Those with a habit of perusing these posts (thank you, persons of class and distinction) may recall the interesting case of Almirall, LLC v. Torrent Pharmaceuticals Ltd., C.A No. 20-1373-LPS, D.I. 50 (D. Del. July 13, 2021) where Judge Stark granted a 12(c) motion after ruling that the plaintiff had waived various arguments by failing to raise them until oral argument.
I, for one, expected that to be the last we heard of that case for some time. Last Friday, however, Judge Stark granted Almirall's motion to amend the complaint to reassert these same claims, based on new allegations similar to those the Court previously found waived. Judge Stark did, however, require Almirall to pay the defendants' fees in bringing the original 12(c) motion, stating:
Almirall’s proposed amendment does not . . . absolve it of responsibility for the tortuous procedures that led to this point. As Torrent rightfully points out, “Torrent invested substantial money and effort moving for judgment on the pleadings on Almirall’s
original complaint and the Court spent considerable time deciding Torrent’s motion.” Almirall could have prevented that loss of time (and Torrent’s money) by including all
relevant factual allegations in its original complaint, by moving to amend before the Court
decided Torrent’s motion, or, at a minimum, by raising its arguments regarding prosecution history estoppel in its opposition brief . . . . Almirall’s failure to pursue
any of those courses of action led to the Court’s decision on the issue of prosecution history estoppel without the benefit of Almirall’s identification of potentially pertinent portions of the prosecution history. Almirall’s deficient response to the motion for judgment on the pleadings is even more inexplicable in light of the new contentions it has raised in its amended complaint.
Almirall, LLC v. Torrent Pharmaceuticals Ltd., C.A No. 20-1373-LPS, D.I. 63 (D. Del Sept. 3, 2021) (cleaned up)
You don't often see fees awarded against the party that wins a motion, but sometimes that's just the price of keeping your case alive.