What You Need to Know About the District of Delaware Vacant Judgeship Docket

While Delawareans are proud of the well-deserved elevation of Judge Stark to the Federal Circuit, his absence coupled with the District of Delaware’s heavy caseload is forcing the Court to manage the docket by instituting the Vacant Judgeship Docket (“VAC”). The Court issued Standing Orders on VAC procedures for former Judge Stark cases and new cases. Whether you have patent or other commercial civil litigation in the Court, the new Standing Orders could impact your practice. 

The recently issued Standing Orders detail the new docketing procedures.  Former Judge Stark cases are being assigned to the VAC (or other sitting or visiting judges depending on the case). New civil cases will be assigned to either a sitting Delaware District judge or the VAC. If a new case is assigned to the VAC, within 60 days of service of the complaint, the parties have to inform the Court whether they will consent to a Magistrate Judge handling the case. For patent litigation in particular, assignment to Magistrate Judge Hall or Burke with their vast patent litigation experience should be considered a welcome assignment. If parties do not consent to a Magistrate Judge, the case will be assigned to a visiting judge “any time before trial and may be made to any Article III judge, whether or not that judge has previously served or been announced as a visiting judge.” While visiting judges provide capable and much needed assistance, certainty regarding handling of the cases in the “Delaware way” is more of a wildcard depending on the judge assigned. For example, there recently has been a visiting judge who required the patent procedural rules of the district in which that judge sits rather than Delaware’s. 

Even if parties do not consent to a Magistrate Judge handling the entire case, a Magistrate Judge will handle certain issues such as discovery disputes, which is common practice in Delaware. Another VAC Standing Order also eliminates the District’s practice of automatic ADR referral to a Magistrate Judge for patent and securities cases. 

Although the VAC has been directed towards handling former Judge Stark cases and newly filed cases, existing cases in front of sitting Delaware judges may also be impacted. With the sitting Delaware Judges having to bear the burden of the vacant judgeship, there have been patent cases that were assigned to a sitting judge (some with scheduling orders) that have been reassigned to visiting judges. It will be interesting to see how the VAC Standing Order evolves as the Court handles the vacant judgeship and whether parties consent to having Magistrate Judges conduct trials. 

It is important for litigants in the District of Delaware to keep in mind the Court’s vacant judgeship when making strategic case decisions. For example, in Allen Med. Sys., Inc. v. Mizhou Orthopedic Sys., Inc., C.A. No. 21-1739-CFC, D.I. 27 (Apr. 7, 2022). Chief Judge Connolly granted the defendant’s motion to transfer a patent infringement action to the Northern District of California, citing that the districts’ relative caseloads favor transfer as Delaware has a more congested caseload and only 3 sitting judges compared to the Northern District of California’s 19 judges. The Court noted that as of February 12, 2022, Delaware had 970 open patent cases while the Northern District of California had only 267. The Court specifically noted how patent cases are “especially complex and time consuming to adjudicate.” While administrative difficulty favored transfer, it is important to note that several other factors in addition to Court caseload weighed in favor of transfer to California.