This is something we've talkedabout before, but the blog is always picking up new readers, so I figured it's worth revisiting for the newcomers.
Yesterday, Judge Noreika denied a stipulation to extend the page limits for the briefing on a motion to dismiss from the default 20/20/10 (opening/answering/reply) to 30/30/10:
ORAL ORDER re 16 Stipulation Regarding Motion to Dismiss - IT IS HEREBY ORDERED that the stipulation is DENIED. The Court will not extend the page limits. ORDERED by Judge Maryellen Noreika on 11/12/2024. (dlw) (Entered: 11/12/2024)
Advanced Accelerator Applications USA, Inc. v. Curium US LLC, C.A. NO. 24-1161-MN, D.I. 17 (D. Del. Nov. 12, 2024).
Many years ago now (I'm so old), then-Judge Connolly (now Chief Judge Connolly) brought forth onto this district the gift of the word limit (at least in cases assigned to Judge Connolly). Nevermore would Delaware counsel spend hours futzing (technical term) with fonts and orphan control (it really sounds ominous to put those words together) in an effort to get our briefs down to the mandated 20 pages (this paragraph has waaay too many parentheticals).
For a time it seemed we would have a new golden age of beautiful briefs where every section began proudly atop its own page.
(hums patriotic tune while shedding a single tear)National Archives
But alas, the conversion to a word limit spawned its own set of tactics to limit the number of words that must be counted. One such tactic—borrowed, in fact, from the days of the page limit—is the use of a table of abbreviations at the front of the document. Judge Connolly's opinion yesterday in Synopsys, Inc. v. Bell Semiconductor, LLC, C.A. No. 22-1512-CFC (D. Del. Dec. 6, 2023) (Mem. Op.), neatly illustrates the pitfalls of this method.
The infringement defendant, Synopsis (plaintiff in the DJ action), moved for SJ of no indirect infringement. As a result of filing three other SJ motions and two Dauberts, Synopsis was running up against the combined word limit. Accordingly, each of the SJ briefs had a table of abbreviations right after the table authorities, seting forth the definitions of, among other things the "asserted claims." The body of the brief, however, did not specifically mention this table and just referred to the Asserted Claims generally throughout.
Chief Judge Connolly found this practice unclear, particularly because ...
Aaaand we're back. You'll note one of the stipulations listed as "iffy" (legal term) was stipulations to extend page limits. We got a good example of just how iffy those can be last week from Judge Noreika:
IT IS HEREBY ORDERED that the Stipulation is DENIED. The request to extend page limits was filed seven minutes before the over-the-page limit brief was filed. The effect of this was that Plaintiff granted itself an extension without leave of Court and without respect for the Court and its rules. THEREFORE, IT IS FURTHER ORDERED that the Motion for Preliminary Injunction is DENIED for failure to comply with the page limits. Counsel may re-file the motion with a brief that complies with the Court's rules.
Janssen Biotech, Inc. v. Amgen, Inc., C.A. No. 22-1549-MN (D. Del. Mar. 2, 2023) (Oral Order)
Obviously, it didn't help that the parties filed their stip just minutes before the relevant brief, giving the Court no opportunity to act on it. But it led me to wonder just how often these stipulations are denied in ...
Look, I know what I said in the last post. I can read.
But I just noticed the opinion in Kroy IP Holdings, LLC v. Groupon, Inc., No. 17-1405-CJB (D. Del. Dec. 2, 2022) which had an interesting footnote that's worth pointing out.
Kroy dealt with collateral estoppel issues following a series of IPR's that invalidated numerous claims. Following the the IPR's, the plaintiff asserted new claims and the defendant moved to dismiss arguing that these 20-ish new claims were not materially different from those already invalidated. The plaintiff responded to the motion without devoting much space to reasons why some of the specific claims were not materially different, noting that …
There's rarely enough pages to include everything you want to in a brief. Asking for more pages can also be rather fraught, and its difficult to convincingly explain why your case is more complicated -- i.e. more deserving of the court's limited time -- than any of the other complex and high-dollar cases moving through the district.
Because of this, it can be especially galling to leave pages on the table. This can happen, for instance, when briefing motions in limine before judge Noreika, whose standard scheduling order allows a party to brief no more than 3 MIL's with opening and answering briefs limited to 3 pages each and one page replies.
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 …
Longstanding practice in the District of Delaware, pursuant to the Court's local rules and the Judges' form scheduling orders and other standing orders, mandated page limits for briefing. For example, the Court's local rules set limits of 20 pages for opening, briefs 20 pages for answering briefs, and 10 pages for reply briefs, all in 12 point font. SeeLR 7.1.3(a)(4); LR 5.1.1(a). However, since about mid-2019, some Judges here have permitted or required word limits in lieu of page limits for some types of documents.
This week saw the birth of a novel way to raise a claim narrowing dispute, and it strikes me as rather clever.
Typically the number of claims asserted gets raised as a discovery dispute or as part of the scheduling or status conference.
The plaintiff in TQ Delta, LLC v. Pace Americas, LLC, C.A. No. 13-1835-RGA (D. Del.), though, took a different tack and instead moved for extra pages for summary judgment briefing, explaining that it needed the extra pages because the defendant was asserting 18 invalidity defenses (against plaintiff's 2 asserted claims).
This resulted in the following turn of events:
Judge Andrews immediately issued an Oral Order requesting defendant …
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