A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Magistrate Judges

Judge Hall Holds that Magistrate Judge Hall's Order Was Not "Clearly Erroneous and Contrary to Law"

Andrew E. Russell, Jan. 26, 2024
FRCP 72 Objections to R&Rs

Order Approved
AI Generated, displayed with permission

Plaintiff in Applied Biokinetics LLC v. KT Health, LLC, C.A. No. 22-638-RGA-JLH (D. Del.) had some bad luck this month.

Late last month, Magistrate Judge Hall denied their motion to strike an expert report that they argued exceeded the bounds of the parties' contentions.

Shortly thereafter, Plaintiff objected to Magistrate Judge Hall's order, appealing to Judge Andrews to reverse the order because it is unsupported:

ABK would be unfairly prejudiced if KT were permitted to use its previously-undisclosed invalidity theories because ABK properly relied on KT’s invalidity contentions, discovery responses, and case narrowing during fact discovery. . . . The Magistrate Judge’s decision to not strike any portion of KT’s invalidity report …
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Will the Court Still Refer a Patent Case for Mediation? Maybe.

Andrew E. Russell, Dec. 18, 2023
Mediation Congestion

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.
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 …

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Court Gives Parties in 11 Patent Cases the Choice to Consent to Magistrate Judge Burke, or Get a Random Visiting Judge

Andrew E. Russell, Jan. 18, 2023
Visiting Judges 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 …

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On the Importance of Consistency

Andrew E. Russell, Dec. 30, 2022
Privilege Objections to R&Rs

Up Down Arrow
愚木混株 cdd20, Unsplash

We got a good "what not to do" example today, relayed in an opinion by Judge Williams.

In the opinion, the Court addressed objections to a magistrate judge ruling on a privilege issue (remember—you can object to non-dispositive magistrate judge rulings in addition to R&Rs. Good luck.).

As the Court explained, the defendants initially argued to the magistrate judge that Third Circuit law governed, and that Federal Circuit law was grounded in the same principles as Third Circuit law anyway. The magistrate judge agreed:

In briefing submitted to the Magistrate Judge, Defendants state that, "Federal Circuit [law] does not differ [from Third Circuit law] in that it 'is grounded in principles of fairness. '" D.I. 224 at 3. The Magistrate Judge credited Defendants' argument to conclude Third Circuit law applies. See D.I. 232 at 3 n.2 ("Because Defendants themselves initially relied on Third Circuit caselaw here (as did Plaintiff) and because Defendants assert that the Third Circuit's approach to this issue is no different from that of the Federal Circuit, the Court will herein apply Third Circuit law regarding the 'at issue' doctrine to this patent case." ).

Then, in objecting to the magistrate judge's ruling, the defendants apparently reversed position, arguing that Federal Circuit law differed, and that the magistrate judge had erred by relying on

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Magistrate Consent Numbers (Pithy Title Unavailable)

Nathan R. Hoeschen, May 8, 2022
Magistrate Judges

Take your pick
Aditya Chinchure, Unsplash

As we've mentioned a time or three in the last few months, in the wake of Judge Stark's confirmation to the Federal Circuit, parties in his former cases were given the option to either consent to a magistrate judge of their choosing or await assignment to a sitting Article III judge - most likely a helpful visitor from another district.

On this slow news day, I thought it might be helpful to look back at the results of this novel procedure over the past few months and see how many litigants have chosen to consent, and to whom. I for one was a bit surprised at the results, to wit:

  • Not consenting: 48
  • Consenting: 12

Our resident math majors will note that exactly 20% (my personal guess was closer to 50%) of cases consented to having one of our magistrate judges conduct all proceedings. Interestingly, in every case the parties chose to select their magistrate, rather than allowing the Court to choose resuling in the following distribution:

  • Judge Burke - 7
  • Judge Hall - 3
  • Judge Thynge - 2

These numbers are quite preliminary as the majority of the VAC cases have yet to make their decision on a magistrate, but it will be interesting to see how these numbers change and what effect, if any, it will have on case management in the district.

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Chief Magistrate Judge Thynge to Retire Effective March 31, 2023

Andrew E. Russell, May 5, 2022
Congestion Magistrate Judges

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

The District of Delaware announced today that Chief Magistrate Judge Thynge is set to retire in March 31, 2023:

The United States District Court for the District of Delaware announces that Chief Magistrate Judge Mary Pat Thynge has informed the Court of her intention to retire, effective March 31, 2023, ending more than 30 years of exemplary judicial service.
Judge Thynge is the longest serving U.S. Magistrate Judge in the history of the District of Delaware. She began her tenure as a Magistrate Judge of the Court in June of 1992, after 16 years in private practice.
Judge Thynge will be sorely …
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Court Permits Early Summary Judgment Motion After Parties Consent to Magistrate Judge Jurisdiction

Andrew E. Russell, Dec. 26, 2021
Early SJ Summary Judgment

Last month we wrote about Chief Judge Connolly's comments on the "sad reality" of referrals of SJ motions to a magistrate judge in patent cases:

[T]he sad reality in patent cases filed in this district is that a referral of a summary judgment motion [for an R&R] pursuant to § 636(b)(l)(B) inevitably results in objections to the magistrate judge's report and recommendation, which the district court judge must review de novo. Such a referral therefore ends up doubling the amount of judicial resources needed to resolve the summary judgment motion in question. For that reason, I no longer make § 636(b)(l)(B) referrals of summary judgment motions in patent cases to a magistrate judge.

He noted at the time …

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New Referral Orders: Magistrate Judge or Visiting Judge, Your Choice

Andrew E. Russell, Dec. 17, 2021
Judges Congestion

Yesterday, Chief Judge Connolly issued nearly identical oral orders across five cases, instituting a new procedure for referral of the case to a magistrate judge:

ORAL ORDER: On or before December 22, 2021, 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) a joint letter indicating that both parties do not consent to a reference of this action to a Magistrate Judge. The letter should not indicate which party or parties did not …
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How Often Do Parties Consent to Magistrate Judge Jurisdiction for Patent Cases in the District of Delaware?

Andrew E. Russell, Dec. 3, 2021
Magistrate Judges

Chess
Hassan Pasha, Unsplash

In light of how busy the District of Delaware is right now, between COVID-19-related trial delays and just the ongoing burden of complex of patent filings (not to mention the likely impending departure of Judge Stark), I was curious just how often parties consent to jurisdiction over an action by a magistrate judge.

After all, we've all seen the "notice, consent and referral forms re: U.S. Magistrate Judge jurisdiction" that are filed in new cases. Surely parties sometimes take the Court up on this, right?

The answer appears to be: yes, but not all that often. At least according to Docket Navigator, there have been only 12 cases in the District of Delaware since 2012 where …

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Chief Judge Connolly Comments on the "Sad Reality" of Certain Magistrate Judge Referrals

Andrew E. Russell, Nov. 27, 2021
Summary Judgment Magistrate Judges

This week, Chief Judge Connolly denied a joint request for leave to present an early SJ motion on damages in a patent action. The parties hoped that resolution of the motion would set the stage for settlement.

Judge Connolly reiterated his rule that he will not permit early SJ motions unless they are going to be the only SJ motions, while also commenting on his case load:

As a general rule, I do not allow for an early summary judgment motion unless the resolution of the motion would be case dispositive and the party seeking to file the motion agrees that it cannot file any other summary judgment motions. In light of my case load, which approaches 600 civil cases …
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