A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: prejudice

Conservatively, 134,000,000% of 12(b)(6) motions request dismissal with prejudice. After all, no one wants to win a motion only to start a similar, but slightly harder round of briefing, when the plaintiff inevitably does file a modestly improved complaint. However, it tends to be a pretty big life to actually secure a dismissal with prejudice when the plaintiff has not already tried and fail to fix the complaint's problems.

It's occurred to me in the past that it would be nice to have a middle ground between a dismissal with and without prejudice. Something for claims that haven't already proven themselves beyond repair with serial amendments, but that are marginal enough that they are unlikely to be cured.

Judge Stark …

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 …