I’m partial to percussion and noticed that there was a gaping hole of staccato in the rising swell of the IPDE music videos, subtle though it may have been in the background of Andrew's singing and Nate’s interpretive dance performances. Leaving the snare drum at home, today I chime in only with the lonely voice of a wistful triangle to supplement this week’s stories with a tale from a faraway land—the Eastern District of Texas.
Why do we in Delaware care about this opinion? It gave me a fresh appreciation for the orderly composition of Delaware scheduling orders. It involved a problem that cannot arise in a District of Delaware case.
In Symbology, the E.D. Tex. Court found the plaintiff violated Rule 11 by filing a Third Amended Complaint (and by filing a First Amended Complaint in a related matter), in an effort to avoid responding to defendants' successive motions to dismiss. Symbology Innovations, LLC v. Valve Corp., C.A. 2:23-419-JTG, D.I. 110 (E.D. Tex. Jan. 31, 2025). In that E.D. Tex. case, a provision in the scheduling order opened the door for plaintiff to file those successive pleadings—something which would not have been permitted in Delaware without the Court's leave.
The E.D. Tex. scheduling order enabled multiple amendments without leave.
Several E.D. Tex. scheduling orders, including forms offered by J. Gilstrap, J. Clark, J. Schroeder III, J. Truncale, conditionally allow plaintiffs to amend pleadings without leave prior to a certain deadline. But see J. Barker's form.
The scheduling order in this E.D. Tex. case (titled the “Docket Control Order”) specifically stated:
It is not necessary to seek leave of Court to amend pleadings prior to this deadline unless the amendment seeks to assert additional patents.
With that provision, unlike with a typical D. Del. scheduling order, the plaintiff did not need to seek the Court’s leave to amend under Rule 15(a)(2), even past the deadline to amend once as a matter of course.
The Federal Rules do not, by default, allow for successive amendments to the pleadings without either written consent from opposing counsel or the Court’s leave. Because Delaware scheduling orders include no provision like this, a plaintiff cannot file multiple amended complaints to avoid successive motions to dismiss.
In Symbology, after the plaintiff filed its complaint, the defendants responded with a first motion to dismiss. Plaintiff then amended their complaint, mooting the first motion to dismiss, and the defendants filed a second motion to dismiss. In response, plaintiff filed a second amended complaint—then a revised second amended complaint. Defendants responded by filing their third motion to dismiss.
Then, it happened again. Plaintiff filed a third amended complaint, and the defendants countered with a fourth motion to dismiss, a motion to strike the third amended complaint, and (somewhat later) a motion for sanctions.
A Rule 11 violation? Yes indeed.
In response to the Symbology defendants' motion for sanctions, the Court found the plaintiff violated Rule 11 by filing that Third Amended Complaint (and by filing a First Amended Complaint in a related matter), even though the scheduling order allowed successive amendments without leave.
Early in this case, the Court ordered plaintiff to respond to the first motion to dismiss at the conclusion of certain discovery:
Plaintiff's response to the Motion to Dismiss shall be filed within fifteen (15) days of issuance of the final transcript of the referenced Rule 30(b)(6) deposition, or within eighty-nine (89) days of the issuance of this Order, whichever is later.
But that date came and went, and the plaintiff filed no such response. Instead, plaintiff launched a volley of amended complaints, and when the dust settled, the defendants' motion to strike the Third Amended Complaint accused plaintiff of violating the Court's former mandate to respond to its motion to dismiss.
The Court agreed and clarified that, notwithstanding the permissive scheduling order allowing amendments to the pleadings without leave, the plaintiff could not just ignore the Court-ordered briefing schedule on defendants' motion to dismiss (D.I. 64):
[T]he [Docket Control Order's] deadline for amended pleadings does not allow Symbology to avoid responding to Valve's Motion to Dismiss. The parties have conducted expedited venue discovery, and Symbology should have all the information it needs to respond to Valve's Motion to Dismiss. As such, the Court GRANTS Valve's request to order Symbology to file a response to Valve's renewed Motion to Dismiss[.]
With plaintiff's Third Amended Complaint pending on the docket (strike denied), the Court did not mince words or onions in prohibiting further amendments:
Symbology is prohibited from further amending its complaint prior to the Court's order addressing the Motion to Dismiss on the venue issue without first receiving leave of the Court.
A few months later, defendants sought sanctions for this chaos and won.
The E.D. Tex. Court found that the plaintiff violated Rule 11 by filing the Third Amended Complaint and by not responding to the defendant's renewed motion to dismiss, because the plaintiff directly disobeyed the Court-ordered briefing schedule on the motion to dismiss and plaintiff mistakenly assumed that filing amended pleadings (without leave) would moot its need to participate in that court-ordered briefing. Plaintiff's actions “unnecessarily delay[ed] the resolution of [defendant’s] motion to dismiss” and “needlessly increased the cost of litigation” including by increasing “the cost the parties incurred and wasted judicial resources.”
All told, the Court found several Rule 11 violations embodied in the Third Amended Complaint.
The Court found that the pleading also contained factual allegations that plaintiff and plaintiff's counsel knew were false. The Court concluded that plaintiff's counsel should have known better than to assert certain venue allegations. This particular plaintiff's counsel had also already been warned by a different district court (W.D. Tex.) that:
amendments to the venue allegations in the original complaint are better suited for a response to the Motion to Dismiss.
According to the Court:
“It is clear that [plaintiff’s counsel’s] actions in these cases not only violated Rule 11 as addressed above but were well below the standard of competence expected of attorneys who practice before this or any United States District Court. [Plaintiff’s counsel’s] admitted lack of diligence and candor with the Court is simply inexcusable. However, under these circumstances, the Court does not find that monetary sanctions are appropriate. What is appropriate is a public admonition, a requirement that the [plaintiff’s counsel] complete legal ethics courses, and a requirement that [plaintiff’s counsel] relearn the fundamentals of the Federal Rules of Civil Procedure.”
Ouch. In Delaware, plaintiff would have needed to file a motion for leave to amend the complaint, complete with a Local Rule 15.1 redline of the proposed amendments. Of course, the plaintiff in Symbology was also sanctioned for violating a previous order of the Court, which can happen anywhere.
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