Trial - Page 2
District of Delaware (Wilmington) Cont'd
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.” On October 7, 2020, the Court issued an Oral Order directing the parties to meet and confer and submit another joint status report advising the Court of their and their witnesses' availability for a jury trial to be held between November 30 and December 10. The parties were also advised that the Court has not yet decided not to hold trial beginning on November 5 (with jury selection on November 2 and/or 3) but is considering other options. The Court also informed the parties that it had issued its Jury Trial Restart Guidelines, available on the Court's website, which the Court intends to discuss with the parties when trial is scheduled. After numerous discussions with the parties regarding whether and when to schedule jury trial, the Court indicated it has “found (unfortunately) no date that is reasonable and available to all parties and to the Court.” Therefore, the Court ordered that the trial be continued until a date to be determined, “most likely in 2021 (and certainly NOT in 2020).” It was also noted that “any trial may need to be further rescheduled due to further developments, including the evolving public health situation and other cases (especially criminal cases) that may require trial.” On August 25, 2021, the Court issued an Oral Order setting the final pretrial conference to be held on November 12, 2021 and jury selection and jury trial to be held on November 23, 2021 beginning at 9:00 a.m. (Case No. 1:17-cv-01390; June 9, 2020, June 24, 2020, July 2, 2020, July 13, 2020, July 17, 2020, August 20, 2020, October 7, 2020, October 13, 2020 and August 25, 2021).
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. The Court reset the pretrial conference for December 7, 2020 at 1:00 p.m. (EST) and indicated that “the format (live or remote) [will] be determined closer to the time of the conference.” In response to a joint request from the parties to postpone the 5-day jury trial “in view of the parties’ concerns about conducting a jury trial in the midst of the on-going pandemic,” the Court reset the jury trial for July 12, 2021 at 9:30 a.m. (EDT), and reset the pretrial conference for June 28, 2021 at 10:00 a.m. (EDT). On July 16, 2021, the District of Delaware jury returned its verdict, finding that the patents were not infringed and not proven but that the remaining asserted claims were not shown to be invalid, and that plaintiff was entitled to $1,440,000 of actual loss damages and $1,440,000.00 for punitive damages caused by defendant’s false advertising. The Court entered Judgment Following Jury Verdict on July 16, 2021. (Case No. 1:18-cv-00172; June 29, 2020, July 2, 2020, September 25, 2020, November 5, 2020, June 29, 2021 and July 16, 2021).
Chief District Judge Leonard P. Stark
Align Technology, Inc. v. 3Shape A/S et al. – The U.S. District Court for the District of Delaware in Wilmington issued an Oral Order, after reviewing the parties' Joint Status Report, setting the first of plaintiff’s seven trials against defendant for April 12, 2021 before a jury with a bench trial on the equitable defenses to be held concurrently or immediately after the conclusion of the jury trial. The next trial to be held would be case initiated by the defendant to followed by the remaining trials initiated by the plaintiff. Among the considerations cited by the Court in making its determinations was “the Court's highly constrained resources (especially with respect to its ability to conduct jury trials), particularly during the pandemic.” The Court also noted agreement with plaintiff’s position “that it would not be prudent ‘to burden the jury [in the first action] with an additional, unnecessary decision’ by requiring an advisory jury verdict on equitable issues.” On February 9, 2021, the Court sua sponte issued an Oral Order, in light of the ongoing impact of the COVID-19 pandemic, directing the parties to meet and confer and submit a joint status report providing their updated positions on whether trial should go forward in April as scheduled and, if so, what (if any) accommodations should be made. After reviewing the parties joint letter submission indicating that “the parties agree that an in-person jury trial will not be safe or feasible on April 12, 2021, given the ongoing COVID-19 pandemic”, the Court issued an Order rescheduling the jury trial to now begin (tentatively) on July 26, 2021. The Court recognizing that a bench trial addressing defendant's equitable defenses remains scheduled for the same period in which the jury trial was to occur, indicated that it is available and willing to hold this bench trial during the week of April 19 provided that such a trial would be fully remote. On March 17, 2021, after reviewing the parties joint status report submission, the Court ordered that the bench trial on defendant's affirmative defenses will be held in July during the same period as the jury trial. (Case No. 1:17-cv-01646; November 13, 2020, February 9, 2021, February 12, 2021 and March 17, 2021).
SZ DJI Technology Co., Ltd., et al. v. Autel Robotics USA LLC, et al. – The U.S. District Court for the District of Delaware in Wilmington issued an Oral Order resetting the jury trial to be held from August 16 to August 20, 2021. On August 10, 2021 the Court granted plaintiff’s request to allow a witness to testify at trial, who was not identified on the original witness list, in part because plaintiff represented “that she is the only current employee who could appear live at trial to introduce the company to the jury” since all the other witnesses on the current witness list “are not available to appear live at trial in Delaware because they have either left the company or are based in China and are subject to travel restrictions due to the COVID-19 pandemic.” On August 17, 2021, the Court entered a Stipulation of Dismissal filed by the parties pursuant to Federal Rule of Civil Procedure 41(a)(1). (Case No. 1:16-cv-00706; May 19, 2021, August 10, 2021 and August 17, 2021).
Middle District of Florida (Orlando)
District Judge Paul G. Byron
ParkerVision, Inc. v. Qualcomm Inc., et al. – The U.S. District Court for the Middle District of Florida in Orlando issued an Order indicating that “the Court’s trial calendar is congested with criminal trials through at least July 2021 with new indictments being returned every week . . . [and] cannot devote every remaining waking hour to this case since MDL cases have also returned to roost.” As such, the Court said it may take many months before the Court can adequately address “the deluge of motions filed” and “it is extremely unlikely this case will be tried before November or December 2021, if then.” On April 21, 2021, the Court issued a Notice cancelling the jury trial currently scheduled for the July trial term and the final pretrial conference scheduled for June 15, 2021, indicating they will be rescheduled at a later date. The (Case No. 6:14-cv-00687; March 26, 2021 and April 21, 2021).
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. During a hearing held on March 10, 2021, the jury trial was reset for June 7, 2021. On June 15, 2021, the Middle District of Florida jury returned its verdict, finding that the patents were willfully infringed, that one asserted was proven invalid but that the remaining asserted claims were not shown to be invalid, and that plaintiff was entitled to lost profits damages of $1,287,254 and reasonable royalty damages of $170,500 on its claim of patent infringement. On July 28, 2021, the Court entered a Judgment In A Civil Case for the plaintiffs and against Defendants with respect to the issues of infringement, willful infringement, and invalidity due to obviousness, non-enablement, and written description and finding plaintiffs shall recover the sum of $1,458,354. (Case No. 8:18-cv-00617; August 20, 2020, September 3, 2020, January 8, 2021, March 10, 2021, June 15, 2021 and July 28, 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. On March 14, 2021, the Court vacated the current jury trial date of April 26, 2021 and reset the trial date to May 3, 2021 at 9:30 a.m. (CDT), due to a conflict with a scheduled trial before the Court in a criminal case. The Court further indicate that “[p]rospective jurors, trial counsel, and witnesses who will be present in court for more than two days will be required to report two business days before the start date of the trial for coronavirus testing and will be subject to retesting at three−to−four−day intervals during the trial depending on its length.” (Case No. 1:12-cv-06075; April 17, 2020, May 7, 2020, September 4, 2020, October 8, 2020, October 9, 2020, November 4, 2020 and March 14, 2021).
District Judge Virginia M. Kendall
Trading Techs. Int'l, Inc. v. BGC Partners, Inc. – The U.S. District Court for the Northern District of Illinois’s Eastern Division issued a Minute Docket Entry indicating that the Court's Trial system adopted during the COVID−19 pandemic has the jury beginning on August 6, 2021. On September 7, 2021, the Northern District of Illinois jury returned its verdict, finding that the patents were not proven invalid and that they were infringed, but not willfully infringed, and that plaintiff was entitled to damages of $6,610,985. (Case No. 1:10-cv-00715; July 16, 2021 and September 7, 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. On March 10, 2021, the Court ordered that the parties Joint Motion to Waive Jury Trial is granted and the jury demand is waived so that trial may proceed as a bench trial on April 19, 2021. (Case No. 6:18-cv-01141; December 1, 2020 and March 10, 2021).
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).
Eastern District of Michigan (Flint)
District Judge Matthew F. Leitman
Ford Motor Company v. Versata Software, Inc., et al. – The U.S. District Court for the Eastern District of Michigan in Flint terminated motions in limine filed by both plaintiff and defendant because ”developments in the case” since their filing may necessitate revisions or supplements to the motions. The Court noted that it had allowed the defendant to file a supplemental expert report and permitted additional expert discovery that might result in additional motion practice. It also recognized that, due to the COVID-19 pandemic, the Court has temporarily suspended all jury trials and adjourned all dates in this action and while it intends to schedule the case for trial at the first available opportunity, it does not know when it will be able to do so. The Court also indicated that it will hold a status conference with the parties to discuss a schedule for filing renewed motions in limine after completion of the additional discovery, and once the Court is in a better position to provide firm dates for a pretrial conference and trial. (Case No. 2:15-cv-10628; February 25, 2021).
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 Nevada (Las Vegas)
Chief Judge Miranda M. Du
Composite Resources, Inc. v. Recon Medical, LLC – The U.S. District Court for the District of Nevada in Las Vegas granted plaintiff’s motion to amend the pretrial order to allow the listing of a witness that was purportedly inadvertently omitted. The Court found that granting the motion would not cause substantial injury to defendant or inconvenience for the Court, and denying the motion would result in injustice because plaintiff would be unable to put on its damages expert at trial. As part of its analysis of the four factors to be considered, the Court found “allowing amendment will not adversely impact the trial, which has been rescheduled several times due to the COVID-19 pandemic and is currently set for November 29, 2021.” (Case No. 2:17-cv-01755; June 7, 2021).
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).
District Judge Michael A. Shipp
Amgen, Inc. v. Sandoz, Inc., et al. – The U.S. District Court for the District of New Jersey in Newark issued a Text Order indicating the bench trial currently scheduled to commence June 14, 2021 shall be entirely remote, pursuant to the Court's Phase III Protocol, which provides that “bench trials shall be conducted via Zoom where possible.” On June 10, 2021, the Court issued a Remote Trial Protocol Order setting forth the procedures that will govern remote testimony. (Case No. 3:18-cv-11026; March 23, 2021 and June 10, 2021).
District of New Mexico (Albuquerque)
Senior District Judge Joseph F. Bataillon
Applied Capital, Inc v. The ADT Corporation et al. – The U.S. District Court for the District of New Mexico in Albuquerque denied defendants' motion to continue trial, which is currently set to begin on April 5, 2021. The Court noted that it has been advised that the United States District Court for the District of New Mexico will resume conducting civil jury trials in March of this year, and having considered the parties’ positions it found that the motion to continue trial should be denied, without prejudice to reassertion if circumstances change, or if the district court does not resume civil jury trials in March 2021. On March 5, 2021, the Court issued an Ordersetting trial on June 16, 2021, at 9:00 a.m. (MDT) (Case No. 1:16-cv-00815; February 12, 2021 and March 5, 2021).
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. On June 15, 2021, the Court issued an Order advising the parties that “a criminal trial has been scheduled for the same date as this case[, and] because such trials enjoy priority under the Court’s internal processes, the parties should prepare for the possibility that this case may be tried at another date.” In an Order issued on August 19, 2021, the Court informed the parties that “as a result of the criminal trial previously noted by the Court and the limited availability of trial dates resulting from the COVID−19 pandemic, the trial currently scheduled to begin on November 29, 2021 is adjourned sine die.” The Court further indicated that, assuming that the Southern District of New York's jury trial protocol remains in place, the Court will make an application for a new trial date in either the first or second quarter of 2022. (Case No. 1:15-cv-03411; April 21, 2020, May 15, 2020, July 31, 2020, September 21, 2020, January 12, 2021, January 22. 2021, June 15, 2021 and August 19, 2021).
Middle District of North Carolina
District Judge Catherine C. Eagles
Fuma International, LLC v. RJ Reynolds Vapor Company – The U.S. District Court for the Middle District of North Carolina issued an Order setting an in-person pre-trial conference for August 25, 2021 at 9:30 a.m. It was also ordered that, “in view of the public health situation, the Court will limit each party to two attorneys.” In particular lead counsel was ordered to attend and one attorney admitted to practice before the Court. (Case No. 1:19-cv-00260; August 17, 2021).
Western District of North Carolina (Asheville)
District Judge Martin Reidinger
Nexus Technologies Inc. et al. v. Unlimited Power Ltd. et al. – The U.S. District Court for the Western District of North Carolina in Asheville issued an Order continuing the jury trial set for January 11, 2021 “in light of the public health considerations caused by the coronavirus pandemic, as described in this Court's Standing Orders, Case No. 3:20-mc-00048-MR, and given both the Court's reduced ability to obtain an adequate spectrum of jurors and the reduced availability of attorneys and Court staff to be present in courtrooms.” The trial was continued to the term beginning on March 8, 2021 at 9:01 a.m. On March 15, 2021, the Western District of North Carolina jury returned its verdict, finding the individual plaintiffs were the inventors, that defendants filed patent applications embodying the plaintiffs’ ideas and used the patents to dissuade potential investors and customers from doing business with the corporate plaintiff causing harm, and that plaintiffs were entitled to damages of $10,650,000.00. (Case No. 1:19-cv-00009; January 4, 2021 and March 15, 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.” On February 5, 2021, the Court issued a Notice of Hearing resetting the bench trial for April 19, 2021 at 9:30 a.m. (EDT) by video conference. (Case No. 1:11-cv-00871; August 11, 2020, September 10, 2020, December 1, 2020 and February 5, 2021).
Western District of Oklahoma (Oklahoma city)
District Judge Scott L. Palk
Leach et al v. Pharmedoc Inc. – The U.S. District Court for the Western District of Oklahoma in Oklahoma City denied Plaintiffs’ Motion for Entry of Rule 54(b) Final Appealable Judgment, finding in part that the plaintiffs’ cited concerns over a potential backlog in the Court due to the COVID-19 pandemic is a “unique (and waning)” factor that is not the proper focus of a Rule 54(b) inquiry. In addition, the Court noted that it “is ready to proceed with a trial of this action and to expedite setting pretrial deadlines and placing this matter on a trial docket.” (Case No. 5:16-cv-01034; June 29, 2021).
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.” On May 14, 2021, the District of Oregon jury returned its verdict, finding that the asserted claim of the patent-in-suit was proven to be infringed and the plaintiff was awarded damages of $11,405,383.47 for one accused product and $15,235,493.28 for a second accused product, as a running royalty. (Case No. 6:17-cv-01685; July 24, 2020, August 4, 2020 and May 14, 2021).