A Blog About Intellectual Property Litigation and the District of Delaware


The judges' form scheduling orders in D. Del. require deadlines for motions to amend, tracking FRCP 16(b)(3)(a), which says scheduling orders must limit the time to amend pleadings.

In an oral order on Friday, Judge Burke granted a motion to amend an answer that was filed on the day of the deadline set in the scheduling order.

He described how difficult it would be for a party to argue that a motion to amend was untimely when it was filed before the agreed-upon deadline:

It would be the unusual case where a Court had previously determined (at the parties' request) that amendment could be allowed by a certain date without causing harm to the case schedule, and yet thereafter the Court would nevertheless find a claim filed by that deadline to be untimely.

This was true even where "Plaintiff is probably correct that most or all of the documents and facts underlying the [new] claims were publicly available" before the original answer.

He made the same point as to prejudice:

[B]ecause the Motion was filed prior to the deadline for amending pleadings, it is hard for Plaintiff to convincingly argue that it would be unduly prejudiced by the addition of the claims/defenses.

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