Early case: "No, we're not amending, why are you bugging us?" Late case: "Oh no! There was a deadline to amend?"Eric Rothermel, Unsplash
Rule 16 says that a schedule "may be modified only for good cause and with the judge’s consent." This rule comes up any time a party wants to do something after a deadline set in the scheduling order, which is one of the more common litigation issues.
Parties will often, for example, let the deadline to amend the pleadings pass by, only to later realize that they want to assert an inequitable conduct defense (defendants) or wrap in a related entity (plaintiffs).
Good cause requires diligence, and in practice parties often frame the diligence discussion …
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 …
Attorney searching for factual support for their inequitable conduct allegationsAgence 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 …
Judge Andrews on Friday denied a fairly typical stipulation extending time for the briefing on a motion to dismiss:
ORAL ORDER: There is a pending motion of a routine nature. Each side is represented by multiple attorneys, at least some of whom on both sides are known to me to be more than competent. Summer schedules and other professional obligations are not a reason to add more than two months to the briefing schedule for this motion. The stipulation (D.I. 15 ) is DENIED. Ordered by Judge Richard G. Andrews on 6/3/2022. (nms) (Entered: 06/03/2022)
Robocast, Inc. v. Netflix, Inc., C.A. No. 22-305-RGA, D.I. 16 (D. Del. June 3, 2022).
I've noticed two similar orders lately as well, denying early-case extensions or stays and citing Federal Rule of Civil Procedure 16(b)(2), both from Chief Magistrate Judge Thynge. First, with regard to a stipulation to extend time to submit a scheduling order:
ORAL ORDER re 18 STIPULATION TO EXTEND TIME to submit a scheduling order to 6/1/2022 filed by IP Power Holdings Limited: . . . By the time of the Rule 16 conference scheduled for 6/6/2022, this matter will have been pending for ...
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 …
This blog is for general informational purposes. It is not an offer to perform legal services, and should not be considered a substitute for legal advice. Nothing in this blog should be construed as forming an attorney-client relationship. If you have legal questions, please consult counsel in your jurisdiction.
