Just imagine the bird is a summary judgment motion.AI-Generated, displayed with permission
Our blog readership remains pretty high these days, and we continue to grow subscribers. But not all District of Delaware attorneys follow the blog—yet.
That may be why, even though we've talkedabouttheseatlength, parties continue to file separate "concise statements of material fact" in support of their summary judgment motions that list non-material facts and do not include pinpoint citations—potentially resulting in denial of their motion.
Here are some guidelines for when you are putting together a concise statement of material facts in support of an SJ motion:
Include only the material facts. If you could still win your motion if a fact …
In The Estate of Edward Bovee v. Corporal Sam Wilks, C.A. No. 23-192-CFC (D. Del.), the parties' agreed-upon scheduling order included Chief Judge Connolly's normal language requiring concise statements:
Any motion for summary judgment shall be accompanied by a separate concise statement detailing each material fact as to which the moving party contends that there are no genuine issues to be …
"Here is our argument. The rest of the pieces are in our concise statement of facts."T.J. Breshears, Unsplash
Years ago, I wrote a really terrible first draft of a summary judgment brief arguing invalidity of a patent for obviousness.
I wrote it immediately after expert reports, and my draft failed to actually say why the claims were obvious. Instead, the whole draft read like a sur-rebuttal to the patentee's expert: here is why their first argument doesn't work, here is why their second argument doesn't work, and so on. Never "here is why the claims are obvious."
To me, at the time, it looked great. I rebutted all of their arguments! How can we lose! To others, it …
We've talked quite a bit on the blog about navigating the concise statement of facts in summary judgment briefing. Judges Connolly, Noreika, Williams, Burke, and Hall all require one, and it's a common—yet severe!—stumbling block in the district which has hobbled many a fine brief.
Indeed, we talk about it so much that you could (almost) be forgiven for thinking that all of our judges require such a statement with their summary judgment briefing.
Judge Andrews, however, has never adopted the practice and actually does not allow parties to submit separate statements of fact (or at least, not ones that otherwise expand the page limits). He made this point quite clearly in an order last week responding to a motion to strike such a statement:
Defendant requests that I strike Plaintiffs rogue statement of uncontested facts, which Plaintiff opposes. (D.I. 197 , 198 ). I expect counsel to know my practices, whether written or unwritten. My practice for summary judgment motions does not permit what Plaintiff did. There is nothing in the scheduling order of this case or the later form order on the Courts website that would serve as encouragement for Plaintiff to do what it did. Neither, however, is there anything expressly prohibiting what Plaintiff did. Plaintiffs statement of facts, which has 12 pages of text, is (by eyeball) about 8 pages of facts that are scattered throughout its opening brief with about 4 pages of citations in support, which are omitted from the opening brief. Thus, Plaintiff has gained a 4-page advantage by committing something more akin to a traffic violation than a felony. I think the proportionate response is ...
Yesterday, Magistrate Judge Burke released a new form scheduling order. There are redlines embedded below.
Here is a quick rundown of some of the changes in the patent scheduling order:
Added from Judge Andrews' scheduling order:
A requirement for plaintiffs to provide licenses and settlement agreements as part of their disclosures
A prompt in the scheduling order for the parties to consider a staged reduction of asserted claims and prior art, before and after claim construction (this comes up a lot)
Added from Judges Connolly, Noreika, and/or Hall's scheduling orders:
A requirement to include chart at the end listing the deadlines all together (convenient!)
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