Friday, May 14, 2010

In Trial of Declaratory Relief Case, Defendant to Proceed First and Neither Party May Refer to Itself as "Plaintiff"

In a declaratory relief action, the court ordered defendant to present its claims first and instructed that neither party could refer to itself as the plaintiff. "[Plaintiff's] claims are defenses to liability. Thus, for [plaintiff] to establish its claims, the jury must first understand the meaning and operation of [defendant's] patents. In this situation, the most 'orderly and sensible' order of proof is for [defendant] to establish the alleged scope and meaning of its patents after which [plaintiff] can present evidence in support of its claims. . . . Both [plaintiff] and [defendant] are the 'plaintiff' on certain counts in that they are the party who brought suit. Given the presence of claims, counterclaims, and third-party claims, it would not be helpful for any party in this case to refer to itself as 'plaintiff.'"

DuPont Air Products NanoMaterials L.L.C. v. Cabot Microelectronics Corporation, 2-06-cv-02952 (AZD May 12, 2010, Order) (Silver, J.)

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