Scheduling/Case Management

All across the country, district courts have had to modify scheduling orders in response to the COVID-19 pandemic. Patent cases have been no different. Many of the these case management modification orders have been issued on a sua sponte basis, often based on broader general Court Orders that were issued district wide within a particular jurisdiction. Some reflect a wait-and-see approach by staying all litigation until further notice or by moving all deadlines a few months, while other jurisdictions have shown a desire to avoid significant delays, often through the use of remote-capable technologies such as telephonic and video conferences.

Middle District of Alabama (Montgomery)

Magistrate Judge Stephen Michael Doyle

Autoliv ASP, Inc. v. Hyundai MOBIS Co., Ltd. et al. – The U.S. District Court for the Middle District of Alabama in Montgomery granted the parties’ Joint Motion To Continue a hearing due to the COVID-19 pandemic, resetting the hearing from December 11, 2020 to January 26, 2021 at 10:00 am (CST).   On January 15, 2021, the Court denied the parties Joint Second Motion To Continue the hearing due to concern about the “ability to travel to the hearing (from places such as Atlanta, Los Angeles, and Chicago) and conduct an in-person hearing while ensuring the health and safety of all involved.” The Court found that, due to the age of the case and the pending motions, the hearing cannot be further delayed. Due to the parties concerns, and mindful of the current state of the COVID-19 pandemic, the Court found that the January 26, 2021 hearing should be held via video teleconference. (Case No. 2:13-cv-00141, presiding before District Judge William Keith Watkins; December 2, 2020 and January 15, 2021).

District of Alaska (Anchorage)

Senior District Judge H. Russel Holland

Miller Mendel Inc. et al v. Alaska State Troopers, et al. – The U.S. District Court for the District of Alaska in Anchorage granted defendants’ Motion to Stay pending resolution of a related action in the Western District of Oklahoma, pursuant to the “first-to-file” rule. The Court found that all three relevant factors favored a stay of the action pursuant to the “first-to-file” rule, and the Court decided not to exercise its discretion to dispense with the first-filed principle for reasons of equity. As part of its discretion analysis, the Court found that the delay caused by a recent decision in Oklahoma that caused the transfer of a large volume of criminal and civil cases to Oklahoma federal court and the delay “undoubtedly” caused by the COVID-19 pandemic, was not sufficient to dispense with the first-to-file rule because “civil cases in the Western  District of Oklahoma have not ground to a halt as plaintiffs suggest.” (Case No. 3:21-cv-00129; August 19, 2021).

Central District of California (Western Division—Los Angeles)

District Judge Michael W. Fitzgerald

B/E Aerospace, Inc. v. C&D Zodiac Inc. et al. – The U.S. District Court for the Central District of California’s Western Division in Los Angeles issued an Order granting plaintiff’s Motion To Amend Complaint, after having read and considered the papers filed in connection with the Motion and holding a telephonic hearing on April 26, 2021, pursuant to General Order 21-03 arising from the COVID-19 pandemic. (Case No. 2:19-cv-01480; April 27, 2021).

GCP Applied Techs., Inc. v. AVM Industries, Inc. – The U.S. District Court for the Central District of California’s Western Division in Los Angeles granted defendant’s Motion To Amend Answer, finding that the amendment not futile or unduly prejudicial, after considering the papers filed in connection with the Motion and holding a telephonic hearing on July 12, 2021, pursuant to General Order 21-08 arising from the COVID-19 pandemic. (Case No. 2:19-cv-07475; July 23, 2021).

Nike, Inc. v. Skechers USA, Inc. – The U.S. District Court for the Central District of California’s Western Division in Los Angeles denied defendant’s Motion To Stay Pending Inter Partes Review (“IPR”), after holding a telephonic hearing on December 21, 2020, pursuant to General Order 20-09 and the Continuity of Operations Plan (“COOP”), effective December 9, 2020, through and including January 8, 2021, arising from the COVID-19 pandemic. As part of its analysis, the Court noted that although a trial date has not been set, the Court agreed with Plaintiff “that significant activity has occurred and will shortly occur.” (Case No. 2:19-cv-09230; December 30, 2020).

District Judge Terry J. Hatter, Jr.

Theragun, Inc. v. Complete Recovery et. al. – The U.S. District Court for the Central District of California in Los Angeles granted plaintiff’s Motion for Electronic Service of Process Pursuant to FRCP 4(f)(3) to serve the Summons, Complaint and other initiating documents on the defendant by email and by uploading the documents at defendant’s interactive Alibaba website. Plaintiff requested the alternative service, in part, to avoid having to attempt to serve the Chinese defendant via The Hague Convention which might prove lengthy and futile, particularly since “[t]his vexing situation is now compounded by the COVID-19 pandemic, which undoubtedly will more than likely cause additional delays.” (Case No. 2:20-cv-03821; May 29, 2020).

District Judge John A. Kronstadt

Sound View Innovations, LLC v. Hulu, LLC – The U.S. District Court for the Central District of California’s Western Division in Los Angeles sua sponte issued an order:

  • removing all motions, status and scheduling conferences scheduled between April 23, 2020 and May 1, 2020 from the calendar;
  • ordering that all motions will be decided without oral argument and that the court may order supplemental briefing; and
  • ordering that all current deadlines for briefing of motions and filing of status reports and scheduling conference reports remain in place.

The order was issued in accordance with the Central District of California’s Continuity of Operations Plan (“COOP”) which suspended hearings in civil cases, except emergency and time sensitive matters including temporary restraining orders and preliminary injunctions, as ordered by the assigned district judge. (Case No. 2:17-cv-04146; March 24, 2020).

Magistrate Judge Karen L. Stevenson

Lexington Luminance LLC v. Feit Electric Company, Inc. – The U.S. District Court for the Central District of California in Los Angeles, on its own motion, rescheduled until August 21, 2020 at 10:00 a.m. a hearing on plaintiff’s Motion for Attorney Fees, which had previously been scheduled for August 19, 2020. The Court further indicated that the hearing will be held telephonically due to the COVID-19 pandemic and consistent with the District’s General Orders 20-08 Amended and 20-09. (Case No. 2:18-cv-10513, presiding before District Judge Philip S. Gutierrez; August 11, 2020).

District Judge George H. Wu.

Lonati, S.P.A. et al v. Soxnet, Inc. et al. – The U.S. District Court for the Central District of California in Los Angeles ordered supplemental briefing from plaintiffs with respect to their Motion for Order Authorizing Service of Process By Alternative Means, pursuant to FRCP 4(f)(3). As part of its motion, plaintiffs indicated that they wished to effect service on defendant as soon as possible so their infringement claims can be adjudicated but reported “that service times through the Hague Convention in China have increased exponentially” due to the COVID-19 pandemic. The Court instructed plaintiffs to provide supplemental briefing, including “to make a showing that they fall under one of the exceptions enumerated in the Hague Convention.” (Case No. 2:20-cv-05539; September 9, 2021).

Central District of California (Southern Division—Santa Ana)

Special Master Judge  Stephen G. Larson (Ret.)

Preservation Technologies LLC v. MindGeek USA Inc. et al. – The Special Master recommended that the U.S. District Court for the Central District of California in Santa Ana grant defendant’s motion to modify the scheduling order finding that “[g]iven the discovery stay, plaintiff’s transition to new counsel, and the COVID-19 pandemic, there is good cause to reexamine and modify case deadlines entered over a year-and-a-half ago.”  In crafting the proposed scheduling order, the Special Master considered a number of things including “the impact of COVID-19 on [the] case’s progression to trial.” In a July 21, 2020 Minute Order the presiding Judge accepted the recommendation of the Special Master and adopted the modified schedule outlined in the recommendation at pages 12-15. (Case No. 2:17-cv-08906, presiding before District David O. Carter; July 13, 2020 and July 21, 2020).

Senior District Judge Ronald S.W. Lew

UPL NA, Inc. f/k/a United Phospherus, Inc. v. Tide Int’l (USA), Inc., et al. – The U.S. District Court for the Central District of California’s Southern Division in Santa Ana found good cause to modify the case schedule after considering the parties’ Joint Stipulation Concerning the Case Schedule, requesting to “modestly” extend several case deadlines.  The extension of certain discovery deadlines was requested, in part, to accommodate one of the expert witnesses who was admitted to the hospital after recently being diagnosed with COVID-19, and has been unable to work. On February 16, 2021, the Court granted the parties’ Joint Stipulation to Extend extending certain fact and expert discovery deadlines, to accommodate the production after the close of fact discovery of test data generated by defendant’s expert, “who suffered a severe case of Covid-19 and several related health setbacks which have prevented him from working for several weeks.”  (Case No. 8:19-cv-01201; January 22, 2021 and February 16, 2021).

District Judge John A. Kronstadt

Linksmart Wireless Technology, LLC v. Gogo Inc. et al. – The U.S. District Court for the Central District of California’s Southern Division in Santa Ana issued an Order advising counsel that the hearing set for April 26,2021 will proceed by telephone only, with no in-person appearances allowed, “in light of the current limitations in place during the COVID-19 pandemic.” (Case No. 8:18-cv-00654, case presiding before; April 22, 2021).

District Judge Judge Josephine L. Staton

American River Nutrition, LLC v. Beijing Gingko Group Biological Technology Co., Ltd et al. – The U.S. District Court for the Central District of California’s Southern Division in Santa Ana granted, as modified, a joint stipulation to modify the Scheduling Order. The Court noted that there have been three modifications previously granted in the matter where overseas discovery and depositions have been greatly complicated by the COVID-19 pandemic. In the present motion, the parties informed the Court that the deposition of a witness for the defendants, in his individual capacity and as the corporate representative, was delayed by about a week due to COVID-19 travel protocols. In particular, the witness “was unable to board his flight to Macau (the agreed-to deposition location) because, upon testing at the airport in Beijing, China, [he] was found to have an elevated temperature.” The witness was forced to quarantine until his temperature lowered and he could retake the COVID-19 test. However, the Court found that the parties failed to explain how this one-week delay provides good cause for the one-month extension of case deadlines they request, instead finding good cause to extend the remaining pretrial deadlines by one week. (Case No. 8:18-cv-02201; November 20, 2020).

Northern District of California (Oakland)

District Judge Haywood S. Gilliam, Jr

Edwards Lifesciences Corp. et al v. Meril Life Sciences Pvt. Ltd. et al. – The U.S. District Court for the Northern District of California in Oakland denied a Motion To Advance The Hearing, Setting A Briefing Schedule On Motions For Summary Judgment And Staying Certain Deadlines. Instead, the Court set a briefing schedule for the motion for summary judgment “[i]n light of defense counsel’s scheduling conflict on the currently-noticed hearing date, the obvious ongoing logistical challenges created by the COVID-19 pandemic and resulting shelter-in-place and travel restriction orders, and the parties’ apparent inability to agree on essentially anything . . . .” In addition, the Court indicated that “depositions should be taken in person if possible . . . [and if they] cannot be taken in person due to ongoing COVID-19-related restrictions, they must be completed by video conference (or an otherwise agreed-upon method) on or before August 7, 2020.” In a September 29th Order, Magistrate Judge Kandis A. Westmore terminated the parties joint request for clarification of the Court’s June 8, 2020 order regarding the scope of the stay,. The parties were ordered to seek clarification directly from Judge Gilliam and meet and confer to resolve the discovery dispute if it is determined by the district court to not be subject to the stay. 

The Court further stated that its “resources are even more limited due to the pandemic, making it especially important that the parties meet and confer in good faith with an eye toward resolution.”    (Case No. 4:19-cv-06593; June 8, 2020 and September 29, 2020).

Chief District Judge Phyllis J. Hamilton

Cyntec Company, Ltd. v. Chilisin Electronics Corp. et al. – The U.S. District Court for the Northern District of California in Oakland issued an Order ruling on defendant’s summary judgment motion, defendant’s motion to exclude and a motion to seal.  The Court also set a case management conference to further amend the case schedule for October 16, 2020, further noting “that General Order No. 72-5 prohibits in person jury trials through September 30, 2020, and this court generally will not hold any in-person jury trial while a national public health emergency related to the COVID-19 disease remains ongoing.” (Case No. 4:18-cv-00939; September 8, 2020).

Five Star Gourmet Foods, Inc., et. al. v. Fresh Express, Inc. et. al. – The U.S. District Court for the Northern District of California in Oakland sua sponte issued a clerk’s notice on March 12, 2020, to all civil litigants in matters before the Honorable Phyllis J. Hamilton stating the following:

  • all Case Management Conferences shall be held telephonically through CourtCall;
  • all law and motion matters will be submitted on the papers and any set hearings during this time period shall be vacated, but, if the court deems oral argument necessary it will issue a notice setting a telephonic hearing date;
  • all civil trials are subject to continuance;
  • and indicating that the notice is in effect until May 1, 2020.

(Case No. 4:19-cv-05611; March 12, 2020).

District Judge Yvonne Gonzalez Rogers

Netlist, Inc. v. Smart Modular Techs., Inc., et al. – The U.S. District Court for the Northern District of California in Oakland sua sponte suspended all in-person appearances in all civil matters before Judge Yvonne Gonzalez Rogers through at least May 1, 2020, in response to the COVID-19 pandemic. (Case No. 4:13-cv-05889; March 12, 2020).Netlist, Inc. v. Smart Modular Techs., Inc., et al. – The U.S. District Court for the Northern District of California in Oakland sua sponte suspended all in-person appearances in all civil matters before Judge Yvonne Gonzalez Rogers through at least May 1, 2020, in response to the COVID-19 pandemic. (Case No. 4:13-cv-05889; March 12, 2020).

VTT Technical Research Centre of Finland Ltd. v. SiTime Corp. – The U.S. District Court for the Northern District of California in Oakland sua sponte ordered that all in-person appearances be suspended in response to the COVID-19 pandemic.  Specifically, the court ordered:

  • all case management conferences be held telephonically and not recorded;
  • all law and motion matters be submitted on the papers with no oral arguments or personal appearances held on regularly scheduled or specially set motions, tutorials, or other matters;
  • all compliance hearings to be addressed on the papers; and
  • continuing all civil trials pending further order of the court.

(Case No. 4:19-cv-01174; March 12, 2020).

Northern District of California (San Francisco)

District Judge William Haskell Alsup

Google LLC v. Sonos, Inc. – The U.S. District Court for the Northern District of California in San Francisco issued an Order Staying Case until the presiding Judge in a related case in the Western District of Texas can rule on plaintiff’s motion to transfer. The issued Order followed briefing and an oral argument that was held telephonically due to the COVID-19 pandemic. As part of it analysis the Court noted that both parties might be “guilty of forum shopping” in the various cases they filed, and that a court congestion argument made by the defendant that Texas was a better forum, because the Western District of Texas ”has continued to hold patent trials despite the pandemic, whereas [the Norther District of California] has largely ceased holding jury trials”, was rejected by the Federal Circuit.  The Court decided that if the judge in Texas grants the motion to transfer, it will take the case and if the Texas judge denies such motion then this case will remain stayed indefinitely in favor of the Texas action. (Case No. 3:20-cv-06754; November 20, 2020).

Fluidigm Corp., et al. v. Ionpath, Inc. – On April 13, 2020, in the U.S. District Court for the Northern District of California in San Francisco, District Judge William Alsup sua sponte vacated all in-court civil hearings through April 17, 2020 and ordered that all case management conferences be conducted telephonically, in light of the public health concern caused by the COVID-19 pandemic. This order supplemented Judge Alsup’s prior March 16, 2020 Order which had also vacated all in-court civil hearings through April 17th and, until further notice, ordered that all pending motions be submitted on the papers unless a telephonic hearing is deemed necessary by the court. The Court set a telephonic Motion Hearing regarding interrogatory responses for June 18, 2020 at 8:00 a.m. (PDT). On October 20, 2020, the Court entered the parties Stipulation And Order To Enlarge Time For Showdown Procedure Due To Recent Illness Impacting Expert Availability, requesting a four-week extension, because the plaintiff’s expert was experiencing symptoms consistent with and tested positive for COVID-19. (Case No. 3:19-cv-05639; March 16, 2020, April 13, 2020, June 12, 2020 and October 20, 2020).20).

Attachments:
Fluidigm Corp., et al. v. Ionpath, Inc. Docket 89
Fluidigm Corp., et al. v. Ionpath, Inc. Docket 91

People.ai, Inc. v. SetSail Technologies, Inc. – The U.S. District Court for the Northern District of California in San Francisco issued an Order granting defendant’s Motion To Dismiss First Amended Complaint following full briefing and oral argument, which was held telephonically due to the COVID-19 pandemic. (Case No. 3:20-cv-09148; June 8, 2021).

Straight Path IP Group, Inc. v. Cisco Systems, Inc. – On April 30, 2020, in the U.S. District Court for the Northern District of California in San Francisco, District Judge William Alsup sua sponte vacated all in-court civil hearings “for the time being”, in light of the public health concern caused by the COVID-19 pandemic. The Court indicated that a scheduled May 7 hearing will still proceed, telephonically, with the courtroom deputy to provide further instruction.  (Case No. 3:16-cv-03463; April 30, 2020).

Uniloc USA, Inc. et al v. Apple Inc. – The U.S. District Court for the Northern District of California in San Francisco issued an Order Dismissing Case For Lack Of Standing, holding that plaintiffs’ patent licensing scheme divested them of exclusionary rights and, thus, of Article III standing. The Order was issued following full briefing and a hearing, held telephonically due to the COVID-19 pandemic. (Case No. 3:18-cv-00358; December 4, 2020).

California Beach Co., LLC v. Exqline, Inc. et al. – The U.S. District Court for the Northern District of California in San Francisco granted plaintiff’s Motion for Substituted Service of Process Pursuant to FRCP 4(f)(3) to serve the Summons and Complaint on one defendant through its U.S.-based counsel, and for substituted service of process on another defendant by email. The decision to allow service by email was in part made because the plaintiff made multiple attempts to serve defendant at its physical addresses and discovered that these addresses were “unsuitable for service” because they were closed at this time and for the foreseeable future due to the COVID-19 pandemic. In a November 7, 2020 Order, the Court granted accused direct infringer defendant’s motion to transfer and accused indirect infringer defendant’s motion to dismiss, following full briefing and an oral argument that was held telephonically due to the COVID-19 pandemic. (Case No. 3:20-cv-01994; July 7, 2020 and November 7, 2020).

District Judge William H. Orrick

Contour IP Holding, LLC v. GoPro, Inc. – The U.S. District Court for the Northern District of California in San Francisco issued an Order On Motion For An Accounting Or Ongoing Royalty, denying plaintiff’s motion, without prejudice, for an accounting or ongoing royalty with respect to new products that were released after the accused products. The current accused products had been previously found, at summary judgment, to infringe one claim of one asserted patent. The Court indicated that “a jury trial on remaining issues, including infringement and invalidity, has been repeatedly postponed because of the COVID-19 pandemic.” It ruled that plaintiff is not foreclosed from raising the request for an accounting or ongoing royalty again in an appropriate posture with appropriate support. (Case No. 3:17-cv-04738; March 17, 2021).

District Judge Richard G. Seeborg

CF Traverse LLC v. Amprius, Inc. – The U.S. District Court for the Northern District of California in San Francisco granted defendant’s motion for a 30-day extension for all deadlines in the parties’ Case Management Scheduling Order dated March 12, 2020, as well as all other deadlines under the Federal Rules, Civil Local Rules, or Patent Local Rules, in response to the COVID-19 pandemic. The court further ordered the parties to “submit a Status Report by April 17, 2020 to determine whether any further extension is warranted.” (Case No. 3:20-cv-00484; March 27, 2020).

Northern District of California (San Jose)

District Judge Edward J. Davila

Breathe Techs., Inc. v. New Aera, Inc., et al. – The U.S. District Court for the Northern District of California in San Jose entered the parties’ stipulation and order staying certain deadlines in the case for a period of six (6) weeks. According to the stipulation, both plaintiff and defendant Inogen “provide respiratory care products to ill patients, including oxygen concentrators and ventilators, which currently are in great demand due to the COVID-19 pandemic.” (Case No. 5:19-cv-07691; April 21, 2020).

Sunset Licensing LLC v. Azuga, Inc. – The U.S. District Court for the Northern District of California in San Jose granted-in-part and denied-in-part plaintiff’s Application for Alternative Service of Process and Extension of Time for Service of Process and Continuance of Other Deadlines.  The Court denied the request for alternative service finding the Plaintiff had not demonstrated good cause, but found that an extension of 30 days to complete service is appropriate “[g]iven the added challenges to personal service caused by the COVID-19 pandemic and related shelter-in-place orders . . . .”  (Case No. 5:20-cv-02174; June 15, 2020).

District Judge Beth Labson Freeman

Finjan, Inc. v. SonicWall, Inc. – The U.S. District Court for the Northern District of California issued an Order striking various motions that were set for hearing well after trial begins, because the Court’s Standing Order requires that Daubert hearings are scheduled at least 60 days before trial. The Court further advised the parties that the requirement of reserving a hearing at least 60 days before trial will not be altered in the event that the trial date is modified due to COVID-19 restrictions, and that the case will proceed on the current schedule through the final pretrial conference regardless of trial continuances caused by court closure.  (Case No. 5:17-cv-04467; January 22, 2021).

Southern District of California (San Diego)

District Judge Roger T. Benitez

Ameranth, Inc. v. ChowNow, Inc.The U.S. District Court for the Southern District of California in San Diego denied plaintiff’s Motion To Dismiss the Counterclaim For Lack of Subject Matter Jurisdiction. As part of its analysis regarding jurisdiction of the action in federal court, the Court found that defendant faces hypothetical threatened action by plaintiff for patent infringement, which “seems even more likely in light of [plaintiff’s’] pattern of litigation.” In particular, the Court found the threat of a lawsuit for patent infringement by plaintiff, which had been characterized as a “patent troll” and described in recent press as “seek[ing] to benefit from an increase in online ordering due to the COVID-19 pandemic”, gives rise to federal question jurisdiction over defendant’s counterclaims seeking a declaratory judgment of invalidity of the previously licensed patents and non-infringement.  (Case No. 3:20-cv-02167; August 19, 2021).

Golden Eye Media USA, Inc. v. Trolley Bags UK Ltd. et al. – The U.S. District Court for the Southern District of California in San Diego issued an Order granting the Joint Motion To Telephonically Appear At The Status Conference, allowing counsel for defendants to telephonically appear at the upcoming status conference given the COVID-19 pandemic health crisis. (Case No. 3:18-cv-02109: April 19, 2021).

Pulse Electronics, Inc. v. U.D. Electronic Corp. – The U.S. District Court for the Southern District of California in San Diego issued an Order ruling on a number of Summary Judgment and Daubert Motions pending and briefed in the case. The Court noted that the trial in the case had been scheduled for February 17, 2021, “[h]owever due to the COVID-19 pandemic, and Orders of the Chief Judge Nos. 56, 60, [the Court previously] vacated the jury trial indefinitely until one could be safely conducted.” (Case No. 3:18-cv-00373; March 15, 2021).

Magistrate Judge Allison H. Goddard

Orthopaedic Hospital d/b/a Orthopaedic Institute For Children v. DJO Global, Inc. et. al. – The U.S. District Court for the Southern District of California in San Diego granted defendants’ opposed motion to extend case deadlines by 60 days due to the COVID-19 pandemic. The Court found defendants’ requested extension to be “modest and reasonable”, particularly in light of the previous two-month continuance of the claim construction hearing from April 16, 2020 to June 11, 2020, however it agreed with plaintiff that there is “no right to prepare witnesses or take depositions in person” and “there is no evidence that circumstances will be materially different in August 2020 than in June 2020.”  While granting the extension, the Court cautioned the parties that it “will not find good cause to grant any further extensions of the case schedule based on the purported need to take depositions or prepare witnesses in person.” (Case No. 3:19-cv-00970, presiding before District Judge Janis L. Sammartino; May 28, 2020).

Magistrate Judge Linda Lopez

Golden Eye Media USA, Inc. v. Trolley Bags UK Ltd. et al– The U.S. District Court for the Southern District of California in San Diego granted plaintiff’s ex part motion to extend the pre-trial motion filing deadline -- which passed on March 27, 2020—to September 18, 2020, due to excusable neglect. Although the parties had previously agreed to “forego” the submission of summary judgment motions, the plaintiff argued that circumstances had changed since then. In particular, the plaintiff argued that “circumstances were ‘drastically altered’ by the USPTO action invalidating the sole claim of Plaintiff’s ‘912 patent and by the COVID pandemic, which ‘resulted in unanticipated circumstances’ such as the trial date being set almost six months from now.”  The Court found these reasons compelling and that “setting the trial date almost six months out from the final pretrial conference is a generous amount of time that would allow for filing and resolving motions for summary judgment prior to trial, which could lessen the issues to be litigated at trial or lead to settlement.” (Case No. 3:18-cv-02109, presiding before District Judge Roger T. Benitez; September 11, 2020).

Magistrate Judge Nita L. Stormes

Masimo Corporation v. Sotera Wireless, Inc. et al. – The U.S. District Court for the Southern District of California in San Diego granted in part defendants’ ex parte motion to modify the case management order, seeking to extend by several months most remaining dates, including pretrial and trial dates, given the delays caused by the COVID-19 pandemic. Although the Court agreed that the scheduling order will not be dictated by the effect it would have on the pending IPR proceedings, in response to an argument from defendant that a more accurate trial date is an important factor that will be consider by the PTO, it found that “the case status at this juncture does warrant a small extension.” The Court granted an approximate two-month extension on remaining dates to provide the parties with more time to conduct discovery while other issues, such as claim construction and the stay request, are determined.  (Case No. 3:19-cv-01100, presiding before District Judge Cynthia Bashant; October 6, 2020).

District of Colorado (Denver)

Magistrate Judge Michael E. Hegarty

Anza Tech., Inc. v. Mushkin, Inc. – The U.S. District Court for the District of Colorado in Denver sua sponte ordered that all hearings and conferences scheduled for the week of March 16, 2020 be conducted telephonically. (Case No. 1:17-cv-03135; March 14, 2020).

District Judge Raymond P. Moore

Rain Design, Inc. et al v. Spinido, Inc. et al. – The U.S. District Court for the District of Colorado in Denver set aside an order to show cause dealing with failure to effectuate service, in response to which the Plaintiffs’ counsel “[admitted] his failures, including due to personal issues such as concerns that he had contracted Covid-19 . . . .” Considering the fact that Plaintiffs had attempted to effect service and did so as permitted by a California court before the case was transferred, the Court decided to allow Plaintiffs one final opportunity to properly obtain service on Defendants within 60 days or move for an order of substituted service, pursuant to Fed. R. Civ. P. 4. (Case No. 1:19-cv-00349; June 8, 2020).

District of Connecticut (Bridgeport)

District Judge Stefan R. Underhill

Floodbreak, LLC v. Art Metal Industries, LLC et al.  – The U.S. District Court for the District of Connecticut in Bridgeport issued a Conference Memorandum and Order denying defendant’s motion to continue the evidentiary hearing on the application for a pre-judgment remedy. During a conference call regarding the motion to continue and the logistics of the evidentiary hearing, defense counsel and one of the defendants indicated that they wished to participate remotely in the hearing due to concerns related to the COVID-19 pandemic, arguing that the hearing should be continued to allow the defendant to demonstrate its device in person. In response, the Court stated “that the hearing will go forward as planned and assured the parties that the courthouse is safe . . . [and] if any person still wishes to attend via Zoom, they are welcome to do so.” The evidentiary hearing is set to start on December 8, 2020 at 2 p.m. (EST). The parties were instructed to provide any necessary exhibits to any remote witnesses in advance of the hearing. (Case No. 3:18-cv-00503; November 25, 2020).

District of Connecticut (New Haven)

District Judge Vanessa L. Bryant

National Products Inc. v. Scanstrut Inc. et al. – The U.S. District Court for the District of Connecticut in New Haven granted defendants’ Motion for Extension of Time. The Court agreed with the plaintiff that the defendants' choice to change counsel does not constitute good cause for an extension, however it found “that exigent circumstances caused by the COVID-19 pandemic constitute good cause for modification of the scheduling order.” On March 29, 2021, the Court issued an Order denying defendant’s motion seeking a 45-day extension of time for the deadlines for the Markman briefing as moot because briefing was complete.  The Court noted that the motion did not seek an extension of discovery and it is not a forgone conclusion that discovery cannot be completed by the August 2, 2021 deadline. The Court further indicated that “[m]oving forward, given the current state of the pandemic and the availability of vaccinations, the Court will be disinclined to grant further extensions on the blanket assertion that the pandemic is inhibiting a party’s efforts to comply with existing litigation deadlines.” (Case No. 3:19-cv-01322; April 8, 2020 and March 29, 2021).

District of Delaware (Wilmington)

District Judge Richard G. Andrews

Acadia Pharmaceuticals Inc. v. Teva Pharmaceuticals USA, Inc. et al. – The U.S. District Court for the District of Delaware in Wilmington approved a Joint Stipulation Of Dismissal Of Complaint as to one of the named defendants. It was agreed, as part of the stipulation, that if the parties agree that an employee of the removed defendant is a necessary fact witness, the witness will be made available for deposition in the United States, subject to any governmental travel restrictions due to the COVID-19 global pandemic without the need for service of a subpoena or adherence to the procedures of the Hague Convention or other methods of foreign service/discovery if outside the United States. If the parties disagree as to whether such an employee is a necessary fact witness, then the parties will present the matter for Court resolution, and if the deposition is ordered then the employee will be made available for deposition in the United States, subject to any governmental travel restrictions due to the COVID-19 pandemic, pursuant to the Court’s Order without requiring that Plaintiff adhere to the procedures of the Hague Convention or other methods of foreign service/discovery. (Case No. 1:20-cv-00986; July 24, 2020).

Dali Wireless, Inc. v. John Mezzalingua Associates, LLC d/b/a JMA Wireless – The U.S. District Court for the District of Delaware in Wilmington denied the plaintiff’s unopposed Motion To Amend Scheduling Order, requesting additional time to complete outstanding discovery which the parties indicated they acted with reasonable diligence to pursue, but was “affected by the COVID pandemic.” The Court indicated that “simply needing more time is not good cause”, and the Court’s schedule is already completely full for the foreseeable future. The Court further stated that if the parties want to consent to a Magistrate Judge to handle the rest of the proceedings, including the trial, they should file such a consent and the parties can arrange a new schedule with a new judge. (Case No. 19-cv-02367; July 22, 2021).

First Quality Tissue, LLC v. Irving Consumer Prod. Ltd, et al. – The U.S. District Court for the District of Delaware in Wilmington granted Plaintiff’s Proposed Order to Amend Scheduling Order over Defendants’ competing proposed order. While the Court acknowledged that there was need for some extensions due to COVID-19 related delays, “it seem[ed] evident to [the Court] that the main reason Defendants [sought] a longer extension [was] that new counsel has entered for Defendants.” The Court went on to state that counsels’ clients must “live with its decisions, including choice of counsel” and that “[n]ew counsel…can do what it needs to do to be ready for trial.” The Amended Scheduling Order extends the Fact Discovery deadline from August 21, 2020 to September 21, 2020. Deadlines for expert reports and dispositive motions were extended by varying amounts between one and 4 weeks. The trial date remains set for September 13, 2021. (Case No. 19-cv-00428; August 19, 2020).

GEMAK Trust v. Reckitt Benckiser LLC et al. – The U.S. District Court for the District of Delaware in Wilmington granted the defendant’s summary judgment of willful infringement since plaintiff has no evidence of willfulness, including no evidence that defendant had any awareness of the asserted patent before it expired or that its parent had any awareness either. Plaintiff requested to depose a formulation scientist witness, who has been continuously working for defendant’s sister company for the last eighteen years. The plaintiff “had wanted to depose this witness earlier, but the pandemic intervened.” The Court had entered an order permitting the deposition, reiterating that if it will be permitted if the deposition can be accomplished in the next three weeks. The Court indicated it will reconsider the ruling if the deposition provides evidence of willfulness, but it will not sever willfulness from the rest of the case. (Case No. 1:18-cv-01855; May 4, 2021).

Ingevity Corp., et al. v. BASF Corp. – In response to the parties’ dispute over whether expert depositions should go forward, and in an effort to keep the case on track for a September trial date, the U.S. District Court for the District of Delaware:

  • extended the time for expert depositions by 30 days;
  • extended deadlines for Daubert and dispositive motions; and
  • vacated deadlines for depositions and dispositive motions relating to bifurcated claims, subjecting them to a separate schedule to be set after the patent trial is held.

(Case No. 1:18-cv-01391; March 30, 2020).

Pfizer, Inc., et al. v. Apotex, Inc., et al. – On March 23, 2020, the U.S. District Court for the District of Delaware in Wilmington granted the parties’ stipulation and proposed order staying all deadlines in the case and ordering the parties to submit a joint status report on April 17, 2020. The stipulation and order states that “there have been delays in the taking of depositions due to the COVID-19 emergency and given the uncertainties that exist regarding travel, absent a stay, the parties would need to discuss with the Court revisions to the case schedule.” On March 31, 2020, the court entered an oral order stating that the pretrial conference scheduled for April 29, 2020 will be held telephonically. On April 15, 2020, the parties’ request to continue the stay was granted and the April 29th pretrial conference, as well as the bench trial scheduled for May 11, 2020 are continued to an undetermined date. On June 12, 2020, the Court approved the request to extend the stay to July 10, 2020. (Case No. 1:18-cv-00795; March 23, 2020, March 31, 2020, April 15, 2020 and June 12, 2020).

District Judge Colm F. Connolly

Labrador Diagnostics LLC v. BioFire Diagnostics, LLC et al. – The U.S. District Court for the District of Delaware entered a voluntary dismissal, without prejudice, filed by plaintiff pursuant to Federal Rule of Civil Procedure 41(a)(1)(A).  The plaintiff stated that “in view of the ongoing COVID-19 pandemic, and as requested by the defendants, [it] is dismissing the complaint to allow the defendants to focus their resources on combating the coronavirus and addressing the public health crisis . . . [and that it] continues to fully support all efforts directed to addressing the present international COVID-19 pandemic and continues to hope that more tests will be created, disseminated, and used to quickly and effectively protect our communities here and throughout the world.” (Case No. 1:20-cv-00348; June 28, 2020).

UCB, Inc. et al v. Annora Pharma Private Limited et al. – The U.S. District Court for the District of Delaware entered a Scheduling Order after having conducted an initial Rule 16(b) scheduling conference. With respect to the location of depositions, the Order indicates that the parties will negotiate in good faith regarding the location for depositions of foreign witnesses, and whether in-person depositions are feasible in light of the COVID-19 pandemic. In addition, the parties agreed to meet and confer by October 15, 2021 to reach an agreement on whether fact depositions will be conducted in-person or be conducted remotely, in view of the ongoing COVID-19 pandemic. The parties also agreed to meet and confer by May 22, 2022 to reach an agreement on whether expert depositions will be conducted in-person or be conducted remotely, in view of the COVID-19 pandemic. The 5 day bench trial is currently scheduled to start on November 14, 2022. (Case No. 1:20-cv-00987; July 7, 2020).

Magistrate Judge Jennifer L. Hall

Wildcat Licensing WI LLC v. Bayerische Motoren Werke AG et al. – The U.S. District Court for the District of Delaware in Wilmington granted the defendants’ Motion to Stay and entered the revised proposed Scheduling Order pursuant to the District of Delaware Revised Standing Order In Re: Court Operations Under the Exigent Circumstances Created By COVID-19, ¶ 3 (Apr. 17, 2020), providing that "[j]udicial officers may apply the principles of flexibility and accommodation to reasonable requests for filing or scheduling adjustments necessitated by reasonable and fact-based travel, health, or safety concerns, or advice or directives of public health officials." The Court found that “the defendants have proffered ‘reasonable and fact based concerns’ in support of their request for a stay, and they propose ‘reasonable’ extensions that will not affect the claim construction hearing or trial dates.” The defendants argued, among other things, that a stay was warranted due to the extraordinary pressures and difficulties faced in the current COVID-19 crisis, including the fact that some defendants “paused their production and manufacturing and [] shifted their operations to help address the crisis . . . [and others] have shut down their legal departments and furloughed thousands of workers.” (Case No. 1:19-cv-00834, presiding before District Judge Maryellen Noreika; May 14, 2020).

Chief District Judge Leonard P. Stark

American Axle & Manufacturing, Inc. v. Neapco Holdings LLC et al. - The U.S. District Court for the District of Delaware in Wilmington granted in part plaintiff’s Motion To Stay Pending Filing and Disposition of Petition for Writ of Certiorari, granting a stay of the proceedings until the Supreme Court issues a decision granting or denying the petition.  As part of its analysis of the relevant factors, including whether discovery is complete and a trial date has been set, the Court acknowledged that discovery is complete, but noted that no trial date has been set and “the combination of potential further appellate review and the ongoing impact of the coronavirus pandemic would render it imprudent to set a trial date at this time.”  (Case No. 1:15-cv-01168; February 17, 2021).

Princeton Digital Image Corp. v. Office Depot, Inc. – On March 18, 2020, the U.S. District Court for the District of Delaware in Wilmington ordered the parties to submit a joint status report by March 24, 2020 proposing how the case should proceed in light of the March 18th Standing Order Regarding Court Operations Under the Exigent Circumstances Created by COVID-19. Specifically, the parties are to advise the court:

  • whether they intend to proceed with the scheduled upcoming teleconference or plan to seek a continuance or modification; and
  • if they intend to rely on a demonstrative or cite to other material, when in advance of the proceeding they propose to submit electronic versions of such materials to the court.

On April 6, 2020, the court entered an oral order, “[h]aving received an email communication from counsel for PDIC and Adobe,” cancelling all dates, deadlines, and upcoming court proceedings, including the April 7, 2020 motions hearing. The court further ordered that the parties shall provide a joint status report no later than April 27, 2020. (Case No. 1:13-cv-00239; March 19, 2020 & April 6, 2020).

SZ DJI Technology Co., Ltd. et. al. v. Autel Robotics USA LLC et. al. – The U.S. District Court for the District of Delaware in Wilmington, based on reviewing the parties' joint status report and proposed stipulation, ordered the parties to file a joint claim construction brief on June 26, 2020, adopted the parties' agreed-upon nature and timing of additional expert discovery, and ruled that the trial will be phased -- with liability to be decided in the first phase, and if necessary, damages and willfulness to be decided in the second phase, by the same jury.  The Court further indicated that it expects the parties to “remain in full and cooperative contact with one another, and the Court,” as all progressed towards “a hoped-for jury trial” set to begin on September 14, 2020. The parties were also instructed to file a joint status report on June 26, 2020 and to “let the Court know at any point if they believe the ongoing challenges and restrictions imposed as a result of the coronavirus pandemic will make it impossible to proceed with trial as scheduled.” After reviewing the parties' June 26 joint status report, the Court ordered the parties to meet and confer and submit a further joint status report, addressing “the following: (i) whether any party believes it has a right to a jury trial and, if so, whether it is willing to waive that right in order to permit [the] case to be tried on or around its current schedule; and (ii) regardless of whether [the] case is tried as a bench or jury trial, whether there is any objection to the trial proceeding remotely or ‘partial−remotely,’ such that only a limited number of lawyers and witnesses would be present in the courtroom while the remainder participate by video technology.” The Court further indicated that “if the case proceeds as a bench trial, the Court fully expects to be able to conduct it on or around the currently−scheduled dates (September 14−24) and will demonstrate maximum flexibility to accommodate witnesses testifying remotely (even those confronting 12−hour time differences).” After reviewing the further joint status report, the Court ordered the parties to submit simultaneous letter briefs addressing: “(i) whether, notwithstanding [defendant’s] belief that it has a jury right on Counts I-IV of [plaintiff's] complaint and all pending counts in [defendant's] Second Amended Counterclaims, [defendant] truly does have such a right and (if so) if it is a right the Court can and should balance against other interests and convert the scheduled September trial to a bench trial (which would likely be a remote bench trial); (ii) whether there is any way (and, if so, how) to obtain the testimony of the fact witnesses residing in China by having them travel to Hong Kong and testify remotely from Hong Kong; and (iii) if the Court were, instead, to reschedule the September trial to a date to be determined in 2021, whether there are steps the Court and/or [defendant] could take to ameliorate the prejudice to [plaintiff] from that further delay.” After further communication with the parties regarding “appropriate next steps”, the Court vacated the trial date of September 14, 2020 and all pretrial dates and deadlines, including the pretrial order deadlines and the date of the pretrial conference, indicating that the trial will be rescheduled for a date to be determined. (Case No. 1:16-cv-00706; May 8, 2020, June 30, 2020, July 6, 2020 and July 15, 2020).

Middle District of Florida (Orlando)

District Judge Paul G. Byron

ParkerVision, Inc. v. Qualcomm Inc., et. al. – The U.S. District Court for the Middle District of Florida in Orlando modified the Case Management Scheduling Order, based on the parties’ proposed Fifth Amended Scheduling Order and representation that they are equipped to proceed with discovery, with “some reservations” due to the COVID-19 pandemic. In an August 10, 2020 Order, the Court scheduled a hearing on a Motion To Compel for August 25, 2020 at 10:00 a.m., indicating that hearing will be conducted remotely using web-based Zoom application due to the ongoing COVID-19 pandemic. (Case No. 6:14-cv-00687; June 3, 2020 and August 10, 2020).

Middle District of Florida (Tampa)

District Judge Virginia M. Hernandez Covington

Delta T, LLC v. Dan's Fan City, Inc. – The U.S. District Court for the Middle District of Florida in Tampa granted in part plaintiff’s unopposed motion for a 90-day continuance. While the court “understands the challenges presented by the COVID-19 pandemic,” it did not find a 90-day continuance was warranted, noting that the case had been pending for “well over a year” with more than three (3) months left for factual discovery. “Nevertheless, out of an abundance of fairness,” the court granted a 60-day extension of the case management and scheduling order and further indicated that it will be “disinclined to grant any further extensions.” On April 7, 2021, the Court granted the parties Joint Stipulation And Motion To Allow For Zoom Conference, ordering that the scheduled meeting may be held by video Zoom, “[i]n view of COVID concerns and multistate travel, [and] the parties . . . [request] to allow a Zoom conference between counsel instead.” (Case No. 8:19-cv-01731; April 9, 2020 and April 7, 2021).

District Judge Mary S. Scriven

Wave Linx, LLC v. Outreach Corp. – The U.S. District Court for the Middle District of Florida in Tampa sua sponte continued all criminal and civil jury trials and hearings in any cases assigned to Judge Scriven scheduled to begin or occur before May 29, 2020 pending further order, and stayed all civil cases assigned to Judge Scriven and all associated deadlines until May 29, 2020. The court will continue to resolve fully briefed motions ripe for resolution. (Case No. 8:19-cv-03144; March 19, 2020).

Southern District of Florida (Miami)

District Judge Federico A. Moreno

Symbology Innovations, LLC v. Celebrity Cruises Inc. – The U.S. District Court for the Southern District of Florida in Miami sua sponte dismissed the case, without prejudice, for failure to serve the summons and the complaint in compliance with Federal Rule of Civil Procedure 4(m). In responding to an Order to Show Cause why the complaint in the case had not been served in a timely manner, the plaintiff in part responded “that it attempted but failed to personally serve Defendant on April 29, 2020 because the office of Defendant’s registered agent was closed due to the COVID-19 pandemic.” (Case No. 1:20-cv-21652; July 21, 2020).

District Judge Robert N. Scola, Jr.

Global Life Technologies Corp. v. Medline Industries, Inc. The U.S. District Court for the Southern District of Florida in Miami denied the parties’ agreed motion for a 21-day extension of time for the defendant to respond to the complaint.  The Court noted that “the parties have filed multiple motions for extensions of time based on the COVID-19 pandemic, settlement negotiations, or a combination of both . . . [and the] latest motion would give the Defendants six-and-a-half months to respond to the complaint.” It also indicated that the motion failed to “explain why over six months of extra time is necessary to negotiate a settlement or alleviate the disruptions caused by the pandemic.” (Case No. 1:20-cv-21240; September 25, 2020).

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