Continuing our discussion of trends in summary judgment practice from last week, today we will be checking in on a practice Judge Noreika has been using recently to limit summary judgment motions in her cases.
All the way back in January, we noted that Judge Noreika had issued an opinion in Gentex Corp. v. Galvion Ltd., C.A. No. 19-921-MN, D.I. 163 (D. Del. Dec. 16, 2021), eliminating the standard summary judgment procedures in the scheduling order and instead requiring the parties to move for leave before filing any summary judgment or Daubert motion. In the intervening months, this practice has not yet been memorialized in a standing order or form scheduling order. Judge Noreika has, however, issued similar orders in at least 3 other cases:
- Complete Genomics, Inc. v. Illumina, Inc., C.A. No. 19-970-MN, D.I. 299 (D. Del. Oct. 6, 2021)
- Osteoplastics, LLC v. ConforMIS, Inc., C.A. No. 20-405-MN (D. Del. Apr. 12, 2022)
- Aqua Connect, Inc. v. TeamViewer US, LLC, C.A. No. 18-1572-MN (D. Del. Mar. 1, 2022)
Common Threads
Looking at these four cases, a few common threads jump out.
First, as you can probably gather from the case numbers, each of these orders were entered quite near the existing deadlines for summary judgment motions set forth in the scheduling order -- in all four cases expert reports had already been served.
Second, and I suspect this one is more telling, in two of the four cases, the parties had already filed motions to strike expert reports on non-Daubert grounds. Notably, in Aqua Connect, Judge Noreika issued the order requiring leave to file a Daubert motion at the hearing on the motion to strike.
Third, in one of the two cases where the motion to strike was not filed (Complete Genomics), the order requiring leave issued only a week after the parties stipulated to extend the deadline for Daubert and summary judgment briefing. Interestingly, Judge Noreika initially granted that stipulation which specifically noted that any motion would still be fully briefed four months prior to the pretrial conference.
Did They All Move For Leave?
Yes, in every case at least one party moved for leave (although in one case - Osteoplastics -- the motion was withdrawn).
How Did That Work Out?
Somewhat surprisingly, the Court granted leave to file at least one such motion in every case (except Osteoplastics, naturally).
What's The Upshot?
At the moment, its not clear whether this policy will become more widespread or continue to be only an occasional tool. My advice for those approaching the dispositive motion deadline in your own cases, is to keep your head down and avoid filing any motions directed at experts prior to the Daubert deadline, and to avoid attempts to move that deadline if at all possible.
Will The Blog Continue This Annoying Question And Answer Format?
Maybe.
If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.
