A Blog About Intellectual Property Litigation and the District of Delaware

Alpine Forget-me-not. Myosotis alpestris (1925)
Alpine Forget-me-not. Myosotis alpestris (1925) Mary Morris Vaux Walcott

Stipulations to extend time are a popular, both as a topic on this blog and in how routinely they are filed. Usually, stipulations to extend time are granted without incident, so we highlight the outliers as reminders that sometimes there’s more to it than mere agreement between the parties.

Don’t forget! If you’re stipulating to extend the:

  1. Deadline for discovery completion, or
  2. Postponement of trial

You must include the reasons for the request in your stipulation or motion. And the local rules require you to include either a supporting affidavit by the requesting counsel’s client or a certification that counsel has sent a copy of the request to the client.

This latter requirement reminds me of pre-college: in which students who received sub-optimal test scores needed to get a parental signature to prove to the teacher that the parent had seen the score and reviewed the offending test.

The parties in The Trustees of the University of Pennsylvania v. Genentech, Inc., C.A. 22-145-MN-JLH demonstrated how to correct deficiencies. Earlier this month, Judge Noreika issued an oral order denying their prior stipulation:

ORAL ORDER re 127 STIPULATION TO EXTEND TIME - IT IS HEREBY ORDERED that the stipulation is DENIED with leave to renew for failure to comply with Rule 16.4 of the Local Rules of Civil Practice and Procedure of the United States District Court for the District of Delaware. ORDERED by Judge Maryellen Noreika on 5/12/2023. (dlw) (Entered: 05/12/2023)

However, their new stipulation was so ordered last week, and it reveals that not much reasoning was needed to justify pushing the fact discovery cut-off deadline. Indeed, the reasoning was just a single sentence, explaining that “counsel for both parties . . . believe it is necessary in order to complete fact discovery, including certain depositions that had to be scheduled outside the current close of fact discovery due to witness availability.”

Note that while this short explanation sufficed in this case, Judge Williams has previously held that parties should simply agree between themselves to take depositions after the close of discovery, without filing a stipulation and involving the court.

If a party cannot get the other side to agree to postponing the fact discovery deadline, “simply needing more time” may not cut it, especially where it accompanies a contested request to postpone trial. See Dali Wireless, Inc. v. John Mezzalinguia Associates, LLC d/b/a JMA Wireless, C.A. 19-2367-RGA, D.I. 111 (D. Del. Jul. 22, 2021) (oral order):

ORAL ORDER: The Parties say they need more time, but simply needing more time is not good cause. The Courts schedule is already completely full for the foreseeable future. Thus, the motion to amend scheduling order is DENIED. If the parties want to consent to a magistrate judges handling the rest of the proceedings in this case, including the trial, they should file such a consent and the Parties can arrange a new schedule with a new judge.

Obviously, we saw a greater-than-usual number of trial postponements during the pandemic. See Baxalta Inc., Baxalta US Inc., Nektar Therapeutics v. Bayer Healthcare LLC, C.A. 17-1216-RGA, D.I. 529 at 1 n.2 (D. Del. Aug. 12, 2020) (“The parties should expect to be double- or triple-booked for trial. If public health permits at the time, the parties should expect that they may not know until the eve of trial whether their trial will move forward.”). Otherwise, stipulations to postpone a trial date are uncommon, but such stipulations are sometimes attempted.

At least in the case of stipulations to postpone discovery completion deadlines, it is not difficult. Just don’t forget the extra steps!

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