A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Pleadings

But I Thought I Could Do the Bare Minimum!

Lindsey M. Gellar, March 31, 2025
FRCP 8 Affirmative Defenses

Me, emerging to make my IP/DE debut.
Me, emerging to make my IP/DE debut. Bankim Desai, Unsplash

My name is Lindsey Gellar, and I am an associate at Shaw Keller, posting for the first time here. Yes, Andrew has finally managed to rope another lackey (associate) into writing for the blog. Today, I'm going to look at what it takes to plead equitable defenses in the District of Delaware.

When it comes to pleading most affirmative defenses, the bar is on the floor. An affirmative defense does not need to be plausible to survive; it must merely provide fair notice of the issue involved. Internet Media Corp. v. Hearst Newspapers, LLC, C.A. No. 10-690-SLR, 2012 U.S. Dist. LEXIS 126788, at *7 (D. Del. …

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Unlike in the Eastern District of Texas, Delaware Scheduling Orders Avoid Potential Rule 11 Pitfalls at the Pleadings Stage

Emily S. DiBenedetto, Feb. 19, 2025
Scheduling Order Sanctions

Parade of Horribles.jpg
The Looming Parade of Horribles, AI-Generated, displayed with permission

I’m partial to percussion and noticed that there was a gaping hole of staccato in the rising swell of the IPDE music videos, subtle though it may have been in the background of Andrew's singing and Nate’s interpretive dance performances. Leaving the snare drum at home, today I chime in only with the lonely voice of a wistful triangle to supplement this week’s stories with a tale from a faraway land—the Eastern District of Texas.

Why do we in Delaware care about this opinion? It gave me a fresh appreciation for the orderly composition of Delaware scheduling orders. It involved a problem that cannot arise in a District of Delaware …

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Plaintiff's "'Cut and Paste' Approach Cannot Be a Viable Pleading Strategy"

Andrew E. Russell, Sept. 23, 2022
Complaint Legal Writing

Mel Poole
Mel Poole, Unsplash

Judge Burke issued an oral order earlier this week with some interesting language criticizing the party's attempt at an amended complaint.

In Midwest Energy Emissions Corp. v. Arthur J. Gallagher & Co., C.A. No. 19-1334-CJB (D. Del.), the plaintiff accused a very large number of entities—More than 50, it looks like—with infringement of a number of patents, all in a single combined action.

Earlier this year, it moved to amend its complaint to add additional defendants it alleged were parent companies of defendants who were as acting as the parent companies' "alter egos and agents." Judge Burke granted this request as to one party, for which the complaint included more detailed factual allegations, …

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Court Strikes Answer, Orders Default for Unrepresented Corporate Defendant

Andrew E. Russell, Jan. 31, 2022
Motion to Strike Answer

Pixelated Game Over screen on an oversized PAC-MAN arcade machine
Sigmund, Unsplash

Generally, corporations have to be represented to appear in Federal Court, or they are at risk of default. This is something that comes up surprisingly often, including when corporate defendants try to file their own filings without an attorney (by mailing them to the clerks' office), or when counsel for a corporate defendant seeks to withdraw mid-case.

Judge Fallon issued an opinion today showing the consequences of a corporation failing to retain counsel. Plaintiff brought suit and, requested entry of default after a corporate defendant failed to answer. That corporate defendant then filed an "answer"—which, based on the docket, was not an answer at all, in that it did not respond to plaintiff's claims. Plaintiff then moved …

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