A reader helpfully flagged a stipulation denial by Judge Noreika last week (thank you!). The parties had a pretrial conference scheduled for July 18, 2022, and stipulated to move a number of deadlines, including for Daubert briefing. They moved the Daubert motion reply deadline from May 20, 2022 (52 days before the PTC) to June 10, 2022 (38 days before the PTC).
Judge Noreika denied the stipulation without comment. They smartly refiled, but without the Daubert deadline adjustment. This time it went through just fine, albeit with a comment stating that the Daubert deadlines were not moving:
SO ORDERED re 192 STIPULATION TO EXTEND TIME . . . IT IS FURTHER ORDERED that the Daubert motion/briefing schedule set by D.I. 134 shall NOT be extended and Daubert briefing shall be completed on the [original] schedule . . .
Roche Diabetes Care, Inc. v. Insulet Corporation, C.A. No. 20-825-MN (D. Del. Mar. 21, 2022).
Judge Noreika's form scheduling order directs parties to leave about four months between the Daubert deadline and the pretrial conference (for non-ANDA patent cases).
As we've noted, schedule stipulations are usually granted, but Judge Noreika has spoken before about the importance of leaving enough time for the Court to address Daubert motions between the reply deadline and the pretrial conference. In that instance, the Court denied a stip that left only 20 days between Daubert motions and the pretrial conference, but granted one that left 31 days.
In contrast, this new denial involved a stip that left 38 days in between Daubert and the PTC. This may indicate that her practices are changing or, more likely, it may just be because the 38-day period includes two Court holidays, Juneteenth and the Fourth of July.
A Common Pitfall
Either way, it's worth noting that moving summary judgment and Daubert motion deadlines often raises issues for the Court, whether it's a denial of a stip or just straight losing your trial date, as Judge Connolly notes on his web page:
Important Note concerning Summary Judgment Motions
Should the parties stipulate or otherwise request to have their dispositive motion deadline extended, and a trial date is currently set on the court's calendar in the case, the parties will lose their trial date upon the court's granting the extension. No new trial date will be given until the dispositive motion(s) have been decided.
(Former Judge Robinson had an identical policy). Judge Connolly does enforce this, typically granting the stipulation and then putting an order on the docket cancelling the trial.
So, PSA: any time you hear "let's just stipulate to move the summary judgment and Daubert motion deadline" in D. Del., give some thought to whether you really want try that.
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