A Blog About Intellectual Property Litigation and the District of Delaware


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So your case has been assigned to the VAC docket.

It's Okay

It happens fairly often in this grey world we all live in following Judge Stark's departure. Per the standing order creating the vacant judgeship, you can consent to a magistrate judge, in which case things should proceed more or less as they would under one of our Article III judges.

What's that? You're one of the surprising number of cases where the parties cannot agree on magistrate consent?

You Walk A Particularly Dark Road

Per that same standing order, you a will be assigned a visiting judge. Unfortunately, that assignment can occur any time before trial, and a cursory review of cases where parties have not consented has not revealed any that have been assigned to a visiting judge (email me if you know of one!). Until the assignment occurs, your case will be in something of a holding pattern with the assigned magistrate only able to resolve discovery and scheduling issues (not including motions to strike).

A Narrow Path to the Light . . . for Some

The standing order does provide one shortcut to a referral:

Emergency Motions in VAC cases will be reviewed by the District Judge who is acting as the Court's duty judge on the date the motion is filed or the date a party contends the motion has become an emergency. The duty judge has discretion to treat the motion as an emergency and assign the case to an Article III Judge or to treat the motion as a nonemergency and allow the case to remain pending on the VAC docket.

Of course, the rub is that you need to have an emergency.

A Parable of Three Injunctions

It doesn't appear that any motions specifically designated as "emergencies" have been filed in VAC cases yet. However, at least 3 VAC cases have pending preliminary injunction motions of some urgency. The parties in each case chose to present the motions slightly differently, and the results are illuminating.

A stipulated Briefing Schedule Yields No Response From the Court

SmartSky Networks, LLC v. Gogo Business Aviation, LLC, C.A. No. 22-266 was the first of the three PI motions filed on the VAC. The parties there stipulated to a briefing schedule that particularly noted that "after the motion has been fully briefed, the Court will determine whether a hearing will be held." Id., D.I. 41. The motion has now been fully briefed for a week and no Article III judge has yet been assigned, and no other action has been taken on the motion.

A Joint Letter Requesting A Hearing Date Gets a Date Set, But No Judge Assigned

The second PI motion, Signode Industrial Group LLC v. Polychem, LLC, C.A. No. 22-519, took a slightly different tack. Rather than filing a stipulated briefing schedule, the parties submitted a letter to Chief Judge Connolly (it's not clear why it was addressed to Judge Connolly in particular, my guess would be that the parties asked the Clerk's office who the duty judge was that particular week), requesting his guidance on when a hearing would be held and setting forth the parties competing positions. Id., D.I. 22. Just a few days later, Judge Connolly set a hearing date via a brief oral order without explanation. D.I. 23. Interestingly, the order did not actually assign Judge Connolly—or anyone else—to hear the motion. Moreover, the Order stated that the hearing would take place in courtroom 6B, Judge Stark's old room, rather than Judge Connolly's own courtroom. The Motion has yet to be fully briefed.

A Motion to Expedite Gets A Fast Teleconference From The Court But No Assignment

The final motion was in Horizon Medicines LLC v. Apotex Inc., C.A. No. 22-640, and involved yet a third stratagem. There, the plaintiff filed a motion to expedite alongside the motion for a preliminary injunction. Id., D.I. 10. Judge Noreika (the duty judge at the time) sua sponte set a teleconference for that same week. D.I. 12. No hearing date materialized out of that conference and the parties ultimately consented to Magistrate Judge Burke shortly thereafter.

The Lesson?

The takeaway from all this seems to be that the mere filing of a presumably time-sensitive motion like a preliminary injunction is not enough to get a judge assigned to your case. Instead, you'll need to bring your motion to the attention of the duty judge—via letter or some motion that suggests real urgency—and try to make your case there.

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