Please Stop, It's Already Dead
Happy Friday!
In the past the Court has subtly signaled that it notices when the parties try to sneak in extra argument where it does not rightly belong. Yesterday, however, Judge Burke gave a bit of the carrot to the defendants in Hewlett Packard Enterprise Co. v. Intellectual Ventures I LLC et al., C.A. No. 22-730-GBW-CJB, for taking the high road in their submission.
The case is a DJ action where the defendants moved to dismiss alleging that any dispute between the parties lacked the necessary immediacy for subject matter jurisdiction. As is often the case, the argument boiled down to the defendant's contention that they weren't about to sue the defendants on the relevant patents.
After briefing the motion the plaintiff submitted a short letter to the Court attaching a recent complaint against them filed by the defendants. The letter was admirably short, merely stating:
Plaintiff Hewlett Packard Enterprise Company (“HPE”) respectfully writes to inform the Court of a recent complaint filed by defendant Intellectual Ventures I LLC (“IV”) that bears upon Defendants’ motion to dismiss for lack of subject matter jurisdiction in the above-referenced matter (D.I 18), which is scheduled for oral argument on October 24, 2022. Attached as Exhibit A is the complaint filed by IV against HPE on October 13, 2022 in Intellectual Ventures I LLC et al. v. Hewlett Packard Enterprise Co., C.A. No. 22-1350 (D. Del.). HPE looks forward to addressing Defendants’ motion to dismiss on October 24 at 2:00 pm
Id., D.I. 31.
As it happens, the complaint attached to this letter didn't mention any of the patents in the DJ suit so, at least to an otherwise uninvolved blogger, it was not immediately obvious how it related to the motion to dismiss. Judge Burke thus issued the following order:
The Court has reviewed Plaintiff's October 18, 2022 notice letter, (D.I. 31 ), relating to the upcoming oral argument regarding Defendants' motion to dismiss ("Motion"), (D.I. 18 ). The Court wants to note that it appreciates that Plaintiff did not use the fact of its notice letter as an excuse to file an unsolicited, multi-page supplemental shadow brief. Many parties do that, which just leads the other side to file a responsive unsolicited supplemental answering brief of their own (and that often leads to an unsolicited supplemental reply brief, and so on), all of which creates chaos on the docket. That said, in advance of the oral argument, it would be helpful for the Court to have a sense of what Plaintiff thinks the complaint cited in its letter has to do with the Motion, and what Defendants' response is to that argument. Therefore, by no later than October 20, 2022, Plaintiff shall file a one-page supplemental letter brief on the subject, and by no later than October 21, 2022, Defendants shall file a one-page supplemental responsive letter brief. Signed by Judge Christopher J. Burke on 10/19/2022. (srs) (Entered: 10/19/2022)
Id., D.I. 32.
Honestly, this worked out about as well as the defendant could have hoped. They get to add in a brief explanation and they get an attaboy for their restraint. This is the first I've seen of such an order, but it will be interesting to see if it effects how parties view notices of subsequent authority and similar "shadow briefing" opportunities if they know there's a chance the Court might simply ask them to brief the issue.
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