Filed February 13, 2019
Defendants’ argument is so cursory and undeveloped that it constitutes a waiver and forfeiture of the right to invoke qualified immunity under the second prong. See, e.g., Laborers’ Int'l Union of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994); In re Wettach, 811 F.3d 99, 115 (3d Cir. 2016) (“[B]ecause they fail to develop either argument in their opening brief, the Court holds that the Wettachs have forfeited these claims.”); Karchnak v. Swatara Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 59 of 62 53 Twp., No. 07-CV-1405, 2009 WL 2139280, at *21 (M.D. Pa. July 10, 2009) (“A party waives an issue if it fails to brief it in its opening brief; the same is true for a party who merely makes a passing reference to an issue without elaboration.”); see also Rodriguez v. Municipality of San Juan, 659 F.3d 168, 175 (1st Cir. 2011).
Filed February 4, 2019
And even where a party mentions an argument in passing, without supporting authorities, such cursory treatment of an argument is insufficient to avoid a waiver or forfeiture. See, e.g., Laborers’ Int'l Union of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994); In re Wettach, 811 F.3d 99, 115 (3d Cir. 2016) (“[B]ecause they fail to develop either argument in their opening Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 56 of 59 48 brief, the Court holds that the Wettachs have forfeited these claims.”); Karchnak v. Swatara Twp., No. 07-CV-1405, 2009 WL 2139280, at *21 (M.D. Pa. July 10, 2009) (“A party waives an issue if it fails to brief it in its opening brief; the same is true for a party who merely makes a passing reference to an issue without elaboration.”)
Filed September 10, 2018
To the contrary, apportionment is only required when a plaintiff 66 Plaintiff’s Infringement Contentions (ECF Nos. 199-2 through 199-22) and evidence cited therein (ECF Nos. 166-25 through 166-73). 67 ECF No. 199 at 11 n.9. 68 See Brewster v. Dretke, 587 F.3d 764, 768 n.2 (5th Cir. 2009); U.S. v. Saucedo-Munoz, 307 F.3d 344, 352 n.10 (5th Cir. 2002); Halicki Films, LLC v. Sanderson Sales & Mktg., 547 F.3d 1213, 1229, 1230 (9th Cir. 2008); Dubay v. Wells, 506 F.3d 422, 427 n.1 (6th Cir. 2007); Laborers’ Int'l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994). 69 Plaintiff’s Infringement Contentions (ECF Nos. 199-2 through 199-22) and evidence cited therein (ECF Nos. 166-25 through 166-73).
Filed March 13, 2017
Moreover, in order to respond to an issue first presented in an opening brief, its initial discussion must have amounted to more than a "passing reference.” See Laborers' Int'l Union v. Foster Wheeler Energy, 26 F.3d 375, 398 (3d Cir.1994) (quoting Simmons v. City of Philadelphia, 947 F.2d 1042, 1066 (3d Cir. 1991)).” As is more fully addressed in the following sections of the reply, Plaintiff’s opposition misapplies the law and facts of this case and misconstrues Defendants’ arguments.
Filed February 1, 2010
Defendants cannot wait for a reply brief to establish grounds for dismissal, and the court should deny their motion on that basis. D’Aiuto v. City of Jersey City, No. 06-6222 (JAG), 2007 U.S. Dist. LEXIS 57646, *10 n. 1 (D.N.J. Aug. 8, 2007) (citing Laborers’ Int’l Union v. Foster Case 2:09-cv-02642-JS Document 35 Filed 02/01/2010 Page 27 of 63 - 16 - 479466_1 Wheeler Corp., 26 F. 3d 375, 398 (3d Cir. 1994) (“An issue is waived unless a party raises it in its opening brief.” ); Simmons v. City of Philadelphia, 947 F.2d 1042, 1066 (3d Cir. 1991) (“a passing reference to an issue in a brief will not suffice to bring that issue before this court”).
Filed December 7, 2018
2013 WL 1386954, at *4. Case 2:16-cv-05672-MSG Document 110 Filed 12/07/18 Page 5 of 10 6 CIO v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is waived unless a party raises it in its opening brief.”).
Filed May 1, 2017
Non–Signatories *7 Although courts, not arbitrators, generally decide whether non-signatories to an arbitration agreement can be bound thereby, 7 persuasive case law suggests that a motion to confirm is not the proper time or procedural vehicle to make such determinations. 7 See Laborers Int'l Union v. Foster Wheeler Corp., 26 F.3d 375, 399 n. 27 (3d Cir.1994); N.J. Regional Council of Carpenters v. K & M Gen., No. 11– 1645, 2011 WL 3475532, at *3 (D.N.J. Aug.9, 2011); Bricklayers & Allied Craftwkrs. Admin.
Filed February 5, 2014
Such sandbagging tactics are not tolerated by the courts. See Laborers’ Int’l Union v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“[a]n issue is waived unless a party raises it in its opening brief, and for those purposes ‘a passing reference to an issue . . . will not suffice to bring that issue before this court.’”) (citations omitted).