A Blog About Intellectual Property Litigation and the District of Delaware


"If we don't consent, which visiting judge do you think we'll get?" Hush Naidoo Jade Photography, Unsplash

We've talked before about Chief Judge Connolly's orders that allow parties to choose to either consent to a specific magistrate judge or to have the case assigned to a visiting judge.

Last month, the Court issued those orders in six patent cases. All of the orders followed the same pattern as last time, giving the choice between a specific magistrate judge or an unknown visiting judge:

ORAL ORDER: It is HEREBY ORDERED that on or before November 1, 2022, the parties shall either (1) submit to the Clerk of Court an executed Form AO 85 Notice, Consent, and Reference of a Civil Action to a Magistrate Judge, indicating their consent to have a United States Magistrate Judge conduct all proceedings in this case including trial, the entry of final judgment, and post-trial proceedings; or (2) file a joint letter indicating that all the parties do not consent to a referral of this action to a Magistrate Judge. The letter should not indicate which party or parties did not consent. If all the parties consent, the case will be referred to Magistrate Judge Burke. Because of the Court's caseload, if the parties do not consent, the Court intends to assign the case to a visiting judge from another district. Ordered by Judge Colm F. Connolly on 10/18/2022.

These orders started last year, before Judge Stark's departure for the Federal Circuit. It makes sense that the Court is sticking with this process, giving that the visiting judge program has continued even after the Judge Williams filled the vacant judgeship.

By my count, it looks like five of the cases were offered the option to consent to Magistrate Judge Burke, and one to Magistrate Judge Hall. Four of the five Judge Burke cases consented, and the one Judge Hall case did not. So, overall, two thirds of the cases consented rather than facing an unknown visiting judge.

The two cases where one or more parties didn't consent were assigned to new visiting Judge Slomsky of the Eastern District of Pennsylvania.

Interestingly, two other patent cases were also assigned to Judge Slomsky this month, one from Judge Andrews and one from Judge Noreika. Those parties did not have the opportunity to consent to a magistrate judge to avoid referral.

Parties love certainty in litigation, so I imagine most would appreciate the opportunity to consent to a known magistrate judge rather than being referred to an unknown visiting judge, who may have procedures that differ from what is typical here. I wonder if some of the other judges here may adopt similar procedures in the future.

In fact, couldn't the same procedure be used to put magistrate judges "on the wheel"? A new case could be assigned to a specific magistrate judge, with instructions to the parties to either consent to that specific magistrate judge's jurisdiction or be re-assigned to an unknown district judge. That could potentially increase magistrate consent numbers a bit without any downsides that I see.

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