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The gloves are off.
The gloves are off. Arisa Chattasa, Unsplash

The Court announced it's plan for Judge Stark's departure today, and it includes some bold moves.

All attorneys who practice in D. Del. should read the announcement in full—it's not that long—but here are some highlights.

Pending Mediations Will Be Canceled

Unlike previous transitions, most district court cases will be impacted, because magistrate judge referrals for mediation and all pending mediations will be canceled except in select instances:

Other than mediations in bankruptcy appeals or unless specifically directed otherwise by the Court, all referrals to Magistrate Judges for alternate dispute resolution will be vacated and all currently scheduled mediations will be canceled.

Thus, mediations in non-judge-Stark cases will be canceled. We've already started seeing these orders come through:

ORAL ORDER re [39] Order Setting Mediation Conferences: Pursuant to the Court's Announcement dated March 3, 2022, IT IS ORDERED THAT the 10/17/2022 mediation teleconference and the 12/1/2022 mediation conference, and all associated deadlines and submissions, are hereby CANCELLED. Ordered by Judge Mary Pat Thynge on 3/3/2022.

See, e.g., United Therapeutics Corporation et al v. ANI Pharmaceuticals, Inc., C.A. No. 21-489-RGA (D. Del. Mar 3, 2022); VB Assets, LLC v. Amazon.com, Inc., C.A. No. 19-1410-MN (D. Del. Mar. 3, 2022).

Of course, the cancellation of so many pending mediation assignments and mediations should free up quite a lot of time—and the rest of the order shows how the magistrate judges will use it.

Welcome Back, VAC

The Court is re-instituting the Vacant Judgeship (VAC) docket and, like last time, the magistrate judges will be heavily involved in managing cases while the Court is shorthanded.

Here's the short version of the assignment process for new cases:

  • The VAC docket will be on the wheel for assignment of new cases; new cases may be assigned to any of the three remaining judges (CFC, RGA, MN) or to VAC
  • Parties in cases assigned to VAC may consent to an unspecified magistrate judge or to a specific magistrate judge within 60 days, and must inform the Court either way
  • If the parties don't consent, the case may be assigned to a visiting judge; until then, however, a magistrate judge will handle only scheduling, discovery/protective order disputes, stips and pro hac motions, and requests for mediation
  • The magistrate judges are specifically not permitted to set dates for certain hearings, a pretrial conference, or trial, other than dates for hearing discovery or protective order disputes

Existing Judge Stark Cases to be Re-Assigned

For existing cases, the procedure is similar, except that the case may be re-assigned directly to another Article III judge (in "rare instances"), to a visiting judge, or to VAC.

If the case goes to VAC, the parties have essentially the same options as outlined above, except that the consent is due within 14 days.

The announcement gives no firm date for the referral orders to go in, but it's coming up soon:

The Court will issue no later than March 11 standing orders to implement these new procedures. Case-specific orders in cases affected by these procedures will be entered in due course.

Translation: if you have an existing Judge Stark case, it may be time to start thinking about what magistrate judge you might want to consent to!

Visiting Judges

The announcement makes clear that VAC cases may be re-assigned to a visiting judge at any time up to trial, and that it may include new visiting judges:

Such assignment may occur at any time between the inception of the case and trial and may be made to any Article III judge, whether or not that judge has previously served or been announced as a Visiting Judge.

It does not list any new judges, but we've certainly been seeing some new faces around lately.


Efforts to Maximize Magistrate Judge Utilization

The Court is clearly trying to make the best use of the magistrate judges' new free time, by focusing the magistrate judges' efforts on consent cases and managing non-dispositive issues in VAC cases—both of which are things that avoid creating R&Rs that must be reviewed by the District Court.

This is consistent with Chief Judge Connolly's comments late last year that, at least in patent cases, dealing with objections to R&Rs is still a lot of work for the Article III judges. This way, all of the magistrate's efforts will be focused on things that do not create more work for the district judges.

Likewise, the Court is taking stronger steps than it has previously to encourage parties to consent, including offering the opportunity for the parties to consent to a specific magistrate judge. This is something mostly new to Delaware, other than some efforts last year to encourage parties to consent to a pre-selected magistrate judge.

Will it work? I think so. I expect a fair number of cases will consent. The ability to choose the magistrate judge should help. The ordinary consent process does not allow parties to specify a judge, so if one party had an issue (real or imagined) with one magistrate judge, that would prevent them from consenting to any magistrate.

And the requirement to file something even if the parties do not consent will push them to at least make a decision one way or the other.

Of course, there is still the problem where parties may reflexively push back against the other side's magistrate choice. It may be that we see some parties try to consent to "magistrate judge A or B" if the parties can't reach a consensus about their preferred judge. We'll have to see how the Court handles that.

Also, I'm guessing that the Court may have more difficulty in bigger cases with multiple defendants, where the parties cannot agree on a magistrate judge or on referral at all. I also imagine that, at some point, the Court is going to have to sort out a situation where parties in related cases on the same patents try consent to different magistrate judges.

Loss of Mediation as a Tool

The Court's mediation program is excellent when parties take advantage of it, and it is going to be painful for some parties to lose it. In high-value patent cases, I expect the parties will hire private mediators instead. In low-value cases, however, and especially in employment cases (where a defendant may be on the hook for fees), parties may have a tougher time.

Luckily the order provides that parties in cases other than patent and securities cases (the typically high-value cases) can still request mediation, and I expect that parties will take the Court up on that. These cases also make up a smaller proportion of the Court's workload, and from what I've seen they are very reliant on the mediation system to spur settlements.

It will be interesting to see how this plays out over time. Will patent actions settle less often, creating more work in the long run? Or will private mediators fill the gap, with the magistrate judges able to focus on substantive work with little or no increase in the number of cases going to trial? I'm honestly not sure.

Smart Moves

Regardless of how it turns out, I think it's great that the Court is trying something new here. Cancelling so many mediations and mediation referrals is a "go big or go home" strategy, and the Court went big.

Refocusing the magistrate judge's efforts away from issuing R&Rs during this period is likely the best thing for both the Court and the parties. Few people really want to spend extra time litigating objections to a magistrate judge's R&R. It's just more efficient for the magistrate judges to address issues where the Court can (probably) decide the issue one time and be done with it.

My guess is that doing both at once—cancelling mediations and refocusing the magistrate judges—will be a one-two punch that really helps free up resources for the Court (and therefore for the litigants), at least in the short term.

[Update 2022-03-04: The Court released a revised version of the announcement today, which includes minor corrections but no substantive changes]

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