A Blog About Intellectual Property Litigation and the District of Delaware

Entries for tag: Congestion

Roll the Dice
Leon-Pascal Janjic, Unsplash

Since 2021, Judge Connolly has occasionally issued orders asking parties to either consent to a magistrate judge or have their case re-assigned to a visiting judge. The parties in three out of five of that first round of cases consented, and we've seen several rounds of these orders since then.

The Court also offered parties a similar choice in the wake of the departure of Judge Stark, before Judge Williams was confirmed. I haven't seen hard numbers on this, but in May of last year we estimated that around 20% of those cases consented rather than waiting for the new district judge and risking re-assignment to a visiting judge.

These consent-or-visiting-judge referrals have continued through Judge …

Raúl Nájera, Unsplash

The District of Delaware is extremely busy. Sometimes clients and out-of-town counsel are surprised that they probably won't get rulings on their motions in the very-short-term. This often prompts questions like "Can we call the Court and ask them to rule on our motion?"—the answer to which is "no."

But in some instances parties really do need to alert the Court to a situation on the ground in the case that is impacted by a pending motion. The answer then is often to file a letter, which sometimes works.

We saw another successful letter this week. In Bataan Licensing LLC v. DentalEZ, Inc., C.A. No. 22-238-GBW (D. Del.), the defendant …

Judge Andrews
Wikipemedia Commons

We're a little bit slow on the draw on this one. But for anyone who hasn't heard, the District of Delaware announced on Friday that Judge Andrews will take senior status in December 2023. The announcement notes that Judge Andrews will maintain a full caseload:

The United States District Court for the District of Delaware announces that Judge Andrews informed the President on January 5, 2023 that he intends to take senior status at the end of December 2023. Judge Andrews expects to continue with a full caseload once he becomes a Senior Judge.
Judge Andrews is an exemplary judge and colleague, and the Court is extremely grateful that he will continue to serve this institution and the public as a Senior Judge.

The District of Delaware hasn't had a judge on senior status for some time. To the extent that a new judge is appointed and Judge Andrews maintains a full caseload while on senior status, that's akin to a fifth judgeship for D. Del.—a 25% increase in the number of available judges.

The Law360 article on the announcement has some more details, including some very nice comments by Chief Judge Connolly.

"If we don't consent, which visiting judge do you think we'll get?" Hush Naidoo Jade Photography, Unsplash

We've talked before about Chief Judge Connolly's orders that allow parties to choose to either consent to a specific magistrate judge or to have the case assigned to a visiting judge.

Last month, the Court issued those orders in six patent cases. All of the orders followed the same pattern as last time, giving the choice between a specific magistrate judge or an unknown visiting judge:

ORAL ORDER: It is HEREBY ORDERED that on or before November 1, 2022, 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 all the parties do not consent to a referral of this action to a Magistrate Judge. The letter should not indicate which party or parties did not consent. If all the parties consent, the case will be referred to Magistrate Judge Burke. Because of the Court's caseload, if the parties do not consent, the Court intends to assign the case to a visiting judge from another district. Ordered by Judge Colm F. Connolly on 10/18/2022.

These orders started last year, before Judge Stark's departure for the Federal Circuit. It makes sense that the Court is sticking with ...

Dan Mall, Unsplash

I noticed a new visiting judge here in the District of Delaware this month: Senior United States District Judge Joel H. Slomsky of the Eastern District of PA.

To my knowledge, Judge Slomsky has not previously served as a visiting judge in the District of Delaware, other than signing one stipulation on an emergency basis back in 2010. It looks like Judge Slomsky took on four patent cases this month.

Welcome, Judge Slomsky!

Judge Stark being sworn in by Chief Judge Kimberly A. Moore
Judge Stark being sworn in by Chief Judge Kimberly A. Moore U.S. Court of Appeals for the Federal Circuit

This isn't news for Delaware FBA members, since Delaware FBA president Jeremy Tigan helpfully sent around an e-mail yesterday.

But for anyone who isn't already aware, Judge Stark's investiture will take place on Thursday 10/13 at 3:00 P.M. ET. You can watch it live here. That link should be active about 15 minutes before the event. Congratulations again to Judge Stark!

Wilmington, <a href='#' class='abbreviation' data-bs-toggle='tooltip' data-placement='top' title='Delaware'>DE</a>
Andrew Russell, CC BY 2.0

Today we started seeing cases re-assigned to incoming Judge Williams. So far, we've seen re-assignments in cases from Chief Judge Connolly and Judge Noreika, including in a case that is set for trial next month. I've only seen one of our firm's vacant judgeship case re-assigned so far, but I would expect many or all of those cases to go as well—we'll see.

Judge Williams doesn't yet have a listing on the District of Delaware website, but we'll keep an eye out for that too, and we'll most likely have a post about his procedures.

UPDATE: Judge Williams' page is now …

Defendants lining up to file their motions to stay
Defendants lining up to file their motions to stay Rob Curran, Unsplash

When the Court instituted its vacant judgeship procedures following Judge Stark's elevation to the Federal Circuit, the implementing order included procedures to keep cases moving if the parties do not consent to a magistrate judge to hear the case.

For example, the order directs parties to hold a Rule 26(f) conference within seven days of notifying the Court that the parties would not consent to a magistrate judge:

The parties shall cooperate in good faith to move the case forward. To that end, within seven days of filing the notice that the parties would not consent to a Magistrate Judge, the parties shall hold a Rule 26(f) …

Schedule issues
Towfiqu barbhuiya

We've recently flagged Judge Noreika's evolving practice of sometimes requiring parties to seek leave before filing summary judgment or Daubert motions. It doesn't seem to happen in every case, and so far the Court has often granted leave for at least one summary judgment or Daubert motion in each case. But it's worth keeping in mind if you have a case before Judge Noreika.

Yesterday, we saw a new variation on Judge Noreika's previous orders on this issue. She specifically noted that the trial was a bench trial (it is an ANDA case):

ORAL ORDER re . . . Stipulation and Proposed Order - WHEREAS, the parties have submitted a proposed stipulation that includes, inter alia, new …

Looks like the sun is setting on Waco, TX
Looks like the sun is setting on Waco, TX Jed Owen, Unsplash

We're a day late on this, but it could be major news for Delaware patent litigators: the Western District of Texas is ending its practice of sending all patent cases filed in Waco to Judge Alan Albright.

Previously, all cases filed in Waco, TX were assigned to Judge Albright, a former patent litigator. He has favorable rules for resolving cases quickly and putting pressure on accused infringers, although I'm not sure that they are quite as tilted towards patentees as Law360 makes them out to be.

According to Law360, Judge Albright received 23% of all patent lawsuits in 2021. That's a lot!

We'll have to see …