It's not all that common for judges in the District of Delaware to deny requests to reschedule hearings. But last week we saw two requests denied. And, in both instances, the Court suggested that the party requesting cancellation should just have another attorney prepare for argument rather than rescheduling.
In one instance, Judge Andrews denied a request to reschedule a Markman hearing, stating that:
ORAL ORDER: The request to change the date of the Markman . . . is DENIED. Plaintiff has at least three non-Delaware lawyers. Simply because one of them has a trial scheduled on December 9th is not a reason to change the date of the Markman. There is plenty of time to have someone else prepare to appear at the Markman.
The Court seems to have read into the letter requesting the rescheduling, or maybe contacted counsel outside of the docket, as the letter states generally that "Plaintiff's lead counsel are scheduled to appear at trial in another matter," but the order states that only a single attorney is unavailable.
In the second instance, a defendant in an NPE action filed a § 101 motion, and Judge Stark set it for argument during an upcoming § 101 day.
Plaintiff then filed a letter request to reschedule § 101 day. Judge Stark scheduled a status conference to discuss rescheduling. Defendant then filed its own letter to request to reschedule that teleconference. The Court set a new date, but then plaintiff sent a second letter request to reschedule the already-rescheduled teleconference-to-discuss-rescheduling. Unsurprisingly, the Court had had enough:
ORAL ORDER: Having attempted twice . . . to conduct a short teleconference to discuss Plaintiff's counsel's request to reschedule a multi-party, multi-hearing telephone argument . . . - and having rescheduled the teleconference first to accommodate Defendant's counsel's schedule (D.I. 26) and now having learned of Plaintiff's counsel's unavailability for the rescheduled call today (D.I. 28) - IT IS HEREBY ORDERED that the parties shall meet and confer and, no later than 4:00 p.m. today, Defendant's counsel shall submit, on behalf of both parties, a letter advising the Court of all counsel's availability, for a call that will last no more than 15 minutes, tomorrow (October 28) and Friday (October 29). Plaintiff's counsel is further advised that the Court is unlikely to grant his request to reschedule the November 22 hearing, for reasons including: (i) the hearing involves multiple other parties and other cases and, given the Court's schedule as well, would be extremely difficult to reschedule; (ii) the hearing is nearly a month away, providing time for another counsel to be prepared to represent Plaintiff; (iii) no indication has been given as to the "previously scheduled commitment" Plaintiff's counsel has on November 22 (D.I. 24); (iv) no indication has been given as to what efforts Plaintiff's counsel has made to reschedule his other commitment; and (v) no reason is given for why more than a week passed between the Court's scheduling of the November 22 teleconference hearing (see D.I. 22) and Plaintiff's counsel's advising the Court of his previously scheduled commitment (D.I. 24). That said, the Court looks forward to discussing Plaintiff's request with the parties during a teleconference tomorrow or Friday. Today's teleconference is CANCELLED. ORDERED by Judge Leonard P. Stark on 10/27/21. (ntl) (Entered: 10/27/2021)
The parties promptly proposed a time for the new call, but ultimately settled the case before the call went forward.
COVID-19 Congestion or Just Happenstance?
To me, these orders look like they are fact-specific and grounded in issues with the parties requests, rather than any decrease in the Court's ability to respond to these kinds of issues. I don't think it's a sign that the Court will be less flexible with such requests going forward. But I'll watch for similar order going forward, and update this post if I hear otherwise.
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