Most of the judges in the District of Delaware have settled on page limits for summary judgment and Daubert motions in patent cases of 250 total pages: 50 pages opening, 50 pages answering, and 25 pages reply—per side.
The "per side" part is important, and it can have a significant impact on cases with multiple unrelated defendants or defendant groups.
The Court has usually resisted expanding these limits, and in many cases, has instead experimented with ways of reducing the burden on the Court. Judge Noreika, for example, has sometimes required parties to seek leave before filing summary judgment motions.
Chief Judge Connolly has instituted a "ranking" procedure in his cases to help deter meritless motions, which Judge Williams has also adopted. That procedure requires each party to rank their summary judgment motions, and if the first motion is denied, subsequent motions are denied as well.
Judge Hall Addresses Requests Regarding SJ Pages and Ranking
Judge Hall's form order adopts the typical 250-page limit for SJ and Daubert briefing, and does not include a ranking procedure. Last week, we got a data point about her views on such a ranking procedure, in Ravgen, Inc. v. Ariosa Diagnostics, Inc., C.A. No. 20-1646-JLH (D. Del. Apr. 2, 2024).
There, the plaintiff asserted two claims of a single patent against two separate sets of defendants, each with their own accused products. Back in 2021, as a magistrate judge, Judge Hall entered a scheduling order that—unusually—did not include summary judgment page limits, and instead included a requirement for the parties to meet-and-confer on summary judgment page limits. After a stay pending IPR, a 2023 scheduling order included the same requirement.
Last month, the parties followed the scheduling order and filed their letter. Plaintiff requested the ordinary 50/50/25 page limit per side, and also requested that Judge Hall impose a summary judgment ranking procedure. They pointed out that there are only two claims and two defendant groups.
The defendants sought a 70/70/35 page limit, pointing out that each case involves its own claims and counterclaims and that they are complex, involving a total of 17 expert witnesses. They also raised objections to having to jointly rank summary judgment motions, citing due process under the constitution and the America Invents Act's joinder provision (35 U.S.C. § 299).
Judge Hall ultimately split the difference on the page limit—expanding the default 50/50/25 to 60/60/30—and declined to impose a ranking procedure:
ORAL ORDER: Having reviewed the parties' Joint Status Letter Regarding Dispositive and Daubert Motion Page Limits (C.A. No. 20-1646, D.I. 350; C.A. No. 20-1734, D.I. 264), IT IS ORDERED that the briefing page limits shall be 60+60+30 per side. IT IS FURTHER ORDERED that the parties are not required to rank their summary judgment and Daubert motions. Ordered by Judge Jennifer L. Hall on 4/2/2024.
Id., D.I. 351.
It's not surprising that Judge Hall denied the request to impose the ranking procedure, given that it's not in her form scheduling order. But it is interesting that the Court was open to expanding page limits for summary judgment motions, at least in a complex action (17 experts? That's a lot).
The defendants' due process/joinder objection is also interesting. But, given that the Court has discretion not to permit summary judgment at all, I'm not sure that challenge would carry the day before a judge who regularly uses the ranking procedure.
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