A Blog About Intellectual Property Litigation and the District of Delaware

Forgive the Puppy
Forgive the Puppy Taylor Kopel, Unsplash

Judge Burke had an interesting opinion on Tuesday striking final contentions served after the deadline in the scheduling order.

It's become increasingly common in the district for late-served final contentions to be analyzed under the less forgiving good cause standard of Rule 16 without reference to the Pennypack Factors. Even so, it was a bit surprising to see the Court strike contentions which were filed just a month after the deadline, which the Court addressed directly in the Order:

This result might seem harsh in light of the facts here, since Plaintiff submitted the belated contentions at issue only about a month after the filing deadline called for by the Scheduling Order. But more broadly, the United States Court of Appeals for the Third Circuit has explained why it makes sense that the good cause standard (and its threshold requirement of a showing of diligence) should control, even in such circumstances: if courts allowed scheduling orders to be "disregarded without a specific showing of good cause, their utility would be severely impaired."

Vaxcel International Co. Ltd. v. HeathCo LLC, C.A. No. 20-224-VAC-CJB, D.I. 226 (D. Del. June 28, 2022) (quoting Compagnie des Grands Hotels dAfrique S.A. v. Starwood Cap. Grp. Global I LLC, C.A. No. 18-654-RGA, 2019 WL 4740083, at *1 (D. Del. Sept. 27, 2019))

This ruling may have also been influenced by how the plaintiff went about requesting leave—letting the original deadline lapse, serving the late contentions anyway, and then several months later moving to extend the deadline it had already missed.

The opinion is also notable for calling out the plaintiff's candor in admitting that their failure to meet the deadline amounted to a tactical choice:

Plaintiff's counsel acknowledged that Plaintiff could have filed final infringement contentions by January 6, 2022 and could thereafter have sought to modify such contentions in light of the District Court's February 3, 2022 ruling (if it turned out there was a need to do so); counsel candidly admitted that Plaintiff's failure to meet the January 6 deadline was a strategic "mistake." (D.I. 208 at 24, 32) (By the way, Plaintiff's counsel was right to make this admission, no matter its impact on the outcome of this motion -- since the truth of the admission was patently clear from the record, and because counsel's failure to do so would only have harmed Plaintiff's credibility in the case more broadly.). However, "[a] strategic mistake does not equate to a showing of good cause under Rule 16."

The whole order is worth a read (you've already read about half it). But to my eyes it signals that the days when a party could get by asking forgiveness rather than permission may be coming to an end.

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