Before Archer, Circuit Judge, Bennett, Senior Circuit Judge, and Schall, Circuit Judge.
ON PETITION FOR WRIT OF MANDAMUS
Salomon S.A. and Salomon/North America, Inc. (Salomon) petition for a writ of mandamus to direct the United States District Court for the District of Vermont to (1) vacate its June 2, 1992 order directing the "prevailing party" to submit proposed findings concerning pending motions for summary judgment and (2) vacate the December 4, 1990 order of referral to a master and strike the master's reports. Nordica U.S.A. Inc. and Nordica S.p.A. (Nordica) oppose. Salomon moves for leave to file a reply, with reply attached. Salomon moves for oral argument concerning this petition. Nordica opposes the motion for oral argument.
Salomon sued Nordica for infringement of certain claims of 14 of its patents directed to ski boots. Nordica's ski boots, specifically 132 different models of its ski boots, are the allegedly infringing products. In a letter dated October 29, 1990, Nordica mentioned that the district court might wish to use a master for summary judgment motions. In a letter dated November 29, 1990 confirming various oral orders, the district court noted, inter alia, that it had decided to appoint a master pursuant to Fed. R. Civ. P. 53(a) and identified the master it intended to appoint. In a letter dated December 3, 1990, Salomon stated that it did not agree "to the referral and believes that such a referral is inappropriate in this case." Salomon requested an opportunity to brief the issues and present oral argument on the propriety of referral to a master. On December 4, 1990, the district court issued an order of reference to the master. Concerning the master's authority, the order stated:
To regulate all pretrial proceedings and to do all acts and take all measures necessary or proper for the efficient performance of the Master's duties under this order. The Master may require the production before the Master of evidence upon all matters embraced in this reference, including the production of all books, papers, vouchers, documents, and writings applicable thereto. The Master may rule upon the admissibility of evidence and has the authority to put witnesses on oath and may examine them and may call the parties to the action and examine them upon oath. The Master shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as provided in the Federal Rules of Evidence for a court sitting without a jury.
During the next 10 months, both parties filed summary judgment motions. The master issued his first report on August 6, 1991. The master has issued reports on motions concerning at least eight of the 11 patents at issue in summary judgment posture, recommending that summary judgment be granted for Nordica on issues of invalidity or noninfringement. The district court has not ruled on the motions for summary judgment.
On November 25, 1991, Nordica requested that the district court issue findings and Conclusions and hold a hearing concerning the dispositive motions recommended by the master. On December 20, 1991, the district court ordered "the prevailing party on each dispositive ruling" to
submit proposed findings of fact and Conclusions of law for consideration by the court within 30 days after the date of the last Report and Recommendation by the Special Master. Specific oppositions by the non-prevailing party not already covered in its objections to the Master's Report and Recommendation are due 30 days thereafter.
On March 16, 1992, upon consideration of Salomon's motion to limit the proposed findings of fact and Conclusions of law to be submitted by the prevailing party, the district court rescinded the December 20, 1992 order and prohibited the submission of proposed findings and Conclusions. Nordica moved for reconsideration.
On April 27, 1992, Salomon moved to rescind the order of reference and strike the master's reports. Salomon also requested that the district court certify the issue for immediate appeal. On June 2, 1992, the district court denied Salomon's motions and again directed the "prevailing party," based upon the master's recommendations, to draft proposed findings concerning the summary judgment motions. On July 7, 1992, the district court denied Salomon's motion to reconsider the June 2, 1992 order and denied Salomon's motion to certify the orders for immediate appeal. Salomon petitions for a writ of mandamus to direct the district court to (1) vacate its June 2, 1992 order directing the "prevailing ...