A Blog About Intellectual Property Litigation and the District of Delaware

Order Approved
AI Generated, displayed with permission

Plaintiff in Applied Biokinetics LLC v. KT Health, LLC, C.A. No. 22-638-RGA-JLH (D. Del.) had some bad luck this month.

Late last month, Magistrate Judge Hall denied their motion to strike an expert report that they argued exceeded the bounds of the parties' contentions.

Shortly thereafter, Plaintiff objected to Magistrate Judge Hall's order, appealing to Judge Andrews to reverse the order because it is unsupported:

ABK would be unfairly prejudiced if KT were permitted to use its previously-undisclosed invalidity theories because ABK properly relied on KT’s invalidity contentions, discovery responses, and case narrowing during fact discovery. . . . The Magistrate Judge’s decision to not strike any portion of KT’s invalidity report containing previously undisclosed invalidity theories was clearly erroneous and contrary to law.

Id., D.I. 127 at 7.

(Don't forget, you absolutely can object to magistrate judge determinations on non-dispositive issues—although your chances of success are probably even worse, on average, than objecting to an R&R on dispositive issues.)

A week later after plaintiff filed its objections, the case was re-assigned to now-Article III Judge Hall.

Not-at-all-shockingly, Judge Hall was unconvinced that Magistrate-Judge-Hall had made a decision last month that was clearly erroneous and contrary to law:

ORAL ORDER: On December 21, 2023, I issued an Oral Order (as a Magistrate Judge) that resolved certain discovery disputes (D.I. 125). Plaintiff filed objections . . . , and those objections remain pending. On January 4, 2024, I became a District Judge, and on January 9, 2024, this case was re-assigned to me. Out of an abundance of caution, I carefully reviewed and fully considered Plaintiff's objections. Having done so, I am not persuaded that my prior decisions were incorrect. . . . To the extent it is necessary, Plaintiff's Objections . . . are OVERRULED. Ordered by Judge Jennifer L. Hall on 1/24/2024. (ceg) (Entered: 01/24/2024)

Id., D.I. 133. Judge Hall also undid the previous magistrate judge referral (to herself):

[T]o the extent it is necessary, the Courts October 19, 2023 reference of all pre-trial proceedings to a Magistrate Judge (D.I. 108) is WITHDRAWN.

Id. It's been a while since Delaware had a magistrate judge elevated to the Court. The last one was Judge Stark, over a decade ago, and I don't recall whether he had to rule on the sufficiency of his own prior rulings. But I imagine it might have turned out similarly!

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


Similar Posts