A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Pleadings

Try not to forget that jury demand.
Try not to forget that jury demand. AI-Generated, displayed with permission

Other than in ANDA cases, most (but not all) patent cases these days involve a demand for jury trial. FRCP 38 sets a deadline for requesting a jury trial within 14 days after the last pleading directed to the issue is served:

On any issue triable of right by a jury, a party may demand a jury trial by . . . serving the other parties with a written demand—which may be included in a pleading—no later than 14 days after the last pleading directed to the issue is served; and . . . filing the demand . . . .

FRCP 38.

This rule includes a few interesting things, just from the text:

  • It sets out the demand requirement by issue, not by action
  • It says parties "may" include the jury demand in a pleading, not that they must
  • A party gets 14 days after service of the "last pleading directed to the issue" to serve a jury demand

District of Delaware Local Rule 38.1 also covers this issue, and defines the acceptable language for a jury demand in a pleading:

If a party demands a jury trial by endorsing it on a pleading, as permitted by Fed. R. Civ. P. 38(b), a notation shall be placed in the caption of the pleading stating "Demand For Jury Trial" or the equivalent. This notation will serve as a sufficient demand under Fed. R. Civ. P. 38(b).

D. Del. LR 38.1.

In my experience, parties who want to request a jury trial almost always ...

Me, emerging to make my IP/DE debut.
Me, emerging to make my IP/DE debut. Bankim Desai, Unsplash

My name is Lindsey Gellar, and I am an associate at Shaw Keller, posting for the first time here. Yes, Andrew has finally managed to rope another lackey (associate) into writing for the blog. Today, I'm going to look at what it takes to plead equitable defenses in the District of Delaware.

When it comes to pleading most affirmative defenses, the bar is on the floor. An affirmative defense does not need to be plausible to survive; it must merely provide fair notice of the issue involved. Internet Media Corp. v. Hearst Newspapers, LLC, C.A. No. 10-690-SLR, 2012 U.S. Dist. LEXIS 126788, at *7 (D. Del. …

Parade of Horribles.jpg
The Looming Parade of Horribles, AI-Generated, displayed with permission

I’m partial to percussion and noticed that there was a gaping hole of staccato in the rising swell of the IPDE music videos, subtle though it may have been in the background of Andrew's singing and Nate’s interpretive dance performances. Leaving the snare drum at home, today I chime in only with the lonely voice of a wistful triangle to supplement this week’s stories with a tale from a faraway land—the Eastern District of Texas.

Why do we in Delaware care about this opinion? It gave me a fresh appreciation for the orderly composition of Delaware scheduling orders. It involved a problem that cannot arise in a District of Delaware …

Mel Poole
Mel Poole, Unsplash

Judge Burke issued an oral order earlier this week with some interesting language criticizing the party's attempt at an amended complaint.

In Midwest Energy Emissions Corp. v. Arthur J. Gallagher & Co., C.A. No. 19-1334-CJB (D. Del.), the plaintiff accused a very large number of entities—More than 50, it looks like—with infringement of a number of patents, all in a single combined action.

Earlier this year, it moved to amend its complaint to add additional defendants it alleged were parent companies of defendants who were as acting as the parent companies' "alter egos and agents." Judge Burke granted this request as to one party, for which the complaint included more detailed factual allegations, …

Pixelated Game Over screen on an oversized PAC-MAN arcade machine
Sigmund, Unsplash

Generally, corporations have to be represented to appear in Federal Court, or they are at risk of default. This is something that comes up surprisingly often, including when corporate defendants try to file their own filings without an attorney (by mailing them to the clerks' office), or when counsel for a corporate defendant seeks to withdraw mid-case.

Judge Fallon issued an opinion today showing the consequences of a corporation failing to retain counsel. Plaintiff brought suit and, requested entry of default after a corporate defendant failed to answer. That corporate defendant then filed an "answer"—which, based on the docket, was not an answer at all, in that it did not respond to plaintiff's claims. Plaintiff then moved …