A Blog About Intellectual Property Litigation and the District of Delaware


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Visiting Judge McCalla has taken about 13 patent cases so far here in Delaware, including some additional assignments late last month. A reader who has a case before him flagged an interesting point: Judge McCalla brings some of his home-state rules with him.

In his orders on hearings and scheduling conferences, for example, he directs the parties to either the Northern District of California local patent rules or the District of Tennessee local patent rules:

1. A video motion conference re: Motion to Dismiss (ECF No. 11) will be held . . .
2. The parties should refer to the Northern District of California or the Western District of Tennessee Patent Rules.

See, e.g., New York University v. Resmed, Inc., C.A. No. 21-813-JPM (D. Del. Mar. 28, 2022).

Likewise, scheduling orders in his cases may look a bit alien to regular Delaware practitioners, as he uses the District of Tennessee form. That form results in a two-page scheduling order like the attached, which focuses primarily on a few of the initial dates and guidelines, rather than the comprehensive schedules usually set by native District of Delaware judges.

Of course, the Northern District of California patent rules are not totally unfamiliar to Delaware practitioners. And attorneys should have little problem adjusting, because many patent litigators have also litigated cases in N.D. Cal. (maybe not so often in the District of Tennesee).

So, if your case gets assigned to visiting Judge McCalla, brush up on your N.D. Cal. and/or D. Tenn. local patent rules!

Cases Reassigned Without Going to the Vacant Docket

Another notable point about the reassignments to Judge McCalla last month is that the cases did not go to the vacant judgeship first. All of them were cases that were initially assigned to sitting Article III judges (Judges Andrews and Noreika, and Chief Judge Connolly).

In the Chief Judge Connolly case, the Court ordered that the parties either consent to magistrate judge jurisdiction, or their case would be re-assigned to a visiting judge, as we've seen before; the other two were just re-assigned. I don't see a common pattern in the cases (one dated from 2020, one from early 2021, and one from mid-2021). But it's worth being aware that re-assignments to visiting judges are still going forward even for non-Judge Stark cases.

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