A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: legal-writing

Stealth
Jaroslav Devia, Unsplash

Speaking of MILs, Chief Judge Stark recently denied two motions that were, "in reality, motions for summary judgment" masquerading as MILs. Xcoal Energy & Res. v. Bluestone Energy Sales Corp., C.A. No. 18-819-LPS (D. Del. Aug. 3, 2020).

The motions were framed as MILS to exclude evidence on the defendants' "fraud-based claims and defenses" and their claim for lost profits. But they actually sought "judgment on particular claims and defenses[,]" and they didn't even mention the Federal Rules of Evidence.

The judge denied the motions outright, explaining that:

“[M]otions in limine should not be used as disguised motions for summary judgment.” Brown v. Oakland County, 2015 WL 5317194 at *2 (E.D. …

While we're talking about reply briefs—Judge Connolly this month affirmed Judge Burke's conclusion that a defendant had "abandoned" arguments that it set forth in its opening brief, because the defendant failed to further address those arguments in a reply after receiving pushback in the answering brief.

Here is what Judge Burke said:

In its opening brief, Defendants appeared to challenge these claims on two other grounds . . . . However, after Plaintiff pushed back on these issues in its answering brief, Defendants did not further address the issues in their reply brief. . . . Thus, Defendants have abandoned these arguments and the Court will not further address them herein.

Judge Connolly disagreed that such arguments are necessarily …

As Andrew recently explained, the District of Delaware has a longstanding rule against "sandbagging," or saving arguments for a reply brief that should have been in a full and fair opening brief. But not every new argument is sandbagging.

In f'real Foods, LLC v. Hamilton Beach Brands, Inc., C.A. No. 16-41-CFC (D. Del. June 24, 2020), the defendants opposed a permanent injunction on sale of their commercial blenders by pointing out that the plaintiffs presented no evidence that their blender could meet the technical requirements demanded by one of defendants' customers (Dairy Queen).

In reply, the plaintiffs submitted new evidence and argued for the first time that their blenders could be modified to meet Dairy Queen's requirements. …

Sandbags
ideadad, Unsplash

In an R&R this week, Magistrate Judge Burke flatly declined to consider a "critical[]" argument raised for the first time in a reply brief:

In their reply brief, Defendants made one other argument, which they failed to raise in their opening brief . . . . (D.I. 37 at 9 (“Critically, neither of these manuals refer to the named defendants in this case[.]”)) Because this argument could have and should have been raised in the opening brief, it has been waived, and so the Court will not consider it here. See McKesson Automation, Inc. v. Swisslog Italia S.p.A., 840 F. Supp. 2d 801, 803 n.2 (D. Del. 2012); LG Display Co., Ltd. …

Judge Andrews today rejected a portion of a defendant's objections to an R&R because the defendant set forth its objections in "a footnote, which purport[ed] to include about eight pages of the earlier briefing." Sapp et al v. Industrial Action Services, LLC et al, No. 19-912-RGA, at 10 (D. Del. May 29, 2020) (emphasis added).

He held—perhaps not surprisingly—that this "is an insufficient objection." Id.

That said, he did sustain the same defendant's objections to other portions of Magistrate Judge Burke's R&R, although he called the underlying legal issue a "close call." Id. at 8.