IP Law Daily, PATENT—D. Del.: Court declines request by Jazz Pharmaceuticals for re-argument, (Sep 26, 2025)

By Donielle Tigay Stutland, J.D.

The court also denied an interlocutory appeal, finding that it would not “materially advance the ultimate termination of the litigation.”

The federal district court in Wilmington, Delaware denied a motion by Jazz Pharmaceuticals, Inc. seeking re-argument on of a motion to stay, or certification for an interlocutory appeal in the long-running patent and antitrust litigation between Jazz and Avadel CNS Pharmaceuticals LLC (Avadel) about Avadel’s LUMRYZ drug. The court previously determined that Jazz was not entitled to stay remaining proceedings on Avadel’s pending antitrust counterclaims. In denying Jazz’s motion for re-argument, the court concluded that Jazz’s arguments as to Avadel’s antitrust standing were fully considered and addressed. With respect to Jazz’s request for interlocutory appeal, the court found that one would not “materially advance the ultimate termination of the litigation.” The court highlighted that it has consistently held that "Avadel should have its day in court on its antitrust counterclaims against Jazz” (Avadel CNS Pharmaceuticals, LLC v. Jazz Pharmaceuticals, Inc., No. 1:22-cv-00941-GBW (D. Del. Sept. 23, 2025)).

Background. In 2022, Jazz filed the instant action triggering an automatic 30-month stay of the FDA's ability to authorize Avadel's NDA for LUMRYZ, an anti-sleepiness drug. In response, Avadel filed antitrust counterclaims alleging that Jazz violated Section 2 of the Sherman Act by improperly listing U.S. Patent No. 8,731,963 (the ’963 patent) in the Orange Book, and that Jazz continued to violate Section 2 of the Sherman Act, after an order to delist in earlier litigation, by refusing to delist that patent.

In March 2023, the parties stipulated to dismissal of the Jazz patent infringement claims against Avadel as well as Avadel’s counterclaims for declarations of noninfringement, invalidity, and patent delisting. That left only Avadel’s antitrust counterclaims remaining in this action, albeit Jazz continued to litigate patent claims unrelated to the ’963 patent against Avadel in other actions.

Then, in May 2024, the court held Noerr-Pennington did not immunize Jazz from Avadel’s counterclaims in the instant matter. The court accordingly denied the Jazz motion to dismiss Avadel’s counterclaims.

In May 2025, the court had found that Jazz was not entitled to stay remaining proceedings on Avadel’s pending antitrust counterclaims. The court reasoned, first, that it should not stay the action because a stay would not simplify issues for trial. Contrary to the Jazz argument that its ’782 patent, apparently being litigated in separate action, deprived Avadel of antitrust standing in the instant action, the court confirmed that Avadel had antitrust standing.

With discovery complete and trial scheduled to begin on November 3, 2025, the parties filed dispositive and Daubert motions. On September 15, 2025, the court concluded that there was a genuine dispute of material fact that precluded dismissal of the suit. Jazz also filed a supplemental motion to stay, which the court denied on grounds that included Avadel standing and prejudice to Avadel.

The court granted Jazz’s motion to compel by means of reopening discovery. The court reasoned that Fed. R. Civ. P. 26(e) did not apply because Jazz failed to comply with a local rule requiring “verbatim recitation” of an earlier and timely discovery request that encompassed the same information. Instead, the court found five good cause reasons to reopen discovery. Chief among them, the particular documents Jazz sought did not exist at the close of discovery.

Jazz filed a motion for re-argument of the Opinion's deferral and denial or, alternatively, certification for interlocutory appeal.

Re-argument. The court first noted that it views the portion of Jazz’s motion for re-argument of the opinion’s deferral as moot. As to Jazz’s motion for re-argument of the denial of the Motion to Stay, the court found that Jazz did not satisfy the requirements under Brown v. Centurian of Delaware, which held that re-argument is appropriate: (1) where the court has patently misunderstood a party, (2) where the court has made a decision outside the adversarial issues presented to the court by the parties, or (3) where the court has made an error not of reasoning but of apprehension.” The court wrote "Since the Court has already fully considered and addressed" this argument, it does "not provide grounds" for Jazz’s Motion. The court also indicated that reconsideration would also not be appropriate, given the litigation's advanced stage.

Interlocutory appeal. The court also declined to certify an interlocutory appeal under 28 U.S.C. § 1292(b). The court outlined that in order for a district court to grant a § 1292(b) certificate, the order to be appealed: "must (1) involve a 'controlling question of law,' (2) offer 'substantial ground for difference of opinion' as to its correctness, and (3) if appealed immediately ‘materially advance the ultimate termination of the litigation.’” The court found that here, an interlocutory appeal would not “materially advance the ultimate termination of the litigation.” Here, the court stressed that trial begins in less than six weeks, discovery is complete, and the action is approaching trial without the need for interlocutory disruption.

The court indicated that even if all three criteria were met, it would use its discretion to decline to certify an interlocutory appeal, noting that it has consistently held that "Avadel should have its day in court on its antitrust counterclaims against Jazz."

The Case is No. 1:22-cv-00941-GBW.

Judge: Williams, G.

Attorneys: Alexandra M. Joyce (McCarter & English, LLP) for Avadel CNS Pharmaceuticals, LLC. Jack B. Blumenfeld (Arsht & Tunnell LLP) for Jazz Pharmaceuticals, Inc.

Companies: Avadel CNS Pharmaceuticals, LLC; Jazz Pharmaceuticals, Inc.

Cases: Patent DelawareNews