It can be risky to stipulate to change the deadline for dispositive motions, particularly for the reply brief, because it cuts short the Court's time to resolve those motions.
We've talked about this before, including in our guide to stipulations. But I think it's worth noting again, given that it popped up twice within the past week.
In both instances, the parties stipulated to move the reply dispositive motion deadline, while keeping the pretrial conference deadline—thus shortening the Court's time to resolve case dispositive and Daubert motions.
Likewise in both instances, the Court said no, but gave the parties some options.
As to the first stip, Magistrate Judge Burke actually suggested an abbreviated summary judgment procedure that I haven't seen before:
ORAL ORDER: The Court has reviewed the parties' stipulation . . . in which they left unchanged [or extended] all of the deadlines affecting them, and left the District Judge only a little over two months (between the closing of briefing and the pre-trial conference) to resolve all summary judgment and Daubert motions that would be filed in the case. The Court also discussed this proposed stipulation with Judge Hall, who rejected it and advises as follows: The parties have three options: (1) they can come up with a schedule that maintains the current deadline for reply briefs for case dispositive and Daubert motions; (2) they can forego the filing of summary judgment briefs completely and finish briefing their Daubert motions by early February 2025; or (3) if they do not wish to completely forgo the opportunity to file summary judgment briefs, they can request leave to file summary judgment motions via 3-page letters filed by early January 2025, with responsive 3-page letters due within 7 days. Such letters shall set forth all of the grounds on which the movant requests leave to file for summary judgment and explain why there are no material facts in dispute. By no later than August 9, 2024, the parties shall file a revised stipulation and proposed scheduling order that jointly selects one of these three options and provides proposed relevant dates. Ordered by Judge Christopher J. Burke on 8/2/2024. (smg) (Entered: 08/02/2024)
CosmoKey Solutions GmbH & Co. KG v. Duo Security, Inc., C.A. No. 18-1477-JLH-CJB, D.I. 273 (D. Del. Aug. 2, 2024).
The idea of doing summary judgment via 3-page letter briefs sounds interesting. Presumably it would be 3 pages as to all issues. Interestingly, the Court made no provision for reply briefs at all (although perhaps the parties stipulation will address that, if they adopt this procedure).
It's also interesting that the Court offered them an opportunity to forego summary judgment, but not to forego Daubert motions.
The second order was more open-ended, with Judge Andrews likewise denying the stip and suggesting that the parties keep the briefing deadline or skip summary judgment, but also offering to remove the trial date and/or move the case to a new judge, perhaps a magistrate judge:
ORAL ORDER: The stipulation to extend deadlines . . . is DENIED. The parties have at least the following options: (1) give themselves whatever extensions they want and the Reply Case Dispositive Briefs deadline remains November 6, 2024; (2) give themselves whatever extensions they want but keep the existing trial date by foregoing the filing of any dispositive motions; (3) give themselves whatever extensions they want but cancel the pretrial conference and trial with a new date to be set only after resolution of the case dispositive motions or by reassignment to another Article III judge; or (4) consent to the jurisdiction of a magistrate judge, who would likely look at the scheduling anew. Ordered by Judge Richard G. Andrews on 8/6/2024. (nms) (Entered: 08/06/2024)
Pioneer Hi-Bred International Inc. v. Syngenta Seeds, LLC, C.A. No. 22-1280-RGA, D.I. 164 (D. Del. Aug. 6, 2024).
This is something to keep in mind as you negotiate schedule adjustments, particularly in patent actions.
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