Hello again dear friends and readers. In the time the blog has been on hiatus I have built a fence 20 feet high and 20 feet long, gained 400 ELO in chess, and seen many old friends for the first time in ages. But the blog is back, and those days are behind me as I feed more content into its insatiable maw. So let's get right into today's case.
You'll all be aware that a couple of our judges require litigants to rank their summary judgment motions. For instance, and relevant to today's case. Judge Williams' form scheduling order states that "The Court will review the party’s summary judgment motions in the order designated by the party. If the Court decides to deny a motion filed by the party, barring exceptional reasons determined sua sponte by the Court, the Court will not review any lower ranked summary judgment motions filed by the party."
The counterclaim defendant in Jazz Pharms., Inc. v. Avadel CNS Pharms., LLC, C.A. No. 22-941-GBW (D. Del. Sep. 15, 2025) filed what it called its "Motion for Summary Judgment No. 1: No Antitrust Standing" in accordance with those procedures. The accompanying brief, however, listed two separate, largely unrelated grounds for this lack of standing under different subheadings:
- Avadel Lacks Antitrust Standing Because It Cannot Show The FDA Would Have Approved Lumryz By October 15, 2021, and
- There Is No Genuine Dispute Avadel Lacks Antitrust Standing Because Lumryz’s Earlier Launch Would Have Infringed Jazz’s Valid ’782 Patent.
Judge Williams' opinion on the motion, however, discussed only the first ground. The only reference to the '782 patent theory was in a footnote explaining why it was not being considered:
"[Jazz's] [MSJ No. 1] is actually two motions for summary judgment and, thus, the Court only considers the first issue presented in [Jazz's] [MSJ No. 1] and denies the second issue pursuant to the Court's summary judgment ranking procedures."
Id. at 6 n.9 (quoting Nexus Pharms., Inc. v. Exela Pharma Scis., LLC, Civil Action No. 22-1233-GBW, 2025 LX 215697, at *5 n.3 (D. Del. July 7, 2025)).
Interestingly, it appears the Court raised the issue sua sponte, as there is no reference to the issue in the opposition brief. Definitely something to keep in mind when ranking SJ motions going forward.
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