A Blog About Intellectual Property Litigation and the District of Delaware

Judge Andrews issued an interesting opinion last week, in another case that breaks new ground on reconsideration. The (extremely) abridged and expurgated procedural history in MirTech, Inc. et al v. AgroFresh, Inc., C.A. No. 20-1170-RGA (D. Del. June 14, 2023) (Mem. Op.) is as follows:

  • Agrofresh moved for summary judgment on one of its counterclaims alleging breach of a settlement agreement requiring the plaintiffs to assign them several foreign patent applications
  • The plaintiffs responded by arguing that Agrofresh had actually dropped most of these claims. In support, they cited an RFA objection where Agrofresh argued that "[n]o claim or defense at issue in this lawsuit . . . relates to [the allegedly dropped applications]."
  • The Court denied the motion on that basis
  • Agrofresh then moved for reargument, noting that the RFA response had actually been amended later (but before the relevant SJ filings) to remove the relevance objection and admit the RFA.
  • The Court granted reconsideration and found in Agrofresh's favor on the SJ motion
  • The Plaintiffs then moved for reconsideration of that reconsideration
  • The Court denied the motion

DALL·E 2023-06-18 15.24.16 - cartoon of child spinning in circles in a pile of papers
AI-Generated, displayed with permission

The opinion contains quite a few interesting tidbits -- for instance, did you know we've all been using the word "waiver" wrong?

I note that both parties here use the terms “waive” and “waiver” in their briefs to refer to instances where arguments could or should have been raised at an earlier time but were not. I believe that the Parties use these terms when they really mean to use “forfeit” and “forfeiture.” The Third Circuit recently stated that “waiver” and “forfeiture” are not interchangeable and articulated the differences between the terms. “Waiver is ‘the intentional relinquishment or abandonment of a known right.’” “In contrast, ‘forfeiture is the failure to make the timely assertion of a right.’” The Third Circuit further explained, “[A]n example of [forfeiture] is an inadvertent failure to raise an argument."

Id. at 6-7 (internal citations omitted).

Good to know!

For my money though, the most interesting issue raised was whether the original objection to the RFA constituted a binding admission that, under Rule 36, could not be withdrawn or amended without permission from the Court. Neither party cited any binding authority on this point, so it appears Judge Andrews was addressing the issue for the first time in Delaware when he held the the objection did not constitute a binding admission:

I disagree with the Mir Parties that these responses are judicial admissions. The Mir Parties cite Airco to argue that AgroFresh’s responses are judicial admissions. Federal Rule of Civil Procedure 36(a)(5) requires a party that is objecting to a request for admission to state the grounds for the objection. The statements the Mir Parties cite are plucked from AgroFresh’s objections to the discovery requests, not its answers. The Third Circuit in Airco was addressing an admission, not an objection. Therefore, I do not read Airco as going so far as to say objections, like the content of what is admitted, are judicial admissions . . . Similarly, courts in this District have focused on the contents of what is admitted when there is an objection and an admission. ). Therefore, I do not read Airco to hold that statements in objections or the grounds for objections constitute judicial admissions.

Id. at 15-16 (cleaned up).

So far this case has given us about 213 blog posts and shows no signs of slowing. I hope it goes on forever.

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