I never thought we'd get to re-use this image of someone frantically flying from Texas to Delaware (approximately...), but here we are.AI-Generated, displayed with permission
It's important to pay attention to the things the Court tells you at the scheduling conference.
At a scheduling conference in Koninklijke Philips N.V. v. Quectel Wireless Solutions Co. Ltd., C.A. No. 20-1707-CFC-CJB (D. Del.), back in September, 2025, the Court set a date for the Markman hearing, and emphasized the importance of experts being there:
So let's do the Markman February 10th at 9:00 a.m. Now, I'm telling you now, you should have your experts prepared to be there.
Visiting Judge Barker issued an interesting order last week on a request to move a hearing date.
Judge Barker was assigned to Merus N.V. v. Xencor, Inc., C.A. No. 24-913-JCB (D. Del) last spring and issued his usual procedural order requiring the parties to notify the Court if they consented to holding hearings and/or trial in E.D. Tex., where he normally sits.
The defendant agreed to hearings in Texas, but not trial, while the plaintiff did not agree to hold either there. Eventually a motion to dismiss was briefed and in January Judge Barker scheduled a hearing in Delaware for February 17.
About 10 days after the Court set the hearing, the defendant sent in an unopposed letter asking to move the hearing due to "a previously scheduled and unmovable conflict in another case on that date" and suggesting a few other dates.
The Court, however, declined to move the hearing:
Defendant filed a letter with the court requesting that the hearing on defendant’s motion to dismiss, scheduled for February 17, 2026, be delayed. Doc. 50. That request is denied.
But, noting that defendant’s counsel practice at two large firms with many litigators, the court is amenable to defense counsel splitting argument amongst themselves. For example, one may provide a technology primer and another address safe-harbor immunity under 35 U.S.C. § 271(e)(1).
This frozen flower has nothing to do with this post. But it has been cold out there this week!Andrew E. Russell, displayed with permission
Parties in D. Del. cases often stipulate to extend the answer deadline. Typically, a 30-day extension is basically a given. It's rare for a party to deny that initial extension, and I have never heard of the Court denying a stipulated extension like that. It just takes a while for a party to get counsel together and then for those counsel to review the complaint and research the facts.
But, as we note in our page about stipulations, parties sometimes run into trouble when they repeatedly extend the answer deadline to try to …
We're still on a blog break, and big congratulations to Andrew on welcoming a new baby! I am separately out of office with my own newborn.
Nevertheless, we are looking forward to attending the upcoming Fifth District of Delaware Bench & Bar Conference, which will be held on Thursday, September 25 and Friday, September 26, at the Chase Center on the Riverfront in Wilmington.
The Court cancelled all proceedings and extended all filing deadlines to accommodate the Bench & Bar. Historically, this conference is well-attended, typically boasting several hundred attendees. It is not unreasonable to expect that many District of Delaware practitioners will be tied up during these conference days.
This event occurs only once every two years, and …
Never-before-seen photo of Mark Twain issuing his famous quote about statistics.Emily DiBenedetto, displayed with permission
The Administrative Office of the U.S. Courts prepares various statistical reports on behalf of the Federal Judiciary, including the Federal Court Management Statistics, which are released quarterly. The most recently released batch of data comes from December 31, 2024. You might see these data cited occasionally in motions to transfer, as I happened to notice in a District of Utah opinion denying a motion to transfer to the District of Delaware.
The first trend is that—surprise!—our judges are very busy.
There have been an average of nearly 2,400 pending cases at any given time over the last six years, and total District of …
Each of our judges in Delaware has one or more form scheduling orders that sets limits on things like the number of motions in limine (typically 3), pages limits for summary judgment and Daubert motions (typically 40/40/20 or 50/50/25), and discovery dispute procedures.
Here is a scenario I've seen a couple of times:
The parties agree to change the limits in the form scheduling order to give themselves more pages, more motions, etc.
The change is visually small and not particularly noticeable (e.g., "three" MILs becomes "five" MILs, "forty" pages becomes "eighty" pages, etc.).
The Court so-orders the undisputed proposed scheduling order.
When the time comes to actually file the extra MILs or extra-long briefs, …
It seems fairly well known that while parties can freely stipulate to most kinds of schedule adjustments in the District of Delaware, changing the dispositive motion deadline is a danger zone that might result in the denial of your stipulation—or worse, such as the loss of your trial date.
But people often do it anyway. Yesterday, visiting Judge Bryson denied a stipulation that would move the case dispositive motions deadline to April 25, 2025 for a trial starting July 14, 2025.
Assuming the parties use the briefing schedule under the local rules, the Court will not have a full set of papers until May 16, less than 2 months before the first day of trial. No …
It can be risky to stipulate to change the deadline for dispositive motions, particularly for the reply brief, because it cuts short the Court's time to resolve those motions.
We've talked about this before, including in our guide to stipulations. But I think it's worth noting again, given that it popped up twice within the past week.
In both instances, the parties stipulated to move the reply dispositive motion deadline, while keeping the pretrial conference deadline—thus shortening the Court's time to resolve case dispositive and Daubert motions.
Likewise in both instances, the Court said no, but gave the parties some options.
As to the first stip, Magistrate Judge Burke actually suggested an abbreviated summary …
In AlterWAN, Inc. v. Amazon.com, Inc., C.A. No. 19-1544-MN (D. Del.), the parties stipulated to a judgment of non-infringement after the Court construed certain terms of the patent, and then appealed to the Federal Circuit.
The Federal Circuit vacated the stipulated judgment because it found it was not specific enough, and remanded the case. See AlterWAN, Inc. v. Amazon.com, Inc., 63 F.4th 18, 23 (Fed. Cir. 2023) (“[W]e cannot ‘ascertain the basis for the judgment’ of non-infringement, . . . because the parties did not adequately explain how the claim construction rulings related to the accused systems.”).
Stipulations to extend time are a popular, both as a topic on this blog and in how routinely they are filed. Usually, stipulations to extend time are granted without incident, so we highlight the outliers as reminders that sometimes there’s more to it than mere agreement between the parties.
Don’t forget! If you’re stipulating to extend the:
Deadline for discovery completion, or
Postponement of trial
You must include the reasons for the request in your stipulation or motion. And the local rules require you to include either a supporting affidavit by the requesting counsel’s client or a certification that counsel has sent a copy of the request to the client.
This latter requirement reminds me of pre-college: in which students who received sub-optimal test scores needed to get a parental signature to prove to the teacher that the parent had seen the score and reviewed the offending test.
The parties in The Trustees of the University of Pennsylvania v. Genentech, Inc., C.A. 22-145-MN-JLH demonstrated how to correct deficiencies. Earlier this month, Judge Noreika issued an oral order denying their prior ...
This blog is for general informational purposes. It is not an offer to perform legal services, and should not be considered a substitute for legal advice. Nothing in this blog should be construed as forming an attorney-client relationship. If you have legal questions, please consult counsel in your jurisdiction.
