ABPA Pet. For Writ of Mandamus

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
September 24, 2015
Attorney for Petitioner

Automotive Body Parts Association
______________________________________
CERTIFICATE OF INTEREST
Counsel for Petitioner Automotive Body Parts Association certifies the following:
1.
The full name of every party represented by me is:

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
Allen, Texas 75013
(214) 207-9066
September 24, 2015
/s/ Robert G. Oake, Jr.

Robert G. Oake, Jr.
OAKE LAW OFFICE
Allen, Texas 75013
(214) 207-9066
rgo@oake.com
Attorney for Petitioner
TABLE OF CONTENTS
Page
CERTIFICATE OF INTEREST ................................................................... i
TABLE OF AUTHORITIES ........................................................................
iv
INTRODUCTION ........................................................................................
RELIEF SOUGHT .......................................................................................
ISSUE PRESENTED ...................................................................................
JURISDICTIONAL STATEMENT ............................................................
STANDARD OF REVIEW ........................................................................
FACTUAL BACKGROUND AND PROCEDURAL HISTORY .............
A.
Automotive Body Parts Association ......................................
B.
Ford Global Technologies, LLC ............................................
C.
Procedural Posture of the Litigation ......................................
REASONS FOR ISSUING THE WRIT ....................................................

I.
II.
12
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
DENIAL OF ABPA'S MOTION TO RETRANSFER

CONSTITUTED CLEAR ERROR .................................................
17
A.
17
Background ...........................................................................
ii
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
An Amendment cannot be made under Rule 60(a) ....
20
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
The Grant of Mandamus is Appropriate under the

Circumstances .........................................................................
28
CONCLUSION ...........................................................................................
30
CERTIFICATE OF FILING AND SERVICE ............................................
31
2.
III.
C.
iii
TABLE OF AUTHORITIES
CASES
Arizona v. California,
460 U.S. 605 (1983)
Page
......................................................
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),
revd in part on other grounds, 133 S. Ct. 2107
ABPA v. FGTL,
Case 4:13-cv-00705 (EDTX)
20
.............
............................................
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)
............................................
......................................................
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
iv
Dawson v. Marshall,
561 F.3d 930 (9th Cir. 2009)
............................................
Frye v. Warden,
No. Civ. S-99-0628 (Temp), (E.D. Ca. Jan. 14, 2011) ........
Garamendi v. Henin,
683 F.3d 1069 (9th Cir. 2012) ............................................
26
In re Galiardi,
745 F.2d 335 (5th Cir.1984) (per curiam)
.......................
25
.................................
21
............................................
29
In re LWD, Inc.,
335 Fed. Appx. 523 (6th Cir. 2009)
In re Nine Mile Limited,
673 F.2d 242 (8th Cir. 1982)
In re Princo Corp.,
478 F.3d 1345 (Fed. Cir. 2007) ............................................
In re Rmy 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)
Lands v. St. Louis Railroad Co.,
648 F. Supp. 322 (E.D. Tex., 1986)
.......................
22
.................................
13
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
vi
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)
............................................
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 ...........................................................................
28 U.S.C. 1404(a)
.................................................................
25
28 U.S.C. 1406(a)
.................................................................
25
Fed. R. Civ. P. 59(e)
.................................................................
Fed. R. Civ. P. 60(a)
.................................................................
passim
Fed. R. Civ. P. 60(b)
.................................................................
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
vii
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

viii
........................
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 undersigneds 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 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
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
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 ABPAs 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
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).

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's
report, any party must serve and file specific written objections to the
findings and recommendations of the magistrate judge. 28 U.S.C.
636(b)(1)(C). In order to be specific, an objection must identify the
specific finding or recommendation to which objection is made, state
the basis for the objection, and specify the place in the magistrate
judge's report and recommendation where the disputed determination
is found. An objection that merely incorporates by reference or refers
to 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), revd in
part on other grounds, 133 S. Ct. 2107, involved an assertion of associational
standing that was neither contested, analyzed, nor ruled upon.

Within fourteen days after being served with a copy, any party may
serve and file written objections to such proposed findings and
recommendations as provided by rules of court. A judge of the court
shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is
made. A judge of the court may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate
judge. The judge may also receive further evidence or recommit the
matter 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

3 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 attendance
for 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 more
convenient than the current forum for this litigation." Perhaps because this is the
first case based on contested associational standing, the district court failed to
consider the inconvenience to ABPA's witnesses, reasoning that "[t]he ABPA does
not share this concern [of business disruption], as it is an association composed of
members, including New World, and it does not make, manufacture, or sell any
products." (R&R, page 12). This was clear error because ABPA witnesses have
regular 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 the
evidence and witnesses in and near the EDTX.
4
The motion to supplement evidence requested the court to consider eight
declarations, three emails, a deposition excerpt, and additional documents pursuant
to 28 U.S.C. 636(b)(1)(C). The reasons that the evidence had not been submitted
earlier were that (1) pleadings were amended after venue briefing was complete,
(2) the court's clearly erroneous recommendation that failed to consider evidence
and witnesses in and near the EDTX, and (3) the court's clearly erroneous
recommendation that failed to consider the inconvenience to ABPA's witnesses.

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 de

novo 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-990628 (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, Dartmouth
College, with an area of expertise in professional ethics and responsibility,
concludes his comment on the Dawson case by stating "[t]he district judge and the
magistrate being reviewed should not be the same person. Period."
http://calapp.blogspot.com/2009/02/dawson-v-marshall-9th-cir-feb-9-2009.html.

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 because
on January 29, 2015, FGTL sued New World International, Inc. (an ABPA
member) and others for alleged patent infringement and willful patent infringement
in the EDMI. FGTL earlier had argued in the venue briefing in the instant case
that since there were no allegations of infringement and willful infringement by
FGTL against New World, such allegations should not factor into the analysis on
the motion to transfer venue. (Dkt. #59). The second motion for reconsideration
argued that it would be manifestly unjust not to consider the lawsuit filed by FGTL
against ABPA Member New World and others and not to factor it into the transfer
analysis. 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 on
motions for reconsideration, a motion to supplement evidence, a motion to vacate,
and a motion to disqualify District Judge Amos Mazzant. The court should have

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, 518

F.3d 897 (Fed. Cir. 2008) to consider all evidence and circumstances to determine
where the proper venue of this comprehensive litigation between the parties to
these two lawsuits should be. The second motion for reconsideration was denied
not on substance, but because the case was prematurely transferred. (Dkt. #93).
7
Although Judge Mazzant denied numerous motions on the basis that he no longer
had jurisdiction of the case once it was transferred, Judge Mazzant substantively
ruled on the motion to disqualify. The order does not address the Fifth Circuit case
law on when an appearance of impropriety should lead to a disqualification.

10
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 Mazzants 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.

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

11
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 day
following an order of the court transferring a case to another district
court or remanding it to the appropriate state court, the clerk shall
mail to the directed court: (1) a certified copy of the court's order
directing such action; and (2) the original of all pleadings and other
papers on file in the case. If a timely motion for reconsideration of the
order of transfer or remand has been filed, the clerk shall delay
mailing the file until the court has ruled on the motion for
reconsideration.
12
Comment: New section (b) adopts as a local rule the procedure

currently used by the clerk's office, which ensures that the court
retains jurisdiction to rule on any motions to reconsider orders
transferring or remanding cases. The proposed rule is consistent with
the practice endorsed by Professors Wright & Miller and local rules
by other courts, and endorses twenty days as a middle ground - other
districts' 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 challenging
District Judge Mazzant's right to review his own Report and Recommendation
issued while he was a Magistrate Judge.

13
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 CV83(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
14
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
15
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 calling
about the Automotive Body Parts versus Ford Global Technologies
case 4:13cv705 - the one that prematurely was transferred to
Michigan. Um I talked to my manager and she said that that's OK
even though the case is open up there the Judge will still handle any
motions or filings here in this case. So, she said go ahead and file that
motion to reconsider in the case, um and it will be ruled upon. If you
have 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 undersigneds 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
16
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.
17
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
18
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
undersigneds 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.,

19
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 proceedings
in response to the ABPAs expressed intention to challenge the
Transfer Order. (Dkt. #89 at 3 [sic, 2]). Had ABPA opted to timely
file a motion to stay the transfer or a motion for reconsideration, the
transfer of the jurisdiction to the Eastern District of Michigan would
have at minimum been delayed long enough to consider such a
motion. 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 a
stay when the transfer order was received, a review of the local rules indicated that
a stay was not necessary. In any event, FGTL later indicated they had not agreed
to such a stay. The stay requested by FGTL was to stay the case so discovery
deadlines and their deadline to disclose expert witnesses would not expire. It was
not directly related to the order of transfer. The full context of the emails between
counsel regarding a stay can be seen in EDMI Dkt. #17, pp. 14-21. (Exhibit 9).

20
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 Mazzants 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. 1112939, *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
21
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.
22
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 Mazzants 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
23
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
24
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 timebar 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.
25
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 Mazzants April 2, 2015 order, where he
explicitly stated that his January 2015 transfer order directed the clerks 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.
26
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
27
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 which

ABPA 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
28
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 Rmy 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.,

12 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 been
transferred. 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 case
and ABPA will request this Court to review the orders from the EDTX court if the
EDTX court does not vacate the order of transfer after a retransfer, a retransfer
appears necessary as a first step to provide both the district court and this Court
with undisputed jurisdiction over the motions.

29
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 ABPAs
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,
Robert G. Oake, Jr.
Texas State Bar No. 15154300
OAKE LAW OFFICE
Allen, Texas 75013
(214) 207-9066
rgo@oake.com
Attorney for Automotive Body Parts
Association
30
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 Floor
Southfield, Michigan 48075
Email: lmettes@brookskushman.com
Phone: (248) 358-4400
Fax: (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. Michelson
Theodore Levin U.S. Courthouse
231 W. Lafayette Blvd., Room 648
Detroit, MI 48226
Chambers Telephone: (313) 234-5095
Chambers Fax: (313) 234-5094
31
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.
Robert G. Oake, Jr.
OAKE LAW OFFICE
32
EXHIBIT 1
UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS
LOCAL RULES AND APPENDIXES as of May 6, 2015 1
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; Judges 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
1
These rules include amendments through General Order 15-12, which was filed on May
6, 2015.
1
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
(3) a complete list of attorneys involved in the action being removed, including each
attorneys 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 RULE 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 of
removal unless they are re-urged in this court.
LOCAL RULE CV-83 Rules by District Courts; Judges 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 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. Where a case has been remanded to state court, the clerk shall mail:
(1) a certified copy of the courts 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, the
clerk 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 all
standing 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
29
EXHIBIT 2
Case 4:13-cv-00705-RC-ALM Document 48 Filed 10/03/14 Page 1 of 7 PageID #: 1822

EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
AUTOMOTIVE BODY PARTS ASSOCIATION,
Plaintiff,
v.
FORD GLOBAL TECHNOLOGIES, LLC,
Defendant.
4:13-CV-00705-RC-ALM
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

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
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'
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'
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
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.

Robert G. Oake, Jr.
Oake Law Office
Allen, Texas 75013
(214) 207-9066
rgo@oake.com
Attorney for Plaintiff ABPA
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was filed electronically in compliance
with Local Rule CV-5(a). Therefore, this document was served on all counsel who are deemed to
have consented to electronic service. Local Rule CV-5(a)(3)(A). Pursuant to Fed. R. Civ. P. 5(d)
and Local Rule CV-5(d) and (e), all other counsel of record not deemed to have consented to
electronic service were served with a true and correct copy of the foregoing by email on October 3,
2014.
Attorney for ABPA
EXHIBIT 3
Case 4:13-cv-00705-ALM Document 93 Filed 04/02/15 Page 1 of 6 PageID #: 2730
United States District Court

SHERMAN DIVISION
AUTOMOTIVE BODY PARTS

ASSOCIATION
v.
FORD GLOBAL TECHNOLOGIES, LLC
Case No. 4:13-CV-00705

Judge Mazzant
MEMORANDUM OPINION AND ORDER

Pending before the Court are Plaintiffs Motion to Re-Transfer Case and/or Court
File (Dkt. #66), Plaintiffs Sealed Motion for Reconsideration of Order of Transfer (Dkt.
#69), Plaintiffs Motion for Reconsideration of Order Denying as Moot Plaintiffs Motion
to Supplement Evidence (Dkt. #70), Plaintiffs Motion to Vacate Order of Transfer (Dkt.
#71), and Plaintiffs Second Motion for Reconsideration of Order of Transfer and Order
Denying as Moot Plaintiffs Motion to Supplement Evidence (Dkt. #72). Having
considered the relevant pleadings, the Court finds Plaintiffs motions should be denied.
BACKGROUND
On November 7, 2014, the undersigned, then serving as a Magistrate Judge
assigned to this case, signed a Report and Recommendation recommending Ford Global
Technologies, LLCs (Ford) motion to transfer venue be granted. Automotive Body
Parts
Association
(ABPA)
timely
served
objections
to
the
report
on
November 24, 2014. On December 19, 2014, the undersigned began performing his
duties as a United States District Court Judge, assigned to the Sherman Division. On
January 7, 2015, the docket was updated to reflect the cases reassignment from the
undersigned in his role as a Magistrate Judge to the undersigned in his new role as a
1
United States District Court Judge. Shortly following this reassignment, the undersigned,
after considering all briefings on the motions, the Report and Recommendation, and all
objections, filed a Memorandum Opinion and Order granting Fords Motion to Transfer
Venue (Dkt. #62). The Memorandum Opinion and Order contained the following
footnote: On November 7, 2014, the undersigned entered a report and recommendation
in this case as the United States Magistrate Judge to whom this case was referred. This
case is now assigned to the undersigned as the presiding United States District Judge, and
this memorandum opinion and order is issued accordingly. Id. The Memorandum
Opinion and Order, which directed the Clerk to transfer this case to the United States
District Court for the Eastern District of Michigan, was entered on January 8, 2015. On
January 14, 2015, the case was docketed in the Eastern District of Michigan.
Plaintiff filed its Motion to Re-Transfer Case and/or Court File (Dkt. #66) on
January 20, 2015. On January 28, 2015, Plaintiff filed its Sealed Motion for
Reconsideration of Order of Transfer (Dkt. #69). Plaintiff filed its Motion for
Reconsideration of Order Denying as Moot Plaintiffs Motion to Supplement Evidence
(Dkt. #70) on January 29, 2015. And on February 4, 2015, Plaintiff filed its Motion to
Vacate Order of Transfer (Dkt. #71), as well as its Second Motion for Reconsideration of
Order of Transfer and Order Denying as Moot Plaintiffs Motion to Supplement Evidence
(Dkt. #72).
LEGAL STANDARD
It is well established that [o]nce 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. Schwartz v. Curtis, No. 4:07-CV-3494, 2008
WL 4467560, at *1 (S.D. Tex. Oct. 2, 2008) (quoting Chrysler Credit Corp. v. County
Chrysler, Inc., 928 F.2d 1509, 1516-17 (10th Cir. 1991)). The date the papers in the
transferred case are docketed in the transferee court . . . forms the effective date that
jurisdiction in the transferor court is terminated, and this date also forms the effective
date that appellate jurisdiction in the transferor circuit is terminated; the transfer order
becomes unreviewable as of that date. Chrysler Credit Corp. v. Country Chrysler, Inc.,
928 F.2d 1509, 1517 (10th Cir. 1991) (internal citations omitted); see generally, In re Sw.
Mobile Homes, Inc., 317 F.2d 65 (5th Cir. 1963) (per curiam) (holding district court lost
jurisdiction once transfer was complete); 15 Fed. Prac. & Proc. Juris. 3846 (4th ed.)
(When a motion for transfer . . . is granted and the papers are lodged with the clerk of
the transferee court, the transferor court and the appellate court for the circuit in which
that court sits lose jurisdiction over the case and may not proceed further with regard to
it.).
ANALYSIS
Both the Fifth Circuit and the Eastern District of Texas have previously addressed
a courts jurisdiction over a case where the transfer of the case to another court has been
completed. In a case where a petitioner moved for leave to file a petition for mandamus
to require a district judge to vacate a transfer order, the Fifth Circuit held that when the
petitioner's motion for leave was filed in this Court, the transfer was complete and the
District Court . . . had already lost jurisdiction. In re Sw. Mobile Homes, Inc., 317 F.2d
at 66. In that case, the District Judge, after hearing the motion to transfer, had advised the
parties that the action would be transferred at that time. Three days after the hearing, a
formal order of transfer was entered. The papers were received by and docketed in the
transferee district court two days after the formal order was entered. Two days after the
case had been docketed in the transferee court, petitioner filed its motion for leave to file
a petition for mandamus. The Fifth Circuit noted that the petitioner had not seasonably
moved for a stay within which to seek review of the transfer, and because the district
court had already lost jurisdiction, it was extremely doubtful whether the Fifth Circuit
still ha[d] the power to compel the District Judge to vacate his order transferring the
action. Id.
Similarly, the exact issue presented here was addressed in Lands v. St. Louis Sw.
R.R. Co. The court in Lands granted a motion to transfer. After the case file had already
been forwarded to the transferee jurisdiction, Plaintiff's counsel filed a motion to
reconsider. The court held that [t]he transfer has been made, the clerk has forwarded the
file . . . and no stay was sought; thus, this court denies the motion for reconsideration.
Lands v. St. Louis Sw. R.R. Co., 648 F. Supp. 322, 325 (E.D. Tex. 1986).
The present case was docketed in the Eastern District of Michigan on January 14,
2015. As such, January 14, 2015 is the effective date that this Courts jurisdiction over
the matter was terminated. However, none of Plaintiffs motions presently before the
Court were timely filed prior to the January 14, 2015 change of jurisdiction.
ABPA did not file any motions to stay the transfer and indicated that in making
that decision, it relied on a provision of Local Rule CV-83(b) (Dkt. #86 at 3). Local Rule
CV-83(b) states that [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. E.D. Tex. Local Rule CV-83(b). This reliance on the local rule was
misguided, as the undersigneds 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.
Local Rule CV-83(b) provides that [i]f a timely motion for reconsideration of the
order of transfer or remand has been filed, the clerk shall delay . . . transferring the file
until the court has ruled on the motion for reconsideration. Alternatively, Ford offered
to stipulate to a stay of the proceedings in response to the ABPAs expressed intention to
challenge the Transfer Order. (Dkt. #89 at 3). Had ABPA opted to timely file a motion
to stay the transfer or a motion for reconsideration, the transfer of the jurisdiction to the
Eastern District of Michigan would have at minimum been delayed long enough to
consider such a motion. Instead, ABPA allowed the transfer of jurisdiction to occur
before filing any motion with this Court.
The result of this case is straightforward. As was stated in Lands, [t]he transfer
has been made, the clerk has forwarded the file . . . and no stay was sought; thus, this
Court denies the motions before it. Lands, 648 F. Supp. at 325.
CONCLUSION
It is therefore ORDERED that Plaintiffs Motion to Re-Transfer Case and/or
Court File (Dkt. #66) is hereby DENIED.
It is further ORDERED that Plaintiffs Sealed Motion for Reconsideration of
Order of Transfer (Dkt. #69) is hereby DENIED.
It is further ORDERED that Plaintiffs Motion for Reconsideration of Order

Denying as Moot Plaintiffs Motion to Supplement Evidence (Dkt. #70) is hereby
DENIED.
It is further ORDERED that Plaintiffs Motion to Vacate Order of Transfer
.
(Dkt. #71) is hereby DENIED.

It is finally ORDERED that Plaintiffs Second Motion for Reconsideration of
Order of Transfer and Order Denying as Moot Plaintiffs Motion to Supplement Evidence
(Dkt. #72) is hereby DENIED.
SIGNED this 2nd day of April, 2015.
___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
EXHIBIT 4
United States District Court

SHERMAN DIVISION

ASSOCIATION
V.
FORD GLOBAL TECHNOLOGIES, LLC
CASE NO. 4:13-CV-705

Judge Mazzant
MEMORANDUM OPINION AND ORDER1

Pending before the Court is Defendant Ford Global Technologies, LLCs Motion to
Transfer Venue to the Eastern District of Michigan (Dkt. #37). After considering the motion, the
responses, and the relevant pleadings, the Court finds the motion is granted.
BACKGROUND
The Automotive Body Parts Association (ABPA) filed the present suit for declaratory
judgment asserting originally that six design patents on automotive body repair parts owned by
Ford Global Technologies, LLC (Ford) are invalid and/or unenforceable under the doctrines
of patent exhaustion and/or functionality and are not infringed by ABPA members (Dkt. #1 at 3,
11). In its response to the motion to transfer, however, the ABPA indicated that it dropped
three patents from this litigation without prejudice, and that the following three patents remain:
D489299 (F-150 Exterior of Vehicle Hood); D496890 (F-150 Vehicle Grill); and D501685 (F150 Vehicle Head Lamp) (Dkt. #41 at 1). After reviewing the amended complaint filed on
October 3, 2014, by the ABPA, it appears that there are now only two remaining patents in this
litigation: D489299 (F-150 Exterior of Vehicle Hood); and D501685 (F-150 Vehicle Head
Lamp) (See Dkt. #48).
On November 7, 2014, the undersigned entered a report and recommendation in this case as the United States
Magistrate Judge to whom this case was referred. This case is now assigned to the undersigned as the presiding
United States District Judge, and this memorandum opinion and order is issued accordingly.
1
On August 13, 2014, Ford filed its motion to transfer to the Eastern District of Michigan
(Dkt. #37). On September 2, 2014, the ABPA filed its response (Dkt. #41). On September 12,
2014, Ford filed its reply (Dkt. #43). On September 22, 2014, the ABPA filed its sur-reply (Dkt.
#47).
LEGAL STANDARD
Ford moves to transfer venue to the Eastern District of Michigan pursuant to 28 U.S.C.
1404(a), which permits a district court to transfer any civil case [f]or the convenience of parties
and witnesses, in the interest of justice...to any other district or division where it might have been
brought. 28 U.S.C. 1404(a). Section 1404(a) is intended to place discretion in the district
court to adjudicate motions for transfer according to an individualized, case-by-case
consideration of convenience and fairness. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29
(1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). The purpose of 28 U.S.C.
1404(a) is to prevent the waste of time, energy and money and to protect the litigants,
witnesses and the public against unnecessary inconvenience and expense Van Dusen v.
Barrack, 376 U.S. 612, 616 (1964). As transfer of venue is not a matter of substantive patent
law, case law from the Court of Appeals for the Fifth Circuit governs this motion. See In re TS
Tech USA Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008).
The threshold inquiry when determining eligibility for transfer is whether the judicial
district to which transfer is sought would have been a district in which the claim could have been
filed, or whether all parties have consented to a particular jurisdiction. In re Volkswagen AG,
371 F.3d 201, 203 (5th Cir. 2004) (Volkswagen I). Once that threshold inquiry is met, the
Fifth Circuit has held that [t]he determination of convenience turns on a number of public and
private interest factors, none of which can be said to be of dispositive weight. Action Indus.,
Inc. v. U.S. Fid. & Guar. Co., 358 F.3d 337, 340 (5th Cir. 2004). The private interest factors
include (1) the relative ease of access to sources of proof; (2) the availability of compulsory
process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; (4)
all other practical problems that make trial of a case easy, expeditious and inexpensive. In re
Volkswagen of America, Inc., 545 F.3d 304, 315 (5th Cir. 2008) (en banc) (Volkswagen II).
The public interest factors include (1) the administrative difficulties flowing from court
congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity
of the forum with the law that will govern the case; and (4) the avoidance of unnecessary
problems of conflict of laws or in the application of foreign law. Id. These factors are not
exhaustive or exclusive, and no single factor is dispositive. Id.
The party seeking transfer of venue must show good cause for the transfer. Volkswagen
II, 545 F.3d at 315. The moving party must show that the transferee venue is clearly more
convenient than the transferor venue. Volkswagen II, 545 F.3d at 315. The plaintiffs choice of
venue is not a factor in this analysis, but rather contributes to the defendants burden to show
good cause for the transfer. Volkswagen II, 545 F.3d at 313 & 314 n.10 ([W]hile a plaintiff has
the privilege of filing his claims in any judicial division appropriate under the general venue
statute, 1404(a) tempers the effects of the exercise of this privilege.). However, when the
transferee venue is not clearly more convenient than the venue chosen by the plaintiff, the
plaintiffs choice should be respected. Id. at 315.
ANALYSIS
The first issue that the Court must determine is whether the suit could have been filed
originally in the destination venue. Volkswagen II, 545 F.3d at 312. The ABPA does not dispute
that the Eastern District of Michigan is a proper venue for this case. As this matter is not in
dispute, Ford meets the threshold inquiry for a transfer of venue analysis.
Both parties address the weight that should be given to the ABPAs choice of the Eastern
District of Texas as the forum that should resolve this dispute. However, Fifth Circuit law is
clear that the plaintiffs choice of venue is not a factor in this analysis, but rather contributes to
the defendants burden to show good cause for the transfer. Volkswagen II, 545 F.3d at 313 &
314 n.10 ([W]hile a plaintiff has the privilege of filing his claims in any judicial division
appropriate under the general venue statute, 1404(a) tempers the effects of the exercise of this
privilege.). Thus, the Court will consider the ABPAs choice of the Eastern District of Texas in
its consideration of Fords burden to show that the Eastern District of Michigan is clearly more
convenient than this district.
Ford argues that the ABPA brought the current suit against Ford, claiming its authority
from a prior correspondence between Ford and New World International (New World), which
resulted in assurances from New World that it would honor the design patents at issue. Ford
asserts that the limited discovery thus far has revealed that New World had no intention of
keeping its promise, and instead colluded with the ABPA to bring the present suit while
representing to Ford that there was no justiciable controversy.
Ford argues that filing an
anticipatory declaratory judgment action is grounds for dismissal of an action, but at the very
least should justify a transfer to the Eastern District of Michigan. The ABPA contends that this
is an improper attempt to reargue declaratory judgment standing.
Although the venue factors set out by the Fifth Circuit are non-exclusive, the Court
declines to consider this as a separate factor in its transfer analysis. The Court has already
addressed the standing issues at length, and has asserted that it will reconsider the issues if
necessary in a subsequent motion. Further, the issue here is not whether dismissal is appropriate,
but rather if Ford has met its burden to demonstrate whether the Eastern District of Michigan is a
clearly more convenient forum that the present judicial district. The Court will now turn to
that analysis.
A.
Public Interest Factors

The Fifth Circuit applies four non-exclusive public interest factors in determining a
1404(a) venue transfer question (1) the administrative difficulties flowing from court
congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity
of the forum with the law that will govern the case; and (4) the avoidance of unnecessary
problems of conflicts of law or the application of foreign law.
1. The administrative difficulties flowing from court congestion
In considering this factor, the speed with which a case can come to trial and be resolved
may be a factor. In re Genentech, Inc., 566 F.3d 1338, 1347 (Fed. Cir. 2009) (citing Gates
Learjet Corp v. Jenson, 743 F.2d 1325, 1337 (9th Cir. 1984) ([T]he real issue is not whether
[transfer] will reduce a courts congestion but whether a trial may be speedier in another court
because of its less crowded docket.)). The Federal Circuit has noted that this factor appears to
be the most speculative, and case-disposition statistics may not always tell the whole story. Id.
The most recent statistics obtained by this Court for the 12-month period ending in June
30, 2014, indicate that the median time from filing to trial in civil cases in the Eastern District of
Texas was 27.9 months, as compared to 28.4 months in the Eastern District of Michigan.2 The
median time from filing to disposition in the Eastern District of Texas was 9.0 months and 8.5
See Federal Court Management Statistics, June 2014,

www.uscourts.gov/Statistics/FederalCourtManagementStatistics/district-courts-june-2014.aspx, accessed October
20, 2014.
months in the Eastern District of Michigan. There is little difference in the median amount of
time in which this case can come to trial and/or be resolved in either district.
Ford contends that resolution would be more efficient in the Eastern District of Michigan
based on several of the other interest factors. The ABPA expresses a concern that in the Eastern
District of Michigan, 8.7% of civil cases that are pending are over three years old, as compared
to 5.4% of civil cases in the Eastern District of Texas. In addition, the ABPA notes that the
Eastern District of Texas has patent rules and procedures for efficient processing of patent cases,
and the Eastern District of Michigan does not, which may contribute to the ability of the Eastern
District of Texas to resolve patent cases quickly. However, the issues in this case relate to
claims that arise under the federal patent law, for which there is uniformity nationwide, and
both courts are equally equipped to address. See In re Link_A_Media Devices Corp., 662 F.3d
1221, 1224 (Fed. Cir. 2011). Further, there are many reasons why cases may remain pending for
three years or more, which may or may not have to do with the congestion of the court itself as
much as the individual requirements of the litigation and the unique needs of a case. Because
there is little difference in the median time to trial in the Eastern District of Michigan from the
present venue, the Court finds this factor is neutral.
2. The local interest in having localized interests decided at home
The second public interest factor is the local interest in having localized interests decided
at home. Volkswagen II, 545 F.3d at 315. Jury duty is a burden that ought not to be imposed
upon the people of a community which has no relation to the litigation. Affinity Labs of Texas
v. Samsung Electronics Co., Ltd., 968 F. Supp. 2d 852, 855 (E.D. Tex. 2013) (citing Volkswagen
I, 371 F.3d at 206)). The mere sale of several or some of the allegedly infringing products in
a given district is not enough to shift this factor in favor of one party. See In re TS Tech USA
Corp, 551 F.3d 1315, 1321 (Fed. Cir. 2008). The ABPAs argues that Ford sells more F Series
trucks in Texas than in any other state; therefore, by implication, this judicial district has a
localized interest in keeping repair parts for the F-150 truck available and affordable. However,
the sale of Ford products in this district alone is not enough to shift this factor against transfer.
The ABPA is a Texas corporation with is principal and registered office and address in
Houston, Texas, which is not in this judicial district (Dkt. #41 at 13 & Ex. 3 10, 13). The
headquarters of the ABPA are currently in Rhode Island, where the current executive director
lives and maintains a home office. Id. at 13. The ABPAs officers and board members live
throughout the United States, with two living near, but not in, this district. Id. at 2, 3. The
ABPA also asserts that some proof will be required from New World, which is a member of the
ABPA, and located in Irving, Texas, also not in this judicial district (Dkt. #41 at 3, Ex. 1 3).
The ABPA asserts that because New World is primarily a regional seller of automotive parts, it
is likely that discovery will reveal that some of the automotive repair companies that received the
accused parts and installed them on the vehicles are located in this district, and that the owner of
the cars that were repaired live and purchased their vehicles in the Eastern District of Texas.
The only patent doctrines at issue in this litigation are the doctrines of invalidity based on
functionality and patent exhaustion. This litigation is somewhat unique in that the ABPA is
asserting associational standing to sue on behalf of its members, and it plans to use
individualized proof from New World when necessary to establish certain factors. Infringement
is not an issue in this case. Ford asserts that the Eastern District of Michigan has a greater local
interest in this litigation because at the heart of this litigation is the design, advertising, and
marketing of the two patents-in-suit. The two patents were both researched and designed, and
decisions regarding advertising and marketing were made in the Eastern District of Michigan.
The ABPA essentially argues that the design of the patents has nothing to do with the issues
before the Court, and states that the most relevant evidence regarding sales and design of the
accused products will come from New World, located in the Northern District of Texas.
The decision before the Court is whether the Eastern District of Texas (not the Northern
District of Texas) or the Eastern District of Michigan has the greatest local interest in deciding
this case. It is clear to this Court that the research, design, advertising decisions, and marketing
decisions all occurred in the Eastern District of Michigan, giving that district the greatest local
interest in deciding this dispute. The Eastern District of Texas lacks any meaningful connection
to this litigation. This factor favors transfer.
3. The familiarity of the forum with the law that will govern the case
The parties do not dispute that both courts are familiar with the relevant law. The ABPA
briefly asserts that the Eastern District of Texas is uniquely qualified to handle patent litigation,
and has been one of the top two judicial districts in the country in terms of percentage of civil
cases filed that are patent cases and average patent cases per active judge. While this may be
true, this case arises under federal patent law, with which both districts are equally familiar and
able to apply appropriately. The Court finds that this factor is neutral.
4. The avoidance of unnecessary problems in conflict of laws
As this is a patent case arising under federal law, there are no issues relating to conflict of
laws. The court agrees with the parties that this factor is neutral.
B. The Private Interest Factors
The Fifth Circuit also considers four non-exclusive private factors (1) the relative
ease of access to sources of proof; (2) the availability of compulsory process to secure the
attendance of willing witnesses; (3) the cost of attendance for willing witnesses; and (4) all other
practical problems that make a trial easy, expeditious, and inexpensive. Volkswagen II, 545 F.3d
at 315.
1. The relative ease of access to sources of proof
The first private interest factor is the relative ease of access to the sources of proof.
Volkswagen I, 371 F.3d at 203. The Fifth Circuit has cautioned this factor remains relevant
despite technological advances having made electronic document production commonplace.
DataQuill, Ltd. v. Apple Inc., No. A-13-CA-706-SS, 2014 WL 2722201, at *3 (W.D. Tex. June
13, 2014) (citing Volkswagen II, 545 F.3d at 316)). The Federal Circuit has observed that [i]n
patent infringement cases, the bulk of the relevant evidence usually comes from the accused
infringer, and therefore the location of the defendants documents tends to be the more
convenient venue.
Id. (citing Genentech, 566 F.3d at 1345).
However, in this case
infringement is not at issue, as noted by both parties, as the ABPA has essentially conceded the
issue of infringement and does not bring an infringement claim. Thus, the Court will consider
the location of the relevant documents at issue.
Ford contends that the design documents are central to the issues here, and all of Fords
documents relating to design, development, marketing, advertising, research and sales of the
relevant products are maintained in the Eastern District of Michigan.
(Dkt. #37 at 8).
Specifically, Ford states that to establish the design for each of the F-150 parts, a team of at least
five Ford designers worked for two years to craft the precise shape, contour, angles, and
dimensions of each individual part. Id. at Ex.1 7. The process includes hand sketches,
computer aided drafting, computer modeling, clay modeling, and prototype parts. Id. at 8.
Further, the marketing and advertising decisions and market research was conducted by
employees in Dearborn, Michigan. Id. at 13. Also in Michigan are employees that work on
replacement parts and the patent prosecution of these patents, along with their accompanying
documents. Id.
There are no sources of proof in the Eastern District of Texas. The ABPA asserts that the
relevant tangible things are located in the Northern District of Texas, at New World in Irving,
Texas (Dkt. #41 at 3). These items include the accused automotive repair parts and certain
performance parts that may be relevant to the issue of functionality. Id. The ABPA also argues
that most of the relevant documents in this case come from New World, and include letters that
establish a justiciable controversy, documents regarding accused products, and documents
evidencing a rise in the prices of parts related to Fords design patents. Id. at 4.
The Court agrees with Ford that the bulk of the relevant evidence regarding the creation
of the design and the patents is in Michigan. This non-electronic evidence of models and
physical products are material evidence in Fords defense of the ABPAs assertion of
functionality, which is based on the designs created in Michigan. Further, there are absolutely no
documents or other physical evidence located in the Eastern District of Texas. This factor favors
transfer.
2. The availability of compulsory process to secure the attendance of witnesses
The second private interest factor is the availability of compulsory process to secure the
attendance of witnesses. Volkswagen I, 371 F.3d at 203. A court cannot compel nonparty
witnesses to travel more than 100 miles, unless it is within the same state and will not cause the
witnesses to incur substantial travel expenses. FED. R. CIV. P. 45(c)(3)(A)(ii), 45(c)(3)(B)(iii).
Both parties allege a substantial number of nonparty witnesses and each party claims that its
favored venue has subpoena power over a greater number of these witnesses.
10
Ford argues that its employees, as well as the employees of Ford Motor Company (which
is not a party to this suit), are within the subpoena power of the Eastern District of Michigan,
including the Ford employees and former employees that participated in the design and
marketing of the F-150 parts, as well as the prosecuting attorneys (Dkt. #37 at 10). Ford
specifically lists five party witnesses, and three nonparty witnesses within the subpoena power of
the Eastern District of Michigan. The ABPA lists primarily nonparty witnesses from New
World, which is technically not a party, but is integrally involved in this litigation. The ABPA
lists five nonparty witnesses located in the Eastern District of Texas, and eleven other nonparty
witnesses within the subpoena power of this Court. A transfer of venue analysis does not require
that parties show with any degree of specificity the information of a potential witness, but rather
only an allegation that the witness has relevant or important information. Genentech, 566 F.3d at
1343-44. Both parties have identified several witnesses with potentially relevant information
within the subpoena power of their chosen venue, and it appears that slightly more are within the
subpoena power of this Court. Thus, this factor weighs slightly against transfer.
3. The cost of attendance for willing witnesses
The third private interest factor is the cost of attendance for willing witnesses.
Volkswagen I, 371 F.3d at 203. In Volkswagen II, the Fifth Circuit noted that [a]dditional
distance means additional travel time; additional travel time increases the probability for meal
and lodging expenses; and additional travel time with overnight stays increases the time in which
these fact witnesses must be away from their regular employment. Volkswagen II, 545 F.3d at
317. The Fifth Circuit established the 100-mile rule to determine the convenience of the
transferee district to the witnesses and parties. When the distance between an existing venue for
trial of a matter and a proposed venue under 1404(a) is more than 100 miles, the factor of the
11
convenience to witnesses increases in direct relationship to the additional distance to be

traveled. Volkswagen I, 371 F.3d at 204-05. The 100-mile rule applies because the Eastern
District of Michigan is approximately 1,300 miles from Sherman, Texas.
See id.
When
inconvenience would exist in either potential venue, merely shifting inconvenience from one
partys witnesses to the other is insufficient to affect a transfer of venue analysis. In re Google
Inc., 412 F. Appx 295, 296 (Fed. Cir. 2011).
Ford argues that its willing witnesses would incur substantial expense from traveling and
would disrupt Fords ordinary business, which is a concern not shared by the ABPA. The ABPA
argues that it has more nonparty witnesses that would be affected by the expense incurred from
traveling than Ford. The ABPA asserts that because the nonparty portion of this factor strongly
weighs against transfer and the party portion is neutral, this factor weighs against transfer.
For purposes of this venue analysis, the Court will assume that the witnesses employed
by Ford and Ford Motor Company are willing witnesses, as are the employees of New World
and other members of the ABPA who are participants in this litigation. Each party argues that its
witnesses would be greatly inconvenienced by the other partys chosen venue. However, Ford
does argue, and this Court agrees, that requiring its witnesses to travel a great distance would
disrupt its business. The ABPA does not share this concern, as it is an association composed of
members, including New World, and it does not make, manufacture, or sell any products. This
factor weighs only slightly in favor of transfer.
4. All other practical problems that make trial easy, expeditious, and inexpensive
Ford contends that because this case is in its early stages, no practicable problems exist
that would deter this Court from transferring this litigation. The ABPA contends that Ford
delayed in filing its motion to transfer, and as a result this Court has already considered the
12
issues of associational standing and motions to quash depositions, and judicial economy will
have been wasted by a transfer. The Court disagrees. While this Court has already considered
the issues of associational standing, that issue is still open to be reconsidered by further briefing
and could easily be handled by the Eastern District of Michigan at a later stage of litigation.
Further, discovery has commenced in this case, but could easily be continued in a different
forum. No claim construction order has been entered in the present case, and the parties agree
that no claim construction is necessary or that a claim construction order in this case can be
limited to the claim language and the drawings in the patents-in-suit. The parties further agree
that many of the remaining issues are properly resolved at summary judgment, which has not yet
occurred in this case. The Court finds that there has been no improper delay on the part of Ford
or the ABPA, and that there are no practical problems that make trial easy, expeditious, and
inexpensive in either forum. This factor is neutral.
CONCLUSION
Public interest factor 2 the local interest in having the case tried in Michigan weighs
in favor of transfer, while the remaining public interest factors are neutral. Private interest factor
1 the ease of access to sources of proof - weighs in favor of transfer, and factor 3 the cost of
attendance for willing witnesses weighs slightly in favor of transfer. Private interest factor 2
the availability of compulsory process weighs against transfer, and the remaining factor is
neutral.
Ford has met its burden to demonstrate that the Eastern District of Michigan is clearly
more convenient than the current forum for this litigation. The Eastern District of Texas has
little connection with the present litigation, aside from a few potential customers who may or
may not reside here, and whose testimony may or may not be relevant to the present case. On
13
the other hand, the Eastern District of Michigan has a clear connection to the litigation as the
principal place of business of Ford, the location where most of Fords witnesses work and reside,
the location of the majority of the documents relevant to this litigation, and the location where a
large local interest in the outcome of this litigation is based. Transfer of this case to the Eastern
District of Michigan will present no practical or case management problems, as this case is in its
early stages.
Based on the foregoing, the Court finds that Defendant Ford Global Technologies, LLCs
Motion to Transfer Venue to the Eastern District of Michigan (Dkt. #37) is hereby GRANTED.
The Clerk is directed to transfer this case to the United States District Court for the Eastern
District of Michigan.
SIGNED this 7th day of January, 2015.
___________________________________
AMOS L. MAZZANT
14
EXHIBIT 5
2:15-cv-10137-LJM-MJH Doc # 21 Filed 07/06/15 Pg 1 of 3
Pg ID 392

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ASSOCIATION,
Plaintiff,
Case No. 15-cv-10137

Honorable Laurie J. Michelson
v.
Defendant.
ORDER DENYING MOTION TO DECLINE JURISDICTION [17]
This patent case has been transferred to this Court from the Eastern District of Texas.
Currently pending before the Court is a motion by Defendant Ford Global Technologies, LLC to
modify the protective order in this case. (Dkt. 9.) The hearing on the motion was scheduled for
today, July 6, 2015. In the very first paragraph of Plaintiff Automotive Body Parts Associations
response to that motion, ABPA says: ABPA believes the transfer of this case was premature and
is void and ABPA does not want to waive that position. Since the case transfer is void and this
Court lacks jurisdiction over the case, this Court also lacks jurisdiction to modify the Stipulated
Protective Order (SPO). (Dkt. 14 1.) ABPA has expanded on this position by filing a motion
requesting that this Court decline jurisdiction because the case transfer from the Eastern District
of Texas (EDTX) to the Eastern District of Michigan (EDMI) was in violation of EDTX Local
Rule CV-83(b) and therefore premature and void. (Dkt. 17 1.) So, at the hearing, the Court
found it necessary to resolve the threshold issue of whether the transfer was premature.
As articulated on the record at the hearing, this Court has jurisdiction over this case
because (1) the case file has been transferred to this Court and Judge Amos L. Mazzant has
Pg ID 393
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 Mazzants
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. ABPAs motion to
decline jurisdiction (Dkt. 17) is therefore DENIED.
ABPA is granted leave to file, within 14 days, a motion to retransfer or writ of
mandamus. If ABPA seeks a writ of mandamus, this Court will likely stay this case pending a
ruling by the appellate court. The hearing on the motion to modify the protective order is
adjourned and will be rescheduled by separate order.
SO ORDERED.
s/Laurie J. Michelson
LAURIE J. MICHELSON
Dated: July 6, 2015
The undersigned certifies that a copy of the foregoing document was served on the attorneys
and/or parties of record by electronic means or U.S. Mail on July 6, 2015.
s/Jane Johnson
Case Manager to
Pg ID 394
EXHIBIT 6
Pg ID 479

SOUTHERN DIVISION
ASSOCIATION,
Plaintiff,
Case No. 2:15-cv-10137

Magistrate Judge Michael J. Hluchaniuk
v.
Defendant.
OPINION AND ORDER DENYING PLAINTIFFS MOTION TO RETRANSFER [23]
This patent case was filed in November 2013. Now approaching two years later, this case
has not reached the merits as Automotive Body Parts Association continues to dispute which
court should hear this case: this one or the federal district court in Texas where the case was
filed.
About two months ago, ABPA filed a motion for this Court to decline jurisdiction over
this case. (Dkt. 17.) ABPAs primary argument was that the clerks office for the United States
District Court for the Eastern District of Texas transferred the case to this judicial district too
soon. To be more specific, only a week after United States District Judge Amos L. Mazzants
January 7, 2015 order direct[ing] [the clerk] to transfer this case to the United States District
Court for the Eastern District of Michigan, the clerks office in Texas sent the case here. But a
local rule in the Eastern District of Texas provides, [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[,] . . . the clerk shall transmit the case file to the directed court. E.D.
Tex. LR CV-83(b) (emphasis added).
Pg ID 480
Less than a month ago, the Court held a hearing on a related motion and, for reasons
provided at great length on the record, denied ABPAs motion asking this Court to decline
jurisdiction. (See generally, Dkt. 22, July 6, 2015 Hrg Tr.) A written order summarizing this
Courts oral ruling followed:
[T]his 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 Mazzants 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. 21, July 6, 2015 Order Denying Pl.s Mot. to Decline Jurisdiction at 12.) At the
conclusion of the written order, this Court granted ABPA leave to file, within 14 days, a motion
to retransfer or writ of mandamus. (Id. at 2.)
ABPA has elected to try the former route first. (Dkt. 23, Pl.s Mot. to Retransfer.) But its
motion to retransfer is not directed to the reasoning of Judge Mazzants January 7, 2015 transfer
order. Nor does the motion focus on ABPAs assertion that it was improper for Judge Mazzant to
adopt his own report and recommendation to transfer this case. (Judge Mazzant was the
magistrate judge assigned this case prior to his elevation to a district judge.) Instead, ABPAs
motion essentially asks this Court to reconsider its July 6, 2015 ruling.
In particular, ABPA says this Court twice erred. As to the first alternative ruling (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-ofthe-case doctrine justifies deferring to that finding), ABPA says that this Court erred because
(1) Judge Mazzant lost jurisdiction once the case was transferred here (i.e., the law says that
Pg ID 481
jurisdiction follows the file) and (2) no deference is owed to Judge Mazzants ruling that this
case was not transferred prematurely as that determination was clearly erroneous. (Pl.s Mot. to
Retransfer 6.) As to the second alternative ruling (this Court can sua sponte amend Judge
Mazzants 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),
APBA argues that this Court erred because a Rule 60(a) amendment of an order is improper
where it affects the substantive rights of the parties. (Id. at 7.)
The Court does not appreciate ABPA asking for reconsideration under the guise of a
motion for retransfer. In granting ABPA leave to file a motion to retransfer, the Court expected
that ABPA would get to the merits of Judge Mazzants January 7, 2015 transfer order, in
particular, Judge Mazzants assessment of the eight public and private interest factors informing
his decision to transfer the case here.
Additionally, upon consideration of ABPAs motion to retransfer and the transcript of the
July 6, 2015 hearing, the Court is convinced that its reasoning as stated withstands ABPAs
challenges. Cf. E.D. Mich. LR 7.1(h)(3) (Generally, and without restricting the Courts
discretion, the Court will not grant motions for rehearing or reconsideration that merely present
the same issues ruled upon by the Court, either expressly or by reasonable implication. The
movant must not only demonstrate a palpable defect by which the Court and the parties and other
persons entitled to be heard on the motion have been misled but also show that correcting the
defect will result in a different disposition of the case.). The Court thus does not find it
productive to restate its July 6, 2015 ruling.
But the Court does take this opportunity to point out that ABPAs attack on this Courts
second alternative ruling is not only unsupported by law, but that the Court already explained to
Pg ID 482
ABPA why this is so. To be clear, ABPAs position is not that a transferor court cannot amend a
transfer order under Federal Rule of Civil Procedure 60(a) to reflect the intent of the transferee
court at the time that the transferee court issued its transfer order. (See Pl.s Mot. to Retransfer at
79.) Instead, ABPA argues that this Court cannot amend Judge Mazzants 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. (Pl.s Mot. to Retransfer 7; see also id. at 7 ([A]n
amendment cannot be made under Rule 60(a) because it affects the substantive rights of
ABPA.) This Court anticipated and addressed this very argument when it ruled on July 6, 2015.
In particular, this Court explained:
Although it has been said that, []if an error affects the substantive rights of the
parties, it must be corrected under the provisions of Rule 60(b),[ Olle v. Henry &
Wright Corp., 910 F.2d 357, 363 (6th Cir. 1990),] this statement should not be
interpreted strictly literally.
Consider this example[:] at oral argument on a motion to transfer, the district
judge explains how every relevant consideration strongly favors transfer to the
Western District of Michigan, but then when the judge goes to enter the
corresponding order, he writes, quote, the clerk is directed to immediately transfer
this case to the United States District Court for the Eastern District of Michigan,
end quote, inadvertently substituting Easter[n] for Western. And so the same day
as the order is entered, the clerk transfer[s] the case to Western District. This
would be a clerical mistake within [Rule] 60(a)s plain language, even if a
correction of the order to reflect the judges manifest intent at oral argument
would substantially affect how the case would be litigated and thus, the
substantive rights of the parties.
More importantly, the Fifth Circuit, which the Sixth Circuit relied upon in Olle,
has recently clarified this issue. In Rivera [v.] PNS Stores, Inc., the Fifth Circuit
acknowledged the case law indicating that, quote, a judgment that affects the
substantive rights of the parties is beyond the scope of Rule 60(a), end quote, but
then explained, quote,
the relevant inquiry under Rule 60(a) is not whether making the
correction ha[s] any effect on the parties rights and obligations
under the judgment. Most of the time it will. Rather, the question is
whether granting the motion would require the district court either
to adjudicate an issue it has not previously reached or to make a
4
Pg ID 483
substantive modification to a prior adjudication. When the record

makes it clear that an issue was actually litigated and decided, but
was incorrectly recorded in or inadvertently omitted from the
judgment, the district court can correct the judgment under Rule
60(a), even where doing so materially changes the parties
positions and leaves one party to the judgment in a less
advantageous position.
Thats 647 F.3d 188 at 198 to 200.
(Dkt. 22, July 6, 2015 Hrg Tr. at 2829 (some paragraphing altered, emphasis added)); see also
Olle v. Henry & Wright Corp., 910 F.2d 357, 363 (6th Cir. 1990) ([T]he Fifth Circuit held that
if an error affects the substantive rights of the parties, it must be corrected under the provisions
of Rule 60(b). (emphasis added)); Rivera v. PNS Stores, Inc., 647 F.3d 188, 198200 (5th Cir.
2011) (The relevant inquiry under Rule 60(a) is not whether making the correction will have
any effect on the parties rights and obligations under the judgment. Most of the time, it will. . . .
Whether a mistake is correctable under Rule 60(a) turns on whether the judgment reflects the
actual intention of the court, not the shared understanding of the parties. . . . That the parties
accurately comprehended the literal terms of the judgment does not establish that the judgment
accurately conveyed the results of the courts adjudication.). ABPAs motion to retransfer fails
to adequately address this Courts July 6, 2015 explanation, and in particular, Rivera.
ABPA does cite Keeley v. Grider, 590 F. Appx 557 (6th Cir. 2014), in support of its
claim that a Rule 60(a) amendment is not available where the amendment affects the substantive
rights of the parties. (See Pl.s Mot. to Retransfer at 8.) But, in fact, the Court cited Rivera and
Olle together for this rule of law: Rule 60(a) cannot be used to alter the substantive rights of
the parties in a manner different from what was intended when the judgment was entered.
Keeley, 590 F. Appx at 559 (emphasis added).
Pg ID 484
As this Court explained on July 6, 2015, Judge Mazzants April 2, 2015 order, where he
explicitly stated that his January 2015 transfer order directed the clerks office to transfer the
case here immediately, is the best evidence of his intent when he entered his transfer order.
The Court disagrees with ABPA that because Judge Mazzant issued two orders after his January
2015 transfer order (including one denying ABPAs motion to disqualify Judge Mazzant), his
April 2, 2015 statement is incredible. (See Pl.s Mot. to Retransfer at 9.) So Rule 60(a) is fully
applicable here, and this Court was correct to amend Judge Mazzants January 7, 2015 transfer
order to reflect his contemporaneous intent as explicitly manifested on April 2, 2015.
This Court has said enough on whether this case should be before it. The Court will not
entertain any further motions on the propriety of the case being transferred to the Eastern District
of Michigan. If ABPA continues to believe that this case should not be here, its recourse is in the
Federal Circuit Court of Appeals. ABPAs Motion to Retransfer (Dkt. 23) is DENIED.
SO ORDERED.
s/Laurie J. Michelson
LAURIE J. MICHELSON
Dated: August 17, 2015
The undersigned certifies that a copy of the foregoing document was served on the attorneys
and/or parties of record by electronic means or U.S. Mail on August 17, 2015.
s/Jane Johnson
Case Manager to
EXHIBIT 7
Pg ID 30
JURY,PATENT,PROTECTIVEORDER
U.S. District Court [LIVE]

Eastern District of TEXAS (Sherman)
CIVIL DOCKET FOR CASE #: 4:13cv00705ALM
Automotive Body Parts Association v. Ford Global Technologies, LLC
Assigned to: Judge Amos L. Mazzant, III
Cause: 15:1126 Patent Infringement
Date Filed: 11/25/2013

Jury Demand: Both
Nature of Suit: 830 Patent
Jurisdiction: Federal Question
Plaintiff
represented by Robert Glenn Oake , Jr.

Oake Law Office
825 Market Street
Suite 250
Allen, TX 75013
214/207/9066
Email: rgo@oake.com
ATTORNEY TO BE NOTICED
V.
Defendant
Ford Global Technologies, LLC
represented by Frank A Angileri

Brooks &Kushman PC Southfield
1000 Town Center
22nd Floor
Southfield, MI 48075
248/3584400
Fax: 12483583351
Email: fangileri@brookskushman.com
LEAD ATTORNEY
Amy C Leshan
1000 Town Center
22nd Floor
248/3584400
Fax: 248/3583351
Email: aleshan@brookskushman.com
Clyde Moody Siebman
Siebman Burg Phillips &Smith LLP
300 N Travis St
Sherman, TX 750900070
903/8700070
Fax: 9038700066
Email: clydesiebman@siebman.com
Pg ID 31
Linda D Mettes
1000 Town Center
22nd Floor
248/3584400
Fax: 248/3583351
Email: lmettes@brookskushman.com
Marc Lorelli
1000 Town Center
22nd Floor
248/3584400
Fax: 2483583351
Email: mlorelli@brookskushman.com
Movant
Peter Tsai
represented by Robert Glenn Oake , Jr.

(See above for address)
LEAD ATTORNEY
Date Filed
Docket Text
11/25/2013
COMPLAINT against Ford Global Technologies, LLC ( Filing fee $ 400 receipt number
05404418925.), filed by Automotive Body Parts Association. (Attachments: # 1 Civil Cover
Sheet)(Oake, Robert) (Entered: 11/25/2013)
11/25/2013
Case Assigned to Judge Richard A. Schell. (cm, ) Modified on 11/26/2013 (cm, ). (Entered:
11/26/2013)
11/25/2013
11/26/2013
SUMMONS Issued as to Ford Global Technologies, LLC. (cm, ) (Entered: 11/26/2013)
12/11/2013
Return of Service Executed as to Ford Global Technologies, LLC on 12/2/2013, answer due:
12/23/2013. (cm, ) (Entered: 12/11/2013)
12/19/2013
Unopposed MOTION for Extension of Time to File Answer Or Plead Or Otherwise Respond to
Complaint by Ford Global Technologies, LLC. (Attachments: # 1 Text of Proposed
Order)(Siebman, Clyde) (Entered: 12/19/2013)
12/23/2013
Defendant's Unopposed First Application for Extension of Time to Answer Complaint is granted
pursuant to Local Rule CV12 for Ford Global Technologies, LLC to 2/21/2014. ( pad, )
(Entered: 12/23/2013)
In accordance with the provisions of 28 USC Section 636(c), you are hereby notified that a U.S.
Magistrate Judge of this district court is available to conduct any or all proceedings in this case
including a jury or nonjury trial and to order the entry of a final judgment. The form Consent to
Proceed Before Magistrate Judge is available on our website. All signed consent forms, excluding
pro se parties, should be filed electronically using the event Notice of Consent to Proceed Before
Magistrate Judge. (cm, ) (Entered: 11/26/2013)
Pg ID 32
02/20/2014
NOTICE of Attorney Appearance by Frank A Angileri on behalf of Ford Global Technologies,

LLC (Angileri, Frank) (Entered: 02/20/2014)
02/21/2014
MOTION to Dismiss For Lack of Standing Under Fed. R. Civ. P. 12(B)(1) and Brief in Support
by Ford Global Technologies, LLC. (Attachments: # 1 Exhibit 1 www autobpa
comassnabout html, # 2 Exhibit 2 www autobpa com pdf bylawsrevised, # 3 Exhibit 3
Ford I Order No 7, # 4 Exhibit 4 Ford I Order No 12, # 5 Exhibit 5 Ford I Final Ruling, # 6
Exhibit 6 Ford I Final Order, # 7 Exhibit 7 Ford I Order 11, # 8 Exhibit 8 LKQ Declaration,
# 9 Exhibit 9 ABPA Notice to Members of Suit, # 10 Text of Proposed Order)(Angileri, Frank)
(Entered: 02/21/2014)
03/03/2014
NOTICE of Attorney Appearance by Marc Lorelli on behalf of Ford Global Technologies, LLC
(Lorelli, Marc) (Entered: 03/03/2014)
03/03/2014
NOTICE of Attorney Appearance by Linda D Mettes on behalf of Ford Global Technologies,

LLC (Mettes, Linda) (Entered: 03/03/2014)
03/03/2014
10
NOTICE of Attorney Appearance by Amy C Leshan on behalf of Ford Global Technologies, LLC
(Leshan, Amy) (Entered: 03/03/2014)
03/05/2014
11
***FILED IN ERROR. TO BE REFILED. PLEASE IGNORE.***Unopposed MOTION to

Amend/Correct 7 MOTION to Dismiss For Lack of Standing Under Fed. R. Civ. P. 12(B)(1) and
Brief in Support by Ford Global Technologies, LLC. (Attachments: # 1 Errata 1 Ford's Motion
to Dismiss for Lack of Standing Under Fed. R. Civ. P. 12(B)(1) and Brief in Support)(Angileri,
Frank) (Additional attachment(s) added on 3/7/2014: # 2 Text of Proposed Order) (cm, ).
Modified on 3/10/2014 (cm, ). (Entered: 03/05/2014)
03/10/2014
***FILED IN ERROR. Document # 11, Unopposed MOTION to Amend and Request for
Extension of time, to be Refiled as two separate Motions. PLEASE IGNORE.***
(cm, ) (Entered: 03/10/2014)
03/10/2014
12
ORDER TO CONDUCT RULE 26(f) CONFERENCE, ( Rule 26 Meeting Report due by

4/18/2014., Scheduling Conference set for 4/23/2014 03:00 PM in Ctrm 105 (Plano) before Judge
Richard A. Schell.) Signed by Judge Richard A. Schell on 3/10/14. (cm, ) (Entered: 03/10/2014)
03/10/2014
13
Agreed MOTION for Extension of Time to File Response/Reply to Ford's Motion To Dismiss for
Lack of Standing Under FRCP 12(B)(1) by Automotive Body Parts Association, Ford Global
Technologies, LLC. (Attachments: # 1 Text of Proposed Order)(Siebman, Clyde) (Entered:
03/10/2014)
03/10/2014
14
Agreed MOTION To Correct Ford's Motion To Dismiss For Lack Of Standing Under FRCP
12(B)(1) by Automotive Body Parts Association, Ford Global Technologies, LLC. (Attachments:
# 1 Exhibit 1, # 2 Text of Proposed Order)(Siebman, Clyde) (Entered: 03/10/2014)
03/20/2014
15
RESPONSE to Motion re 7 MOTION to Dismiss For Lack of Standing Under Fed. R. Civ. P.
12(B)(1) and Brief in Support filed by Automotive Body Parts Association. (Attachments: # 1
Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Text of Proposed Order)(Oake, Robert)
(Entered: 03/20/2014)
03/28/2014
16
Unopposed MOTION for Extension of Time to File Reply to Motion To Dismiss For Lack Of
Standing Under Fed. R. Civ. P. 12(b)(1) by Ford Global Technologies, LLC. (Attachments: # 1
Text of Proposed Order)(Siebman, Clyde) (Entered: 03/28/2014)
04/07/2014
17
REPLY to Response to Motion re 7 MOTION to Dismiss For Lack of Standing Under Fed. R.
Civ. P. 12(B)(1) and Brief in Support filed by Ford Global Technologies, LLC. (Attachments: # 1
Exhibit 1 122012 Email to Ford, # 2 Exhibit 2 111912 Letter to Ford, # 3 Exhibit 3
Pg ID 33
61813 Letter to Ford, # 4 Exhibit 4 Press Release re Congressional request for patent
legislation, # 5 Exhibit 5 House of Representatives Bill H.R. 5638, # 6 Exhibit 6 Senate Bill
S. 780)(Mettes, Linda) (Entered: 04/07/2014)
04/16/2014
18
Unopposed MOTION for Extension of Time to File SurReply by Automotive Body Parts
Association. (Attachments: # 1 Text of Proposed Order)(Oake, Robert) (Entered: 04/16/2014)
04/18/2014
19
REPORT of Rule 26(f) Planning Meeting. (Attachments: # 1 Text of Proposed Order)(Oake,

Robert) (Entered: 04/18/2014)
04/22/2014
20
SURREPLY to Reply to Response to Motion re 7 MOTION to Dismiss For Lack of Standing

Under Fed. R. Civ. P. 12(B)(1) and Brief in Support filed by Automotive Body Parts Association.
(Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit
61, # 7 Exhibit 62, # 8 Exhibit 63, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit
10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18
Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18)(Oake, Robert) (Entered: 04/22/2014)
04/23/2014
21
Minute Entry for proceedings held before Judge Richard A. Schell: Scheduling Conference held
on 4/23/2014. (Court Reporter Jerry Kelley.) (bss, ) (Entered: 04/23/2014)
04/23/2014
22
ORDER OF RECUSAL. Judge Richard A. Schell recused. Case reassigned to Judge Ron Clark
and Magistrate Judge Amos L. Mazzant for all further proceedings. Signed by Judge Richard A.
Schell on 4/23/14. (cm, ) (Entered: 04/23/2014)
04/24/2014
23
ORDER granting 18 Motion for Extension of Time to File. Signed by Magistrate Judge Amos L.
Mazzant on 4/24/14. (cm, ) (Entered: 04/24/2014)
04/24/2014
24
ORDER granting 16 Motion for Extension of Time to File. Signed by Magistrate Judge Amos L.
04/24/2014
25
ORDER granting 13 Motion for Extension of Time to File Response/Reply re 7 MOTION to

Dismiss For Lack of Standing Under Fed. R. Civ. P. 12(B)(1) and Brief in Support Responses due
by 3/20/2014. Signed by Magistrate Judge Amos L. Mazzant on 4/24/14. (cm, ) (Entered:
04/24/2014)
04/24/2014
26
ORDER granting 14 Agreed Motion to Correct Fords Motion toDismiss for Lack of Standing.
Signed by Magistrate Judge Amos L. Mazzant on 4/24/14. (cm, ) (Entered: 04/24/2014)
04/28/2014
27
SCHEDULING ORDER: Final Pretrial Conference set for 9/10/2015 09:00 AM in Video Conf
Rm (Sherman) before Judge Ron Clark. Amended Pleadings due by 7/23/2014. Discovery due by
1/21/2015. Expert Witness List due by 12/31/2014 for parties with the burden of proof and due by
1/14/2015 for parties who do not bear the burden of proof. Joinder of Parties due by 5/28/2014.
Jury instructions due by 8/27/2015 Jury Selection set for 9/14/2015 09:00 AM in Ctrm A01
(Sherman Annex) before Judge Ron Clark. Jury Trial set for 9/24/2015 09:00 AM in Ctrm A01
(Sherman Annex) before Judge Ron Clark. Motions due by 1/28/2015.Motions in limine due by
8/20/2015. Responses to motions in limine due by 8/27/2015. Signed by Magistrate Judge Amos
L. Mazzant on 4/28/2014. (pad, ) (Entered: 04/28/2014)
04/28/2014
Set Hearings: Claim Construction Hearing set for 10/20/2014 09:00 AM in Ctrm A01 (Sherman
Annex) before Magistrate Judge Amos L. Mazzant. (pad, ) (Entered: 04/28/2014)
06/10/2014
28
Joint MOTION for Protective Order by Automotive Body Parts Association. (Attachments: # 1
Text of Proposed Order)(Oake, Robert) (Entered: 06/10/2014)
06/10/2014
29
Joint MOTION for Discovery Order regarding Electronically Stored Information by Automotive
Body Parts Association. (Attachments: # 1 Text of Proposed Order)(Oake, Robert) (Entered:
06/10/2014)
Pg ID 34
06/11/2014
30
PROTECTIVE ORDER. Signed by Magistrate Judge Amos L. Mazzant on 6/11/2014. (pad, )

(Entered: 06/11/2014)
06/11/2014
31
ORDER granting 29 Motion for Discovery Order. Signed by Magistrate Judge Amos L. Mazzant
on 6/11/2014. (pad, ) (Entered: 06/11/2014)
07/22/2014
32
Opposed MOTION to Quash Deposition and Document Subpoenas of Peter Tsai and Grace Tsai
by Peter Tsai. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit
5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12
Exhibit 12, # 13 Exhibit 13)(Oake, Robert) Modified on 7/23/2014 (cm, ). (Additional
attachment(s) added on 7/24/2014: # 14 Text of Proposed Order) (cm, ). (Entered: 07/22/2014)
07/22/2014
33
***TWO PART DOCUMENT. SEE D.E. #32*** MOTION for Protective Order for Peter Tsai
and Grace Tsai by Peter Tsai. (cm, ) (cm, ). (Entered: 07/23/2014)
08/04/2014
34
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 7

MOTION to Dismiss For Lack of Standing Under Fed. R. Civ. P. 12(B)(1) and Brief in Support
filed by Ford Global Technologies, LLC. Within fourteen (14) days after service of the magistrate
judge's report, any party must serve and file specific written objections to the findings and
recommendations of the magistrate judge. 28 U.S.C. 636(b)(1)(C). Signed by Magistrate Judge
Amos L. Mazzant on 8/4/14. (cm, ) (Entered: 08/04/2014)
08/08/2014
35
SEALED RESPONSE to Motion re 32 Opposed MOTION to Quash Deposition and Document

Subpoenas of Peter Tsai and Grace Tsai and Motion for Protection for Peter Tsai and Grace
Tsai, 33 MOTION for Protective Order filed by Ford Global Technologies, LLC. (Attachments: #
1 Exhibit 1 New World stipulation versions, # 2 Exhibit 2 Emails conferring on motion, # 3
Exhibit 3 NoticeService of New World Subpoenas, # 4 Exhibit 4 Emails scheduling
depositions for New World, # 5 Exhibit 5 Tsai, Joseph 61914 transcript, # 6 Exhibit 6
Email re New World deficiencies, # 7 Exhibit 7 ABPA Mandatory disclosures, # 8 Exhibit 8
June/November 2013 letters, # 9 Exhibit 9 71114 Letter to oake re document production, #
10 Exhibit 10 Sep 2011 and May 2013 letters, # 11 Exhibit 11 Tsai email exchange before
first FGTL letter, # 12 Exhibit 12 Peter Tsai recommendation as nkowledgable with Taiwan
suppliers, # 13 Exhibit 13 ITC Order Exhaustion, # 14 Exhibit 14 ITC Order re Functionality,
# 15 Exhibit 15 Email summarizing meet and confer, # 16 Exhibit 16 Emails working on New
World discovery issues, # 17 Exhibit 17 TX SOS Auto Lighthouse Plus LLC Agent, # 18
Exhibit 18 ABPA Consideration of Action against LKQ, # 19 Exhibit 19 Decline of Board
Position)(Mettes, Linda) (Additional attachment(s) added on 8/11/2014: # 20 Text of Proposed
Order) (cm, ). (Entered: 08/08/2014)
08/11/2014
36
Claim Construction and Prehearing Statement by Automotive Body Parts Association. (Oake,
Robert) (Entered: 08/11/2014)
08/13/2014
37
SEALED MOTION To Transfer Venue To The Eastern District of Michigan by Ford Global
Technologies, LLC. (Attachments: # 1 Exhibit 1 Declaration of D. Porcari, # 2 Exhibit 2
ABPA Description Statement, # 3 Exhibit 3 LKQ Corp, Form 10K, # 4 Exhibit 4 ABPA
Headquarter Statement, # 5 Exhibit 5 Excerpt, J. Tsai Deposition Transcript, # 6 Exhibit 6
ABPA Initial Mandatory Disclosures, # 7 Exhibit 7 New World Correspondence, # 8 Exhibit 8
Federal Court Tables, # 9 Text of Proposed Order)(Mettes, Linda) (Entered: 08/13/2014)
08/18/2014
38
REPLY to Response to Motion re 32 Opposed MOTION to Quash Deposition and Document

Subpoenas of Peter Tsai and Grace Tsai and Motion for Protection for Peter Tsai and Grace Tsai
filed by Peter Tsai. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Oake, Robert) (Entered:
08/18/2014)
08/18/2014
39
OBJECTIONS TO THE REPORT AND RECOMMENDATION (Attachments: # 1 Exhibit 1

New World June and Novmeber 2013 letters, # 2 Exhibit 2 May and November 2013 letters, # 3
Exhibit 3 Declaration of LKQ (Fortner), # 4 Exhibit 4 ABPA documents, # 5 Exhibit 5 ITC
Pg ID 35
Order, # 6 Exhibit 6 NoticeService of New World Subpoenas, # 7 Exhibit 7 Excerpt J. Tsai

deposition transcript, # 8 Exhibit 8 Document re ABPA Annual Meeting 2014)filed by Ford
Global Technologies, LLC. (Lorelli, Marc) Modified on 8/19/2014 (cm, ). (Entered: 08/18/2014)
08/21/2014
40
SEALED REPLY to Response to Motion re 32 Opposed MOTION to Quash Deposition and

Document Subpoenas of Peter Tsai and Grace Tsai and Motion for Protection for Peter Tsai and
Grace Tsai filed by Ford Global Technologies, LLC. (Mettes, Linda) (Entered: 08/21/2014)
09/02/2014
41
SEALED RESPONSE to Motion re 37 SEALED MOTION To Transfer Venue To The Eastern

District of Michigan filed by Automotive Body Parts Association. (Attachments: # 1 Exhibit 11,
# 2 Exhibit 12, # 3 Exhibit 13, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8
Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8)(Oake, Robert) (Additional attachment(s) added on
9/8/2014: # 11 Text of Proposed Order) (cm, ). (Entered: 09/02/2014)
09/04/2014
42
SEALED RESPONSE by Automotive Body Parts Association to 39 Sealed Document,, filed by

Automotive Body Parts Association. (Attachments: # 1 Exhibit 1, # 2 Exhibit 21, # 3 Exhibit
22)(Oake, Robert) (Entered: 09/04/2014)
09/12/2014
43
REPLY to Response to Motion re 37 SEALED MOTION To Transfer Venue To The Eastern

District of Michigan filed by Ford Global Technologies, LLC. (Attachments: # 1 Exhibit 1
Orders, # 2 Exhibit 2 Correspondence)(Mettes, Linda) (Entered: 09/12/2014)
09/15/2014
44
SEALED RESPONSE by Ford Global Technologies, LLC to 34 Report and Recommendations,,

39 Sealed Document,, filed by Ford Global Technologies, LLC. (Attachments: # 1 Exhibit 9
Excerpts of Tsai Transcript, # 2 Exhibit 10 Secretary of State Records of Ownership, # 3
Exhibit 11 ABPA Membership List)(Lorelli, Marc) (Entered: 09/15/2014)
09/16/2014
45
ORDER denying 32 MOTION TO QUASH DEPOSITION AND DOCUMENT SUBPOENAS

OF PETER TSAI AND GRACE TSAI. The parties are instructed to work together in good faith
to schedule the depositions of Peter and Grace Tsai, with the deposition of Grace Tsai to occur
after the deposition of Peter Tsai. Signed by Magistrate Judge Amos L. Mazzant on 9/16/14. (cm,
) (Entered: 09/16/2014)
09/17/2014
46
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 34 Report and

Recommendations, DENYING 7 Motion to Dismiss, filed by Ford Global Technologies, LLC. (
Amended Complaint due by 10/3/2014.) Signed by Judge Ron Clark on 9/17/14. (cm, ) Modified
on 9/18/2014 (cm, ). (Entered: 09/18/2014)
09/22/2014
47
SURREPLY to Reply to Response to Motion re 37 SEALED MOTION To Transfer Venue To

The Eastern District of Michigan filed by Automotive Body Parts Association. (Oake, Robert)
(Entered: 09/22/2014)
10/03/2014
48
AMENDED COMPLAINT against Ford Global Technologies, LLC, filed by Automotive Body
Parts Association.(Oake, Robert) (Entered: 10/03/2014)
10/15/2014
49
ORDER CANCELLING CLAIM CONSTRUCTION HEARING. Signed by Magistrate Judge

Amos L. Mazzant on 10/15/14. (cm, ) (Entered: 10/15/2014)
10/20/2014
50
ANSWER to 48 Amended Complaint for Declaratory Judgment, Affirmative Defenses, and Jury
Demand by Ford Global Technologies, LLC.(Mettes, Linda) (Entered: 10/20/2014)
11/07/2014
51
REPORT AND RECOMMENDATIONS re 37 SEALED MOTION To Transfer Venue To The

Eastern District of Michigan filed by Ford Global Technologies, LLC.. Within fourteen (14) days
after service of the magistrate judge's report, any party must serve and file specific written
objections to the findings and recommendations of the magistrate judge. 28 U.S.C.
636(b)(1)(C). Signed by Magistrate Judge Amos L. Mazzant on 11/7/14. (cm, ) (Entered:
11/07/2014)
Pg ID 36
11/24/2014
52
*Sealed* ABPA'S OBJECTIONS TO THE REPORT AND RECOMMENDATION

6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit
12)(Oake, Robert) Modified on 11/25/2014 (cm, ). (Entered: 11/24/2014)
11/24/2014
53
Unopposed MOTION for Leave to File Excess Pages for Objections to Report and
Recommendation on Motion to Transfer Venue by Automotive Body Parts Association.
(Attachments: # 1 Text of Proposed Order)(Oake, Robert) (Entered: 11/24/2014)
11/25/2014
54
ORDER granting 53 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Amos L.
12/11/2014
55
SEALED RESPONSE TO AUTOMOTIVE BODY PARTS ASSOCIATIONS OBJECTIONS TO

REPORT AND RECOMMENDATION. (Attachments: # 1 Exhibit 1 Emails between counsel,
# 2 Exhibit 2 New World Sales, # 3 Exhibit 3 Supplier List, # 4 Exhibit 4 board
members)(Mettes, Linda) re: 52 *Sealed* ABPA'S OBJECTIONS TO THE REPORT AND
RECOMMENDATION Modified on 12/18/2014 (cm, ). (Entered: 12/11/2014)
12/22/2014
56
Unopposed MOTION for Leave to File Excess Pages by Automotive Body Parts Association.
(Attachments: # 1 Text of Proposed Order)(Oake, Robert) (Entered: 12/22/2014)
12/22/2014
57
REPLY TO FORD'S RESPONSE TO ABPA'S OBJECTIONS TO THE REPORT AND

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE ON FORD GLOBAL
TECHNOLOGIES' MOTION TO TRANSFER VENUE. (Attachments: # 1 Exhibit 1, # 2 Exhibit
2, # 3 Exhibit 3)(Oake, Robert) Modified on 12/23/2014 (cm, ). (Entered: 12/22/2014)
12/22/2014
58
Opposed SEALED MOTION to Supplement Evidence by Automotive Body Parts Association.

6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, #
13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Text of Proposed
Order)(Oake, Robert) (Entered: 12/22/2014)
01/02/2015
59
SEALED REPLY to Objections to Report and Recommendation re 37 SEALED MOTION To

Transfer Venue To The Eastern District of Michigan filed by Ford Global Technologies, LLC.
(Mettes, Linda) Modified on 1/5/2015 (pad, ). (Entered: 01/02/2015)
01/05/2015
60
ORDER REASSIGNING CASE. Case reassigned to Judge Amos L. Mazzant, III for all further
proceedings. Judge Ron Clark no longer assigned to case. Signed by Judge Ron Clark on 1/5/15.
(cm, ) (Entered: 01/07/2015)
01/05/2015
Magistrate Judge Amos L. (Mag) Mazzant no longer assigned to case. (cm, ) (Entered:
01/07/2015)
01/05/2015
Case Reassigned to Judge Amos L. Mazzant, III. (cm, ) (Entered: 01/07/2015)
01/07/2015
62
MEMORANDUM OPINION AND ORDER Granting re 37 SEALED MOTION To Transfer

Venue To The Eastern District of Michigan filed by Ford Global Technologies, LLC. The Clerk is
directed to transfer this case to the United States District Court for the Eastern District of
Michigan. Signed by Judge Amos L. Mazzant, III on 1/7/15. (cm, ) (Entered: 01/08/2015)
01/07/2015
63
ORDER Denying as moot 58 Sealed Motion. Signed by Judge Amos L. Mazzant, III on 1/7/15.
(cm, ) (Entered: 01/08/2015)
01/07/2015
64
ORDER granting 56 Motion for Leave to File Excess Pages. Signed by Judge Amos L. Mazzant,
III on 1/7/15. (cm, ) (Entered: 01/08/2015)
01/08/2015
61
SEALED RESPONSE to Motion re 58 Opposed SEALED MOTION to Supplement Evidence

filed by Ford Global Technologies, LLC. (Attachments: # 1 Exhibit 1 Excerpt ABPA's First
Pg ID 37
Supplemental Objections and Answers to Ford Global Technologies' Interrgatories

1028)(Mettes, Linda) (Entered: 01/08/2015)
EXHIBIT 8
2:15-cv-10137-LJM-MJH Doc # 17-4 Filed 06/24/15 Pg 1 of 2
EXHIBIT 3
Pg ID 307
2:15-cv-10137-LJM-MJH Doc # 17-4 Filed 06/24/15 Pg 2 of 2
Pg ID 308
EXHIBIT 9
Pg ID 254

ASSOCIATION,
Plaintiff,
v.
FORD GLOBAL TECHNOLOGIES,
LLC,
Defendant.
CIVIL ACTION NO.

2:15-CV-10137-LJM-MJH
Hon. Laurie Michelson
ABPA'S MOTION AND BRIEF REQUESTING THAT THE COURT

DECLINE JURISDICTION OF THIS CASE
AND DIRECT THE CLERK TO TRANSFER THE CASE FILE BACK
TO THE EASTERN DISTRICT OF TEXAS
Automotive Body Parts Association (ABPA) files this Motion requesting
that the Court decline jurisdiction of this case and direct the clerk to transfer the
case file back to the Eastern District of Texas, respectfully showing as follows:
1.
This Court lacks jurisdiction over this case because the case transfer from
the Eastern District of Texas (EDTX) to the Eastern District of Michigan (EDMI)
was in violation of EDTX Local Rule CV-83(b) and therefore premature and void.
2.
Since this Court will need to expend scarce judicial resources on this case,
ABPA is providing this Court with an opportunity to review the issue of its own
jurisdiction before resources are expended. It would be a waste of scarce judicial
resources if work was done on this case and then an appellate court found that this
Court lacked jurisdiction based on the case transfer being premature and void.

Pg ID 275
mistake was made in prematurely transferring the file and decline jurisdiction over
this case.
The conclusion that this case was prematurely transferred and that the
putative transfer is void ab initio also is supported by the EDTX Court asserting
jurisdiction over this case and issuing two orders since the putative transfer took
place on January 14, 2015. These were the Order vacating scheduling order
deadlines (Doc. 68) (Exhibit 5) and the Order Denying Motion to Disqualify Judge
(Doc. 92) (Exhibit 6). If the EDTX Court did not have jurisdiction over this case as
of January 14, 2015, then the Order Denying Motion to Disqualify Judge (Doc. 92)
would be void and the status of the Motion to Disqualify Judge (that argued Judge
Mazzant should not have ruled on the transfer order) would be uncertain.
E.
ABPA reasonably relied on the Local Rule and the lack of any
Temporal statement in the Transfer Order
ABPA reasonably relied heavily upon Local Rule CV-83(b) and the lack of
any temporal statement in the Transfer Order when making decisions concerning
the necessity of a motion for a stay prior to filing a motion for reconsideration. It
now would manifestly unjust for this Court to exercise jurisdiction of this case
under these circumstances.
On January 8, 2015, this Court's order transferring the case was entered.
(Doc. 62). On this same day (January 8, 2015), Robert G. Oake, Jr. (Oake),
14
Pg ID 276
counsel for ABPA sent an email to Linda Mettes (Mettes), counsel for FGTL in
relevant part as follows (Ex. 7):
Tomorrow I intend to file a motion to stay on the order transferring
venue so I can file a motion for reconsideration, and if that is
unsuccessful, a petition for writ of mandamus to the Federal Circuit.
I think it would disruptive to the case if the papers were transferred
and then the Federal Circuit granted my petition for writ of
mandamus.
The local rules require a meet and confer. I will call in the morning
for the certificate of conference, but I wanted to give you a heads up.
Then on January 9, 2015, Oake sent Mettes another email stating in relevant
part as follows (Ex. 8):
Attached is a case [Lands v. St. Louis Southwestern] (see highlights)
explaining the need for a stay for the district court to retain
jurisdiction to consider a motion for reconsideration.
Then on January 9, 2015, following a teleconference between the attorneys,
Oake sent Mettes another email in relevant part as follows (Ex. 9):
Attached is a case [Unwired Planet LLC v. Google Inc.] that includes
the concept of a partial stay.
So what I am proposing is a partial stay of the transfer so the courts
can consider motions for reconsideration and a potential motion to
vacate the order of transfer (at least with regard to the review of the
R&R).
Also on January 9, 2015, Oake sent an email to Mettes that stated in relevant
Upon further consideration, local rule CV-83 provides:

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Pg ID 277
(b) Transferred or Remanded Cases. Absent 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. Where a case has been remanded to state court, the
clerk shall mail: (1) a certified copy of the courts 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, the clerk shall delay mailing or
transferring the file until the court has ruled on the motion for
reconsideration.
So assuming I go the motion for reconsideration route, it does not
appear a motion to stay will be necessary.
On January 13, 2015, Mettes wrote Oake a letter stating that in her view "the
matter in the Eastern District of Texas is effectively stayed subject to any motions
or petitions relating to the transfer issue." (Ex. 11).
Then on January 13, 2015, Oake sent Mettes an email that stated in relevant
I just received your letter. What is your authority for the proposition
that the case is stayed?
Last week I sent you an email indicating that the Eastern District local
rules provide that the case cannot be transferred before 21 days
following the order, and then cannot be transferred if a motion for
reconsideration is pending.
Please let me know the basis for your statement that the case is stayed.
16
Pg ID 278
Then on January 13, 2015, Oake also sent an email to Mettes that stated in
For your convenience, here is the local rule in relevant part (emphasis
added):
"(b) Transferred or Remanded Cases. Absent 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.
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, the clerk shall delay mailing or transferring the file
until the court has ruled on the motion for reconsideration.
ABPA does intend to file a motion for reconsideration on the order to
transfer venue.
I intend to file the motion for extension of time on discovery today.
We previously agreed to February 20, 2015. Will you agree to an
extension to February 27th? If not, then I will file it with the
extension to the 20th, 2015 as we previously agreed.
Then on the same day (January 13, 2015) Mettes responded with an email
that stated in relevant part as follows (Ex. 13):
We do not agree, given his Transfer Order, that Judge Mazzant will
issue a new schedule or deal with discovery disputes, motions to
compel and the like. That is now the realm for the new judge to be
assigned in Michigan. In fact, you noted a significant amount of
discovery remains and we believe that any expert report would and
should not be due until such discovery is provided.
17
Pg ID 279
While you expressed disbelief that Judge Mazzant had authority to

issue the Transfer Order, the Transfer Order is now the law of the case
and it necessarily takes future deadlines in the EDTX off the table.
Last week, you asked for a stay of the case and we indicated that we
did not think that was necessary, pointing out specific cases that were
stayed even while transfer denials were under review. Now, you now
want to proceed with issues in the EDTX case despite the Transfer
Order and despite your intention to file a reconsideration on the
Transfer Order which will delay letting a Michigan Judge set a
schedule. Thus, out of abundance of caution given your (incorrect)
position, we will file a motion to stay the case pending transfer.
Can you agree either that such motion is not necessary or that you will
oppose such motion? Either Marc or I can be available to discuss.
Then on the same day (January 13, 2015) Oake responded with an email that
stated in relevant part as follows (Ex. 13):
I will give you a call in a moment to discuss this, but I wanted to
make my response a matter of record as well.
The case has not been transferred yet and ABPA will be filing a
motion for reconsideration on the transfer issue.
I did not ask for a stay of the case last week. I mentioned that I may
seek a stay of the transfer order only. I was very clear about that and I
am puzzled as to why you would say otherwise.
When I looked further into the local rules, it provides for a 21-day
period where the case is not transferred, so a stay of the transfer order
was not necessary. I also made that clear in follow up emails to you
last week.
I disagree that the transfer order suspends your decline for an expert
witness report due tomorrow.
18
Pg ID 280
Then on the same day (January 13, 2015) Mettes responded with an email
that stated in relevant part as follows (Ex. 13):
To be clear, our position remains that the Transfer Order inherently
suspended future deadlines and that a request for modification of the
Scheduling Order is inconsistent with the Transfer Order.
However, if deadlines are to continue in place despite the Transfer
Order and given the amount of discovery remaining, this is to confirm
that we alternatively came to an agreement that we could accept a 5
week extension for deadlines in the Scheduling Order falling between
the December 31, 2014 expert report due date until the January 28,
2015 deadline for summary judgment motions. This includes
agreement on the extension of the January 14 deadline for expert
reports.
As discussed, please draft a joint motion for filing tomorrow that
provides a placeholder for FGTL to express its position separately
from the ABPA on the suspension of deadlines in view of transfer
order during any review of the transfer order, with the alternative
agreement to the 5 week extension.
Then on January 14, 2015, Oake responded with an email that stated in
relevant part "[a]ttached is a proposed draft motion in Word format for your
review" and "[p]lease take a look and add your signature block as you want." (Ex.
8). In response to this email, Mettes sent an email that stated "[t]he draft motion
that you sent does not correctly set forth FGTLs position, especially given the
effect of the Transfer Order as set forth in our correspondence" and "[a]lso, given
the attached, the case was officially transferred today." (Ex. 13).
In response to the email from Mettes indicating the case had been
transferred, Oake sent an email to Mettes on January 14, 2015 stating (Ex. 13):

19
Pg ID 281
Thanks for your email.

With regard to your position, I copied the exact language out of your
email and invited you to say more. So I dont understand your
comment.
On the transfer, it appears to be in violation of the EDTX local rule
regarding when the case should be transferred.
But given the above, what do you want to do about filing a motion for
extension today?
Then on January 14, 2015, Mettes sent an email to Oake stating in relevant
Your motion to extend dates in the EDTX is mooted, even if it were
consistent with the transfer order in the first place.
With the transfer now effected, we assume the parties will be
discussing a new schedule with the new judge.
We believed that EDTX deadlines were inherently vacated by the
Transfer Order but the actual transfer to EDMI certainly confirms
that. We can discuss what makes sense if you like now that the case is
officially transferred and how you would like to proceed.
Then on January 14, 2015, Oake sent an email to Mettes stating in relevant
I understand your position is that the case is officially transferred and
that the motion to extend dates is mooted.
My position is that the transfer appears to be in violation of the EDTX
local rules and I am looking into that.
If you no longer desire to file a joint motion today, then I will not file
it. I only worked on it this morning and got it ready to file today at

20
Pg ID 282
your request because you have an expert witness deadline running

today.
Then finally on January 14, 2015, Oake sent an email to Mettes stating in
Wanted to give you a report on what I found out regarding the
transfer. The docket clerk at the EDTX spoke to her manager and said
the case was transferred prematurely and that I can file a motion for
reconsideration and it will be ruled upon by the Court and if
appropriate the case will be transferred back.
Please let me know if you have any questions on this.
In sum, it is clear from this email correspondence that ABPA and Oake
reasonably relied upon the Local Rule providing for a twenty-one day waiting
period prior to actual transfer and concluded that a stay of the transfer order was
not necessary due to the Local Rule. Given the reliance on the Local Rule by
ABPA's counsel, it now would be manifestly unjust for this Court not to honor the
EDTX Local Rule and accept jurisdiction over this case.6

6
In a Memorandum Opinion and Order (Doc. 93, p. 5) Judge Mazzant states:

Alternatively, Ford offered to stipulate to a stay of the proceedings in
response to the ABPAs expressed intention to challenge the Transfer
Order. (Dkt. #89 at 3 [sic, 2]). Had ABPA opted to timely file a
motion to stay the transfer or a motion for reconsideration, the transfer
of the jurisdiction to the Eastern District of Michigan would have at
minimum been delayed long enough to consider such a motion.
Instead, ABPA allowed the transfer of jurisdiction to occur before
filing any motion with this Court.
The sentence quoted by this Court regarding Ford's offer of a stay of the
proceedings was not supported by evidence and was placed in a FGTL Sur-Reply

21
Pg ID 286
procedure can be avoided if this Court will properly decline jurisdiction and send
the case file back to the EDTX.
Then ABPA can have its motions for
reconsideration and disqualification properly ruled upon and can file one petition
for writ of mandamus to the Federal Circuit if necessary.
V. CONCLUSION
In conclusion, ABPA respectfully requests that this Court decline
jurisdiction over this case due to a premature transfer in violation of EDTX Local
Rule CV-83(b) and direct the EDMI clerk to transfer this case back to the EDTX.
Dated: June 24, 2015
Robert G. Oake, Jr.
Oake Law Office
825 Market Street, Suite 250,
Allen, Texas 75013
(214) 207-9066
rgo@oake.com
Attorney for ABPA
25
From:
Sent:
To:
Subject:
Thursday, September 24, 2015 3:01 PM

appeal
Petition for Writ of Mandamus (fee) Transaction Submitted
Follow Up Flag:
Flag Status:
Follow up
Flagged
Categories:
New Appeal
Transaction submitted by Robert Glenn Oake on 09/24/2015 at 03:00 PM

Description: Petition for Writ of Mandamus (fee)
Payment Method: CreditCard
Fee Receipt Number: 13-21715-270
Fee Amount: $500.00

ABPA Pet. For Writ of Mandamus

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ABPA Pet. For Writ of Mandamus

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Docket No.

United States Court Of Appeals

On Petition for Writ of Mandamus to the

Attorney for Petitioner

The full name of every party represented by me is:

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

September 24, 2015

/s/ Robert G. Oake, Jr.

RELIEF SOUGHT .......................................................................................

ISSUE PRESENTED ...................................................................................

JURISDICTIONAL STATEMENT ............................................................

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

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

Automotive Body Parts Association ......................................

Ford Global Technologies, LLC ............................................

Procedural Posture of the Litigation ......................................

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

THE CASE FILE TRANSFER VIOLATED LOCAL RULE

The Local Rule and its History .............................................

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

DENIAL OF ABPA'S MOTION TO RETRANSFER

Denial of the Motion to Retransfer Constituted Clear Error

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

Judge Mazzant Lost Jurisdiction of the Case ...

Judge Mazzant's ruling that the transfer of the

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

THE REQUIREMENTS OF A PETITION FOR MANDAMUS

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

There are No Adequate Alternative Legal Channels through

The Grant of Mandamus is Appropriate under the

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

Association for Molecular Pathology v. USPTO,

Beck v. Ashley Distribution Servs., Ltd.,

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

Cheney v. U.S. Dist. Court,

Christianson v. Colt Indus. Operating Corp.,

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

In re Rmy Cointreau USA, Inc.,

Micron Technology v. Mosaid Technologies,

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

Miller v. Toyota Motor Corporation,

Moses v. Business Card Exp., Inc.,

Olle v. Henry & Wright Corp.,

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

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

Rivera v. PNS Stores, Inc.,

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

Sartin v. McNair Law Firm PA,

Sildack v. Corizon Health, Inc.,

Tanzman v. Midwest Express Airlines, Inc.,

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

Weeks Marine, Inc. v. Stokes,

Whitaker v. Associated Credit Servs., Inc.,

STATUTES AND RULES

28 U.S.C. 1295 ...........................................................................

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

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

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

EDTX Local Rule CV-83(b)

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

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

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

Shaun P. Martin, Dawson v. Marshall