A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: objections-to-rrs

We have written about the ways in which a party can, despite its intention to object to a portion of a Magistrate Judge's Report and Recommendation, waive or otherwise fail to properly assert its objections.

However, an even more fundamental issue is whether a party is permitted to object in the first instance (or more specifically, whether a party is entitled to have a Judge rule on the merits of its objections). In a recent decision, Judge Andrews could not find "any reason to consider the merits of Plaintiffs' objections" to an R&R in which the plaintiffs prevailed.

Judge Andrews' decision evokes the general rule that a party cannot appeal from a judgment in its favor. Although Fed. R. Civ. P. 72(b)(2) and 28 U.S.C. § 636(b)(1)(C) - which set out the basic framework for objections to R&Rs on dispositive motions - do not themselves preclude objections by a prevailing party (both discuss objections to the proposed findings and recommendations by "any party"), Judge Andrews suggested that where a party prevails on the substance of the issues before the Magistrate Judge, that party's objections may be "moot."

The Magistrate Judge recommended...

It doesn't happen all that often, but remember that under FRCP 72, a party can object to a non-dispositive order by a magistrate judge:

(a) NONDISPOSITIVE MATTERS. . . . A party may serve and file objections to the order within 14 days after being served with a copy. . . . The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.

Parties sometimes seem to forget this, because unlike with Report and Recommendations on dispositive matters, the magistrate judges do not typically flag the 14-day objections period in their orders.

Fallen ice cream
Sarah Kilian, Unsplash

And, sometimes, it works out. In 2019, for example, Judge Noreika sustained an objection to one of the magistrate judge's common interest doctrine determinations, reversing an order to compel certain common interest materials. See AgroFresh Inc. v. Essentiv LLC, No. 16-662 (MN), 2019 U.S. Dist. LEXIS 172423, at *13 (D. Del. Oct. 4, 2019).

All of that said, other times, it does not work out well. Today Judge Connolly denied such an objection before the other side had even filed a responsive brief ...

As we discussed last week, people sometimes forget that parties can object to even non-dispositive rulings by a magistrate judge under FRCP 72—although I don't know whether that is what happened here.

In Boston Scientific Co. v. Micro-Tech Endoscopy USA, Inc., C.A. No. 18-1869-CFC-CJB (D. Del.), defendants moved to strike plaintiff's infringement contentions for failure to apply the Court's claim construction. The motion was referred to Magistrate Judge Burke, who denied it:

(1) With regard to Defendant's request that Plaintiffs' FICs regarding the term "breakable link... adapted to be broken[,]" be stricken, (D.I. 169 at 2), it is DENIED. The Court did not construe this term, and Defendant has not convinced the Court that Plaintiffs are …

Corporations, looking down at the tattered remains of their common interest privilege
Corporations, looking down at the tattered remains of their common interest privilege Foggy skyscrapers, Matthew Henry, Unsplash

When magistrate judges are referred a dispositive matter, they issue an R&R that goes to the district judge. In Delaware, an R&R typically notes the objection period at the end, and the losing party typically (but not always) files objections.

When magistrate judges are referred a non-dispositive matter, they issue an order (and possibly an opinion). The order typically does not mention any review period or process for review.

What parties often forget is that you can object to a magistrate judge's order just as easily as you can to an R&R under FRCP 72. And, in fact, the District Court …