Is the non-dispositive ruling in your case really special enough to warrant objections?AI Generated, displayed with permission
Unlike with R&Rs on dispositive matters, the magistrate judges do not typically flag the deadline for objections to non-dispositive orders. No surprise, then, that attorneys sometimes seem to forget that parties can object to even non-dispositive rulings by magistrate judges under FRCP 72(a). Yesterday Judge Williams overruled such an objection to a non-dispositive order by Magistrate Judge Burke.
As Nate discussed last month, Judge Burke had granted a motion to strike a late-disclosed disclosure-dedication argument, because the party making the argument had never disclosed it in response to a contention interrogatory, and instead (apparently) held it until the summary judgment stage.
Our millions of daily readers will remember Andrew's post from last month on Judge Connolly's Order in Vestolit GmbH v. Shell Chemical LP, C.A. No. 24-1401-CFC (D. Del.). As a brief refresher, Vestolit had filed a 1782 application seeking to serve subpoenas on both Shell and its CEO. The papers, however, only mentioned subpoenas to be served on the corporation and referred to the individual subpoena only obliquely as attachments to the filing.
Bad attachmentAI-Generated, displayed with permission
Judge Connolly noted that this failure to specifically reference the personal subpoena may have been a violation of the lawyers' duty of candor and thus issued an order to show cause why they should not be sanctioned, and denied the application in its entirety pending the response.
Yesterday Judge Connolly issued his order on the sanctions issue and the underlying application. Probably most interesting to you, reader, is that the Court found that there had been no violation of the Rules of Professional Conduct:
I accept counsel's apologies for the Application's deficiencies, am persuaded that counsel did not intentionally withhold from the Court material facts in violation of Rule 3.3(d), and will, therefore, not deny the Application in toto.
Vestolit GmbH v. Shell Chemical LP, C.A. No. 24-1401-CFC (D. Del. Mar. 4, 2025).
The Court did, however, find that the problems with the original application were serious enough to warrant denying the application to serve the individual subpoena on the CEO:
[E]ven if this Court could have personal jurisdiction over Ms. Kline consistent with due process, I would exercise my discretion and deny the Application's request to subpoena Ms. Kline because of the seriousness of the deficiencies in the Application and supporting briefing I identified in the January 14, 2025 Memorandum Order. . . . Although, as noted above, I am persuaded that counsel did not intentionally withhold material information from the Application and briefing, to countenance such deficiencies by simply ignoring them would send the wrong message to counsel in this case and to the bar. Lawyers' professional obligations are at their highest when they seek ex parte relief, and judges, especially in busy courts like this one, necessarily rely not only on counsel's honesty, but also on their diligence, in ex parte matters.
I'm not going to blow the blog's budget on downloading all of the evidence in the 35 exhibits attached to the Rule 11 motion. But it looked like a lot.Christa Dodoo, Unsplash
Federal Rule of Civil Procedure 11, as most readers likely know, says an attorney making a filing certifies that the filing has factual support:
(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney . . . certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: . . .
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery . . . .
If the opposing party has reason to doubt that an attorney has met their burden, it can threaten a Rule 11 motion. The procedure gives parties an opportunity to cure, though, and parties sometimes do.
Those motions are often threatened but, in practice, we don't see a ton of rulings on Rule 11 motions in the District of Delaware. So it was interesting to see the Court's ruling today in Central Santa Lucia, L.C. v. Expedia Group, Inc., C.A. No. 22-367-JLH (D. Del. Mar. 10, 2025).
That case involves a violation of a federal statute regarding the sale of certain property. To bring a case, the plaintiff must have acquired ownership of the property before a specific date: March 12, 1996.
The plaintiff in the case claimed it owned the relevant property as of the date. The defendant disagreed, and filed a Rule 11 motion seeking sanctions for filing a pleading that relied on fraudulently ...
I'm not sure that this is technically "bait"—much like an order from the Court is not "bait." But we'll run with it.Trophy Technology, Unsplash
I've heard certain kinds of orders from the Court be referred to as "blog bait"—things that you just know we are going to post about. A couple of topics fall into that category: Pennypack decisions, significant decisions on redactions, interesting § 101 opinions, and so on.
The common thread is that these are all things that come up a lot. They happen early in the case, before cases tend to settle or otherwise resolve. And they can have significant implications for the parties and the attorneys involved. You don't want to be the attorney …
I am from Minnesota. Home of the noble loon, and dainty ladyslipper. It is a harsh place. I have read in books of lands where a person's word is all they have -- a sacred thing that must be protected at all costs. To barter it away is to invite the most dire peril.
I wasn't really using it much anyway...AI-Generated, displayed with permission
Minnesota is not such a place. The winds are fickle there, and everyone understands that most commitments are contingent upon a (sometimes unlikely) confluence of fortuitous occurrences. If you way, I'll visit Gramma this weekend, there's an implied "if it's not too cold." If you say "I'll bring the cheeseburger soup" it's understood that you …
This is something I've been thinking we should cover for long time. Here in the District of Delaware, the local rules set forth a required structure for every brief—but out-of-town counsel often seem to miss that.
Basically, Local Rule 7.1.3(a)(c) requires that an opening or answering "brief" contain seven specific sections in a specific order:
A table of contents (TOC)
A table of citations and authorities (TOA)
A "statement of the nature and stage of the proceedings"
A summary of argument
A "concise statement of facts"
An argument
A short conclusion.
These look simple, but they trip people up sometimes. Here are some tips for each section.
Required Sections for Every Opening and Answering Brief
As I was reading through Judge Andrews' opinion in Election Systems & Software, LLC v. Smartmatic USA Corporation, C.A. No. 18-1259-RGA (D. Del. Feb. 28 , 2025)—a fairly standard opinion denying a motion for attorney's fees—I noticed an interesting callout:
It is within my discretion to find a case exceptional on the grounds of a plaintiff's meritless section 101 argument so as to "deter similarly weak arguments in the future."On the rare (and I believe only) occasion that I have done so, however, the patent asserted was obviously unpatentable. See Finnavations LLC v. Payoneer, Inc., 2019 WL 1236358, at *l (D. Del. Mar. 18, 2019) ("I have rarely been more confident …
When I started practicing here in the District of Delaware (the decade before last), the typical advice was that a patent case would proceed to scheduling and discovery even if the defendant files a motion to dismiss. Lately, though, several of the District of Delaware judges have been holding off on initiating the FRCP 16 scheduling process when the defendant files a motion to dismiss.
Often, as we've discussed, a smart plaintiff in that situation will file a letter asking the Court to direct the parties to conduct an FRCP 26(f) conference, so that discovery can move forward. Most often that seems to work. …
"I asked plaintiff to pay the cost award, and he just said 'Come at me, bro!' What do you think he means?"AI-Generated, displayed with permission
FRCP 54 provides that the prevailing party is entitled to recover its costs, not including attorneys fees.
In practice, though, that's easier said than done. Recovery of costs is limited both by statute and local rule. Beyond that, plaintiffs in particular may not have a lot of assets, and it may take serious collection effort to get anything out of them. As you can imagine, parties sometimes decide that the likely cost in attorneys fees outweighs what they are likely to actually recover.
But not always! Today, Judge Andrews issued a memorandum order reviewing …
Representativeness is the bête noir of almost every § 101 motion. This is especially true early in the case, when the Court might rightly ask why it should bother invalidating 1 of 2,312,419 currently asserted claims.
This quandary is especially troublesome for defendants because it's often quite difficult to brief representativeness of a large number of claims in the necessary detail.
If you can tell me what claim 9 adds to to claim 8, I will literally eat my own cufflinks and then wear them again! Algorithm? More like Smellsbadgorithm!AI-Generated, displayed with permission
Later in the case, things are a bit different. For one, there's a lot fewer claims at issue (hopefully) so knocking out just a few can make a big difference. Moreover, having a bit of discovery under your belt can make those representativeness arguments easier to make.
Caddo Systems, Inc. et al v. Jetbrains Americas, Inc., C.A. No 22-1033-JLH-LDH (D. Del. Feb. 25, 2025) (Report and Recommendation) had an interesting bit of argument along these lines that I hadn't seen before. The patents at issue there were all directed for a system to "allow a user to more easily navigate a file structure that may have many layers and options."
The parties disputed representativeness (quelle surprise!). One of the disagreements was whether certain claim limitations required a user to select (or have preselected) a menu item by different means. Plaintiff argued that these different means added something to claims that affected the § 101 analysis.
Unfortunately for plaintiff, their expert had submitted an expert report on the doctrine of equivalents, where he had opined that all of these different means actually performed the same function, in the same way, to reach the same result. Judge Hatcher, granting the motion for summary judgment, found this fact persuasive and cited it as an example of how the differences between the claims "do not prevent the Asserted Claims from being conceptually equivalent."
It's a possible contradiction that hadn't occurred to me before, and something to keep in mind when working with your own experts.
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