Visiting Judge Barker issued an interesting order last week on a request to move a hearing date.
Judge Barker was assigned to Merus N.V. v. Xencor, Inc., C.A. No. 24-913-JCB (D. Del) last spring and issued his usual procedural order requiring the parties to notify the Court if they consented to holding hearings and/or trial in E.D. Tex., where he normally sits.
The defendant agreed to hearings in Texas, but not trial, while the plaintiff did not agree to hold either there. Eventually a motion to dismiss was briefed and in January Judge Barker scheduled a hearing in Delaware for February 17.
About 10 days after the Court set the hearing, the defendant sent in an unopposed letter asking to move the hearing due to "a previously scheduled and unmovable conflict in another case on that date" and suggesting a few other dates.
The Court, however, declined to move the hearing:
Defendant filed a letter with the court requesting that the hearing on defendant’s motion to dismiss, scheduled for February 17, 2026, be delayed. Doc. 50. That request is denied.
But, noting that defendant’s counsel practice at two large firms with many litigators, the court is amenable to defense counsel splitting argument amongst themselves. For example, one may provide a technology primer and another address safe-harbor immunity under 35 U.S.C. § 271(e)(1).
Id. at D.I. 51.
I think there's three main takeaways from this order:
- It should perhaps come as no surprise that the request was denied -- in addition to the normal busy schedules of the Judge's having to travel for a hearing (possibly multiple hearings) makes these harder to move. It's something to keep in mind when making future requests.
- The above is true even when, as here, the party making the request originally agreed to hold hearings in Texas, while the other party refused.
- The note on the remedy suggests that Judge Barker normally prefers to have one lawyer do the entirety of the argument. Most (I think all) of our Delaware judges have a rule or preference to have one only one person argue each issue (e.g., on person per claim term at a Markman), but I can't recall any of them expressing a preference for having one lawyer do all of the argument for a whole hearing, so this is something to keep in mind in hearings before Judge Barker.
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