Sherry R. Fallon
How Judge Fallon decides
Patterns drawn from this judge's own signed orders. Every observation links to the order it came from.
What persuades
Patent pleading -- standard-essentiality is not a shortcut to inducement knowledge. Alleging that the asserted patents are essential to an industry standard (here MPEG-DASH/ISO-IEC 23009-1) and that the defendant practices that standard does NOT, by itself, plead pre-suit knowledge of infringement, because a standard often does not establish that compliance always infringes and may cover only optional sections. Plead how the defendant's specific products read on the patents.
“an industry standard does not provide the level of specificity required to establish that practicing that standard would always result in infringement.”
Contributory patent infringement requires identifying a component with no substantial non-infringing use. Pointing at an accused platform 'as a whole' without isolating a separate-and-distinct feature that has no substantial non-infringing use is fatal at the pleading stage.
“The amended complaint and affiliated infringement charts refer to the Gusto platform as a whole without identifying how any component part of the Gusto platform has 'no substantial non-infringing uses.'”
Procedural preferences
Rule 12(g)(2) is enforced strictly: a defendant who could have raised a defense (e.g. insufficiency of direct-infringement allegations, or lack of pre-suit notice of certain patents) in its FIRST Rule 12 motion but did not, waives it -- the filing of an amended complaint does not revive previously-available arguments. Consolidate all Rule 12 arguments in one motion.
“Plaintiff's subsequent filing of the FAC and the SAC does not grant Defendants a fresh opportunity to revive arguments that were previously available to them, but that Defendants failed to press.”
Granting leave to amend moots a pending pleadings-stage motion. When the court grants leave to file a superseding amended complaint, a Rule 12(c) motion for judgment on the (now-nullified) prior pleading is denied as moot rather than reached on the merits -- so a pending dispositive motion can disappear procedurally if the opponent secures leave to replead.
“the court recommends denying Defendants' partial motion for judgment on the pleadings as moot . . . in light of the court's granting the plaintiffs' subsequently filed motion for leave to file a second amended complaint.”
Cautions
Fallon is a MAGISTRATE JUDGE. On REFERRED matters (docket suffix -SRF appended to the district judge, e.g. -CFC-SRF, -LPS-SRF, -RGA-SRF) her Reports & Recommendations are RECOMMENDATIONS subject to de novo review on objection -- not final rulings; confirm whether the district judge adopted, modified, or rejected the R&R before relying on the outcome. Only in 636(c) CONSENT cases (suffix -SRF only), including Social Security appeals where the parties consent, are her orders final (e.g. Walker v. Colvin).
“This Report and Recommendation is filed pursuant to 28 U.S.C. 636(b)(1)(B), Fed. R. Civ. P. 72(b)(1), and D. Del. LR 72.1.”
Motion outcomes
Counted from classified signed orders only. Percentages are shown only where the sample is large enough to be meaningful; smaller samples are reported as raw counts.
| Motions to dismiss N = 4 |
Granted: 2Granted in part: 1Denied: 1 | counts only |
| Summary judgment N = 2 |
Granted: 1Denied: 1 | counts only |
| Judgment on the pleadings N = 1 |
Moot / procedural: 1 | counts only |
| Motions to stay N = 1 |
Granted: 1 | counts only |
| Motion to substitute N = 1 |
Granted: 1 | counts only |
| Motions to remand N = 1 |
Granted in part: 1 | counts only |
A "1 of 1" is one ruling, not a tendency. Treat small samples as illustrative, not predictive.
Signed rulings
A grounded sample of orders signed by this judge, with the verbatim dispositive language.
“For the foregoing reasons, the court recommends granting the Gusto's motion to dismiss without prejudice.”
“the court recommends denying defendant's motion to dismiss for failure to state a claim and granting defendant's motion to stay.”
“the court recommends denying defendant's motion to dismiss for failure to state a claim and granting defendant's motion to stay.”
“For the foregoing reasons, I recommend that the court DENY Defendants' partial motion for judgment on the pleadings without prejudice.”
“Therefore, the court recommends granting with prejudice the United States' motion to dismiss plaintiff's negligence and/or gross-negligence claims for lack of subject matter jurisdiction.”
“Therefore, the United States' motion to substitute party is granted.”
“Therefore, the court recommends granting plaintiff's motion to remand only his supplemental state law claims against GoDaddy, PayPal, and Shijil to the Delaware Superior Court.”
“I recommend that the court GRANT-IN-PART and DENY-IN-PART Vudu's motion to dismiss (D.I. 53) without prejudice as follows: a. GRANT Vudu's motion with respect to the FAC's induced infringement claims in Count VI; b. GRANT Vudu's motion with respect to the FAC's pre-suit induced infringement claims in Counts I-V and VII-XI; and c. DENY Vudu's motion with respect to the post-suit inducement claims in Counts I-V and VII-XI.”
“For the foregoing reasons, (1) Walker's Motion for Summary Judgment (D.I. 13) is denied; and (2) the Commissioner's Cross Motion for Summary Judgment (D.I. 19) is granted.”
“For the foregoing reasons, (1) Walker's Motion for Summary Judgment (D.I. 13) is denied; and (2) the Commissioner's Cross Motion for Summary Judgment (D.I. 19) is granted.”