A Blog About Intellectual Property Litigation and the District of Delaware


Yesterday, Chief Judge Connolly issued nearly identical oral orders across five cases, instituting a new procedure for referral of the case to a magistrate judge:

ORAL ORDER: On or before December 22, 2021, the parties shall either (1) submit to the Clerk of Court an executed Form AO 85 Notice, Consent, and Reference of a Civil Action to a Magistrate Judge, indicating their consent to have a United States Magistrate Judge conduct all proceedings in this case including trial, the entry of final judgment, and post-trial proceedings; or (2) a joint letter indicating that both parties do not consent to a reference of this action to a Magistrate Judge. The letter should not indicate which party or parties did not consent. If the parties consent, the case will be referred to Magistrate Judge Hall. Because of the Court's caseload, if the parties do not consent, the Court intends to assign the case to a visiting judge from another district.

See, e.g., Nanexa AB v. VitriVax, Inc., C.A. No. 21-764 (D. Del. Dec. 16, 2021) (oral order).

This seems like a great way to handle these referrals, as it prompts the parties to actually decide the issue (as opposed to it falling by the wayside), and it gives certainty as to which magistrate judge will hear the case, as well as what will happen if the parties don't consent.

I expect we may see more of these going forward as the Court prepares for the likely departure of 25% of the Court's four article III judges for the Federal Circuit. It will be interesting to see how many parties consent.

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