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Entries for tag: Objections to R&Rs

Order Approved
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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 …

A few weeks ago, Andrew wrote a post on a case where Judge Connolly denied objections to a magistrate's order for failing to identify the standard of review. Well, don't call it a comeback, but it happened again, this time in a case before Judge Andrews.

DALL·E 2023-05-04 21.04.32 - 3d render of a judge break dancing
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The objection in question actually failed under the rules on two counts—both failing to cite the relevant standard of review, and failing to include the certification that new arguments were not being raised. Judge Andrews found both failures fatal:

The first question on review is, what is the standard of review? The Local Rules recognize this: "Objections . . . shall identify the appropriate standard of review." I note that requiring the statement of a standard of review is helpful to the reviewing court. It might also help the disappointed party to consider whether it should even file objections. Barry does not identify a standard of review. . . . Barry did not comply with the Standing Order. His objections are thus overruled. I need proceed no further. . .
The Court has a standing order that states: "Any party filing objections . . . must include . . . a written statement either certifying that the objections do not raise new legal/factual arguments, or identifying the new arguments and describing the good cause for failing to previously raise [them] before the Magistrate Judge." Barry did not file such a written statement with his objections. Seaspine pointed this out. . . . Seaspine asserts that Barry has raised arguments that he did not raise before the Magistrate Judge. Had Barry filed the required statement, I would know what his position on Seaspine's assertion is. Even after Seaspine raised the issue, Barry did not seek leave to file a statement providing the required information. This is not some arcane requirement. It is a practical one, designed to make referrals to magistrate judges as efficient as the referral system can be. Barry' s objections are thus overruled. I need proceed no further

Barry v. Stryker Corporation, C.A. No. 20-1787-RGA (D. Del. May 4, 2023) (Mem. Order)

At this time, the bloggers code of ethics requires me to call this a trend. Stay safe out there.

Look closely—down at the bottom, where the huge bolt of lightning meets the hill, are defendant's R&R objections
Look closely—down at the bottom, where the huge bolt of lightning meets the hill, are defendant's R&R objections Brandon Morgan, Unsplash

R&R objections can be a minefield for attorneys. First, the governing rules are fairly stringent, and are set forth in multiple places (including Local Rule 72.1 and a separate standing order). Second, I think it's fair to say that most judges are not eager to have to review another judge's work and potentially reverse it if they don't have to, so the rules for objections tend to be enforced.

Here are some examples of things that parties sometimes miss. The objecting party must:

  1. "[S]pecify the portions of the findings and recommendations to which objection is made and the basis for each objection, . . . supported by legal authority."
  2. Include a certification stating that "the objections do not raise new legal/factual arguments" or identifying good cause for new legal/factual arguments.
  3. Set forth its objections in a single, 10-page opening brief with no reply brief, and the page limit is generally strictly enforced.
  4. File courtesy copies of "of all filings (e.g., motions, briefs, appendices) associated with the matter to which the R&R"—this can be easy to miss, and can result in waiver.
  5. Identify the exact standard of review.

That last one, identifying the standard of review, is easier said than done. The standard of review for R&R objections can be tricky, because ...

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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

Apple with a bite
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Referring a motion to a magistrate, as Chief Judge Connolly recently noted, often fails to result in the efficiency gains one might expect, because it "inevitably results in objections to the magistrate judge's report and recommendation which the district court judge must review de novo." Fundamental Innovation Systems Int. LLC v. Lenovo (U.S.), Inc., C.A. No. 20-551-CFC, D.I. 68 (D. Del. Nov. 23, 2021) (referring to SJ motions).

This led me to wonder if objections to report and recommendations should be so common, i.e., do they have any real chance at success? Analyzing the results for objections to R&R's filed in Delaware patent cases in 2021, seems to show that they …

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If you only occasionally practice in the district, you might be unaware of an old standing order on the procedure for objecting to R&R's. The unimaginatively titled "October 9, 2013 Standing Order for Objections Filed Under Fed. R. Civ. P. 72" contains requirements for filing objections that do not appear in either the local rules or FRCP 72.

Most of these requirements are simple logistical matters -- the length and timing of briefs, requiring courtesy copies, etc. A recent ruling from Judge Connolly, however, shows the imprtance of following these requirements precisely.

The defendant in In Personal Audio LLC v. Google LLC, C.A. No. 17-1751-CFC-CJB, D.I. 715 (D. Del. Jan 21, 2022) had lost a …

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
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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 …