UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Ford Motor Company,

Plaintiff/

Counter-Defendant,

v.

Versata Software, Inc., et al., 

Defendants/

Counter-Plaintiffs.

Case No. 15-10628-MFL-EAS 

(consolidated with Case No. 15-cv-11624)

Hon. Matthew F. Leitman

JURY TRIAL DEMANDED

FORD MOTOR COMPANY’S MOTION FOR 

RECONSIDERATION OF ORDER 

GRANTING DEFENDANTS’ MOTION TO 

MODIFY THE CASE CAPTION (DKT. #499)

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii

I. INTRODUCTION ...........................................................................................1

II. ARGUMENT...................................................................................................3

A. The Order changes the original parties contrary to Ford’s 

complaint and the contemporaneous record..........................................3

1. Ford’s complaint confirms that it did not sue Versata 

Development Group or its predecessor...................................... 3

2. Contemporaneous evidence confirms that Ford intended 

to sue the predecessor of Versata Software – not the 

predecessor of Versata Development Group. ............................ 4

B. The Order cites no authority for changing the parties contrary to 

the allegations and facts at the time of Ford’s original 

complaint...............................................................................................6

C. The Post-Complaint Facts Addressed in the Order Do Not 

Establish that Ford Sued the Predecessor to Versata 

Development Group. .............................................................................7

III. CONCLUSION..............................................................................................11

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TABLE OF AUTHORITIES

Cases

Asher v. Unarco Material Handling, Inc., 

596 F.3d 313 (6th Cir. 2010).......................................................................2, 7

Cleveland Branch, NAACP v. City of Parma, 

263 F.3d 513 (6th Cir. 2001)...........................................................................6

EEOC v. Pines of Clarkston, 2015 U.S. Dist. LEXIS 55926, 

Case No. 13-CV-14076 (E.D. Mich. April 29, 2015) .....................................4

Ferguson v. Neighborhood Hous. Serv. of Cleveland, Inc., 

780 F.2d 549 (6th Cir. 1986)...........................................................................4

Hyman v. City of Louisville, 

53 Fed.Appx. 740 (6th Cir. 2002).....................................................................6

Lujan v. Defenders of Wildlife, 

504 U.S. 555 (1992)................................................................................ 6, 8, 9

Lynch v. Leis, 

382 F.3d 642 (6th Cir. 2004).................................................................. 6, 8, 9

Schreiber Foods, Inc. v. Beatrice Cheese, Inc., 

402 F.3d 1198 (Fed. Cir. 2005).............................................................. 6, 8, 9

U.S. ex rel. Eisenstein v. City of N.Y., 

566 U.S. 928 (2009).........................................................................................7

Other Authorities

5A C. Wright & A. Miller, Fed. Prac. & Proc. §1321 (3d ed. 2004) ........................7

Rules

Fed.R.Civ.P. 15................................................................................................. 2, 6, 7

L.R. 7.1.......................................................................................................................1

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I. INTRODUCTION

Pursuant to L.R. 7.1(h), Ford Motor Company (“Ford”) respectfully requests 

reconsideration of the June 5, 2018 Order Granting Defendants’ Motion to Modify 

Caption (“Order,” Dkt. #499). The Order contains the following palpable defects:

• The Order is contrary to the twice-admitted allegation in Paragraph 4 

of Ford’s complaint that Ford was suing the Trilogy Development 

Group related to Versata Software, i.e., not a predecessor of Versata 

Development Group. The Order does not address Paragraph 4 of Ford’s 

complaint, or Defendants’ repeated admissions of those allegations.

• The Order is contrary to contemporaneous communications

surrounding attempted service of Ford’s complaint on Trilogy 

Development Group. Those communications expressly establish

Ford’s intention to serve the predecessor of Versata Software – not the 

predecessor of Versata Development Group.

• The Order is contrary to controlling law requiring courts to determine 

standing at the time of the original complaint. The Order does not 

address Ford’s original complaint. The Order turns entirely on events 

which transpired after Ford’s original complaint.

• No authority supports changing the parties, contrary to the express 

language of the original complaint, by means of a caption change. 

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Correcting these defects will result in a different disposition of the case, 

namely denial of Defendants’ Motion to Modify the Caption, and dismissal of the 

Defendants with respect to patent, trade secret and copyright claims for which they 

lack standing. As previously stated, Ford has no objection to adding non-party 

Versata Development Group to this case pursuant to Fed.R.Civ.P. 15, subject to the 

controlling authority of Asher v. Unarco Material Handling, Inc., 596 F.3d 313, 318 

(6th Cir. 2010) (“[T]he precedent of this circuit clearly holds that an amendment 

which adds a new party creates a new cause of action and there is no relation back 

to the original filing for purposes of limitations.”)

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II. ARGUMENT

A. The Order changes the original parties contrary to

Ford’s complaint and the contemporaneous record.

1. Ford’s complaint confirms that it did not sue 

Versata Development Group or its predecessor. 

The Order does not address the allegations in Ford’s complaint expressly 

confirming that Ford sued Versata Software and the Trilogy Development Group 

related to Versata Software – not the Trilogy Development Group related to Versata 

Development Group.

Paragraph 3 of Ford’s complaint expressly names the Trilogy Development 

Group that “is a California corporation.” (Dkt. #1 at ¶3.) It is undisputed that the 

California Trilogy Development Group is not the predecessor to Versata 

Development Group. (Order at 3-4.)

Paragraph 4 of Ford’s complaint additionally states that the “Trilogy 

Development Group” entity Ford named in Paragraph 3 is the parent of Versata

Software, i.e., it is not related to Versata Development Group.

On information and belief, Versata [Software, Inc.] became a whollyowned subsidiary of Trilogy Development in 2006, and Trilogy 

Development is the parent company of Versata [Software, Inc.] and 

its subsidiaries.

(Dkt. #1, ¶4; Dkt. #4, ¶4, Dkt. #226, ¶4.)1

 

1 Unless otherwise stated, Ford has added all emphasis.

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Defendants admitted this allegation twice. (Dkt. #59, ¶4; Dkt. #244, ¶4.) 

Defendants are bound to their admissions. See EEOC v. Pines of Clarkston, 2015 

U.S. Dist. LEXIS 55926, *8-9, Case No. 13-CV-14076 (E.D. Mich. April 29, 2015)

(Caram Steeh, J.) (“Defendant shall be bound by its admissions in not one, but two 

pleadings filed in this case . . ..” (citing Ferguson v. Neighborhood Hous. Serv. of 

Cleveland, Inc., 780 F.2d 549, 550-51 (6th Cir. 1986)). Yet, the Order holds that 

Ford sued a Trilogy Development Group entity having no relationship whatsoever 

to Versata Software – contrary to Ford’s allegation which Defendants admitted.

The Order states that “Ford may have been uncertain as to whether the Trilogy 

Development Group, Inc. entity that it sued was really a California corporation.” 

(Order at 5.) Nothing in Ford’s complaint was unclear, nor was Ford uncertain. 

Ford’s allegation in Paragraph 4 confirms that Ford intended to sue the Trilogy 

Development Group related to Versata Software, not the entity related to Versata 

Development Group.

2. Contemporaneous evidence confirms that Ford 

intended to sue the predecessor of Versata 

Software – not the predecessor of Versata 

Development Group. 

On May 7, 2015, Ford’s process server (Adam Parker) attempted to serve a 

summons on Trilogy Development Group. (Ex. A, Proof of Non-Service.) 

Defendants’ registered agent, Capitol Corporate Services, rejected service asserting 

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that it “is not the registered agent for this entity.” (Id.) Ford’s process server then 

noted that Capitol Corporate Services is the registered for both Versata Software 

(who Ford expressly named and successfully served) and Versata Development 

Group (who Ford neither named nor served). (Ex. B, 5/11/15 e-mail (including 

attachments) from A. Parker to C. Nikkila.) In response to the question of what 

entity Ford wanted to serve, Ford’s counsel stated:

I have already found this same information and it looks like Trilogy 

Development Group has been taken over by Versata Software Inc. and 

since we have already served Versata Software I believe we have 

effectively served Trilogy Development as well. 

(Ex. C, 5/11/15 e-mail from C. Nikkila2to A. Parker.)

Thus, Ford knew that the entity it was trying to serve was related to Versata 

Software, not Versata Development. The court docket corroborates this, as Ford filed 

proofs-of-service for only Trilogy, Inc. and Versata Software, Inc. (Dkt. #12 and 

#16.) Ford neither served, nor intended to serve, the predecessor of Versata 

Development Group. 

 

2 Ms. Nikkila, Mr. LeRoy’s administrative assistant, sent the e-mail on behalf 

of Mr. LeRoy.

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B. The Order cites no authority for changing the parties 

contrary to the allegations and facts at the time of

Ford’s original complaint.

“Jurisdiction is tested by the facts as they existed when the action [was] 

brought.” Cleveland Branch, NAACP v. City of Parma, 263 F.3d 513, 524 (6th Cir. 

2001). As a matter of law, a Court cannot determine jurisdiction based on facts 

which transpired after the original complaint. See Hyman v. City of Louisville, 53 

Fed.Appx. 740, 744 (6th Cir. 2002). For example, a party cannot retroactively 

establish standing through an amended complaint. See Schreiber Foods, Inc. v. 

Beatrice Cheese, Inc., 402 F.3d 1198, 1202, n.3 (Fed. Cir. 2005) (citing Lynch v. 

Leis, 382 F.3d 642, 647 (6th Cir. 2004) and Lujan v. Defenders of Wildlife, 504 U.S. 

555, 570 n.5 (1992)).

The Order cites no authority for changing the parties in this case contrary to 

the allegations and facts at the time of Ford’s original complaint. At a March 28, 

2018 status conference, the Court invited the parties to address whether Fed. R. Civ.

P. 15 was “the authority under which Versata seeks relief and under which the Court 

has the authority to modify the case caption.” (Dkt. #469 at 1.) Yet, the Order makes 

no mention of Rule 15, or any authority for changing the parties – through a caption 

change – more than three years into the case.

The Supreme Court has held that a case caption does not define the parties –

the complaint does. See U.S. ex rel. Eisenstein v. City of N.Y., 566 U.S. 928, 935 

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(2009) (quoting 5A C. Wright & A. Miller, Fed. Prac. & Proc. §1321, p. 388 (3d ed. 

2004).)

Although helpful to the district court, the contents of the caption are 

usually not considered a part of the pleader’s statement of the claim or 

the response thereto for purposes of applying the pleading rules. 

Moreover, the caption is not determinative as to the identity of the 

parties to the action or the district court’s personal jurisdiction over 

the defendant or its subject matter jurisdiction.

Wright & A. Miller, Fed. Prac. & Proc. §1321, p. 388 (3d ed. 2004).)

Ford is not aware of any authority permitting a defendant, or a Court, to 

redefine the parties expressly identified in the body of a plaintiff’s original complaint

by means of a caption change. Ford has consistently stated it has no objection to 

adding non-party Versata Development Group to this case pursuant to Fed.R.Civ.P.

15, subject to the controlling authority of Asher v. Unarco Material Handling, Inc., 

596 F.3d 313, 318 (6th Cir. 2010) (“[T]he precedent of this circuit clearly holds that 

an amendment which adds a new party creates a new cause of action and there is no 

relation back to the original filing for purposes of limitations.”)

C. The Post-Complaint Facts Addressed in the Order Do 

Not Establish that Ford Sued the Predecessor to Versata 

Development Group. 

The Order cites allegations in Ford’s Second Amended Complaint (filed in 

January 2017) referencing “Defendants’ patents,” “Defendants’ purported trade 

secrets,” and “Defendants’ alleged intellectual property.” (Dkt. #499 at 6-7.) But at 

that time, Ford was unaware that the Defendants in the case lacked standing to assert 

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that intellectual property. Regardless, mid-discovery allegations in an amended 

pleading cannot correct a standing defect.

3

 See Schreiber Foods, 402 F.3d at 1202, 

n.3; Lynch, 382 F.3d at 647; Lujan, 504 U.S. at 570 n. 5. 

The Order also cites a footnote in Defendants’ Answer to Ford’s Second 

Amended Complaint (filed in February 2017), stating that Defendants’ references to 

Trilogy Development “should also include Versata Development Group.” (Order at 

6.) The Order states that Ford’s failure to object to this footnote supports the 

proposition that Versata Development Group is a party to this case. Id. That

conclusion is incorrect for three reasons. First, the Federal Rules provide no 

mechanism or requirement for a party to object to statements (let alone a footnote) 

in an opponent’s answer. Second, after receiving Defendants’ answer, Ford served 

a Rule 30(b)(6) deposition notice to take discovery on the ownership/standing issue. 

(Ex. D, Ford’s Supp. Rule 30(b)(6) Dep. Notice, Topic No. 5.) That Rule 30(b)(6) 

deposition gave rise to the standing defect, and Defendants’ Motion to Modify the 

 

3

 In footnote 2, the Order cites a treatise and decisions modifying a caption 

where “the body of the complaint correctly identifies the party being sued” and 

where the “body of the complaint make it plain that the party is intended as a 

defendant.” (Order at 6, n.2, emphasis added.) Nothing in Ford’s original or 

amended complaint “correctly identifies” or “make(s) it plain” that Versata 

Development Group (or its predecessor) was a party to this case. On the contrary, 

Ford’ original complaint, and all amended complaints, expressly state that (1) Ford 

sued the “California” Trilogy Development Group, and (2) that the entity was 

associated with Versata Software. (Dkt. #1 at ¶3-4; Dkt. #6 at ¶3-4; Dkt. #226 at ¶3-

4.) This is consistent with Ford’s attempted service on the predecessor of Versata 

Software. (Exs. A, B and C.) 

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Caption. Third, Defendants did not include the footnote in their original answer, 

which was pending from October 2015 through February 2017. Despite always

knowing who, in fact, owned what intellectual property, Defendants made no 

mention of Versata Development Group until two years after the case began. 

Regardless, an answer cannot change the parties by footnote. See Schreiber Foods, 

402 F.3d at 1202, n.3; Lynch, 382 F.3d at 647; Lujan, 504 U.S. at 570 n. 5. 

The Order also cites Ford’s statement in a brief associated with Defendants’

Motion to Modify the Caption that Ford “intended to name, and proceed through 

trial, with the correct parties in this case.” (Order at 8.) That is an accurate statement 

of Ford’s intention, but it does not change the fact that the current Defendants lack 

standing to assert four of the at-issue patents, the trade secrets, and the copyrights. 

Ford was not aware of this standing defect at the time of its original or amended 

complaints. 

Finally, the Order cites Ford’s motion to dismiss the Texas litigation where 

Ford stated that the parties in the two cases were “the same.” (Order at 10.) Both 

cases named Trilogy, Inc. and Versata Software, Inc. Those parties were identical. 

Both cases additionally identified “Trilogy Development Group” as a former name 

of Versata Software, Inc. The Texas case also identified “Trilogy Development 

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Group” as a former name for Versata Development Group, Inc.4 This common use 

of the name “Trilogy Development Group” lead to Ford’s belief at that time that the 

parties in the two cases were the same. Despite Defendants knowing all the facts,

Defendants did not explain that at least three different entities have existed with that 

same name, or that different entities owned intellectual property asserted in this 

case. Ford’s subsequent discovery, years after the Texas litigation, has unscrambled

this web of identically-named entities. Ford’s pre-discovery statements concerning 

the apparent similarity between the parties in the Michigan and Texas cases are fair 

given the ambiguity over the identically-named entities, and Defendants’ failure to 

clarify that ambiguity. Regardless, Ford’s statement at that early stage of the case 

cannot change the fact that the current Defendants lack standing to assert four of the 

at-issue patents, the trade secrets and the copyrights.

 

4 Versata’s complaint in the Texas action did not identify the State of 

Incorporation of the “Trilogy Development Group” entity.

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III. CONCLUSION

Ford respectfully requests that the Court reconsider its Order because it is 

contrary the facts surrounding Ford’s original complaint, and the applicable law. 

Defendants’ repeated admission of Ford’s allegation in Paragraph 4, together with 

the circumstances of attempted service on Trilogy Development Group, confirm that 

Ford neither sued, nor intended to sue, the predecessor of Versata Development 

Group. The Court should deny the Defendants’ motion to modify the case caption. 

 Respectfully submitted, 

Dated: June 19, 2018 By: /s/ John S. LeRoy 

John S. LeRoy (P61964)

Thomas A. Lewry (P36399)

Frank A. Angileri (P45611)

Chanille Carswell (P53754)

John P. Rondini (P72254)

Jonathan D. Nikkila (P75666)

1000 Town Center, 22nd Floor

Southfield, MI 48075

Tel.: 248-358-4400 / Fax: 248-358-3351

jleroy@brookskushman.com

tlewry@brookskushman.com

fangileri@brookskushman.com

ccarswell@brookskushman.com

jrondini@brookskushman.com

jnikkila@brookskushman.com

James P. Feeney (P13335)

DYKEMA GOSSETT PLLC

39577 Woodward Ave, Suite 300

Bloomfield Hills, MI 48304

jfeeney@dykema.com

Attorneys for Ford Motor Company

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CERTIFICATE OF ELECTRONIC SERVICE

I hereby certify that on June 19, 2018, I electronically filed the foregoing 

FORD’S MOTION FOR RECONSIDERATION OF ORDER GRANTING 

DEFENDANTS’ MOTION TO MODIFY THE CASE CAPTION (DKT. #499) 

with the Clerk of the Court for the Eastern District of Michigan using the ECF 

System which will send notification to the following registered participants of the 

ECF System as listed on the Court's Notice of Electronic Filing: Rodger D. Young 

at efiling@youngpc.com; James P. Feeney at jfeeney@dykema.com,

srobb@dykema.com & docket@dykema.com; Steven Mitby at 

smitby@azalaw.com; Martha J. Olijnyk at mjo@millerlawpc.com & 

aad@millerlawpc.com; Lanny J. Davis at ldavis@lannyjdavis.com; Stephen W. 

King at sking@kingandmurray.com; Iftikhar Ahmed at IftiAhmed@azalaw.com; 

Sharoon Saleem - sharoon.saleem@jonesspross.com. 

I also certify that I have mailed by United States Postal Service the paper to 

the following non-participants in the ECF System: NONE.

 /s/ John S. LeRoy 

John S. LeRoy (P61964)

Thomas A. Lewry (P36399)

Frank A. Angileri (P45611)

Chanille Carswell (P53754)

John P. Rondini (P72254)

Jonathan D. Nikkila (P75666)

BROOKS KUSHMAN P.C.

Attorneys for Plaintiff

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