In Fundamental Innovation Systems International LLC v. Anker Innovations Ltd., C.A. No. 21-339-RGA (D. Del.), plaintiff moved for summary judgment of patent eligibility, and defendant filed an answering brief.
At the same time as its answering brief, however, defendant filed a late "cross-motion" for summary judgment, asking the Court to not only deny plaintiff's motion, but to grant summary judgment of ineligibility. Defendant devoted about 9 pages of its 40-answering brief to arguing against plaintiff's motion and in favor of its own affirmative "cross-motion" for a determination of ineligibility.
Plaintiff moved to strike the cross-motion, arguing that it that it effectively gave the defendant a 49-page opening brief on defendants' SJ motions, and that it was untimely.
Defendant opposed, arguing that it hit the total court-permitted page limits of 40/40/20 (opening, answering, and reply). It then argued that, under the New York Civil Practice Laws and Rules (??), the cross-motion would be permitted even though it was untimely:
Even if Fundamental were correct that the Scheduling Order required cross-motions to be filed on the date on which summary judgment motions originally were due, it does not follow that the Cross-Motion should automatically be struck. In New York, for example, where the Civil Practice Laws and Rules (“CPLR”) impose strict statutory time limits on the filing of crossmotions, the Appellate Division has held that an untimely but correctly labeled cross-motion may be considered at least as to the issues that are the same in both it and the motion to which it responds, without the necessity to show good cause. See, e.g. Palomo v. 175th St. Realty Corp., 101 A.D.3d 579, 957 N.Y.S.2d 49 (1st Dept. 2012); Conklin v. Triborough Bridge and Tunnel Auth., 49 A.D.3d 320, 855 N.Y.S.2d 54 (1st Dept. 2008); Filannino v. Triborough Bridge & Tunnel Auth., 34 A.D.3d 280, 281–282, 824 N.Y.S.2d 244 (1st Dept. 2006), appeal dismissed 9 N.Y.3d 862, 840 N.Y.S.2d 765, 872 N.E.2d 878 (2007); Osario v. BRF Constr. Corp., 23 A.D.3d 202, 203, 803 N.Y.S.2d 525 (1st Dept. 2005]). Fundamental does not even try to dispute that Anker’s Cross-Motion raises the same issues as Fundamental’s Original Motion, nor does Fundamental dispute that it would be most efficient for the Court to consider Anker’s Cross-Motion simultaneously with the Original Motion.
Id., D.I. 163 at 2. Those New York state-court cases are the only cases defendant cited. All of them are from the New York Supreme Court Appellate Division's First Department, which Wikipedia tells me is in NYC.
Why focus on these New York state-court rules and cases? I have no idea. I imagined their counsel must be from NYC, but the only only out-of-town addresses on their signature block are in California, Houston, and the People's Republic of China.
Anyway, Judge Andrews was not convinced. He struck the cross-motion, although he noted that he would still read the briefing and that the final ruling would effectively resolve the cross motion anyway:
ORAL ORDER: The motion to strike cross-motion . . . is GRANTED. The cross-motion for summary judgment of invalidity . . . is STRUCK. The practical impact is minimal, as I will still read the briefing in support of the cross-motion, and my ruling on Plaintiffs related motion, whatever it may be, will likely resolve the cross-motion too. Ordered by Judge Richard G. Andrews on 1/22/2024.
Id., D.I. 192.
So, yeah. It looks like the District of Delaware has not yet adopted the New York state-court procedure of permitting late cross-motions for summary judgment without a showing of good cause. It's always nice to know what doesn't work.
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