A Blog About Intellectual Property Litigation and the District of Delaware

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I was talking to my fellow blogger Andrew the other day, when we had the following exchange:

Andrew: Greetings treasured friend and colleague! Have you noticed that Judge Andrews hasn't been requiring parties to submit scheduling orders whilst motions to dismiss are pending?

Me: Truly?

Andrew: Indubitably, I would not jest on such a matter! I have, in fact, just confirmed it by reviewing his 10 most recent orders on motions to dismiss with my own eyes.

Me: Well I cannot gainsay such thorough research. But what of the others? Do Judges Noreika and Connolly decide motions to dismiss before requiring the parties to submit a proposed schedule?

Andrew: I'm certain I don't know, but certainly it is a question worthy of being expounded on the blogosphere!

Me: Here! here!

Both together: (Bang canes on floor and harumph triumphantly)

Will You Have to Submit a Schedule?

Following this thrilling exchange I looked up cases for the last year where Judges Noreika or Connolly were in charge of both scheduling and an initial motion to dismiss (i.e., neither were referred to a magistrate judge in the first instance). My first surprise was that there were not a large amount of such cases -- which I suppose makes sense in light of the increased workload following Judge Stark's departure and subsequent increased utilization of our magistrate judges.

As it happens, in almost every case both Judge Noreika and Judge Connolly waited to issue their orders requiring the parties to submit a proposed schedule until after they decided a pending motion to dismiss. There were only two situations where this practice was not followed:

The first was when the case was related to another where a schedule had already been entered such as in Kajeet, Inc. v. NortonLifeLock Inc., where Judge Noreika issued the following order just after the opening brief on the motion to dismiss was filed:

ORAL ORDER re (19 in 1:19-cv-02370-MN) Scheduling Order - IT IS HEREBY ORDERED that, on or before 12/14/2020, the parties shall submit a revised Scheduling Order setting forth a coordinated scheduled for both cases. If the parties agree that both cases can proceed on the schedule already set in C.A. No. 19-2370, they shall file a letter stating such and shall also file a Scheduling Order setting forth those dates in C.A. No. 20-1339

Kajeet, Inc. v. NortonLifeLock Inc., C.A. No. 20-1339-MN, D.I. 15 (D. Del. Nov. 30, 2020)

The second situation -- which I only found one occurrence of in the last year -- was when the motion was only directed to a small subset of the claims. In that case, Continuous Composites, Inc. v. Markforged, Inc., C.A. No. 21-998-MN, the defendant only moved to dismiss the complaints allegation of pre-suit wilfulness and indirect infringement. In that case judge Noreika issued her usual order requiring the parties to submit a proposed scheduling order shortly after the opposition brief was filed.

This second point is where I see the real nuance here. I've yet to do a deep dive into how much of a complaint must remain unchallenged by a motion to dismiss before the Court requires the parties to submit a schedule, but I suspect the results would be interesting enough for a blogpost on a slow news day.

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