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Genesis Attachments, LLC v. Detroit Edge Tool Co.

United States District Court, E.D. Michigan, Southern Division

July 29, 2019

GENESIS ATTACHMENTS, LLC, Plaintiff/Counter-Defendant,
v.
DETROIT EDGE TOOL COMPANY, Defendant/Counter-Plaintiff.

          ORDER APPOINTING SPECIAL MASTER

          Hon. Matthew F. Leitman, Judge

         This is a patent infringement action. The Court has advised the parties that it would benefit from the appointment of a Special Master to efficiently address (1) disputes over claim construction, (2) discovery disputes, and (3) scheduling matters. The parties then jointly requested that the Court appoint Mr. Eric Dobrusin, 29 W. Lawrence Street, Suite 210, Pontiac, Michigan 48342, as the Special Master for these phases of the litigation.

         Mr. Dobrusin is the founding shareholder of the Dobrusin Law Firm, and he has extensive experience in patent law. He received a Bachelor of Science degree in materials and metallurgical engineering from the University of Michigan School of Engineering in 1985, and a Juris Doctor degree from Wayne State University in 1988. He has substantial litigation experience and has received numerous honors related to his work in patent law. He also has been appointed and served in United States District Court patent litigation as a Special Master, and he has served as an independent neutral for multiple alternative dispute resolution proceedings related to patent law. Finally, Mr. Dobrusin is the Executive Director of the National Patent Board, an alternative dispute resolution organization. Mr. Dobrusin is well positioned to “effectively and timely address” the patent and discovery portions of this action, and the Court is not. See Fed.R.Civ.P. 53(a)(1)(C) (emphasis added) (authorizing district court to refer any pretrial matter to a special master where the matter “cannot be effectively and timely handled by an available district judge or magistrate judge of the district”).

         Through this Order, the Court appoints Mr. Dobrusin as Special Master. The Court makes this appointment pursuant to Federal Rule of Civil Procedure 53 (“Rule 53”), and the appointment is limited to empowering Mr. Dobrusin to hold a claim construction hearing, to receive evidence on claim construction issues consistent with the evidence the parties submitted with their Markman submissions, to file a Rule 53 report and recommendation with the Court on the correct construction and/or definiteness of the patent claim terms at issue in this case, to address discovery disputes that may arise between the parties, to file Rule 53 report and recommendations with respect to any such discovery disputes, and finally, to file a Rule 53 report and recommendation with the Court with respect to scheduling matters.

         More specifically, IT IS HEREBY ORDERED that:

         1. Mr. Dobrusin shall convene a conference with the parties to discuss the entry of a scheduling order and claim constriction proceedings. Following consultation with the parties, Mr. Dobrusin shall recommend a proposed scheduling order to the Court. He shall also set a schedule for submitting claim construction briefs and shall instruct the parties on the length and format of these briefs. If, following the submission of the parties' initial claim construction briefs, Mr. Dobrusin determines that additional briefing is necessary, he shall confer with the parties to arrange a schedule for such additional briefing.

         2. Mr. Dobrusin may, at his discretion, hold a claim construction hearing where he may hear oral argument on claim construction issues and receive evidence. Mr. Dobrusin shall determine the procedure (i.e., hearing format) employed at the hearing at his discretion.

         4. At this hearing, a court reporter shall be engaged so that an adequate record can be generated. If Mr. Dobrusin determines that oral testimony is necessary during the claim construction hearing, the testimony shall be taken under oath. Mr. Dobrusin shall conduct the hearing in Flint, Michigan, in Judge Leitman's courtroom unless Mr. Dobrusin and the parties agree on an alternative location.

         5. Mr. Dobrusin shall prepare a report and recommendation for the Court on the correct construction and/or definiteness of the patent claim terms in dispute. Mr. Dobrusin shall proceed with all reasonable diligence and shall have the rights, powers, and duties provided in Rule 53, as limited by this Order. Mr. Dobrusin shall file his report and recommendation (and all other evidence discussed infra) with the Court. Mr. Dobrusin shall file any privileged and/or confidential information under seal.

         6. Mr. Dobrusin shall also address any discovery disputes that arise between the parties. If a discovery dispute arises, Mr. Dobrusin shall first hold a telephonic status conference with the parties in an effort to resolve the dispute. If the dispute cannot be resolved, Mr. Dobrusin shall set a schedule for the filing of a discovery motion and shall instruct the parties on the length and format of these motions and briefs. The parties shall thereafter file their discovery motion and briefs with Mr. Dobrusin and with the Clerk of the Court. If, following the submission of the parties' discovery papers, Mr. Dobrusin determines that additional briefing is necessary, he shall confer with the parties to arrange a schedule for such additional briefing. Mr. Dobrusin may, at his discretion, hold a hearing on the parties' discovery disputes. At any such hearing, a court reporter shall be engaged so that an adequate record can be generated. Mr. Dobrusin shall conduct any such hearing in Flint, Michigan, in Judge Leitman's courtroom unless Mr. Dobrusin and the parties agree on an alternative location. Mr. Dobrusin shall then prepare a report and recommendation for the Court that proposes a resolution of the filed discovery motion. Mr. Dobrusin shall proceed with all reasonable diligence and shall have the rights, powers, and duties provided in Rule 53, as limited by this order. Mr. Dobrusin shall file his report and recommendation with the Court upon its completion. Mr. Dobrusin shall file any privileged and/or confidential information under seal.

         7. During the term of appointment, Mr. Dobrusin shall preserve any records necessary for the Court's review of any orders, reports, or recommendations made during the course of his assignment. All evidence Mr. Dobrusin considers in preparing his report should be recorded, preserved, and filed with the Court.

         8. Copies of papers filed with Mr. Dobrusin shall also be filed simultaneously with the Clerk of the Court and served pursuant to applicable federal rules. In addition, a hard copy shall be delivered to the chambers of Judge Matthew Leitman. Forwarding letters or informal communications need not be filed but should be served on the other parties.

         9. Mr. Dobrusin shall not communicate ex parte with the individual parties. Any documents exchanged between Mr. Dobrusin and the Court shall also be timely served on the parties.

         10. Mr. Dobrusin may communicate with the Court ex parte ...


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