A Blog About Intellectual Property Litigation and the District of Delaware

Treasure Map
Nadjib BR, Unsplash

After reading the decision in Nate's post yesterday, it occurred to me that we haven't addressed a common question in cases in the District of Delaware: When will the Court decide the parties' summary judgment motions?

This is a question that comes up a lot. I think that sometimes, in clients' minds, summary judgment motions are something that is resolved quickly. The parties brief their motions, the Court immediately turns to them, and then an opinion should come out in a week or two. Right?

No. That's not true in any U.S. district court I've practiced in, and the District of Delaware is no different. The Court is extremely hardworking but also overwhelmingly busy.

The decisions in Nate's post yesterday came out at the same time as the pretrial order: Thursday of this week, with trial starting Monday.

That's not unusual. Sometimes summary judgment and Daubert opinions come out significantly earlier, but often they come out around the time of the pretrial conference, just before trial. Obviously, that has implications for clients and attorneys who are planning for and budgeting cases.

Sometimes you can move for early summary judgment if there is a clearly dispositive issue, and in that case the decision normally issues earlier in the case. But that's a special procedure that at least one party must request (for example, as part of the scheduling conference process at the start of the case).

Otherwise, the norm is generally that summary judgment motions are decided fairly late in the game. Some of the judges tend to decide them very close to trial. Others may issue them months before trial, but for planning purposes you can't generally assume that will happen in any particular case—especially if the just has not yet been assigned.

All of that is to say that, when someone says "we could get rid of the case at summary judgment," keep in mind what that may really mean: "we will likely have to do the work involved in preparing the case to go to trial, but we might win SJ on some of the issues, sometime between the SJ deadline and shortly before trial."

If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.


Similar Posts