A Blog About Intellectual Property Litigation and the District of Delaware

I couldn't find a picture of a person waking a sleeping dragon, so you'll have to settle for an angry bear.
I couldn't find a picture of a person waking a sleeping dragon, so you'll have to settle for an angry bear. mana5280, Unsplash

Ouch. Chief Judge Connolly issued an order today setting an evidentiary hearing on a potential contempt finding or sanctions for an out-of-town attorney who failed to show up for a hearing on his local counsel's motion to withdraw.

The case, Missed Call, LLC v. Freshworks, Inc., No. 22-739 (D. Del. Sept. 8, 2022), looks like it's an NPE case where the defendant filed a § 101 motion to dismiss.

Shortly after the reply brief on the motion to dismiss, however, and just two months into the case, plaintiff's local counsel moved to withdraw, citing an inability to communicate with the client:

Out of state counsel initially stated that multiple firms are able to act as local counsel; however, no firm has been presented as new Delaware Counsel to date. Good cause exists for the withdrawal as counsel, in that [the] attorney is unable to effectively communicate with Client in a manner consistent with good attorney-client relations.

D.I. 16 at 1. The defendant filed an opposition to the withdrawal, out of concerns that plaintiff would be unable to continue to litigate the case:

[Defendant] Freshworks is concerned that the premature withdrawal of Attorney Chong without substitute Delaware counsel would prejudice Freshworks by stalling the progress of this case given that no one but Delaware counsel is permitted to file papers or attend proceedings before this Court.

D.I. 17 at 1-2. After that, the Court scheduled a hearing on the motion to withdraw, and specifically directed both of the attorneys involved—Delaware and out-of-state counsel—to attend:

ORAL ORDER: The Court will hear oral argument on Plaintiff's Motion and Order for Withdrawal of Jimmy Chong, Esq. as Counsel for Plaintiff . . . on September 1, 2022 at 4:00 p.m. in Courtroom 4B. Both Mr. Chong and Mr. Ramey are required to attend the hearing in person.

In response—and this is where the trouble starts—counsel filed a unilateral "stipulation" to "reset hearing" because his out-of-town co-counsel had a hearing in Texas the next day.

The stip got no response from the Court, and according to the minute entry on the docket, it looks like the Court held the hearing without out-of-town counsel.

The next day, after the hearing—perhaps seeing trouble on the way—counsel filed a notice attempting to dismiss the case without prejudice under FRCP 41.

That didn't stop the Court. Yesterday, six days after the notice of dismissal, the Court issued an order setting forth in very specific, minute-by-minute detail exactly how the alleged conflict actually arose after the order directing counsel to appear:

Whereas the Court issued on Thursday, August 25, 2022, an order that stated: ". . . Both [Delaware counsel] Mr. Chong and [out-of-town counsel] Mr. Ramey are required to attend the hearing in person."; . . .
Whereas, immediately upon the filing of the Court's August 25, 2022 order, CM/ECF sent notice of the order to Mr. Ramey at . . . his personal email address, wramey@rameyfirm.com;
Whereas at 1:25 p.m. on Monday, August 29, 2022, Judge Albright in the Western District of Texas scheduled an "in person" discovery hearing in Traxcell [a W.D. Tx. case], for September 2, 2022;
Whereas Mr. Ramey is an attorney of record for the plaintiff in the Traxcell action before Judge Albright;
Whereas at 2:17 p.m. on Monday August 29, 2022, Mr. Ramey emailed Judge Albright's chambers from his wramey@rameyfirm.com email account;
Whereas Mr. Ramey did not inform Judge Albright's chambers that he was required to be in this Court on September 1, 2022 but instead asked in his August 29 email: "For clarity, and we apologize, is this hearing [scheduled for September 2, 2022] is [sic] live in the courtroom?";
Whereas Judge Albright's chambers stated in a reply email: "Yes, this will be an in-person hearing";
Whereas after 5:00 p.m. on August 31, 2022, an unidentified person from Mr. Ramey's firm called this Court's chambers "to let [the Court] know" that Mr. Ramey "won't be showing up tomorrow because he has another hearing in Texas";
Whereas at 12:16 p.m. on September 1, 2022, at the direction of Mr. Ramey, Mr. Chong filed with the Court a pleading titled "Stipulation to Reset Hearing" . . .
Whereas Mr. Ramey did not appear in this Court on September 1, 2022;
1. The Court will hold an evidentiary hearing and entertain oral argument at 9:30 a.m. on September 26, 2022 to determine whether Mr. Ramey should be held in contempt or otherwise sanctioned for his failure to comply with this Court's August 25, 2022 order.
2. Mr. Ramey shall appear at the hearing in person.
XKCD comic from xkcd.com
xkcd.com, displayed with permission


To paraphrase the great web comic XKCD, you know something is about to go down when the Court starts recounting events by the minute.

It's actually not clear where the Court got the minute-by-minute detail here. I see no filing on the docket. It's possible the Court went so far as to reach out to Judge Albright's chambers to piece this together, or perhaps there were off-the-docket e-mails or other communications between counsel and the Court. None of this was in the defendants' opposition to the motion to withdraw.

Either way, to state the incredibly obvious, I would not want to be in counsel's shoes here.

Some Thoughts and Takeaways

The obvious takeaways are that:

  1. When the Court specifically orders you to show up for a hearing, you had better show up for the hearing.
  2. A unilateral "stipulation" rescheduling a hearing, which was not granted, was not enough to excuse counsel from attending.
  3. The Court took counsel's failure to appear seriously enough that it put in the work of drafting an order with minute-by-minute, e-mail-by-email detail, even after the notice of dismissal was filed, despite how busy the Court is.

This is not the first time that attorneys have gotten themselves in trouble in Delaware—and with Chief Judge Connolly—that involved calling chambers. There are absolutely circumstances that justify calls to chambers, but counsel needs to be careful and understand the norms here.

For instance, it's well known here in Delaware that calls and e-mails to chambers should come from Delaware counsel, not out-of-town counsel. Counsel here fell down on that point. I expect their Delaware counsel would have explained why the call was a bad idea, and how to handle the situation—had they been involved.

A Unilateral Stipulation? 'Round These Parts, We Call that a "Motion"

The unilateral "stipulation" to get out of the hearing was odd, and deserves some comment on its own.

In fairness the counsel, there are times when stipulations can be signed by only one side's counsel, often plaintiff, and the Court grants the stip. This sometimes comes up early in the case when, for example, the parties agree to extend the answer deadline or to dismiss with prejudice, but want to avoid defendants' counsel having to enter an appearance.

But those are situations where both parties join the stip and agree to something. Here, it looks like the "stipulation" was essentially a motion by a single party—or just by counsel—to be excused from attending the hearing that counsel was specifically ordered to attend. The other side was not involved, and nothing was agreed. If so, this should have been a motion, if anything.

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