For those patent cases that were on the eve of trial, or at least relatively close, the COVID-19 pandemic will likely represent a delay—either of a defined or undefined length—as reflected by some of the orders issued in those matters.
Central District of California (Southern Division—Santa Ana)
District Judge Josephine L. Staton
Sportspower Ltd., Inc. v. Crowntec Fitness Mfg. Ltd. – The U.S. District Court for the Central District of California’s Southern Division in Santa Ana sua sponte continued the pretrial hearing and deadlines for motions in limine from April 3, 2020 to August 7, 2020. 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. 8:17-cv-02032; March 30, 2020).
Northern District of California (San Francisco)
District Judge Richard Seeborg
Gamevice, Inc. v. Nintendo Co., Ltd. et. al. – The U.S. District Court for the Northern District of California in San Francisco granted plaintiff’s Motion and Order to Extend Schedule in View of COVID-19 Travel Restrictions, requesting an approximately three month extension in view of the difficulties in domestic and international travel due to COVID-19 pandemic travel restrictions. The jury trial date, currently scheduled for July 6, 2020, was moved to October 26, 2020. The Final Pretrial Conference will be held on September 23, 2020. In an August 3, 2020 Notice Vacating Pretrial Conference And Jury Trial And Setting Further Case Management Conference, the pretrial conference and jury trial were vacated and the Court scheduled a Case Management Conference for September 3, 2020 at 10:00 AM to be held telephonically. (Case No. 3:18-cv-01942; May 19, 2020 and August 3, 2020).
Northern District of California (San Jose)
District Judge Beth Labson Freeman
Amazon.com, Inc., et al. v. PersonalWeb Techs., LLC, et al. – The U.S. District Court for the Northern District of California in San Jose granted the parties’ stipulation and order extending by two-days plaintiff’s deadline for filing its motion for attorney’s fees, due to COVID-19 and the shelter-in-place orders in San Francisco. (Case No. 5:18-cv-00767; March 19, 2020).
Amazon.com, Inc., et al. v. PersonalWeb Techs., LLC, et al. – The U.S. District Court for the Northern District of California in San Jose denied plaintiffs’ motion to stay a determination of attorney fees and costs pending appeal and rejected plaintiffs’ argument that public policy favored a stay due to the coronavirus outbreak. In analyzing the four factors to determine whether to stay awarding attorneys’ fees and costs pending appeal, the court found that plaintiffs had “made no showing that the public interest would be served by a stay -- only that the court’s ‘potentially reduced resources’ due to COVID-19 health concerns supports a stay.” The court acknowledged that COVID-19 has certainly impacted the courts’ operations across the country, however, it went on to say that “this Court continues to resolve substantive motions.” The court was not persuaded that any of the issues presented warranted a deviation from the court’s usual course of considering attorneys’ fees promptly after the merits decision rather than waiting for resolution of the appeal. (Case No. 5:18-cv-00767; April 20, 2020).
Finjan Inc. v. Cisco Systems Inc., – The U.S. District Court for the Northern District of California in San Jose issued Civil Minutes for the pretrial conference held via Zoom Webinar on April 30, 2020, in which the Court indicated that Jury Selection and the Trial have been set to start on June 22, 2020 at 9:00 a.m. At this time, the Court intends to seat a jury of 8 (subject to change) chosen from a panel of 50. The Court held a Case Management Conference on May 26, 2020, during which it reset the Jury trial date to October 19, 2020. (Case No. 5:17-cv-00072; April 30, 2020, May 21, 2020 & May 22, 2020 and May 26, 2020).
Southern District of California (San Diego)
District Judge Cathy Ann Bencivengo
Finjan, Inc. v. ESET, LLC, et al. – “Based upon the current state of extraordinary circumstances due to the Coronavirus/COVID-19 Pandemic,” the U.S. District Court for the Southern District of California in San Diego declared a mistrial, with the agreement of counsel, after suspending the jury trial proceedings and excusing the jury for the day. (Case No. 3:17-cv-00183; March 16, 2020).
District Judge Janis L. Sammartino
Genentech, Inc. v. Eli Lilly and Co. – The U.S. District Court for the Southern District of California in San Diego, finding good cause, granted the parties’ joint motion to bifurcate the “exceptional case” determination under 35 U.S.C. § 285 and attorney fees motion under Rule 54(d)(2), allowing the court to decide the exceptionality before defendant presents evidence on the amount of its reasonable attorney fees. The parties’ request is in response to stay-at-home orders issued throughout the country in response to the COVID-19 pandemic, which has made it “difficult for the defendant to collect and timely organize their billing information necessary to meet their burden to prove reasonableness of attorney fees.” (Case No. 3:18-cv-01518; March 31, 2020).
District of Delaware (Wilmington)
District Judge Richard G. Andrews
Baxalta Incorporated et al v. Bayer Healthcare LLC – The U.S. District Court for the District of Delaware in Wilmington issued a Scheduling Order in which it continued the trial due to the COVID-19 pandemic, stating that it “really doubt[ed] that a jury trial is feasible on September 21st under the circumstances.” The Court felt a jury could be selected, however, “realistically . . . it would be a lot better to have a test jury trial where the practical difficulties of the trial are not exacerbated by having nearly every significant participant in the trial being from out-of-state.” Although it doubted that the parties would consent to a bench trial, the Court did note that such a trial would be possible to proceed as currently scheduled. The Court also expressed “concern that six months (and counting) of postponed trials is going to be a problem going forward” and that the “parties should expect to be double- or triple-booked for trial . . . [and] that they may not know until the eve of trial whether their trial will move forward.” In an Order After Conference, the Court reset the jury trial date for March 15, 2021. (Case No. 1:17-cv-01316; August 12, 2020 and August 31, 2020).
ChanBond LLC vs. Cox Communications Inc. – The U.S. District Court for the District of Delaware in Wilmington issued an Order After Pretrial Conference adopting the Proposed Pretrial Order and indicating that the jury trial will begin on August 18, 2020 at 9:30 a.m. (EDT). The Court stated that “[t]he question of the viability of a civil jury trial a month and a half from now, complicated in this case by a multitude of witnesses being located within the United States but distant from Delaware, and the procedures that would be necessary should we be able to go forward, were left for another day.” In a July 15, 2020 Oral Order, the Court postponed the jury trial. (Case No. 1:15-cv-00842; July 2, 2020 and July 15, 2020).
Horizon Medicines LLC v. Alkem Laboratories Ltd. – The U.S. District Court for the District of Delaware in Wilmington issued an Order rejecting a proposal to delay the bench trial, currently scheduled to proceed on September 14-16, 2020, until early 2021 so “that all witnesses attend the trial and testify in person.” The Court stated that it expects to go forward with the trial as scheduled, because the thirty-month stay will expire on November 30, 2020, and the defendant “may be in a position vis-à-vis the FDA’s requirements to launch then or soon thereafter.” As such it is in “the public interest” that the case be decided before then so that if not enjoined the defendant “has the option to launch and to provide generic competition.” With respect to the witnesses “unable or unwilling to testify in person”, the Court indicated that they may testify by video. The Court further noted that its expects “to have a limited number of lawyers, probably two per side, actually present in the courtroom . . . [that masking] and social distancing will be enforced . . . [and any] other persons (party representatives, other lawyers, support staff, the public) will not be in the courtroom, but will be able to watch the proceedings via video feed in another room or courtroom.” In an Order After Pretrial Conference, the Court indicated that the bench trial will begin on September 14, 2020 at 8:30 a.m. (EDT). The Court also indicated that trial counsel shall be “limited to two attorneys per side, with no substitutions.” (Case No. 1:18-cv-01014; July 29, 2020 and August 31, 2020).
Ingevity Corp., et al. v. BASF Corp. – The U.S. District Court for the District of Delaware in Wilmington granted the plaintiff’s request for a continuance of the jury trial, due to issues related to the COVID-19 pandemic, finding “there is little chance for a successful jury trial on September 14th, and I think it is prudent to continue it now.” The Court noted that “this is a jury trial, not a bench trial, and, while I believe that most bench trials should be able to be fairly conducted through partial or complete reliance upon video technology, a jury trial is a different animal.” The Court did not, however, continue the August 28, 2020 pretrial conference, indicating in a separate oral order, that it will be held using Skype for business. In an Order After Pretrial Conference, the Court indicated that the jury trial will begin on January 4, 2021 at 9:30 a.m. (EST). The Court indicated that under the present plans trial counsel would be limited to two per side and noted that during the conference it had “explained some of its expectations in relation to COVID-19, and also set a conference on December 14, 2020, at 10 a.m. to further refine them in light of then-current events.” (Case No. 1:18-cv-01391; August 3, 2020 and August 28, 2020).
Pfizer, Inc., et al. v. Apotex, Inc., et al. – On April 15, 2020, the parties’ request to continue a previously issued stay was granted and the April 29th pretrial conference, as well as the bench trial scheduled for May 11, 2020 was continued to an undetermined date. (Case No. 1:18-cv-00795; April 15, 2020).
Sprint Communications Company L.P. v. Charter Communications, Inc. et al. – The U.S. District Court for the District of Delaware in Wilmington granted the defendants’ request for a continuance of the jury trial currently scheduled to begin on October 5, 2020, due to issues related to the COVID-19 pandemic, stating that the Court did not think “it prudent to make the first civil jury trial in Delaware be one in which the risk from the nature of the case – no one from Delaware but me, court staff, and the jury – is at the maximum, particularly when there is essentially no harm from delay.” The defendants had argued, among other things, that many of the counsel and witnesses would need to travel to Delaware from other states and that “given the size of [the] case and the number of counsel involved, a trial that limits Defendants to 4-6 people in the courtroom would be unduly prejudicial . . . with 8 or more counsel anticipated to handle aspects of the trial.” In the Order, the Court indicated that if the trial were held on October 5th it would only allow 2 attorneys per side in the Courtroom, further stating that it “may insist on this practice for some time.” (Case No. 1:17-cv-01734; September 2, 2020).
TQ Delta LLC v. ADTRAN Inc. – The U.S. District Court for the District of Delaware in Wilmington issued an Oral Order directing the parties to advise the Court of their views regarding the “feasibility” of the scheduled jury trial currently set to begin on August 31, 2020. In particular, the parties were requested “to state which witnesses they intend to call live, to identify the states in which the witnesses live and their views on travel to Delaware then, and to identify any other currently known concerns about the scheduled trial.” The Court granted defendant’s Motion to Strike Reply Expert Opinions Based on the Doctrine of Equivalents, in part because it found that “the COVID-19 pandemic has already disrupted plans for an ‘orderly and efficient trial,’ [and] re-opening discovery to give Defendant an opportunity to cure the prejudice would only disrupt the schedule further.” In a separate Oral Order, the Court indicated that the pretrial conference scheduled for August 21, 2020, will be held using Skype for business. On August 4, 2020, the Court granted defendant’s request for a continuance of the trial, with the Court finding that various “factors” made it believe that this case is not a “particularly good case with which to conduct a jury experiment during a pandemic.” Counsel and many of the witnesses would be coming from out of state, including two defendant fact witnesses and an expert witness, who is in a “high-risk category”, that do not want to travel to Delaware for the trial as scheduled. The Court also noted that Delaware is still in Phase One of reopening and by standing order has postponed all jury trials through August 30, 2020; it did “not think it is prudent to maintain a schedule for a jury trial for the first day on which it is currently possible to hold such a trial.” (Case No. 1:14-cv-00954; July 28, 2020, July 31, 2020, August 3, 2020 and August 4, 2020).
District Judge William C. Bryson
TC Technology LLC v. Sprint Corporation et al. – The U.S. District Court for the District of Delaware in Wilmington denied the defendants’ motion to postpone the jury trial, scheduled to start on August 24, 2020, which sought a continuance of at least three months due to the COVID-19 pandemic. The Court noted that although the District of Delaware has removed all trials from the calendar for the month of July, no action has yet been taken as to trials scheduled for August 2020. The Court indicated it will issue a further order with regard to whether the trial in this case will go forward as scheduled or will be postponed after the District of Delaware makes a decision regarding trials scheduled to be held in August. The Court ordered that the jury trial be rescheduled, pursuant to the District of Delaware’s July 17, 2020 Revised Standing Order Re: Criminal And Civil Jury Selections And Jury Trials, continuing all civil and criminal jury selections and jury trials in the District scheduled to begin before August 31, 2020. The Court directed the parties to meet and confer in order to seek agreement as to a new trial date, further indicating that it will not be able to conduct a jury trial prior to March 2021. The Court converted the July 31, 2020 pretrial conference to a telephonic status conference, as requested by the parties, to be held at 10 a.m. (EDT). It further indicated that the pretrial conference will be rescheduled at a later date. On August 24, 2020, the Court reset the jury trial to begin on May 10, 2021. (Case No. 1:16-cv-00153; June 30, 2020, July 17, 2020, July 24, 2020 and August 24, 2020).
District Judge Mitchell S. Goldberg
Shire ViroPharma Inc. v. CSL Behring LLC – The U.S. District Court for the District of Delaware in Wilmington ordered the parties to submit by June 9, 2020 “a letter of no more than two pages setting forth their clients’ positions on conducting a bench trial in this matter”; and in a further Order, required the parties to submit by June 15, 2020 “a letter of no more than three (3) pages setting forth their respective positions, with any relevant authority, as to whether a bench trial can and should proceed on the issues of invalidity and/or inequitable conduct.” In an effort to move the “otherwise trial-ready case forward”, the Court sought the parties’ input regarding how to proceed, noting that the COVID-19 pandemic has “currently rendered the scheduling of jury trials difficult if not impossible.” Plaintiff declined to waive its right to a jury trial, in response to the suggestion that the parties consider proceeding with a bench trial on all claims, however it “agreed that the inequitable conduct claim could be resolved via a bench trial, but pressed that (a) it is entitled to a jury trial on Defendants’ counterclaim of invalidity, and (b) any bench trial on inequitable conduct should not proceed until after the jury trial on infringement and invalidity.” The Court agreed that with respect to defendant’s invalidity counterclaims, plaintiff is entitled as a matter of right to a jury trial, therefore it “must try both Plaintiff’s infringement claim and Defendants’ invalidity counterclaim before a jury, and in light of the current limitation on jury trials, the question still remains as to whether a bench trial can proceed solely on Defendants’ counterclaim for inequitable conduct prior to the jury trial on infringement/invalidity.” The Court further ruled that it must “determine whether there are ‘common factual issues’ between Defendant’s counterclaim for invalidity and Defendant’s counterclaim for inequitable conduct, such that a bifurcated bench trial on inequitable conduct prior to a jury trial on infringement/invalidity would violate Plaintiff’s Seventh Amendment rights.” Lacking sufficient information to make this determination of whether or not “common factual issues” exist, the Court directed the parties to submit letter briefs specifying the facts they intend to introduce regarding the invalidity and inequitable conduct counterclaims. (Case No. 1:17-cv-00414; June 4, 2020, June 11, 2020 and July 29, 2020).
District Judge Maryellen Noreika
TRUSTID, Inc. v. Next Caller Inc. – The U.S. District Court for the District of Delaware in Wilmington ordered the parties to submit a letter by June 30, 2020, stating either that all parties agree to go forward with the pretrial conference on July 6, 2020 live in the Courthouse or that all parties do not so agree to proceed live. The Court indicated it was “cognizant that traveling from other parts of the country or appearing live in court may present obstacles for counsel, [and therefore] the conference will take place live in court only if 1) all parties agree and 2) all attendees wear face coverings unless excused because social distancing is observed.” If all parties do not agree to an in-person proceeding, the pretrial conference will take place telephonically or at a later date when it can be held in-person. The Court further advised the parties that “[i]f the hearing proceeds in the courtroom, each side may have no more than two (2) counsel present, only one of whom may sit at counsel table at any given time [and arguments] will be made from counsel table.” The jury trial is currently set to begin on December 14, 2020. In a July 2, 2020 Order, the Court postponed the pretrial conference to a date to be determined. (Case No. 1:18-cv-00172; June 29, 2020 and July 2, 2020).
Chief District Judge Leonard P. Stark
A. O. Smith Corporation v. Bradford White Corporation – The U.S. District Court for the District of Delaware in Wilmington issued an Oral Order, after reviewing the parties' Joint Status Report, indicating that the Court “is not currently able to accommodate the parties' request to move the bench trial from July 21 to the week of September 21 or October. Due to other trials on the Court's calendar, the options currently available are: (i) July 21-31; (ii) August 14-24; or (iii) September 23-25 (full days) followed by late afternoon/evening sessions from September 29 until the conclusion of trial.” The Court further indicated that it is “giving serious consideration to ordering [the] trial to be a remote trial, whenever it occurs” and ordered the parties to meet and confer and submit another joint status report indicating their positions on how the case should now proceed. After reviewing the further status report and balancing “the parties' preferences, the interests of public safety, and the Court's calendar”, the Court ordered “that: (i) the bench trial will be a remote trial, such that all attorneys and all witnesses will appear by way of videoconferencing technology and only Court staff will be in the courtroom; (ii) trial will be held on some or all of the following days, subject to the parties' time limits: August 14, 17, 18, 19, 20, and 21; (iii) the proposed pretrial order is due on July 27; and (iv) the pretrial conference will be held (via video conference) on August 5 at 4:30 p.m.” On August 4, 2020, the Court issued a Memorandum Order dealing with a number of issues relating to the bench trial scheduled to begin on August 14, 2020, ruling on a number of MIL’s and directing the parties to be prepared at the pretrial conference to discuss “modifications of the Court’s standard procedures (regarding, e.g., provision of copies of exhibits to opposing counsel, adverse witnesses, and the Court) given that this trial will be conducted entirely remotely.” On August 20, 2020, the Court docketed a Minute Entry marking the conclusion of the bench trial held before Chief Judge Leonard P. Stark from August 14, 2020 through August 20, 2020. (Case No. 1:18-cv-00412; June 24, 2020, June 30, 2020, August 4, 2020 and August 20, 2020).
Cirba, Inc. d/b/a Densify, et al. v. VMware, Inc. – The U.S. District Court for the District of Delaware in Wilmington granted in part defendant’s request to modify the post-trial briefing schedule, ordering that all post-trial opposition briefs are due April 3, 2020. The court recognized that “further discovery may be necessary after briefing has concluded and/or following argument on the motions” but “disagree[d] that such discovery should occur before briefing can proceed. However, considering challenges and concerns relating to COVID-19, a slight modification to the schedule is appropriate.” (Case No. 1:19-cv-00742; March 27, 2020).
Guardant Health, Inc. v. Foundation Medicine, Inc. – On April 23, 2020, the U.S. District Court for the District of Delaware in Wilmington granted the defendant's motion to continue a trial scheduled to begin on June 8, 2020, due to the viral outbreak until either July or October 2020. In doing so, the court expressed its primary concern as to “whether it will be safe and consistent with the public interest to conduct jury selection (a process likely to involve more than 40 citizens and an approximately equal number of court staff, lawyers, and party representatives) and empanel a jury (which would then, in normal practice, consist of 8 jurors confined to a jury box and a jury room during working hours for at least a week).” The court also noted a further secondary concern, irrespective of whether it is possible to select and empanel a jury by June 8th, as to whether “it will be safe and prudent for counsel and all required witnesses and party representatives to travel from their homes at various locations around the country and spend a week or more together (in hotels or temporary residences, in restaurants, in the courtroom, etc.) in Delaware.” Given the trial is only about six weeks away, the court felt that since it “seems nearly certain that one or more” of the trial team members or an expected live witness is part of a vulnerable population, or has commitments to others who need special care under the current circumstances that takes “precedence over the Court’s strong interest in keeping its cases moving and conducting trials in a timely manner[.]” (Case No. 1:17-cv-01616; April 23, 2020).
H. Lundbeck A/S et al v. Apotex Inc. et al. – The U.S. District Court for the District of Delaware in Wilmington issued an Oral Order ruling on a number of motions and indicating that a scheduled teleconference would “be devoted to beginning a conversation about the timing and logistics of the remaining expert discovery and trial, all of which have been complicated by the ongoing effects of the coronavirus pandemic.” In preparation the Court advised the parties that due to the pandemic, it had to reschedule five jury trials (including a high-priority detained defendant criminal trial) into the same slot (October 13-23) currently scheduled for the case and that the next open calendar slot during which the Court could “give five or more largely consecutive, largely uninterrupted trial days is not until 2021.” The Court also indicated that it is considering the possibility of conducting the trial remotely, with no attorneys or witnesses in the courtroom, or partially-remotely, with a small number of lawyers and some of the witnesses in the courtroom but most participants appearing remotely, and to conducting it "after-hours" and on non-consecutive days, in an effort to hold the trial in a safe manner sometime during 2020. In a July 6, 2020 Order, the Court rescheduled the bench trial indicating that it “will be held on some or all of the following dates, subject to the parties' time limits: January 4-8 and January 26-29, 2021.” The pretrial conference will be held on December 22, 2020 at 4:00 p.m. (Case No. 1:18-cv-00088; June 25, 2020 and July 6, 2020).
Pacific Biosciences of California, Inc. v. Oxford Nanopore Technologies Inc. – The U.S. District Court for the District of Delaware in Wilmington denied, among other rulings, plaintiff’s motion for a new trial due to defendant’s COVID-related comments made during the opening and at other times throughout the jury trial. The Court found that the plaintiff failed to show that the statements were so prejudicial as to affect the fairness of the trial to cause manifest injustice, plaintiff did not meet its burden to show that the statements probably influenced the jury’s verdict, and that the “curative instructions fully cured the unfair prejudice to [plaintiff] from the violation of the MIL order from defendants’ opening statement.” The Court also pointed to the fact the verdict was mixed and “the verdict simply gives no indication that the jury was inflamed by nor influenced by defendants’ MIL violation.” (Case No. 1:17-cv-00275; August 13, 2020).
Sunoco Partners Marketing & Terminals LP v. Powder Springs Logistics, LLC et al. – The U.S. District Court for the District of Delaware in Wilmington sua sponte ordered the parties to submit a joint status report whether the trial, scheduled to begin on July 20, 2020, could proceed in light of the COVID-19 pandemic. In particular, the parties were directed to meet and confer and submit a joint status report, “advising the Court of their views on, among other things: (i) whether they believe trial can and should proceed on July 20; (ii) whether they believe they have a right to a jury trial and, if so, whether they are willing to waive that right in favor of a bench trial; and (iii) whether, if the trial proceeds on July 20, any witnesses might request to appear by video or other remote technology rather than travel to the courtroom.” The Court will hold a status teleconference on July 15 at 11 a.m. (EDT). The trial is scheduled to begin on August 3, 2020 and the pretrial conference is scheduled for July 27, 2020 at 2 p.m. (EDT). After giving “due consideration to the parties’ input and preferences, as well as the physical and staff limitations of the courtroom and courthouse, and mindful of its utmost duty to take all reasonable precautions to protect the health and safety of the citizens who will be called as jurors, the Court  decided to impose the type of restrictions on in-court participation it was contemplating in its questions to the parties.” In particular, the August jury trial will be conducted with no live witnesses testifying in the courtroom, limitations on the representatives in the courtroom for the parties, a simulcast videp feed into another room in the courthouse providing access to interested members of the public and press and other trial members who are not using one of the allotted courtroom slots, and any other special arrangements needed to be made with the Court’s staff to allow the trial to take place partially-remotely, including taking all “necessary steps to eliminate paper exhibits (i.e., absent compelling reason, all exhibits shall be displayed to witnesses and the jury electronically.)” The Court further indicated that it was “working with a District-wide committee to develop protocols for jury selection and for allowing the jury, Court staff, and counsel to interact safely in the courtroom.” It will be providing “further guidance in the coming weeks” how the trial “will differ from the pre-pandemic trials”; for example, “how voir dire will be conducted, where the jury will be seated, where the jury will go during breaks and deliberations, where counsel tables will be placed, how to ensure that exhibits needed for cross-examination are kept secure until needed, whether counsel will be permitted to be present in the same room with witnesses who are being examined remotely, face covering and any other PPE requirements for those  in the courtroom.” Following a July 13, 2020 teleconference, the jury trial scheduled to begin on August 3, 2020 was continued. In a July 17, 2020 Order, the Court directed the parties to meet and confer and submit a joint status report providing their views about when the trial should be set for trial. In addition, the pretrial conference scheduled for July 27, 2020 at 2:00 p.m. (EDT) was converted to a teleconference. On August 20, 2020, the Court entered an Oral Order after “[h]aving reviewed the parties' August 14, 2020 joint status report (D.I. 604), and having considered the parties' positions as well as the ongoing uncertainty regarding resumption of civil jury trials and the uncertainty of the Court's schedule,” ordering the parties to “meet and confer and, on September 4, submit another joint status report, providing their updated positions as to how this case should now proceed.” (Case No. 1:17-cv-01390; June 9, 2020, June 24, 2020, July 2, 2020, July 13, 2020, July 17, 2020, and August 20, 2020).
Middle District of Florida (Tampa)
District Judge Thomas P. Barber
Pierce Mfg., Inc., et al. v. E-One, Inc., et al. – The U.S. District Court for the Middle District of Florida in Tampa issued a notice to the parties in cases presiding before Judge Thomas P. Barber regarding jury trials. The notice states that “Judge Barber is interested in attempting short, ‘in person’ civil jury trials (no more than two days including jury selection) in late September/October. Such cases may be reset for trial during this period, regardless of any previously set trial dates, as long as ALL participants, including witnesses, are comfortable proceeding “in person.” If you believe you have a case that meets these parameters and would like to discuss the possibility of proceeding to trial in late September/October, please contact Courtroom Deputy Sonya Cohn by email (firstname.lastname@example.org) no later than AUGUST 31, 2020. Judge Barber will then set a Status Conference, most likely by ZOOM, to further discuss the case. If, during the Status Conference, all participants agree the case is ready and appropriate for a jury trial, the trial will take place on a “date certain” that is mutually agreed upon by the parties and the Court.” The notice goes on to say that “[c]ounsel are encouraged to take advantage of this opportunity. Once jury trials resume, it is anticipated that criminal cases will consume most, if not all, available trial time for several months.” The jury trial was set to begin on January 25, 2020 and the Status Conference was set for December 9, 2020 at 01:30 PM via Zoom. (Case No. 8:18-cv-00617; August 20, 2020 and September 3, 2020).
Senior District Judge James S. Moody, Jr.
Pierce Mfg., Inc., et. al. v. E-One, Inc., et. al. – The U.S. District Court for the Middle District of Florida in Tampa ordered, over plaintiffs’ objections, that the November 5, 2018 preliminary injunction be modified to allow defendant E-One, Inc. to sell its Metro 100 single rear axle quint during the pendency of any delay caused by the COVID-19 pandemic, and further ordered the terms governing the interim sales and the amount of damages, if applicable, that will be awarded for those interim sales. (Case No. 8:18-cv-00617, transferred on June 8, 2020 to District Judge Thomas P. Barber; April 8, 2020).
Northern District of Georgia (Atlanta)
District Judge Timothy C. Batten, Sr.
Acceleron, LLC v. Dell, Inc. – The U.S. District Court for the Northern District of Georgia in Atlanta continued the trial scheduled to begin on June 1, 2020 to August 1, 2020, due to COVID-19. The Court held a teleconference on June 9, 2020 with the parties to discuss the upcoming August jury trial and COVID-19 pandemic guidelines. The parties were directed to inform the Court by June 12th whether they would agree to have a bench trial. If a bench trial is not a possibility, the Court indicated that the jury trial will be continued to October 19-30th, with all other deadlines remaining the same. The jury trial was reset for February 1, 2021 at 9:30 a.m. (EDT). (Case No. 1:12-cv-04123; May 4, 2020, June 9, 2020 and June 18, 2020).
Chief District Judge Thomas W. Thrash, Jr.
Acceleron, LLC v. Dell, Inc. – The U.S. District Court for the Northern District of Georgia in Atlanta sua sponte amended General Order 20-01 regarding Court Operations Under the Exigent Circumstances Created by COVID-19 and Related Coronavirus dated March 20, 2020, extending the court’s original 30-day continuance for all jury trials and any trial specific deadlines through and including May 15, 2020. (Case No. 1:12-cv-04123, presiding before District Judge Timothy C. Batten, Sr.; April 1, 2020).
Intellectual Sporting Goods, LLC v. StarPro Greens, Inc. – The U.S. District Court for the Northern District of Georgia in Atlanta sua sponte amended General Order 20-01 regarding Court Operations Under the Exigent Circumstances Created by COVID-19 and Related Coronavirus dated March 20, 2020, extending the court’s original 30-day continuance for all jury trials and any trial specific deadlines through and including May 15, 2020. (Case No. 1:19-cv-04161, presiding before District Judge Timothy C. Batten, Sr.; March 20, 2020).
Northern District Of Illinois (Chicago)
District Judge Matthew F. Kennelly
NeuroGrafix, et al. v. Brainlab, Inc., et al. – The U.S. District Court for the Northern District of Illinois in Chicago sua sponte vacated the June 1, 2020 trial date and the May 19, 2020 final pretrial conference. The Court advised the parties that, upon resumption of regular court proceedings (possibly in early June), “the district will be prioritizing criminal jury trials involving defendants in custody, and then (likely) criminal trials involving defendants not in custody that had to be moved due to the suspension of court proceedings, with civil jury trials getting a lower priority in the near term.” The Court further indicated that if it had to predict, the trial date likely will have to be reset to late summer at the very earliest. However, it was noted that “there may be significantly greater leeway regarding an earlier trial date were the parties to agree to a bench trial, though the Court understands that each side has a right to a jury trial and is perfectly fine with either a jury trial or a bench trial.” In a previous order on April 17, 2020, terminating plaintiffs' “emergency” motion for clarification stemming from the court's earlier invocation of the so-called advocate-witness rule, the Court rejected an apparent contention (among other grounds) that the coronavirus pandemic is an extraordinary circumstance that should lead the Court to set aside the advocate-witness rule for purposes of trial. In that earlier order the Court found that “[t]he health-related considerations that plaintiffs identify are not a basis to overturn this long-established rule of professional conduct, which has a direct bearing on the opposing party's right to have a fair trial, and in any event those concerns can be dealt with by other means.” In a September 4, 2020 Minute entry, the Court set the pretrial conference for October 23, 2020 to be held via video and directed the parties to advise the Court in writing by September 18, 2020 whether the case will proceed by jury trial or bench trial. (Case No. 1:12-cv-06075; April 17, 2020, May 7, 2020 and September 4, 2020).
Western District of Michigan (Grand Rapids)
Chief District Judge Robert J. Jonker
Perrigo Company v. United States of America – On April 28, 2020, the U.S. District Court for the Western District of Michigan in Grand Rapids granted in part a Joint Motion by cancelling the bench trial set to begin on May 26, 2020. In their Joint Motion, the parties expressed concern that the trial cannot proceed safely on the current schedule and “[b]oth sides agree that the trial should not proceed in-person as scheduled.” The Court did not “share the pessimism of the parties regarding the ability to conduct a bench trial safely in late May and early June . . . [but it acknowledged] that having counsel travel from two hard hit metropolitan areas, and the need to work with witnesses coming from multiple out-of-town locations creates unique challenges.” Although the Court acknowledged having recently “gotten considerable practice with video hearing technology,” it was convinced a bench trial like this one could not effectively proceed by video. It would need to be an in-person trial, “in the Court’s view, to assure fairness, effectiveness and efficiency for the parties, the Court and the public.” In particular, the Court noted that credibility issues are easier with in-person testimony and it could not “imagine a trial where all witnesses were examined by remote video, particularly with the mass of exhibits in play here and the technical complexity of some of the issues.” As for rescheduling, the Court indicated it would address that later as its own post-Covid calendar takes shape, particularly given that all civil cases will have to wait for an anticipated backlog of criminal jury trials to clear. (Case No. 1:17-cv-00737; April 28, 2020).
Western District of Missouri (Kansas City)
Senior Judge Ortrie D. Smith
Enslein v. Di Mase et al. – The U.S. District Court for the Western District of Missouri in Kansas City granted in part and denied in part one of the defendant’s motion to stay execution of a $24 million judgment against him and others, ordering the defendant to post a $2 million bond despite arguments of coronavirus-related “extreme hardship”. The defendant argued, among other things, that he is unable to meet and consult with professionals to obtain a bond or discuss alternative options, and further pointed out that several federal agencies have suspended enforcement of collection actions during the COVID-19 pandemic. As part of its response, Plaintiff argued defendant had not established he was entitled to an unsecured stay, and instead, defendant’s inability to pay and the potential complexity of collection during the COVID-19 pandemic should weigh against an unsecured stay. (Case No. 4:15-cv-09020; May 4, 2020).
District of New Jersey (Newark)
District Judge Stanley R. Chesler
Mondis Tech. Ltd., et al. v. LG Electronics Inc., et al. – The U.S. District Court for the District of New Jersey in Newark denied defendant’s motion to stay the damages re-trial pending resolution of the interlocutory appeal on issues of liability. The Court noted that since the “motion arises during, and is impacted by, the COVID-19 crisis . . . it does not consider the issue of whether the re-trial itself should be stayed because, at the moment, that is moot.” In particular, because jury trials have been suspended through August 31, 2020, pursuant to the District’s Standing Order 2020-12, and “no one knows when jury trials will be permitted to resume.” Since it is unknown when a re-trial by jury will be permitted, the Court limited its consideration of the motion to a stay of supplementary discovery and motion practice in preparation for re-trial. (Case No. 2:15-cv-04431; June 11, 2020).
District of New Jersey (Trenton)
Magistrate Judge Douglas E. Arpert
Mitsubishi Tanabe Pharma Corp., et al. v. Sandoz Inc., et al. – On April 28, 2020, the U.S. District Court for District of New Jersey in Trenton granted the joint request by the parties for a two-week extension for submission of trial briefs and proposed findings of fact and conclusions of law, from April 30 to May 14, 2020, in light of the presiding Judge’s prior adjournment of the May trial in the case. In a joint letter submitted on April 22, 2020, the parties indicated that following their discussion at the final pretrial conference regarding the potential impact of the COVID-19 pandemic on the trial, the defendant agreed to an extension of the regulatory stay for 120-days from the conclusion of the trial and the parties jointly requested that the Court set the commencement of a six-day trial for some time in July 2020, or as soon as practicable thereafter in light of the COVID-19 pandemic. In a May 12, 2020 Letter Order, the Court granted a request to extend the deadline from May 14 to May 21, 2020, for the parties to submit pretrial briefs and proposed findings of fact and conclusions of law. In a May 19, 2020 Letter Order, the Court granted a further one week extension May 21 to May 28, 2020. On April 24, 2020, the Court Ordered the agreed upon extension of the regulatory stay from September 29, 2020, until 120 days from the conclusion date of the trial. (Case No. 3:17-cv-05319, presiding before Chief Judge Freda L. Wolfson; April 24, 2020 & April 28, 2020 and May 12, 2020 & May 19, 2020).
Southern District of New York (Manhattan)
Chief District Judge Colleen McMahon
Ferring Pharmaceuticals Inc. et. al. v. Serenity Pharmaceuticals LLC, et. al. – On April 23, 2020, the U.S. District Court for the Southern District of New York in Manhattan sua sponte notified the parties that the Court intended to move forward with the trial set to start on May 26, 2020, or within two weeks of that date, and it was “not prepared to wait until the world is back to normal to get it done.” The Court highlighted it was a bench trial, and such trials "are the one type of proceeding that can go forward, even during a pandemic." In particular, the Court noted in a bench trial it can take testimony in writing (as it usually does at bench trials) and listen to cross examination conducted remotely. In addition, the Court indicated “witnesses who are located in other countries and cannot travel to court can have their depositions submitted instead - and I am sure that all the really relevant witnesses were deposed.” On April 24, 2020, the parties jointly submitted a letter in response to the April 23 Notice to Counsel indicating that they were “prepared and wish to move forward . . . but current travel and business restrictions make the logistics of doing so on May 26 uncertain.” The parties requested that the start of the trial be adjourned until the week of July 6, 2020, however “recognizing the constraints of the Court” the parties also confirmed that they could be available in the middle of June but they noted “there still may be some restrictions on travel in place at that time.” In a handwritten memo endorsed order on April 28, 2020, the Court stated “[o]k, the trial is adjourned to July 6, 2020. The Court will schedule a teleconference in the near future to discuss trial logistics.” In a May 14, 2020 Notice To Counsel, the Court scheduled a conference call for May 20, 2020 to discuss any concerns about the trial, given the parties preference for a trial in person, and the likely possibility that “stay at home orders and travel restrictions will not be lifted by July 6 . . [and] that some or all of the testimony at [the] trial will have to be taken remotely.” The Court reiterated that it will “take direct testimony of witnesses under any party’s control in writing” and indicated that “the Court’s view [is] that cross examination via a video platform would allow [it] to make necessary credibility determinations.” The Court further stated that it was “not eager to hear that you don’t want to go to trial on your chosen date of July 6. We simply have to find a way to get this case tried.” In a May 28, 2020, Trial Procedures communication to Counsel the Court indicated that the entire trial will be “all remote” and that it will use TrialGraphix’s TRIALanywhere product for the trial. The decision to have all witnesses testify remotely was based on the draft protocols for Phase II re-entry which would require all individuals who traveled from abroad to quarantine for two weeks before being allowed to enter the courthouse. One of the proposals under consideration from the parties that was described as “eminently sensible” by the Court, was the shipping of sealed binders to witnesses. It was also being left to the parties to agree whether an attorney may be present with witnesses during their remote testimony, which might make it even easier to deal with exhibits. The Court stated it was open to an in-person real bench trial closing argument, if it were safe, with lead trial counsel coming to court after all the witnesses have been heard from, but it strongly discouraged bringing a lot of people to court for any such closing argument. The Pretrial Conference has been set for June 25, 2020 at 2 p.m. (EDT). The Final Pretrial Conference was held via remote video conference. The start time for the first day of trial, July 6, 2020, is 10:00 a.m. (EDT). (Case No. 1:17-cv-09922; April 23, 2020 & April 28, 2020, May 14, 2020, May 27, 2020, June 18, 2020 and June 25, 2020).
Ferring Pharmaceuticals Inc. et. al. v. Serenity Pharmaceuticals LLC, et. al. Notice - May 14, 2020
Ferring Pharmaceuticals Inc. et. al. v. Serenity Pharmaceuticals LLC, et. al. Trial Procedures - May 27, 2020
District Judge Gregory H. Woods
Au New Haven, LLC f/k/a Uretek LLC, et. al. v. YKK Corp. – On April 21, 2020, the U.S. District Court for the Southern District of New York in Manhattan sua sponte “adjourned sine die” a jury trial scheduled to begin on June 15, 2020, because it “does not anticipate that it will be able to conduct a jury trial in June 2020.” The court indicated that it will reschedule the trial when it has more information about “the timeline for the resumption of normal operations.” In providing further guidance to the parties, however, the court noted that, due to rescheduling also occurring in other matters as a result of the pandemic, it “does not anticipate that it will be able to schedule a trial to begin in this matter until sometime this winter at the earliest—more likely, the trial will not be rescheduled to begin until a date in 2021.” In a May 15, 2020 Text Order, the Court indicated that the final pretrial conference previously scheduled for 10:00 a.m. on May 28, 2020 will still proceed as a telephonic conference, to focus on the parties' pending motions in limine, and that the Court anticipates holding a second final pretrial conference closer to the date of trial. The Court issued a docket order indicating that it will hold a teleconference on August 24, 2020 at 3:30 p.m. The Court further indicated that it “has received some limited guidance suggesting that it may be possible to resume jury trials as early as this fall . . . [and during the teleconference it] intends to discuss the prospect of rescheduling this trial for December 7, 2020, and setting deadlines for supplemental pre−trial submissions, including deadlines for filing motions in limine prompted by the Court's summary judgment opinion.” (Case No. 1:15-cv-03411; April 21, 2020, May 15, 2020 and July 31, 2020).
District of Oregon (Eugene)
Magistrate Judge Mustafa T. Kasubhai
Adasa Inc. v. Avery Dennison Corporation – The U.S. District Court for the District of Oregon held a status conference on August 4, 2020 during which it reset the pretrial conference from September 1, 2020 until December 1, 2020, and set the jury trial for December 14, 2020 at 9:00 a.m. In a previous Scheduling Order, the Court advised the parties that it “will be unable to accommodate a jury trial in September due to the COVID-19 pandemic . . . [and to] be prepared to discuss proceeding by way of a bench trial in September or rescheduling the jury trial at the status conference.” (Case No. 6:17-cv-01685; July 24, 2020 and August 4, 2020).
Western District of Pennsylvania (Pittsburgh)
District Judge Cathy Bissoon
Cutsforth, Inc. v. Lemm Liquidating Co., LLC, et al. – The U.S. District Court for the Western District of Pennsylvania in Pittsburgh sua sponte stayed and administratively closed the case, postponed the jury trial from April 20, 2020 to October 26, 2020, and further amended the Pre-trial Scheduling Order. In a May 19, 2020 Text Order the Court stated “the COVID-19 pandemic continues to create barriers to resuming normal, in-person operations in our nation's courts. . . . [with no issue] more problematic than the resumption of jury trials . . . [because] there can be no doubt that from selection to deliberation, jury trials pose unique and potentially, unavoidable concerns during this pandemic.” The parties were ordered to file a joint notice, on or before June 15, 2020, indicating whether they jointly and voluntarily consent to waiving their right to a jury trial and to converting the case to a bench trial, without specifying who did or did not consent. In a Second Amended Final Pretrial Order, the Court scheduled the 5 day jury trial for May 24, 2021, at 9:00 a.m. (Case No. 2:17-cv-01025; March 17, 2020, May 19, 2020 and September 16, 2020).
Eastern District of Texas (Beaumont)
District Judge Ron Clark
Barry v. Medtronic, Inc. – The U.S. District Court for the Eastern District of Texas in Beaumont granted two jointly filed motions, dealing with the resolution of issues between the parties concerning possible future infringement and damages that remained open after a jury trial and entry of the Final Judgment. In order to clarify the relief requested, the Court communicated with the parties by email “[b]ecause the current epidemic caused difficulties in arranging for a hearing, either live or by telephone or video, recorded by a court reporter.” On July 6, 2020, the case was referred to Judge Robert J. Colville for Settlement/Mediation purposes only. (Case No. 2:17-cv-01025; March 17, 2020, May 19, 2020 and July 6, 2020).