A Blog About Intellectual Property Litigation and the District of Delaware

You may not realize the dangers with certain stips.
You may not realize the dangers with certain stips. Andrew E. Russell, CC BY 2.0

It was a bit of a slow week as far as opinions from the District of Delaware, so I wanted to write a short post about stipulations, covering a few questions that sometimes come up.

What Can You Do by Stipulation in D. Del.?

In the District of Delaware, most litigation-related matters or facts can potentially be stipulated to. This includes, most commonly, extensions of deadlines. Parties routinely file, and the Court routinely grants, stipulations extending time for things like answer deadlines, deadlines to file a scheduling order, and protective order deadlines. Parties likewise routinely stipulate to the amendment of pleadings, FRCP 41 dismissals, and to stays pending related proceedings (such as ITC actions or IPRs).

What Can’t You Do by Stipulation in D. Del.?

On the other hand, there are a some frequently-arising stipulations that the Court has at times denied. These include, for example:

  • Transcript redactions: Redacting a trascript requires a joint motion, ideally supported by one or more factual declarations (although even that may not be enough)
  • Stipulations to seal: The District Court has an established procedure for sealing most filings; the Court has, however, sometimes denied attempts to seal other kinds of documents (such as a final judgment) by stipulation.
  • Interlocutory appeal: The Court has rejected at least one stealth bid to stipulate to an interlocutory appeal.

There are also a few matters that fall into an "iffy" category, where the parties can file a stipulation but the Court may deny or modify it, or the stipulation may have unexpected consequences:

  • Early summary judgment.
  • Extensions of page limits.
  • Changes to the briefing schedule where the Court has already set an argument date (e.g., claim construction or summary judgment).
  • Extension of the dispositive motion deadline.
  • Stays of the entire action.
  • Extensions of deadlines in the run-up to trial, or soon after trial
  • Requests to move Court-scheduled conferences or the trial date.

Some of these are covered in more detail below.

Do Parties Have to File a Stipulation to Extend Deadlines in the District of Delaware? I.e., Can't the Parties Just Agree?

Yes and no. While some attorneys take different positions, the most frequently-stated guideline I've heard is that if it is a deadline to answer, a deadline set in the schedule, or a deadline that impacts the Court, it is best to stipulate, rather than just to agree in to an extension in an e-mail.

On the other hand, if the deadline has no impact on the Court, then parties often simply agree in writing to extend it. These include, for example, discovery response deadlines, deposition dates before the close of fact discovery, or deadlines under the Default Standard.

Are Parties Required to Explain the Reason for the Stipulation?

Sometimes. Former Judge Sleet used to routinely deny stipulations that lacked any explanation of the reason for the stipulation. Of the currently-sitting judges, Judge Andrews sometimes denies stipulated extensions of deadlines where the parties give no reason or explanations (or where the explanation is insufficient).

Generally speaking, however, the common practice these days is to file routine stipulations (e.g., for an extension of time to file an answer) without stating a reason for the extension in the stip itself. But make sure to read the section below about stipulations to "exten[d] deadlines for completion of discovery or postponement of the trial"—these technically require a reason under LR 15.1. Also, keep in mind that the parties and the Court will likely benefit from including context and reasons for stipulations that may raise questions, such as late-stage stipulations to extend deadlines.

Special Considerations for Certain Stipulations

Stipulations to extend deadlines

Make sure to pick dates that are not holidays, and are days on which the Court is open. See Buyerleverage Email Solutions LLC v. Microsoft Corp., C.A. No. 11-645, D.I. 190 (D. Del. Oct. 30, 2013) (denying stipulation that set trial to begin on the Saturday before Thanksgiving).

Otherwise, stipulations to extend deadlines that do not impact the Court are routinely granted, with occasional exceptions. See, e.g., Home Semiconductor Co. v. Samsung Electronics Co., Ltd., C.A. No. 13-2033-RGA, D.I. 195 (D. Del. May 23, 2019) (denying 14-day stipulated extension of time to answer amended complaint in case that was more than five years old, and noting that "delaying the response to the Amended Complaint simply delays this already very old case.").

Stipulations to extend the deadline to answer

Parties may wonder whether the answer deadline is something that "impacts the Court" such that a stipulation is even needed. The answer is yes; absent a stipulation, you must answer or you may see an order like the following:

ORAL ORDER: Defendant's answer was due to be filed on 5/31/2021 (see D.I. 8 ), and to date none has been filed. Plaintiff is now directed to file a status letter no later than 3 days from the entry of this Order. Ordered by Judge Richard G. Andrews on 6/2/2021. (nms) (Entered: 06/02/2021)

Also, keep in mind that while attorneys often refer to it as the deadline to "answer," the response to a complaint can consist of a motion under FRCP 12 rather than an answer. So if you're drafting a stipulation on this issue, consider whether you want to extend the "answer" deadline or the deadline to "move, answer, or otherwise respond" (it's probably the latter).

Update: Keep in mind that there may be a limit on how many times parties can safely extend the answer deadline. A delay of 2.5 years from filing may be too much.

Stipulations to extend the time to respond to a motion to dismiss

If you are a plaintiff and you stipulate to extend time to respond to a motion to dismiss, remember to consider whether you also want to extend the deadline to amend the complaint under FRCP 15(a)(1). Otherwise, when drafting your answering brief, you may find that amendment would be easier but the deadline has already passed.

Stipulations to "exten[d] deadlines for completion of discovery or postponement of the trial"

While I have never seen this enforced (update: now I have), the local rules state that these stipulations require extra support, including a reason for the stipulation and an affidavit or certification:

Unless otherwise ordered, a request for an extension of deadlines for completion of discovery or postponement of the trial shall be made by motion or stipulation prior to expiration of the date deadline, and shall include the following:
(a) The reasons for the request; and
(b) Either a supporting affidavit by the requesting counsel’s client or a certification that counsel has sent a copy of the request to the client.

LR 16.4.

Stipulations to extend the dispositive motion deadline

Be careful when moving the dispositive motion deadline. Some judges have rules stating that the parties can move the dispositive motion deadline, but they will lose their trial date if they do so. For example, Judge Connolly states his policy on his website:

Should the parties stipulate or otherwise request to have their dispositive motion deadline extended, and a trial date is currently set on the court's calendar in the case, the parties will lose their trial date upon the court's granting the extension. No new trial date will be given until the dispositive motion(s) have been decided.

Likewise, Judge Andrews has denied a stipulation moving the dispositive motion deadline where "no reason was given" for the schedule change. See Acceleration Bay LLC v. Take-Two Interactive Software, Inc., C.A. No. 16-455-RGA, D.I. 460 (D. Del. Feb. 28, 2019).

Judge Noreika has likewise denied a stipulation that would move the Daubert briefing too close to the hearing.

Stipulations to extend page limits

These are among the more frequently denied or altered stipulations, depending on the judge. Keeping the extension small may improve the parties' chances.

Stipulations to stay the entire case

When stipulating to stay the entire case, be sure to describe when the case will resume (e.g., upon conclusion of an IPR, upon resolution of a specific motion, etc.). Parties typically state that they will file a status report within 14 or 30 days of the event that triggers the end of the stay, especially if is is something the Court would otherwise be unaware of, like the resolution of a related proceeding.

Note that the Court has sometimes denied stipulations to stay the entire action. See, e.g., Blue Spike LLC v. DISH Network Corp., C.A. No. 19-160, D.I. 22 (D. Del. Oct. 10, 2019) (Burke, J.) (denying stipulation to stay action pending uninstituted IPR); Selected Signals, LLC v. Palo Alto Networks, Inc., C.A. No. 17-1470-GMS (Feb. 22, 2018) (Sleet, J.) (same); Hera Wireless S.A. v. Amazon.com, Inc., C.A. No. 17-947-RGA, D.I. 48 (D. Del. Oct. 9, 2018) (denying stipulation to stay action pending addition of additional patents, and stating that "[i]f Plaintiffs have more patents to assert, they can do so in separate complaints").

Obviously, a stay of the entire action typically involves a lot of work for the Court in setting a new schedule when the case resumes, so it is not something to do lightly.

Stipulations to amend a pleading

Yes, you can stipulate to amend a pleading in the District of Delaware. Note, however, that LR 15.1 requires a party to attach a redline to any motion to amend, and the Court has at least once applied the same rule to a stipulated amendment. See, e.g., PalTalk Holdings, Inc. v. Valve Corp., C.A. No. 16-1239 (D. Del. Nov. 22, 2017) (Fallon, J.) (denying stipulated amendment and citing LR 15.1).

Stipulations regarding the time to object to R&Rs

Judge Noreika has denied these at times, even if the Court has not yet entered a scheduling order.

Stipulations regarding trial and post-trial briefing

Each of the judges handle these differently, but some of our judges are more likely to deny scheduling changes in the run-up to trial. For post-trial briefing, most judges seem open to extending the initial schedule, but in some cases they may then urge the parties to stick to that schedule and deny stipulations that would further extend it.

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