It's easy to fall into the trap of separating rules into "technical" and "substantive" and on that basis to choose which must be followed and which can be safely ignored. Judge Noreika neatly illustrated how foolhardy this practice can be last week, when she issued a brief, two-sentence order denying a summary judgment motion:
WHEREAS, pursuant to the 47 Scheduling Order, a separate concise statement of facts shall be filed with any summary judgment motion; and WHEREAS, Plaintiff did not file such statement with its 194 Motion for Summary Judgment. THEREFORE, IT IS HEREBY ORDERED that the motion is DENIED for failure to comply with this Court's procedures set forth in the Scheduling Order
Board of Regents, The University of Texas System v. Boston Scientific Corp., C.A. No. 18-392-MN, D.I. 205 (D. Del. June 15, 2022).
As you can see from the order, Plaintiff's fatal error was failing to include a separate concise statement of facts with its SJ motion, as required by the scheduling order (a provision that was identical to the one in Judge Noreika's form order). Looking at the motion, you can see why the Plaintiff might have thought it unnecessary. The opening brief was only 4 pages long and, dealing with indefiniteness, was not particularly fact-intensive.
These factors were evidently not persuasive as the Court denied the motion the very next day, well before any opposition was due with the short order above.
Now, you might wonder if this motion is truly dead or if the plaintiff might go on bended knee and seek to reclaim what it had lost -- pleading folly rather than some calculated scheme, and asking for leave to re-file. So far, however, it seems that the motion is simply done. In the 10 days since the order, there has been no further mention of it on the docket, whereas I would have expected any letter or motion for leave to be filed almost immediately.
So stay safe out there readers and remember that diligence is the truest armor.
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