)

that prohibits transfer prior to twenty-one days following an order of transfer

unless there is an order of the court to the contrary.

JURISDICTIONAL STATEMENT

This Court has jurisdiction because the underlying action is a patent case.

See 28 U.S.C. § 1295; In re Princo Corp., 478 F.3d 1345, 1351 (Fed.Cir.2007).

STANDARD OF REVIEW

To prevail on this petition, ABPA must show that (1) it has a clear legal


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right to relief; (2) there are no adequate alternative legal channels through which

ABPA may obtain that relief; and (3) the grant of mandamus is appropriate under

the circumstances. See Cheney v. U.S. Dist. Court , 542 U.S. 367, 380-81 (2004).

A decision to enter a corrected order under Rule 60(a) is reviewed for abuse of

discretion and the determination of whether it is Rule 60(a) that authorizes the

correction - as opposed to Rule 59(e) or Rule 60(b) - is a question of law that is

reviewed de novo. Rivera v. PNS Stores, Inc., 647 F.3d 188, 193 (5th Cir. 2011).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Plaintiff Automotive Body Parts Association (ABPA)

ABPA is a non-profit corporation organized and existing under the laws of

the State of Texas with a principal office in Houston, Texas. (Dkt. #48, ¶1).1

ABPA members distribute automotive aftermarket repair parts. (Dkt. #48, ¶7).

B. Ford Global Technologies LLC (FGTL)

FGTL is a corporation organized and existing under the laws of the State of

Delaware and is a wholly owned subsidiary of Ford Motor Company. (Dkt. #48,

¶2). FGTL is the owner of the two design patents at issue in this case (D489299

(Exterior of Vehicle Hood) and D501685 (Vehicle Head Lamp)). (Dkt. #48, ¶13).

C. Procedural Posture of the Litigation

This is a design patent case. ABPA brought this case based on associational

1 Unless otherwise indicated, the docket numbers refer to Case 4:13-CV-00705(Eastern District of Texas).


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standing seeking a declaration that FGTL design patents are invalid and

unenforceable under the doctrines of functionality and patent exhaustion, and that

as a result ABPA members do not infringe the patents. (Dkt. #48) (Exhibit 2).

FGTL filed a motion to dismiss arguing that associational standing did not exist.

The motion to dismiss was denied. (Dkt. #46).2

FGTL then filed a motion to transfer venue on August 13, 2014. (Dkt. #37).

Briefing was complete on September 22, 2014. (Dkt. #47). Pursuant to court

order, ABPA filed an amended complaint on October 3, 2014. (Dkt. #48). FGTL

filed an original answer on October 20, 2014. (Dkt. #50). On November 7, 2014,

Judge Mazzant signed a Report and Recommendation ("R&R") that recommended

the motion to transfer venue of FGTL be granted. (Dkt. #51). The R&R stated:

Within fourteen (14) days after service of the magistrate judge'sreport, any party must serve and file specific written objections to thefindings and recommendations of the magistrate judge. 28 U.S.C. §636(b)(1)(C). In order to be specific, an objection must identify thespecific finding or recommendation to which objection is made, statethe basis for the objection, and specify the place in the magistrate

judge's report and recommendation where the disputed determinationis found. An objection that merely incorporates by reference or refersto the briefing before the magistrate judge is not specific.

28 U.S.C. § 636(b)(1)(C) provides in relevant part:

2 This appears to be the first patent case involving contested associational standing.One previous case, Association for Molecular Pathology v. USPTO, 669 F.Supp.2d 365 (S.D.N.Y. 2009), affirmed in part and reversed in part , Association

for Molecular Pathology v. USPTO, 653 F.3d 1329, 1308 (Fed. Cir. 2011), rev’d in part on other grounds, 133 S. Ct. 2107, involved an assertion of associationalstanding that was neither contested, analyzed, nor ruled upon.


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Within fourteen days after being served with a copy, any party mayserve and file written objections to such proposed findings andrecommendations as provided by rules of court. A judge of the courtshall make a de novo determination of those portions of the report orspecified proposed findings or recommendations to which objection ismade. A judge of the court may accept, reject, or modify, in whole orin part, the findings or recommendations made by the magistrate

judge. The judge may also receive further evidence or recommit thematter to the magistrate judge with instructions.

On November 24, 2014, ABPA timely served objections to the R&R (Dkt.

#52),3 FGTL responded (Dkt. #55), ABPA replied (Dkt. #57) and filed a Motion to

Supplement Evidence.4 (Dkt. #58). On January 2, 2015, FGTL filed a Sur-Reply

to ABPA's Reply. (Dkt. #59). On December 19, 2014, Judge Mazzant received a

$ The objections were filed under seal. ABPA objected to the findings in the R&R(1) that the "local interest" factor favors transfer, (2) that the "relative ease of

access to sources of proof" factor favors transfer, (3) that the "cost of attendancefor willing witnesses" weighs slightly in favor of transfer, and (4) that "Ford has

met its burden to demonstrate that the Eastern District of Michigan is clearly moreconvenient than the current forum for this litigation." Perhaps because this is thefirst case based on contested associational standing, the district court failed toconsider the inconvenience to ABPA's witnesses, reasoning that "[t]he ABPA doesnot share this concern [of business disruption], as it is an association composed ofmembers, including New World, and it does not make, manufacture, or sell any

products." (R&R, page 12). This was clear error because ABPA witnesses haveregular employment and personal lives aside from the involvement in the ABPA.The R&R also contains clear error because it, inter alia, fails to consider theevidence and witnesses in and near the EDTX.4 The motion to supplement evidence requested the court to consider eightdeclarations, three emails, a deposition excerpt, and additional documents pursuantto 28 U.S.C. § 636(b)(1)(C). The reasons that the evidence had not been submittedearlier were that (1) pleadings were amended after venue briefing was complete,(2) the court's clearly erroneous recommendation that failed to consider evidenceand witnesses in and near the EDTX, and (3) the court's clearly erroneousrecommendation that failed to consider the inconvenience to ABPA's witnesses.


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)

commission as a District Court Judge. On January 7, 2015, an order was entered

reassigning this case to United States District Judge Amos Mazzant. (Dkt. #60).

On January 7, 2015, Judge Mazzant granted the motion to transfer venue by

order entered January 8, 2015. (Dkt # 62). The order does not review or address

any ABPA objections and does not mention that a review was conducted. The

language of the order basically tracks the language of the R&R with no additional

analysis from that contained in the R&R. On January 7, 2015, Judge Mazzant

ruled that the motion to consider additional evidence was moot (Dkt. #63). This

case was transferred on January 14, 2015. (EDMI Dkt. #4). On January 20, 2015,

ABPA moved to disqualify Judge Mazzant from ruling on the Motion to Transfer

Venue (Dkt. #65), FGTL responded (Dkt. #74), ABPA replied (Dkt. #78), and

FGTL sur-replied (Dkt. #82).5 Also on January 20, 2015 ABPA moved to

retransfer this case back to the EDTX (Dkt. #66), FGTL responded (Dkt. #73),

ABPA replied (Dkt. #75), and FGTL sur-replied (Dkt. #79).

5 The motion to disqualify challenges whether a district judge can provide a denovo review of his own R&R issued when he was a magistrate judge. Dawson v.

Marshall , 561 F.3d 930, 934 (9th Cir. 2009) and Frye v. Warden, No. Civ. S-99-0628 (Temp), (E.D. Ca. Jan. 14, 2011) both indicate that this situation creates an

appearance of impropriety, and U.S. v. Jordan, 49 F.3d 152 (5th Cir. 1995)addresses when an appearance of impropriety should disqualify a judge. Shaun P.Martin, Professor of Law, JD, 1991, Harvard University, AB, 1988, DartmouthCollege, with an area of expertise in professional ethics and responsibility,concludes his comment on the Dawson case by stating "[t]he district judge and themagistrate being reviewed should not be the same person. Period."http://calapp.blogspot.com/2009/02/dawson-v-marshall-9th-cir-feb-9-2009.html.


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*

On January 27, 2015, the parties filed a stipulation regarding modification of

the scheduling order (Dkt. #67) and the court entered an order vacating deadlines.

(Dkt. #68). On January 28, 2015, ABPA filed a motion for reconsideration of

order of transfer (Dkt. #69), FGTL responded (Dkt. #73), ABPA replied (Dkt.

#75), and FGTL sur-replied (Dkt. #79). On January 29, 2015, ABPA filed a

motion for reconsideration of order denying as moot plaintiff's motion to

supplement evidence (Dkt. #70), FGTL responded (Dkt. #77), ABPA replied (Dkt.

#84), and FGTL sur-replied (Dkt. #87). On February 4, 2015, ABPA filed a

motion to vacate order of transfer (Dkt. #71), FGTL responded (Dkt. #80), ABPA

replied (Dkt. #86), and FGTL sur-replied (Dkt. #89). Also on February 4, 2015,

ABPA filed second motions for reconsideration of order of transfer and order

denying as moot plaintiff's motion to supplement evidence (Dkt. #72), FGTL

responded (Dkt. #81), ABPA replied (Dkt. #85), and FGTL sur-replied (Dkt. #90).6

6 The second motion for reconsideration on the order of transfer was filed becauseon January 29, 2015, FGTL sued New World International, Inc. (an ABPAmember) and others for alleged patent infringement and willful patent infringementin the EDMI. FGTL earlier had argued in the venue briefing in the instant casethat since there were no allegations of infringement and willful infringement byFGTL against New World, such allegations should not factor into the analysis on

the motion to transfer venue. (Dkt. #59). The second motion for reconsiderationargued that it would be manifestly unjust not to consider the lawsuit filed by FGTLagainst ABPA Member New World and others and not to factor it into the transferanalysis. Although an Order to Transfer had been granted, if the local rule had

been followed, the transfer order should still have been subject to rulings onmotions for reconsideration, a motion to supplement evidence, a motion to vacate,and a motion to disqualify District Judge Amos Mazzant. The court should have


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"+

On March 23, 2015 ABPA filed a notice to court that FGTL had filed a first

amended complaint (Dkt. #91).

On March 24, 2015, Judge Mazzant denied ABPA's motion to disqualify

(Dkt #92).7 On April 2, 2015, in Dkt. #93, Judge Mazzant denied (1) ABPA's

motion to retransfer case and/or court file back to the Eastern District of Texas

(Dkt. #66), (2) sealed motion for reconsideration of order of transfer (Dkt. #69), (3)

motion for reconsideration of order denying as moot plaintiff's motion to

supplement evidence (Dkt. #70), (4) motion to vacate order of transfer (Dkt. #71),

and (5) second motions for reconsideration of order of transfer and order denying

as moot plaintiff's motion to supplement evidence (Dkt. #72), reasoning that the

court did not have jurisdiction over the motions since the case had been

transferred. Judge Mazzant's order (Dkt. #93) (Exhibit 3) states that his order of

transfer (Dkt #62) (Exhibit 4) "concludes ( sic [includes]) just such an order,

directing the Clerk to transfer this case immediately to the (emphasis added). With

respect, the transfer order (Dkt. #62) does not say "immediately."

followed this Court's directive in Micron Technology v. Mosaid Technologies, 518F.3d 897 (Fed. Cir. 2008) to consider all evidence and circumstances to determine

where the proper venue of this comprehensive litigation between the parties tothese two lawsuits should be. The second motion for reconsideration was deniednot on substance, but because the case was prematurely transferred. (Dkt. #93).7 Although Judge Mazzant denied numerous motions on the basis that he no longerhad jurisdiction of the case once it was transferred, Judge Mazzant substantivelyruled on the motion to disqualify. The order does not address the Fifth Circuit caselaw on when an appearance of impropriety should lead to a disqualification.


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""

On June 24, 2015, in EDMI case no. 2:15-cv-10137, ABPA filed a motion

requesting that the court decline jurisdiction of the case and direct the clerk to

transfer the case file back to the EDTX (EDMI Dkt. #17). The court denied the

motion stating "this Court has jurisdiction over this case because (1) the case file

has been transferred to this Court and Judge Amos L. Mazzant has declined

jurisdiction; (2), in the first alternative, Judge Mazzant retained authority even after

the file was transferred here to decide the limited issue of whether the transfer was

premature, he ruled that the transfer was not premature, and the law-of-the-case

doctrine justifies deferring to that finding; and (3), in the second alternative, this

Court can sua sponte amend Judge Mazzant’s January 2015 transfer order to reflect

his intent at the time of the order under Rule 60(a) and his intent was for an

immediate transfer as manifested in his April 2015 order." (EDMI Dkt. # 21, pp. 1,

2). (Exhibit 5). The court further stated "ABPA is granted leave to file, within 14

days, a motion to retransfer or writ of mandamus." Id.

Since a motion to transfer had not yet been filed,8 ABPA filed a motion to

retransfer on July 18, 2015, (EDMI Dkt. #23), FGTL responded (EDMI Dkt. # 24),

and ABPA replied (EDMI Dkt. #25). The motion was denied (EDMI Dkt. #26).

(Exhibit 6). This petition for writ of mandamus followed.

) See In re Rothman, 2014-110 (Fed. Cir., March 19, 2014) (non-precedential) (thisCourt denied petition for writ of mandamus without prejudice when district courthad not yet ruled on a transferred motion to quash).


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REASONS FOR ISSUING THE WRIT

This Court should compel retransfer because the original case transfer

violated Eastern District Texas Local Rule CV-83(b), which provides that a case

should not be transferred prior to twenty-one days following the order of transfer

unless there is an order of the court to the contrary. In this case, the case was

transferred just six days after transfer order was entered and there was no "order of

the court to the contrary" in the transfer order. The premature transfer prevented

ABPA from obtaining substantive rulings on motions filed in the transferor court.

Unless this Court grants this petition for writ of mandamus, the premature transfer

will prevent the proper review and prevent application of the proper standard of

review of motions related to the transfer of venue issue.

I. The Case File Transfer Violated Local Rule CV-83(b)

A. The Local Rule and its History

On December 20, 2002, the Eastern District of Texas (EDTX) adopted Local

Rule CV-83(b) with the following comment:

(b) Transferred or Remanded Cases. No sooner than the twentieth dayfollowing an order of the court transferring a case to another districtcourt or remanding it to the appropriate state court, the clerk shall

mail to the directed court: (1) a certified copy of the court's orderdirecting such action; and (2) the original of all pleadings and other

papers on file in the case. If a timely motion for reconsideration of theorder of transfer or remand has been filed, the clerk shall delaymailing the file until the court has ruled on the motion forreconsideration.


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Comment: New section (b) adopts as a local rule the procedurecurrently used by the clerk's office, which ensures that the courtretains jurisdiction to rule on any motions to reconsider orderstransferring or remanding cases. The proposed rule is consistent withthe practice endorsed by Professors Wright & Miller and local rules

by other courts, and endorses twenty days as a middle ground - otherdistricts' policies vary from five to 30 days. [citations omitted].

See Gen. Order No. 02-11. On February 18, 2010, the language "[a]bsent an order

of the court to the contrary" was added to the rule with comment "[t]he new

language allows flexibility in the application of this rule." See Gen. Order 10-1.

On March 18, 2013, the word "twentieth" was changed to "twenty-first" with

comment "[t]his change harmonizes the rule with the national objective to,

wherever possible, state time increments shorter than 30 days in multiples of

seven." See Gen. Order 13-5. This history indicates the primary purpose of the

local rule is to ensure "that the court retains jurisdiction to rule on any motions to

reconsider orders transferring ... cases."9

B. The Case Transfer Violated the Local Rule

On January 7, 2015, United States District Judge Amos Mazzant filed a

Memorandum Opinion and Order (Dkt # 62) that purported to transfer this case to

the Eastern District of Michigan. The putative10 order of transfer was entered on

9 The rule is designed to prevent the jurisdictional problem presented in cases such

as Lands v. St. Louis Railroad Co., 648 F. Supp. 322, 325 (E.D. Tex., 1986).10

The transfer order is described as "putative" because ABPA is challengingDistrict Judge Mazzant's right to review his own Report and Recommendationissued while he was a Magistrate Judge.


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January 8, 2015. The order of transfer states in relevant part "[t]he Clerk is

directed to transfer this case to the United States District Court for the Eastern

District of Michigan." Id. at p. 14. This language constituted a putative "order of

the court transferring the case to another district court" as stated in Local Rule CV-

83(b). The order contains no language such as "immediately," "forthwith," or any

other temporal indication that the case should be transferred in any manner

contrary to the requirement in the local rule that the case should not be transferred

sooner than the twenty-first day following the putative order of transfer.

A district court can order that a case be transferred immediately by using the

term "immediately" or by using some other similar term such as "forthwith." See,

e.g., Weeks Marine, Inc. v. Stokes, Case No. 2:11-cv-112, *8 (S.D. Miss., Feb 1,

2012) ("This case shall immediately be transferred to the United States District

Court for the Eastern District of Louisiana."); Beck v. Ashley Distribution Servs.,

Ltd ., Case No. 11-219 (W.D. Pa., Feb. 24, 2012) ("this case is TRANSFERRED

FORTHWITH to the United States District Court for the District of Utah."). Use

of such temporal terms provides proper notice to counsel that the case will be

transferred immediately and counsel can seek an immediate stay if needed.

Use of such terms is particularly important, indeed critically important ,

when the local rules mandate a time delay in transfer after the order of transfer is

entered. If a court does not use a clear temporal term that overrides the mandated


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time delay, counsel must be able to rely on the mandated time delay to timely

move for reconsideration or appropriate appellate relief. It is necessary for a court

to provide clear notice that it is ordering transfer contrary to a provision in a local

rule. See, e.g., Ritz Hotel, Ltd. v. Shen Mfg. Co., 384 F.Supp.2d 678, 685

(S.D.N.Y., 2005) (district court order concluded with the statement "[t]he Clerk of

the Court is directed immediately to transfer all papers in this case to the United

States District Court for the Eastern District of Pennsylvania without waiting for

the expiration of the five day period prescribed by Local Civil Rule 83.1".).

In the instant case, since Judge Mazzant did not include an "order of the

court to the contrary," this case should have been transferred no earlier than

January 29, 2015. This case was transferred on January 14, 2015. (Exhibit 7). On

January 20, 2015, ABPA filed a motion to re-transfer case and/or court file (Dkt.

#66), which was denied on April 2, 2015 by Judge Mazzant on the basis that he

had lost jurisdiction of the case. On January 28, 2015, ABPA filed a motion for

reconsideration of Order of Transfer (Dkt. #69), which was denied on April 2,

2015 by Judge Mazzant on the basis that he had lost jurisdiction.

ABPA's counsel contacted the clerk's office in the EDTX and asked why the

case and/or court file had been transferred and ABPA's counsel also indicated that

ABPA planned to file a motion for reconsideration. The clerk's office indicated that


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the case and/or court file had been transferred prematurely and that the

undersigned counsel should file the motions and they would be ruled upon.

These communications are confirmed by a voice mail left for the

undersigned counsel by the District Clerk in Plano. After counsel for FGTL

informed the undersigned counsel that the case had been docketed in Michigan, the

undersigned counsel called the District Clerk's Office to determine why the case

had been transferred. The District Clerk's office indicated they would investigate

and call back. The undersigned counsel was unable to take the return call at the

time and so Christine with the District Clerk's Office called back and left a voice

mail. The voice mail states as follows:

Hi Mr. Oake this is Christine with District Court in Plano. I'm callingabout the Automotive Body Parts versus Ford Global Technologiescase 4:13cv705 - the one that prematurely was transferred toMichigan. Um I talked to my manager and she said that that's OKeven though the case is open up there the Judge will still handle anymotions or filings here in this case. So, she said go ahead and file thatmotion to reconsider in the case, um and it will be ruled upon. If youhave any questions, I'm at (214) 872-4800. OK, thank you. Bye Bye.(emphasis added).

Declaration of Robert G. Oake, Jr. (Ex. 3 to EDMI Dkt. #17) (Exhibit 8).

In a subsequent opinion, Judge Mazzant states "[t]his Court's order states in

relevant part "the undersigned’s Memorandum Opinion and Order (Dkt. #62)

concludes ( sic [includes] just such an order, directing the Clerk to transfer this case

immediately to the United States District Court for the Eastern District of


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Michigan." (Dkt #93, p. 5). With respect, this statement is clearly incorrect. The

order does not state "immediately" or include any other language indicating that

the case should be transferred immediately. Rather, the order only includes

language directing the clerk to transfer the case. Since the order did not contain

the word "immediately" or any other words indicating that the transfer was to

occur prior to the time expressed by Local Rule CV-83(b), ABPA and its counsel

were entitled to rely that the case would not be transferred prior to twenty-one days

following the order or transfer. Since no period of time was specified for transfer,

the local rule controlled and the case was transferred in violation of the local rule.

II. Denial of ABPA's Motion to Retransfer Constituted Clear Error

A. Background

Under the authority of Midwest Motor Express, Inc. v. Central States

Southeast , 70 F.3d 1014, 1016, 1017 (8th Cir. 1995), ABPA provided the EDMI

court an opportunity to acknowledge the premature transfer error and decline

jurisdiction of the case. The court denied the motion under the reasoning that the

court was bound by the transferor court's order denying retransfer under the "law

of the case" doctrine, or alternatively that even though the transfer order did not

state "immediately," the transferee court could amend the original transfer order to

reflect the transferor court's alleged intent. ABPA then filed a motion to retransfer

so this Court would have an order denying retransfer to review. See Starnes v.


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McGuire, 512 F.2d 918, 924 (C.A.D.C., 1974) ("the appropriate course of action

when physical transfer has already taken place at the time the petition for

mandamus is filed is a new proceeding seeking retransfer in the transferee court,

which may be reviewed by the transferee circuit."); See also cf. Tanzman v.

Midwest Express Airlines, Inc., 916 F. Supp. 1013, 1017 (S.D. Cal., 1996)

(premature transfer is void). The court denied the motion based on the above

reasoning and also based on additional explanation set forth in the order. With

respect, Judge Michelson's denial of the motion to retransfer constituted clear error.

B. Denial of the Motion to Retransfer Constituted Clear Error

1. The law of the case doctrine is not applicable

The first alternative reason provided by Judge Michelson for denying the

motion to retransfer is the "law of the case" doctrine. With respect, this constitutes

clear error because the law of the case doctrine is not applicable for two reasons.

First, when the case file was transferred, Judge Mazzant lost jurisdiction of the

case. Second, even under the law of the case doctrine, the transferee court has the

power to review decisions that are clearly erroneous. As explained above, Judge

Mazzant's ruling that the case transfer was not premature is clearly erroneous.

(a) Judge Mazzant Lost Jurisdiction of the Case

When the case file was transferred, Judge Mazzant lost jurisdiction of the

case. The general rule is that "[j]urisdiction follows the file." Miller v. Toyota


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Motor Corporation, 554 F.3d 653, 654 (6th Cir. 2009); Smith v. Heyns, Case No.

2:14-11601, p.2 (E.D. Mich., July 16, 2014) (Hon. Laurie J. Michelson) (quoting

and citing Miller, supra, and Chrysler Credit Corp. v. Country Chrysler, Inc., 928

F.2d 1509, 1516-17 (10th Cir. 1991) ("Once the files in a case are transferred

physically to the court in the transferee district, the transferor court loses all

jurisdiction over the case, including the power to review the transfer"). Since

Judge Mazzant lost all jurisdiction of the case once the case file was transferred,

his order (Dkt. #93) stating that his transfer order (Dkt. #62) directed "the Clerk to

transfer this case immediately to the United States District Court for the Eastern

District of Michigan" is not only clearly erroneous, it also is of no legal effect.

(b) Judge Mazzant's ruling that the transfer of the case file was not premature is clearly erroneous.

Judge Mazzant states "[t]his Court's order states in relevant part "the

undersigned’s Memorandum Opinion and Order (Dkt. #62) concludes just such an

order, directing the Clerk to transfer this case immediately to the United States

District Court for the Eastern District of Michigan." (Dkt #93, p. 5). With respect,

this statement is clearly incorrect. The order does not state "immediately" or

include any other language indicating that the case should be transferred

immediately. Rather, the order simply includes language directing the Clerk to

transfer the case. Since Judge Mazzant's order is clearly incorrect, it should not be

considered controlling or law of the case. See Moses v. Business Card Exp., Inc.,


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929 F.2d 1131, 1137 (6th Cir., 1991) (citing Arizona v. California, 460 U.S. 605,

618, n.8 (1983) (a coordinate court has the power to revisit decisions of a

coordinate court when the initial decision was "clearly erroneous and would work a

manifest injustice."). Further, since the local rule was designed to prevent just the

situation that has occurred in this case and ABPA relied upon the proper execution

of the local rule when filing its motions, it would be manifestly unjust to not

transfer this case back to the EDTX.11

2. An Amendment cannot be made under Rule 60(a)

11 In his Memorandum Opinion and Order (Doc. 93, p. 5) Judge Mazzant

states:

Alternatively, FGTL “offered to stipulate to a stay of the proceedingsin response to the ABPA’s expressed intention to challenge the

Transfer Order.” (Dkt. #89 at 3 [ sic, 2]). Had ABPA opted to timelyfile a motion to stay the transfer or a motion for reconsideration, thetransfer of the jurisdiction to the Eastern District of Michigan wouldhave at minimum been delayed long enough to consider such amotion. Instead, ABPA allowed the transfer of jurisdiction to occur

before filing any motion with this Court.

The sentence quoted by this Court regarding FGTL's offer of a stay of the proceedings is not supported by evidence and was placed in a FGTL Sur-Reply(Dkt. #89). The statement does not accurately reflect the parties' communications

regarding a stay. Although ABPA's counsel immediately brought up the issue of astay when the transfer order was received, a review of the local rules indicated thata stay was not necessary. In any event, FGTL later indicated they had not agreedto such a stay. The stay requested by FGTL was to stay the case so discoverydeadlines and their deadline to disclose expert witnesses would not expire. It wasnot directly related to the order of transfer. The full context of the emails betweencounsel regarding a stay can be seen in EDMI Dkt. #17, pp. 14-21. (Exhibit 9).


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The second reason Judge Michelson denied the motion to retransfer is that

she believed she could amend the original transfer order to reflect the transferor

court's alleged intent. The court stated in the second alternative, "this Court can

sua sponte amend Judge Mazzant’s January 2015 transfer order to reflect his intent

at the time of the order under Rule 60(a) and his intent was for an immediate

transfer as manifested in his April 2015 order." (Dkt. #26, p. 3).

Such an amendment cannot be made under Rule 60(a) because there is no

contemporaneous record evidence that supports the amendment and it affects the

substantive rights of ABPA. Rule 60(a) may be used to correct clerical mistakes

made by judges as well as ministerial employees, but may not be used to "revisit ...

legal analysis or otherwise correct an error of substantive judgment." In re Walter ,

282 F.3d 434, 440 (6th Cir. 2002). A proper Rule 60(a) order involves the purely

ministerial act of correcting a clerical mistake and does not alter the substantive

rights of the parties or resolve any disputes in the case. See In re LWD, Inc., 335

Fed. Appx. 523, 527 (6th Cir. 2009); Sildack v. Corizon Health, Inc., Case No. 11-

12939, *1 (E.D. Mich., March 22, 2013) (time frame could not be added to order

because it affected substantive rights of the parties).

The Rule cannot be used to alter the "substantive rights of the parties" in a

manner different from what was intended when the judgment was entered. See Olle

v. Henry & Wright Corp., 910 F.2d 357, 363-64 (6th Cir. 1990). The typical use of


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Rule 60(a) is to correct typographical errors in judgments, Whitaker v. Associated

Credit Servs., Inc., 946 F.2d 1222, 1223-24 (6th Cir. 1991), complete an errantly

omitted "ministerial task," Pogor v. Makita U.S.A., Inc., 135 F.3d 384, 388 (6th

Cir. 1998), or correct an order that does not accurately reflect the issuing court's

intent, In re Walter , 282 F.3d at 441. "Simply put, Rule 60(a) is not a means to

'rewrite' the past; it merely 'allows a court to correct records to show what was

done, rather than change them to reflect what should have been done.'" Keeley v.

Grider , No. 14-5228 (6th Cir., November 3, 2014) (citing and quoting Blue Cross

& Blue Shield Ass'n v. Am. Express Co., 467 F.3d 634, 637 (7th Cir. 2006).

Here, an amendment that adds "immediately" to the transfer order clearly

would affect the substantive rights of the ABPA as the ABPA relied upon the local

rule when timing the filing of its motions for disqualification, reconsideration, and

to vacate in the EDTX. If such an amendment were made, then it would prevent or

adversely affect ABPA's ability to have its transfer related motions substantively

and properly decided as explained in this petition.

Although an order can be corrected under Rule 60(a) to reflect the intent of

the court, an amended order should not "reflect a new and subsequent intent of the

court," but should conform the order with the "contemporaneous intent of the

court." Robert Lewis Rosen Assocs., Ltd. v. Webb, 473 F.3d 498, 505 n.11 (2d Cir.


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2007). In this case, nothing evidences that Judge Mazzant contemporaneously

intended the transfer to be done immediately.

Judge Michelson states in her order that she has the authority to amend the

transfer order under Rule 60(a) to include the term "immediately" and cites Rivera

v. PNS Stores, Inc., 647 F.3d 188 (5th Cir. 2011) as authority. With respect,

Rivera does not support Judge Michelson's statement. As an initial matter, ABPA

respectfully suggests that Judge Michelson has not properly characterized ABPA's

complete argument concerning whether the transfer order can be amended under

Rule 60(a). Judge Michelson states "ABPA argues that this Court cannot amend

Judge Mazzant’s transfer order under Rule 60(a) to reflect his intent at the time he

ordered transfer because the amendment would affect the “substantive rights of the

ABPA.” However, ABPA's argument is that the transfer order cannot be amended

under Rule 60(a) because the amendment would adversely affect the substantive

rights of ABPA and there is no contemporaneous evidence in the record reflecting

that Judge Mazzant intended the transfer to be done immediately.

In Rivera, the district court corrected a judgment under Rule 60(a) to reflect

that a dismissal was "with prejudice" instead of "without prejudice." Id. at 191.

The Fifth Circuit held the amendment was proper because the claims were

adjudicated on the merits via a motion for summary judgment, which necessarily

results in a dismissal with prejudice. Id. The court concluded "[t]he district court


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corrected a mistake in its judgment that was clerical in nature, not substantive,"

"[t]he correction was consistent with the court's intent at the time it entered the

original judgment," [a]nd the correction did not expand or modify the court's prior

adjudication in a manner that affected the parties' substantive rights." Id. at 201.

The Riveria court also explained in the context of two cases the distinction

between when a Rule 60(a) amendment is proper and when it is not. Id. at 199,

200. In the first, a jury awarded damages and the parties stipulated the court would

decide back pay. The court made findings and conclusions and entered a judgment

reflecting only damages awarded by the jury. The district court later amended both

the judgment and the findings and conclusions to include back pay and

prejudgment interest. The judgment was reversed because the original findings

and conclusions did not include a finding that the plaintiff was entitled to back pay

or prejudgment interest and the failure to include those awards in the original

judgment was an error in substantive judgment outside the reach of Rule 60(a).

In the second case, the court's findings and conclusions stated the plaintiff

was entitled to $2,000 in liquidated damages, but the judgment did not include

liquidated damages. Since the judgment stated it was entered “in accordance with”

the findings and conclusions, amendment was permissible to include $2,000 in

liquidated damages. The court already had determined the plaintiff was entitled to


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liquidated damages and the correction merely performed the clerical task of

conforming the judgment to what the court had actually decided.

Under Riveria and the cases discussed, amendment under Rule 60(a) only is

proper when (1) something exists in the record indicating the court already had

decided the matter and (2) the order is being amended to reflect the original intent

as shown by contemporaneous evidence that the matter had been decided, e.g., the

findings and conclusions as in the second case discussed. In the instant case, there

is no contemporaneous evidence that Judge Mazzant intended the transfer order to

be immediate. Therefore, under the Riveria case cited by Judge Michelson,

amendment under Rule 60(a) is not permitted and would be an abuse of discretion.

Riveria also cites In re Galiardi, 745 F.2d 335 (5th Cir.1984) (per curiam) as

an example when a judgment cannot be amended under Rule 60(a). In Galiardi, a

case was transferred from Texas to New York. The order of transfer did not state

whether the venue transfer was pursuant to 28 U.S.C. Sec. 1404(a) or 28 U.S.C.

Sec. 1406(a). The basis of the transfer was important because the New York time-

bar applied if the basis of the transfer was Sec. 1406(a). After the New York court

interpreted the case as being transferred pursuant to Sec. 1404(a), the defendants

brought a motion in the transferor court "to Resettle Texas Transfer Order." Id. at

336. The Texas court then entered an order that amended its previous transfer

order to state that the transfer was pursuant to 28 U.S.C. Sec. 1406. Id.


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The Fifth Circuit granted a petition for writ of mandamus and vacated the

amendment to the transfer order. The court stated Rule 60(a) "does not grant a

district court carte blanche to supplement by amendment an earlier order by what

is subsequently claimed to be an oversight or omission." Id. at 337. The court

stated that the amendment "has significant effect on the substantial rights of the

parties" and "is more than the correction of a mistake mechanical in nature, and the

pleadings supplied to us by the parties negate that the recitation of one ground or

the other for the transfer was obviously intended but inadvertently omitted by the

district court at the time the original order was entered." Similarly, in the instant

case, an amendment that adds "immediately" to the original transfer order has a

significant effect on the substantial rights of the parties and there is nothing in the

record indicating that the word "immediately" was obviously intended but

inadvertently omitted by the court at the time the original order was entered.

Judge Michelson states "Judge Mazzant’s April 2, 2015 order, where he

explicitly stated that his January 2015 transfer order directed the clerk’s office to

transfer the case here “immediately,” is the best evidence of his intent when he

entered his transfer order." Although a court's subsequent clarification of intent

can be reliable evidence in the Rule 60(a) context, the clarification "must reflect

the contemporaneous intent of the court as evidenced by the record ." Garamendi

v. Henin, 683 F.3d 1069, 1080 (9th Cir., 2012) (citing and quoting Burton v.


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Johnson, 975 F.2d 690, 694 (10th Cir.1992) and 12 Moore's Federal Practice §

60.11[2][b].); see also Sartin v. McNair Law Firm PA, 756 F.3d 259 (4th Cir.,

2014) (court's intent at the time it issued sanctions orders was manifested both by

what the court later stated about its intent and by contemporaneous documents).

There must be something in the record that evidences the court's clarified

contemporaneous intent because as stated in In re Galiardi, Rule 60(a) "does not

grant a district court carte blanche to supplement by amendment an earlier order

by what is subsequently claimed to be an oversight or omission." Id. at 337. In the

instant case, there is nothing in the record or transfer order evidencing that Judge

Mazzant intended the transfer to be immediate. The transfer order does not say

"immediately," "forthwith," or include any other temporal term that would provide

fair notice to ABPA that the case should be transferred contrary to the requirement

in the local rule that mandated a twenty-one day time delay. Further, the record

leads to a contrary conclusion. The clerk described the transfer order as being

"premature" and Judge Mazzant continued to assert jurisdiction over this case after

the putative transfer took place by issuing two orders (Dkt. ##, 68 and 92). The

argument against amendment is even stronger in the instant case than in the usual

case because Local Rule CV-83(b) places an affirmative duty on the court to issue

an "order of the court to the contrary" if the court wants to alter the twenty-one day

waiting time period. Therefore, not only is there no record evidence that Judge


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Mazzant intended the transfer to be immediate, there is no "order of the court to the

contrary" that would order the transfer before twenty-one days.

Finally, if the transfer order now could be amended to include the word

"immediately" under Rule 60(a), it would strip the local rule of all meaning. No

one could rely upon the local rule for a twenty-one day time period as there would

always be the possibility that a later court would amend the transfer order to say

"immediately" when the original transfer order did not.

III. The Requirements of a Petition for Mandamus are met so the Case should be Retransferred

A. ABPA has a Clear Legal Right to Relief

As explained above, this case was transferred in clear violation of EDTX

Local Rule CV-83(b). Therefore, ABPA has a clear legal right to have this case

transferred back to the Eastern District of Texas.

B. There are No Adequate Alternative Legal Channels through whichABPA may Obtain that Relief

Judge Michelson stated "[t]he Court will not entertain any further motions

on the propriety of the case being transferred to the Eastern District of Michigan,"

and "[i]f ABPA continues to believe that this case should not be here, its recourse

is in the Federal Circuit Court of Appeals." (EDMI Dkt. #25, p. 6).

C. The Grant of Mandamus is Appropriate under the Circumstances.

If the local rule had been followed, then the motions ABPA filed in the


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EDTX after the transfer order was entered would have been considered and ruled

upon. If ABPA's motions had not been granted and the transfer order not vacated,

then ABPA would have obtained substantive rulings from a court with jurisdiction

over the motions and ABPA then could have filed a petition for writ of mandamus

in this Court. See In re Rémy Cointreau USA, Inc., Misc. Docket 160, *4 (Fed.

Cir., October 3, 2013) ("Section 1404(a), however, assigns to the district court the

primary responsibility for determining whether the convenience of the parties and

witnesses, and the proper administration of justice, call for transfer. [citing] In re

Vistaprint Ltd ., 628 F.3d 1342, 1346 (Fed. Cir. 2010)").12 But none of that

happened because this case was prematurely transferred.

If this petition for writ of mandamus is not granted, then ABPA will have no

recourse because Judge Michelson will not entertain any further motions on the

propriety of the case being transferred to the EDMI. Even if ABPA could file the

motions it filed in the transferor court, these motions would not be in the same

procedural posture that they were in when they were filed in the EDTX, due to e.g .,

the "law of the case" doctrine. See Verint Sys. Inc. v. Envision Telephony Inc.,

"# In In re Nine Mile Limited, 673 F.2d 242 (8th Cir. 1982), the appellate court

lacked jurisdiction over the transferor court because the case file had beentransferred. This Court has general appellate jurisdiction over both district courts

because this is a patent case, but since the EDTX court lost jurisdiction of this caseand ABPA will request this Court to review the orders from the EDTX court if theEDTX court does not vacate the order of transfer after a retransfer, a retransferappears necessary as a first step to provide both the district court and this Courtwith undisputed jurisdiction over the motions.


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Case No. C14-1507, *2, 3 (W.D. Wash., February 23, 2015) (law of the case

doctrine suggests "when a court decides upon a rule of law, that decision should

continue to govern the same issues in subsequent stages in the same case" [citing]

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988) and "the

policies apply with even greater force to transfer decisions than to decisions of

substantive law" Id.). Since the case was prematurely transferred to the EDMI in

violation of the local rule, it should be transferred back to the EDTX.

CONCLUSION

For the foregoing reasons, this Court should issue a writ of mandamus

directing the district court to vacate the August 17, 2015 order denying ABPA’s

motion to retransfer and to transfer this case to the U.S. District Court for the

Eastern District of Texas.

September 24, 2015

Respectfully submitted,

/s/ Robert G. Oake, Jr.Robert G. Oake, Jr.Texas State Bar No. 15154300OAKE LAW OFFICE825 Market Street, Suite 250

Allen, Texas 75013(214) [email protected]

Attorney for Automotive Body PartsAssociation


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$"

CERTIFICATE OF FILING AND SERVICE

I hereby certify that, on this the 24th day of September, 2015, I filed the

foregoing Petition for Writ of Mandamus with Exhibits 1-9 with the Clerk of

Court. Two (2) copies of this Petition for Writ of Mandamus and Exhibits 1-9 were

served upon the following parties via Federal Express:

BROOKS KUSHMAN P.C.Marc Lorelli (P63156)Frank A. Angileri (P45611)Linda D. Mettes (P69182)

Amy C. Leshan (P69328)1000 Town Center, Twenty-Second FloorSouthfield, Michigan 48075Email: [email protected]: (248) 358-4400Fax: (248) 358-3351

Attorneys for Plaintiff Ford Global Technologies LLC

Additionally, two (2) copies will be sent to the following U.S. District Judge

via Federal Express:

The Honorable United States District Court Judge Laurie J. MichelsonTheodore Levin U.S. Courthouse231 W. Lafayette Blvd., Room 648Detroit, MI 48226Chambers Telephone: (313) 234-5095Chambers Fax: (313) 234-5094


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I further certify that the required four (4) paper copies of this Petition for

Writ of Mandamus with Exhibits 1-9 have been sent by Federal Express to the

Clerk, UNITED STATES COURT OF APPEALS FOR THE FEDERAL

CIRCUIT, 717 Madison Place, N.W., Washington, D.C. 20439.

/s/ Robert G. Oake, Jr.Robert G. Oake, Jr.OAKE LAW OFFICE


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EXHIBIT 1


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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LOCAL RULES AND APPENDIXES as of May 6, 20151

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................ 1

SECTION I: CIVIL RULES ..................................................................................................... 3

LOCAL RULE CV-1 Scope and Purpose of Rules ............................................................ 3 LOCAL RULE CV-3 Commencement of Action .............................................................. 3

LOCAL RULE CV-4 Complaint, Summons, and Return .................................................. 4

LOCAL RULE CV-5 Service and Filing of Pleadings and Other Documents .................. 4

LOCAL RULE CV-5.2 Privacy Protections for Filings Made with the Court ................... 8 LOCAL RULE CV-6 Computation of Time .....................Error! Bookmark not defined.

LOCAL RULE CV-7 Pleadings Allowed; Form of Motions and Other Documents ....... 10 LOCAL RULE CV-10 Form of Pleadings ....................................................................... 14

LOCAL RULE CV-11 Signing of Pleadings, Motions, and Other Documents .............. 16

LOCAL RULE CV-12 Filing of Answers and Defenses.................................................. 17

LOCAL RULE CV-26 Provisions Governing Discovery; Duty of Disclosure ................ 17 LOCAL RULE CV-30 Depositions Upon Oral Examination .......................................... 18

LOCAL RULE CV-34 Production of Documents and Things ......................................... 19

LOCAL RULE CV-38 Right to a Jury Trial; Demand ..................................................... 19

LOCAL RULE CV-42 Consolidation; Separate Trials .................................................... 19 LOCAL RULE CV-43 Taking of Testimony ................................................................... 20

LOCAL RULE CV-47 Communication with Jurors ........................................................ 20

LOCAL RULE CV-50 Judgment as a Matter of Law in a Jury Trial............................... 20 LOCAL RULE CV-56 Summary Judgment ..................................................................... 21

LOCAL RULE CV-62 Stay of Proceedings to Enforce a Judgment ................................ 22

LOCAL RULE CV-63 Inability of a Judge to Proceed .................................................... 23 LOCAL RULE CV-65 Injunctions .................................................................................. 24

LOCAL RULE CV-65.1 Security; Proceedings Against Sureties................................... 24

LOCAL RULE CV-72 Magistrate Judges ....................................................................... 24

LOCAL RULE CV-77 District Courts and Clerks ........................................................... 26 LOCAL RULE CV-79 Records Kept by the Clerk ......................................................... 27

LOCAL RULE CV-81 Removed Actions ....................................................................... 28

LOCAL RULE CV-83 Rules by District Courts; Judge’s Directives .............................. 29

SECTION II: CRIMINAL RULES .......................................................................................... 29

LOCAL RULE CR-1 Scope ............................................................................................. 30 LOCAL RULE CR-6 The Grand Jury .............................................................................. 30

LOCAL RULE CR-10 Arraignments ............................................................................... 30

LOCAL RULE CR-24 Trial Jurors................................................................................... 30

1These rules include amendments through General Order 15-12, which was filed on May

6, 2015.

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LOCAL RULE CR-47 Motions ........................................................................................ 31 LOCAL RULE CR-49 Service and Filing ........................................................................ 32

LOCAL RULE CR-49.1 Privacy Protection for Filings Made with the Court ............... 35

LOCAL RULE CR-55 Records ........................................................................................ 36 LOCAL RULE CR-59 Matters Before a Magistrate Judge ............................................. 37

SECTION III: ATTORNEYS ................................................................................................... 38

LOCAL RULE AT-1 Admission to Practice .................................................................... 38 LOCAL RULE AT-2 Attorney Discipline ....................................................................... 40

LOCAL RULE AT-3 Standards of Practice to be Observed by Attorneys ...................... 41

INDEX .......................................................................................................................................... 44

SECTION IV: APPENDICES APPENDIX A Local Admiralty Rules

APPENDIX B Patent Rules

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(3) a complete list of attorneys involved in the action being removed, including each

attorney’s bar number, address, telephone number, and party or parties represented by

him/her;

(4) a record of which parties have requested trial by jury (this information is in addition to

filing a separate jury demand pursuant to LOCAL R ULE CV-38(a)); and

(5) the name and address of the court from which the case is being removed.

(d) Any motions pending in state court made by any party will be considered moot at the time ofremoval unless they are re-urged in this court.

LOCAL RULE CV-83 Rules by District Courts; Judge’s Directives

(a) Docket Calls. Traditional docket calls are abolished. Each judge shall endeavor to set early

and firm trial dates which will eliminate the need for multiple-case docket calls.

(b) Transferred or Remanded Cases. Absent an order of the court to the contrary, no soonerthan the twenty-first day following an order of the court transferring the case to another

district court or remanding it to the appropriate state court, the clerk shall transmit the case

file to the directed court. Where a case has been remanded to state court, the clerk shall mail:(1) a certified copy of the court’s order and docket sheet directing such action; and (2) all

pleadings and other documents on file in the case. Where a case has been transferred to

another federal district court, the electronic case file shall be transferred to the directed court.

If a timely motion or reconsideration of the order of transfer or remand has been filed, theclerk shall delay mailing or transferring the file until the court has ruled on the motion for

reconsideration.

(c) Standing orders. Any standing order adopted by a judge pursuant to Fed. R. Civ. P. 83(b)

must conform to any uniform numbering system prescribed by the Judicial Conference of the

United States and be filed with the clerk of court. The court will periodically review allstanding orders for compliance with Rule 83(b) and for possible inclusion in the local rules.

This subsection does not apply to provisions in scheduling or other case-specific orders.

(d) Courtroom Attire and Conduct. All persons present in a courtroom where a trial, hearing,or other proceeding is in progress must dress and conduct themselves in a manner

demonstrating respect for the court. The presiding judge shall have the discretion to establish

appropriate standards of dress and conduct.

SECTION II: CRIMINAL RULES

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EXHIBIT 2


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"

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

AUTOMOTIVE BODY PARTS ASSOCIATION, §

§Plaintiff, §v. § 4:13-CV-00705-RC-ALM

§FORD GLOBAL TECHNOLOGIES, LLC, §

§Defendant. §

FIRST AMENDED COMPLAINT FOR DECLARATORY JUDGMENT

Automotive Body Parts Association for its First Amended Complaint for Declaratory

Judgment against Ford Global Technologies, LLC, states and alleges as follows:

I. PARTIES

1. Plaintiff Automotive Body Parts Association (hereinafter "ABPA") is a non-profit

corporation organized and existing under the laws of the State of Texas with a principal office in

Houston, Texas. Members of the ABPA are doing business in this judicial district.

2. On information and belief, Ford Global Technologies, LLC (hereinafter Ford

Global Technologies), is a corporation organized and existing under the laws of the State of

Delaware with a principal office and principal place of business at 30600 Telegraph Road, Suite

2345, Bingham Farms, Michigan 48025. On information and belief, Ford Global Technologies

is a wholly owned subsidiary of Ford Motor Company and manages intellectual property and

technology commercialization matters for Ford Motor Company. Ford Global Technologies has

been served and has appeared herein.

II. JURISDICTION AND VENUE

3. This Complaint arises under the Patent Laws of the United States, 35 U.S.C. §

100 et seq. and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, based upon an

Case 4:13-cv-00705-RC-ALM Document 48 Filed 10/03/14 Page 1 of 7 PageID #: 1822


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#

actual controversy between the parties to declare that certain design patents owned by Ford

Global Technologies are invalid and unenforceable under the doctrines of patent exhaustion and

functionality and are not infringed by members of the ABPA.

4. This Court has original jurisdiction over the subject matter of these claims

pursuant to 28 U.S.C. §§ 1331 and 1338(a).

5. This Court has personal jurisdiction over Ford Global Technologies due to Ford

Global Technologies' continuous and systematic business contacts with the state of Texas,

including conducting of substantial and regular business in Texas through marketing and sales of

automobiles and automotive body repair parts in Texas including but not limited to automotive

body repair parts that are the subject of Ford Global Technologies' asserted design patents.

Further, Ford Global Technologies has threatened to sue one or more members of the ABPA for

alleged design patent infringement for selling in this judicial district automotive body repair parts

allegedly covered by design patents owned by Ford Global Technologies.

6. Venue is proper in this District under 28 U.S.C. §§ 1391 (b), (c), (d) and 1400 (b).

III. ASSOCIATIONAL STANDING

7. ABPA members distribute aftermarket repair parts in the automotive collision

repair trade. The ABPA has associational standing to bring this action because (a) its members

otherwise would have standing to sue in their own right, (b) the interests this action seeks to

protect are germane to the ABPA's purpose, and (c) neither the claim asserted nor the relief

requested requires the participation of individual ABPA members in the lawsuit.

8. Ford Global Technologies has threatened to sue one or more ABPA members for

alleged design patent infringement for selling automotive body repair parts allegedly covered by

design patents owned by Ford Global Technologies. Therefore, ABPA members otherwise



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$

would have standing to sue Ford Global Technologies for a declaratory judgment of patent

invalidity, patent unenforceability, and patent non-infringement in their own right.

9. The ABPA bylaws provide in relevant part that objectives of the ABPA are "[t]o

promote fair and honorable trade practices between the membership and the customers of the

membership of the Association," "[t]o discourage unfair competition and violation of business

customs and usages of the trade," "[t]o creatively expand the role to the Distributor and to open

up new business opportunities and services to the independent autobody shops and dealers," and

"[t]o foster good will between the industry, its factory suppliers, customers, and other industries

influencing industry growth (i.e., the insurance industry)."

10. The ABPA website provides in relevant part that "members of ABPA are

dedicated to serving the collision repair industry with Quality Replacement Parts, backed by

Dependable Service and Fair Prices" and "ABPA members are pledged to supporting the

multifaceted collision repair industry by not only delivering quality products where and when

needed, but also by making the entire parts delivery system more expedient and economically

viable."

11. Ford Global Technologies uses design patents on automotive body repair parts to

limit distribution and increase cost of the repair parts. This action seeks a declaration that such

automotive body repair part design patents are invalid and/or unenforceable under the doctrines

of patent exhaustion and/or functionality and are not infringed by ABPA members. Therefore,

the interests this action seeks to protect are germane to the ABPA's purpose.

12. This declaratory judgment action seeks declarative and injunctive relief

concerning the validity, enforceability, and non-infringement of Ford Global Technologies'



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design patents directed toward automotive body repair parts. Therefore, neither the claim

asserted nor the relief requested requires the participation of individual members in the lawsuit.

IV. BACKGROUND

13. Ford Global Technologies is the assignee of certain U.S. design patents directed

toward automotive body repair parts. Ford Global Technologies has asserted in writing that one

or more ABPA Members have and are infringing the following Ford Global Technologies design

patents covering automotive body repair parts, one or more of which automotive body repair

parts were sold by members of the ABPA in this judicial district: D489299 (Exterior of Vehicle

Hood) and D501685 (Vehicle Head Lamp).

14. The automotive body repair parts covered by the design patents listed above are

duplicates of the automotive body parts originally sold with the first sale of the automobile of

which they are or were a part. The designs of the automotive body repair parts covered by the

design patents listed above are dictated by the function they perform in that, inter alia, they must

be identical in appearance to the original automotive body parts to duplicate original automobile

appearance following repair and/or must mate in a certain way with the surrounding portion of

the automobile.

V. COUNT I.

REQUEST FOR DECLARATORY JUDGMENT

15. ABPA repeats and realleges each of the allegations in paragraphs 1-14 as if fully

set forth herein.

16. Ford Global Technologies has accused one or more ABPA members of infringing

one or more of the above listed Ford Global Technologies' design patents covering automotive

body repair parts. ABPA asserts that its members are not infringing Ford Global Technologies'



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&

design patents because, inter alia, the design patents are invalid and/or unenforceable under the

doctrines of patent exhaustion and/or functionality.

17. There is an actual, substantial, immediate, and continuing controversy between

members of the ABPA and Ford Global Technologies regarding Ford Global Technologies'

assertion of their design patents covering automotive body repair parts and Ford Global

Technologies' threats of design patent litigation against ABPA members. A declaration of rights

is both necessary and appropriate to establish that ABPA members are not committing patent

infringement by offering for sale and selling automotive body repair parts allegedly covered by

Ford Global Technologies' design patents. This action seeks a declaration that such automotive

repair part design patents are invalid and/or unenforceable under the doctrines of patent

exhaustion and/or functionality and are not infringed by members of the ABPA.

18. ABPA Members are being injured by Ford Global Technologies' assertion of its

design patents covering automotive body repair parts and Ford Global Technologies' threats of

litigation against ABPA Members. Ford Global Technologies' assertions and threats have

prevented one or more ABPA Members from purchasing and selling automotive repair parts for

Ford Motor Company automobiles without threat of litigation from Ford Global Technologies.

Ford Global Technologies' actions have deprived ABPA Members of the economic opportunity

to compete in the marketplace for automotive body repair parts for Ford Motor Company

automobiles and have improperly distorted the marketplace by decreasing the supply and

increasing the cost of automotive body repair parts for Ford Motor Company automobiles.

19. The requested relief can redress the injury being suffered by ABPA members. A

declaratory judgment of patent invalidity, patent unenforceability, and patent non-infringement

regarding Ford Global Technologies' subject design patents and an injunction preventing Ford



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'

Global Technologies from enforcing such design patents will permit ABPA members to

purchase, offer for sale, and sell automotive body repair parts for Ford Motor Company

automobiles without the threat or potential consequences of design patent infringement litigation.

VI. PRAYER FOR JUDGMENT AND RELIEF

WHEREFORE, ABPA respectfully requests the Court enter judgment as follows:

A. Declaring that the subject Ford Global Technologies' design patents directed toward

automotive body repair parts are invalid, unenforceable, and not infringed by ABPA Members;

B. Permanently enjoining Ford Global Technologies from enforcing or attempting to enforce

the subject design patents directed toward automotive body repair parts against ABPA Members;

C. An award of costs of suit to Plaintiff ABPA; and

D. Such other and further relief as the Court deems proper and just.

VII. DEMAND FOR JURY TRIAL

Plaintiff ABPA, pursuant to Rule 38(b) of the Federal Rues of Civil Procedure, demands

a trial by jury on all issues triable by right by a jury.

Respectfully submitted,

/s/ Robert G. Oake, Jr.Robert G. Oake, Jr.

Texas State Bar No. 15154300Oake Law Office

825 Market Street, Suite 250Allen, Texas 75013

(214) [email protected]

Attorney for Plaintiff ABPA



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(

CERTIFICATE OF SERVICE