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06.20.2009 A Winning Motions Practice in the Rocket Docket ABA Committee on Commercial & Business Litigation
Article
Summer 2009
The following article was published in the The Committee on Commercial & Business Litigation newsletter, Vol. 10, No. 4, Summer 2009.

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The infamous “Rocket Docket” seems to be attracting more litigation than usual these days. There are two reasons for this development. Because a significant number of Internet providers are now located in Northern Virginia (e.g., AOL Time Warner), the U.S. District Court for the Eastern District of Virginia, better known as the “Rocket Docket,”1 has become a magnet for complex business litigation. Also, plaintiffs’ lawyers have historically liked the Rocket Docket’s rapid pace of play and the predictability of a quick result whether by settlement or trial. That attitude has caused an explosion of patent and trademark infringement litigation.2

Whether these litigants are searching for lead counsel or local counsel, they first want to know whether “the rumors” are true about the Rocket Docket. The answer is an emphatic yes. The Rocket Docket has long prided itself on being the fastest civil docket in the country. It boasts of resolving all civil cases within nine months of filing.

For lawyers who want to excel in the country’s fastest civil docket, this article is for you. This article focuses primarily on practical tips for best results in motions practice. The reason is simple: The Rocket Docket is notorious for resolving a high percentage of civil cases on dispositive motions. A seasoned lawyer has a decided advantage in making the Rocket Docket’s pace and idiosyncrasies work to his or her client’s favor.

Practical Tips
Before launching headlong into dispositive motions, a few practical tips are in order for the uninitiated. Let’s start with the certainty of your trial date—around which everything else revolves. Although each division3 has its own docketing system, you can rest assured that the court will set a trial date swiftly. Once set, the trial date becomes immutable. One of the icons of the Rocket Docket, the late Honorable Robert R. Merhige Jr., delighted in telling a story about the lawyers from Miami who announced at a pretrial conference that they had agreed to a continuance. Without batting an eye, Judge Merhige asked his law clerk for Black’s Law Dictionary because, he said, the lawyers were using a term with which he was not familiar—a “continuance.” Whereupon, the lawyers asked if they could confer privately, after which they reported that they had settled their case. The story speaks volumes about the philosophy of the Rocket Docket, that is, the fastest way to resolve any case is to set it for trial and hold the lawyers’ feet to the fire.

Not only does each division have a different docketing system, but each division has its own pretrial process, and some of the judges within a division use significantly different pretrial orders. Some pretrial orders literally manage every aspect of the case from start to finish, requiring strict adherence to every detail. Also, the process for obtaining hearing dates varies among the divisions and from judge to judge within a division. Some judges hear oral arguments on certain motions, but not on others. Some judges permit hearings by conference call; some do not. And some motions, such as discovery motions, may be referred to a U.S. magistrate judge for resolution. It can be confusing.

There is certainty, however, in the universal application of the Local Civil Rules. They are strictly enforced, without exception, across the Rocket Docket. Woe to the lawyers who attempt to depart from these rules “by agreement of counsel,” without leave of court. The Local Civil Rules contain many quirks that are not obvious to a visitor, but they can be identified by good local counsel. For example, the moving lawyer must be able to represent, before scheduling a dispositive motion for hearing, that he has conferred with opposing counsel to narrow the area of disagreement.4 Dispositive motions must be accompanied by a separate written brief setting forth a concise statement of the facts and supporting reasons, along with a citation of the authorities upon which the movant relies.5 A strict page limitation is enforced, as brevity is a virtue in the Rocket Docket.6 As if the pace of play were not fast enough, the Rocket Docket has its own peculiar response time for briefs in opposition and reply briefs designed to shorten the briefing schedule otherwise permitted by Federal Rules of Civil Procedure.7

Motions to Dismiss
Lawyers instinctively will consider the propriety of filing a traditional Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. In the Rocket Docket, you should not overlook the utility of the other Rule 12(b) motions, particularly lack of subject-matter or personal jurisdiction. The Rocket Docket zealously guards its jurisdiction and, if it finds justification in the facts and the law, is primed to dismiss or transfer a deserving case.

Turning to Rule 12(b)(6), this motion tests the legal sufficiency of the allegations found in the complaint, assuming always that the allegations are true. The seasoned practitioner knows that antitrust claims, business tort and conspiracy claims, RICO and other exotic claims8 are automatically suspect in the Rocket Docket and thus will be subjected to close scrutiny. Hence, the Supreme Court’s 2007 decision in Bell Atlantic Corp. v. Twombly was a bonanza for the defense bar. Before Twombly, the Supreme Court had steadfastly adhered to the liberal rule that a complaint should not be dismissed unless “no set of facts” could support the requested relief.9 In Twombly, a class action alleging violations of section 1 of the Sherman Antitrust Act, the Court replaced the “no set of facts” standard with a “plausibility” standard. Under the more rigorous test in Twombly, plaintiffs must allege facts demonstrating more than the “possibility” of entitlement to the relief sought; rather, they must allege the factual “plausibility” of their theory of recovery to survive a motion to dismiss.10 As a consequence, Twombly reinforced the Rocket Docket’s predisposition to “clean up” specious claims, or entire complaints for that matter, that might survive in other U.S. district courts.

A few other wrinkles about motions to dismiss are worth noting. In the Rocket Docket, a motion to dismiss is not considered a responsive pleading under Federal Rule of Civil Procedure 15(a). Thus, unless an answer is filed with a Rule 12(b) motion, the plaintiff can file an amended complaint as a matter of right.11 Also, a defendant is not in default when a Rule 12(b) (6) motion is filed as to one count in a multi-count complaint, yet no answer is filed to the other counts.12 Although the attachment of extraneous exhibits ordinarily converts a motion to dismiss to a motion for summary judgment, this is not true when the attachment happens to be the contract in question or a material document incorporated into the complaint.13 The point here is that a plaintiff’s failure to attach such material exhibits to the complaint is a red flag in the Rocket Docket that a motion to dismiss may be in order.

Motions for Summary Judgment
Motions for summary judgment, unlike motions to dismiss, test the sufficiency of the facts developed during discovery. For example, if an exotic business tort should survive a motion to dismiss, summary judgment is the vehicle to determine whether there is any genuine issue of material fact that would justify the time and expense of trial. In this regard, motions for summary judgment play into the philosophy of the Rocket Docket of narrowing the issues for trial and forcing the parties to settle whenever possible.

In the absence of a mandate in a pretrial order, the Local Civil Rules state that a motion for summary judgment shall not be considered unless it is filed, briefed, and set for hearing within a reasonable time before trial to permit the court to hear oral argument and consider the merits of the motion and briefs.14 The moving party must list in a specially captioned section all material facts as to which the party contends there is no genuine issue of material fact and cite to the record to support the alleged undisputed facts.15 The responding party must respond in kind, listing all material facts as to which the party believes there is a genuine issue necessary to be litigated and citing the record to support the alleged disputed facts. The court “may” (read shall) assume the facts identified by the moving party are admitted unless each fact is specifically controverted by the opposing party in the brief in opposition.

The Local Civil Rules do not specify how counsel should present the undisputed or disputed facts, or the citations therefor. The best practice is to list the facts in short, concise, separately numbered paragraphs, together with pinpoint cites to the record. Counsel should attach to the brief relevant parts of the record as exhibits, using numbered or lettered tabs. Be sure to use excerpts from the record; do not attach, for example, the entire deposition transcript when you are relying upon only a quote or two. Make your presentation as simple, straightforward, and user-friendly as possible under the circumstances. This may seem difficult given the complexity of your case, but the good lawyer will always find a way to do this.

Because discovery is the gristmill for the facts supporting summary judgment, a few comments about discovery are appropriate here. With your trial date rapidly approaching and various deadlines whirling by, you will not be afforded the luxury of procrastinating or pursuing marginally relevant theories of the case. The Rocket Docket places a heavy premium on developing and executing a purposeful discovery plan. It is not unusual in complex cases, for example, for counsel to doubleor triple-track depositions in various parts of the country while some team members are working simultaneously on written discovery and others are working on dispositive motions. Also, bear in mind that motions to expand the number of interrogatories will be granted sparingly, and you can expect only a modest increase in the number of permitted depositions. The Rocket Docket’s goal is to turn up the heat as high as possible until one or both parties run out of the kitchen.

Oral Argument
The topic of a winning motions practice would not be complete without mentioning oral argument. Before going into the Rocket Docket, or any court for that matter, counsel should be prepared to answer three simple questions: (1) What relief does your client want? (2) What is the authority for the relief requested? and (3) Why is the relief important or necessary in your case? Shockingly, too many lawyers appear in the Rocket Docket who cannot answer these questions. Regrettably, their client’s cause is doomed to failure.

In the Rocket Docket, you can safely assume that your judge has flyspecked the briefs and exhibits, has read the authorities cited by the parties, and is prepared to rule on the spot. Oftentimes, the judge will not be interested in an oration. In fact, the judge may have resolved certain issues on the briefs and only wants to hear from counsel about specific issues in the case. This can be disappointing given all the time and effort invested in your preparation. On the other hand, you can expect a prompt decision on the merits that will move your case along or bring it to an end.

Conclusion
The Rocket Docket is indeed fast paced. The “method in the madness,” so to speak, is calculated to force the parties into a prompt resolution of their dispute. Beware that the Rocket Docket is a potential trap for the uninitiated. Accordingly, visiting litigants and lawyers alike would be well advised to retain experienced lead or local counsel to help them safely navigate the Rocket Docket. In the right hands, the breakneck speed of the Rocket Docket can work to your client’s advantage.
Good luck!

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Endnotes
1. The Rocket Docket is located in the central and eastern
areas of Virginia, roughly along I-95 South from Washington, D.C.,
through Alexandria and Richmond, to the North Carolina line, and
east along I-64 through Norfolk and Virginia Beach to the Chesapeake
Bay and the Atlantic Ocean.
2. The increase in intellectual property filings caused the Rocket
Docket to adopt case management procedures that permit the court
to transfer new intellectual property filings among the three divisions,
irrespective of where the cases were originally filed.
3. The Rocket Docket is divided into three divisions with courthouses
located in the city of Alexandria to the north, the city of Richmond
in the heart of the district, and the city of Norfolk to the east.
4. See Local Civ. R. 7(E). Discovery motions must actually contain
a statement of counsel that a good faith effort has been made to
resolve the discovery matters at issue. See Local Civ. R. 37(E).
5. See Local Civ. R. 7(F)(1).
6. See Local Civ. R. 7(F)(3)
7. See Local Civ. R. 7(F)(1).
8. More than one U.S. district court judge in the Rocket Docket
has declared that civil RICO claims are prima facie sanctionable
under Rule 11. Tread lightly down that path, if at all.
9. Conley v. Gibson, 355 U.S. 41, 45 (1957).
10. Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
11. See United States v. Thomas Howell Kiewit, Inc., 149 F.R.D.
125 (E.D. Va. 1993).
12. See Godlewski v. Affiliated Computer Servs., Inc., 210 F.R.D.
571 (E.D. Va. 2002).
13. See Rule 12(d) and the annotations thereto.
14. See Local Civ. R. 56(A).
15. See Local Civ. R. 56(B).

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