Trial - Page 2
Middle District of Florida (Tampa)
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 (email@example.com) 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. In an October 20, 2020 Notice, the final pretrial conference was reset for February 4, 2021 and the trial was set for February 22, 2021 at 9:00 a.m. After holding a status conference requested by the parties to determine whether the February 22, 2021 trial date remains feasible in light of the ongoing COVID-19 pandemic, the Court issued a Notice cancelling the pretrial conference and the trial. (Case No. 8:18-cv-00617; August 20, 2020, September 3, 2020 and January 8, 2021).
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).
Southern District of Florida (Ft. Lauderdale)
District Judge Rodney Smith
BPI Sports, LLC v. ThermoLife Int’l, LLC, et al. – The U.S. District Court for the Southern District of Florida in Ft. Lauderdale issued a Second Amended Scheduling Order resetting the jury trial to begin on April 26, 2021, pursuant to Administrative Order 2020-76, In re: Coronavirus Public Emergency, Seventh Order Concerning Jury Trials And Other Proceedings, which ordered, among other things, that all jury trials in the Southern District of Florida scheduled to begin on or after March 30, 2020, are continued until April 5, 2021. (Case No. 0:19-cv-60505; December 1, 2020).
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).
District Judge John Robert Blakey
Rehco, LLC v. Spin Master, Ltd. – The U.S. District Court for the Northern District of Illinois in Chicago denied the plaintiff’s motion to server because it was not persuaded that it would facilitate settlement, streamline future proceedings, or conserve judicial resources or costs to the parties, instead it would result in two separate additional appeals, rather than a single appeal of both the patent infringement and breach of contract claims. The Court set the case for a retrial on plaintiff's breach of contract claim on March 15, 2021 at 10:00 a.m., and instructed the parties to meet and confer and email the Courtroom Deputy about potential COVID−19 protocols including whether witnesses will appear in person for trial or via video−conferencing. In light of the Ninth Amended General Order 20−0012, in response to the COVID-19 pandemic, a telephonic status hearing was set for January 22, 2021 at 11:00 a.m. to discuss trial dates, severance of claims and protocols. (Case No. 1:13-cv-02245; December 17, 2020 and January 12, 2021).
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. During a status hearing held on October 8, 2020, the Court indicated that the jury trial will likely begin on November 3, 2020. The parties were ordered to meet in person on October 9, 2020 in the courtroom, with the Court indicating that attendees must wear masks, regarding the list of witnesses that will be testifying at the trial and if the testimony will be in person, by video, or by deposition. The parties were further directed to provide a complete and comprehensive list at the start of the trial logistics meeting being held the same day because the Court needed the information to plan for trial during the pandemic. After receiving an “utterly incomprehensible and partially illegible” witness list submission, the parties were directed to provide “for planning purposes” a legible list identifying for each side: (1) the witnesses it intends to call; (2) the city and state where the witness resides; (3) whether the witness's testimony will be presented in person, by remote video, or by deposition; and (4) any objections by the other side to the calling of the witness (without responses). The jury trial began on November 3, 2020, however a mistrial was granted on November 4, 2020 upon plaintiff's oral motion for the reasons stated on the record. The remaining jury trial dates were vacated and the jury trial was continued until March 1, 2021 at 9:45 a.m. (Case No. 1:12-cv-06075; April 17, 2020, May 7, 2020, September 4, 2020, October 8, 2020, October 9, 2020 and November 4, 2020).
District Judge Michael J. Juneau
Swivel Rental & Supply, LLC v. Petro Pull, LLC, et al. – The U.S. District Court for the Western District of Louisiana in Lafayette issued Minutes following a telephone conference with the parties during which concerns regarding the COVID-19 pandemic were discussed. The jury trial was reset from February 22, 2021 to April 19, 2021, and the pretrial conference was reset from January 29, 2021 to April 1, 2021. In addition, the possibility of a bench trial was discussed, which counsel indicated he would discuss with his client. (Case No. 6:18-cv-01141; December 1, 2020).
District of Massachusetts (Boston)
District Judge William G. Young
Bio-Rad Labs., Inc., et al. v. Stilla Techs., Inc., et al. – The U.S. District Court for the District of Massachusetts in Boston granted plaintiff’s motion to Adopt Pretrial Schedule, but adopted defendant’s request that the trial ready date be pushed out from May 2021 to a later date by placing the case on the Court’s running trial list for July 2021. The defendant argued that the plaintiff’s “purported goal of a May trial date” was not “feasible” for several reasons, including that it was “unlikely” that the case could proceed to trial at that time because of District’s suspension of jury trials due to the COVID-19 pandemic and the resulting backlog of high priority cases such as criminal trials. In the Order, the Court stated that there will be no further continuances. (Case No. 1:19-cv-11587; December 18, 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).
Western District of Texas (Waco)
District Judge Alan D. Albright
Coil Chem LLC, et al. v. Durachem Prod. Co., et al. – The U.S. District Court for the Western District of Texas in Waco granted the Plaintiffs’ Agreed Motion To Stay Litigation In Light Of COVID-19 Pandemic, ordering the case stayed for six months. The parties were directed to file, at the expiration of the stay, a notice requesting a status/scheduling conference. (Case No. 7-19-cv-00225; May 16, 2020).
Fintiv, Inc. v. Apple Inc. – The U.S. District Court for the Western District of Texas in Waco issued a standing order for all patent infringement cases in the post-Markman stage of litigation, acknowledging the “potential difficulties related to the COVID-19 virus that parties in patent cases may experience” and, thus, “is willing to consider all reasonable adjustments to the current orders to allow the parties to complete discovery…and file appropriate motions.” The court required only that the parties meet-and-confer first, further stating that it would give “great deference” to joint scheduling proposals. (Case No. 1-19-cv-01238; April 9, 2020).
MV3 Partners LLC v. Roku, Inc. – The U.S. District Court for the Western District of Texas in Waco issued a standing order for all patent infringement cases in the post-Markman stage of litigation, acknowledging the “potential difficulties related to the COVID-19 virus that parties in patent cases may experience” and, thus, “is willing to consider all reasonable adjustments to the current orders to allow the parties to complete discovery…and file appropriate motions.” The court required only that the parties meet-and-confer first, further stating that it would give “great deference” to joint scheduling proposals. The court did, however, deny defendant’s motion to continue its trial date, stating only that such a continuance would be premature as “the trial is still several weeks away.” On October 14, 2020, the Western District of Texas jury returned its verdict, finding that the patents were not proven to be infringed. On August 19, 2020, the Court issued an order Setting Final Pretrial Conference, Jury Selection, and Trial. The Final Pretrial Conference will be in District Courtroom #2 on the Third Floor of the United States Courthouse located at 800 Franklin Avenue in Waco, Texas, on Wednesday, September 23, 2020 at 2:00 p.m. Jury selection is set to begin before Magistrate Judge Jeffrey C. Manske in District Courtroom #2 on Thursday, October 1, 2020 at 9:30 a.m. Lastly, the jury trial is set to begin with opening arguments on Monday, October 5, 2020 at 9:00 a.m. before Judge Alan D. Albright in District Courtroom #2. A second order was issued on August 19, 2020 by Magistrate Judge Jeffrey C. Manske regarding voir dire submissions to be submitted to the Court by September 28, 2020. On October 14, 2020, the Western District of Texas jury returned its verdict, finding that the patents were not proven to be infringed. (Case No. 6:18-cv-00308; May 13, 2020, June 4, 2020, June 15, 2020, July 7, 2020, August 10, 2020, August 19, 2020 and October 14, 2020).
Chief District Judge Orlando L. Garcia
Karetek Holdings LLC v. 360training.com, Inc. – The U.S. District Court for the Western District of Texas in Austin sua sponte issued a Supplemental Order Regarding Court Operations Under The Exigent Circumstances Created By The COVID-19 Pandemic dated April 15, 2020, continuing all grand jury proceedings and civil and criminal bench and jury trials scheduled to begin through May 31, 2020, as well as other measures. (Case No. 1:20-cv-00463, presiding before District Judge Robert Pitman; May 1, 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.” On September 21, 2020, the Court issued an Order adjourning the jury trial “sine die.” In a joint submission the parties had indicated that they agreed the trial should be scheduled as soon as possible in 2021 when a relatively certain trial date can be determined rather than continuing to hold the current December 7, 2020 alternate trial position described by the Court during a conference call. The parties highlighted “the number of individuals involved (party representatives, witnesses and counsel, including many residing in jurisdictions with COVID-19 travel restrictions and with a resulting mandatory 14-day quarantine period in New York, as well as similar quarantine periods upon their return home), the costs to the parties, the business interruption, the length of trial and the real possibility that [the] case will not proceed to trial in any event on December 7, 2020 due to the court system’s overall caseload, all warrant in favor of a more certain trial date in early 2021.” During a January 12, 2021 conference, the parties were invited to submit a joint letter by no later than January 26, 2021, providing their respective positions regarding the trial schedule in the matter, given the recent developments with the COVID-19 pandemic and in-person proceedings in the District. On January 21, 2021, the Court adjourned the jury trial scheduled for May 21, 2021 after reviewing a joint letter from the parties agreeing that the trial should be continued, in light of the uncertainties caused by the COVID-19 pandemic, to a date in the second half of 2021 when a relatively certain trial date can be determined. The Court further indicated that it intends that the jury trial in the matter will begin on November 29, 2021 at 9:00 a.m. (EST), however the parties were advised that the trial date is subject to the Southern District of New York’s jury trial schedule. (Case No. 1:15-cv-03411; April 21, 2020, May 15, 2020, July 31, 2020, September 21, 2020, January 12, 2021 and January 22. 2021).
Southern District of Ohio (Cincinnati)
District Judge Douglas R. Cole
Ethicon Endo-Surgery, Inc. v. Covidien, Inc. – The U.S. District Court for the Southern District of Ohio Western Division in Cincinnati suggested, and the parties agreed, that the trial be continued until January 4, 2021, in response to defendants’ request for a continuance of the trial due to the COVID−19 Pandemic and related travel restrictions. The Court indicated that “the trial shall proceed in-person, if conditions at the time allow, or by video conference, if not.” On September 10, 2020, the Court set the final pretrial conference to be held by telephone on December 14, 2020 at 10 a.m.(EST) and set the bench trial to be held on January 11, 2021 at 9:30 a.m. (EST). In an Opinion and Order issued on December 1, 2020, the Court granted-in-part plaintiff’s motion in limine to exclude evidence of alleged non-infringing alternatives to the extent that it seeks to preclude admitting evidence of other non-infringing alternative devices as a basis for arguing that plaintiff is not entitled to lost profits for any time period prior to the time that defendant actually released those products to market, but denied-in-part the motion to the extent that defendant seeks to introduce such evidence for other permissible reasons. The Court noted that due to various delays, including two delays of the trial due to the COVID-19 pandemic, it appears that the defendant has released certain additional products and “the Court’s prior determination that the products were not available non-infringing alternatives at the time should not prevent [defendant] from arguing that after the products were released to the market they became available non-infringing alternatives, and thus presumably could terminate the time period during which lost-profit damages are available.” (Case No. 1:11-cv-00871; August 11, 2020, September 10, 2020 and December 1, 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).
Western District of Pennsylvania (Pittsburgh)
District Judge Joy Flowers Conti
Sherwin-Williams Company V. PPG Industries, Inc. – The U.S. District Court for the Western District of Pennsylvania in Pittsburgh issued an Order continuing the jury trial, currently set for February 22, 2021, after defendant filed a Motion To Continue Trial Date. Defendant submitted that the COVID-19 pandemic continues to worsen and requires the trial to be continued “until jury trials can resume with safe and equitable procedures.” Defendant noted that it conferred with counsel for plaintiff regarding its motion, who indicated that “because this case has been pending for a very long time, it would like a resolution as soon as practical and safe . . . [but] defers to the Court with regard to whether that is on the currently scheduled date or some date thereafter.” (Case No. 2:17-cv-01023; January 7, 2021).
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).
Western District of Texas (Austin)
District Judge Robert Pitman
Barry v. Medtronic, Inc. – The U.S. District Court for the Western District of Texas in Austin sua sponte issued a Supplemental Order Regarding Court Operations in response to the COVID-19 viral outbreak, continuing all jury trial start dates through May 31, with the date to be reset by the presiding Judge, but stating that the Supplemental Order does not continue any other pending deadlines except for the trial dates. In issuing the Supplemental Order, the Court indicated that "there have been several confirmed cases of coronavirus within the Western District of Texas” and it “is concerned with the health and safety of the public, Court employees, staff of other entities with whom Court personnel interact, litigants, including defendants in criminal matters, counsel, interpreters, law enforcement officials, and jurors, who must work in close quarters to hear evidence and to deliberate.” (Case No. 1:20-cv-00417; April 24, 2020).
Eastern District of Texas (Marshall Division)
Chief District Judge J. Rodney Gilstrap
Image Processing Techs., LLC v. Samsung Electronics Co., Ltd., et al. – The U.S. District Court for the Eastern District of Texas’s Marshall Division reset the Jury trial until July 6, 2020. An initial pretrial conference was held on June 1, 2020 and a final pretrial conference was held on June 4, 2020, both by videoconference. On June 29, 2020, the Court denied plaintiff’s Opposed Motion to Continue Trial, seeking an extension based upon concerns related to the COVID-19 pandemic setting forth “specific personal reasons for himself and his co-counsel as a basis to continue the trial in [the] case.” In denying the motion, the Court indicated “it would be prejudicial to [the defendant], its witnesses, and its representatives to continue the trial . . . [since it] expended great effort and expense to ensure that all its necessary witnesses and representatives are in Marshall, Texas and have complied in advance with CDC quarantine guidelines.” It also noted that moving “a trial date for a civil jury trial is an arduous task, especially when the trial is only a week away,  many pre-trial disputes have been heard and ruled on, and a jury panel of 125 citizens has been summonsed . . . [and it] would likely result in a delay of many months given the unavailability of open trial dates in the future.” The Court had previously continued the trial until June 1, 2020, granting-as-modified a motion for relief due to complications in securing the trial attendance of witnesses and corporate representative located in Korea amidst the coronavirus pandemic. (Case No. 2:20-cv-00050; March 12, 2020, May 12, 2020, June 1 & June 4, 2020 and June 29, 2020).
Infernal Technology, LLC v. Sony Interactive Entertainment America LLC – The U.S. District Court for the Eastern District of Texas’s Marshall Division granted defendants’ Motion to Continue Trial, for which jury selection was set to begin on December 4, 2020. The Court was “persuaded that the current status of the public health in the Marshall Division of the Eastern District of Texas requires it to continue all in-person jury trials.” It further noted, that “while some motion practice may be adequately addressed via virtual proceedings, the Court believes that the fair adjudication of the rights of the parties, as envisioned by the Framers and embodied in the Sixth and Seventh Amendments, requires jury trials to be conducted in-person.” Jury selection was reset for March 1, 2021. (Case No. 2:19-cv-00248; November 20, 2020).
Optis Wireless Tech., LLC, et al. v. Apple Inc. –The U.S. District Court for the Eastern District of Texas’s Marshall Division sua sponte ordered expedited briefing with respect to Defendant’s Motion to Continue Trial, requiring plaintiffs to file any response on or before 5:00 p.m. (CDT) on Friday, July 17, 2020. The Motion requests the Court to continue the August 3, 2020 jury trial until October 5, 2020, due to the increasing caseloads and “undue risks” associated with the COVID-19 pandemic, and assess at that time whether conditions have improved enough to hold the trial. The Court facing a “conundrum of first impression”, denied defendant’s Motion to Continue Trial. It was “persuaded, on balance, that moving forward with the trial as scheduled is the better choice” given the “precautions crafted, the absolute lack of any reliable information as to when the current pandemic may abate, and the global struggle between these sophisticated parties which only worsens while a resolution is delayed.” While acknowledging that the COVID-19 pandemic “presents serious public health concerns”, the Court indicated that is has “diligently undertaken to put in place reasonable precautions in order to facilitate a full and fair trial, while maintaining the health and safety of those involved.” The Court e-mailed “precise instructions” to counsel for the parties in advance of the July 27, 2020 pretrial conference and indicated that it “intends to provide additional guidance to counsel for the parties as part of the pretrial conference  including limiting the number of persons seated at counsel tables to three persons per table during voir dire and during trial; directing trial counsel and the jury—once the trial begins—to wear face shields which will allow for a full view of the lawyers’ and jurors’ faces and expressions while providing substantial protection from projection of breath droplets; and encouraging all participants to follow the CDC’s community mitigation-guidelines.” The Court further felt that the plaintiff would be prejudiced because the requested two-month continuance would likely result in a delay of many months, “pushing this trial well into 2021 or 2022.” Finally, with respect to the due process concerns regarding the inability of certain witnesses to testify in-person at trial due to international travel restrictions, the Court found that real time live video testimony may be presented. On August 11, 2020, the Eastern District of Texas jury returned its verdict, finding that the patents were not proven invalid and that they were willfully infringed, and that plaintiff was entitled to damages of $506,200,000 as a royalty for past sales. (Case No. 2:19-cv-00066; July 15, 2020, July 21, 2020 and August 11, 2020).
Personalized Media Communications LLC v. Google LLC et al. – The U.S. District Court for the Eastern District of Texas’s Marshall Division granted as modified, the defendants’ Motion to Continue Trial, requesting a 90-day extension to the jury trial. The Court re-set the jury selection and trial from October 1, 2020 until November 2, 2020, with the pretrial conference to be held on October 19 and 21, 2020. The defendant requested the continuance for, among other reasons, the unavailability of witnesses due to another litigation. The defendant also argued that “due to the COVID-19 pandemic, good cause exists to continue the trial from October in light of the totality of the circumstances.” As part of this argument, the defendant argued it would be “unfairly” prejudiced particularly because plaintiff’s witnesses are currently planning to attend in person and at least one of the defendants’ witnesses will likely not be able to attend trial in person. According to the defendants, plaintiff would “not stipulate to witnesses appearing remotely due to COVID-19 concerns . . . and also indicated it intends to affirmatively argue to the jury that any [defendant] witness who appears remotely did so not because of the legitimate safety concerns of COVID-19, but instead because the case must not be important to defendant.” Even if such an argument is precluded, defendants noted that “the jury may nonetheless draw that same conclusion or reach other negative impressions.” On November 6, 2020, the Eastern District of Texas jury returned its verdict, finding that the asserted claims of the patents-in-suit were not proven to be infringed. (Case No. 2:19-cv-00090; September 14, 2020 and November 6, 2020).
Ramot At Tel Aviv Univ. Ltd. v. Cisco Systems, Inc. – The U.S. District Court for the Eastern District of Texas’s Marshall Division granted defendants’ Motion For Continuance, resetting jury selection from December 4, 2020 until March 1, 2021. The Court was “persuaded that the current status of the public health in the Marshall Division of the Eastern District of Texas requires it to continue all in-person jury trials.” It further noted, that “while some motion practice may be adequately addressed via virtual proceedings, the Court believes that the fair adjudication of the rights of the parties, as envisioned by the Framers and embodied in the Sixth and Seventh Amendments, requires jury trials to be conducted in-person.” (Case No. 2:19-cv-00225; November 20, 2020).
SAS Institute Inc. v. World Programming Ltd., et al. – The U.S. District Court for the Eastern District of Texas’s Marshall Division denied, without prejudice, the parties’ Joint Motion to Continue Trial Setting, requesting a 90-day extension to the jury trial – currently scheduled to begin with jury selection on July 6, 2020 -- due to travel restrictions stemming from the COVID-19 pandemic. The Court acknowledged “the need to protect parties, court staff, witnesses, corporate representatives, and practitioners during this crisis”, but felt the motion is premature “[g]iven the constant evolution of the pandemic” and related travel restrictions. In particular, The Court noted the evolving COVID-19 pandemic and related travel restrictions may very well change several times before the scheduled jury selection, hopefully in ways that may assuage the present concerns raised by the Motion. Nonetheless, the Court also noted that “[t]he parties are free to seek similar relief at a later date, if present impediments do not abate or are otherwise modified/lifted.” The Court granted-in-part the parties Renewal of Their Joint Motion to Continue Trial Setting, in a June 8, 2020 Order. The Court issued an Amended Docket Order setting the pretrial conference to take place on August 24-25, 2020 and jury selection to take place on September 14, 2020. The Final Pretrial Conference was set for August 25, 2020 at 9:00 a.m. (CDT). Jury selection reset for September 10, 2020 at 9:00 a.m. (CDT) In an August 24, 2020 Order As To Copyrightability, the Court reset the pretrial conference for November 24, 2020 and jury selection and trial for January 4, 2021, until after a copyrightability hearing could be heard to deal with two pending summary judgment motions regarding copyright. (Case No. 2:18-cv-00295; May 22, 2020, June 8, 2020, June 12, 2020, June 16, 2020, August 17, 2020 and August 24, 2020).
Solas OLED Ltd. v. Samsung Display Co., Ltd., et al. – The U.S. District Court for the Eastern District of Texas’s Marshall Division granted defendants' Unopposed Motion To Continue Trial, removing the jury trial from the October trial docket and indicating that it will be reset at a later date by subsequent order. The defendants had argued that one of its “key expert witnesses, located in West Virginia, is unavailable to travel to Texas to testify live at trial . . . [and he] is also unable to sit for a remote trial deposition by video.” Based on briefing and statements during a telephone status conference, the Court indicated in an Order issued on October 15, 2020, that “having considered the schedules of counsel for the Parties, potential trial witnesses for the Parties, travel schedules, and the current global health situation, the Court is of the opinion that the [case] should be and hereby is specially set as first for trial in the first week of December, with jury selection to begin on December 4, 2020.” On November 20, 2020, the Court granted defendants’ Opposed Motion to Continue Trial, resetting jury selection from December 4, 2020 until March 1, 2021. The Court was “persuaded that the current status of the public health in the Marshall Division of the Eastern District of Texas requires it to continue all in-person jury trials.” It further noted, that “while some motion practice may be adequately addressed via virtual proceedings, the Court believes that the fair adjudication of the rights of the parties, as envisioned by the Framers and embodied in the Sixth and Seventh Amendments, requires jury trials to be conducted in-person.” (Case No. 2:19-cv-00152; September 29, 2020, October 15, 2020 and November 20, 2020).
GREE, INC v. Supercell Oy – The U.S. District Court for the Eastern District of Texas’s Marshall Division granted defendant’s motion seeking a continuance of the August 3, 2020 jury trial date, stating that it was “persuaded by the unopposed nature of the motion and the conditions the parties have agreed upon.” The defendant had raised concerns that the trial “presents the risk of becoming a super spreader event”, given the accelerating COVID-19 pandemic and the number of attendees from different locations, due process issues related to restrictions on its ability to have in-person witnesses from abroad and the lack of prejudice to either party in moving the trial to September, particularly given the denial to institute the related IPR proceedings and other agreements made by defendant. The pretrial conference was continued to August 17, 2020, with trial continued to September 14, 2020. The Court denied defendant’s Renewed Motion For A Trial Continuance In View Of Concerns Presented By The Covid-19 Virus, which was filed “roughly 36 hours before jury selection [was] set to occur in [the] case.” The Court was not persuaded by defendant’s complaint that it “does not possess the ability to make its three Finland-resident fact witnesses attend trial,” in part because there was no evidence defendant tried. Finding the showing made insufficient, the Court stated that defendant’s “only request is an indefinite continuance of the trial.” On September 18, 2020, the Eastern District of Texas jury returned its verdict, finding that the patents were not proven invalid and that they were willfully infringed, and that plaintiff was entitled to lump-sum damages of $8,500,000 for past and future sales. (Case No. 2:19-cv-00070/00071, presiding before Chief District Judge J. Rodney Gilstrap; July 21, 2020, August 17, 2020, September 9, 2020 and September 18, 2020). ivision)
Innovation Sciences, LLC v. Amazon.Com, Inc. – The U.S. District Court for the Eastern District of Texas’s Sherman Division provided instructions to attorneys, during the final pretrial conference, regarding the COVID-19 protocol that the Court will follow during the jury trial scheduled to begin on August 24, 2020. Among the instructions provided were that temperatures will be taken at the door of the jurors each day, Counsel will need to wear masks unless questioning the witnesses and should stay at podium during questioning, face shields will be provided to the jurors that are selected, and that no more than 5 will be allowed at Counsel table with social distancing practices encouraged. The Court further advised the parties that “Counsel should wear masks and try to limit bench conferences as much as possible.” The Court also indicated that staff will wipe down the witness stand but attorneys are encouraged to wipe down the podium after each use before the next counsel takes the podium. At least one elderly witness that can’t travel due to the COVID-19 pandemic would be appearing via a video conference system, with another third party witness also possibly appearing by video. On September 2, 2020, the Eastern District of Texas jury returned its verdict, finding that the patents were not proven to be infringed and were proven to be invalid and well-understood, routine and conventional at the time of the invention. (Case No. 4:18-cv-00474; August 13, 2020 and September 2, 2020).