Pop quiz: What's the easiest way to get your SJ motion denied in a single page? Answer: Tell the judge that a disputed fact is material to your motion.
Several of the D. Del. judges require parties to include a concise statement of material facts with their summary judgment motions. This is exactly what it sounds like: a statement of each fact that the moving party contends is (a) essential to resolve the motion and (b) undisputed.
Judge Noreika, Judge Connolly, and Magistrate Judge Hall each require a concise statement to be filed with the opening brief, as well as a responsive statement with the answering brief. Judge Noreika and Magistrate Judge Hall also require the moving party to submit a reply statement with its reply brief. It is imperative to respond to all facts identified in the concise statement, as anything not responded to will be deemed undisputed for purposes of deciding the motion. As Judge Connolly explains in his form scheduling order:
The concise statements of facts play an important gatekeeping role in the Court's consideration of summary judgment motions.
Judge Connolly also goes a step further, emphasizing the importance of leaving out facts that are not essential to the court's resolution of the motion. He specifically instructs parties to "reference only the material facts that are absolutely necessary for the Court to determine limited issues presented in the motion for summary judgment (and no others)," and including a disputed fact in your concise statement is the fastest way to tank your motion.
This requirement has real teeth. This week, Judge Connolly denied five SJ motions in 10x Genomics, Inc. v. Celsee, Inc., issuing two- and three-page orders on each motion.
One in particular stood out: the defendant moved for summary judgment of non-infringement, and it included a fact in its concise statement that was rebutted by "record evidence that appears on its face to contradict" the concise statement. Judge Connolly concluded that:
Because there is a disputed fact that [the defendant] has said is material to its motion for summary judgment, I will deny the motion.
It's important to note that this motion (like the others) was decided on the papers. If you include disputed facts that are not material to your motion, you will be held to what's in the concise statement. So don't wait until the last minute to start preparing the statement, don't treat it as a formality or an afterthought, and don't expect to get an opportunity to explain away any issues at oral argument.
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