Several District of Delaware judges have discovery dispute procedures that require parties to first file a letter stating that the parties have met and conferred but are unable to resolve some disputes, and list the disputes.
This usually works out well, but a few issues can occasionally come up with this procedure. For example:
One party refuses to meet-and-confer, forcing the other side to file solo.
The parties have met and conferred to death, but one party refuses to sign the the joint letter anyway (or just refuses to respond), solely for the purpose of delay.
We mentioned back in October that Judge Hall was confirmed to the District of Delaware. Today, the Court started re-assigning cases from existing judges to Judge Hall. These arrive as a simple one-sentence docket entry:
Case Reassigned to Judge Jennifer L. Hall. Please include the initials of the Judge (JLH) after the case number on all documents filed.
The re-assignments involve cases at multiple stages, including past the close of fact discovery, and cases where Judge Hall was not previously involved as a magistrate judge.
One common question I see is "why did our case get re-assigned"? We can all speculate, but I'm not sure it's safe to read anything into a re-assignment like this beyond "our case was re-assigned …
The District of Delaware generally suspended its mediation program in 2021, and mediations before a magistrate judge rarely happen in patent cases these days (although they do sometimes happen in some other cases, such as employment cases).
Since then, parties have sometimes moved to private mediations—especially when ordered to—but generally in my experience the overall number of cases that go through mediation has declined, and there aren't a huge number of local patent-case mediators.
When we last discussed this, we noted from comments at the 2023 Bench and Bar conference that …
Chief Judge Connolly's scheduling order requires parties to rank their Daubert motions, and gives the Court the discretion to automatically deny all lower-ranked motions if it denies any one motion. In other words, if a party files five Daubert motions, and the Court grants the first-ranked motion but denies the second, the Court can then deny motions three, four, and five:
If the Court decides to deny a motion filed by the party, barring exceptional reasons determined sua sponte by the Court, the Court will not review any further Daubert motions filed by the party.
It has a similar provision for summary judgment motions Thus, it's important that parties split up their motions and rank them. …
The District of Delaware is looking for its next magistrate judge!
The formal requirements to become a magistrate judge, as set forth in the announcement, are actually fairly easy to meet:
To be qualified for appointment an applicant must
(1) Be, and have been for at least five years, a member in good standing of the bar of the highest court of a state, the District of Columbia, the Commonwealth of Puerto Rico, the Territory of Guam, the Commonwealth of the Northern Mariana Islands, or the Virgin Islands of the United States, and have been engaged in the active practice …
Along the lines of on Friday's post, Judge Noreika issued an order in a different case this week denying a § 101 motion because it addressed only a subset of claims, and suggested that more claims may be asserted:
ORAL ORDER re (10 in 1:23-cv-00174-MN) (9 in 1:23-cv-00220-MN) MOTION to Dismiss - Defendants have filed motions to dismiss for failure to state a claim, arguing that claim 1 in two of the four asserted patents is directed to ineligible subject matter under 35 U.S.C. § 101. . . . Defendants state in a footnote that they are not addressing other claims, but that very same footnote suggests that the Court may face additional § 101 arguments in the future should Plaintiff add further asserted claims from the two patents at issue in the motion and that the Court may also later have to address § 101 with respect to the remaining two patents not subject to the present motion. (C.A. No. 23-220, D.I. 10 at 2 n.2). Given that Defendants' § 101 motions suggest that the Court will be forced to address § 101 issues in this case seriatim and because doing so is not a good use of the Court's time, IT IS HEREBY ORDERED that Defendants' motions to dismiss are DENIED without prejudice to renew as appropriate during summary judgment. ORDERED by Judge Maryellen Noreika on 10/23/2023.
AlmondNet, Inc. v. Freewheel Media, Inc., C.A. No. 23-220 (D. Del. Oct. 23, 2023).
What was in the footnote? An admission that the motion doesn't resolve all of the claims:
This motion is directed to only two claims—claim 1 of the ’307 patent and claim 1 of the ’249 patent—because they are the only claims of those patents that the Complaint alleges Defendants infringe. . . . While Plaintiffs could conceivably assert other claims of the ’307 and ’249 patents if the Court grants this motion, they would do so at their peril because those other claims add only incidental limitations to the two at issue here. Thus, resolution of this motion will likely dispose of two of the four asserted patents in this case. Moreover, because Plaintiffs’ patents are all similar—and all face similar obstacles under Section 101—Defendants believe that deciding this motion now will streamline and promote resolution of this entire case, and possibly of other AlmondNet cases as well, since they involve similar or overlapping patents. . . . Accordingly, Defendants believe that deciding this motion now, at the Rule 12 stage, will be an efficient use of the Court’s resources.
Id., D.I. 10 at 2 n.2.
This outcome is not unusual, but it's definitely something to keep in mind when evaluating ...
But it was actually yesterday that we heard that the Senate confirmed Judge Hall as a District Judge in the District of Delaware. According to Law.com, she was confirmed by a vote of 67 to 29, a wider margin than any other federal district court judge this year. Congratulations, Judge Hall!!!
Judge Hall will fill Judge Andrews' spot, after he takes senior status at the end of December. The Court has said that Judge Andrews expects to continue with a full caseload, leaving us with essentially five sitting district court judges. That's great …
We've written before about how the Court sometimes sets up escalating obstacles for parties who are insensitive to the Court's time and bring too many discovery disputes. In that case, the Court gave the parties "homework" (writing letters to the Court) after their seventh discovery dispute.
In Apple Inc. v. Masimo Corporation, C.A. No. 22-1377-MN-JLH (D. Del.), the Court referred all pre-trial matters up until dispositive motions to Magistrate Judge Hall.
Judge Hall took action after the parties brought what looks like seven discovery disputes. The docket shows the Court's escalating response to the parties disputes:
June 1 - First teleconference
June 16 - Second teleconference
July 7 - First in-person hearing
July 14 - Second in-person hearing
August 3 - Third in-person hearing
September 1 - Fourth in-person hearing; Court warns that future disputes will be charged to trial time
September 14 - Fifth in-person hearing; Court charges the parties' trial time
Guessing from the docket, it looks like the parties brought a number of rapid-fire discovery disputes starting on June 1. For the third dispute in about a month, the Court increased the friction on the parties by forcing them to come to Delaware to argue the disputes.
That doesn't seem to have slowed them down at all. After three in-person disputes ...
The District of Delaware held its annual FBA luncheon today. The presentations were wonderful, as usual, and covered the typicaltopics. Here are some of the notable points from Chief Judge Connolly's presentation:
The state of the Court is excellent, and we are back to having a full bench.
The Court will be doing even better next year, when Judge Andrews is planning to take senior status but continue to take cases, which will effectively give the Court an additional judge.
The nomination process for filling Judge Andrews' seat once he takes senior status next year is proceeding "expeditiously."
The Court remains very busy:
It's the 4th busiest court by weighted case volume, although two of the higher-weighted courts …
Over the last two weeks, Chief Judge Connolly issued orders in about 15 different groups of cases offering the choice between consenting to magistrate judges Burke (in some cases) or Fallon (in other cases), or being referred to a visiting judge:
ORAL ORDER: It is HEREBY ORDERED that on or before June 13, 2023, 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) file a joint letter indicating that …
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