Magistrate Judge Fallon Grants Leave to Amend Complaint

November 13, 2017

Publication| Intellectual Property

In LEO Pharma A/S, LEO Laboratories Limited v. Perrigo UK Finco Limited Partnership, C.A. No. 16-430-JFB-SRF (D. Del. Sept. 20, 2017), Magistrate Judge Fallon granted leave to amend the complaint, holding that the amended complaint would not cause undue delay or be futile. Plaintiffs LEO Pharma A/S, LEO Laboratories Limited, and LEO Pharma, Inc. (collectively, “LEO”) initiated this patent infringement action in June of 2016 against the defendants, Perrigo UK Finco Limited Partnership and Perrigo Company (collectively, “Perrigo”). On May 24, 2017, LEO moved to amend the complaint to add two new counts for declaratory judgment of infringement.

Noting that “[i]n the absence of undue delay, bad faith, or dilatory motives on the part of the moving party, the amendment should be freely granted, unless it is futile or unfairly prejudicial to the non-moving party,” Judge Fallon held that the amended complaint would not cause undue delay because it was filed within the deadline to amend pleadings under the scheduling order, the case was still in its early stages and fact discovery remained open, and nearly identical claims had been filed by LEO in a related case. Although LEO moved to amend seven months after receiving Perrigo’s ANDAs, the Court held that dismissing a motion to amend on the grounds of delay required more than the mere passage of time.

The Court also found that LEO’s proposed amended complaint was not futile. Although Perrigo argued that the claims were not yet ripe, Judge Fallon found that Perrigo’s expressed intent to launch upon approval of its ANDAs sufficed to satisfy the criteria for a declaratory judgment action of infringement—the existence of an actual controversy between parties.

Key Point: While other Judges in this District have denied motions to amend filed before the deadline set forth in the Scheduling Order, Judge Fallon continued her practice of liberally granting amendment when motions are filed within the deadline set in the Scheduling Order.

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