A Blog About Intellectual Property Litigation and the District of Delaware

Entries for tag: 5pm Deadline

Jon Tyson, Unsplash

The District of Delaware has a 5pm ET filing deadline. This was originally instituted as a 6pm deadline, back in 2014, to improve quality of life for practitioners here. As I've said before—it has been extremely successful.

The 5pm deadlines keeps young associates and staff from having to unexpectedly stay until midnight, disrupting family plans (I recall this happening about once a week). It also keeps clients from having to pay attorneys and staff to sit around and wait for filings. And everyone quickly adapted to working towards either a 5 or 6pm deadline rather than a midnight deadline.

That said, whether the deadline is 5pm, 6pm, or midnight, it's not uncommon for parties to miss it by a few minutes. Often these delays relate to the fact that PACER and CM/ECF tend to slow down quite a bit around 5pm, especially before weekends, as everyone tries to file things simultaneously.

Normally this is not cause for panic. Unlike some jurisdictions, judges in D. Del. generally have not taken an interest in enforcing exact, precise compliance with the 5pm deadline. I have seen parties miss the 5pm by a few minutes countless times, with no response from the Court. Most Delaware counsel seem to agree that it's not worth the Court's or the parties' time to seek a remedy from the Court for a deadline that was missed by only a few minutes.

5 Hours May Be a Bit Much

So I thought it was worth pointing out an instance this week where a party pushed it to far. In Dental Monitoring v. Get-Grin Inc., C.A. No. 22-647-WCB (D. Del. Dec. 13, 2023), a party filed a letter brief at 10:14, and an unopposed motion for leave to file the brief late:

On Tuesday, December 5, 2023, the parties advised the court by email that they had a discovery dispute in this case. They suggested a briefing schedule granting the plaintiff one week to file its letter brief, followed by the defendant’s letter brief one week later. The court directed the parties to file their letter briefs on a shorter briefing schedule, giving the plaintiff until 5 p.m. Eastern Time on Friday, December 8, 2023, to file its three-page letter brief, followed by the defendant’s responsive three-page letter brief at 5 p.m. Eastern Time on Tuesday, December 12, 2023, and an optional reply brief for the plaintiff, to be filed by 5 p.m. Eastern Time on Wednesday, December 13, 2023.
The plaintiff filed its opening letter brief on time. The defendant did not. Instead, at 9:04 p.m. Eastern Time, after the deadline had passed, the defendant filed a motion to extend the time for filing its brief until 11:59 p.m. on December 12, 2023. The plaintiff did not oppose the motion, provided it was given a one-day extension for filing its one-page reply letter. At 10:14 p.m., more than five hours after the deadline, the defendant filed its responsive letter brief.

Id. at 1. Judge Bryson (sitting by designation) criticized the motion for an extension because ...