We talked early last year about how Judge Noreika praised Chief Judge Connolly SJ ranking procedures, and applied them in a case where the parties had filed 11 SJ motions.
As a reminder, under Chief Judge Connolly's procedures, the parties rank their SJ and Daubert motions. The Court addresses them in order, and if it denies one, it then denies the remainder.
Needless to say, it can lead to some significant strategizing prior to filing, where parties try to balance the importance of each motion with its likelihood of success.
This week, Judge Noreika did it again, and I thought it was a good time to remind everyone that this can happen. In VB Assets, LLC v. Amazon.com, Inc. …
Motions to strike are tough in Delaware. Although the reign of Pennypack seems to be slowly entering its dotage, the door remains open for the late-disclosed.
With exclusion so rare, its a bit odd we don't see more of Rule 37's lesser sanction -- fees.
But visiting Judge McCalla gave us one on Monday in Invacare Corp. v. Sunrise Medical (US) LLC, C.A. No. 21-823-JPM (D. Del. May 22, 2023) (Oral Order). The facts there were pretty stark.
The defendant had an inequitable conduct claim based on the patentee's failure to inform the PTO that identical claims had previously been rejected. Plaintiff's prosecution counsel testified that the failure was due to an error in an internal spreadsheet they kept of related applications that omitted the relevant application. Plaintiff had previously withheld the spreadsheet as privileged but eventually waived privilege and produced it.
Unfortunately, it came out during expert discovery that the spreadsheet actually contained the relevant application. This was probably a bad day for a lawyer somewhere. Plaintiff then went back to see if there were other versions of the spreadsheet that did omit the application -- they eventually found and produced some, but by then it was 4 months after the close of fact discovery.
Defendant moved to exclude these new references. Judge McCalla denied the motion but ordered plaintiff to pay what will surely be a hefty sum to cover the ...
I've got a real oddball fact pattern for you today. I'm not sure there's a takeaway for your everyday litigation life, but please remember to hug your experts -- you'll be glad you did.
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The last time the plaintiff in Personal Audio LLC v. Google LLC, C.A. No. 17-1751-CFC (D. Del. May 22, 2023) spoke to their expert was in August 2021 when he submitted a declaration opposing a Daubert motion.
Sadly, he passed the following January.
Unfortunately, no one told the plaintiff.
Amazingly, two months after that the expert consulting firm plaintiff had been working with reached out to see if the expert was still needed. I can only imagine they were hoping …
On Wednesday, Judge Andrews issued an order in Salix Pharmaceuticals, Ltd. v. Norwich Pharmaceuticals, Inc., C.A. No. 20-430-RGA (D. Del. May 17, 2023) rejecting an attempt to evade judgment in an ANDA action based on the filing of an amended ANDA.
The defendant in the case had won on one method of treatment, and lost on the other. It filed an amended ANDA seeking to remove the infringing treatment from the label:
Defendant filed an ANDA seeking to make and market a drug for two different methods of treatment-the IBS-D indication and the HE indication. I had a bench trial. After trial, I ruled in Defendant's favor on the IBS-D indication (as …
Today Chief Judge Connolly addressed a motion to dismiss a combined trade dress, federal unfair competition, copyright infringement, and design patent infringement action.
The parties apparently agreed that the defendant in the action did not meet the TC Heartland venue test for the patent portion of the action:
Argento is a New York corporation with its principal place of business in New York. . . . It is undisputed that Argento does not own, rent, or maintain any offices, physical property, addresses, or bank accounts in Delaware and does not employ any Delaware-based employees, agents, or representatives. It is also undisputed that venue of Globefill's patent claim against Argento does not lie …
Yesterday, the Judicial Conference announced the end to the exception permitting remote public access during COVID-19:
The COVID-19 emergency is no longer affecting the functioning of the federal courts, the Judicial Conference’s Executive Committee has found, setting in motion a 120-day grace period in which federal courts may continue to provide the same remote public audio access to civil and bankruptcy proceedings as they did during the emergency.
The Executive Committee finding takes effect May 24. The grace period, which ends Sept. 21, relates only to the Judiciary’s temporary broadcasting exception for remote audio public access to civil and bankruptcy proceedings. …
When a party asks to do something outside of the time limits set by the scheduling order, the Court looks to whether there is "good cause" under FRCP 16(b)(4) to modify the scheduling order. Good cause requires diligence, generally meaning that the movant could not have reasonably met the deadline it's trying to move.
Last week we got two examples of diligence analyses from the Court, one that found that a party was diligent, and one that didn't. I thought it would be interesting to line them up and compare them.
"Immediately" = Good Cause
First, Judge Fallon found good cause where a plaintiff sought to depose a third-party witness after the close of fact discovery, after the …
Most judges in the District of Delaware limit the parties to three motions in limine per side. Visiting judges sometimes permit more, but I get the sense that this limit is something native D. Del. judges generally don't want the parties to change when submitting a proposed scheduling order.
But I can't recall a patent case where the parties did not use all of their motions in limine, and want more (even if they didn't ask the Court). These evidentiary issues can just have a large effect on trial. Plus, with a mountain of work bearing down on you in the leadup to trial, it's great to think you might knock out some opposing …
The objection in question actually failed under the rules on two counts—both failing to cite the relevant standard of review, and failing to include the certification that new arguments were not being raised. Judge Andrews found both failures fatal:
The first question on review is, what is the standard of review? The Local Rules recognize this: "Objections . . . shall identify the appropriate standard of review." I note that requiring the statement of a standard of review is helpful to the reviewing court. It might also help the disappointed party to consider whether it should even file objections. Barry does not identify a standard of review. . . . Barry did not comply with the Standing Order. His objections are thus overruled. I need proceed no further. . .
The Court has a standing order that states: "Any party filing objections . . . must include . . . a written statement either certifying that the objections do not raise new legal/factual arguments, or identifying the new arguments and describing the good cause for failing to previously raise [them] before the Magistrate Judge." Barry did not file such a written statement with his objections. Seaspine pointed this out. . . . Seaspine asserts that Barry has raised arguments that he did not raise before the Magistrate Judge. Had Barry filed the required statement, I would know what his position on Seaspine's assertion is. Even after Seaspine raised the issue, Barry did not seek leave to file a statement providing the required information. This is not some arcane requirement. It is a practical one, designed to make referrals to magistrate judges as efficient as the referral system can be. Barry' s objections are thus overruled. I need proceed no further
Barry v. Stryker Corporation, C.A. No. 20-1787-RGA (D. Del. May 4, 2023) (Mem. Order)
At this time, the bloggers code of ethics requires me to call this a trend. Stay safe out there.
It's no secret that the Court is busy, and it's only getting busier. Time being such a limited resource, requests for special (expedited) treatment are particularly fraught.
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An important codicil (legal words for 200 Alex (#notmyAlex)) to this rule is that, once you receive this special treatment, you really can't change your mind. This rule was brought into sparkling clarity in Taiho Pharmaceutical Co., Ltd. v. Eugia Pharma Specialities Ltd., C.A. No. 19-2309-CFC (D. Del. May 1, 2023) (Oral Order), which really speaks for itself:
Plaintiffs have filed a motion to extend by two weeks the deadline for their posttrial brief and findings of fact. During these proceedings, both sides insisted on quickly proceeding to a bench trial on the validity of the '284 patent, even though that patent does not expire until 2029. The Court accommodated the parties' request, and it has repeatedly noted the importance of the parties adhering to the Court's schedule given the Court's high caseload. Plaintiffs now seek to extend their posttrial briefing schedule by an additional two weeks because they have chosen to hire additional counsel. Plaintiffs have significantly burdened the Court's resources to date and proceeded to trial knowing that they had to abide by the Courts post trial schedule. Now therefore, Plaintiffs' motion is DENIED.
So there you go—if you're going to go fast, go fast.
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