This week, Judge Andrews dismissed a summary judgment motion on inequitable conduct.
Plaintiff argued—apparently correctly—that the defendant had never pled inequitable conduct at all. And, when the plaintiff moved for summary judgment on inequitable conduct, the defendant did not file any answering brief opposing the motion (although a defendant in a related action filed brief a brief for "all Defendants").
So why was the seemingly unopposed motion dismissed rather than granted? As explained by Judge Andrews:
I do not think I can grant summary judgment against a party on an issue that is neither raised by the pleadings nor asserted by the party in the briefing. Inequitable conduct is not an issue in this case. Thus, Plaintiff’s motion for summary judgment of no inequitable conduct against [the defendant] is DISMISSED.
This somewhat counter-intuitive result makes good sense when you think about it. How can the Court issue an affirmative judgment on a defense that was never raised by the defendant (in the pleadings or otherwise)?
This likely would have been better off as a motion in limine to preclude evidence of inequitable conduct at trial (though, even then, it would only make sense if there defendant intended to raise evidence relevant only to inequitable conduct). In fact, this is kind of the opposite of using a motion in limine to bring a summary judgment motion in disguise.
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