A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Local Rules

A Cite to Behold

Nathan R. Hoeschen, July 29, 2025
Local Rules

I fancy myself a bit of an aficionado of the local rules (a petty fiefdom, I know, but I rule it fairly). Like any Delaware lawyer I can rattle off the big ones—7.1.1, 16.4., 26.2 and the like—and I can even pull some b-sides out in a pinch.

Ooooh, they've got 54.1! Costly though...
Ooooh, they've got 54.1! Costly though... Florecio Viadana, Unsplash

But I must say I had to have a real think when I read Judge Bataillon's recent order in Astellas Pharma Inc. v. Ascent Pharms., Inc., C.A. No. 23-486-JFB-EGT (D. Del. July 28, 2025) and saw a citation to D. Del. LR 5.4(b)(3).

Obviously you'll all have this one memorized, but just in case any lay readers are …

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Tips for District of Delaware Cases Involving Pro Se Litigants

Andrew E. Russell, April 21, 2025
Pro Se Federal Rules of Civil Procedure

Pro Se Litigant
AI-Generated, displayed with permission

It's relatively uncommon to see IP cases involving pro se litigants, given that corporations cannot appear pro se—but it does happen, such as when an inventor ends up being a party in a patent case.

If you find yourself as an attorney in a case involving a pro se party, it's worth remembering that a number of the District of Delaware rules include specific provisions for cases involving pro se litigants. Here are some examples.

Rule 5.2: Service

The first one is easy. Local Rule 5.2 says that, in cases involving parties that are not participants in the Court's electronic filing system (including pro se parties), you must file a certificate of service. This is …

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Reminder: If You Bring a Discovery Dispute, the Local Rules Require You to Recite or Attach the Discovery

Andrew E. Russell, March 26, 2025
Local Rules

Danger Landmines
AI-Generated, displayed with permission

Local Rule 37.1 seems to often be forgotten. It requires a party bringing a discovery motion (which would include a discovery dispute) to recite or attach the discovery request or responses they are moving about:

Any discovery motion filed pursuant to Fed. R. Civ. P. 26 through 37 shall include, in the motion itself or in a memorandum, a verbatim recitation of each interrogatory, request, answer, response, or objection which is the subject of the motion or shall have attached a copy of the actual discovery document which is the subject of the motion.

D. Del. LR 37.1. Judge Burke's Guidelines for Discovery Disputes include a very similar requirement (and a requirement for the opposing …

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Should You Request Oral Argument on Your Motion in the District of Delaware?

Andrew E. Russell, June 22, 2022
KB Oral Argument

This is definitely not a District of Delaware courtroom. But you get the idea...
This is definitely not a District of Delaware courtroom. But you get the idea... David Veksler, Unsplash

Under the D. Del. local rule 7.1.4, a written request for oral argument is due seven days after the reply brief on a motion.

According to the rule, the Court may or may not schedule oral argument on receiving a request—and may schedule argument even if it is not requested:

Oral argument on any motion may be scheduled upon the application of a party, or sua sponte by Court order.

That leads to a common question, "Should we request oral argument on our motion?"

The short answer is: yes, if you want oral argument. The Court is going to schedule …

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Brush Up on Your Tennessee Local Patent Rules: Visiting Judge McCalla Brings Taste of Home Jurisdiction

Andrew E. Russell, May 3, 2022
Visiting Judges Congestion

Tennessee
Drew Beamer, Unsplash

Visiting Judge McCalla has taken about 13 patent cases so far here in Delaware, including some additional assignments late last month. A reader who has a case before him flagged an interesting point: Judge McCalla brings some of his home-state rules with him.

In his orders on hearings and scheduling conferences, for example, he directs the parties to either the Northern District of California local patent rules or the District of Tennessee local patent rules:

1. A video motion conference re: Motion to Dismiss (ECF No. 11) will be held . . .
2. The parties should refer to the Northern District of California or the Western District of Tennessee Patent Rules.

See, e.g., New York University v. Resmed, Inc., C.A. No. 21-813-JPM (D. Del. Mar. 28, 2022).

Likewise, scheduling orders in his cases may look a bit alien to regular Delaware practitioners, as he uses the District of Tennessee form. That form results in a two-page scheduling order like the attached, which focuses primarily on a few of the initial dates and guidelines, rather than ...

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Judge Andrews Strikes Opening Brief for Non-Compliance with Local Rules

David M. Fry, Sept. 8, 2021
Legal Writing Local Rules

You're drafting a brief in D. Del., and you're not sure what it's supposed to look like. You're in luck! The local rules tell you exactly what sections you need to include in an opening or answering brief (see LR 7.1.3(c)(1) for more detail):

  1. Two tables (a table of contents and a table of authorities).
  2. "A statement of the nature and stage of the proceedings."
  3. "A summary of argument, setting forth in separately numbered paragraphs the legal propositions upon which the party relies."
  4. "A concise statement of facts, with supporting references to the record, presenting the background of the questions at issue."
  5. "An argument" with "appropriate headings distinctly setting forth separate points."
  6. "A short …
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Where to Find the OTHER District of Delaware Local Rules

Andrew E. Russell, March 20, 2021
CM/ECF KB

Sit back, relax, and enjoy this long post about <a href='#' class='abbreviation' data-bs-toggle='tooltip' data-placement='top' title='United States District Court for the District of Delaware'>D. Del</a>. local rules...
Sit back, relax, and enjoy this long post about D. Del. local rules... XPS, Unsplash

The District of Delaware's local rules are available on the court's website, but they don't tell the whole story—there are a number of critical rules and practices set forth in other documents that are not as obvious on the site.

These can really trip you up if you're not familiar with D. Del. practice.

This post is geared towards mainly towards out-of-town or in-house counsel. It covers the basics and then lays out where to find some of those other important rules if you have a …

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Reargument Permitted Where Court Granted Summary Judgment on More Claims Than Intended

Andrew E. Russell, March 7, 2021
LR 7.1.5 Reconsideration

Piper Saratoga Plane
Alan Lebeda, CC BY 2.0

Last week, Judge Andrews granted a motion for reargument in a products liability diversity action, permitting further argument on summary judgment after the Court had previously ended the case by finding against plaintiff at summary judgment.

In its original opinion, nearly a year ago, the Court found that a federal statute that limits products liability for aircraft parts manufacturers blocked recovery here, and entered a judgment for defendant on all claims.

Plaintiff's motion for reargument asserted that, in addition to bringing actions against defendant as a "manufacturer," it had asserted claims based on the defendant's role as a "rebuilder and seller" of airline parts, and then detailed an argument based on the statutory language, …

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Some Analysis of a Motion for Reconsideration that Actually Worked

Andrew E. Russell, Feb. 18, 2021
LR 7.1.5 Reconsideration

Light Bulb
Alessandro Bianchi, Unsplash

While motions for reconsideration are frequently filed, they are not frequently granted. Typically they are shut down pretty easily. The rules put the moving party in a box, because parties can neither repeat arguments from their brief nor offer new arguments.

These motions are sometimes granted, though, and Judge Connolly granted one such motion late last month. I thought it would be interesting to look at what worked.

What happened?

The Court had originally granted a motion to exclude expert testimony from a defendant's infringement expert, on the grounds that the expert had testified that the presence of additional structure in a means-plus-function claim results in non-infringement.

We discussed this opinion at the time, pointing out that violating a well-established rule like that one is a great way to get an expert opinion excluded. ...

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Don't Count on Extra Pages in D. Del.

David M. Fry, Feb. 10, 2021
Page Limits Local Rules

Paper
ron dyar, Unsplash

It's hard to get a significant increase to the normal briefing limits in D. Del., even if both sides agree. Sometimes a judge will grant a small increase (if there's a good reason), but for the most part, they're reluctant to grant requests that will have a large impact on their workload.

Case in point: In a multi-defendant ANDA case that went to trial last month, the parties submitted a post-trial briefing schedule asking Chief Judge Stark to allow "in excess of 500 pages of briefing and an additional almost 500 pages of proposed findings of fact[.]"

Judge Stark quickly rejected the proposal and ordered shorter limits. And although he allowed "[a]ny party that strenuously objects …

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