A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: FRCP 15

Judge Andrews Offers Guidance for Delaware Counsel—But Can They Do It?

Andrew E. Russell, Jan. 11, 2023
FRCP 15 FRCP 16

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 …
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A Helpful Order on Moving to Amend to Add Inequitable Conduct

Andrew E. Russell, Sept. 2, 2022
Inequitable Conduct FRCP 15

Attorney searching for factual support for their inequitable conduct allegations
Attorney searching for factual support for their inequitable conduct allegations Agence Olloweb, Unsplash

Yesterday, in Intercept Pharmaceuticals v. Apotex Inc., C.A. No. 20-1105-MN (D. Del. Sept. 1, 2022), Judge Hall granted a motion to amend to add inequitable conduct allegations almost a year after the deadline for amendment in the scheduling order.

Most D. Del. scheduling orders include a deadline for motions to amend or to join additional parties. Normally, the standard for motions to amend in the Third Circuit is relatively easy to meet. But when there is a scheduling order deadline for amendment, the Courts has held that parties must show "good cause" under Rule 16 if they move to amend after the …

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Don't Wait Too Long to Move to Amend

Andrew E. Russell, June 7, 2021
FRCP 15 Motion to Amend

Snail
Wolfgang Hasselmann, Unsplash

The FRCP 15 standard for a motion to amend is very forgiving. It states that the Court should grant leave to amend "freely . . . when justice so requires." The Third Circuit likewise has a "policy favoring liberal amendment of pleadings." Dole v. Arco Chem. Co., 921 F.2d 484, 487 (3d Cir. 1990)

Regardless, a party can still lose a motion to amend if it waits long enough. That's what happened last week, when Judge Burke denied a motion to amend to add an unclean hands defense, a breach-of-contract claims, and a trade secret counterclaim.

The defendant waited to add its defenses until more than six months after the deadline to amend, and more …

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What Can Parties Stipulate to in the District of Delaware? And When Do Parties Have to File a Stipulation?

Andrew E. Russell, June 6, 2021
FRCP 15 FRCP 12

You may not realize the dangers with certain stips.
You may not realize the dangers with certain stips. Andrew E. Russell, CC BY 2.0

It was a bit of a slow week as far as opinions from the District of Delaware, so I wanted to write a short post about stipulations, covering a few questions that sometimes come up.

What Can You Do by Stipulation in D. Del.?

In the District of Delaware, most litigation-related matters or facts can potentially be stipulated to. This includes, most commonly, extensions of deadlines. Parties routinely file, and the Court routinely grants, stipulations extending time for things like answer deadlines, deadlines to file a scheduling order, and protective order deadlines. Parties likewise routinely stipulate to the amendment of pleadings, FRCP 41 dismissals, …

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Four+ Page Long Notice of Subsequent Authority Proves Effective

Andrew E. Russell, May 20, 2021
LR 7.1.2 Supplemental Pleading

In Delaware, Local Rule 7.1.2(b) sets deadlines for responding to motions, and states that

Except for the citation of subsequent authorities, no additional papers [other than the opening, answering, and reply briefs] shall be filed absent Court approval.

Based on this rule, parties file "notices of subsequent authorities" to present after-arising citations (and sometimes other content) to the Court.

But some attorneys disagree about just how much argument can accompany the "citation[s]" a notice of subsequent authority. The authority is mixed.

In some cases, the Court has declined to consider notices containing argument that are filed without leave. See, e.g., Forest Labs., Inc. v. Amneal Pharm. LLC, C.A. No. 14-508-LPS, 2015 U.S. Dist. LEXIS 23215, at *51 …

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If You Do Not Plead Indirect Infringement, You Cannot Argue It (Without Amending)

Andrew E. Russell, Oct. 14, 2020
FRCP 15 Final Infringement Contentions

Judge Burke granted a motion to strike yesterday where the plaintiff attempted to add indirect infringement allegations in final infringement contentions, but had not pled them in the complaint.

Per Judge Burke:

It is undisputed that Plaintiffs have never pleaded indirect infringement of these patents, (D.I. 170 at 1), and so any portion of their [final contentions] that relate to that subject matter are simply about infringement claims that are not a part of this case.

He also preemptively denied any future request to amend the complaint as coming too late:

Although they have not filed a formal motion seeking to amend their currently operative complaint to include such [indirect infringement] claims, to the extent Plaintiffs suggest they would …
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Motion to Amend Filed Before Deadline Not Untimely

Andrew E. Russell, June 23, 2020
FRCP FRCP 15

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 …
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