A Blog About Intellectual Property Litigation and the District of Delaware


CJB
The Honorable Christopher J. Burke

"Sandbagging" and the District of Delaware

Andrew E. Russell, June 3, 2020
Litigation Legal Writing

Sandbags
ideadad, Unsplash

In an R&R this week, Magistrate Judge Burke flatly declined to consider a "critical[]" argument raised for the first time in a reply brief:

In their reply brief, Defendants made one other argument, which they failed to raise in their opening brief . . . . (D.I. 37 at 9 (“Critically, neither of these manuals refer to the named defendants in this case[.]”)) Because this argument could have and should have been raised in the opening brief, it has been waived, and so the Court will not consider it here. See McKesson Automation, Inc. v. Swisslog Italia S.p.A., 840 F. Supp. 2d 801, 803 n.2 (D. Del. 2012); LG Display Co., Ltd. …
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Judge Burke Rejects Defendant's Maybe-Too-Clever Attempt to Escape Delaware

Andrew E. Russell, June 1, 2020
MTD

Magistrate Judge Burke issued an R&R today addressing an interesting procedural situation.

In Shure Incorporated et al v. Clearone, Inc., C.A. No. 19-1343-CJB (D. Del. June 1, 2020), the plaintiff moved to amend to add an additional patent, just before the patent issued.

In response, and before oral argument on the motion, the defendant filed a DJ action on the new patent in another jurisdiction, trying to keep that part of the case out of the District of Delaware.

After the Court granted the motion to amend, plaintiff then moved to dismiss under the first-filed rule.

Judge Burke rejected plaintiff's approach, holding both that the amended complaint related back, so it was filed first, and that …

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Judge Andrews Rejects Footnote "Incorporating" Eight Pages of Prior Briefing

Andrew E. Russell, May 29, 2020
Litigation Legal Writing

Judge Andrews today rejected a portion of a defendant's objections to an R&R because the defendant set forth its objections in "a footnote, which purport[ed] to include about eight pages of the earlier briefing." Sapp et al v. Industrial Action Services, LLC et al, No. 19-912-RGA, at 10 (D. Del. May 29, 2020) (emphasis added).

He held—perhaps not surprisingly—that this "is an insufficient objection." Id.

That said, he did sustain the same defendant's objections to other portions of Magistrate Judge Burke's R&R, although he called the underlying legal issue a "close call." Id. at 8.

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