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Silverstein and O’Byrne Outline Impacts of Judge Robinson’s Retirement

March 22, 2017

In “And Then There Were Three: Del.'s Judge Robinson Set to Retire,” an article published in Delaware Business Court Insider, associates Alan Silverstein and Stephanie O'Byrne outline the short- and long-term impacts of Judge Sue L. Robinson’s retirement. Robinson is the longest-serving member of the U.S. District Court for the District of Delaware and the district judge with the second-highest number of patent cases assigned on a per judge basis in the country.

And Then There Were Three: Del.'s Judge Robinson Set to Retire

On Feb. 3, Judge Sue L. Robinson, the longest-serving member of the U.S. District Court for the District of Delaware (and the district judge with the second-highest number of patent cases assigned on a per judge basis in the country) acquired another title—that of senior judge. That announcement, set forth in a post on the district court's website, also contained the news that Robinson will fully retire in the summer of 2017. We will address below both the short- and long-term impacts of Robinson's transition into senior status on the court's assignment of new criminal and new civil cases.

District Dynamics

In the last PricewaterhouseCoopers Patent Litigation Survey, District of Delaware Judges Robinson and Gregory M. Sleet and Chief Judge Leonard P. Stark, in that order, were the top three most active U.S. district court judges (based on number of patent decisions) between 1996 and 2015. This statistic is even more remarkable considering that Stark became an Article III judge only in 2010. Whereas the national average for intellectual property case load was 20.8 cases per judge in 2015 (the last year of complete data), in Delaware, each District of Delaware judge had, on average, a remarkable 165 cases.

Although this volume of cases continues to keep the District of Delaware judges very busy, it also means that the District of Delaware is a highly experienced forum for handling complex intellectual property matters. Robinson's expertise will certainly be missed; however, even in her absence, the remaining wealth of experience will continue to be of great benefit to litigants in Delaware.

Case Management Impact

In preparation for the increased workload the remaining three District of Delaware judges will be asked to shoulder, the district court's announcement contained the following guidance as to procedures for new cases:

  • Robinson will not be assigned any new cases. Until her vacancy is filled, some civil cases will be assigned to a "vacant judgeship" and referred to a magistrate judge for case management. The magistrate judges will have the full authority permitted by law to manage the vacant judgeship docket, including by entering schedules through trial, deciding nondispositive matters and making recommendations as to resolution of dispositive matters.
  • In the event a case assigned to the vacant judgeship requires the attention of a district judge, the case will be reassigned from the vacant judgeship to one of the district's sitting judges, Stark, Sleet and Judge Richard G. Andrews.
  • Magistrate judges remain available to a handle a case in full, including trial, with the consent of the litigants. Delaware has three magistrate judges: Chief Magistrate Judge Mary Pat Thynge, Magistrate Judge Christopher J. Burke and Magistrate Judge Sherry R. Fallon.
  • Robinson's existing cases will be assigned to one of the active district judges on an as needed basis.

Vacancy Accommodation

The district court will undoubtedly work to accommodate Robinson's existing cases once she fully retires in summer 2017. While it is true that the district's three judges (with the assistance of its three magistrate judges) will be asked to do the work of four during the time Robinson's position remains vacant, being busy is not uncharted territory for the District of Delaware.

Indeed, the District of Delaware has experience in managing extended vacancies on its bench. A judicial vacancy was created in December 2006 by the elevation of then District Court Judge Kent A. Jordan to the U.S. Court of Appeals for the Third Circuit. In July 2008, after the vacancy in the fourth judgeship had existed for more than one year, the Third Circuit designated and assigned District of Delaware cases to U.S. district court judges from the District of New Jersey and the Eastern District of Pennsylvania. Although Jordan's vacancy was filled by now-Chief Judge Stark on Aug. 10, 2010, another vacancy on the Delaware bench was created around the same time with the retirement of Judge Joseph J. Farnan Jr. on July 31, 2010. The District of Delaware continued to be down one judge until Andrews took the bench on Nov. 7, 2011. All the while, the district judges successfully managed a case load that was nearing the all-time District of Delaware peak.

Litigation Strategies

Counsel should be prepared to advise their clients about the new procedures and the benefits of consenting to a magistrate judge conducting all proceedings in a case, including trial, entry of final judgment and post-trial proceedings. The District of Delaware's magistrate judges have substantial experience and are frequently called upon to manage cases and hear nondispositive as well as dispositive motions.

Litigants might also be well-advised to consider the possibility of short delays while the court transitions from Robinson's departure and incorporate this possibility into their case strategies and budgets. Importantly, however, the active district judges have each adopted dispute procedures in patent cases that circumvent traditional motions to compel, for a protective order, and to strike (among others). Utilization of these procedures results in a faster resolution than the typical motion practice favored in other districts, and provides a counterbalance to other delays that may arise in the trial schedule.

Future of the Court

Adding another wrinkle to the story, the court also awaits Congress's approval for a fifth district judge. In 2015, the Judicial Conference of the United States recommended the addition of one permanent Article III judge for the District of Delaware. Although the weighting system has been adjusted since the Judicial Conference's last biennial recommendation (particularly with regard to patent cases), just this March the Judicial Conference continued its prior recommendation that an additional judge be added in 2017.


The Delaware District Court and its practitioners will certainly miss "one of the most respected and experienced district judges in the country." Its prior vacancy management procedures have successfully allayed practitioners' concerns, and those put in place following the court's announcement should be as effective as those previously implemented.

The court has established a reputation for maintaining a high level of attention to its cases, which attention persisted during prior vacancies, and will no doubt continue during Robinson's transition to senior judge and after her retirement. Robinson's departure certainly leaves large shoes to fill. However, attorneys and litigants should be confident that it will be business as usual in the District of Delaware in 2017 and beyond.

This article first appeared in the Delaware Business Court Insider.