in Re Nissim Corp v. ClearPlay, Inc., 374 Fed. Appx. 987, 992 Fed. Cir. 2010 . After our decision issued,…

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

IN RE NISSIM CORP.,
Petitioner.

Miscellaneous Docket No. 973

On Petition for Writ of Mandamus to the United
States District Court for the Southern District. of Florida
in case no. 04-CV-21140, Judge Paul C. Huck.

ON PETITION

GAJARSA, MAYER, and PROST, Circuit Judges.
GAJARSA, Circuit Judge.

## ORDER

Nissim Corp. petitions for a writ of mandamus to di-
rect the United States District Court for the Southern
District of Florida to vacate its order reappointing David
K. Friedland as special master. ClearPlay, Inc. opposes.
Nissim replies.

This petition stems from Nissim's motion to enforce a
settlement agreement that allowed ClearPlay to create

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filters that were compliant with content coding specifica-
tions developed by Nissim's subsidiary, CustomPlay, LLC
(CustomPlay). With the parties' consent, the district
court appointed a special master, Mr. Friedland, to de-
termine whether ClearPlay's filters satisfied the require-
ments of the Agreement.

The district court adopted the special master's report
and recommendation to deny Nissim's motion. In doing
so, the court found that the Agreement "grant[ed] Clear-
Play discretion to depart from the CustomPlay Specifica-
tions . .. when doing so is reasonably necessary, in
ClearPlay's reasonable artistic judgment, for the general
appreciation or understanding of the motion picture at
issue." On appeal, we reversed and remanded for the
district court to determine whether ClearPlay's filters
substantially comply with the specifications. See Nissim
Corp. v. ClearPlay, Inc., 374 Fed. Appx. 987, 992 (Fed.
Cir. 2010).

After our decision issued, Nissim took the position
that Mr. Friedland's appointment had expired and that he
would need to be re-appointed, to which Nissim would not
consent. ClearPlay argued that the parties' stipulations
with respect to the appointment of Mr. Friedland as a
special master was not bound by time or proceeding.
After reviewing the order appointing Mr. Friedland, the
court agreed with ClearPlay, stating "I don't see anything
that's a temporal limitation."

Nissim then moved to vacate the appointment of Mr.
Friedland as the special master. At a hearing on the
matter, the court stated:

Right now, Mr. Friedland is the special mas-
ter. You have a stipulation with regard to
those proceedings. He has done phase one.

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He is going to go back, I assume, if that is go-
ing to be the result of any discussions that
the parties may have. He will have the Fed-
eral Circuit opinion. I'm fairly confident that
he is going to do his best to look at those fil-
ters, look at what his marching orders are
from this Court as modified by the Federal
Circuit's opinion, and give you all his rulings
or his recommendation.

Then we will take the next step. If he rules
that all of them are out of compliance, then
he'll put that in his report. If I agree with
him, I'll accept that report.

Nissim now petitions for a writ of mandamus direct-
ing the Southern District of Florida to vacate the "reap-
pointment of the same special master who was appointed
as fact-finder in the now-vacated prior proceeding."
Mandamus is "a drastic one, to be invoked only in ex-
traordinary situations." Kerr v. United States District
Court, 426 U.S. 394, 402 (1976). Mandamus is "appropri-
ate only in extraordinary cases to remedy a clear usurpa-
tion of power or abuse of discretion." In re Extradition of
Ghandtchi, 697 F.2d 1037, 1038 (11th Cir. 1983). And, a
party seeking a writ bears the burden of proving that the
right to issuance of the writ is "clear and indisputable."
Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980).

Nissim has not met the exacting standard required for
mandamus relief. At the outset, we note that Nissim
repeatedly cites an "Order of Reappointment," suggesting
that an actual order exists that expressly re-appoints Mr.
Friedland as a special master. The document Nissim is
referring to, however, is the district court's "Order Deny-
ing Motion for Summary Determination," dated Septem-
ber 7, 2010. The district court did not purport to

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"reappoint" the special master. The court's comments on
the issue were limited to the following:

As a result, the Court finds that the proper
course is to submit the dispute to the Special
Master again. Although Nissim appears to
object to this course of action, both parties
consented to the Special Master, and the
Court sees no reason to use a different pro-
cedure. Rather the Court finds it will be
more efficient and fair to use the same pro-
cedure as before, with the results from a rep-
resentative sample set of filters being
presumed to apply to all the filters from
which the sample was obtained.

As noted by the district court, the Order Appointing
Special Master states "Mr. Friedland is appointed for the
specific purpose of determining whether or not the Clear-
Play filters released for use with ClearPlay's CP-007 USB
Player satisfy the requirements of the parties' Settlement
and License Agreement effective November 23, 2005.
Nissim Corp. V. ClearPlay, Inc. No. 04-21140-CIV, slip op
at 2, T2 (S.D. Fla. July 8, 2008)." On its face, the Order
Appointing Special Master recites no time limit, and a
remand by this court does not appear to change this.

In view of this, we cannot say that the court clearly
and indisputably abused its discretion in interpreting the
appointing order as containing no temporal limitation on
Mr. Friedland's services. Additionally, as noted by Clear-
Play, the underlying cause of action in this case arises
from Nissim's Motion to Enforce. Mr. Friedland was
appointed to determine factual issues arising out of that
motion. From all accounts, the parties are still going
forward on Nissim's motion to enforce. Therefore, Mr.
Friedland's services still appear necessary.

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Nissim has not shown that its other arguments, e.g.,
whether the special master would be impartial, could not
be raised and addressed on appeal from any final judg-
ment, if appropriate.

Accordingly,
IT IS ORDERED THAT:

The petition for a writ of mandamus is denied.

FOR THE COURT

JUN 2 2 2011

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: John C. Carey, Esq.
G. Stephen Long, Esq.
Gregory S. Tamkin, Esq.

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
JUN 2 2 2011

s23

JAN HORBALY
CLERK