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No. 

IN THE

Supreme Court of the United States 

AUTOMOTIVE BODY PARTS ASSOCIATION, PETITIONER

v. 

FORD GLOBAL TECHNOLOGIES, LLC 

PETITION FOR A WRIT OF CERTIORARI 

TO THE UNITED STATES COURT OF APPEALS 

FOR THE FEDERAL CIRCUIT 

PETITION FOR WRIT OF CERTIORARI 

ROBERT G. OAKE, JR. 

 Counsel of Record 

Oake Law Office 825 Market Street

Suite 250 Allen, Texas 75013 rgo@oake.com (214) 207-9066 

CURRY & TAYLOR  202-393-4141

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i 

QUESTION PRESENTED 

Whether a court order can be amended under 

Federal Rule of Civil Procedure 60(a) based solely on the issuing judge's subsequent statement of intent when there is no contemporaneous record evidence or other circumstance supporting the issuing judge's subsequent statement of intent and a party's reliance interests are adversely affected by the amendment. 

Petitioner 

no parent corporcompanies that h

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iii 

TABLE OF CONTENTS 

 Page 

QUESTION PRESENTED ................................................................ i 

RULE 29.6 ...................................................................................... ii 

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

OPINIONS BELOW......................................................................... 1 

JURISDICTION ............................................................................... 1 

RELEVANT PROVISIONS INVOLVED ......................................... 2 

STATEMENT .................................................................................. 3 

REASONS FOR GRANTING THE PETITION .............................. 10 

CONCLUSION ............................................................................... 18 

APPENDIX

Circuit Court Order ................................................................ 1a

District Court Order (8/17/2015) .......................................... 5aDistrict Court Order (7/6/2015) .......................................... 13a

District Court Order (4/2/2015) .......................................... 15a

District Court Order (1/7/2015) .......................................... 22a

Order Denying Rehearing ................................................... 39a

Declaration of Robert G. Oake ............................................ 41a

TA

CASES 

AMERICAN TRUCK

TRANSPORTATIEXECUTIVES A

ASSOCIATION FOR 

F.3D 1329, 1308 

ASSOCIATION FOR 

F. SUPP.2D 365 (

DAWSON V. MARSH

DURA-WOOD TREA

INC., 694 F.2D 1

FRISCO TRANSPOR

COMMERCE COMCOMPANY, 358 U

IN RE BESTWAY P

E.D. CAL. 1993) 

IN RE GALIARDI, 7

CURIAM) ...........

IN RE JEE, 799 F.2

IN RE TRANS UNIO

816 (7TH CIR., 20

LANDS V. ST. LOU

(E.D. TEX., 1986

MACK TRUCKS, IN

594 N. 16 (3D CIR

MENDEZ V. REPUB

CIR.2013) ..........

PFIZER INC. V. UP

2005) ..................

PRESIDENTIAL ES

BARRETT, 917 P

SARTIN V. MCNAI

CIR. 2014) .........

TECHSHELL, INC. 

692295, AT *3-4 (

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v 

U.S. V. JORDAN, 49 F.3D 152 (5TH CIR. 1995) ........................... 7 

STATUTES 

28 U.S.C. § 1254(1) ....................................................................... 2 28 U.S.C. § 636(b)(1)(C) ............................................................... 6 49 U.S.C. § 17(3) ......................................................................... 11 RULES 

Federal Rule of Civil Procedure 1 ....................................... 2, 17 Federal Rule of Civil Procedure 60 ........................................... 2 Federal Rule of Civil Procedure 60(a) ........................ 10, 13, 14 

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1

OPINIONS BELOW 

The Federal Circuit opinion and order denying 

the petition for writ of mandamus is unpublished and is reprinted at App. 1a-4a. The order denying the combined petition for panel rehearing and rehearing en banc is reprinted at App. 39a, 40a. 

The Eastern District of Michigan (EDMI) 

district court's opinion and order denying plaintiff's motion to retransfer is unpublished and is reprinted at 

App. 5a-12a. The EDMI district court's opinion and order denying motion to decline jurisdiction is unpublished and is reprinted at App. 13a, 14a. 

The Eastern District of Texas (EDTX) district 

court’s memorandum opinion and order denying Motion to Re-Transfer Case and/or Court File, Plaintiff’s Sealed Motion for Reconsideration of Order of Transfer, Plaintiff’s Motion for Reconsideration of Order Denying as Moot Plaintiff’s Motion to Supplement Evidence, Plaintiff’s Motion to Vacate Order of Transfer, and Plaintiff’s Second Motion for Reconsideration of Order of Transfer and Order Denying as Moot Plaintiff’s Motion to Supplement Evidence is unpublished and is 

reprinted at App. 15a-21a. The EDTX district court’s memorandum opinion and order granting defendant's motion to transfer venue is unpublished and is reprinted at App. 22a-38a. 

JURISDICTION 

The order of the Federal Circuit denying the 

petition for writ of mandamus was entered on November 17, 2015. Petitioners timely filed a combined 

petition for reheadenied on JanuaCertiorari is due jurisdiction unde

RELEVA

Federal Rule of C

The

civil actioStates dis

81. They s

employed the just, sof every a

Federal Rule oJudgment or Ord

(a) 

Mistakes; may corrarising frois found ithe recordits own, wappeal has and while corrected 

Local Rule CV-Directives 

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3

(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 court’s order 

and docket sheet directing such action; and (2) all pleadings and other documents on file in the case. Where a case has been transferred to another federal district court, the electronic case file shall be transferred to the directed court. If a timely motion or reconsideration of the order of transfer or remand has been filed, the clerk shall delay mailing or transferring the file until the court has ruled on the motion for reconsideration. 

STATEMENT 

Following a putative order of transfer (38a), the 

district court clerk in the Eastern District of Texas (EDTX) prematurely and wrongly transferred this design patent case to the Eastern District of Michigan (EDMI) in violation of EDTX Local Rule CV-83(b). The EDTX district court denied a motion to retransfer the case back to the EDTX (20a), ruling in part that its order of transfer directed the clerk to transfer the case immediately to the EDMI (19a). The transfer order did not state "immediately," "forthwith," and did not contain any other temporal indication that the case should be 

transferred in anin the local rule tsooner than the torder of transfer 

The EDM

transfer the case even though t"immediately," thoriginal transfer transferor courtthere was no conin the record and of the word "iPetitioner Automfiled a petition States Court o(Federal Circuitpart on its interpnow files this pinterpret Rule 60reconsider the pea correct interpre ABPA1 or

associational stan

1 ABPA is a non-pr

the laws of the StatTexas. ABPA memparts. 

2 This appears to 

associational standMolecular Patholog2009), affirmed in Molecular Patholog

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5

Global Technologies LLC (FGTL)3 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. FGTL filed a motion to dismiss arguing that associational standing did not exist, which was denied. 

FGTL filed a motion to transfer venue and the 

magistrate judge signed a report and recommendation ("R&R") that recommended the motion to transfer venue of FGTL be granted. ABPA timely served objections to the R&R4 and filed a Motion to 

2011), rev’d in part on other grounds, 133 S. Ct. 2107, involved an assertion of associational standing that was neither contested, analyzed, nor ruled upon. 3 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. FGTL is the owner of the two design patents at issue in this case (D489299 (Exterior of Vehicle Hood) and D501685 (Vehicle Head Lamp)). 

4 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." (36a). 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. 

Supplement Evi

received a commjudge and grantJanuary 7, 2015. any ABPA objecthat a review wamotion to conside

On Januar

transferred from EDTX Rule CV-"[a]bsent an ordsooner than the the court transfeor remanding it tshall transmit thpurpose of the amount of time other appropriatloses jurisdictiofollows the file.

entered on Janua"order of the ctransferred on Ja5 The motion to s

consider eight declaadditional documentreasons that the evid(1) pleadings were athe court's clearly consider evidence ancourt's clearly erronthe inconvenience to 

6 The rule is des

presented in cases sSupp. 322, 325 (E.D. 

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7

transfer order was entered (17a). On January 20, 2015, ABPA moved to disqualify the judge from ruling on the Motion to Transfer Venue and moved to retransfer this case back to the EDTX.7

On January 28, 2015, ABPA filed a motion for 

reconsideration of order of transfer. On January 29, 2015, ABPA filed a motion for reconsideration of order denying as moot plaintiff's motion to supplement evidence On February 4, 2015, ABPA filed a motion to vacate order of transfer. 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. 

On March 24, 2015, the district judge denied 

ABPA's motion to disqualify.8 On April 2, 2015, the 

7 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-99-0628 (Temp), (E.D. Ca. 

Jan. 14, 2011) both indicate that this situation creates an appearance of impropriety, and U.S. v. Jordan, 49 F.3d 152 (5th Cir. 1995) addresses when an appearance of impropriety should disqualify a judge. Shaun P. Martin, Professor of Law, JD, 1991, Harvard University, AB, 1988, 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-marshall9th-cir-feb-9-2009.html. 

8 Although the district court judge denied numerous motions on 

the basis that he no longer had jurisdiction of the case once it was 

transferred, the district court judge 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. 

district judge decase and/or courTexas, (ii) sealed transfer, (iii) mdenying as moevidence, (iv) mosecond motions fand order denysupplement evidhave jurisdiction been transferred

The distri

that "[ABPA's] ras the undersignconcludes (sic [inthe Clerk to trUnited States DiMichigan." (emphword "immediatethere is no contthat transfer shtransfer denied substantive rulinmultiple clear procedure and tafter the case file 

ABPA the

by filing a motijurisdiction of thtransfer. The reasoning that tcourt's order dencase" doctrine, o

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9

transfer order did not state "immediately," the transferee court could amend the original transfer order under Rule 60(a) to reflect the transferor court's alleged intent (14a) (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). The court further stated "ABPA is granted leave to file, within 14 days, a motion to retransfer or writ of mandamus." (14a). 

ABPA then filed a motion to retransfer so the 

Federal Circuit would have an order denying retransfer to review on petition for writ of mandamus.9 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." (12a). 

ABPA then filed a petition for writ of mandamus 

requesting the United States Court of Appeals for the Federal Circuit to direct the EDMI court to retransfer the case because the original case transfer violated EDTX Local Rule CV-83(b). The Federal Circuit denied the petition for writ of mandamus (4a), stating in part as follows: 

9 See In re Rothman, 2014-110 (Fed. Cir., March 19, 2014) (nonprecedential) (Court denied petition for writ of mandamus without 

prejudice when district court had not yet ruled on a transferred motion to quash). 

ABPA has subsequenactual intSartin v. 266 (4th C(9th Cir. 1its deniaprobative, those statmeaning bJanuary 7guess the (3a). AB

rehearing and reJanuary 22, 2016

REASONS F

This case 

to clarify when aunder Federal Rresolve a circuit this case regard60(a). 

Rule 60(a) 

may correct a cleoversight or omjudgment, orderAmerican TruTransportation Association v. Interstate ComTransportation C

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11

Court stated "[o]f course, the power to correct inadvertent ministerial errors [under Rule 60(a) and 49 U.S.C. § 17(3)] may not be used as a guise for changing previous decisions because the wisdom of those decisions appears doubtful in the light of changing policies." However, this Court has not otherwise provided guidance on when a court may correct "a mistake arising from oversight or omission" under Rule 60(a). 

The Federal Circuit's interpretation of Rule 

60(a) allows a district court to amend an order based solely on the court's subsequent statement that the court intended its order to state something other than what the order actually stated. This interpretation of Rule 60(a) does not require contemporaneous record evidence or other circumstances to corroborate the amendment, and does not require consideration of whether a litigant's reliance interests on the language of the original order are adversely affected. 

The Federal Circuit's interpretation of Rule 

60(a) is in conflict with the decisions of other circuit courts of appeal that require the record to make apparent that the court intended one thing but by mistake did another. See, e.g., Dura-Wood Treating Co. 

v. Century Forest Indus., Inc., 694 F.2d 112, 114 (5th

Cir.1982) ("Rule 60(a) finds application where the record makes apparent that the court intended one thing but by merely clerical mistake or oversight did another. Such a mistake must not be one of judgment or even of misidentification, but merely of recitation, ... mechanical in nature.") (emphasis added); Pfizer Inc. v. Uprichard, 

422 F.3d 124, 129-30 (3d Cir. 2005) (The rule is "limited to the correction of 'clerical mistakes'; it encompasses 

only errors 'me

record, and not judgment."' (empInc. v. Int'l. UniCir. 1988)). 

The Fede

subsequent stateintent behind an cases cited in susubsequent stateby contemporacircumstance. Se

F.3d 259, 266 (4tat the time it manifested both intent and by con799 F.2d 532, 53recollections, csurrounding the that Judge Ordin without prejudiwere involved in 

ABPA ha

(other than the court order was solely on the issintent when thevidence or othejudge's subsequereliance interesamendment. 

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13

 In Presidential Estates Apartment Associates v. Barrett, 917 P.2d 100 (Wash. 1996), the Supreme Court of Washington sitting en banc interpreted a state rule of civil procedure similar to Federal Rule of Civil Procedure 60(a). The court held the trial court abused its discretion when amending the judgment. The court's analysis focused on "whether the judgment, as amended, embodies the trial court's intention, as expressed in the record at trial." The court stated: 

If the answer to that question is yes, it logically follows that the error is clerical in that the amended judgment merely corrects language that did not correctly convey the intention of the court, or supplies language that was inadvertently omitted from the original judgment. If the answer to that question is no, however, the error is not clerical, and, therefore, must be judicial. Thus, even though a trial court has the power to enter a judgment that differs from its oral ruling, once it enters a written judgment, it cannot, under CR 60(a), go back, rethink the case, and enter an amended judgment that does not find support in the trial court record. [footnote omitted]. 

Id. at 104. 

The court held the amendment was improper 

"because there is nothing in the record of the trial to support the contention that the trial court unintentionally failed to put in the judgment [the provision added in the amended judgment]." Id.

"Conversely, and significantly, there is much in the 

record indicatinopposite intentio

This Cou

Civil Procedure support in the should not be abIn the instant carecord supportinintended for the Indeed, the recdescribed the ordDoc. 94-1) (41a, 4EDTX district juthis case to be imthe court asserissuing two ord

10 In Presidential E

In affirming the trial coadditional rcould be imthat it had cof any exprecourt intendentered to gsimply no bcan possibly 

917 P.2d 104, 105. Shave sincerely inimmediately. Howethat the trial court entered to transfer which any reviewinthe scope of a proper

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15

place on January 14, 2015. These were the Order vacating scheduling order deadlines (4:13-cv-00705; Doc. 68) and the Order Denying Motion to Disqualify Judge (4:13-cv-00705; Doc. 92). 

Additionally, it is not appropriate to rely upon a 

court's uncorroborated subsequent statement of intent when a party's reliance interests are involved and are adversely affected. When reliance interests are involved, a party should be able to rely on the plain text of an order without the need to investigate the judge's intent, and appellate courts should interpret an order in the same manner. See In re Trans Union Corp. Privacy Litig., 741 F.3d 811, 816 (7th Cir., 2014) ("Litigants as well as third parties must be able to rely on the clear meaning of court orders setting out their substantive rights and obligations, and appellate courts should interpret those orders in the same manner. [citing] Mendez v. Republic Bank, 725 F.3d 651, 663 

(7th Cir.2013) (“It is not reasonable to expect a thirdparty citation respondent to investigate the intended meaning of a court order beyond the text of the order itself.”); In re Bestway Products, Inc., 151 B.R. 530, 534 (Bankr. E.D. Cal. 1993) ("The one limitation on correcting an error under Rule 60(a) is that reliance on the erroneous judgment can lead to changes in position that are so substantial as to make it inequitable to grant relief."); See also In re Galiardi, 745 F.2d 335, 337 (5th Cir.1984) (per curiam) (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."). 

If an amendment under Rule 60(a) can be based 

solely on the issuing judge's subsequent statement of 

intent when thevidence or othejudge's subsequereliance interesamendment, then unreliable and system is destab

The Fede

ABPA did not remedy to obtaicourt gave ABPretransfer by chdecision [and] Aavenue of obtaini

The Fed

overlooks that if court seeking a 1404 factors, theDesigns Corp., 22, 2012), ABPA circumstances," oand unusual circu

11 The Federal Circu

relief from the Texapremature, and threconsideration deciruling." (3a). The rfiled its motions in described the case tto file the motions i

(41a, 42a). In any should not be basestatement of intentstatement of intent i

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17

previous rulings and non-rulings of the EDTX district court would receive a deference not appropriate under proper standards of review. 

Further, EDTX Local Rule CV-83(b) would be 

rendered a worthless nullity and it would be as if ABPA never filed the objections to the R&R, the motion to supplement evidence, the motion to disqualify, the motion to vacate, the motion to retransfer, or any of the other motions ABPA filed that challenged the transfer decision and procedure. ABPA sought a writ of mandamus so the case file would be transferred back to the Texas court, jurisdiction would be clear in the Texas court over the motions that ABPA filed (described previously), and ABPA could obtain rulings on those motions under proper standards of review. ABPA does not wish to forfeit these motions or their proper review and have the transfer issue reviewed under an improper standard of review. The Federal Circuit's opinion overlooked and did not address any of these issues. 

Finally, Federal Rule of Civil Procedure 1 states 

in relevant part that the Federal Rules of Civil procedure "should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding." The Federal Circuit's interpretation of Rule 60(a) does not secure "just, speedy, and inexpensive" determinations. 

It is not "just" to allow amendment of an order 

based solely on the issuing judge's subsequent statement of intent when the party affected already has detrimentally relied on the plain text appearing on the 

face of the determinations wof court orders bthen litigants wmotions seeking issuing judge anhas occurred in entire legal syste

For the fo

of certiorari shouRespectfully subRobert G. Oake, Counsel of RecorOAKE LAW OF825 Market StreeAllen, Texas 750 (214) 207-9066 rgo@oake.com 

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1a

11/17/2015 NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit In re: AUTOMOTIVE BODY PARTS ASSOCIATION, Petitioner 2015-156 On Petition for Writ of Mandamus to the United States District Court for the Eastern District of Michigan in No. 2:15-cv-10137-LJM-MJH, Judge Laurie J. Michelson. ON PETITION Before LOURIE, DYK, and HUGHES, Circuit Judges. 

DYK, Circuit Judge. ORDER 

The Automotive Body Parts Association (“ABPA”) 

brought the underlying action against Ford Global Technologies, LLC in the United States District Court for the Eastern District of Texas. On Ford’s motion, the case was transferred to the United States District Court for the Eastern District of Michigan. After the Michigan court denied retransfer, ABPA filed this petition challenging the retransfer ruling, a challenge premised on the initial transfer being void under the Texas court’s local rules. 

Under applicable regional circuit law, we review a 

district court’s dfor abuse of dExpress, Inc., 9Moreover, ABPextraordinary angranted upon a right to relief. SeCal., 426 U.S. 394

The Texas c

provides, in relevcourt to the contday following an case to another transmit the castimely motion for clerk shall delay the court has rule

The Eastern 

transferring the its transfer ordetransfer this casfor the Eastern reconsideration January 14, 20Michigan a certifpapers in the file

Believing th

rendered the reconsideration fdenied reconsideorder directed trule and transfer same challenge b

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3a

ABPA’s motions to decline jurisdiction and retransfer, deferring to the Texas court’s findings on CV-83(b) as the law of the case. ABPA has no clear right to retransfer. A judge’s subsequent statements may help illuminate the actual intent behind an issued order. See e.g., Sartin v. McNair Firm PA, 756 F.3d 259, 266 (4th Cir. 2014); In re Jee, 799 F.2d 532, 535 (9th Cir. 1986). The Texas court’s statements in its denial of reconsideration were clearly probative, and the Michigan court found that those statements were the best indication of the meaning behind the directive to the Clerk in the January 7, 2015 order. We decline to second guess the court’s determination on mandamus. ABPA argues that the Texas court’s interpretation should be given no weight because, at the time, that court had relinquished jurisdiction over the case. But ABPA cannot have it both ways. It cannot ask for relief from the Texas court in seeking to have the transfer declared premature, and then credibly argue that the Texas court’s reconsideration decision is a nullity after receiving an unfavorable ruling. 

Moreover, ABPA did not lack a “meaningful 

alternative legal remed[y]” to obtain retransfer. Canadian Tarpoly Co. v. U.S. Int’l Trade Comm’n, 640 F.2d 1322, 1325 (C.C.P.A. 1981). The Michigan court gave ABPA an adequate opportunity to seek retransfer by challenging the merits of the transfer decision. ABPA simply elected to forgo that avenue of obtaining the relief it seeks. 

Accordingly, 

IT IS ORDEThe petition 

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5a

Case No. 2:15-cv-10137. AUTOMOTIVE BODY PARTS ASSOCIATION, Plaintiff, v. FORD GLOBAL TECHNOLOGIES, LLC, Defendant. United States District Court, E.D. Michigan, Southern Division. August 17, 2015. Automotive Body Parts Association, Plaintiff, represented by Robert Oake, Jr., Oake Law Office & Thomas G. Cardelli, Cardelli, Hebert,. 

Ford Global Technologies, LLC, Defendant, represented by Frank A. Angileri, Brooks Kushman, Amy C. Leshan, Brooks Kushman, Linda D. Mettes, Brooks Kushman P.C. & Marc Lorelli, Brooks Kushman. OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO RETRANSFER [23] LAURIE J. MICHELSON, District Judge. 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.) ABPA's primary argument was that the clerks' office 

for the United SDistrict of Texadistrict too soon. United States January 7, 2015 othis case to the Eastern District sent the case hDistrict of Texacourt to the con

day following an case to another transmit the casLR CV-83(b) (emLess than a monrelated motion length on the recCourt to decline July 6, 2015 Hr'g Court's oral rulin[T]his Court has the case file has Judge Amos L. Mthe first alternateven after the filimited issue of wruled that the traof-the-case doctrand (3), in the ssponte amend Juorder to reflect hRule 60(a) and hias manifested in 

2:15-cv-10137-LJM-MJH Doc # 32 Filed 05/06/16 Pg 18 of 36 Pg ID 527
7a

(Dkt. 21, July 6, 2015 Order Denying Pl.'s Mot. to Decline Jurisdiction at 1-2.) 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 Mazzant's January 7, 2015 transfer order. Nor does the motion focus on ABPA's 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, ABPA's 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-of-the-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 jurisdiction follows the file) and (2) no deference is owed to Judge Mazzant's 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 Mazzant's January 2015 transfer order to reflect his intent at the time of the order under Rule 60(a) and his intent was for an immediate transfer 

as manifested in that this Court eof an order is imprights" of the parThe Court doereconsideration retransfer. In grretransfer, the Cthe merits of Judorder, in particuleight public and decision to transfAdditionally, uporetransfer and hearing, the Coustated withstandLR 7.1(h)(3) ("GCourt's discretiorehearing or recsame issues ruleor by reasonable demonstrate a pathe parties and the motion havcorrecting the disposition of the productive to resBut the Court dthat ABPA's attruling is not onCourt already exclear, ABPA's p

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9a

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 7-9.) Instead, ABPA argues that this Court cannot amend Judge Mazzant's transfer order under Rule 60(a) to reflect his intent at the time he ordered transfer because the amendment would affect the "substantive rights of the ABPA." (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 judge's manifest intent at oral argument would substantially affect how the case would be litigated and thus, the substantive 

rights of the pCircuit, which threcently clarified Inc., the Fifth indicating that, substantive rightRule 60(a), end relevant inquiry making the corrrights and obligatime it will. Ratthe motion wouladjudicate an issmake a substantiWhen the recoractually litigaterecorded in or judgment, the diunder Rule 60(changes the partthe judgment in 647 F.3d 188 at 1(Dkt. 22, July paragraphing altHenry & Wright 

("[T]he Fifth Cirsubstantive righunder the provisRivera v. PNS SCir. 2011) ("The rwhether making the parties' rightMost of the timcorrectable unde

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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 court's adjudication."). ABPA's motion to retransfer fails to adequately address this Court's July 6, 2015 explanation, and in particular, Rivera. ABPA does cite Keeley v. Grider, 590 F. App'x 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. App'x at 559 (emphasis added). As this Court explained on July 6, 2015, Judge Mazzant's April 2, 2015 order, where he explicitly stated that his January 2015 transfer order directed the clerk's office to transfer the case here "immediately," is the best evidence of his intent when he entered his transfer order. The Court disagrees with ABPA that because Judge Mazzant issued two orders after his January 2015 transfer order (including one denying ABPA's 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 Mazzant's January 7, 2015 transfer order to reflect his contemporaneous intent as explicitly manifested on April 2, 2015. 

This Court has sabe before it. The motions on the pto the Eastern Dto believe that this in the FederaMotion to RetranSO ORDERED. SO ORDERED. s/Laurie J. MicheLAURIE J. MICUNITED STATEDated: August 17

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Filed 07/06/15 

UNITED STATES DISTRICT COURT EASTERN 

DISTRICT OF MICHIGAN SOUTHERN DIVISION 

AUTOMOTIVE BODY PARTS ASSOCIATION, Plaintiff, v. FORD GLOBAL TECHNOLOGIES, LLC, Defendant. Case No. 15-cv-10137  Honorable Laurie J. Michelson 

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 Association’s 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 EDTpremature and vthe Court found issue of whether 

As articul

Court has jurisdcase file has beeAmos L. Mazzanfirst alternativeeven after the filimited issue of wruled that the traof-the-case doctrand (3), in the ssponte amend Juorder to reflect hRule 60(a) and hias manifested in to decline jurisdi

ABPA is g

motion to retranseeks a writ of this case pending hearing on the madjourned and w

 SO ORDE

s/Laurie J. Miche

LAURIE J. DISTRICT JUDDated: July 6, 20

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Case No. 4:13-CV-00705. AUTOMOTIVE BODY PARTS ASSOCIATION, v. FORD GLOBAL TECHNOLOGIES, LLC. United States District Court, E.D. Texas, Sherman Division. April 2, 2015. Automotive Body Parts Association, Plaintiff, represented by Robert Glenn Oake, Jr., Oake Law 

Office. Ford Global Technologies, LLC, Defendant, represented by Frank A Angileri, Brooks & Kushman PC, Amy C Leshan, Brooks & Kushman PC, Clyde Moody Siebman, Siebman Burg Phillips & Smith LLP, Linda D Mettes, Brooks & Kushman PC & Marc Lorelli, Brooks & Kushman PC. MEMORANDUM OPINION AND ORDER AMOS L. MAZZANT, III, District Judge. Pending before the Court are Plaintiff’s Motion to ReTransfer Case and/or Court File (Dkt. #66), Plaintiff's Sealed Motion for Reconsideration of Order of Transfer (Dkt. #69), Plaintiff's Motion for Reconsideration of Order Denying as Moot Plaintiff's Motion to Supplement Evidence (Dkt. #70), Plaintiff's Motion to Vacate Order of Transfer (Dkt. #71), and Plaintiff's Second Motion for Reconsideration of Order of Transfer and Order Denying as Moot Plaintiff's Motion to Supplement Evidence (Dkt. #72). Having 

considered the Plaintiff's motionBACKGROUND On November 7, a Magistrate JuReport and ReGlobal Technologvenue be grante("ABPA") timely November 24, undersigned begStates District CDivision. On Janureflect the case's his role as a Magnew role as a Shortly following after considerinReport and RecoMemorandum OMotion to TrMemorandum Ofollowing footnoundersigned entthis case as the whom this case wto the undersigDistrict Judge, order is issued Opinion and Ordethis case to the Eastern District 

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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 Plaintiff's 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 Plaintiff's 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) (pjurisdiction once & Proc. Juris. § transfer . . . is grthe clerk of the and the appellatcourt sits lose juproceed further wANALYSIS Both the Fifth Texas have prevover a case whecourt has been cmoved for leave require a district Fifth Circuit held leave was filed in and the District CIn re Sw. Mobile case, the Districtransfer, had advbe transferred hearing, a formapapers were recedistrict court twentered. Two daythe transferee coto file a petition that the petitionewithin which to because the distrit was "extremel

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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 Landsgranted 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 Court's jurisdiction over the matter was terminated. However, none of Plaintiff's 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 undersigned's Memorandum Opinion and Order (Dkt. #62) concludes just such an order, directing the Clerk to transfer this case immediately to the United 

States District Michigan. Local Rule CV-8for reconsideratihas been filed, thfile until the creconsideration." stipulate to a staABPA's expressOrder." (Dkt. #89 motion to stay reconsideration, Eastern District been delayed lonInstead, ABPA occur before filinThe result of this in Lands, "[t]he 

forwarded the fithis Court denie

Supp. at 325. CONCLUSION It is therefore ORe-Transfer Cahereby DENIEDIt is further ORDfor Reconsiderathereby DENIED

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It is further ORDERED that Plaintiff's Motion for Reconsideration of Order Denying as Moot Plaintiff's Motion to Supplement Evidence (Dkt. #70) is hereby DENIED. It is further ORDERED that Plaintiff's Motion to Vacate Order of Transfer (Dkt. #71) is hereby DENIED. It is finally ORDERED that Plaintiff's Second Motion for Reconsideration of Order of Transfer and Order Denying as Moot Plaintiff's Motion to Supplement Evidence (Dkt. #72) is hereby DENIED. Signed this 2nd day of April, 2015, 

/s/_____________________ AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE 

Case No. 4:13-CVAUTOMOTIVE FORD GLOBAL United States DDivision. January 7, 2015. Automotive Brepresented by 

Office. Ford Global represented by FPC, Amy C LeMoody Siebman, Linda D MetteLorelli, Brooks & MEMORANDUAMOS L. MAZZPending before Technologies, LLEastern Districconsidering the mpleadings, the CoBACKGROUND The Automotive the present suit originally that sirepair parts own

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("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 (F-150 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 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 surreply (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

U.S.C. § 1404(aenergy and mowitnesses and inconvenience Barrack, 376 U.Sis not a matter of the Court of Appmotion. See In r1319 (Fed. Cir. 20The threshold intransfer is "whtransfer is soughthe claim could hhave consented Volkswagen AG("Volkswagen I")the Fifth Circuit `convenience' turinterest factors, dispositive weighGuar. Co., 358 F.interest factors isources of prooprocess to securcost of attendanpractical problemexpeditious and America, Inc., 5banc) ("Volkswainclude (1) the acourt congestionlocalized interestthe forum with t

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(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 plaintiff's choice of venue is not a factor in this analysis, but rather contributes to the defendant's 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 plaintiff's 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 ABPA's choice of the Eastern District of Texas as the forum that should resolve this dispute. However, Fifth Circuit law is clear that the plaintiff's choice of venue is not a factor in this analysis, but rather 

contributes to tcause for the tran

314 n.10 ("[W]hilhis claims in any general venue stthe exercise of consider the ABTexas in its consithe Eastern Diconvenient" than Ford argues thaagainst Ford, ccorrespondence International ("assurances from design patents adiscovery thus faintention of keepwith the ABPA representing to controversy. Fordeclaratory judgan action, but at to the Eastern contends that thdeclaratory judgmAlthough the venare non-exclusivea separate factor already addressehas asserted thnecessary in a shere is not wheth

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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 court's 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 m

the Eastern Distmonths in the Elittle difference ithis case can comdistrict. Ford contends thin the Eastern Dthe other intereconcern that in tof civil cases that as compared to District of TexasEastern Districprocedures for efthe Eastern Distcontribute to thTexas to resolve issues in this casfederal patent nationwide," and address. See In F.3d 1221, 1224 many reasons whyears or more, wthe congestion individual requirneeds of a case. Bmedian time to trfrom the present neutral. 

2. The 

inte

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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 ABPA's 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 ABPA's 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 installed them district, and tharepaired live anEastern District The only patent the doctrines of patent exhaustiothat the ABPA sue on behalf oindividualized prto establish certain this case. ForMichigan has a gbecause at the advertising, and The two patents and decisions rwere made in thABPA essentiallhas nothing to do states that the mand design of the World, located in The decision befDistrict of Texas or the Eastern local interest in Court that the rand marketing dDistrict of Michilocal interest in 

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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 

pro

The first private access to the souat 203. "The Firemains relevant made electronic DataQuill, Ltd. 2014 WL 272220(citing Volkswag

Circuit has obscases, the bulk ofrom the accused of the defendanconvenient venu

1345). However, issue, as noted essentially concenot bring an infrconsider the locatFord contends ththe issues here, adesign, developmand sales of the rEastern DistricSpecifically, Ford each of the F-15designers workeshape, contour, individual part. hand sketches, modeling, clay m

Further, the ma

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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 Ford's 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 Ford's defense of the ABPA's 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 no100 miles, unless cause the witnexpenses. FED45(c)(3)(B)(iii). Bof nonparty witnfavored venue hnumber of these Ford argues themployees of Foparty to this suitEastern Districemployees and fthe design and mthe prosecuting specifically lists nonparty witnesEastern District nonparty witnetechnically not a litigation. The Alocated in the Eother nonparty wthis Court. A trequire that partthe information an allegation that information. Genparties have potentially relevpower of their slightly more arCourt. Thus, ttransfer. 

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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

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 party's witnesses to the other is insufficient to affect a transfer of venue analysis. In re Google Inc., 412 F. App'x 295, 

296 (Fed. Cir. 2011). Ford argues that its willing witnesses would incur substantial expense from traveling and would disrupt Ford's 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 is neutral, this faFor purposes of assume that the Motor Company employees of NeABPA who are party argues thinconvenienced However, Ford drequiring its witndisrupt its businconcern, as it is including New manufacture, or only slightly in fa

4. All other prac

expeditious, and Ford contends tstages, no practithis Court from contends that Ftransfer, and aconsidered the motions to quash have been wasteWhile this Court associational stareconsidered by handled by the Estage of litigatioin this case, but 

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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 the other hand, the Eastern District of Michigan has a clear connection to the litigation as the principal place of 

business of Fordwitnesses work aof the documentlocation where a this litigation is Eastern District case managemenstages. Based on the forFord Global TecVenue to the Eahereby GRANTEthis case to the Eastern District Signed this 7th d/s/_____________AMOS L. MAZZUNITED STATEFootNotes 

1. On November report and recom

States Magistrareferred. This caas the presiding memorandum op2. See Federal Cowww.uscourts.gotStatistics/districOctober 20, 2014. 

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1/22/2016 United States Court of Appeals for the Federal Circuit In re: AUTOMOTIVE BODY PARTS ASSOCIATION, Petitioner 2015-156 On Petition for Writ of Mandamus to the United States District Court for the Eastern District of Michigan in No. 2:15-cv-10137-LJM-MJH, Judge Laurie J. Michelson. ON PETITION FOR PANEL REHEARING AND REHEARING EN BANC  Before PROST, Chief Judge, NEWMAN, LOURIE, DYK, MOORE, O’MALLEY, REYNA, WALLACH, TARANTO, CHEN, HUGHES, and STOLL, Circuit Judges. ORDER 

Petitioner Automotive Body Parts Association 

filed a combined petition for rehearing. The petition was referred to the panel that heard the appeal, and thereafter was referred to the circuit judges who are in regular active service. Upon consideration thereof, IT IS ORDERED THAT: The petition for panel rehearing is denied. The petition for rehearing en banc is denied. 

FOR THE COURDate January 22,  /s/ Daniel E. O’TDaniel E. O’Toole Clerk of Court 

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Filed 04/06/15 

IN THE UNITED STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF TEXAS SHERMAN 

DIVISION 

CIVIL ACTION NO. 4:13-CV-00705-ALM 

AUTOMOTIVE BODY PARTS ASSOCIATION, 

Plaintiff, 

V. 

FORD GLOBAL TECHNOLOGIES, LLC, 

Defendant. 

DECLARATION OF ROBERT G. OAKE, 

1 . My name is Robert G. Oake, Jr. I am an attorney at law in good standing with the State Bar of Texas and licensed to practice law in the State of Texas. I represent Automotive Body Parts Association in the above referenced cause. I have personal knowledge of the facts stated in this declaration, as more particularly set forth below. 

2. On January 14, 2015, I received a voicemail fromChristine at the District Court in Plano. I still have the 

voicemail. The following is a true and correct transcription of the voicemail: 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 still handle any mshe said go aheathe case, um and questions, I'm aBye. I declare under ptrue and correct Date: April 6, 201Robert G. Oake, Attorney for AB

2:15-cv-10137-LJM-MJH Doc # 32 Filed 05/06/16 Pg 36 of 36 Pg ID 545