Meridian Electric Company, Inc. v. Energizer Holdings, Inc.

Filing 26

ORDER granting 25 motion to intervene filed by the United States of America and certifying to the Attorney General of the United States that a statute has been questioned. The United States has up to and including May 25, 2011, to file a brief. Signed by Chief Judge David R. Herndon on 4/25/2011. (msdi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

MERIDIAN ELECTRIC COMPANY, INC.
Plaintiff,
v.
ENERGIZER HOLDINGS, INC.,
Defendant.

Case No. 11-cv-35-DRH

ORDER

HERNDON, District Judge:

This matter comes before the Court on the United States of America’s
motion for certification and leave to intervene (Doc. 25) pursuant to 28 U.S.C. § 2403
and Federal Rule of Civil Procedure 5.1. For the reasons that follow, the Court
certifies to the Attorney General of the United States that a statute has been
questioned and permits the United States to intervene.
Federal Rule of Civil Procedure 5.1 provides as follows:
“(a) Notice by a Party. A party that files a pleading, written
motion, or other paper drawing into question the constitutionality
of a federal or state statute must promptly:
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(1) file a notice of constitutional question stating the question and
identifying the paper that raises it, if:
(A) a federal statute is questioned and the parties do not include
the United States, one of its agencies, or one of its officers or
employees in an official capacity; or
(B) a state statute is questioned and the parties do not include the
state, one of its agencies, or one of its officers or employees in an
official capacity; and
(2) serve the notice and paper on the Attorney General of the
United States if a federal statute is questioned–or on the state
attorney general if a state statute is questioned–either by certified
or registered mail or by sending it to an electronic address
designated by the attorney general for this purpose.
(b) Certification by the Court. The court must under 28 U.S.C. §
2403, certify to the appropriate attorney general that a statute has
been questioned.
(c) Intervention; Final Decision on the Merits. Unless the court
sets a later time, the attorney general may intervene within 60
days after the notice is filed or after the court certifies the
challenge, whichever is earlier. Before the time to intervene
expires, the court may reject the constitutional challenge, but may
not enter a final judgment holding the statute unconstitutional.
(d) No Forfeiture. A party’s failure to file and serve the notice, or
the court’s failure to certify, does not forfeit a constitutional claim
or defense that is otherwise timely asserted.”
FED . R. CIV . PROC. 5.1. Section 2403 provides in relevant part:
“(a) In any action, suit or proceeding in a court of the United
States to which the United States or any agency, officer or
employee thereof is not a party, wherein the constitutionality of
any Act of Congress affecting the public interest is drawn in
question, the court shall certify such fact to the Attorney General,
and shall permit the United States to intervene for presentation
of evidence, if evidence is otherwise admissible in the case, and
for argument on the question of constitutionality. The United
States shall, subject to the applicable provisions of law, have all
the rights of a party and be subject to all liabilities of a party as
to court costs to the extent necessary for a proper presentation of
the facts and law relating to the question of constitutionality.”
28 U.S.C. § 2403. Section 2403 is designed to give the attorney general a fair

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opportunity to argue and if necessary present evidence to save a statute. Dynamics
Corp. v. CTS Corp., 794 F.2d 250, 259-60 (7th Cir. 1986).
Here, plaintiff filed its complaint as a qui tam action for false patent
marking under 35 U.S.C. § 292. On February 22, 2011, defendant filed a motion to
dismiss (Doc. 7), contending that 35 U.S.C. § 292, “unconstitutionally delegates
authority to control a false marking suit to qui tam plaintiffs without providing the
Constitution-mandated Executive Branch control and/or supervision.” That same
day, in accordance with Federal Rule of Civil Procedure 5.1, defendant filed its notice
of constitutional question (Doc. 8), setting forth that the question raised by
defendant’s “constitutional challenge is whether the qui tam provision of 35 U.S.C.
§ 292(b) violates the vesting of the ‘[t]he executive Power’ in the President by Article
II of the United States Constitution, U.S. Const. art. II, § 1, cl. 1, and the Take Care
Clause of Article II of the United States Constitution, U.S. Const. art. II, § 2,” and
serving a copy of its motion to dismiss on the Attorney General of the United States.
On April 22, 2011, the United States of America filed a motion for certification and
leave to intervene (Doc. 25).
Pursuant to Federal Rule of Civil Procedure 5.1(b) and § 2403, the
Court now certifies to the Attorney General that 35 U.S.C. § 292 has been questioned,
and permits the United States to intervene in this case. Accordingly, the motion (Doc.
25) is hereby GRANTED. The United States has up to and including May 25, 2011,
to file a brief. Plaintiff and defendant have 30 days from the date the United States
files its brief to file a response, if any. The United States will have 14 days from the
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date of any response to file a reply, if any.
IT IS SO ORDERED.
Signed this 25th day of April, 2011.

David R.
Herndon
2011.04.25
20:35:27 -05'00'
Chief Judge
United States District Court

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