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Judge Carpenter Grants Motion for Leave to File Amended Complaint Months Before Trial

July 24, 2018

In DRIT LP v. Glaxo Group Ltd., C.A. No. N16C-07-218-WCC-CCLD (Del. Super. Ct. Apr. 25, 2018) (ORDER), Judge Carpenter granted the plaintiff’s Motion for Leave to File an Amended Complaint to add an additional count for breach of contract to the litigation. The motion for leave to amend, filed five months before trial, sought to add a count that the defendants owed royalty payments and interest amounting to $1.8 million for an 11-week period during which the defendants failed to properly disclaim a patent.

The plaintiff argued that the amendment was timely because it had only learned that the fee was not actually paid until July 2015 while taking discovery, including depositions of the defendants’ witnesses. Moreover, the issue was included in the parties’ respective expert reports and raised during expert depositions. The plaintiff claimed that the amendment would not affect the schedule of the case because it was purely a question of law as to when the disclaimer became effective, and so no further discovery on the issue was needed.

The defendants disagreed and argued that the plaintiff’s motion should be denied because the timing of the new proposed count would prejudice the defendants and be futile. Specifically, the defendants claimed that information concerning the date the filing fees were paid had been available to the plaintiff through publicly available documents on the USPTO’s website since before the complaint was filed.

Ultimately, Judge Carpenter concluded that the defendants would not be prejudiced by the amendment and granted the plaintiff’s motion. In so holding, Judge Carpenter found that even though the motion was submitted after the close of fact and expert discovery, experts had already opined on the issue in their expert report and testified about the issue during depositions. Accordingly, there was no actual prejudice to the defendants.

Analysis: In Delaware, leave to amend pleadings to add new claims is liberally granted and may even be granted in the pretrial stipulation or after trial to conform to the evidence. See, e.g., RCM LS II, LLC v. Lincoln Circle Assocs., LLC, No. 9478-VCL, at 14-15 (Del. Ch. May 27, 2014) (TRANSCRIPT); CIM Urban Lending GP v. Cantor Commercial Real Estate Sponsor, L.P., C.A. No. 11060-VCS (TRANSCRIPT) (granting leave to amend to add new claims months before trial and stating that bifurcation would be considered if requested); Del. Super. Ct. Civ. R. 15(b) (noting that request to amend “may be made upon motion of any party at any time, even after judgment”). Here, the amendment was allowed after Judge Carpenter found that there would be no prejudice.

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