A Blog About Intellectual Property Litigation and the District of Delaware


This. This is what you need to include with your motion to amend.
This. This is what you need to include with your motion to amend. Andrew E. Russell

Yesterday, Judge Andrews issued an opinion denying a motion to amend a complaint for failure to follow Local Rule 15.1, which requires a party moving to amend to attach the amended pleading and a redline.

This is something parties often mess up, as we've mentioned.

Here, the moving party attached the pleading and redline to a declaration submitted with the reply brief, but the Court found that was insufficient, because it occurred after the answering brief and left the Court without useful briefing on the motion to amend:

Defendants' first argument for denying Plaintiffs' motion was the failure to comply with the Local Rule. (D.I. 75 at 4). The moving Plaintiffs responded by filing the Rule-compliant proposed amended complaint as an attachment to a Declaration that accompanied their reply brief. (D.I. 81-1 ). This is insufficient. And it was not without cost. By that point, Defendants had already submitted their opposition brief. (D.I. 75). Defendants' brief-perhaps as the result of the moving Plaintiffs' filing irregularities- addresses matters that are inappropriate to the status of the case. For example, Defendants mistakenly center several of their arguments upon the Declaration of Plaintiff Cai (D.I. 69) and the Declaration of Plaintiff Lei (D.I. 70), rather than the factual allegations contained within the proposed amended complaint (which did not incorporate either Declaration). Consequently, I now have briefing (at least from Defendants) that is not very helpful in deciding whether to grant or deny the motion.

Judge Andrews denied the motion without prejudice to refiling. In a footnote, he also raised that opposing local counsel should have flagged the issue before their response rather than in their answering brief:

Some filing errors are caught by the Clerk's Office. But when they are not, I would hope that members of the Delaware Bar would point out such an error to opposing counsel as a courtesy, at a time when the error could be easily rectified with essentially no cost to either side.

In this instance, however, that may have been difficult for Delaware counsel. Based on the docket, it looks like the motion to amend was filed on the last day permitted by the scheduling order, so the relatively easy FRCP 15 standard applied ("The court should freely give leave when justice so requires.").

Now that the Court has denied the motion for failure to follow the rules, I imagine the opposing party may argue that any new motion is untimely by 5+ months, and the much-tougher-to-meet "good cause" standard applies under FRCP 16. The moving party could be left in the position of arguing that its failure to follow the rules constitutes good cause.

To point out the error at the time of the original motion, Delaware counsel would have had to convince co-counsel and the client to let the other side off the hook on the "good cause" standard, rather than taking a shot at getting the higher standard and easier argument. That might have been a heavy lift!

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