Ford Motor Company et al v. Thermoanalytics, Inc.

Filing 29

ORDER GRANTING PLAINTIFFS MOTION FOR LEAVE TO AMEND THE COMPLAINT #19 , DENYING DEFENDANTS EX PARTE MOTION FOR LEAVE TO FILE SUR-REPLY #24 AS MOOT, AND ISSUING FIRST AMENDED SCHEDULING ORDER. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

FORD MOTOR COMPANY,
and
FORD GLOBAL TECHNOLOGIES, LLC

Case No. 14-cv-13992

Plaintiffs,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.

UNITED STATES MAGISTRATE JUDGE
R. STEVEN WHALEN

THERMOANALYTICS, INC.,
Defendant.
/

ORDER GRANTING PLAINTIFFS’ MOTION FOR LEAVE TO AMEND THE COMPLAINT [19],
DENYING DEFENDANT’S EX PARTE MOTION FOR LEAVE TO FILE SUR-REPLY [24]
AS MOOT, AND ISSUING FIRST AMENDED SCHEDULING ORDER
I. INTRODUCTION
Ford Motor Company and Ford Global Technologies, LLC (collectively “Plaintiffs” or
“Ford”) initiated this action against Thermoanalytics, Inc. (“Defendant” or “Thermoanalytics”)
on October 16, 2014. See Dkt. No. 1. In the original complaint, Ford states that this action is “for
false designation of origin or sponsorship pursuant to 15 U.S.C. § 1125(a), [] cancellation of
federal trademark registration (no. 2,695,172) for RADTHERM pursuant 15 U.S.C. §§ 1064 and
1119, and for related claims relating to the rights of the parties under [a] License Agreement.” Id.
Presently before the Court is Ford’s Motion for Leave to Amend the Complaint [19]. The
Motion is fully briefed. However, Thermoanalytics has filed an Ex Parte Motion for Leave to
File Sur-Reply [19] because it contends that Ford’s Reply brief exceeds the Court’s length limit.
After reviewing the arguments in both pending Motions, the Court will GRANT Ford’s Motion
for Leave to Amend the Complaint [19], because the Motion for Leave to Amend was filed per

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the terms of this Court’s scheduling Order. The Court will DENY Thermoanalytics’ Ex Parte
Motion for Leave to File Sur-Reply [19] as moot. In order to quell concerns about prejudice to
Thermoanalytics, the Court will amend the Scheduling Order.
II. DISCUSSION
Thermoanalytics contends that amendment at this late date would cause significant
prejudice. See Dkt. No. 22 at 2. Moreover, Thermoanalystics argues that amendment in this case
would be futile. See id. at 3. However, Thermoanalytics ignores the fact that Rule 15 of the
Federal Rules of Civil Procedure indicates that “a party may amend its pleading only with the
opposing party’s written consent or the court’s leave.” FED. R. CIV. P. 15(a)(2) (emphasis
added). Ford did not need to file a Motion for Leave to Amend the Complaint because the Court
already permitted such leave in its Scheduling Order. See Dkt. No. 14. Indeed, in the Scheduling
Order, this Court indicated that the final date to amend pleadings or join parties was June 25,
2015. See id. Ford filed this Motion on June 25, 2015. Because the Motion for Leave was filed
pursuant to the Scheduling Order, the Court will GRANT the Motion for Leave to Amend the
Complaint [19].
Because the Court is granting Ford’s Motion on these grounds, the Court will DENY
Thermoanalytics’ Ex Parte Motion for Leave to File Sur-Reply [19] as moot. The Court will
extend additional time to prevent prejudice due to the time it took to respond to this dispute.
Additionally, Thermoanalytics is correct in pointing out that the motions and supporting briefs
submitted by Ford are impermissibly small pursuant to the Court’s Local Rules. The Local Rules
require that “the type size of all text and footnotes must be no smaller than . . . 14 point
(proportional).” E.D. Mich. LR 5.1(a)(3). Although the Court is unable to discern exactly what
font size Ford used in submitting its brief, it is unquestionably smaller than 14 point. The

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majority of Ford’s brief appears to be formatted in 11–point font. Accordingly, Ford is hereby
cautioned that failure to abide by the Local Rules in the future may result in any improper
documents being struck from the record or the imposition of sanctions against counsel.
IV. CONCLUSION
For the reasons discussed, the Court HEREBY GRANTS Plaintiffs’ Motion for Leave to
Amend the Complaint [19]. Defendant’s Ex Parte Motion for Leave to File Sur-Reply [19] is
HEREBY DENIED as moot. In order to quell any concerns of prejudice to Defendant, the Court
will grant additional time for discovery in this case. Accordingly, IT IS HEREBY ORDERED
that the following dates will govern this case:
YOU WILL RECEIVE NO FURTHER NOTICE OF THESE DATES
Discovery Cutoff:

1

December 15, 2015

Date for Exchanging Reports of Expert Witnesses:

February 15, 2016

Date for Supplementations Under Rule 26(e):

February 15, 2016

Dispositive Motion Cutoff:

March 15, 2016

Case Evaluation:2

June of 2016

Settlement Conference before Magistrate Judge
R. Steven Whalen:

July of 2016

Motions in Limine due:

July 14, 2016

Final Pretrial Order due:

August 4, 2016

Final Pretrial Conference:

August 11, 2016 at 10:00 a.m.

Trial Date:

August 30, 2016 at 9:00 a.m.

Bench Trial
Estimated Length of Trial: 10 half days
1

Per the agreement of the Parties, the maximum number of interrogatories and requests for admission “served by
each party to another party shall be limited to 20, and answers shall be due within 30 days of being served.” Dkt.
No. 13 at 2. Additionally, each party may conduct a maximum of ten (10) depositions, which shall not exceed seven
(7) hours in length. Id.
2
The parties may submit the case to facilitation in lieu of case evaluation. A proposed stipulated order referring case
to facilitation shall be submitted to the Court via the utilities function on CM/ECF no later than February 29, 201.
The proposed order must identify the facilitator and the date set for facilitation. Facilitation must occur no later than
June 30, 2016.

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I.

TIME. Computation of time under this order and under any notice of any scheduling
order or notice in this case shall be in conformity and accordance with Federal Rule of
Civil Procedure 6(a).

II.

DISCOVERY. Discovery shall be completed on or before the date set forth in the
scheduling order. The court will not order discovery to take place subsequent to the
discovery cutoff date. The discovery deadline may be extended by filing a stipulation
with the court only if the extension of time does not affect the dispositive motion cut-off,
final pretrial conference or trial dates. Extensions or adjournments of all other dates will
only be considered upon the filing of a timely written motion for good cause shown.
Local Rule 26.2 generally prohibits filing discovery materials with the Clerk. Violation
of this rule may result in sanctions.

III.

FINAL PRETRIAL CONFERENCE AND FINAL PRETRIAL ORDER. The Final
Pretrial Order must be submitted through the document utilities function of the CM/ECF
on or before the date set by this order. All witnesses must be listed in the Final Pretrial
Order. Witnesses may only be added to the Final Pretrial Order by stipulation of the
parties and leave of court. Counsel shall follow the procedure outlined below to prepare
for the final pretrial conference and the Final Pretrial Order:
A.

Counsel for all parties are directed to confer in person (face to face) at their
earliest convenience in order to (1) reach any possible stipulations narrowing the
issues of law and fact, (2) deal with non-stipulated issues in the manner stated in
this paragraph, and (3) exchange documents that will be offered in evidence at
trial. It shall be the duty of counsel for plaintiff to initiate that meeting and the
duty of opposing counsel to respond to plaintiff’s counsel and to offer full
cooperation and assistance. If, after reasonable effort, any party cannot obtain the
cooperation of opposing counsel, it shall be his or her duty to communicate with
the court. The Final Pretrial Order shall fulfill the parties’ disclosure obligations
under Federal Rule of Civil Procedure 26(a)(3), unless the Judge orders
otherwise. All objections specified in Rule 26(a)(3) shall be made in this order.
Counsel for plaintiff shall prepare a draft Final Pretrial Order and submit it to
opposing counsel, after which all counsel will jointly submit the proposed order.
The Final Pretrial Order should provide for the signature of the court, which,
when signed, will become an Order of the court. The proposed Final Pretrial
Order shall strictly comply with the requirements of Local Rule 16.2.

* Pursuant to Local Rule 16.2(b)(9), any objection based on foundation or
authenticity will be deemed waived if not raised before trial.
B.

The following persons shall personally attend the final pretrial conference:
1) Trial counsel for each party;
2) All parties who are natural persons;
3) A representative on behalf of any other party;

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4) A representative of any insurance carrier that has undertaken the prosecution
or defense of the case and has contractually reserved to itself the ability to
settle the action.
Representatives must possess full authority to engage in settlement discussions and
to agree upon a full and final settlement. “Personal attendance” by each party is
not satisfied by (1) trial counsel professing to have full authority on behalf of the
client or (2) a party being available by telephone.
IV.

At least ONE WEEK prior to the beginning of trial, counsel shall furnish to the court the
following:
A.

In jury cases, any requests for VOIR DIRE, proposed JOINT JURY
INSTRUCTIONS and the VERDICT FORM. The parties shall file with the
court a single set of proposed, stipulated jury instructions and a single, proposed
verdict form. The instructions are to be typewritten and double spaced and shall
contain references to authority (e.g., “Devitt and Blackmar, Section 11.08").
Additionally, each party shall separately file any additional proposed instructions
to which any other party objects. The parties must make a concerted, good faith
effort to narrow the areas of dispute and to discuss each instruction with a view to
reaching an agreement as to an acceptable form.

B.

In a non-jury case, proposed FINDINGS OF FACT and CONCLUSIONS OF
LAW.

C.

A statement of claims or defenses, no longer than two pages, suitable to be read to
the jury during opening instructions.

V.

EXHIBITS. Counsel are required to mark all proposed exhibits in advance of trial.
Plaintiff’s exhibits shall use numbers and Defendant’s exhibits shall use letters. A
consecutive number and lettering system should be used by each party. The parties are
required to exchange marked exhibits three days prior to the start of trial. Counsel are
also required to maintain a record of all admitted exhibits during trial. See attached
exhibit form. Counsel for each party must keep custody of that party’s admitted exhibits
during trial. A party who objects to this provision must file a written objection prior to
jury selection.

VI.

JUDGE’S COPIES. A paper copy of electronically filed motions, briefs, attachments,
responses, replies, proposed Final Pretrial Order, and proposed Joint Jury Instructions
(with disc) MUST be delivered directly to the Judge’s chambers and labeled Judge’s
copy.

VII.

The court will not allow counsel not admitted in the Eastern District to practice upon a
special motion. All inquiries regarding admission to this district must be directed to the
Clerk’s office at [phone].

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VIII.

LOCAL COUNSEL. An attorney admitted to practice in the Eastern District of
Michigan who appears as attorney of record and is not an active member of the State Bar
of Michigan must specify local counsel with an office in this district. Local counsel must
enter an appearance and otherwise comply with Local Rule 83.20(f).
SO ORDERED.

Dated: August 14, 2015
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge
CERTIFICATE OF SERVICE
Copies of this Order were served
upon attorneys of record on
August 14, 2015, by electronic mail.
/s/ Tanya Bankston
Deputy Clerk

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HONORABLE GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE
231 W. LAFAYETTE #1013
DETROIT, MI 48226
PHONE: [phone]
CASE MANAGER:

FAX: [phone]
Tanya Bankston

CONFERENCES

Scheduling conferences held after answer filed and scheduling order
issued. Status conference held as needed or requested. Settlement
conference before Magistrate Judge assigned to the case required.

MOTIONS

Hearings held on most motions. Proposed orders shall be attached to the
motion, as well as submitted through the document utilities function of the
CM/ECF. Strict compliance required with Local Rules 7.1 and 65.1.

DISCOVERY

Discovery shall be completed on or before the date set forth in the
scheduling order.

MEDIATION

Civil cases referred after discovery cut-off and parties are encouraged to
stipulate in writing to be bound by mediation sanctions. It is not
necessary, however, that sanctions be included in the stipulation.

PRETRIAL

Final Pretrial Order generally due one week before final pretrial
conference. Witnesses may only be added to the final pretrial order by
stipulation of the parties and leave of court. Final pretrial conference
usually held two weeks prior to trial, parties and/or persons with
settlement authority must be present.

TRIAL

Attorneys are responsible to ascertain the status of the trial date. Marked
exhibits are to be exchanged three (3) days prior to trial. Benchbook of
exhibits is required. If trial briefs are required by the court, they must be
filed one (1) week prior to trial. File motions in limine no later than four
(4) weeks prior to the final pretrial conference. Trial is usually held 9:00
a.m. to 4:00 p.m. daily.

NON-JURY

Submit proposed findings of fact/conclusions of law, one (1) week prior to
trial.

JURY

Voir dire by court. Submit proposed voir dire one (1) week prior to trial.
Proposed joint jury instructions and verdict form due one (1) week prior to
trial. Judge’s courtesy copy and disc required.

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PLAINTIFF’S EXHIBITS
DEFENDANT’S EXHIBITS
EXHIBIT
NO.

DESCRIPTION

DATE
OFFERED

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OBJECTED
TO

RECEIVED