Parties in D. Del. patent actions frequently stipulate to adjustments of the case schedule, and these typically go through without any issue. So it always catches my eye when a stipulated stay is denied.
In Zogenix, Inc. v. Apotex Inc., C.A. No. 21-1252-RGA (D. Del.), and two related actions, one of the defendants had moved to dismiss one of the asserted patents in a related action, and the plaintiff had moved to amend its complaint to assert additional patents and join additional parties. The motions were filed in September and November, 2022, and remain pending.
The parties in the three actions stipulated to consolidate the actions for the purposes of discovery, and to stay the consolidated action until resolution of the motions to dismiss and amend.
Judge Andrews denied the motion, ordering that the parties instead move forward as if the motions were resolved in the broadest way:
ORAL ORDER: The Stipulation to Consolidate and Stay Case . . . is DENIED. The Court is not willing to stay the cases. The discovery deadlines in the two earlier cases . . . will not be extended. The parties should proceed as though the motion for leave to amend . . . will be granted and the motion to dismiss . . . will be denied. Ordered by Judge Richard G. Andrews on 3/1/2023.
We've noted before that stipulations to stay the entire case can be iffy, and Judge Andrews has previously rejected an attempt "to stay the case except for when the Court is working on it." Interactive Games LLC v. DraftKings, Inc., C.A. No. 19-1105-RGA, D.I. 25 (D. Del. August 11, 2020).
In this case, you can't blame the parties for trying, particularly as to the motion to amend. It would be a tough sell to convince a defendant to proceed as if the motion had been granted, when that defendant is going to potentially incur substantial (and potentially unnecessary). costs responding to discovery on a new patent.
It's also notable that the Court provided guidance on how the parties should proceed, suggesting that it may already have an idea on how it will decide the motions. We'll have to see how that plays out—it's always possible that the Court could ultimately deny the motions.
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