Magna Mirrors of America, Inc. v. Dura Global Technologies LLC et al

Filing 51

APPOINTMENT and ORDER of Reference to Special Master. Signed by District Judge Avern Cohn. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MAGNA MIRRORS OF AMERICA, INC.,
Plaintiff,
Case No. 10-12283
-vs-

HON. AVERN COHN

DURA GLOBAL TECHNOLOGIES, INC.,
Defendant.
______________________________________/
APPOINTMENT AND ORDER OF
REFERENCE TO SPECIAL MASTER
This is a patent case. The patent-in-suit is U.S. Patent No. 6,955,009B2 (the ‘009
Patent), covering a Power Sliding Window Assembly. Plaintiff has designated the
paradigm claim as Claim 1, and advised defendant of its infringement contentions. Doc.
28. Currently pending before the Court is the first phase of the case, claim interpretation,
the Markman proceeding. The papers thus far consist of the following: Scheduling Order
for Markman Phase of the Case (Doc. 34); Notice by Dura of Words and Phrases in
Paradigm Claim 1 that Require Interpretation (Doc. 38); Notice by Magna of Proposed
Construction of Disputed Claim Terms (Docs. 45-46); and Dura’s Markman brief. Doc.
48. Because of the complexity of the subject matter it is ordered that:
1.

The Markman proceeding shall be conducted by Christopher G. Darrow as

Special Master in accordance with Fed. R. Civ. P. 53(c) and (d) to decide upon and
recommend in writing the appropriate interpretation of disputed claim terms.1
1

Although the Special Master has discretion as to the form of his report, the Court
suggests the following:

2.

The Special Master shall confer with the parties to arrange a schedule for

briefing and other matters.
3.

Copies of papers filed with the Special Master shall also be filed

simultaneously with the Clerk of the Court and served pursuant to applicable federal
rules and a copy shall be simultaneously sent to the Court. Forwarding letters or
informal communications need not be filed, but should be served on the opposite party.
4.

The Special Master may conduct meetings at a location(s) to be agreed

upon by the parties and the Special Master. The Special Master may conduct hearings
and meetings at a location(s) of the Special Master’s choice after consultation with the
parties.
5.

The Special Master may communicate with the Court ex parte on

procedural matters.

1.

The claim should be displayed element by element with each element
numbered. (See Exhibit A)

2.

The ambiguous words or phrases in an element should be identified.

3.

Each identified word or phrase should be interpreted separately.

4.

Means plus function elements require description of function and
identification of structure corresponding to means identified in the
specification. The specification language should be identified full text.

5.

In a report and recommendation, each identified word or phrase should be
discussed separately. The discussion should include the parties’ proposed
interpretation followed by the recommended interpretation. The Special
Master shall include a chart as shown in Exhibit B as part of his report and
recommendation.

6.

For ease of understanding, when a word or phrase in an element is
discussed its number should be referenced.

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6.

Before filing his report, the Special Master shall submit a draft of his report

to counsel for the purpose of receiving their suggestions.2 After receipt and
consideration of counsels’ suggestions, the Special Master shall issue his report..
7.

A petition for review by the Court shall be submitted in writing within ten

(10) days of receipt of the Special Master’s report. Review of the recommendations of
the Special Master by the Court shall be governed by 28 U.S.C. § 636(b)(1)(B) and (C).
8.

The Special Master may use law clerks or paralegals at his discretion and

shall keep detailed records of his time and expenses. The Special Master shall render
detailed monthly bills for all fees and expenses at the same rates ordinarily charged
clients for his services, and such bills shall be paid promptly as follows: fifty percent
(50%) by plaintiff and fifty percent (50%) by defendants. The monthly bills shall be
submitted directly to counsel for the parties who shall take responsibility for prompt
payment by their respective clients within thirty (30) days.
9.

Objections, if any, to this order shall be filed within seven (7) days.

SO ORDERED.

Dated: April 29, 2011

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, April 29, 2011, by electronic and/or ordinary mail.
S/Julie Owens
Case Manager, [phone]

2

“This is known as settling the master’s report.” Dobie, The Federal Rules of Civil
Procedure, 25 Va. L. Rev. 261, 293 n. 128 (1939).

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