The local rules have long admonished parties not to "reserve material for the reply brief which should have been included in a full and fair opening brief." D. Del. LR 7.1.3(c)(2). Although the rule provides no penalty, numerous cases have held that arguments first presented in a reply are waived.
A separate line of cases, unrelated to the Local Rule, similarly hold that arguments presented solely in footnotes are forfeit.
Today's case dealt with a party who dared to secure his pants with both belt and suspenders, as my grandpa would say. Nevertheless, they found themselves undone.
Defendants in Novartis Pharms. Corp. v. MSN Pharms. Inc., C.A. No. 20-1395-RGA (D. Del. Nov. 8, 2024), moved to exclude the plaintiff's infringement expert on various grounds. One such ground was included only in a footnote in the opening brief (the "belt"). The Plaintiff responded in their answering brief, however, and Defendants expanded in the reply, devoting a page or so to the issue (the "suspenders").
The question for Judge Andrews was whether raising the issue in both briefs was sufficient to avoid a forfeiture. It was not.
Finally, in a footnote at the end of their opening brief, Defendants argue Dr. Park should be excluded from testifying because Novartis falsely claimed it did not have possession of Triclinic's glassy solid when requested by Defendants on October 6, 2023. Arguments in footnotes are forfeited. It does not matter that Novartis responded and Defendants addressed the issue more fully in their reply brief. Arguments first made in reply briefs are forfeited.
Id. at 7.
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