A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: motion-to-amend

Don't Wait Too Long to Move to Amend

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

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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A Successful Letter Asking the Court to Rule More Quickly on a Pending Motion

Andrew E. Russell, March 8, 2021
Motion to Amend Litigation

Envelope with Letter
Brando Makes Branding, Unsplash

One common question for local counsel is "can we file something asking the Court to rule on our motion"? And the answer is usually something along the lines of "no," except in certain situations.

Last week we wrote about an example of the risks of an unwarranted request to expedite consideration of a motion.

This week I saw an example of a letter near the other end of the spectrum, in which a party asked gently urged the Court to consider a pending motion and got a good result.

A Letter That Worked

Plaintiff had moved for leave to amend their complaint to add two patents to a five-patent case, where all of the …

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

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

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
Scheduling Orders Motion to Amend Prejudice FRCP 16 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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