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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

WILLIAM L. SLOAN, EUGENE J.

WINNINGHAM, BOB L. BERTRAM, JAMES

L. KELLEY, on behalf of themselves and a

similarly situated class,

Plaintiffs,

v.

BORGWARNER, INC., BORGWARNER

DIVERSIFIED TRANSMISSION PRODUCTS,

INC. and BORGWARNER FLEXIBLE

BENEFITS PLANS,

Defendants.

___________________________________ /

Civil Case Number: 09-CV-10918

PAUL D. BORMAN

UNITED STATES DISTRICT COURT 

OPINION AND ORDER 

DENYING DEFENDANTS’ MOTION TO STAY PROCEEDINGS PENDING SIXTH

CIRCUIT’S DETERMINATION ON WRIT OF MANDAMUS AND 

GRANTING IN PART DEFENDANTS’ ALTERNATIVE MOTION TO ENLARGE

DEADLINES RELATED TO PENDING CLASS CERTIFICATION MOTION

Now before the Court is Defendants BorgWarner, Inc.’s, BorgWarner Diversified

Transmission Products Inc.’s (“DTP”), and BorgWarner Flexible Benefit Plans’ (collectively,

“Defendants”) Motion to Stay Proceedings Pending Sixth Circuit’s Determination on Writ of

Mandamus and Alternative Motion to Enlarge Deadlines Related to Pending Class Certification

Motion. (Dkt. No. 46). For the reasons stated below, the Court DENIES Defendants’ Motion to

Stay Proceedings Pending Sixth Circuit’s Determination on Writ of Mandamus, and GRANTS

IN PART Defendants’ Alternative Motion to Enlarge Deadlines Related to Pending Class

Certification Motion. 

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I. BACKGROUND

Plaintiffs Willard J. Sloan, Eugene J. Winningham, Bob L. Bertram, and James L. Kelley

(collectively, “Plaintiffs”) filed this putative class action on March 11, 2009. (Dkt. No. 1). In

their Complaint, Plaintiffs allege that in February 2009, they received notice that their retiree

health care coverage would be reduced effective May 1, 2009. 

On March 26, 2009, Defendants filed a Motion to Transfer this case to the U.S. District

Court for Southern District of Indiana, (Dkt. No. 8), which this Court denied on June 17, 2009. 

(Dkt. No. 30). 

On June 22, 2009 Defendants issued Notices of Depositions of the Plaintiffs, purportedly

to depose them about their adequacy to serve as class representatives for the putative class. On

June 30, 2009, Plaintiffs filed a Motion for Protective Order, which Judge Borman referred to

Magistrate Judge Majzoub on July 7, 2009. (Dkt. No. 38). That motion sought to protect

Plaintiffs from the undue burden and expense of being subject to unnecessary, duplicative, and

premature depositions. 

Also on July 7, 2009, Defendants filed a Motion for Expedited Discovery or in the

Alternative Postponement of the Hearing on the Motion for Class Certification (Dkt. No. 39),

which Judge Borman referred to Magistrate Judge Majzoub that same day. (Dkt. No. 40). That

motion asks the Court to order Plaintiffs to be available for depositions on or before July 17,

2009. Thus, Defendants’ expedited discovery motion requests the same thing that Plaintiffs

sought to oppose in their Motion for Protective Order—limited discovery for the purposes of

determining the adequacy of class representation. 

On July 17, 2009, Magistrate Judge Majzoub issued an order on Plaintiffs’ Motion for

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Protective Order, requiring the parties to file proposed protective orders to her chambers before

July 31, 2009. (Dkt. No. 44). The parties submitted proposed protective orders to Magistrate

Judge Majzoub on or before July 31, 2009. 

On August 12, 2009, Magistrate Judge Majzoub filed an Opinion and Order Granting

Plaintiffs’ Motion for a Protective Order and Denying Defendants’ Motion to Expedite

Discovery (“August 12, 2009 Opinion and Order”). (Dkt. No. 50). In ruling that Defendants

should not be allowed to take Plaintiffs’ depositions at this early stage of the litigation,

Magistrate Judge Majzoub reasoned that Defendants have already deposed each Plaintiff on their

qualifications to be class representatives in a prior related action and that Defendant DTP

acknowledged in its Amended Complaint for Declaratory Judgment against Defendant [here,

Plaintiff] Class filed in the Southern District of Indiana that Plaintiffs “will fairly and adequately

protect the interests of the [putative class].” (Dkt. No. 35 Ex. 11 at ¶ 49). 

Before the parties’ proposed protective orders were due to Magistrate Judge Majzoub,

however, Defendants filed a Motion to Stay Proceedings Pending Sixth Circuit’s Determination

on Writ of Mandamus and Alternative Motion to Enlarge Deadlines Relating to Pending Class

Certification Motion on July 22, 2009. (Dkt. No. 46). That motion is the subject of the Court’s

instant Opinion and Order. 

II. ANALYSIS 

A. Motion for Stay Pending Writ of Mandamus

Defendants request that this Court stay the instant proceedings pending the Sixth

Circuit’s determination of their Writ of Mandamus. Defendants argue that if the Sixth Circuit

grants the writ and orders this Court to transfer this matter to the Southern District of Indiana,

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this Court and the parties will have wasted precious resources litigating in the incorrect forum. 

Defendants, however, fail to cite authority upon which this Court may grant the relief that they

request. 

While district courts in the Sixth Circuit apparently have not yet had the occasion to

address a motion to stay pending a petition for writ of mandamus, district courts in other circuits

have granted stays pending petitions for writ of mandamus. See Ruppert v. Principal Life Ins.

Co., No. 06-cv-903-DRH, 2007 U.S. Dist. LEXIS 49294 (S.D. Ill. July 9, 2007) (unpublished)

(ordering a stay of the proceedings pending a resolution of a writ of mandamus seeking a review

of the court’s transfer order); see also Citizens for Responsibility & Ethics v. Cheney, 580 F.

Supp. 2d 168 (D.D.C. 2008). 

In making its determination of whether to grant Defendants’ Motion to Stay, the Court

finds convincing the U.S. District Court for the District of Columbia’s application of the factors

governing a stay pending appeal to a stay pending petition for writ of mandamus. See Cheney,

580 F. Supp. 2d at 177. Those factors are: (1) the likelihood that the moving party will prevail

on the merits of the petition; (2) the likelihood that the moving party will be irreparably harmed

absent a stay; (3) the prospect that others will be harmed if the Court grants the stay; and (4) the

public interest in granting the stay. Id. (citations omitted); cf. Grutter v. Bollinger, 247 F.3d 631,

632 (6th Cir. 2001) (listing the nearly identical four factors governing a stay pending appeal). 

1. Likelihood of Prevailing on the Merits of the Petition

First, it is important to note that the Sixth Circuit has held that “[m]andamus is not

available to control the discretion of [a d]istrict [c]ourt in acting upon a motion to transfer,” 

Hoffa v. Gray, 323 F.2d 178, 179 (6th Cir. 1963) (citations omitted), and that mandamus is

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appropriate only “in the exceptional case where there [has been] a clear abuse of discretion or

usurpation of judicial power.” Panhandle v. Eastern Pipe Line Co v. Thornton, 267 F.2d 459

(6th Cir. 1959)). 

In Panhandle, the Sixth Circuit held that it was improper to review a district court’s

ruling under 28 U.S.C. § 1404(a) by mandamus proceedings, where the petitioner had made no

showing of having sought relief under 28 U.S.C. § 1292(b). Id. at 461. The court added that

except in really extraordinary circumstances, the Sixth Circuit “shall stop [] mandamus

proceedings at the very threshold, by denying leave to file the petition for a writ of mandamus.” 

Id. (emphasis added). 

Even assuming that this case involves those really extraordinary circumstances that 

warrant mandamus review by the Sixth Circuit, Defendants’ likelihood of success on the merits

is slim, at best. Recently, in Reese v. CNH America LLC, Nos. 08-1234/1302/1912, slip op. at 4-

6 (July 27, 2009), the Sixth Circuit, on appeal, affirmed the district court’s application of the

strongly favor standard—the very same standard that Defendants argue this Court abused its

discretion in applying to Defendants’ transfer motion. In addition, in Reese, the Sixth Circuit

stressed that “district courts have ‘broad discretion’ to determine when party ‘convenience’ or

the ‘interests of justice’ make transfer appropriate” and that “[o]nly when the district court

‘clearly abuse[s] its discretion’ in balancing these consideration will [it] reverse.” Id. at 4-5

(quoting Phelps v. McClellan, 30 F.3d 658, 663 (6th Cir. 1994)). The Sixth Circuit then went on

to review the relevant facts of the case, which arguably favored transfer more than those in the

instant action, and found that “[c]ompelling considerations favor both parties’ positions, making

it difficult to say that the district court would have abused its discretion had he picked either

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location as the more appropriate forum.” Id. at 6. 

Therefore, the likelihood of success on the merits factor clearly weighs in favor of

denying the stay pending the petition for writ of mandamus. 

2. Likelihood of Irreparable Harm to the Moving Party Absent a Stay

Defendants assert that it will have wasted precious resources in having to litigate the

action in the incorrect forum and that the harm that the writ seeks to redress—the burden of

preceding in a court that should have transferred to a more convenient forum—already will have

been inflicted. The Court agrees that if the Sixth Circuit grants the writ, Defendants will have

expended resources arguing its case in this forum. Defendants, however, reside in this district

and have little or no presence in the district to which they seek a transfer. It is only their

attorneys and a few witnesses that will have to travel to this forum as the litigation proceeds. 

The burden to them, as the party petitioning for the writ, seems rather minor. Thus, this factor

does not favor granting Defendants’ Motion to Stay. 

3. Prospect of Harm to Others

Plaintiffs filed suit in this Court after learning that Defendants intended to reduce their

health care benefits on May 1, 2009. Assuming that Plaintiffs’ benefits have been reduced from

their pre-May 1, 2009 levels, if the Court were to grant the stay, then Plaintiffs would have to lay

out at least some cash to pay for their health care, and wait even longer to have their benefits

reinstated to their pre-May 1, 2009 levels should they ultimately prevail in this lawsuit. 

Therefore, the prospect of harm to others clearly weighs against granting the stay. 

4. Public Interest in Granting the Stay 

On one hand, there is a strong public interest in promptly resolving disputes like this one

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that affect large numbers of people and even perhaps an entire community. 

On the other hand, however, the Court is mindful that its early decisions in this case may

be imposed upon another judge should the Sixth Circuit grant Defendants’ petition. Shortly

after this Court denied Defendants’ transfer motion, both parties moved the Court regarding

Defendants’ desire to conduct limited discovery for the purposes of determining the adequacy of

Plaintiffs’ representation of the putative class. In addition, Plaintiffs have an outstanding motion

to certify the class, which is scheduled for hearing on August 19, 2009. If the Sixth Circuit were

to grant Defendants’ petition, and the Court already were to have definitely ruled on these

outstanding motions, then the Southern District of Indiana would receive decided issues that

could shape the remainder of the litigation. 

The public interest in promptly resolving class actions like the instant case is not offset

by the impact of this Court’s rulings potentially being imposed upon the transferee court, the

U.S. District Court for the Southern District of Indiana. Therefore, this factor also does not

weigh in favor of granting the stay

Because these four factors weigh against granting the stay pending the petition for writ of

mandamus, the Court denies Defendants’ Motion to Stay. 

B. Alternative Motion to Enlarge Deadlines Relating to Pending Class

Certification Motion

Defendants’ July 22, 2009 Alternative Motion to Enlarge Deadlines Relating to Pending

Class Certification Motion (Dkt. No. 46) requests the same relief sought by Defendants in their

July 7, 2009 Alternative Motion for Postponement of the Hearing the Motion for Class

Certification. (Dkt. No. 39). In both motions, Defendants seek more time to respond to

Plaintiffs’ Motion for Class Certification. In her August 12, 2009 Opinion and Order, after

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denying Defendants’ Motion to Expedite Discovery, Magistrate Judge Majzoub declined to

address Defendants’ request for a postponement of the hearing on Plaintiffs’ Motion for Class

Certification. 

Defendants’ Response to Plaintiff’s Motion for Class Certification was due on July 22,

2009. Because Magistrate Judge Majzoub had not yet ruled on Plaintiff’s July 7, 2009

Alternative Motion for Postponement of the Hearing on the Motion for Class Certification by

July 22, 2009, the Court grants in part Defendants’ Alternative Motion to Enlarge Deadlines

Relating to Pending Class Certification Motion and allows Defendants more time, as set forth

below, to respond to Plaintiff’s Motion for Class Certification. 

III. CONCLUSION

For the reasons stated, the Court:

(1) DENIES Defendants’ Motion to Stay;

(2) GRANTS IN PART Defendants’ Alternative Motion to Enlarge Deadlines

Relating to Pending Class Certification Motion; 

(3) RESCHEDULES the hearing on Plaintiff’s Motion for Class Certification to

Monday, August 24, 2009; and 

(4) ORDERS Defendants to respond by Wednesday, August 19, 2009 and Plaintiffs

to reply by Friday, August 21, 2009. 

SO ORDERED.

s/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: August 14, 2009

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CERTIFICATE OF SERVICE

Copies of this Order were served on the attorneys of record by electronic means or U.S. Mail on

August 14, 2009.

s/Denise Goodine 

Case Manager

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