Judge Sleet Grants Motion to Dismiss

July 12, 2016

Publication| Intellectual Property

In Teva Pharm. USA, Inc. v. Forest Labs., Inc., C.A. No. 13-2002-GMS (D. Del. June 16, 2016), Judge Sleet granted the plaintiffs’ motion to dismiss the defendants’ counterclaims and affirmative defenses, which the defendants had included for the first time in their answer to the plaintiffs’ first amended complaint. Almost two years after filing the initial complaint, the plaintiffs filed their first amended complaint, adding Forest Pharmaceuticals as a defendant. In response to the first amended complaint, the defendants added counterclaims and affirmative defenses for invalidity. The plaintiffs argued that the defendants had “significantly amend[ed] its answer” after fact discovery had closed without seeking leave from the court. Judge Sleet held that a response to an amended pleading could be filed without leave only where the amended complaint changed the scope of the case. Judge Sleet found that the plaintiffs’ first amended complaint, however, made no substantive changes other than adding Forest Pharmaceuticals—a wholly owned subsidiary of Forest Labs—as a defendant. Noting this change to be simply a “ministerial amendment,” Judge Sleet found that it would inappropriate to allow the defendants to amend their pleading. Thus, Judge Sleet dismissed the defendants’ counterclaim and new affirmative defenses, observing that the case was “simply too close to trial to add completely new issues without prejudicing the plaintiffs and unduly delaying the litigation.”

Analysis: Although the court routinely allows amended pleadings, untimely amendments may be rejected.

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