"They brought four motions to strike? We better bring 5!"AI-Generated, displayed with permission
There was an interesting order last week in Cleveland Medical Devices Inc. v. ResMed Inc., C.A. No. 22-794-JLH (D. Del.).
The parties filed a letter initiating a discovery dispute conference with the Court. These letters must include non-argumentative descriptions of each dispute the parties raise with the Court. Here, the letter listed a total of nine motions to strike expert reports, including five from the plaintiff and four from the defendant.
Typically the Court reviews these letters and sets a date for a conference and for briefing on each sides' issues. Here, however, the Court took issue with the extraordinary number of …
Most of the judges in the District of Delaware have settled on page limits for summary judgment and Daubert motions in patent cases of 250 total pages: 50 pages opening, 50 pages answering, and 25 pages reply—per side.
The "per side" part is important, and it can have a significant impact on cases with multiple unrelated defendants or defendant groups.
The Court has usually resisted expanding these limits, and in many cases, has instead experimented with ways of reducing the burden on the Court. Judge Noreika, for example, has sometimesrequired parties to seek leave before filing summary judgment motions.
"Counsel, go stand in the corner until you figure out what 'collegiality' means."Mag Pole, Unsplash
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 …
It's impressive when an attorney files a short letter and gets the Court to do something that it is not often inclined to do.Immo Wegmann, Unsplash
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 ...
Seems like it was just yesterday that we heard that Magistrate Judge Hall had been nominated to take Judge Andrews' seat when he takes senior status.
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 …
"Do we want to bring this discovery dispute, or do we want to cross their corporate rep at trial? Choices, choices..."Vladislav Babienko, Unsplash
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 ...
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