[00:00:00] Speaker 02:
The case is New World International and National Autoparts versus Ford Global Technologies and Ford Motor Company, 2017-1956.

[00:00:10] Speaker 02:
Mr. Oak, you're ready when you are.

[00:00:43] Speaker 03:
Good morning, Your Honors.

[00:00:44] Speaker 03:
May it please the court?

[00:00:45] Speaker 03:
May I proceed?

[00:00:46] Speaker 04:
Yes.

[00:00:47] Speaker 04:
Mr. Oak, is the motion for sanctions in this case still pending?

[00:00:50] Speaker 04:
Yes, Your Honor, it is.

[00:00:52] Speaker 04:
It's a cross-motion for sanctions.

[00:00:54] Speaker 04:
On what are you basing your statement that the 2015 actions dismissal was without prejudice?

[00:01:01] Speaker 03:
It was a dismissal for lack of personal jurisdiction.

[00:01:08] Speaker 03:
And a dismissal for lack of personal jurisdiction is, under Fifth Circuit law, is a dismissal without prejudice.

[00:01:18] Speaker 04:
You're only arguing that the, quote, final judgment on the merits requirement, which is element three, plain preclusion, is not met, right?

[00:01:28] Speaker 04:
Correct.

[00:01:30] Speaker 04:
OK.

[00:01:30] Speaker 04:
So you agree if we review this case under plain preclusion, there's the same cause of action, the same parties in it?

[00:01:38] Speaker 04:
Court of Component Jurisdiction.

[00:01:40] Speaker 04:
So the other three are there.

[00:01:44] Speaker 03:
Well, there are different parties.

[00:01:48] Speaker 03:
Ford Motor Company was sued in the amended complaint.

[00:01:53] Speaker 03:
And there's a successor in interest argument.

[00:01:58] Speaker 03:
there where Ford Global then steps into the shoes of Ford Motor Company.

[00:02:03] Speaker 03:
Now there's, I guess there's a privity argument there, but there is a different party and there's also different patents involved in the amended complaint.

[00:02:12] Speaker 04:
If we agree with your, that your first case was dismissed without prejudice, there's case law from the DC Circuit that states that doesn't matter for purposes of finding race due to condom.

[00:02:25] Speaker 04:
e.g.

[00:02:27] Speaker 04:
Dozier versus Ford Motor Company.

[00:02:29] Speaker 03:
What's your response to that?

[00:02:31] Speaker 03:
The rule is different in the Fifth Circuit, and that is not a claim for preclusion issue.

[00:02:36] Speaker 03:
That is an issue, preclusion issue.

[00:02:39] Speaker 03:
It's the so-called curable defects.

[00:02:42] Speaker 04:
In some of the circuits... How do we distinguish Comer, then, if you do your issue preclusion?

[00:02:51] Speaker 03:
Well, Comer, the Comer case was based on subject matter jurisdiction.

[00:02:56] Speaker 03:
And so it was dismissed with prejudice.

[00:03:01] Speaker 03:
So the Comer case is relevant to a claim preclusion argument.

[00:03:07] Speaker 01:
Assuming we agree with you that race judicata is the wrong phraseology here, because I think everybody recognizes that sometimes these things get mushed, but that race judicata always needs a final judgment on the merits.

[00:03:22] Speaker 01:
I think that's a given.

[00:03:24] Speaker 01:
and that I think it just was sloppy for all these cases.

[00:03:28] Speaker 01:
And if you look in Wright and Miller and everything else, they'll say, we need to stop conflating these two questions.

[00:03:36] Speaker 01:
But assuming we're doing issue of preclusion, and whether we agree with it or not, it appears that there are cases in the Fifth Circuit that say that issue of preclusion can apply to a personal jurisdiction dismissal without prejudice, meaning a non-merits dismissal.

[00:03:54] Speaker 03:
That's correct.

[00:03:55] Speaker 03:
Issue preclusion potentially can apply in the Fifth Circuit.

[00:03:59] Speaker 03:
But in the Fifth Circuit, there must be an identity of facts that were actually litigated and that support the judgment in the Fifth Circuit.

[00:04:11] Speaker 03:
And that's not what we have here.

[00:04:12] Speaker 01:
Well, issue preclusion is an equitable principle, right?

[00:04:17] Speaker 01:
Pardon me?

[00:04:17] Speaker 01:
Issue preclusion is an equitable principle.

[00:04:21] Speaker 03:
I believe that's correct, yes.

[00:04:22] Speaker 01:
Couldn't courts

[00:04:23] Speaker 01:
barely say that we don't want you to keep coming back every month with a new set of jurisdictional facts.

[00:04:33] Speaker 01:
And we dismiss for lack of personal jurisdiction.

[00:04:35] Speaker 01:
So go take it somewhere else.

[00:04:40] Speaker 03:
And that's really the dynamic and the tension that's underlying a lot of what happened here.

[00:04:47] Speaker 03:
And I would say that I agree that it's in interest of the court

[00:04:53] Speaker 03:
to not have litigants coming back and back and back.

[00:04:57] Speaker 03:
And that is particularly true with claim preclusion when you have a final judgment on the merits, like summary judgment, and you've gone through the entire litigation process invested all this time.

[00:05:10] Speaker 03:
But the dynamic is different when you have, at the beginning of the case, when you're trying to get into court.

[00:05:16] Speaker 03:
There's really no motivation for a plaintiff to try not to get into court

[00:05:23] Speaker 03:
and make seriatim arguments.

[00:05:26] Speaker 01:
But you could address the merits of your arguments in a different form, could you not?

[00:05:36] Speaker 03:
Potentially, I could.

[00:05:38] Speaker 01:
Of course you could, right?

[00:05:40] Speaker 01:
I mean, that's what dismissal without prejudice means, is that on lack of personal jurisdiction, you can assert it somewhere else, just a different form.

[00:05:47] Speaker 03:
Yeah, so I would also argue that on a dismissal without prejudice, the cases say,

[00:05:52] Speaker 03:
You can also, if you cure the defect, you can also address it in the court that dismissed it.

[00:05:59] Speaker 01:
And what is the prejudice to you from having to have a different forum address this question?

[00:06:05] Speaker 03:
Well, it would be potentially Michigan.

[00:06:11] Speaker 03:
And parenthetically, if I could just... I got a lot of friends in district court in Michigan.

[00:06:16] Speaker 01:
I think they're fine judges.

[00:06:19] Speaker 03:
Your Honor, and I'm not questioning the integrity of the, or quality of the, of the judges in Michigan.

[00:06:26] Speaker 03:
In fact, Judge Michelson just made some rulings and, and she's very professional, hardworking judge.

[00:06:34] Speaker 03:
I have no quarrel at all with the judges in Michigan.

[00:06:38] Speaker 03:
But it's a matter, given the facts of this case, and if I could, I wanted to start by briefly updating the court on other relevant facts.

[00:06:48] Speaker 03:
or litigation, the case where Ford Global sued New World that was up in Michigan has been transferred down to the Northern District of Texas under T.C.

[00:06:58] Speaker 03:
Heartland.

[00:06:59] Speaker 03:
Those are 13 patents, Ford Global versus New World, transferred from Michigan down to the Northern District of Texas now in front of Judge Godby.

[00:07:07] Speaker 03:
Also, the related litigation with the Automotive Body Parts Association that I also represent sued Ford Global to challenge

[00:07:17] Speaker 03:
These four design patents are based on functionality and patent exhaustion.

[00:07:21] Speaker 03:
We've received an order and a judgment from Judge Mickelson in Michigan where she denied Ford's motion of the case's moot and granted their summary judgment on these issues.

[00:07:37] Speaker 03:
And now the case is on appeal before this court and the briefs are due in April.

[00:07:42] Speaker 03:
So now we've got

[00:07:44] Speaker 01:
So are these individual patents at issue anywhere right now, other than your effort to get them to be at issue here?

[00:07:52] Speaker 03:
Yes, they are at issue in the ABPA versus Ford Global case.

[00:07:55] Speaker 03:
The 299 and 685 patent, two of the five patents are at issue in ABPA versus Ford Global.

[00:08:01] Speaker 01:
The ones that are now in Texas?

[00:08:03] Speaker 03:
No, the ones that are the subject to the Michigan action that are now in this court.

[00:08:11] Speaker 03:
Okay, so now we have the, I mean the larger case is now down in the Northern District of Texas, so we think it would be appropriate now to keep this case in the Northern District of Texas as well.

[00:08:24] Speaker 03:
All right, so on the issue of claim preclusion, I think we've talked about that, but there wasn't a final judgment on the merits, so we say claim preclusion does not apply.

[00:08:37] Speaker 03:
And really the only way forward can make the argument that it does

[00:08:41] Speaker 03:
is in its brief, it quotes Comer and says, claim preclusion applies to jurisdiction of dismissals, both subject matter and personal.

[00:08:51] Speaker 03:
But that's not what Comer says.

[00:08:52] Speaker 03:
Comer says, race judicata.

[00:08:54] Speaker 03:
And we have this confusion in the case law.

[00:08:56] Speaker 03:
Does race judicata mean claim preclusion, issue preclusion?

[00:09:00] Speaker 02:
And again, in Comer, it was- I'm trying to focus you on issue preclusion.

[00:09:05] Speaker 03:
OK.

[00:09:05] Speaker 03:
Thank you, Your Honor.

[00:09:07] Speaker 03:
OK, with regard to issue preclusion,

[00:09:10] Speaker 03:
The issue is the two points here, two key concepts.

[00:09:15] Speaker 03:
What is the issue that is being precluded?

[00:09:17] Speaker 03:
And does it make a difference if facts were already available under this curable defect exception?

[00:09:25] Speaker 03:
So we've talked about what the test is on issue preclusion.

[00:09:29] Speaker 03:
It must be identical facts.

[00:09:32] Speaker 03:
And the legal standard must be the same.

[00:09:33] Speaker 03:
It must be actually legal.

[00:09:35] Speaker 01:
Why do the facts have to be identical if the issue is actually

[00:09:39] Speaker 01:
presented, fairly adjudicated, and resolved, the fact that you might not have discovered additional facts or disclosed additional facts to the court.

[00:09:54] Speaker 01:
I don't know that that would affect the preclusive effect of the ultimate decision.

[00:10:00] Speaker 03:
Well, in this case, Ford is making the argument that the issue is whether Ford is subject to personal jurisdiction in Texas.

[00:10:08] Speaker 03:
That's too broad.

[00:10:11] Speaker 03:
It doesn't make sense to do it that way.

[00:10:13] Speaker 02:
But isn't the issue whether LKQ's contacts with New World constitute sufficient contacts to provide personal jurisdiction?

[00:10:26] Speaker 03:
Your Honor, LKQ is the exclusive licensee of Ford Global, and we have made allegations that they're cooperating, working in concert with one another in doing that.

[00:10:35] Speaker 01:
Right.

[00:10:36] Speaker 01:
And so that's what you argued the first time around, right?

[00:10:40] Speaker 03:
The first time the basis for the personal jurisdiction was the exclusive license agreement coupled with the cease and desist letters.

[00:10:47] Speaker 01:
All right.

[00:10:48] Speaker 01:
So you're saying that the actions of LKQ and Ford Global to the extent that Ford Global had entered into this exclusive license agreement were what was the basis for your argument for personal jurisdiction, right?

[00:11:03] Speaker 03:
Exclusive licensing agreement.

[00:11:04] Speaker 03:
This time it's different.

[00:11:06] Speaker 03:
This time it's enforcement efforts and efforts to protect the patents and also contacts with the suppliers to not supply the products anymore.

[00:11:16] Speaker 03:
Those issues, those factual issues were not litigated in the 2015 action.

[00:11:20] Speaker 01:
But were they known by you at the time?

[00:11:23] Speaker 03:
They were known.

[00:11:23] Speaker 03:
They were known.

[00:11:25] Speaker 03:
Well, you know, here we have another ambiguity.

[00:11:28] Speaker 03:
What is the test for on the curable defects exception?

[00:11:33] Speaker 03:
What time period do you look at?

[00:11:35] Speaker 03:
Do you look at during the litigation, before the order of dismissal, or before the complaint was filed?

[00:11:40] Speaker 03:
The cases say different things.

[00:11:42] Speaker 03:
It's important because in this case, we're talking about personal jurisdiction.

[00:11:48] Speaker 03:
Personal jurisdiction is determined at the time that the original complaint was filed.

[00:11:53] Speaker 03:
And here we have facts that were alleged to have occurred after the original complaint was filed.

[00:11:59] Speaker 03:
And so the court couldn't have looked at those facts in evaluating the personal jurisdiction.

[00:12:05] Speaker 01:
If you look at the timeline... Well, did you appeal the district court's denial of your motion to amend?

[00:12:17] Speaker 01:
You did, right?

[00:12:18] Speaker 03:
Yes, it was denied by... In her discretion, she denied it.

[00:12:23] Speaker 03:
She denied my motion to amend.

[00:12:25] Speaker 03:
In her discretion, we appealed it to this court, and this court affirmed the dismissal, saying it was not an abuse of discretion.

[00:12:31] Speaker 03:
So it was a different standard, standard and standard of review on appeal.

[00:12:36] Speaker 03:
But here we have, the facts are that we have a single phone call in March and from Ford Global to New World.

[00:12:46] Speaker 03:
And then we have the lawsuit filed in April.

[00:12:50] Speaker 03:
And then two months later in June, we have a follow-up phone call from another person who now begins to talk about an ongoing business relationship and follows that up with two additional emails.

[00:13:01] Speaker 03:
So those are facts that occurred after the complaint was filed.

[00:13:04] Speaker 03:
and could not have been considered by the court.

[00:13:07] Speaker 03:
Even though we put it in the amended complaint to tell the full story, those facts could not have been considered in the 2015 actions.

[00:13:15] Speaker 02:
And so issue.

[00:13:16] Speaker 02:
You're into your rebuttal time.

[00:13:17] Speaker 02:
You can continue if you like, or save it.

[00:13:21] Speaker 02:
Pardon me?

[00:13:21] Speaker 02:
You may continue into your rebuttal time, or you can save it as you wish.

[00:13:29] Speaker 03:
OK.

[00:13:30] Speaker 03:
Is this 218?

[00:13:31] Speaker 03:
You have 218 left.

[00:13:33] Speaker 03:
Oh, that's my rebuttal time.

[00:13:36] Speaker 03:
I'll say my rebuttal time.

[00:13:40] Speaker 02:
Mr. Morata.

[00:13:50] Speaker 00:
Thank you, Your Honor, and may it please the Court.

[00:13:52] Speaker 00:
Sean Morata for Ford Global and Ford Motor Company.

[00:13:55] Speaker 00:
Whether you call it issue preclusion or claim preclusion, New World's argument today is this.

[00:13:59] Speaker 00:
that can escape the preclusive effect of this court's holding in New World I that its amended complaint was untimely and should not have been allowed to be filed by simply filing the amended complaint under a new docket number.

[00:14:12] Speaker 01:
Well, all we said was that she didn't abuse her discretion in not allowing the amended complaint.

[00:14:18] Speaker 01:
But unfortunately for you, when she didn't allow the amended complaint, she never said it would have been futile.

[00:14:24] Speaker 00:
That's right, Your Honor.

[00:14:25] Speaker 00:
But the mere fact that the district court held and this court affirmed that it was inexcusably untimely to amend the complaint in that way, to suggest that if you just take the complaint and say, well, I'm not amending it here.

[00:14:38] Speaker 00:
I'm just filing a new action over there.

[00:14:39] Speaker 00:
And that somehow solves the preclusion.

[00:14:42] Speaker 00:
It's not the law in the Fifth Circuit.

[00:14:43] Speaker 00:
It's not the law anywhere else.

[00:14:45] Speaker 01:
Well, when you say whether you call it race to claim preclusion, I think that's important, actually, because all these cases are a mess.

[00:14:52] Speaker 01:
In reference to race judicata, where there is no judgment on the merits, is just not correct.

[00:14:58] Speaker 01:
Under any interpretation below.

[00:15:01] Speaker 00:
You know, Judge O'Malley, I think Comer addresses this exactly.

[00:15:03] Speaker 00:
I agree that Comer, I think, talks about race judicata in the claim percolation sense, right?

[00:15:09] Speaker 00:
And what Comer says is, although a jurisdictional ruling is technically not on the merits,

[00:15:13] Speaker 00:
It has long been the rule that principles of race judicata apply to jurisdictional determinations, both subject matter and personal.

[00:15:20] Speaker 00:
So it acknowledges, you know what, it's technical.

[00:15:21] Speaker 01:
But it's not right.

[00:15:22] Speaker 01:
It's not right.

[00:15:23] Speaker 01:
Comer's saying it's not long been the rule that race judicata applies to anything other than decisions on the merits.

[00:15:31] Speaker 01:
So the cases that you're citing, perhaps their language is just sloppy, terribly sloppy.

[00:15:37] Speaker 01:
But the only possible way that this is correct is if it's a claim-perclusion analysis.

[00:15:44] Speaker 00:
I think the district court's analysis is correct, whether it's claim preclusion or issue preclusion.

[00:15:49] Speaker 01:
But I think... Well, no, you're not.

[00:15:50] Speaker 01:
It's not.

[00:15:50] Speaker 01:
I mean, you're never going to convince me of that, because this is basic 101 jurisdictional stuff.

[00:15:56] Speaker 01:
Race judicata is a totally different animal than claim preclusion.

[00:16:00] Speaker 00:
Well, race judicata, I think, back in the bad old days, could sometimes be referred to what's called true race judicata, which we would call claim preclusion today.

[00:16:10] Speaker 00:
And then there's sort of this

[00:16:11] Speaker 00:
Bad res judicata.

[00:16:12] Speaker 00:
That was basically issue preclusion.

[00:16:14] Speaker 00:
And I think what the Fifth Circuit says, and it says it in Comer, and it says it in Boone again.

[00:16:19] Speaker 00:
It says, although dismissal of a complaint for lack of jurisdiction does not adjudicate the merit so as to make the case res judicata on the substance of the asserted claim, it does adjudicate the court's jurisdiction.

[00:16:30] Speaker 00:
And the second complaint cannot command a second consideration of the same jurisdictional claims.

[00:16:35] Speaker 00:
So I think when I say it, it doesn't really matter what label you put on it.

[00:16:39] Speaker 00:
I think the best reading is the one the district court had, which is that in the Fifth Circuit, this is a kind of claim preclusion with an understanding that it's not technically on the merits, but it's on the merits of the jurisdictional assertions.

[00:16:52] Speaker 00:
And I think the importance of calling it claim preclusion in this sense is that it has a raised or could have been raised requirement.

[00:17:00] Speaker 00:
In other words, the judgment in the first action forecloses things that were raised or things that could have been raised.

[00:17:07] Speaker 01:
Issued preclusion doesn't have that.

[00:17:08] Speaker 01:
Right.

[00:17:09] Speaker 00:
That's right.

[00:17:10] Speaker 00:
And that's why I think you have to read Comer under the claim preclusion lens, because Comer is very explicit.

[00:17:15] Speaker 00:
I mean, when it marches through the issues, the prongs of what it's considering.

[00:17:20] Speaker 01:
When you're doing claim preclusion, your requirements for claim preclusion require that the actual issue be decided, right?

[00:17:29] Speaker 00:
Well, claim preclusion is the things that were decided or things that, so it's the things that were decided or things that could have been decided had they been raised in a proper manner.

[00:17:36] Speaker 00:
So the thing that was decided... What's your case law support for that proposition?

[00:17:41] Speaker 00:
I think all of the Fifth Circuit, I mean, I think Comer stands for that.

[00:17:44] Speaker 00:
I think the Texas test prep case stands for that it's, it is the things that, you know, it's the things that... Anything in the restatement supports any of this?

[00:17:53] Speaker 00:
Oh, sure.

[00:17:53] Speaker 00:
Well, I think that's when you sort of transition over to issue preclusion.

[00:17:56] Speaker 00:
And let's talk issue preclusion, Judge O'Malley.

[00:17:58] Speaker 00:
Right.

[00:17:59] Speaker 01:
That's what I want to talk.

[00:18:00] Speaker 00:
OK.

[00:18:00] Speaker 01:
I'm trying to ask you to do that.

[00:18:01] Speaker 00:
Well, I mean, I just wanted to, I think I wanted to stand up for the district coalition.

[00:18:05] Speaker 00:
Right.

[00:18:05] Speaker 01:
But I mean, it's a lot easier to keep confusing the two principles than to focus on the one.

[00:18:10] Speaker 01:
Because issue preclusion does not talk about what was raised or could have been raised.

[00:18:14] Speaker 01:
It talks about what was decided.

[00:18:16] Speaker 00:
It talks about what was decided.

[00:18:17] Speaker 00:
But I think if you look, I mean, I think the GSS group case from the DC Circuit

[00:18:21] Speaker 00:
I mean, it's this case.

[00:18:23] Speaker 00:
It is this case in all the particulars.

[00:18:25] Speaker 00:
It's a case where you have a personal jurisdiction argument rejected.

[00:18:29] Speaker 00:
They come in and say, please reconsider under this new theory I thought of.

[00:18:32] Speaker 00:
District court says, no, it's untrue.

[00:18:33] Speaker 01:
But was that a new legal theory or a new fact?

[00:18:36] Speaker 00:
It was a new legal theory.

[00:18:39] Speaker 01:
It was a new legal theory, which is very different than a new set of facts.

[00:18:44] Speaker 00:
But it's a new set of facts that were available to New World that the district court found was available to New World and New World 1, which is why the district court

[00:18:52] Speaker 00:
denied leave to amend, and it's what this court held was why denial of leave to amend was not an abuse of discretion, that these facts were available to you and should have been brought to the court's attention earlier.

[00:19:04] Speaker 00:
So, I mean, that's what this court said in New World One, and I think ultimately what New World is trying to do is collaterally attack the determinations that were made in New World One.

[00:19:13] Speaker 00:
You know, this was argued as part of New World One, and it was rejected.

[00:19:18] Speaker 00:
So even if you call it, so all the courts that address this under the issue preclusion lens, and I think part of it, Judge O'Malley, is perhaps the Fifth Circuit is unusual in saying that this is claim preclusion with a loosening of the on the merits requirement, as opposed to courts like the Seventh Circuit, the D.C.

[00:19:33] Speaker 00:
Circuit that say, well, it's issue preclusion, but when we say issue preclusion, what we mean is not just the particular arguments you brought, but also the arguments that were available to you and that you could have brought.

[00:19:44] Speaker 00:
So that is the difference.

[00:19:46] Speaker 00:
What I'd also say, Judge O'Malley, is that the facts, the operative facts here are not just the phone calls versus the letters versus the licensing agreement.

[00:19:56] Speaker 00:
It's that Ford Global is allegedly trying to enforce its patents in Texas against New World, or is threatening to do so.

[00:20:04] Speaker 00:
And so all of that was wrapped up in New World One.

[00:20:08] Speaker 00:
And again, I think it would be quite unusual to say that New World could just get around New World 1, where the complaint in this case is identical, more or less, to the proposed amended complaint in New World 1.

[00:20:20] Speaker 00:
To say that instead of amending New World 1, they just open a new docket number, and that somehow solves the whole process, I don't know of any court that has ever held that.

[00:20:30] Speaker 01:
In fact, I don't think we'll- Well, that should see what that prejudice means.

[00:20:34] Speaker 00:
Well, I think there's a difference between- Take another shot.

[00:20:37] Speaker 00:
Well, there's a difference between without prejudice and without leave to amend.

[00:20:41] Speaker 00:
Without leave to amend means this case is over.

[00:20:43] Speaker 00:
Without prejudice simply means what, again, Boone says, which is it's not a resolution of the merits of the declaratory judgment claim.

[00:20:50] Speaker 00:
So we agree that they can go to Michigan.

[00:20:52] Speaker 01:
So that's a different argument than your argument is.

[00:20:54] Speaker 01:
But if they had come up with facts that weren't already part of the motion for leave to amend, we'd have a different animal.

[00:21:01] Speaker 00:
And if they weren't available during New World One.

[00:21:04] Speaker 00:
So if they said, you know what, Ford Global yesterday

[00:21:07] Speaker 00:
made a call to Texas and threatened and did all the things.

[00:21:11] Speaker 00:
So it's not part of the New World One nucleus of facts?

[00:21:14] Speaker 00:
Yes.

[00:21:15] Speaker 00:
Proclusion might be different then.

[00:21:17] Speaker 00:
So we're not saying that if the facts change, they can't bring a new lawsuit, of course, because that would be different.

[00:21:23] Speaker 04:
But they have to be presented competently.

[00:21:26] Speaker 00:
Yes, they do.

[00:21:26] Speaker 00:
And I think that gets to our alternative merits argument that the district court recognized here, which is that even if you looked at the amended complaint from New World One, and the complaint in this case

[00:21:36] Speaker 00:
it's still not enough to get personal jurisdiction over anyone.

[00:21:40] Speaker 00:
As for Ford Global, the alleged phone calls to the suppliers, because everything else is basically settlement conduct or cease and desist letters, all of that is not alleged to have been made to Texas.

[00:21:52] Speaker 00:
And under the rule that this court stated in Radio System and Advance and Huntsville, calls to other people, so two places outside of Texas, do not create contacts inside of Texas.

[00:22:04] Speaker 00:
So that solves the phone calls with suppliers.

[00:22:06] Speaker 00:
And then as to Ford Motor Company, the only thing that they have pleaded, it's appendix page 31, paragraph 8, is that Ford, FGTL, and LKQ have, quote, engaged in multiple extrajudicial efforts in and directed towards Texas against plaintiffs.

[00:22:20] Speaker 00:
That's a legal conclusion.

[00:22:21] Speaker 00:
That's not facts.

[00:22:22] Speaker 00:
And in fact, when they get to the facts about these collusion, they say that, quote, the cooperative actions of FGTL and LKQ, Ford isn't part of it anymore, at appendix page 42, paragraph 56.

[00:22:36] Speaker 00:
So even if you wanted to get past all of the preclusion things we've been talking about, they still don't have enough on the merits of the personal jurisdiction issue.

[00:22:44] Speaker 00:
So if, Jojo Malley, if you think this is confusing and mushy, you don't even have to solve it.

[00:22:50] Speaker 00:
Because even if you get past preclusion, they still don't have enough on the underlying personal jurisdiction claims.

[00:22:58] Speaker 00:
And then finally, there's an argument that they need jurisdictional discovery.

[00:23:01] Speaker 00:
As to FGTL, they admit that requires holding for them essentially both on preclusion and as to the prima facie case.

[00:23:10] Speaker 00:
And then as to Ford, they say we need more discovery about what they did.

[00:23:14] Speaker 00:
But of course, the Fifth Circuit requires at least a preliminary showing of personal jurisdiction and simply alleging what is the equivalent of there's personal jurisdiction over Ford in Texas isn't enough.

[00:23:25] Speaker 00:
So for all those reasons, we believe the district court's decision should be affirmed unless the court has further questions.

[00:23:31] Speaker 02:
Thank you, Mr. Murata.

[00:23:33] Speaker 02:
Mr. Oak has a couple of minutes of rebuttal time.

[00:23:38] Speaker 03:
Your Honor, I'll be brief.

[00:23:40] Speaker 03:
Council conceded that if we had new additional facts that occurred after the original complaint, that we'd have something new to look at.

[00:23:50] Speaker 03:
That's what happened.

[00:23:51] Speaker 03:
We had the additional contacts that occurred after the... What is that in the record, please?

[00:24:06] Speaker 03:
It is in the complaint.

[00:24:09] Speaker 04:
Do you have a supporting affidavit?

[00:24:18] Speaker 04:
Mr. Oaks, do you have a supporting affidavit?

[00:24:27] Speaker 03:
Your Honor, I think it's in the, I believe it's just in the complaint, but

[00:24:33] Speaker 01:
You do have... There is an affidavit of Appendix 49.

[00:24:36] Speaker 01:
Is that what you're looking for?

[00:24:37] Speaker 01:
And actually one before that.

[00:24:41] Speaker 01:
47 and 49?

[00:24:49] Speaker 03:
Yes.

[00:24:50] Speaker 03:
Thank you, Your Honor.

[00:24:51] Speaker 04:
So when we get to that affidavit, how is that possibly competent?

[00:24:58] Speaker 04:
There's no foundation?

[00:25:01] Speaker 04:
It's vague?

[00:25:04] Speaker 04:
Well, let me, both my father, Peter Tsai, and I have had communication with officers.

[00:25:10] Speaker 04:
Who would that be?

[00:25:11] Speaker 04:
What's your foundation for that?

[00:25:13] Speaker 04:
Who, what, when, where, why?

[00:25:14] Speaker 03:
Well, I'm referring to paragraph four, Your Honor.

[00:25:18] Speaker 03:
So am I. Victor Cassini, the Senior Vice President, General Counsel, and Corporate Secretary.

[00:25:22] Speaker 03:
Wait, paragraph four?

[00:25:24] Speaker 03:
Pardon me?

[00:25:25] Speaker 03:
Four?

[00:25:26] Speaker 03:
Four.

[00:25:26] Speaker 03:
Uh-huh.

[00:25:26] Speaker 03:
Appendix 47.

[00:25:28] Speaker 04:
Okay, that's a prior affidavit.

[00:25:30] Speaker 04:
Okay.

[00:25:31] Speaker 03:
Richard Cassini, the Senior Vice President, General Counsel and Corporate Secretary of LKQ called me in Irving, Texas on June 3rd, 2015.

[00:25:39] Speaker 03:
And he goes on to say exactly what he talked about.

[00:25:43] Speaker 03:
And paragraph five?

[00:25:47] Speaker 03:
We're not relying upon... You admit that's incompetent.

[00:25:51] Speaker 03:
Well, that doesn't have a date.

[00:25:54] Speaker 03:
That doesn't have a date.

[00:25:55] Speaker 03:
Or a person, or the content.

[00:25:57] Speaker 03:
Correct.

[00:25:57] Speaker 03:
Correct, but paragraph four is specific and it has a date that's, and that's, that's crucial because under the, under this Court's case law in the Xilinx case, if you have these continuing negotiations concerning perhaps setting up a business relationship, that establishes the requisite minimum contacts under personal jurisdiction.

[00:26:20] Speaker 03:
That is in addition to the original cease and desist letters.

[00:26:24] Speaker 03:
In the Xilinx case, you had two trips into the forum that involves settlement negotiations and licensing.

[00:26:32] Speaker 03:
Here we had this June makes the second one.

[00:26:36] Speaker 03:
In this one, again, it's critical because you're beginning to talk about a long-term business association.

[00:26:43] Speaker 03:
So our argument is that supports the minimum contact shifts the burden to Ford.

[00:26:49] Speaker 03:
than to prove it's unusual.

[00:26:52] Speaker 03:
I question the relevance of that, but that's fine.

[00:26:54] Speaker 02:
Do you have any final comment and rebuttal to opposing counsel's argument?

[00:27:01] Speaker 02:
You immediately got a question when you stood up.

[00:27:04] Speaker 02:
I'm just asking whether you have a rebuttal comment to what you heard.

[00:27:09] Speaker 03:
Well, the primary rebuttal comment is that, well, I believe I've covered it.

[00:27:16] Speaker 03:
All right.

[00:27:17] Speaker 03:
With regard, well, I will say on the jurisdictional discovery, to the extent the supplier information, we believe it's adequate.

[00:27:26] Speaker 03:
But to the extent it's not, I think that forms a basis for additional jurisdictional discovery.

[00:27:31] Speaker 02:
Thank you.

[00:27:32] Speaker 02:
We'll take the case on revising.

[00:27:33] Speaker 03:
Thank you, Your Honor.

[00:27:34] Speaker 03:
It's been a pleasure.

[00:27:35] Speaker 02:
All rise.

[00:27:43] Speaker 02:
I'll record this adjournment from day to day.