BioNTech SE v. CureVac SE

• Court: District Court, E.D. Virginia
• Decided: June 27, 2024
• Docket: 2:23-cv-00222
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division

BIONTECH SE, et al., Plaintiffs / Counter Defendants, v.

CUREVAC SE,

Defendant / Counter Claimant, Case No. 2:23-cv-222

and

CUREVAC MANUFACTURING GMBH, Counter Claimant. ORDER Before the Court is an unopposed report and recommendation prepared by the Honorable Douglas E. Miller. ECF No. 308. The report and recommendation will be ADOPTED, Acuitas Therapeutics, Inc.’s Combined Motion to Intervene, Sever and Stay (ECF No. 138) will be DENIED AS MOOT, and the current scheduling order shall be MODIFIED as described herein. On November 14, 2024, Actuas Therapeutics, Inc. (“Acuitas”) filed a Combined Motion to Intervene, Stay and Sever. ECF No. 138. In an April 12, 2024 Report and Recommendation (“R&R”), Judge Miller granted intervention and recommended this Court stay the entire action pending the outcome of parallel litigation between Acuitas and Defendant CureVac SE (“CureVac”). ECF No. 258 at 1. On April 25, 2024, CureVac filed a Notice of Settlement, notifying the Court that it had resolved its dispute with Acuitas. ECF No. 262. The following day, it filed an objection to the R&R, expressing that the settlement would result in withdrawal

of several claims in the instant litigation and that Acuitas could be dismissed from this case. ECF No. 265.1Because of those changed circumstances, theCourt returned this matter to Judge Miller with instructions to provide updated recommendations regarding the litigation schedule. ECF No. 302 (citing Fed. R. Civ. P. 72(b)(3)). Judge Miller filed his Revised Report and Recommendation on Severance and Stay (“Revised R&R”) on June 11, 2024. ECF No. 308. In it, he recommends that the Court (1) deny Actuas’s motion to stay and sever as moot and (2) adopt a modified

schedule for discovery and expert disclosure. Id. at 4. The Revised R&R advises the parties of their rights to object to Judge Miller’s findings and recommendations and explains that failure to timely object will result in a waiver of appeal from a judgment of this Court based on such findings and recommendations. ECF No. 308 at 5–6 (citing Thomas v. Arn, 474 U.S. 140 (1985); United States v. Schronce, 727 F. 2d 91 (4th Cir. 1984)). The time to file an objection

has expired, and neither party objected to the Revised R&R. In the absence of a specific written objection, this Court may adopt a Magistrate Judge’s recommendations without conducting a de novo review, unless

1 Acuitas was dismissed on June 14, 2024. ECF No. 314. the recommendations are clearly erroneous or contrary to law.Fed. R. Civ. P. 72(b)(2); see Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982) (citations omitted); Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005).

The Court has reviewed Judge Miller’s findings and recommendations and found no clear error. Accordingly, the Revised Report and Recommendation on Severance and Stay (ECF No. 308) is ADOPTED. Acuitas Therapeutics, Inc.’s Combined Motion to Intervene, Sever and Stay (ECF No. 138) is DENIED AS MOOT. The following schedule shall govern proceedings in this matter:

Fact discovery closes, including all fact depositions July 26, 2024 Identification of proposed expert witnesses August 9, 2024 Opening expert reports August 28, 2024 Rebuttal expert reports October 1, 2024 Sur-rebuttal expert reports October 22, 2024 Completion of all discovery, including depositions November 27, 2024 taken for presentation in evidence in lieu of the appearance of a witness at trial Dispositive and Daubert motions December 20, 2024 Response to dispositive and Daubert motions January 6, 2025 Pretrial Disclosures January 6, 2025 Reply to dispositive and Daubert motions January 17, 2025 All non-dispositive motions January 17, 2025 Objections to pretrial disclosures and plaintiff to January 22, 2025 distribute proposed final draft of proposed Final Pretrial Order Opposition brief to non-dispositive motions January 29, 2025 Attorneys’ conference January 29, 2025 Settlement Conference Before January 31, 2025 Proposed Final Pretrial Order January 31, 2025 Voir dire and jury instructions February 6, 2025 Opposition to proposed final jury instructions February 11, 2025 Final Pretrial Conference February 14, 2025 Pretrial briefs February 24, 2025 (Not later than five business days before trial) Three sets of pre-marked, indexed copies of each February 28, 2025 (Not party’s exhibits later than one business day before trial) Three-week jury trial begins March 3, 2025 All other directions in the Amended Scheduling Order shall still apply. The Clerk is DIRECTED to send a copy of this Order to all counsel of record. IT IS SO ORDERED. OKO /s/ Jamar K. Walker United States District Judge Norfolk, Virginia June 27, 2024