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“The court will protect its process”

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In a recent non-IP opinion by Judge Sleet, there are a few comments worth taking heed of for future cases you may have before this Court. See Donald M. Durkin Contracting, Inc. v. City of Newark, C.A. No. 04-163, 2006 U.S. Dist. LEXIS 85372 (D. Del. Nov. 27, 2006) (Sleet, J.).


At the close of trial in this case, Judge Sleet directed the parties to submit a stipulated post-trial briefing schedule. Instead of filing such a stipulation the defendant, City of Newark, filed a letter asking the court to make a notation on the docket noting the transcript availability. The Court noted, “For counsel’s edification, it is inappropriate and ill-advised to ask the court to expend its limited resources making administrative notations on the docket for the convenience of the parties.” Id. at *1.

Instead of filing a form skeletal post-trial motion within the 10 day period prescribed by the Federal Rules, the City filed a two line motion to stay execution of the judgment citing no authority or reasoning for relief and two additional motions that contained 84 pages of argument and exhibits without any citations to the trial transcripts. The Court noted that there is a procedure whereby skeletal motions can be filed during the prescribed period and yet the parties can present well-thought out briefing that cites to the official transcript and record. Of particular note, in dicta, Judge Sleet stated “[T]his court regularly presides over patent litigation, tried by lawyers who regularly appear in federal court. In these cases, the court typically observes that the parties order daily transcripts, which allow them to timely file post-trial motions and coherently argued briefs therewith.” Id. at 3 n.2. So a word to the wise, make sure your post-trial briefing includes citations to the transcript and is not simply a recitation of counsel’s recollection of the trial.

The Court made note of the inappropriate behavior of the litigants during this case including: “inappropriate telephone calls to chambers, untimely filing of issue-dispositive motions, improper filing of the pre-trial order, untimely submission of completely deficient jury instructions and verdict forms, and discovery abuses that led to motions for sanctions on the eve of, and during trial�”, and that such behavior has “created an unacceptable diversion of the court’s resources.” Id. at 4.

Finally, the Court stated that in light of all this “inappropriate behavior” the Court was faced with an ex parte oral request from the City to vacate a prior order. In response, Judge Sleet stated “[F]or counsel’s edification, it is wholly inappropriate to present what should be a formal motion for reconsideration via an ex parte telephone call to chambers.” Id.

Take home message�do not disregard court orders or instructions and make sure when litigating in this District to behave civilly and professionally, following all Local and Federal Rules.

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