A Blog About Intellectual Property Litigation and the District of Delaware


Roll the Dice
Leon-Pascal Janjic, Unsplash

Since 2021, Judge Connolly has occasionally issued orders asking parties to either consent to a magistrate judge or have their case re-assigned to a visiting judge. The parties in three out of five of that first round of cases consented, and we've seen several rounds of these orders since then.

The Court also offered parties a similar choice in the wake of the departure of Judge Stark, before Judge Williams was confirmed. I haven't seen hard numbers on this, but in May of last year we estimated that around 20% of those cases consented rather than waiting for the new district judge and risking re-assignment to a visiting judge.

These consent-or-visiting-judge referrals have continued through Judge Williams taking the bench, and yesterday we saw another 11 patent cases (only 3 of which were related) receive similar orders:

ORAL ORDER: It is HEREBY ORDERED that on or before January 24, 2023, 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 1/17/2023. (nmf) (Entered: 01/17/2023)

I thought it was worth posting about these re-assignments, since it looks like this practice is here to stay—at least for the time being.

What's the pattern?

Those 11 cases are all Chief Judge Connolly cases at the very early stages. They were filed between late July 2022 and December 2022. None of them have scheduling orders yet, and in one instance it appears that the plaintiff hasn't yet served the complaint. (C.A. No. 22-1642).

In all of the cases, the the defendant or defendants have not yet answered, either because it is too early, because the parties have stipulated to delay the deadline, or because the defendant moved to dismiss.

My guess is that, if your case has reached the scheduling order stage, it's unlikely to be re-assigned with an order like this.

Should you consent to a magistrate judge for your patent case? Yes. Maybe.

The question of whether to consent to a specific magistrate judge is complicated, and the answer depends on the circumstances (the kind of case, the kind of parties, the budget, the potential magistrate judge, the overall strategy, etc.). Get good Delaware counsel, and they'll have a lot of judge-specific insights that will help decide whether to consent.

But here are some general factors to consider when faced with an order, like the one above, that allows you to choose either a specific magistrate judge or to be assigned to a random visiting judge:

  • Our magistrate judges here in Delaware have a huge amount of patent-case experience from years on the bench handling primarily patent cases. They may well have more patent-case experience than some of the visiting judges.
  • By consenting to a magistrate judge, your case will be governed by the Delaware local rules and practices which, in my opinion at least, are balanced and don't favor either side. Visiting judges, in contrast, may apply their home-jurisdiction rules, and may not put as much stock in the usual local practices.
  • Delaware counsel add more value in cases before Delaware district and magistrate judges, where we really know the judges and can more reliably predict outcomes. Many of us have also had cases before the visiting judges, but no one is going to have the same depth of knowledge about those judges.
  • The visiting judges have a broad range of backgrounds and new visiting judges appear from time to time without being announced beforehand. The District of Delaware is lucky to have them, for sure. But there are few limits that parties can discern on which visiting judge—from any jurisdiction in the country—may end up being assigned to a particular case. So you may get a judge who is not an ideal fit for your litigation strategy.

Is consenting right in every case? No. But I would not start from an assumption that a visiting district judge is necessarily better.

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