We talked earlier this year about a decision by Judge Burke that struck a parties' final infringement contentions under a good cause standard, and declined to apply the much looser Pennypack standard.
Today, citing Judge Burke's opinion, Judge Williams likewise declined to rely on Pennypack in striking late-served "Amended Final Invalidity Contentions":
According to the Court's Scheduling Order, Defendants must serve their Final Invalidity Contentions to Chervon by December 17, 2020, which they did so. D.I. 37 if 7(f). On July 27, 2022, Defendants served their Amended Final Invalidity Contentions. D.I. 316 at 1; D.I. 319 at 1. Defendants did not request leave from the Court to amend their Final Invalidity Contentions or extend the Court's deadline for final invalidity contentions. Under Federal Rule of Civil Procedure 16(b)(4), "[a] schedule may be modified only for good cause and with the judge's consent." See also Lipocine, 2020 WL 4794576, at *3. Thus, Defendants were required to seek leave of the Court before serving their Amended Final Invalidity Contentions. [suggesting in a footnote that the Pennypack is irrelevant, citing Judge Burke's opinion in Vaxel] Because Defendants failed to seek leave of the Court, their Amended Final Invalidity Contentions are stricken.
Chervon (HK) Ltd. v. One World Techs., Inc., C.A. No. 19-1293-GBW (D. Del. Mar. 6, 2023).
Wow, short and sweet. This opinion actually goes a bit further than Judge Burke did in Vaxel. Judge Burke struck contentions after counsel "candidly admitted" that it submitted its contentions late because of a "strategic 'mistake,'" rather than any good cause. Vaxel Int'l Co., Ltd v. HealthCo LLC, C.A. No. 20-224, D.I. 226 (D. Del. June 28, 2022).
Here, in Chervon, Judge Williams doesn't even reach the question of good cause. He seems to hold that, under FRCP 16(b)(4), defendant's failure to seek leave to serve amended contentions alone was sufficient to strike them—regardless of any good cause they may have had.
This is definitely an opinion to keep in mind if you reach a point in a case where you are making the (very common) call of "do we move for leave to serve it late, or just serve it and leave it to the other side to try to strike?"
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