A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Stipulation

Page Limitless

Nathan R. Hoeschen, March 7, 2023
Page Limits Stipulation

My colleague Andrew wrote a post long ago about all of the things you can stipulate to in D. Del., and all the things you cant. Take a moment to read it—I'll wait.

AI-Generated, displayed with permission

Aaaand we're back. You'll note one of the stipulations listed as "iffy" (legal term) was stipulations to extend page limits. We got a good example of just how iffy those can be last week from Judge Noreika:

IT IS HEREBY ORDERED that the Stipulation is DENIED. The request to extend page limits was filed seven minutes before the over-the-page limit brief was filed. The effect of this was that Plaintiff granted itself an extension without leave of Court and without respect for the Court and its rules. THEREFORE, IT IS FURTHER ORDERED that the Motion for Preliminary Injunction is DENIED for failure to comply with the page limits. Counsel may re-file the motion with a brief that complies with the Court's rules.

Janssen Biotech, Inc. v. Amgen, Inc., C.A. No. 22-1549-MN (D. Del. Mar. 2, 2023) (Oral Order)

Obviously, it didn't help that the parties filed their stip just minutes before the relevant brief, giving the Court no opportunity to act on it. But it led me to wonder just how often these stipulations are denied in ...

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Stip Denied: Parties Not Permitted to Stay Pending Resolution Motions

Andrew E. Russell, March 3, 2023
Stipulation Scheduling

Green Light
Pawel Czerwinski, Unsplash

Parties in D. Del. patent actions frequently stipulate to adjustments of the case schedule, and these typically go through without any issue. So it always catches my eye when a stipulated stay is denied.

In Zogenix, Inc. v. Apotex Inc., C.A. No. 21-1252-RGA (D. Del.), and two related actions, one of the defendants had moved to dismiss one of the asserted patents in a related action, and the plaintiff had moved to amend its complaint to assert additional patents and join additional parties. The motions were filed in September and November, 2022, and remain pending.

The parties in the three actions stipulated to consolidate the actions for the purposes of discovery, and to stay the consolidated action until resolution of the motions to dismiss and amend.

Judge Andrews denied the motion, ordering that the parties instead move forward as if the motions were resolved in the broadest way:

ORAL ORDER: The Stipulation to Consolidate and Stay Case . . . is DENIED. The Court is not willing to stay the cases. The discovery deadlines in the two earlier cases . . . will not be extended. The parties should proceed as though the motion for leave to amend . . . will be granted and the motion to dismiss . . . will be denied. Ordered by Judge Richard G. Andrews on 3/1/2023.

We've noted before that stipulations to stay the entire case can be iffy, and Judge Andrews has previously rejected an attempt ...

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Document Production Deadlines Set as a Percentage of Completion (50%, 75%)?

Andrew E. Russell, Aug. 28, 2022
Stipulation Scheduling Order

Percentages
Artem Beliaikin, Unsplash

This is a way of drafting scheduling order deadlines I haven't seen before. In Novarad Corp. v. Medivis, Inc., C.A. No. 21-1447-VAC-MPT (D. Del.), the parties initially agreed to a scheduling order that included a deadline for document production to be "substantially complete."

Many (maybe all) of the judges' form scheduling orders include a deadline for substantial completion of document production. Parties generally understand the substantial completion deadline to mean the production of enough documents that fact depositions can begin.

Exactly how many documents that is can be an occasional source of disagreement. There is not a lot of well-known precedent about exactly what proportion of documents must be produced before the substantial …

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Court Denies Stipulation Extending Answer Deadline That Was Filed on Due Date as Untimely & Lacking Justificiation

Andrew E. Russell, June 23, 2022
Stipulation Answer

RIP, dear stipulated extension
Mr Xerty, Unsplash

Just a heads up, since this has to be one of the more common things that counsel do in cases—this week, Judge Connolly denied a stipulation extending the answer deadline as untimely and lacking a reason:

ORAL ORDER: The parties' stipulation (D.I. 16) being untimely and offering no justification for an extension, it is HEREBY DENIED. Defendant has until June 23, 2022 to answer, move, or otherwise respond to the complaint. ORDERED by Judge Colm F. Connolly on 6/21/22. (ntl) (Entered: 06/21/2022)

Wikeshire IP LLC v. TransCore, LP, C.A. No. 22-445-VAC (D. Del.).

It's not clear from the docket why it was untimely. It looks like the answer deadline was originally 4/28/2022, then it was extended by stip to 5/28, then 6/14. Then, on 6/14 (the due date), the parties filed another stipulation extending the answer deadline to 6/28.

So it looks like the Court rejected a stipulation filed on 6/14 to extend a 6/14 due date. It may be that the parties filed after the 6pm filing deadline. Or, it may be that the Court is taking the view that the stipulation must be filed early enough for the Court to "so order" it prior to the deadline—but I haven't seen that in other cases.

Either way, it's probably safest to list a justification for your stip extending the answer deadline, and to file early going forward! Of course, this can be tricky in high-volume NPE cases, where plaintiff's counsel may be unresponsive until the parties are right up against a deadline.

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Recent Denials of Early-Case Extensions in D. Del.

Andrew E. Russell, June 6, 2022
Stipulation FRCP 16

Do Not Enter Wrong Way
Tim Mossholder, Unsplash

Judge Andrews on Friday denied a fairly typical stipulation extending time for the briefing on a motion to dismiss:

ORAL ORDER: There is a pending motion of a routine nature. Each side is represented by multiple attorneys, at least some of whom on both sides are known to me to be more than competent. Summer schedules and other professional obligations are not a reason to add more than two months to the briefing schedule for this motion. The stipulation (D.I. 15 ) is DENIED. Ordered by Judge Richard G. Andrews on 6/3/2022. (nms) (Entered: 06/03/2022)

Robocast, Inc. v. Netflix, Inc., C.A. No. 22-305-RGA, D.I. 16 (D. Del. June 3, 2022).

I've noticed two similar orders lately as well, denying early-case extensions or stays and citing Federal Rule of Civil Procedure 16(b)(2), both from Chief Magistrate Judge Thynge. First, with regard to a stipulation to extend time to submit a scheduling order:

ORAL ORDER re 18 STIPULATION TO EXTEND TIME to submit a scheduling order to 6/1/2022 filed by IP Power Holdings Limited: . . . By the time of the Rule 16 conference scheduled for 6/6/2022, this matter will have been pending for ...
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Always Leave the Court Enough Time Between SJ/Daubert Briefing and the Pretrial Conference

Andrew E. Russell, March 21, 2022
Stipulation KB

Caution Tape
Hiroshi Kimura, Unsplash

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 ...
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Chief Judge Connolly Limits Parties to 10 Claim Terms (Or, Why It's Helpful to Pay Attention to Seemingly-Obscure Precedent)

Andrew E. Russell, Feb. 23, 2022
10 Terms Stipulation

As frequent readers of this blog already know, some judges in Delaware have limited parties to a total of 10 terms for construction across all asserted patents.

We've noted at least one previous instance where Chief Judge Connolly seemed to limit the parties to 10 claim construction disputes. Last week, the Court made an even clearer statement on the issue.

The parties in MG FreeSites Ltd v. ScorpCast, LLC, C.A. No. 20-1012-CFC-JLH (D. Del.) filed their joint claim chart in advance of claim construction, and listed 15 terms in dispute. They also included a footnote smartly noting Chief Judge Connolly's practice not to permit argument on indefiniteness at the claim construction stage.

They then filed a stipulation …

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Stipulation Denied

Andrew E. Russell, Feb. 11, 2022
Case Management Stipulation

Parties in Delaware can generally freely stipulate to many things that don't directly impact the Court, including common things like schedule adjustments, authenticity of documents, protective orders, and ESI procedures—as long as you stay away from trouble spots like increasing page limits or dates for dispositive motions or trial. But every once in a while a stipulation is denied, and it's always interesting when and why that happens.

Last month, the parties in ImmerVision, Inc. v. LG Electronics U.S.A., Inc., 18-1630-MN-CJB (D. Del.) filed a stipulation staying the action pending the outcome of objections to the magistrate judge's claim construction R&R. They noted that, if the R&R is adopted, plaintiff would stipulate to non-infringement and the …

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Court Denies Stipulated Five-Month Adjustment to Patent Case Schedule, Requires Parties to Proceed with Multiple Alternative Constructions

Andrew E. Russell, Dec. 20, 2021
Stipulation Claim Construction

robert-anasch-ZFYg5jTvB4A-unsplash
Robert Anasch, Unsplash

As we've discussed at length, judges in the District of Delaware will usually let parties stipulate to reasonable adjustments to the case schedule, within certain limitations (including that stipulating to change the dispositive motion deadline may in some instances lead to the loss of the parties' trial date).

So it's always interesting to see when a stipulation is denied. In Osteoplastics, LLC v. Conformis, Inc., C.A. No. 20-405-MN-JLH (D. Del.), just before the close of fact discovery, the parties stipulated to a roughly 5 month delay in the remainder of the case. As the parties explain in the stip, the purpose of the delay is to provide the Court time to rule …

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What Can Parties Stipulate to in the District of Delaware? And When Do Parties Have to File a Stipulation?

Andrew E. Russell, June 6, 2021
FRCP 15 FRCP 12

You may not realize the dangers with certain stips.
You may not realize the dangers with certain stips. Andrew E. Russell, CC BY 2.0

It was a bit of a slow week as far as opinions from the District of Delaware, so I wanted to write a short post about stipulations, covering a few questions that sometimes come up.

What Can You Do by Stipulation in D. Del.?

In the District of Delaware, most litigation-related matters or facts can potentially be stipulated to. This includes, most commonly, extensions of deadlines. Parties routinely file, and the Court routinely grants, stipulations extending time for things like answer deadlines, deadlines to file a scheduling order, and protective order deadlines. Parties likewise routinely stipulate to the amendment of pleadings, FRCP 41 dismissals, …

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